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PROCEEDINGS  (2) 

OF  THE 

ACADEMY   OF    POLITICAL   SCIENCE 

IN  THE  CITY  OF  NEW  YORK 


Volume  III]  OCTOBER,  1912     '3  [Number  1 


YEAR   BOOK  OF  THE  ACADEMY 

CONSTITUTION,  BY-LAWS  AND  LIST  OF 
OFFICERS  AND  MEMBERS 


The  Academv  of  Political  Science 

Columbia  University,  New  York 

1912 


THE  ACADEMY  OF  POLITICAL   SCIENCE 


IN  THE  CITY  OF  NEW  YORK 


EXECUTIVE  OFFICES 

KENT  HALL,  COLUMBIA  UNIVERSITY,  NEW  YORK 

Telephone  Morningside  1400 


(2^ 


CONSTITUTION  AND  BY-LAWS 


CONSTITUTION 

Article  I — Name 

The  name  of  this  association  shall  be  "  The  Academy  of  Polit- 
ical Science  in  the  City  of  New  York." 

Article  II — Objects 

The  objects  of  the  Academy  are  the  cultivation  of  the  political 
sciences  and  their  application  to  the  solution  of  social  and  polit- 
ical problems.  These  objects  shall  be  prosecuted  in  such  manner 
as  the  Board  of  Trustees  shall  from  time  to  time  direct,  either 
by  the  encouragement  of  research,  the  holding  of  public  meet- 
ings or  lecture  courses,  the  establishment  of  a  library,  or  in  any 
other  way  the  Board  may  approve. 

Article  III — Headquarters 

The  headquarters  of  the  Academy  shall  be  in  the  City  of  New 
York,  and  the  Academy  shall  be  affiliated  with  Columbia  Uni- 
versity in  such  manner  as  the  Board  of  Trustees  may  be  able  to 
arrange  with  the  Trustees  of  Columbia  University. 

Article  IV — Membership  and  Dues 

The  Board  of  Trustees  shall  prescribe  the  qualifications  of 
members,  and  establish  such  classes  of  membership,  whether  life, 
active,  associate  or  otherwise,  as  it  may  deem  wise,  define  the 
privileges  of  members  and  fix  the  amount  of  the  annual  dues  or 
life-membership  fees  to  be  paid  by  the  members. 

Article  V — Government 

The  management  of  all  the  affairs  of  the  Academy  and  the 
trusteeship  of  all  its  property  are  vested  in  a  Board  of  Trustees 
composed  of  nine  directors  elected  by  the  members  of  the  Acad- 
emy, and  the  officers  elected  by  the  Board  of  Directors.  Three 
directors  shall  be  chosen  at  the  annual  meeting  each  year  for  a 
term  of  three  years  each. 

(3) 

pp.    1-48   reprinted  by  Kraus   Reprint   Corporation. 


4  YEAR  BOOK  OF  THE  ACADEMY  [Vol.  Ill 

At  the  annual  meeting  at  which  this  constitution  is  adopted 
nine  directors  shall  be  elected,  and  those  persons  so  chosen  shall 
at  their  first  meeting,  to  be  called  within  one  week  from  the  date 
of  the  annual  meeting  by  the  secretary  of  that  meeting,  cast 
lots  so  that  the  terms  of  service  of  three  directors  shall  expire 
at  the  next  annual  meeting,  three  at  the  second,  and  three  at 
the  third  annual  meeting  from  the  one  at  which  the  nine  direc- 
tors were  chosen. 

The  directors  and  the  officers  together  constitute  the  Board 
of  Trustees  and  any  five  of  them  shall  constitute  a  quorum. 
The  Board  shall  meet  at  the  call  of  the  President  of  the  Acad- 
emy, who  shall  be  ex  officio  the  Chairman  of  the  Board.  At  any 
time  at  the  written  request  of  three  members  of  the  Board  the 
President  shall  call  a  meeting. 

In  the  event  of  the  death  or  resignation  of  a  director,  the 
Board  shall  fill  the  vacancy  until  the  next  annual  business  meet- 
ing of  the  members  when  the  members  shall  elect  a  person  to 
fill  the  unexpired  term. 

Article  VI — Officers 

The  officers  of  the  Academy  shall  be  a  President,  two  Vice- 
Presidents,  a  Secretary  and  a  Treasurer,  who  shall  be  elected 
annually  by  the  directors  at  the  first  meeting  of  the  Board  sub- 
sequent to  the  annual  business  meeting  of  the  Academy.  They 
shall  be  elected  for  a  term  of  one  year  and  shall  serve  until 
their  successors  are  chosen  and  shall  perform  the  duties  usually 
pertaining  to  their  respective  offices  and  such  as  may  be  pre- 
scribed by  the  Board  of  Trustees. 

Article  VII — Meetings 

The  meetings  of  the  Academy  shall  be  held  at  such  times 
and  places  and  for  such  purposes  as  the  Board  of  Trustees  may 
direct,  except  that  at  least  once  a  year  in  the  month  of  December 
or  January  the  Board  shall  fix  a  date  for  the  annual  business 
meeting  for  the  election  of  directors  and  the  presentation  of 
reports  on  the  work  of  the  Academy  from  its  officers  or  from 
the  Board  of  Trustees,  or  both,  and  notice  of  such  meeting 
shall  be  mailed  to  all  members  at  least  ten  days  prior  to  the 
date  so  fixed.  Such  members  as  are  present  shall  constitute  a 
quorum. 

(4) 


No.  I]  CONSTITUTION  AND  BY-LAWS  5 

Article  VIII — Advisory  Council 

The  Board  of  Trustees  may  elect  an  Advisory  Council  to  be 
composed  of  men  distinguished  for  public  service,  whether 
members  of  the  Academy  or  not,  provided  they  are  interested 
in  its  work  and  willing  to  give  counsel  in  the  formulation  and 
execution  of  its  policies. 

Article  IX — By-Laivs  and  Amendments 

The  Board  of  Trustees  shall  have  power  to  adopt  by-laws  not 
inconsistent  with  this  constitution  for  the  better  transaction  of 
its  business,  and  amend  the  same  at  pleasure  and  this  constitu- 
tion may  be  amended  by  a  majority  vote  at  any  annual  business 
meeting  or  at  any  regularly  called  special  business  meeting  of 
the  members  of  the  Academy  provided  notice  of  such  meeting 
has  been  mailed  to  all  members  at  least  ten  days  prior  to  the 
date  of  meeting,  and  provided  further,  that  all  amendments 
shall  have  the  approval  of  a  majority  of  the  Board  of  Trustees, 
or  otherwise  must  be  considered  at  two  consecutive  business 
meetings  of  the  members  of  the  Academy  before  they  can  be 
put  to  vote. 

BY-LAWS 

1.  The  Board  of  Trustees  shall  meet  at  the  call  of  the  Presi- 
dent, and  five  members  shall  constitute  a  quorum.  On  written 
request  of  three  members  of  the  Board  the  President  shall  call 
a  meeting  of  the  Board. 

2.  Any  person  interested  in  the  work  of  the  Academy  and 
signifying  a  desire  to  promote  its  objects  shall,  upon  application 
to  the  Secretary  and  upon  payment  of  dues  for  the  ensuing  year, 
be  enrolled  as  a  member. 

3.  Members  of  the  Academy  shall  pay  annual  dues  in  the 
amount  of  five  dollars,  payable  in  advance.  Said  payment 
shall  date  from  the  first  day  of  the  quarter  (January — March, 
April — June,  July — September,  October — December)  in  which 
such  members  were  enrolled,  except  that  the  membership  of 
persons  enrolled  in  March,  June,  September  and  December  shall 
date  for  the  payment  of  dues  from  the  first  day  of  the  follow- 
ing month. 

(5) 


6  YEAR  BOOK  OF  THE  ACADEMY 

4.  Any  member  may  compound  his  annual  dues  by  the  single 
payment  of  one  hundred  dollars  and  thereby  be  enrolled  as  a 
Life  Member  and  be  exempt  from  further  payment  of  annual 
dues. 

5.  The  President  shall  have  executive  control  of  the  business 
oflfices  of  the  Academy.  He  shall  appoint  an  "Assistant  to  the 
President "  subject  to  the  approval  of  the  Board  and  at  a  salary 
to  be  fixed  by  the  Board,  and  shall  prescribe  the  duties  of  that 
officer. 

6.  The  President  shall  approve  all  bills  incurred  for  the  Acad- 
emy and  transmit  them  for  payment  to  the  office  of  the  Treas- 
urer, together  with  a  copy  of,  or  reference  to,  the  resolution  of 
the  Board  under  which  the  expense  was  incurred,  except  that 
incidental  office  expenses  in  an  amount  not  to  exceed  one  hun- 
dred dollars  ($100)  a  month,  and  bills  for  temporary  service  in 
the  offices  of  the  Academy,  or  for  purposes  (services,  material, 
traveling  expenses,  etc.)  connected  with  the  regular  routine 
business  of  the  Academy,  or  the  work  of  any  of  its  committees, 
in  amounts  not  exceeding  one  hundred  dollars  ($100)  may  be 
paid  by  the  Treasurer  upon  the  approval  of  the  President  with- 
out special  resolution  of  the  Board,  provided,  however,  all  such 
payments  be  reported  to  and  approved  by  the  Board  at  its  next 
meeting. 

7.  These  by-laws  may  be  amended  at  any  meeting  of  the  Board 
of  Trustees  by  a  majority  vote,  provided  at  least  eight  members 
of  the  Board  vote  in  favor  of  such  amendment  or  subsequently 
record  in  writing  their  consent  thereto. 

(6) 


OFFICERS  OF  THE  ACADEMY 


president 
Samuel  McCune  Lindsay 

Professor  of  Social  Legislation,  Columbia  University 

VICE-PRESIDENTS 

Albert  Shaw 

Editor  of  "The  Review  of  Reviews" 

Paul  M.  Warburg 

Kuhn,  Loeb  &  Company 

SECRETARY 

Henry  Raymond  Mussey 

Associate  Professor  of  Economics,  Columbia  University 

TREASURER 

George  A.  Plimpton 

Ginn  &  Company,  New  York 


ASSISTANT  TO  THE  PRESIDENT 

Emma  S.  Lake 


Robert  Erskine  Ely 

League  for  Political  Education 

Frank  J.  Goodnow 

Professor  of  Administrative  Law, 
Columbia  University 

A.  Barton  Hepburn 

President  Chase  National  Bank, 
New  York 

Thomas  W.  Lamont 

J.  P.  Morgan  &  Company,  New  York 

William  R.  Shepherd 
Professor  of  History,  Columbia  University 


Henry  R.  Seager 

Professor  of  Political  Economy, 
Columbia  University 

Edwin  R.  A.  Seligman 

Professor  of  Political  Economy, 
Columbia  University 

MuNROE  Smith 

Professor  of  Comparative  Jurisprudence 
Columbia  University 

Frank  A.  Vanderlip 

President  National  City  Bank,  New  York 


ADVISORY  COUNCIL 


Nicholas  Murray  Butler 

President  of  Columbia  University 

J.  PiERpoNT  Morgan 

J.  P.  Morgan  &  Company 


EDITOR   POLITICAL  SCIENCE  QUARTERLY 

Munroe  Smith 


Elihu  Root 

United  States  Senator  from  New  York 

Francis  Lynde  Stetson 

New  York  Bar 


EDITOR  PROCEEDINGS  OF  THE  ACADEMY 

Henry  Raymond  Mussey 


(7) 


LIFE  MEMBERS  OF  THE  ACADEMY 


Brackenridge,  George  W.  San  Antonio  Natl.  Bank,  San  Antonio,  Texas 

Dunham,  Edward  K.  35  East  68th  Street 

Frankland,  Frederick  Wm.  "  Okataina,"  Foxton,  Manawatu,  New  Zealand 
Griffin,  Frederick  R.        Sherbrooke  and  Simpson  Sts.,  Montreal,  Canada 

Hyams,  Godfrey  M.  P.  O.  Box  5104,  Boston,  Mass. 

lies,  George  Park  Avenue  Hotel 

Quesada,  Ernesto  Libertad  946,  Buenos  Aires,  R.  A. 

Riker,  John  J.  46  Cedar  Street 

Smith,  S.  L.  1013  Woodland  Ave.,  Detroit,  Mich. 

Williams,  John  Skelton  801  E.  Main  St.,  Richmond,  Va. 


MEMBERS  OF  THE  ACADEMY* 


Aaron,  Charles  E. 
Abbott,  Edwin  M. 
Abbott,  E.  G. 
Abbott,  Lyman 
Acheson,  Edward  G. 
Ackerman,  William 
Adams,  A.  E. 
Adams,  Miss  Charlotte  H. 
Adams,  Edward  D. 
Adams,  Henry  Sherman 
Adams,  Samuel  B. 
Adriance,  Benjamin 
Adsit,  Charles 
Agar,  John  G. 
Albert,  S. 
Alberti,  Paul  E. 
Albertson,  Thomas  W. 
Alexander,  Mrs.  A. 
Alexander,  George 
Alexander,  J.  S. 
Alexander,  William  H. 
Allen,  D.  B. 
Allen,  Ethan 
Allen,  Frank  D. 
Allen,  Frederick  H. 


830  Central  Avenue,  Plainfield,  N.  J. 

818  Land  Title  Building,  Philadelphia,  Pa. 

14  Deering  Street,  Portland,  Me. 

287  Fourth  Avenue 

Niagara  Falls,  N.  Y. 

300  West  12 1st  Street 

5th  Avenue  &  Broadway,  Youngstown,  0. 

3  Gramercy  Park 

71  Broadway 

152  Montague  Street,  Brooklyn,  N.  Y. 

Savannah,  Ga. 

254  Van  Brunt  Street,  Brooklyn,  N.  Y. 

Hornell,  N.  Y. 

31  Nassau  Street 

112  Lenox  Avenue 

50  Pine  Street 

Mineola,  N.  Y. 

Castle  Point,  Hoboken,  N.  J. 

90  West  Broadway 

31  Nassau  Street 

80  Maiden  Lane 

Arlington,  la. 

126  Fifth  Avenue 

39  Claremont  Avenue 

63  Wall  Street 


*  In  addresses  giving  street  and  number  only,  the  city  is  New  York. 

(8) 


LIST  OF  MEMBERS 


Allen,  Frederick  L. 
Allen,  Frederick  W. 
Allen,  George  W.  H. 
Allen,  Mrs.  George  W. 
Allen,  William  H. 
Altschul,  C. 


55  Cedar  Street 

2,Z  Wall  Street 

Box  538,  Cazenovia-on-Lake  Owahgena,  N.  Y. 

Box  i88,  Bayden,  Cazenovia,  N.  Y. 

385  Central  Park  West 

10  Wall  Street 


Altschul,  Richard    Anglo  London  &  Paris  Natl.  Bank,  San  Francisco,  Calif. 


Alvord.  Andrew  P. 
Alvord,  Dean 
Amerman,  W.  H. 
Ames,  Frank  D. 
Amory,  Copley 
Anderson,  A.  A. 
Anderson,    Frank   B 
Anderson,  John 
Anderson,  Mrs.  J.  Scott 
Anderson,  Thomas  T. 
Andrews,  A.  C. 
Andrews,  Arthur  Irving 
Andrews,  Constant  A. 
Andrews,  George  Frederick 
Andrews,  W.  H. 
Andriano,  Albert  Koch 
Apple,  Harry  E. 
Archbold,  John  D. 
Archer,  Mrs.  G.  C. 
Arend,  Francis  J. 
Arents,  George,  jr. 
Armstrong,  Dwight  M. 
Armstrong,  James 
Armstrong,  Russell 
Armstrong,  S.  T. 
Arnheim,  Albert  A. 
Arnold,  Carrington  G. 
Arnstein,  Leo 
Arvine,  E.  P. 
Ashley,  R.  L. 
Aspegren,  John 
Astruck,  J.  Harry 
Atkins,  George  W.  E. 
Atkinson,  Franklin  Pierce 
Atterbury,  Charles  L. 
Atterbury,  John  T. 
Atwater,  Richard  M.,  jr. 
Atwood,  Kimball  C. 
Atwood,  Kimball  C,  jr. 
Auchincloss,  Gordon 
Auerbach,  Joseph  S. 
Auerbach,  Louis 


12  West  44th  Street 

III   Broadway 

21  State  Street 

26  West  31st  Street 

Walpole,  N.  H. 

80  West  40th  Street 

are  of  the  Bank  of  California,  San  Francisco,  Calif. 

81  Maiden  Lane 

Swarthmore,  Pa. 

4241  Folsom  Avenue,  St.  Louis,  Mo. 

83  Cedar  Street 

Tufts  College,  Mass. 

Park  Avenue,  White  Plains,  N.  Y. 

P.  O.  Box  2305,  Boston,  Mass. 

130  East  67th  Street 

810  Broadway 

3100  Broadway 

26  Broadway 

II  West  91st  Street 

165  Broadway 

III  Fifth  Avenue 

1 150  Eastmoreland  Ave.,  Memphis,  Tenn. 

71  Nassau  Street 

60  Broadway 

Katonah,  N.  Y. 

119  Cottage  Avenue,  Mount  Vernon,  N.  Y. 

30  Broad  Street 

City  Hall 

42  Church  Street,  New  Haven,  Conn. 

537  West  I2ist  Street 

New  York  Produce  Exchange 

7-9  West  i8th  Street 

195  Broadway 

Great  Falls,  Mont. 

30  Broad  Street 

5  Nassau  Street 

25  Broad  Street 

290  Broadway 

290  Broadway 

120  East  70th  Street 

34  Nassau  Street 

842  Broadway 

(9) 


lO 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Austin,  Charles 

Avery,  Samuel  P. 

Babbott,  Frank  L. 

Babcock.  H.  D. 

Bache,  Jules  S. 

Bache,  Leopold  S. 

Bachia,  Richard  A. 

Bacon,  Edward  R. 

Bacon,  Mrs.  Francis  McN.,  jr. 

Bacon,  George  Wood 

Bacon,  Robert  L. 

Baer,  George  F. 

Baer,  Louis  D. 

Baettenhaussen,  Theodore 

Bailey,  Frank 

Baird,  F.  C. 

Baker,  Alfred  L. 

Baker,  Charles  Adkins, 

Baker,  George  F.,  jr. 

Baker,  O.  M. 

Baker,  Orin  C. 

Baketel,  H.  Sheridan 

Baldwin,  Frank  V. 

Baldwin,  Mrs.  Martin  T. 

Baldwin,  William  D. 

Baldwin,  William  H. 

Ballin,  William 

Barber,  James  T. 

Barber,  Major  William 

Barbour,  Edmund  D. 

Barclay,  R.  G. 

Bard,  Albert  S. 

Baring,  Charles 

Barkley,  Charles  B. 

Barlow,  Peter  T. 

Barnes,  Edward  W. 

Barnum,  William  M. 

Barry,  Charles  D. 

Barstow,  George  Fames 

Barth,  Alfred 

Barthelemy,  Louis  C. 

Bartlett,  J.  Kemp 

Bartlett,  Philip  G. 

Baruch,  Bernard  M. 

Baruch,  Emanuel  de  M. 

Bassett,  Acton  Civil! 

Bassett,  Sheldon  H. 

Batchelder.  Wallace 

Bates,  George  H. 


23  West  Street,  Battle  Creek,  Mich. 

61  Woodland  Street,  Hartford,  Conn. 

346  Broadway 

20  East  52d  Street 

42  Broadway 

42  Broadway 

47  West  i6th  Street 

2  Wall  Street 

135  East  39th  Street 

115  Broadway 

14  Wall  Street 

Reading  Terminal,  Philadelphia,  Pa. 

21  Claremont  Avenue 

542  Fifth  Avenue 

175  Remsen  Street,  Brooklyn,  N.  Y. 

224  Frick  Building,  Pittsburgh,  Pa. 

141  South  LaSalle  Street,  Chicago,  111. 

52  Broadway 

2  Wall  Street 

Myrick  Building,  Springfield,  Mass. 

238  East  48th  Street 

34  Beach  Street 

170  Prospect  Place,  Brooklyn,  N.  Y. 

Glen  Ridge,  N.  J. 

175  West  sSth  Street 

1415  21  St  Street,  Washington,  D.  C. 

601  West  113th  Street 

Eau  Claire,  Wis. 

52  Beaver  Street 

610  Sears  Building,  Boston,  Mass. 

5  East  78th  Street 

25  Broad  Street 

42  New  Street 

22  East  47th  Street 

10  Lexington  Avenue 

70  Worth  Street 

62  Cedar  Street 

17  State  Street 

Barstow,  Tex. 

411  West  114th  Street 

10  Wall  Street 

2100  Mt.  Royal  Terrace,  Baltimore,  Md. 

62  Cedar  Street 

III  Broadway 

57  East  77th  Street 

165  Broadway 

I  Madison  Avenue 

Bethel,  Vt. 

23  Holly  Street,  Cranford,  N.  J. 

(10) 


No.  i] 


LIST  OF  MEMBERS 


II 


Bates,  Mrs.  Lindon  W. 
Battelle,  John  Gordon 
Batten,  George 
Battle,  George  Gordon 
Baumann,  F.  W. 
Bayley,  George  W. 
Bayne,  Howard 
Beaman,  George  Herbert 
Beard,  Curtis  J. 
Beardsley,  Samuel  A. 
Beckwith,  Holmes 
Bedell,  Louis 
Beeber,  Mrs.  J.  D. 
Beekman,  Charles  K. 
Beekman,  Gerard 
Beer,  G.  L. 
Bell,  Frederick  D. 
Bell,  Mrs.  Gordon  K. 
Bell,  James  J. 
Beller,  William  F. 
Bellevue,  Fernand  S. 
Belmont,  August 
Belmont,  Mrs.  O.  H.  P. 
Beman,  Lamar  T. 
Bemis,  E.  W. 
Bend,  Miss  Beatrice 
Benedict,  L.  C. 
Benjamin,  Eugene  S. 
Benjamin,  G.  G. 
Benjamin,  M.  W. 
Bensel,  J.  A. 
Benton,  A. 
Beran,  Theodore 
Berglund,  Abraham 
Bernard,  G.  H. 
Bernheim,  Isaac  W. 
Bernheimer,  Charles  S. 
Bernheimer,  Max  E. 
Bertram,  H.  Henry 
Bertschmann,  J. 
Berwind,  Edward  J. 
Best,  Harry 
Bettman,  Alfred 
Betts,  Charles  H. 
Betts,  Robert  M. 
Bevin,  W.  D. 
Bickford,  Herbert  J. 
Bidstrup,  J.  F. 
Bigelow,  Charles  C. 


784  Fifth  Avenue 

Columbus,  O. 

93  Union  Street,  Montclair.  N.  J. 

37  Wall  Street 

6-9  Hanover  Street 

442  Jamaica  Avenue,  Brooklyn,  N.  Y. 

135  Broadway 

2232  Massachusetts  Avenue,  Washington,  D.  C. 

41  West  34th  Street 

54  Wall  Street 

331  E^st  31st  Street 

III  Broadway 

600  West  4th  Street,  Williamsport,  Pa. 

52  William  Street 

35  East  38th  Street 

329  West  71st  Street 

39  West  38th  Street 

58  East  72d  Street 

Shenandoah,  Pa. 

51  East  123d  Street 

Whitestone,  L.  L 

23  Nassau  Street 

477  Madison  Avenue 

East  High  School,  Cleveland,  O. 

852  Montrose  Boulevard,  Chicago,  111. 

563  Park  Avenue 

7  Wall  Street 

440  Lafayette  Street 

467  North  Park  Avenue,  Meadville,  Pa. 

43  West  88th  Street 

Albany,  N.  Y. 

79  Wall  Street 

I  West  64th  Street 

Pullman,  Wash. 

Glasco,  Kan. 

Louisville,  Ky. 

Pitkin  Avenue  &  Watkins  Street,  Brooklyn,  N.  Y. 

128th  Street  &  Amsterdam  Avenue 

116  West  14th  Street 

P.  O.  Box  418 

I  Broadway 

14  Livingstone  Place 

1514  First  National  Bank  Building,  Cincinnati,  O. 

29  Holly  Street,  Lyons,  N.  Y. 

Cornucopia,  Ore. 

109  Leonard  Street 

100  St.  Marks  Place,  New  Brighton,  S.  I. 

42  Jerome  Street,  Brooklyn,  N.  Y. 

1926  Broadway 

Cii) 


12 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Biggs,  Albert  W. 
Biggs,  Charles 
Bijur,  Nathan 
Bilgram,  Hugo 
Billquist,  C.  Edward 
Bing,  Alexander  M. 
Bishop,  James  C. 
Bishop,  Samuel  H. 
Bixby,  W.  H. 
Black,  Mrs.  Elmer  E. 
Black,  Hugh 
Black,  William  H. 
Blades,  J.  B. 
Blagden,  Arthur  C, 
Blair,  Mrs.  C.  Ledyard 
Blake,  Edwin  M. 
Blake,  Joseph  A. 
Blakeley,  William  A. 
Blanchard.  Irvin  T. 
Blashfield,  Edwin  H. 
Bliss,  C.  N.,  jr. 
Bliss,  William  H. 
Blount,  Henry  F. 
Blount,  Walter  E. 
Blum,  Charles 
Blum,  Edward  C. 
Blumenthal,  Mrs.  George 
Blumenthal,  Hugo 
Blumenthal,  Sidney 
Bodine,  Samuel  T. 
Body,  Joseph  F. 
Bogne,  Virgil  G. 
Bollinger,  James  Wills 
Bolster,  Wilfred 
Bond,  James  A.  C. 
Bondy,  Joseph 
Bonn,  Dr.  M.  J. 
Bontecou,  Frederic  T  . 
Booraem,  Alfred  W. 
Borchard,  Edwin  M. 
Borg,  Sidney  C. 
Borges,  Esteban  Gil 
Bostwick,  Charles  F. 
Boudin,  L.  B. 
Boudinot,  George  S. 
Bourne,  Frederick  G. 
Bouvier,  John  Vernon,  jr. 
Bowman,  D.  Arthur 
Bowman,  Harold  M. 


Tennessee  Trust  Building,  Memphis,  Tenn. 

13  Astor  Place 

160  West  75th  Street 

1235  Spring  Garden  Street,  Philadelphia,  Pa. 

ir  Broadway 

505  Fifth  Avenue 

iz  Pine  Street 

500  West  i22d  Street 

735  Southern  Bldg.,  Washington,  D.  C. 

512  Fifth  Avenue 

109  Lorraine  Avenue,  Upper  Montclair,  N.  J. 

18  East  28th  Street 

New  Bern,  N.  C. 

176  East  70th  Street 

Peapack,  N.  J. 

Room  1406,  I  Liberty  Street 

601  Madison  Avenue 

1237  Oliver  Building,  Pittsburgh,  Pa. 

Woodland,  N.  C. 

48  West  59th  Street 

117  Duane  Street 

6  East  65th  Street 

"  The  Oaks,"  Washington,  D.  C. 

Bluemont,  Va. 

Jacksonville,  Fla. 

424  Fulton  Street,  Brooklyn,  N.  Y. 

23  West  53d  Street 

5  Nassau  Street 

305  West  90th  Street 

Broad  &  Arch  Streets,  Philadelphia,  Pa. 

P.  O.  Box  842,  Baltimore,  Md. 

Mills  Building,  San  Francisco,  Calif. 

425  Locust  Street,  Davenport,  la. 

Court  House.  Boston,  Mass. 

Westminster,  Md. 

910  Irving  Avenue,  Syracuse,  N.  Y. 

Gaussstrasse,  Munich,  Germany 

150  Highland  Avenue,  Orange,  N.  J. 

204  Lincoln  Place,  Brooklyn,  N.  Y. 

Library  of  Congress,  Washington,  D.  C. 

20  Nassau  Street 

1343  Monroe  Street,  N.  W.,  Washington,  D.  C. 

Criminal  Courts  Building 

302  Broadway 

30  Church  Street 

149  Broadway 

141  Broadway 

Third  National  Bank  Building,  St.  Louis,  Mo. 

19  Edgemont  Road,  Upper  Montclair,  N.  J. 

(12) 


No.  I] 


LIST  OF  MEMBERS 


13 


Boyd,  R.  E. 

Brackenridge,  George  W* 
Bradley,  Robert  S. 
Brady,  Anthony  N. 
Brainerd,  Ira  H. 
Braley,  Henry  K. 
Braman,  Chester  A. 
Brandner,  Benjamin  L. 
Brandow,  Morris 
Braswell,  James  C. 
Breed,  R.  E. 
Bremer,  Paul  G. 
Brennan,  John  F. 
Brewer,  Mrs.  M.  D. 
Brewster,  William  T. 
Brice,  W.  Kirkpatrick 
Briesen,  Arthur  von 
Briggs,  Frank  O. 
Bright,  Edgar  H. 
Brinsmade,  John  C. 
Bristol,  George  W. 
Bristol,  John  I.  D. 
Britton,  Alexander 
Brock,  Alfred  T. 
Brockett,  Orlando  Mitchell 
Brody,  Joseph  M. 
Brokaw,  George  T. 
Bronner,  Harry 
Brookings,  Robert  S. 
Brown,  Charles  C. 
Brown,  Charles  Paul 
Brown,  Charles  S. 
Brown,  Dickson  Q, 
Brown,  Edward  W. 
Brown,  Frank  L. 
Brown,  Franklin  Q. 
Brown,  Francis  Shunk 
Brown,  Hugh  Henry 
Brown,  H.  J. 
Brown,  James 
Brown,  Lowell  H. 
Brown,  Paul 
Brown,  Philip  King 
Brown,  Selden  S. 
Brown,  Walston  H. 
Browning,  J.  A. 
Bruere,  Miss  Mina  W. 


409  West  2ist  Street 

San  Antonio  Natl.  Bank,  San  Antonio,  Tex. 

92  State  Street,  Boston,  Mass. 

54  Wall  Street 

39  Claremont  Avenue 

151  Kilsyth  Road,  Brighton,  Mass. 

70  Worth  Street 

15  William  Street 

488  Peachtree  Street,  Atlanta,  Ga. 

Rocky  Mount,  N.  C. 

30  Church  Street 

738  East  4th  Street,  St.  Paul,  Minn. 

16  South  Broadway,  Yonkers,  N.  Y. 

400  Riverside  Drive 

Columbia  University 

693  Fifth  Avenue 

25  Broad  Street 

198  West  Street,  Trenton,  N.  J. 

325  Boronne  Street,  New  Orleans,  La. 

The  Gunnery  School,  Washington,  Conn. 

20  Broad  Street 

45  West  74th  Street 

1419  F  Street,  Washington,  D.  C. 

424  California  Street,  San  Francisco,  Calif. 

1502  West  9th  Street,  Des  Moines,  Iowa 

62  West  92d  Street 

I  East  79th  Street 

5  Nassau  Street 

Ellwood  Place,  Kinker  Heights,  St.  Louis,  Mo. 

Kenosha,  Wis. 

141  Broadway 

146  Broadway 

t6o  West  59th  Street 

28  Beaver  Street 

Croker  Building.  San  Francisco,  Calif. 

33  Pine  Street 

1421  Chestnut  Street,  Philadelphia,  Pa. 

State  Bank  Building,  Tonopah,  Nev. 

Berlin  Mills  Co.,  Portland,  Me. 

59  Wall  Street 

56  Munn  Avenue,  East  Orange,  N.  J. 

Corn  Exchange  Bank  Building,  Chicago,  111. 

350  Post  Road,  San  Francisco,  Calif. 

Scottsville,  N.  Y. 

45  Wall  Street 

r  West  72d  Street 

310  West  95th  Street 


*  Life  Member. 


(13) 


14 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Brundrett,  E.  L. 
Bruton,  John  F. 
Bryan,  J.  Wallace, 
Bryant,  Hughes 
Bryant,  W.  Sidney,  jr 
Buck,  Walter  H. 
Buckley.  William  W. 
Buckner,  M.  N. 
Budington,  Ernest  G. 
Buhler,  Conrad 
Bullock,  Charles  E. 
Bullock,  George 
Bullowa,  F.  E.  M. 
Bunker,  Albert 
Burden,  James  A. 
Burdick,  F.  M. 
Burdick,  William 
Burges,  William  H. 
Burgess,  John  W. 
Burke,  Charles  E. 
Burke,  Thomas 
Burns,  Edward 
Burns,  William  J. 
Burr,  A.  G. 
Burr,  Mrs.  Winthrop 
Burrows,  William  H. 
Burt,  Silas  W. 
Busch,  Adolphus 
Bush,  Irving  T. 
Bustamante,  Antonio  S.  de 
Butler,  Charles  Stewart 
Butler,  Joseph  G.,  jr. 
Butler,  Nicholas  Murray 
Butler,  William  W.  S. 
Byrne,  James 
Cabot,  Mrs.  Francis  H. 
Cadwalader,  John  L. 
Cahn,  Arthur  L. 
Cahn,  William  L. 
Calder,  John 
Caldwell,  James  H. 
Caldwell,  R.  J. 
Calhoun,  Patrick 
Calkins,  Earnest  Elmo 
Calkins,  John  U. 
Cammann,  Hermann  H. 
Canfield,  George  F. 
Cannon,  James  G. 
Carey,  Mrs.  Francis  Kiney 


52d  Street  &  Sunset  Drive,  Kansas  City,  Mo. 

Wilson,  N.  C. 
521  Roland  Ave.,  Roland  Park,  Baltimore  Co.,  Md. 

Kansas  City,  Mo. 

200  Fifth  Avenue 

1400  Continental  Building,  Baltimore,  Md. 

141  Broadway 

26  Broad  Street 

32  Nassau  Street 

453  Broome  Street 

Canton,  Pa. 

40  Wall  Street 

22  Nassau  Street 

97  Hudson  Terrace,  Yonkers,  N.  Y. 

Troy,  N.  Y. 

Colum.bia  University 

602  Continental  Building,  Baltimore,  Md. 

2  Republic  Building,  El  Paso,  Texas 

323  West  S7th  Street 

40  Pollock  Avenue,  Pittsfield,  Mass. 

408  Burke  Building,  Seattle,  Wash. 

904  President  Street,  Brooklyn,   N.  Y. 

811  First  National  Bank  Building,  Chicago,  111. 

Rugby,  N.  D. 

7  Wall  Street 

P.  O.  Box  1022,  Middletown,  Conn. 

216  West  looth  Street 

St.  Louis,  Mo. 

100  Broad  Street 

Apartado  134,  Havana,  Cuba 

32  Nassau  Street 

Youngstown,  O. 

119  East  30th  Street 

Stockton.  Calif. 

24  Broad  Street 

37  East  7Sth  Street 

40  Wall  Street 

27  Pine  Street 

III  Broadway 

129  Ferry  Avenue,  East,  Detroit,  Mich. 

Care  of  Troy  Trust  Co.,  Troy,  N.  Y. 

55  Walnut  Street,  Montclair,  N.  J. 

30  Broad  Street 

250  Fifth  Avenue 

2347  Prospect  Street,  Berkeley,  Calif. 

84  William  Street 

49  Wall  Street 

Fourth  National  Bank 

509  Cathedral  Street,  Baltimore,  Md. 

(M) 


No.  i] 


LIST  OF  MEMBERS 


15 


Carlebach,  Walter  M. 
Carlton,  Newcomb 
Carnegie,  Andrew 
Carnochan,  William  E. 
Carpenter,  Herbert  S. 
Carrington,  A.  B. 
Carstens,  C.  C. 
Carstenson,  John 
Carter,  Jarvis  P. 
Carvalho,  S.  S. 
Casady,  Simon 
Chadbourne,  Thomas  L., 
Chamberlain,  Joseph  P. 
Chandler,  Percy  M. 
Channing,  J.  Parke 
Chapman,  James  M. 
Chase,  George 
Cheney,  O.  H. 
Chesebrough,  Robert  A. 
Chew,  Ng  Poon 
Childs,  Edwards  H. 
Childs,  R.  S. 
Childs,  William,  jr. 
Childs,  William  H. 
Choate,  Joseph  H. 
Church,  William  C. 
Cillis,  Hubert 
Claflin,  John 
Oancy,  John  R. 
Clare,  William  F. 
Clark,  David  T. 
Clark,  Emory  W. 
Clark,  John  Bates 
Clark,  J.  M. 
Clark,  LeRoy 
Clark,  Russell  Porter 
Clark,  Thomas  F. 
Clark,  V.  V. 
Clark,  Walter  E. 
Clark,  William  Andrews 
Clark,  W.  R. 
Clarke,  E.  A.  S. 
Clarke,  Frederick  H. 
Qarke,  Howard 
Clarke,  Lewis  L. 
Clarke,  Samuel  B. 
Qarkson,  David  A. 
Clement,  S.  M. 
Cleveland,  F.  A. 


136  West  86th  Street 

131  East  66th  Street 

2  East  91st  Street 

52  William  Street 

71  Broadway 

200  Broadway 

43  Mt.  Vernon  Street,  Boston,  Mass. 

526  Grand  Central  Terminal 

52  William  Street 

Metuchen,  N.  J. 

Central  State  Bank,  Des  Moines,  la. 

jr.  14  Wall  Street 

Kent  Hall,  Columbia  University 

3d  &  Walnut  Streets,  Philadelphia,  Pa. 

S  Broadway 

80  William  Street 

309  West  74th  Street 

78  Madison  Avenue 

17  State  Street 

809  Sacramento  Street,  San  Francisco,  Calif. 

59  Wall  Street 
23  Fifth  Avenue 

200  Fifth  Avenue 
17  Battery  Place 

60  Wall  Street 
20  Upper  Montclair  Avenue,  Montclair,  N.  J. 

20  Nassau  Street 

224  Church  Street 

loio  West  Belden  Avenue,  Syracuse,  N.  Y. 

Suite  916,  135  Broadway 

Williamstown,  Mass. 

1740  Jeflferson  Avenue,  Detroit,  Mich. 

407  West  117th  Street 

Amherst,  Mass. 

114  Liberty  Street 

52  Grove  Street,  Stamford,  Conn. 

195  Broadway 

444  Henry  Building,  Seattle,  Wash. 

824  St.  Nicholas  Avenue 

20  Exchange  Place 

2717  North  Broadway,  Los  Angeles,  Calif. 

2  Rector  Street 

Z'z  Nassau  Street 

2  West  4Sth  Street 

128  Broadway 

32  Nassau  Street 

Merrick,  L.  L 

^2,^  Delaware  Avenue,  Buffalo,  N.  Y. 

White  House,  Washington,  D.  C. 

(15) 


i6 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Cleveland,  J.  Wray 
Clews,  Henry- 
Close.  F.  K.  B. 
Cochran,  William  F. 
Coffin,  C.  A. 
Coffin,  W.  E. 
Cogswell,  Mrs.  Laura  K 
Cogswell,  Ledyard 
Cogswell,  William  Browne 
Cohen,  Benno 
Cohen,  Julius  Henry 
Cohen,  William  N. 
Colby,  Howard  A. 
Cole,  Charles  L. 
Cole,  Edward  F, 
Coleman,  C.  P. 
Coler,  Bird  S. 
Colgate,  Gilbert 
Collier,  Barron  G. 
Colvin,  D.  Leigh 
Conant,  Charles  A. 
Conkey,  H.  M. 
Conklin.  Roland  R. 
Connor,  H.  G. 
Connor,  Washington  R 
Conway,  Eustace 
Conyngton,  Thomas 
Cook,  Mrs.  Madge  Carr 
Cook,  Walter  W. 
Cook,  William  W. 
Copeland,  Charles  C. 
Cord,  J.  F. 
Cordley,  F.  R. 
Cornell,  William  H. 
Corning,  C.  R. 
Corrigan,  Andrew 
Corrigan,  J.  E. 
Corwin,  Edward  S. 
Coshow,  O.  P. 
Coster,  Miss  Helen 
Cotton,  Joseph  P.,  jr. 
Couden,  Elliott  R. 
Coulter,  Elmer  Dean 
Cowperthwait,  J.  Howard 
Cox,  Jennings  S. 
Cox,  Robert  Lynn 
Coykendall,  S.  D. 
Crain,  Thomas  C.  T. 
Cram,  Ralph  Adams 


176  Broadway 

15  Broad  Street 

7  Wall  Street 

Woodbrook,  Md. 

30  Church  Street 
902  Seventh  Street,  Des  Moines,  la. 

250  West  84th  Street 

318  State  Street,  Albany,  N.  Y. 

Syracuse,  N.  Y. 

308  West  94th  Street 

15  William  Street 

22  William  Street 

Plainfield,  N.  J. 

49  Wall  Street 

Times  Building,  Broadway  &  42d  Street 

57th  Street  and  Broadway 

43  Cedar  Street 

306  West  76;h  Street 

Flat  Iron  Building,  Broadway  &  23d  Street 

655  West  177th  Street 

34  Nassau  Street 

83  Cedar  Street 

I  Wall  Street 

Bruton  &  Gray  Streets,  Wilson,  N.  C. 

31  Nassau  Street 
127  East  35th  Street 

20  Vesey  Street 

302  West  77lh  Street 

University  of  Chicago  Law  School,  Chicago,  111. 

44  Wall  Street 

Red  Bank,  N.  J. 

Carlotte  Hall,  Md. 

324  West  103d  Street 

34  Nassau  Street 

36  Wall  Street 

140  Kansas  Street,  San  Francisco,  Calif. 

52  West  9th  Street 

115  Prospect  Avenue,  Princeton,  N.  J. 

Roseburg,  Ore. 

Z7  East  37th  Street 

165  Broadway 

Ridgewood  National  Bank,  Brooklyn,  N.  Y. 

261  West  44th  Street 

2222  Third  Avenue 

319  West  8oth  Street 

I  Madison  Avenue 

Rondout,  N.  Y. 

121  West  7Sth  Street 

15  Beacon  Street,  Boston,  Mass. 

(16) 


No.  i] 


LIST  OF  MEMBERS 


17 


Crane,  Alexander  B. 
Crane,  Charles  R. 
Cravath,  Paul  D. 
Craven,  W.  R. 
Crawford,  Miss  Caroline 
Crawford,  Hanford 
Crawford,  W. 
Creel,  Enrique  C. 
Crider,  George  A. 
Croll-Blackburne,  Mrs.  Ida 
Croly,  Herbert, 
Crook,  J.  W. 
Crow,  Allen  B. 
Crowell,  John  Franklin 
Crumplin,  Cecil  D. 
Culbertson,  John  J. 
Cummins,  Albert  B. 
Curtis,  Bracey 
Curtis.  W.  E. 
Curtiss,  Frederic  H. 
Cutcheon,  F.  W.  M. 
Cutler,  James  G. 
Cutting,  Churchill  H. 
Cutting,  Elizabeth  B. 
Cutting,  R.  Bayard 
Cutting,  R.  Fulton 
Dailey,  John  E. 
Dakin,  Arthur  H. 
Dashew,  Leon  D. 
Davey,  W.  N. 
Davis,  Andrew  McF. 
Davis,  Daniel  A. 
Davis,  David  T., 
Davis,  Frank  M. 
Davis,  G.  Richard 
Davis,  Harrison  M. 
Davis,  J.  Lionberger 
Davis,  John  A. 
Davis,  Pierpont  V. 
Davis,  Robert  E. 
Davis,  Vernon  M. 
Davison,  H.  P. 
Dawson,  Edgar 
Dawson,  Miles  M. 
Dealey,  James  Quayle 
Debevoise,  Thomas  M. 
DeBoer,  Joseph  Arend 
Decker,  Mrs.  J.  W. 
Decker,  Martin  S. 


55  Wall  Street 

31  West  I2th  Street 

52  William  Street 

108  South  Main  Street,  Dayton,  O. 

Middlebury  College,  Middlebury,  Vt. 

Care  of  Boatmen's  Bank,  St.  Louis,  Mo. 

10  West  20th  Street 

3a  de  Londres,  No.  40,  Mexico  City,  Mex. 

Dickinson  College,  Carlisle,  Pa. 

P.  519  South  41st  St.,  West  Phila.,  Pa. 

Windsor,  Vt. 

Amherst,  Mass. 

604  West  114th  Street 

17  West  91st  Street 

167  Beech  Street,  Arlington,  N.  J. 

Paris,  Texas 

United  States  Senate,  Washington,  D.  C. 

Nogales,  Ariz. 

30  Broad  Street 

63  Bay  State  Road,  Boston,  Mass. 

24  Broad  Street 

Cutler  Building,  Rochester,  N.  Y. 

37  Madison  Avenue 

37  Madison  Avenue 

32  Nassau  Street 

32  Nassau  Street 

35  Wall  Street 

Amherst,  Mass. 

80  St.  Nicholas  Avenue 

584  Central  Avenue,  East  Orange,  N.  J. 

10  Appleton  Street,  Cambridge,  Mass. 

52  West  57th  Street 

55  Liberty  Street 

145  West  58th  Street 

135  Broadway 

75  Ames  Building,  Boston,  Mass. 

Third  National  Bank  Building,  St.  Louis,  Mo. 

Z"?  Fifth  Avenue 

851  N.  Broad  Street,  Elizabeth,  N.  J. 

Gainesville,  Fla. 

194  Lenox  Avenue 

23  Wall  Street 

Normal  College 

141  Broadway 

Brown  University,  Providence,  R.  L 

62  Cedar  Street 

Montpelier,  Vt. 

51  West  54th  Street 

Public  Service  Commission,  Albany,  N.  Y. 

(17) 


i: 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Deemer,  Horace  E. 
de  Forest,  H.  W. 
de  Forest,  Robert  W. 
DeKay,  John  W. 
Delano,  S.  S. 
Delano,  William  Adams 
Delmar,  Eugene 
Deming,  Horace  E. 
Demorest,  William  C. 
Denison,  John  D.,  jr. 
Denison,  Winifred  T. 
Dennis,  Alfred  L.  P. 
Dennis,  James  S. 
Dennis,  John  B. 
Depew,  Chauncey  M. 
Derby,  James  Lloyd 
de  Roode,  Albert 
Derrick,  Calvin 
DeSanno,  A.  P. 
Devine,  Edward  T. 
Dey,  Donald 
Dick,  J.  Henry 
Dickinson,  A.  Lowes 
Diefenthaler,  Charles  E. 
Dillon,  John  F. 
Dimock,  George  E. 
Dimse,  Henry 
Dittenhoefer,  Miss  Estelle 
Dodd,  Allison 
Dodd,  W.  F. 
Dodge,  Geveland  H. 
Dodge,  Miss  Grace  H. 
Doherty,  Henry  L. 
Dommerich,  L.  W. 
Donald,  James  M. 
Donovan,  H.  W. 
Doremus,  R.  P. 
Dorr,  Goldthwaite,  H. 
Doty,  Mrs.  Alvah  H. 
Dougherty,  J.  Hampden 
Douglas,  James 
Douglas,  Walter 
Dow,  Miss  Caroline  B. 
Dowling,  Victor  J. 
Draper,  George  Otis 
Draper,  Mrs.  William  P. 
Drayton.  J.  Coleman 
Dreicer,  Mrs.  Michael 
Dreier,  Miss  Mary  E. 


Red  Oak,  la. 

30  Broad  Street 

7  Washington  Square 

III  Broadway 

165  Broadway 

4  East  39th  Street 

311  West  70th  Street 

15  William  Street 

60  Liberty  Street 

Bradley  Building,  Dubuque,  Iowa 

Department  of  Justice,  Washington,  D.  C. 

518  Wisconsin  Avenue,  Madison,  Wis. 

Box  17s,  Montclair,  N.  J. 

P.  O.  Box  1792 

27  West  54th  Street 

925  Park  Avenue 

52  Wall  Street 

Freeville,  N.  Y. 

1232  Race  Street,  Philadelphia,  Pa. 

607  Kent  Hall,  Amsterdam  Ave.  &  ii6th  Street 

201  DeWitt  Street,  Syracuse,  N.  Y. 

20  East  53d  Street 

52  William  Street 

190  Franklin  Street 

195  Broadway 

907  North  Broad  Street,  Elizabeth,  N.  J. 

874  Broadway 

17  East  83d  Street 

307  Belleville  Avenue,  Bloomfield,  N.  J. 

University  of  Illinois,  Urbana,  111. 

99  John  Street 

262  Madison  Avenue 

60  Wall  Street 

314  West  75th  Street 

9  Nassau  Street 

7  Wall  Street 

42  Broadway 

521  West  iiith  Street 

120  West  57th  Street 

27  William  Street 

99  John  Street 

Bisbee,  Ariz. 

3  Gramercy  Park 

27  Madison  Avenue 

I  Madison  .A.venue 

Hotel  Gotham,  Fifth  Avenue  &  55th  Street 

829  Park  Avenue 

1046  Fifth  Avenue 

6  Montague  Terrace,  Brooklyn,  N.  Y. 

(18) 


No.  I] 


LIST  OF  MEMBERS 


19 


Dresser,  Gardiner  S. 
Drury,  Frank  A. 
DuBois,  Charles  G. 
Duggan,  Stephen  Pierce 
Dulaney,  Henry  S. 
Dulles,  William 
Dummer,  Mrs.  W.  F. 
Duncan,  R   D. 
Dunham,  Carroll 
Dunham,  Edward  K.* 
Dunn,  Henry  E. 
Dunning,  William 
Dunstan,  J.  S. 
Dupuis,  Charles  W. 
Durham,  Knowlton 
Duval,  H.  Rieman 
Dwight,  John  E. 
Earle,  J.  Walter 
Earp,  Edwin  L. 
Easley,  Ralph  M. 
Eastman,  George 
Eastman,  Joseph 
Eastman,  Lucius  R.,  jr. 
Eastman,  Samuel  C. 
Easton,  Robert  T.  B. 
Eaton,  Arthur  W. 
Eaton,  Frederick  H. 
Eddy,  Charles  B. 
Eder,  James  M. 
Edison,  Thomas  A. 
Edmonds,  Dean  S. 
Edmonds,  Franklin  S. 
Edwards,  Daniel  M. 
Edwards,  Stephen  O. 
Egleston,  Melville 
Ehrich,  Samuel  W. 
Eickhoff,  Henry 
Eidlitz,  Ernest  F. 
Eidlitz,  Otto  M. 
Eisman,  Max 
Eldridge,  Frederick  L. 
Eldridge,  S. 
Elkus,  Abram  I. 
Elliott,  L.  L. 
Ellis,  George  W. 
Ellis,  Ralph 
Ellsworth,  William  W. 
Ely,  Robert  E. 
Emery,  Thomas 


71  Broadway 
Merchants  National  Bank,  Worcester,  Mass. 

15  Dey  Street 

College  of  the  City  of  New  York 

517  W.  Lombard  Street,  Baltimore,  Md. 

220  Fifth  Avenue 

679  Lincoln  Parkway,  Chicago,  111. 

Care  of  State  Trust  Company,  Little  Rock,  Ark. 

Irvington-on-Hudson,  N.  Y. 

35  West  68th  Street 

S3  East  79th  Street 

Columbia  University 

42  Broadway 

Western  German  Bank,  Cincinnati,  U. 

I  Gramercy  Park 

2,2  Nassau  Street 

33  Mount  Morris  Park  West 

293  Broadway 

Drew  Forest,  Madison,  N.  J. 

I  Madison  Avenue 

350  East  Avenue,  Rochester,  N.  Y. 

71  Broadway 

375  Washington  Street 

Concord,  N.  H. 

29  Broadway 

Pittsfield,  Mass. 

165  Broadway 

62  Cedar  Street 

251  West  95th  Street 

Orange,  N.  J. 

166  West  72d  Street 

7818  Lincoln  Drive,  Philadelphia,  Pa. 

208  Salina  Street,  Syracuse,  N.  Y. 

170  Westminster  Street,  Providence,  R.  L 

26  Cortlandt  Street 

25  Broad  Street 

604  Mills  Building,  San  Francisco,  Calif. 

31  Nassau  Street 

489  Fifth  Avenue 

I  West  70th  Street 

580  Fifth  Avenue 

244  East  105th  Street 

170  Broadway 

311  West  Third  Street,  Los  Angeles,  Calif. 

149  Broadway 

22  West  57th  Street 
2,3  East  17th  Street 

23  West  44th  Street 
Grand  Central  Station 

(19) 


20 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Erb,  Newman 
Erbsloh,  R. 
Erdmann,  Albert  J. 
Essing,  Arthur 
Estabrook,  A.  F. 
Estabrook,  H.  D. 
Evans,  Nelson  W. 
Evans,  Rowland 
Ewing,  Thomas,  jr. 
Eyer,  George  A. 
Fai'^banks,  Charles  W. 
Fairchild,  Charles  S. 
Fairchild,  Samuel  W. 
Fairlie,  John  A. 
Fallows,  Edward  H. 
Fancher,  B.  H. 
Farley,  Terence 
Farnsworth,  Fred.  E. 
Farquhar,  A.  B. 
Farrel,  Mrs.  John  Truitt 
Farrell,  James  A. 
Farrelly,  Stephen 
Fay,  Charles  R. 
Fenwick,  Charles  G. 
Ferguson,  Mrs.  F. 
Ferguson,  Henry 
Ferris,  Frank  A. 
Field,  E.  B. 
Fieldman,  Sol 
Finley,  John  H. 
Findley,  William  L. 


42  Broadway 

564  Broadway 

30  Broad  Street 

44  West  91st  Street 

15  State  Street,  Boston,  Mass. 

115  Broadway 

Portsmouth,  O. 

221  Federal  Building,  Indianapolis,  Ind. 

67  Wall  Street 

2,7  Wall  Street 

Indianapolis,   Ind, 

35  Fifth  Avenue 

P.  O.  Box  1 120 

1004  South  Lincoln  Avenue,  Urbana,  111. 

30  Church  Street 

530  Fifth  Avenue 

Hall  of  Records 

II   Pine  Street 

York,  Pa. 

47  Elm  Street,  Morristown,  N.  J. 

71  Broadway 

182  West  58th  Street 

119  Montague  Street,  Brooklyn 

2  Jackson  Place,  Washington,  D.  C. 

Box  71,  Halesite,  Suffolk  County,  N.  Y. 

123  Vernon  Street,  Hartford,  Conn. 

262  Mott  Street 

P.  O.  Drawer  1708,  Denver,  Colo. 

514  West  114th  Street 

College  of  the  City  of  New  York 

125  Riverside  Drive 


Fischer,  W.  J.  National  Bank  of  Commerce  Building,  St.  Louis,  Mo. 

Fish,  Frederick  P.  84  State  Street,  Boston,  Mass. 

Fish,  Mrs.  John  C.  19  South  Broadway,  Shelby,  O. 

Fisher,  Frederick  A.  71  Central  Street,  Lowell,  Mass. 

Fisher,  Mrs.  Harriet  White  125  East  Hanover  Street,  Trenton,  N.  J. 

Fisher,  Irving  460  Prospect  Street,  New  Haven,  Conn. 

Fisher,  Irving  R.  67  West  soth  Street 

Fisk,  Everett  C.  2a  Park  Street,  Boston,  Mass. 

Fisk,  Pliny  62  Cedar  Street 

Fiske,  Amos  K.  7  West  43d  Street 

Fiske,  Haley  i  Madison  Avenue 

Fitzpatrick,  Miss  Mary  Coghlan  885  Kent  Avenue,  Brooklyn,  N.  Y. 

Fitzwilson,  W.  G.  11  Pine  Street 

P'lagler,  J.  H.  200  Broadway 

Fleming,  Henry  S.  i  Broadway 

Fleitmann,  Frederick  T.  490  Broome  Street 

Fletcher,  Austin  B.  165  Broadway 

Flexner,  Bernard  Paul  Jones  Building,  Louisville,  Ky. 

(20) 


No.  I] 


LIST  OF  MEMBERS 


21 


Flinn,  Rev.  Victor  ( 
Flint,  Charles  R. 
Floyd,  Mrs.   Nelson 
Follett,  A.  D. 
Folsom,  Henry  T. 
Foote,  Allen  R. 
Forbes,  Allen  B. 
Fordham,  H.  L. 
Fordyce,  S.  W. 
Forster,  William 
Forsyth,  Ralph  K. 
Fort,  John  Franklin 
Fosdick,  'Raymond  B. 
Fowler,  Mrs.  Anderson 
Fowler,  Carl  H. 
Fox,  Alan 
Fox,  Hugh  F. 
Fox,  William  H. 
Fraenkel,  Osmond  K. 
Frame,  Andrew  J. 
Frankfort,  M. 
Frankfurter,  Felix 


39  East  42d  Street 

4  East  36th  Street 

Syosset,  L.  I. 

St.   Clair  Building,  Marietta,  O. 

Llewellyn  Park,  Orange,  N.  J. 

334  Chamber  of  Commerce  Building,  Columbus,  O. 

56  William  Street 

III  Broadway 

703  Commonwealth  Trust  Building,  St.  Louis,  Mo. 

59  Wall  Street 

41  Pearl  Street,  Kingston,  N.  Y. 

Essex  Building,  Newark,  N.  J. 

854  West  181  st  Street 

60  East  68[h  Street 

55  Liberty  Street 

50  Pine  Street 

109  East  15th  Street 

Taunton,  Mass. 

Lawrence  Avenue,  Lawrence,  L.  L 

303  Grand  Avenue,  Waukesha,  Wis. 

15  East  48th  Street 

Bureau  of  Insular  Affairs,  Washington,  D.  C. 


Frankland,  Frederick  William  * 

"  Okataina,"  Foxton,  Manawatu,  New  Zealand 
527  West  iioth  Street 
Z2,  East  38th  Street 
San  Antonio,  Texas 
Home  Trust  Co.,  Hoboken,  N.  J. 
25  Maple  Avenue,  New  Rochelle,  N.  Y. 
20  Exchange  Place 


Franklin,  Fabian 
Franklin,  George  S. 
Franklin,  Thomas  H. 
Franks,  Robert  A. 
Frantz,  J.  F. 
Eraser,  George  C. 
Freiberg,  Maurice  J. 
Frelinghuysen,  G.  G. 
French,  John 
French,  Nathaniel 
Freund,  Sanford  E.  H. 
Frew,  Walter  E. 
Frick,  Henry  C. 
Friedman,  H.  G. 
Fries,  F.  H. 
Frissell,  A.  S. 
Froment,  Frank  L. 
Frothingham,  John  W. 
Frueauff,  Charles  A. 
Fuller,  Paul 
Furnya,  M. 
Gaillard,  William  D. 
Gallaher,  E.  Y. 
Gallatin,  Albert 
Gallatin,  Francis  D. 


3576  Alaska  Avenue,  Cincinnati,  O. 
32  Liberty  Street 

59  Wall  Street 
Davenport,  la. 

115  Broadway 

13  William  Street 

640  Fifth  Avenue 

66  West  94th  Street 

Winston-Salem,  N.  C. 

530  Fifth  Avenue 

52  East  74th  Street 

14  Wall  Street 

60  Wall  Street 
2  Rector  Street 

216  Second  Ave ,  S.,  Seattle,  Wash. 

42  Broadway 

814  West  End  Avenue 

7  East  76th  Street 

119  East  38th  Street 


(21) 


22 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Gammell,  William 
Gans,  Mrs.  Howard  S. 
Garanflo,  W.  H. 
Gardiner,  Robert  H. 
Gardner,  Henry  B. 
Gardner,  Rathbone 
Garfield,  H.  A. 
Garrett,  Robert 
Garst,  Julius 
Garvan,  Francis  P. 
Gavegan,  Edward  J. 
Gavegan,  Mrs.  Edward  J. 
Gear,  George  J. 
Geeting,  John  F. 
Gellatly,  William 
Gerard,  James  W. 
Gettell,  Raymond  G. 
Giberga,  Eliseo 
Gibson,  H.  W. 
Gifford,  James  M. 
Gilbert,  Alexander 
Gilbreth,  Frank  B. 
Gildersleeve,  Henry  A. 
Gildersleeve,  Louis 
Gildersleeve,  Ferdinand 
Gillespie,  Robert  McM. 
Gillette,  King  C. 
Gillies,  Edwin  J. 
Gillin,  John  Lewis 
Gilluby,  George  K. 
Gilpin,  William  Jay 
Giltner,  E.  E 
Girelius,  Charles  G. 
Glasson,  William  H. 
Gleason,  Carlisle  J. 
Glenn,  John  M. 
Goan,  Mrs.  Orrin  S. 
Goetze,  Frederick  A. 
Golding,  John  N. 
Goldman,  Henry 
Goldzier,  Morris 
Gompers,  Samuel 
Gonzalez,  Antonio  C. 
Gonzales,  Teodosio 
Goodhart,  Mrs.  Albert  E. 
Goodhart,  Philip  J. 
Goodnow,  F.  J. 
Gordon,  Armistead  C. 
Gordon,  F.  E. 


50  South  Main  Street,  Providence,  R.  L 

401  West  End  Avenue 

State  National  Bank,  Little  Rock,  Ark. 

Gardiner,  Me. 

54  Stimson  Avenue,  Providence.  R.   L 

ID  Weybosset  Street,  Providence,  R.  I. 

Williamstown,  Mass. 

506  Continental  Building,  Baltimore,  Md. 

Worcester,  Mass. 

119  East  31st  Street 

303  West  End  Avenue 

303  West  End  Avenue 

23  East  64th  Street 

Norwood  Park,  Chicago,  HI. 

Cranford,  N.  J. 

165  Broadway 

74  Vernon  Street,  Hartford,  Conn. 

Prado  10,  Havana,  Cuba 

167  Tremont  Street,  Boston,  Mass. 

5  Nassau  Street 

Market  and  Fulton  National  Bank 

60  Broadway 

28  West  48th  Street 

I  Broadway 

Gildersleeve,  Conn. 

8  West  53d  Street 

1566  Beacon  Street,  Boston,  Mass. 

245  Washington  Street 

208  Bernard  Court,  Madison,  Wis. 

1221  Dean  Street,  Brooklyn 

77  Cedar  Street 

418  West  Ii8th  Street 

Vineland,  N.  J. 

Trinity  College,  Durham,  N.  C. 

170  Broadway 

136  East  19th  Street 

226  West  59th  Street 

Columbia  University 

9  Pine  Street 

60  Wall  Street 

657  Broadway 

801  G.  Street,  N.  W.,  Washington.  D.  C. 

2,2  Broadway 

Bermeys  321,  Asuncion,  Paraguay 

2  East  55th  Street 

96  Broadway 

Columbia  University 

Staunton,  Va. 

West  Main  Street,  Conneaut,  O. 

(22) 


No.  1] 


LIST  OF  MEMBERS 


23 


Gordon,  W.  S. 
Gore,  Thomas  P. 
Gorton,  Adelos 
Gould,  E.  R.  L. 
Gould,  Horace  S. 
Govin,  Antonio 
Gowan-Stoba,  John 
Gram,  Jesse  P. 
Grant,  Percy  Stickney 
Grant,  WilHam  T. 
Graves,  E.  W. 
Graves,  Nelson  Z. 
Gray,  E.  McQueen 
Gray,  Henry  G. 
Gray,  R.  S. 
Green,  Herbert 
Green,  James  M. 
Green,  Warren  L. 
Greene,  Francis  V. 
Greene,  John  Arthur 
Greene,  William  H. 
Greene,  Richard  T. 
Greenhut,  Benedict  J. 
Greeno,  F.  L. 
Greenough,  William 
Gregory,  R.  H. 
Grenfell,  Wilfred  T. 
Griffin,  Frederick  R.* 
Griggs,  Edward  Howard 
Griggs,  Herbert  L. 
Grinnell,  E.  Morgan 
Griswold,  Chester 


68  Leonard  Street 

United  States  Senate,  Washington,  D.  C. 

Maple  Glen,  Montgomery  Co.,   Pa. 

15  West  38th  Street 

37  Wall  Street 

70  Dragones  Street,  Havana,  Cuba 

1735  McCormick  Building,  Chicago,  111. 

34  Nassau  Street 

7  West  loth  Street 

106  Central  Park  West 

First  National  Bank,  Douglas,  Ariz. 

22-24  South  Third  Street,  Philadelphia,  Pa. 

University  of  New  Mexico,  Albuquerque,  N.  Mex. 

49  Wall  Street 

3535  Telegraph  Avenue,  Oakland,  Calif. 

1023  People's  Gas  Building,  Chicago,  111. 

State  Normal  School,  Trenton,  N.  J. 

70  Broad  Street 

303  North  Street,  Buffalo,  N.  Y. 

100  Washington  Square 

Arch  &  i6th  Streets,  Philadelphia,  Pa. 

544  West  114th  Street 

Sixth  Avenue  &  i8th  Street 

909  Wilder  Building,  Rochester,  N.  Y. 

55  Wall  Street 

463  West  Street 

14  Beacon  Street,  Boston,  Mass. 

Sherbrooke  &  Simpson  Sts.,  Montreal,  Canada 

Spuyten  Duyvil,  N.  Y. 

48  Wall  Street 

Zd  East  50th  Street 

250  West  54th  Street 


Groom,  Wallace  P. 

Academy  of  Music  Bldg.,  Lafayette  Ave.  &  Fulton  St.,  Brooklyn,  N.  Y. 
Grossman,  Moses  H.  115  Broadway 

Grover,  James  H.    Mortgage  Trust  Co.,  124  North  4th  St.,  St.  Louis,  Mo. 
Gubelman,  Oscar  L.  15  William  Street 

165  Broadway 

593  Broadway 

725  Broadway 

391  Fifth  Avenue 

515  West  I  nth  Street 

28  Park  Avenue 

II  Broadway 

335  Convent  Avenue 

44  West  69th  Street 

2  Rector  Street 

545  Mt.  Prospect  Avenue,  Newark,  N.  J. 

I  Wall  Street 

{21) 


Guggenheim,  Simon 
Guinzburg,  A.  M. 
Guinzburg,  Victor 
Gunther,  Franklin  L. 
Guthrie,  W.  B. 
Guthrie,  William  D. 
Gutierrez,  Valeriano 
Guy,  Charles  L. 
Guye,  Charles  Henry 
Gwinn,  Ralph  W. 
Gwinnell,  William  B. 
Gwynn,  Joseph  K. 


24 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Haas,  Kalman 
Haas,  W.  D. 
Hackett,  Corcellus  H. 
Hadley,  Miss  Edith  M. 
Haeselbarth,  Adam  C. 
Hager,  William  M. 
Hagerman,  H.  J. 
Hagner,  A.  B. 
Haines,  Charles  Grove 
Hale,  Ledyard  P. 
Hale,  George  D. 
Hale,  Robert  L. 
Hall,  Frederick  J. 
Hall,  John  R. 
Hall,  Thomas  C. 
Halladay,  Reginald 
Halligan,  Howard  A. 
Ham,  Arthur  H. 
Hamburger,  L. 
Hamilton,  Foster 
Hamilton,  John  L. 
Hamlin,  Philip 
Hammill,  C.  W. 
Hammond,  Henry  B. 
Hammond,  John  Hays 
Hammond,  Mrs.  John  Hays 
Hammond,  John  Henry 
Hanaman,  Charles  E. 
Handy,  Parker  D. 
Hanford,  H.  B. 
Hanna,  Charles  A. 
Hansmann,  Carl  A. 
Hardings,  W.  P. 
Hardon,  Henry  W. 
Hardy,  Sarah  B. 
Harkins,  Walter  S. 
Harkness,  W.  L. 
Harmon,  William  E. 
Harned,  Franklin  M. 
Harper,  J.  Henry 
Harper,  R.  A. 
Harriman,  Mrs.  J.  Borden 
Harris,  Albert  H. 
Harris,  John  F. 
Harrison,  W.  Z. 
Hart,  Hastings  H. 
Hartshorn,  Stewart 
Hartzell,  Charles 
Harvey,  George 


7  East  69lh  Street 

Bunkie,  La. 

31  Union  Square 

57  West  7.3d  Street 

Leonia,  N.  J. 

165  Broadway 

Roswell,  New  Mexico 

1818  H  Street,  Washington,  D.  C. 

Whitman  College,  Walla  Walla,  Wash. 

Capitol,  Albany,  N.  Y. 

1059  Lake  Avenue,  Rochester,  N.  Y. 

163  East  36th  Street 

4  Benedict  Avenue,  Tarrytown,  N.  Y. 

100  Broadway 

Union  Theological  Seminary 

Englewood,  N.  J. 

463  West  Street 

Room  1606,  31  Union  Square 

91  Fifth  Avenue 

The  Bank  of  Alabama,  Ensley,  Ala. 

Hoopestown,  111. 

Telephone  Building,  Denver,  Colo. 

71  Broadway 

51  Chambers  Street 

71  Broadway 

2315  Massachusetts  Ave.,  Washington,  D.  C. 

40  Wall  Street 

P.  O.  Box,  527,  Troy,  N.  Y. 

22  Pine  Street 

633  Cooper  Street.  Camden,  N.  J. 

IS  Rockledge  Avenue,  Montclair,  N.  J. 

96  Broadway 

First  National  Bank,  Birmingham,  Ala. 

60  Wall  Street 

419  West  iiSth  Street 

Presbonsburg,  Ky. 

12  Broadway 

261  Broadway 

266  Lincoln  Road,  Brooklyn,  N.  Y. 

Franklin  Square 

2936  Bainbridge  Avenue 

35  East  49th  Street 

135  Central  Park  West 

15  Wall  Street 

Commercial  Club,  Salt  Lake  City,  Utah 

105  East  22d  Street 

Short  Hills,  N.  J. 

San  Juan,  Porto  Rico 

Care  of  Harper  Brothers,  Franklin  Square 

(24) 


No.  i] 


LIST  OF  MEMBERS 


25 


Haskell,  J.  Amory 
Haskin,  Lincoln  B. 
Hasslacher,  Jacob 
Hastings,  H.  S. 
Hatch,  A.  J. 
Hatch,  Edward  W. 
Hatfield,  Charles  E. 
Hathaway,  Charles 
Havemeyer,  F.  C. 
Hawkins,  Eugene  D. 
Hawley,  J.  S.,  jr. 
Hay,  Woodhull, 
Haynes,  John  R. 
Hazard,  F.  R. 
Hazeltine,  H.  D. 
Healy,  A.  Augustus 
Heaney,  Frank  J. 
Hebbard,  Edgar  C. 
Hecker,  Frank  J. 
Hedges,  Job  E. 
Heffner,  William  Clinton 
Heller,  Max 
Heller,  William  H. 
Henderson,  Edward  C. 
Hendrix,  Eugene  R. 
Henry,  Philip  W. 
Hentz,  Henry 
Hepburn,  A.  Barton 
Hepburn,  Mrs.  A.  Barton 
Herczeg,  Josika 
Hermann,  Ferdinand 
Herring,  Hubert  C. 
Herrman,  Henry  S. 
Herrod,  H.  E. 
Hersey,  Roscoe  M. 
Hershey,  Omer  F. 
Hertenstein,  Frederick 
Heyman,  David  M. 
Hicks,  F.  C. 
Hiester,  A.  V. 
Higbie,  Robert  W. 
Higby,  Chester  P. 
Higginson,  Henry  L. 
Highsaw,  J.  L. 
Hill,  Edward  Finch 
Hill,  James  J. 
Hill,  William  Burr 
Hillhouse,  Mrs.  James 
Hillard,  C.  W. 


Room  1609,  140  Cedar  Street 

59  Main  Street,  Hempstead,  N.  Y. 

100  William  Street 

St.  Mark's,  Elk  Co.,  Pa. 

20  Broad  Street 

37  Wall  Street 

West  Newton,  Mass. 

45  Wall  Street 

34  East  37th  Street 

51  East  67th  Street 

3530  Third  Street,  San  Diego,  Calif. 

164  East  6ist  Street 

2324  South  Figueroa,  Los  Angeles,  Calif. 

P.  O.  Box  2,  Syracuse,  N.  Y. 

Emmanuel  College,  Cambridge,  England 

70  Gold  Street 

351  Canal  Street 

28  Nassau  Street 

915  Union  Trust  Building,  Detroit,  Mich. 

165  Broadway 

922  South  46th  Street,  Philadelphia,  Pa. 

1828  Morengo  Street,  New  Orleans,  La. 

400  West  End  Avenue 

52  William  Street 

3242  Norledge  Place,  Kansas  City,  Mo. 

25  Broad  Street 

22  William  Street 

83  Cedar  Street 

205  West  57th  Street 

28  West  loth  Street 

20  East  80th  Street 

287  Fourth  Avenue 

54  East  80th  Street 

National  Metal  Trades  Association,  Cleveland,  O. 

Young  Men's  Christian  Ass'n,  Tientsin,  China 

Mt.  Washington,  Md. 

3870  iReading  Road,  Avondale,  Cincinnati,  O. 

314  West  87th  Street 

7  Wall  Street 

320  Race  Avenue,  Lancaster,  Pa. 

Highland  Avenue,  Jamaica,  L.  L 

210  Newton  Street,  Fairmount,  W.  Va. 

44  State  Street,  Boston,  Mass. 

Central  High  School,  Memphis,  Tenn. 

ZZZ  Nelson  Avenue,  Peekskill,  N.  Y. 

Great  Northern  Railway  Building,  St.  Paul,  Minn. 

160  Broadway 
Sachem's  Wood,  New  Haven,  Conn. 
71  Broadway 
(25) 


26 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Hine,  Francis  L. 
Hines,  W.  D. 
Hinsdale,  E.  B. 
Hirsch,  Morris  J. 
Hirsch,  Robert  B. 
Hirth,  Friedrich 
Hitchcock,  Frederick  S. 
Hoadley,  Horace  G. 
Hoagland,  Joseph  C. 
Hochschild,  B. 
Hodgman,  George  B. 
Hoe,  Mrs.  Robert 
Hoggson,  W.  J. 
Holbrook,  Percy 
Holcomb,  Alfred  E. 
Holden,  Arthur  J. 
Hollister,  George  Clay 
Hollister,  Granger  A. 
Holloway,  Harry  D. 
Holly,  Miss  Mary  Kissam 
Holmes,  John  Haynes 
Holstein,  George  M. 
Holt,  Lucius  H. 
Holter,  Edwin  O. 
Homer,  C.  S. 
Hopf,  Harry  Arthur 
Hopkins,  Arthur  T. 
Hopkins,  George  B. 
Hopkins,  W.  J. 
Hoppin,  William  W. 
Hornblower,  William  B. 
Horst,  George  D. 
Horton,  Lydiard 
Hothron,  E.  G. 
Hottenstein,  Marcus  S. 
Hough,  Warwick  M. 


2  Wall  Street 

52  William  Street 

Hotel  Manhattan 

160  Broadway 

Stamford,  Conn. 

401  West  ii8th  Street 

Box  202,  New  London,  Conn. 

16  Fiske  Street,  Waterbury,   Conn. 

16  William  Street 

P.  O.  Box  957 

806  Broadway 

180  West  59th  Street 

7  East  44th  Street 

The  Lucerne,  79th  Street  &  Amsterdam  Ave. 

15  Dey  Street 

Bennington,  Vt. 

New  Rochelle,  N.  Y. 

Rochester,  N.  Y. 

508  Land  Title  Building,  Philadelphia.  Pa. 

252  West  76th  Street 

28  Garden  Place,  Brooklyn,  N.  Y. 

24  State  Street 

West  Point,  N.  Y. 

Mount  Kisco,  N.  Y. 

West  Townsend,  Mass. 

95  Chauncey  Street,  Brooklyn,  N.  Y. 

Mechanical  Rubber  Co.,  Cleveland,  O. 

52  Broadway 

821   College  Avenue,  Racine,  Wis. 

52  William  Street 

30  Broad  Street 

Reading,  Pa. 

Hartley  Hall,  Columbia  University 

42  Broadway 

Commonwealth  Building,  Allentown,  Pa. 

Rialto  Building,  4th  &  Olive  Sts.,  St.  Louis,  Mo. 


Hourwich,  Isaac  A.        919  Massachusetts  Ave.,  N.  E.,  Washington,  D.  C. 


Howard,  Frederick  B. 
Howe,  Frank  E. 
Howe,  James  B. 
Howell,  Mrs.  John  White 
Howell,  Lsher  B. 
Howell,  Wilson  S. 
Howison,  George  H. 
Howland,  Horace  F. 
Hoyt,  Allen  G. 
Hoyt,  Arthur  S. 
Hoyt,  F.  C. 
Hoyt,  Theodore  R. 


56  Arlington  Stieet,  Brockton,  Mass. 

Troy,  N.  Y. 

22  W.  Highland  Drive,  Seattle,  Wash. 

211  Ballantine  Parkway,  Newark,  N.  J. 

Riverhead,  N.  Y. 

Pleasantville  Station,  Westchester  Co.,  N.  Y. 

2631   Piedmont  Avenue,  Berkeley,  Calif. 

475  Fifth  Avenue 

49  Wall  Street 

90  West  Broadway 

66  Third  Avenue 

72  Gold  Street 

(26) 


No.  I] 


LIST  OF  MEMBERS 


27 


Hubbard,  Walter  C. 
Hudson,  Sydney  D.  M. 
Hulet,  J.  R. 

Humphreys,  Alexander  C 
Humphreys,  Edwin  W. 
Hunley,  W.  M. 
Hunt,  Mrs.  Leigh 
Huntington,  Archer  M. 
Huntsman,  Owen  B. 
Hutchison,  Edward  S. 
Huttig,  C.  H. 
Hyams,  Godfrey  M.* 
Hyde,  Henry  St.  John 
Hyman,  Jacob  S. 
Hyman,  Miss  Louise 
Ichmomiya,  R. 
Ikelheimer,  Mrs.  Henry 
lies,  George  * 
Imbrie,  James 
ImhoflF,  C.  H. 
Ingham,  William  H. 
Ingraham,  Arthur 
Irwin.  I.  I. 
Iselin,  Adrian,  jr. 
Iselin,  Mrs.  W.  E. 
Isman,  Felix 
Ivins,  William  M. 
Jackson,  Percy 
Jacobs,  Ralph  K. 
James,  Mrs.  Arthur  Curtiss 
James,  Walter  B. 


Coffee  Exchange  Building 

Bryn  Mawr,  Pa. 

Holbrook,  Ariz. 

Stevens  Institute  of  Technology,  Hoboken,  N.  J. 

406  East  85th  Street 

University  of  Virginia,  Charlottesville,  Va. 

563  Park  Avenue 

1083  Fifth  Avenue 

165  Broadway 

34  South  State  Street,  Newton,  Pa. 

St.  Louis,  Mo. 

P.  O.  Box  5104,  Boston,  Mass. 

210  East  i8th  Street 

Sea  Cliff,  L.  I. 

49  West  56th  Street 

55  Wall  Street 

524  Fifth  Avenue 

Park  Avenue  Hotel 

301  West  7Sth  Street 

195  Broadway 

Algona,  la. 

80  Irving  Place 

San  Diego,  Calif. 

711  Fifth  Avenue 

745  Fifth  Avenue 

1328  South  Pennsylvania  Square,  Philadelphia,  Pa. 

27  William  Street 

43  Cedar  Street 

215  Montague  Street,   Brooklyn,   N.  Y. 

92  Park  Avenue 

17  West  54th  Street 

17  West  54th  Street 


James,  Mrs.  Walter  B. 
Janvier,  Charles 

Care  of  Canal-Louisiana  Bank  &  Trust  Co.,  New  Orleans,  La. 

Jarvie,  James  N.  66  Broadway 

Jay,  Delancy  K.  26  Liberty  Street 

Jay,  Pierre  40  Wall  Street 

Jefferson,  Howard  McN.  80  Downing  Street,  Brooklyn,  N.  Y. 

Jeidels,  Otto  Nehrenstr  2)-,  Berlin,  Germany 

Jenkins,  Mrs.  Helen  Hartley  232  Madison  Avenue 


Jenkins,  James,  jr. 
Jenks,  Jeremiah  W. 
Jennings,  Frederic  B. 
Jenswold,  John,  jr. 
Jess,  Stoddard 
Jewett,  George  L. 
Johnson,  Bradish  G. 
Johnson,  Charles  P. 
Johnson,  C.  W. 


69  Schermerhorn  Street,  Brooklyn,  N.  Y. 

New  York  University 

86  Park  Avenue 

407  Palladio  Building,  Duluth,  Minn. 

2133  Harvard  Building,  Los  Angeles,  Calif. 

20  Fifth  Avenue 

829  Park  Avenue 

Navarre  Building,  St.  Louis,  Mo. 

201   High  Street,  Holyoke,  Mass. 

(27) 


28 


VEA/e  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Johnson,  Mrs.  Eastman 

Johnson,  F.  Cort 

Johnson,  Grafton 

Johnson,  J.  Augustus 

Johnson,  John  Theodore 

Johnson,  Rankin 

Johnson,  Remsen 

Johnston,  Allen  W. 

Johnston,  Howard  A. 

Jonas,  Stephen 

Jones,  Breckenridge 

Jones,  Charles  H. 

Jones,  Dwight  A. 

Jones,  E.  Milton 

Jones,  James  H. 

Joy,  Edmund  Steele 

Joy,  Russell  T. 

Judson,  Harry  Pratt 

Judson,  Henry  I. 

Juilliard,  A.  D. 

Kagey,  C.  L. 

Kahn,  Otto  H. 

Kalaw,  Teodoro 

Kastor,  Hugo 

Kaul,  John  L. 

Kaupas,  A. 

Kebabian,  George  S. 

Keedy,  Edwin  R. 

Keep,  Charles  H. 

Kehew,   Mrs.  Mary  Morton 

Kelley,  David  J. 


65  West  55th  Street 

no  North  Street 

Greenwood,  Ind. 

460  Scotland  Road,  South  Orange,  N.  J. 

417  48th  Street,  Brooklyn,  N.  Y. 

2,7  Madison  Avenue 

187  Broadway 

500  State  Street,  Schenectady,  N.  Y. 

180  Sumner  Street,  Stamford,  Conn. 

50  Wall  Street 

Care  of  Mississippi  Valley  Trust  Co.,  St.  Louis,  Mo. 

20  Broad  Street 

34  West  51st  Street 

570  West  156th  Street 

Box  89,  R.  F.  D.  No.  I,  Lakeland,  Fla. 

26  Halsey  Street,  Newark,  N.  J. 

78  McDonough  Street,  Brooklyn,  N.  Y. 

University  of  Chicago,  Chicago,  111. 

96  Broadway 

70  Worth  Street 

Beloit,  Kan. 

52  William  Street 

Paco,  Manila,  P.  L 

26-28  Cedar  Street 

Birmingham,  Ala. 

64  Church  Street,  Pittston,  Pa. 

60  Wall  Street 

31  West  Lake  Street,  Chicago,  111. 

60  Broadway 

29a  Chestnut  Street,  Boston,  Mass. 

1925  Seventh  Avenue 


Kelley,  Mrs.  Florence  106  East  19th  Street 

Kellogg,  J.  H.  Battle  Creek,  Mich. 

Kelly,  Joseph  I.  206  Northwestern  University  Building,  Chicago,  111. 


Kellor,  Miss  Frances  A. 
Kemmerer,  Roy  C. 
Kempner,  Otto 
Kennett,  Alfred  Q. 
Kenney,  James  W. 
Kent,  Fred  I. 
Kent,  Robert  B. 
Kenyon,  Albert  J. 
Kenyon,  Robert  N. 
Keppelman,  John  Arthur 
Kerr,  David  S. 
Kerr,  Walter 
Kidder,  C.  G. 
Kidder,  Edward  H. 
Kientzle,  J.  P. 


6  Montague  Terrace,  Brooklyn 

92  Eastern  Parkway,  Brooklyn,  N.  Y. 

44  Court  Street,  Brooklyn,  N.  Y. 

5099  McPherson  Avenue,  St.  Louis,  Mo. 

234  Seaver  Street,  Roxbury,  Boston,  Mass. 

7  Wall  Street 

Passaic,  N.  J. 

165  Broadway 

49  Wall  Street 

540  Court  Street,  Reading,  Pa. 

516  Quebec  Bank  Building,  Montreal,  Canada 

52  Wall  Street 

27  William  Street 

17  Battery  Place 

2^(i  East  nth  Street,  Erie,  Pa. 

(28) 


No.  i] 


LIST  OF  MEMBERS 


29 


Kilbreth,  James  T. 
Kirrrball,  Everett 
King,  Miss  Elizabeth  G. 
King,  Landreth  H. 
Kingsbury,  Herbert  D. 
Kingsbury,  Joseph  Lyman 
Kingsley,  Darwin  P. 
Kingsley,  W.  M. 
Kinsey,  Oliver  P. 
Kirchwey,  George  W. 
Klink,  Miss  Jane  Seymour 
Knapp,  Mrs.  Harry  K. 
Knapp,  Joseph  P. 


45  Broadviray 

Northampton,  Mass. 

48  College  Street,  Providence,  R.  I. 

Grand  Central  Depot 

Care  of  P.  Lorillard  &  Co.,  Jersey  City,  N.  J. 

406  East  Jefferson  Street,  Kirksville,  Mo. 

346  Broadway 

45  Wall  Street 

Valparaiso,  Ind. 

Columbia  University 

397  First  Street,  Brooklyn,  N.  Y. 

34  East  35th  Street 

19th  Street  &  Fourth  Avenue 


Knapp,  Martin  A.       Interstate  Commerce  Commission,  Washington,  D.  C. 

Knauth,  Antonio  39  West  76th  Street 

Knauth,  Mrs.  Percival  302  West  76th  Street 

Kneeland,  Yale  117  East  6oth  Street 

Knevels,  Miss  M.  E.  48  Wheeler  Street,  West  Orange,  N.  J. 

Knox,  Arthur  198  Broadway 

Knox,  Herbert  Allen  198  Broadway 

Knox,  William  E.  128  Bowery 

Kohler,  Edgar  J.  31  Nassau  Street 

Kohlman,  Hugo  30  Broad  Street 

Korsmeyer,  Mrs.  Frederick  A.  Glen  Cove,  L.  I. 


Krech,  Mrs.  Alvin 
Kudlich,  H.  C. 
Kuhn,  Arthur  K. 
Kursheedt,  Manuel  A. 
Kurtz,  William  B. 
Kuser,  Anthony  R. 
LaFollette,  W.  T. 
Lake,  Emma  S. 
Lamar,  Lucius  Q.  C. 
Lambert,  Adrian  V    S. 
Lamont,  Thomas  W. 
Lane,  Nathan,  jr. 
Langeloth,  Jacob 
Lapham,  Mrs.  J.  J. 
Largey,  M.  S. 
Larremore,  Wilbur 
Lathrop,  Alanson  P. 
Lauer,  Edgar  J. 
Lauterbach,  Edward 
Lauterbach,  Mrs.  Edward 
Lawler,  Thomas  B. 
Lawrence,  William  W. 
Lawson,  John  Davison 
Leach,  A.  B. 
Leake,  Eugene  W. 


26  West  58th  Street 
299  Broadway 

308  West  92d  Street 

302  Broadway 

321  Chestnut  Street,  Philadelphia 

Bernardsville,  N.  J. 

Siloam  Springs,  Ark. 

309  West  93d  Street 
P.  O.  Box  830,  Havana,  Cuba 

168  East  71st  Street 

2  Wall  Street 

195  Washington  Park,  Brooklyn,  N.  Y. 

P.  O.  Box  957,  Riverside,  Conn. 

46  East  67th  Street 

State  Savings  Bank,  Butte,  Mont. 

32  Nassau  Street 

"  The  Apthorp,"  79th  Street  &  Broadway 

624  Madison  Avenue 

22  William  Street 

761  Fifth  Avenue 

70  Fifth  Avenue 

22  East  47th  Street 

University  of  Missouri,  Columbia,  Mo. 

149  Broadway 

239  Washington  Street,  Jersey  City,  N.  J. 

(29) 


30 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Leary,  Mrs.  George 
Leary,  William  V. 
Lebermuth,  I. 
LeBosky,  Jacob  C. 
Leckie,  A.  E.  L. 
Lee,  E.  A. 
Lee,  H.  M. 

Leeds,  Mrs.  Warner  Mifflin 
Leffingwell,  R.  C. 
LeGendre,  William 
Leger,  J.  N. 
Legg,  Chester  Arthur 
Lehman,  Arthur 
Lehman,  Irving 
Leland,  Arthur  S. 
Leland,  Francis  L. 
Lemaghi,  Louis  F. 
Lemann,  Monte  M. 
Lesher,  Arthur  L. 
Lesinsky,  Albert  R. 
Leupp,  William  H. 
Leverett,  George  V. 
Levi,  Julian  Clarence 
Levy,  Charles  E. 
Levy,  Felix  H. 
Levy,  Jefferson  M. 
Lewis,  Burdette  G. 


1053  Fifth  Avenue 

173  West  87th  Street 

Lauderdale  Post  Office,  St.  James  Parish,  La. 

127  North  Dearborn  Street,  Chicago,  111. 

Southern  Building,  Washington,  D.  C. 

Oakland  Road,  South  Orange,  N.  J. 

59  Pearl  Street 

II  East  65th  Street 

144  East  65th  Street 

59  Wall  Street 

Port  au  Prince,  Haiti 

63  Board  of  Trade  Building,  Chicago,  111. 

16  William  Street 

County  Court  House 

40  Exchange  Place 

New  York  County  National  Bank 

Ccllinsville,  111. 

6317  St.  Charles  Avenue,  New  Orleans,  La. 

670  Broadway 

220  Broadway 

90  Wall  Street 

53  Devonshire  Street,  Boston,  Mass. 

105  West  40th  Street 

Cotton  Exchange  Building 

268  West  94th  Street 

27  Pine  Street 

tI  Chambers  Street 


Lewis,  Charles  S. 

217  Fletcher-American  National  Bank  Building,  Indianapolis,  Ind. 

Lewis,  George  A.  31  Erie  County  Savings  Bank,  Buffalo,  N.  Y. 

Lewis,  O.  F.  I35  East  15th  Street 

Lewisohn,  Adolph  42  Broadway 

Lewisohn,  Sam  A.  42  Broadway 

Lichtenstein,  Alfred  171  West  71st  Street 

Liebeskind,  Solon  J.  41  Park  Row 

Liebman,  David  40  East  72d  Street 

Light,  John  H.  South  Norwalk,  Conn. 

Lincoln,  Jonathan  T.  Fall  River,  Mass. 

Lincoln,  Lowell  345  Broadway 

Lindsay,  John  D.  34  West  nth  Street 

Lindsay,  L.  Seton  346  Broadway 

Lindsay,  Samuel  McCune  Columbia  University 

Lindsey,  Ben  B,  Court  House,  Denver,  Colo. 

Lingley,  Richard  T.  527  Fifth  Avenue 
Lipman,  F.  L.    Care  of  Wells  Fargo  Nevada  Natl.  Bank,  San  Francisco,  Calif. 

Lippitt,  Costello  Norwich,  Conn. 

Lisman,  F.  J.  30  Broad  Street 

Lissner,  M.  524  South  Spring  Street,  Los  Angeles,  Calif. 

Littauer,  Lucius  N.  715  Broadway 

(30) 


No.  i] 


LIST  OF  MEMBERS 


31 


Littleton,  Martin  W. 
Livermore,  Arthur  L. 
Loeb,  Isidor 
Loeb,  Jacob  M. 
Loeb,  James 
Loeb,  Otto  S. 
Loesch,  Frank  J. 
Loeser,  Vincent 
Loewy,  Benno 
Lombardi,  C. 
Loomis,  Guy 
Lord,  Chester  S. 
Lovejoy,  Owen  R. 
Lovett,  Robert  Scott 
Low,  Seth 

Low,  William  Oilman,  jr. 
Lowden,  Frank  O. 
Lowry,  Robert  J. 
Lucas,  A.  B. 
Luce,  H.  J. 
Luce,  W.  A. 
Ludington,  Arthur  C. 
Ludlum,  Clarence  A. 
Lummis,  Miss  Eliza  O'B. 
Lummis,  William 
Lundien,  E.  M. 
Lustgarten,  W. 
Lyall,  William  L. 
Lybyer,  Albert  Howe 
Lydig,  Philip  M. 
Lynch,  Mrs.  Jerome  H. 
Lj'ons,  Samuel  Clay 
Maas,  Charles  O. 
Mabon,  James  B. 
Mabon,  William 
MacArthur,  Arthur  F. 
MacDonald,  Charles  B. 
MacDonald,  George 
MacDuffie,  Rufus  L. 
Macfarland,  Charles  S. 
MacGregor,  Ford  H. 
Machen,  Arthur  W.,  jr. 
Mackay,  Clarence  H. 
MacKelvie,  N.  Bruce 
Maclay,  Mark  W.,  jr. 
MacLean,  Charles  F. 
MacLean,  James  A. 
MacQuoid,  C.  \N . 
Mac  Veagh,  Franklin 


2  Rector  Street 

30  Broad  Street 

University  of  Missouri,  Columbia,  Mo. 

29  South  LaSalle   Street,   Chicago,   111. 

52  William  Street 

35  Wall  Street 

ID  South  LaSalle  Street,  Chicago,  111. 

320  West  io8th  Street 

206  Broadway 

"  The  News,"  Dallas,  Texas 

817  Carroll  Street,  Brooklyn,  N.  Y. 

170  Nassau  Street 

105  East  22d  Street 

Locust  Valley,  Long  Island,  N.  Y. 

30  East  64th  Street 

Bristol,  R.   I. 

Oregon,  111. 

Atlanta,  Ga. 

Meadows,  Idaho 

4  East  52d  Street 

Ellsworth,  Pa. 

56  West  loth  Street 

57  Highland  Avenue,  Jamaica,  L.  I. 

324  West  103d  Street 

45  Wall  Street 

Dayton,  la. 

68  William  Street 

349  Aycrigg  Avenue,  Passaic,  N.  J. 

153  South  Cedar  Avenue,  Oberlin,  O. 

38  East  52d  Street 

58  West  58th  Street 

Louisville,  Ky. 
87  Nassau  Street 

59  West  70th  Street 

Wards  Island 

II  Pine  Street 

71  Broadway 

315  West  90th  Street 

Bronxville,  N.  Y. 

215  Fourth  Avenue 

215  North  Brooks  Street,  Madison,  Wis. 

Central  Savings  Bank  Building,  Baltimore,  Md. 

253  Broadway 

25  Broad  Street 

830  Park  Avenue 

5th  Avenue  &  130th  Street 

Moscow,  Idaho 

Roselle,  N.  J. 

2829  Sixteenth  Street,  Washington,  D.  C. 

(31) 


32 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Macy,  Carleton 
Macy,   Miss  Carroll 
Macy,  V.  Everit 
Mahoney,  Stephen  A. 
Main,  William  A. 
Mairs,  Mrs.  E.  H. 
Malkenson,  Arthur  L. 
Maloney,  Miss  Ellen 
Mandlebaum,  Miss  M. 
Manning,  William  T. 
Manning,  W.  W. 
Mansfield,  Howard 
Marden,  Francis  Skiddy 
Marie,  Leon 
Markle,  John 
Markle,  Mrs.  John 
Marks,  Laurence  H. 
Marks,  Marcus  M. 
Marling,  Alfred  E. 
Marsh,  Robert  AIcC. 
Marshall,  Charles  C. 
Marston,  Edgar  L. 
Marston,  Edwin  S. 
Martin,  Bradley,  jr. 
Martin,  John, 
Martin,  Newell 
Martin,  R.  W. 
Martindale,  J.  B. 
Marvel,  Josiah 
Marx,  Otto 
Mason,  Charles  N. 
Mason,  Lewis  D. 
Masten,  George  H. 
Masters,  Miss  L.  B. 
Mastin,  J.  Edward 
Mather,   Samuel 
Mathews,  George  Brewster 
Mathews,  J.  M. 
Mathewson,  Charles  F. 
Matienze,  Jose  Nicholas 
Matthews,  T.  A. 
Maurice,  William  G. 
Maxwell,  Robert 
Mayer,  Julius  M. 
Mayer,  Levy 
McAdoo,  W.  G. 
McAneny,  George 
McBain,  Howard  Lee 
McCall,  John  C. 


Hewlett,  L.  L 

"  Birch  Corners,"  Hewlett,  L.   I. 

68  Broad  Street 

630  Dwight  Street,  Holyoke,  xvlass. 

214  Broadway 

Irvington-on-Hudson,  N.   Y. 

102  Bowery 

440  Riverside  Drive 

205  West  57th  Street 

27  West  25th  Street 

70  State  Street,  Boston,  Mass. 

49  Wall  Street 

449  Park  Avenife 

I  West  54th  Street 

Jeddo,  Pa. 

^21  Fifth  Avenue 

Lawrence,  L.  L 

687  Broadway 

35  West  47th  Street 

45  West  nth  Street 

34  Pine  Street 

24  Broad  Street 

16-22  William  Street 

6  East  87th  Street 

Grymes  Hills,  Stapleton,  Staten  Island,  N.  Y. 

20  Exchange  Place 

25  Nassau  Strtet 

270  Broadway 

Wilmington,  Del. 

Birmingham,  Ala. 

62  Cedar  Street 

171  Joralemon  Street,  Brooklyn,  N.  Y. 

425  West  Ii8th  Street 

Dobbs  Ferry,  N.  Y. 

3  Broad  Street 

Western   Reserve  Building,  Cleveland,  O. 

830  Delaware  Avenue,  Buffalo,  N.  Y. 

417  Lincoln  Hall,  Urbana,  111. 

55  Wall  Street 

3770  Calle  Santa  Fe,  Buenos  Aires,  R.  A. 

165  Broadway 

Hot  Springs,  Ark. 

334  Fourth  Avenue 

43  Exchange  Place 

76  West  Monroe  Street,  Chicago,  111. 

30  Church  Street 

19  East  47th  Street 

Madison,  Wis. 

346  Broadway 

(32) 


No.  I] 


LIST  OF  MEMBERS 


33 


McCarroIl,  William 

McCarty,   Barclay  E. 

McCausland,  George  G. 

McCleary,  James  T. 

McClement,  J.  H. 

McCready,  N.  L. 

McCrum,  Lloyd  G. 

McElderry,   H.   L. 

McE'nerney,  Garrett  W. 

McGarrah,  G.  W. 

McGinley,  J.  R. 

McGrath,  Miss  Madge 

McGraw,  James  H. 

McGuckin,  William  G. 

Mcllvaine,  Tompkins 

Mcintosh,  C.  K. 

Mclntyre,  John  F. 

Mclntyre,  William  H. 

McKeag,  Edwin  C. 

McKenna,  Thomas  P. 

McKeon,  John  C. 

McLaren,  Kenneth  K. 
McLean,  A.  W. 
McMahon,  J.  Sprigg 

McMillin,  Emerson 
McNeir,  George 
McNulty,  William  D. 
McPherson,  Logan  G. 
McQueen,  W. 
McReynolds,  J.  C. 
McRoberts,  Samuel 
McWilliams,  Daniel  W. 
Mead,  Joseph  H. 
Meagley,  George  C. 
Mehan,  William  A. 
Meldrim,  Peter  W. 
Melville,  Frank,  jr. 
Melvin,  E.  C 
Menken,  S.  Stanwood 
Mereness,  Newton  D. 
Merrick,  H.  F. 
Mershon,  Ralph  D. 
Metcalf,  E.  P. 
Metcalfe,  Henry 
Metcalfe,  J.  G. 
Metz,  Herman  A. 
Meyer,  Mrs.  Aubrey  Edgerton 
Meyer,  Ernst  C. 
Meyer,  Eugene,  jr. 


758  St.  Mark's  Avenue,  Brooklyn,  N.  Y. 

3  South  William  Street 

P.  O.  Box  68,  Kendall  Green,  Mass. 

30  Church  Street 

135  Broadway 

38  Wall  Street 

103  Park  Avenue 

Talladega,  Ala. 

1277  Flood  Building,  San  Francisco,  Calif. 

ZZ  Wall  Street 

Sooo  Forbes  Street,  Pittsburgh,  Pa. 

921  Canal  Street,  New  Orleans,  La. 

239  West  39th  Street 

176  West  losth  Street 

52  William   Street 

The  Bank  of  California,  San  Francisco,  Calif. 

30  Broad  Street 

201  West  55th  Street 

223  Somerset  Street,  New  Brunswick,  N.  J. 

41  Wall  Street 

Hempstead,  N.  Y. 

Zy  Wall  Street 

Lumberton,  N.  C. 

Dayton,  Ohio 

40  Wall  Street 

575  Fifth  Avenue 

141  Broadway 

Bureau  of  Railway  Economics,  Washington,  D.  C. 

Ludowici,  Ga. 

141  Broadway 

55  Wall  Street 

39  South  Portland  Avenue,  Brooklyn,  N.  Y. 

The  County  Trust  Co.,  White  Plains,  N.  Y. 

884  Massachusetts  Avenue,  Cambridge,  Mass. 

Ballston  Spa,  N.  Y. 

Savannah,  Ga. 

28  Monroe  Place,  Brooklyn,  N.  Y. 

Selma  National  Bank,  Selma,  Ala. 

34  West  52d  Street 

Bridgeport,  Conn. 

Kensington,  O. 

65  West  54th  Street 

Atlantic  National  Bank,  Providence,  R.  L 

147  Fourth  Avenue 

55  Central  Park  West 

122  Hudson  Street 

The  Castle,  Whitehall,  N.  Y. 

224  Custom  House 

7  Wall  Street 

(33) 


34 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Mijuef,  P. 

Milburn,  John  G. 

Miller,  George  N. 

Miller,  Henry  F. 

Miller,  James  Alexander 

Miller,  Samuel  H. 

Miller,  W.  B. 

Mills,  W.  McMaster 

Miner,  Miss  Maude  E. 

Mitchell,  Edward  Page 

Mitchell,  Francis  B. 

Mix,  M.  W. 

Mohrenstecher,  G.  A. 

Monroe,  Robert  Grier 

Montgomery,  Robert  H. 

Moore,  John  Bassett 

Moot,  Adelbert 

Morawetz,  Victor  A. 

Mordecai,  T.  Moultrie 

More,  C.  E. 

Morgan,  Miss  Anne 

Morgan,  George  Wilson 

Morgan,  J.  P. 

Morgan,  William  Fellowes 

Morgenthau,  Henry 

Morgenthau,  J.  C. 

Morris,  Dave  H. 

Morris,  Henry  C. 

Morrison,  George  Austin 

Morrow,  Dwight  W. 

Morse,  A.  E. 

Morse,  Anson  D. 

Morse,  Edmund  H. 

Mott,  Howard  S. 

Moulton,  Irving  P. 

Muchnic,  Charles  M. 

Muhleman,  Maurice  L. 

Mulry,  Thomas  M. 

Mundy,  Floyd  Woodruff 

Munn,  John  P. 

Munroe,  Vernon 

Murphy,  Franklin 

Muschenheim,  Mrs.  Frederick  A, 

Mussey,  Henry  Raymond 

Myers,  W.  Fenton 

Myers,  Nathaniel 

Myers,  William  S. 

Nadal,  Charles  C. 

Neal,  Emmett  O. 


Technological  Institute,  St.  Petersburg,  Russia 

i6  West  loth  Street 

8ii  Madison  Avenue' 

44  Pine  Street 

i8  West  51st  Street 

121  East  Union  Avenue,  Bound  Brook,  N.  J. 

Chattanooga,  Tenn. 

753  Fifth  Avenue 

38  West  loth  Street 

The  Sun  Office 

The  Post  Express,  Rochester,  N.  Y. 

Dodge  Mfg.  Co.,  Mishawaka,  Ind. 

Long  Beach,  Calif. 

26  Liberty  Street 
55  Liberty  Street 

Columbia  University 
45  Erie  County  Savings  Bank,  Buffalo,  N.  Y. 

44  Wall  Street 

Broad  and  State  Streets,  Charleston,  S.  C. 

318  Home  Insurance  Building,  Chicago,  111. 

219  Madison  Avenue 

;i2  Liberty  Street 

23  Wall  Street 

Arch  5,  Brooklyn  Bridge 

165  Broadway 

87  Nassau  Street 

19  East  70th  Street 

924  Marquette  Building,  Chicago,  111. 

27  Beaver  Street 
62  Cedar  Street 

223  Fourth  Street,  Marietta,  O. 

Amherst  College,  Amherst,  Mass. 

117  West  58th  Street 

100  Broadway 

2199  Derisadero  Street,  San  Francisco,  Calif. 

800  Riverside  Drive 

27  Thames  Street 

543  West  2ist  Street 

20  Broad  Street 

18  West  58th  Street 

Englewood,  N.  J. 

224  McWhorter  Street,  Newark,  N.  J. 

218  West  45th  Street 

Columbia  University 

20  Market  Street,  Amsterdam,  N.  Y. 

135  Central  Park  West 

17  Madison  Avenue 

142  East  35th  Street 

Montgomery.  Ala. 

(34) 


No.  I] 


LIST  OF  MEMBERS 


35 


Nelson,  Richard   Marshall 

Nevius,  David 

Newberger,  A.  L. 

Newborg,  Leo  D. 

Newcomer,  Waldo 

Newton,  Howard  D. 

Nichols,  Morton  C 

Nicholson,  John 

Nicoll,  DeLancey 

Noble,  Alfred 

Nolan,  Edward  C. 

Northrop,  Charles  P. 

Norton,  Charles  D. 

Nottingham,  William 

Noyes,  Henry  T.,  jr. 

Nunemacher,  F.  C.  611-613 

Nye,  Olin  T. 

Oakman,  Walter  G. 

Obermayer,  C.  J. 

Ochs,  Adolph  S. 

O'Donnell,  Miss  Alice 

Oeland,  Isaac  R. 

Ogden,  Robert  C. 

Ogden,  Rollo 

O'Gorman,  Richard 

Ogg,  Frederic  A. 

Olin,  John  M. 

Olin,  Stephen  H. 

Olney,  Peter  B. 

Olney,  Richard 

Opdyke,  William  S. 

Oppenheim,  Edward  L. 

Oppenheimer,  Henry  S. 

Ordway,  Samuel  H. 

Ortiz,  Fernando 

Osborn,  Mrs.  Henry  Fairchild 

Osborn,  William  Church 

Osborne,  Thomas 

Osgood,  Herbert  L. 

Outerbridge,  E.  H. 

Owens,  George  W. 

Owens,  W.  W. 

Page,  Alfred  R. 

Page,  Edward  D. 

Page,  Howard  W. 

Page,  William  H. 

Paine,  George  H.  7 

Palmer,  Henry  B. 

Palmieri,  F.  L. 


Lillington,  N.  C. 

160  Fifth  Avenue 

31  West  23d  Street 

30  West  95th  Street 

National  Exchange  Bank,  Baltimore,  Md. 

371  North  Broad  Street,  Norwich,  N.  Y. 

I  East  39th  Street 
32  Nassau  Street 

23  East  39th  Street 

501  West  i2oth  Street 

First  National  Bank,  Reading,  Pa. 

49  St.  Nicholas  Place 

36  East  36th  Street 

701  Walnut  Avenue,  Syracuse,  N.  Y. 

Rochester,  N.  Y. 

Union  Trust  Building,  Washington,  D.  C. 

Seneca  Street,  Watkins,  N.  Y. 

62  Cedar  Street 

502  8th  Avenue,  Brooklyn,  N.  Y. 

New  York  Times 

320  Jones  Street,  Memphis,  Tenn. 

189  Montague  Street,  Brooklyn,  N.  Y. 

125  East  56th  Street 

20  Vesey  Street 

51  Chambers  Street 

401  Broadway,  Cambridge,  Mass. 

762  Langdon,  Madison,  Wis. 

32  Nassau  Street 

68  William  Street 

710  Sears  Building,  Boston,  Mass. 

20  Nassau  Street 

104  East  6sth  Street 

II  East  43d  Street 
27  William  Street 

Aguiav,  68,  Havana,  Cuba 

850  Madison  Avenue 

71  Broadway 

Auburn,  N.  Y. 

526  West  150th  Street 

II  Broadway 

Citizens  Trust  Building,  Savannah,  Ga. 

289  Clinton  Avenue,  Brooklyn,  N.  Y. 

County  Court  House 

Oakland,  N.  J. 

32  South  Broad  Street,  Philadelphia,  Pa. 

32  Liberty  Street 

18  Land  Title  Building,  Philadelphia,  Pa. 

334  Canal  Street 

50  East  63d  Street 

(35) 


36 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Pam,  Max 
Parish,  Edward  C. 
Parish,  Henry 
Parker,  Alton  B. 
Parker,  Ashton 
Parker,  Robert  A. 
Parrish,  R.  L. 
Parsons,  Herbert 
Parsons,  John  E. 
Parsons,  W.  L. 
Partridge,  Frank  H. 
Paskus,  Benjamin  G. 
Patterson,  John  L. 
Patterson,  W.  J. 
Pavey,  Frank  D. 
Payne,  James  M. 
Peabody,  R.  C. 
Pearson,  F.  S. 
Peaslee,  Edward  H. 
Peckitt,  Leonard 
Peierls,  Siegfried 
Penman,  John   Simpson 
Penrose,  Stephen  B.  L. 
Perkins,  George  E. 
Perkins,  George  W. 
Perrin,  John  480 

Perry,  Mrs.  William  A. 
Peters,  William  R. 
Pettit,  Franklin 
Peyser,  Julius  I. 
Pflum,  H.  Doane 
Phelan,  Thomas  A. 
Phelps,  Ansel 
Phelps,  Mrs.  Marion  Von 
Philips,  Frederic  D. 
Phillips,  Louis  S. 
Phoenix,  Lloyd 
Pierce,  Winslow  S. 
Pierson,  Lewis  E. 
Pilat,  Oliver  T. 
Pinkus,  Frederick  S. 
Place,  Ira  A. 
Plant,  Albert 
Piatt,  Edward  T. 
Piatt,  Mrs.  Frank  H. 
Plaut,  Joseph 
Plimpton,  George  A. 
Polk,  William  M. 
Pollak,  Francis  D. 


71  Broadway 

52  Wall  Street 

52  Wall  Street 

Esopus,  N.  Y. 

330  West  85th  Street 

81  Fulton  Street 

Covington,  Va. 

52  William   Street 

52  William  Street 

Rockingham,  N.  C. 

140  West  69th  Street 

128  Broadway 

Roanoke  Rapids,  N.  C. 

60  Broadway 

32  Nassau  Street 

1210  Virginia  Street,  Charleston,  W.  Va. 

II  Broadway 

115  Broadway 

17  Washington  Square,  North 

Catasauqua,  Pa. 

453  Broome  Street 

"Holywell,"  Katonah,  N,  Y. 

41  College  Avenue,  Walla  Walla,  Wash. 

41  Union  Square 

71  Broadway 

South  Orange  Grove  Avenue,  Pasadena,  Calif. 

7  East  56th  Street 

55  John  Street 

2  Wall  Street 

318  Southern  Building,  Washington,  D.  C. 

346  Broadway 

93  Front  Street 

29  Wall  Street 

R.  70  West  49th  Street 

15  William  Street 

49  Broadway 

21  East  33d  Street 

IIS  Broadway 

Irving  Exchange  National  Bank 

562  West  183d  Street 

103  Franklin  Street 

Grand  Central  Station 

120  William  Street 

205  West  57th  Street 

242  West  74th  Street 

120  William  Street 

70  Fifth  Avenue 

7  East  36th  Street 

49  Wall  Street 

(36) 


No.  i] 


LIST  OF  MEMBERS 


37 


Pollock,  J.  S. 
Ponipan,  Maurice  A. 
Pond,  Oscar  L. 
Poor,  Ruel  W. 
Porter,  William  H. 
Post,  Abram  S. 
Post,  James  H. 
Potter,  Mrs.  Blanche 
Potter,  Frederick 
Potter,  Mrs.  Gilbert 
Powell,  Henry  M. 
Powell,  Thomas  Reed 
Powell,  William  H. 
Pratt,  Mrs.  Herbert 
Pratt,  Mrs.  John 
Prentice,  Ezra  P. 
Prentiss,  William  A. 
Prescott,  Arthur  T. 
Preston,  Harold 
Price,  George  M. 
Price,  Theodore  H. 
Prim,  C.  A. 
Prince,  John  D. 
Proctor,  Mrs.  Charles  E. 
Prosser,  Seward 
Prout,   Henry 
Pruyn,  Robert  C. 
Pryer,  Charles 
Puflfer,  W.  M. 
Puig,  Miss  Louise  M. 
Pulitzer,  Miss  Constance 
Pulitzer,  Ralph 
Purdy,  W.  E. 
Purrington,  William  A. 
Putney,  Edmonds 
Putney,  Miss  Eva 
Quackenbush,  James  L. 
*  Quesada,  Ernesto 
Quimby,  Charles  E. 
Quinn,  John 
Quinn,  Thomas  J. 
Randolph,  Stuart  F. 
Ransom,  Rastus  S. 
Ransom,  William  L. 
Raper,  C.  L. 
Rappard,  William  E. 
Rascovar,  James 
Ratcliff,  J.  P. 
Raven,  A.  A. 


606  West  2d  Street,  Little  Rock,  Ark. 

80  Avenue  C 

Law  Building,  Indianapolis,  Ind. 

200  Fifth  Avenue 

23  Wall  Street 

81  Fulton  Street 

129  Front  Street 

180  West  59th  Street 

71  Broadway 

239  East  6oth  Street 

51  Chambers  Street 

Columbia  University 

1 1 70  Broadway 

213  Clinton  Avenue,  Brooklyn,  N.  Y. 

II  East  6ist  Street 

32  Nassau  Street 

207  Elm  Street,  Holyoke,  Mass. 

739  North  Street,  Baton  Rouge,  La. 

605  Lowman  Building,  Seattle,  Wash. 

202  Marcy  Avenue,  Brooklyn,  N.  Y. 

24  South  William  Street 

Banifay,  Holmes  County,  Fla. 

Sterlington,  Rockland  Co.,  N.  Y. 

Great  Neck,  L.  L 

389  Fifth  Avenue 

30  Church   Street 
60  State  Street,  Albany,  N.  Y. 

P.  O.  Box  647,  New  Rochelle,  N.  Y. 

Kalamazoo,  Mich. 

40a  Hampton  Place,  Brooklyn,  N.  Y. 

7  East  73d  Street 

17  East  73d  Street 

83  Cedar  Street 

43  West  nth  Street 

116  West  73d  Street 

no  West  73d  Street 

362  Riverside  Drive 

Libertad  946,  Buenos  Aires,  R.  A. 

278  West  86th  Street 

31  Nassau  Street 

2345  Valentine  Avenue 

31  Nassau  Street 
338  West  77th  Street 

550  Riverside  Drive 

Chapel  Hill,  N.  C. 

59  Fayerweather  Street,  Cambridge,  Mass. 

26  Beaver  Street 

Cunningham,  Kan. 

864  President  Street,  Brooklyn,  N.  Y. 

(37) 


38 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Rawles,  William  A. 

Read,  William  A. 

Redding,  Miss  Helen  E. 

Reed,  Alfred  Z. 

Reed,  Charles 

Reed,  Frederick  H. 

Reese,  Richard  Equitabl 

Reeves,  Herbert 

Remick,  William  H. 

Revell,  Fleming  H. 

Reynolds,  Mrs.  James  B. 

Rhoades,  John  Harsen 

Rhodes.  R.  R 

Rice,   Isaac  L. 

Rice,  William  M.  J. 

Rich,  Charles  A. 

Richards,  C.  R. 

Richards,  R.  O. 

Richmond,  T.  C. 

Ridge,  W.  N. 

*  Riker,  John  J. 

Ripley,  E.  A. 

Rives,  George  L. 

Robb,  Mrs.  N.  Thayer 

Robbins,  Howard  C. 

Robinson,  Allan 

Robinson,  George  B. 

Robinson,  George  Henry 

Robinson,  Mrs.  Gilbert 

Robinson,  James  H. 

Robinson,  Nelson  L. 

Rochester,  Mrs.  Richmond 

Rockefeller,  P.  A. 

Roeser,  John  E. 

Rogers,  F.  Theo.  Care 

Rojas,   P.  Ezequiel 

Roome,  William  J. 

Root,  Charles  T. 

Root,  Elihu 

Rosen,  Felix 

Rosenbaum,  M. 

Rosenfeld,  Edward  L. 

Rosenfeld,  Henry  L. 

Ross,  Edward  A. 

Ross,  P.  Sanford 

Rossbach,  Jacob 

Rossiter,  Van  Wyck 

Rothbarth,  H.    30  Quex  Road, 

Rothschild,  Maurice 


924  East  3d  Street,  Bloomington,  Ind. 

31  Pine  Street 

145  South  Oxford  Street,  Brooklyn,  N.  Y. 

454  West  I52d  Street 

38  North  Moore  Street 

120  Riverside  Drive 

e  Guarantee  &  Trust  Co.,  Wilmington,  Del. 

55  Liberty  Street 

27  Wall  Street 

Riverdale-on-Hudson,  N.  Y. 

151   Central  Park  West 

66  Beaver  Street 

1206  Citizens  Building, 'Cleveland,  O. 

5  Nassau  Street 

15  West  67th  Street 

320  Fifth  Avenue 

Cooper  Union,  N.  Y. 

Huron,   S.  Dak. 

Mendota  Block,  Madison,  Wis. 

302  Broadway 

46  Cedar  Street 

Mandan,  N.  Dak. 

32  Nassau  Street 

35  East  64th  Street 

209  Madison  Avenue 

165  Broadway 

415  Broome  Street 

26  Exchange  Place 

541  West  124th  Street 

567  West  113th  Street 

435  West  119th  Street 

Whitestone.  L.  I. 

26  Broadway 

795  St.  Nicholas  Avenue 

of  "  Philippines  Free  Press,"  Manila,  P.  I. 

1017  Sixteenth   Street,  Washington,   D.   C. 

loi  East  57th  Street 

231  West  39th  Street 

Washington,  D.  C. 

25  Broad  Street 

603  South  Third  Street,  Philadelphia,  Pa. 

35  South  William  Street 

165  Broadway 

University  of  Wisconsin,  Madison,  Wis. 

277  Washington  Street,  Jersey  City,  N.  J. 

55  Frankfort  Street 

Nyack,  N.  Y. 

West  Hampstead,  London,  N.  W.,  England 

49  West  72d  Street 

(38) 


No.  I] 


LIST  OF  MEMBERS 


39 


Rounds,  Arthur  C. 
Rowe,  Louis  Cass 
Rowe,  William  V. 
Rublee,  Mrs.  Juliet  Barrett 
Rudd,  Charming 
Rudolphy,  Mrs.  Gustave  C. 
Rundell,  Oliver  S. 
Rumsey,  Mrs.  Charles 
Ruppert,  Jacob,  jr. 
Rush,  Thomas  E. 
Rushmore,  Charles  E. 
Ryle,  Arthur 
Sabin,  Charles  H. 
Sachs,  Bernard 
Sachs,  Harry 
Sachs,  Julius 
Sachs,  Ralph  L. 
Sachs,  Samuel 


96  Broadway 

40  East  Utica  Street,  Oswego,  N.  Y. 

133  East  38th  Street 

116  East  58th  Street 

15  Wall  Street 

148  East  62d  Street 

University  of  Wisconsin,  Madison,  Wis. 

Arden,  Orange  Co.,  N.  Y. 

1639  Third  Avenue 

71  East  90th  Street 

40  Wall  Street 

225  Fourth  Avenue 

28  Nassau  Street 

135  Central  Park  West 

60  Wall  Street 

Teachers  College,  Columbia  University 

28  West  22d  Street 

46  West  70th  Street 

49  Wall  Street 


Sage,  Dean 

Saggu,  Mohammad  Khairuddin 

Royal  Colonial  Institute,  Northumberland  Ave.,  London,  W.C,  England 

Saklatvala,  P.  D.  83  Grand  Street 

Samson,  C.  F.  20  Broad  Street 

Samson,  Harry  G.  433  Sixth  Avenue,  Pittsburgh,  Pa. 

Sanders,  J.  C.  Fourth  Street,  Fort  Madison,  la. 

Sanguinette,  S.  S.  542  West  124th  Street 

Sargent,  William  D.  90  West  Street 

Satterlee,  Herbert  L.  37  East  36th   Street 

Saul,  Charles  R.  149  Columbus  Avenue 

Saunders,  Bertram  A.  Nyack,  N.  Y. 

Saunders,  Charles  C.  95  Milk  Street,  Boston,  Mass. 

Saunders,  William  E.  G.  Emmetsburg,  Iowa 

Schaffer,  Frank                   85  Rockland  Avenue,  Park  Hill,  Yonkers,  N.  Y. 

Schefer,  Carl  40  West  37th  Street 

Schermerhorn,  F.  Augustus  25  Liberty  Street 


Scherr,  Harry 
Schiff,  Jacob  H. 
Schiff,  Mortimer  L. 
Schlapp,  Max  G. 
Schley,  Grant  B. 
Schmitt,  Arthur  J. 
Schniewind,  H.,  jr. 
Scholefield,  E.  O.  S. 
Schott,  Charles  M.,  jr. 
Scoville,  Mrs.  Helen  M. 
Schreiber,  George  C. 
Schubring,  E.  J.  B. 
Schurz,  Miss  Agatha 
Schuster,  Edward 


Williamson,  West  Va. 

27  Pine  Street 

William  &  Pine  Streets 

40  East  41st  Street 

80  Broadway 

1 127  Vine  Street,  Cincinnati,  O. 

18  West  i8th  Street 

Legislative  Library,  Victoria,  B.  C,  Canada 

25  Broad  Street 

2042  Fifth  Avenue 

55  Liberty  Street 

Badger  Block,  Madison,  Wis. 

24  East  91st  Street 

2a  Capuchinas  48,  Mexico  City,  Mex. 

(39) 


40 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Schwab,  Gustav  H. 
Schwarz,  Herbert  F. 
Schwarzenbach,  Robert  J. 
Scott,  Frank  H. 
Scribner,  Sam  A. 
Scudder,  Edward  M. 
Scudder.  Townsend 
Scull,  Charles  O. 
Seabury,  William  M. 
Seager,  Henry  Rogers, 
Seaman,  Alfred  P.  W. 
Seaman,  Louis  L. 
Sears,  J.  H. 
Seelig,  Mr.  S. 
Seevers,  George  W. 
Seggerman,  Mrs.  Victor 
Seko,  Konosuke 
Seligman,  E.  R.  A. 
Seligman,  Mrs.  Henry 
Seligman,  Isaac  N. 
Seligman,  Jefferson 
Sessoms,  E.  M. 
Severance,  L.  H. 
Sexton,  Lawrence  E. 
Sexton,  J.  S. 
Shackleton,  James  H. 
Shaffner,  Henry  F. 
Shattuck,  Henry  L. 
Shaw,  Albert 
Shaw,  William  N. 
Shearn,  Qarence  J. 
Sheehan,  William  F. 
Sheldon,  George  R. 
Shelton,  Thomas  Wall 
Shepard,  Charles  E. 
Shepherd,  W.  R. 
Sherman,  Gordon  E. 
Shientag,  Bernard  L. 
Shipman,  Henry  R. 
Shoemaker,  Herbert  B. 
Shove,  Benjamin  J. 
Sickles,  D    E. 
Sidenberg,  George  M. 
Siegel,  Henry 
Silliman,  Reuben  D. 
Simkhovitch,  V.  G. 
Simmons,  Frank  H. 
Simpson,  George  W. 
Simpson,  John  W. 


4  East  48th  Street 

25s  West  io8th  Street 

F.  472  Broome  Street 

Century  Company,  Union  Square 

Broadway  and  47th  Street 

59  Wall  Street 

112  Willow  Street,  Brooklyn,  N.  Y. 

Roland  Park,  Md. 

Fleming  Building,  Phoenix.  Ariz. 

Columbia  University 

147  West  87th  Street 

247  Fifth  Avenue 

35  West  32d  Street 

5025  McPherson  Avenue,  St.  Louis,  Mo. 

Metropolitan  Life  Building,  Minneapolis,  Minn. 

422  West  144th  Street 

445  Broome  Street 

Columbia  University 

30  West  56th  Street 

I  William  Street 

I  William  Street 

R.  F.  D.  No.  I,  Caryville,  Ra. 

Waldorf-Astoria  Hotel 

34  Pine  Street 

Hazelhurst,  Miss. 

Fidelity  Trust  Co.,  Newark,  N.  J. 

403  High  Street,  Winston  Salem,  N.  C. 

60  State  Street,  Boston,  Mass. 

13  Astor  Place 

165  Broadway 

258  West  94th  Street 

14  Wall  Street 

24  East  38th  Street 

Norfolk,  Va. 

614  New  York  Building,  Seattle,  Wash. 

468  Riverside  Drive 

Ogden  Place,  Morristown,  N.  J. 

165  Broadway 

Princeton,  N.  J. 

31  Nassau  Street 

365  Green  Street,  Syracuse,  N.  Y. 

23  Fifth  Avenue 

45  East  49th  Street 

Simpson  Crawford  Co.,  19th  St.  and  6th  Ave. 

609  West  158th  Street 

26  Jones  Street 

no  Centre  Street 

90  West  Broadway 

62  Cedar  Street 

(40) 


No.  i] 


LIST  OF  MEMBERS 


41 


Sinclair,  A.  G. 
Sinclair,  Miss  Marjorie  T. 
Slade,  C.  C 
Slade,  Francis  Louis 
Sleicher,  Reuben  P. 
Sloan,  Benson  Bennett 
Sloane,  William  M. 
Smith,  Arthur  J. 
Smith,  C.  P. 
Smith,  Eugene 
Smith,  Frederick  M. 
Smith,  Harry  T. 
Smith,  Munroe 
Smith,  Nelson 
Smith,  R.  A.  C. 
Smith,  S.  L.* 
Smyth,  Herbert  C. 
Snow,  Elbridge  G. 
Snyder,  V.  P. 
Sommer,  Frank  H. 
Sommerich,  Edwin 
Sondheim,  Phineas 
Soper,  Alexander  C. 
Soper,  Erastus  B. 
Sprague,  Frank  J. 
Spence,  Miss  Clara  B. 
Spencer,  A.  H. 
Spencer,  Charles  W. 
Spencer,  Henry  R. 
Speranza,  Gino  C. 
Spiegelberg,  F. 
St.  Goar,  F. 
Standish,   Myles 
Stangeland,  Charles  E. 
Stanley,  Edward  O. 
Starr,  William  J. 
Starace,  Achille 
Stason,  Edwin  J. 
Staton,  Henry 
Stauffen,  Ernest,  jr. 
Steckler,  Edward  L. 
Steele,  Charles 
Stein,  Leo 
Steinan,  Edward  S. 
Steinkamp,  William  H. 
Steinman,  H.  G. 
Sterling,  Miss  Ada 
Stern,  Edgar  B. 
Sternbach,  Morris 


429  Elgin  Avenue,  Winnipeg,  Canada 

471  Park  Avenue 

83  Cedar  Street 

18  West  52d  Street 

225  Fifth  Avenue 

38  Wall  Street 

105  East  69th  Street 

541  Lexington  Avenue 

Burlington  Savings  Bank,  Burlington,  Vt. 

39  West  68th  Street 

630  S.  Crysler  Street,  Independence,  Mo. 

56-58  St.  Michael  Street,  Mobile,  Ala. 

169  East  70th  Street 

151  West  48th  Street 

100  Broadway 

1013  Woodward  Avenue,  Detroit,  Mich. 

IS  Wall  Street 

56  Cedar  Street 

31  Nassau  Street 

738  Broad  Street,  Newark,  N.  J. 

626  Broadway 

49  Wall  Street 

Lakewood,  N.  J. 

Emmetsburg,  la. 

165  Broadway 

30  West  55th  Street 

90  West  Street 

114  Fitz  Randolph  Road,  Princeton,  N.  J. 

Ohio  State  University,  Columbus,  O. 

40  Pine  Street 

16  West  76th  Street 

35  Wall  Street 

20  Nassau  Street 

Department  of  State,  Washington,  D.  C. 

176  Broadway 

Eau  Claire,  Wis. 

32  Broadway 

Sioux  City,  la. 

80  Broadway 

119  Fifth  Avenue 

61  West  88th  Street 

23  Wall  Street 

37  West  90th  Street 

52  William  Street 

34  West  190th  Street 

CuUom,  111. 

S8  West  57th  Street 

51 15  St.  Charles  Avenue,  New  Orleans,  La. 

40  Exchange  Place 

(41) 


42 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Sterne,  L.  H. 
Sterrett,  J.  E. 
Stetson,  Francis  Lynde 
Stetson,  Will  H. 
Stettinius,  Edward  R. 
Steuer,  Max  D. 
Stevens,  F.  C. 
Stevens,  George  W. 
S'.evens,  Mrs.  Joseph  S 
Stevens,  Richard 
btevens,  T.  Jefferson 
Stevenson,  Eugene 
Stevenson,  L.  A. 
Stewart,  Bryce  M. 
Stewart,  John  A. 
Stewart,  Mrs.  Percy  H. 
Stewart,  William  R. 
Stickney,  Charles  D. 
Stiger,  William  D. 
Stiger,  William  E. 
Stillman,  Charles 
Stillman,  Leland  S. 
Stockton,  Philip 
Stoddard,  John  M. 
Stokes,  Anson  Phelps 
Stokes,  J.  G.  Phelps 
Stone,  Harlan  F. 
Stone,  I.  F. 
Storer,  Mrs.  A.  H. 
Straus,  Percy  S. 
Straus,  Simon  W. 
Strauss,  Albert 
Strauss,  Charles 
Strauss,  Frederick 
Strohmeyer,  George  W. 
Strong,  Benjamin,  jr. 
Stroock,  S.  M. 
Stubbs,  Francis  P.,  jr. 
Sturgis,  F.  K. 
Styer,  David 
Sullivan,  J.  J. 
Suzzallo,  Henry, 
Swan,  George  B. 
Swan,  Mrs.  Joseph  R. 
Swan,  Robert 
Swartwout,  Richard  H. 
Swayne,  Francis  B. 
Swayze,  Francis  J. 
Swetland,  Mrs.  Horace  M. 


2IO  West  iioth  Street 

54  William  Street 

15  Broad  Street 

43  Cedar  Street 

III  Broadway 

55  West  88th  Street 

309  Southern  Building,  Washington,  D.  C. 

71  Broadway 

Kerby  Hill,  Jericho,  L.  I. 

I  Newark  Street,  Hoboken,  N.  J. 

81  Fulton  Street 

580  Park  Avenue 

Concord,  Calif. 

1600  Barclay  Street,  Vancouver,  B.  C. 

50  Church  Street 

563  West  8th  Street,  Plainfield,  N.  J. 

31  Nassau  Street 

512  Fifth  Avenue 

62  William  Street 

138  West  73d  Street 

21  West  48th  Street 

15  William  Street 

17  Court  Street,  Boston,  Mass. 

542  West  ii2th  Street 

100  William  Street 

100  William  Street 

49  Wall  Street 

100  William  Street 

Ridgefield,  Conn. 

34th  Street  and  Broadway 

Straus  Building,  Chicago,  111. 

I  William  Street 

141  Broadway 

I  William  Street 

Milwaukee  National  Bank,  Milwaukee,  Wis. 

7  Wall  Street 

30  Broad  Street 

Central  Savings  Bank  Building,  Monroe,  La. 

17  East  51st  Street 

Bordentown  Military  Institute,  Bordentown,  N.  J. 

Central  National  Bank,  Cleveland,  O. 

525  West  I20th  Street 

loij^  Front  Street,  Beaver  Dam,  Wis. 

I  Lexington  Avenue 

25  Broad  Street 

44  Pine  Street 

149  Broadway 

765  High  Street,  Newark,  N.  J. 

151  Central  Park  West 

(42) 


No.  i]                                   LIST  OF  MEMBERS  43 

Taber,  E.  J.  L.  Elko,  Nevada 

Taft,  Henry  W.  36  West  48th  Street 

Taggart,  Rush  319  West  75th  Street 

Taintor,  Charles  N.  41  West  76th  Street 

Takamine,  Jokichi  550  West  173d  Street 

Talbert,  Joseph  T.  55  Wall  Street 

Tallmadge,  Josiah  C.  14  Liberty  Street,  Catskill,  N.  Y. 

TaJmage,  Mrs.  Edward  H.  -                               925  Park  Avenue 

Tappan,  Mrs.  J.  B.  C.  Glen  Cove,  L.  I. 

Taylor,  Carl  24  Broad  Street 

Taylor,  Frederick  C.  Stamford,  Conn. 

Taylor,  George  8  West  126th  Street 

Taylor,  Henry  R.  30  Pine  Street 

Taylor,  Samuel  M.  19S  Broadway 
Taylor,  William  H.                      1815  Whitehall  Building,  17  Battery  Place 

Teele,  Arthur  W.  30  Broad  Street 

Teets,  Herbert  M.  530  Fifth  Avenue 

Tefft,  Erastus  T.  5  Nassau  Street 

Tenney,  Levi  S.  27  William  Street 

Terhune,  N.  ^2  Nassau  Street 

Terry,  Charles  Thaddeus  100  Broadway 

Tesla,  Nikola  Waldorf-Astoria  Hotel 
Teter,  Lucius                                        5637  Woodlawn  Avenue,  Chicago,  111. 

Thacher,  Thomas  62  Cedar  Street 

Thaw,  A.  Blair  135  East  66th  Street 

Thitchener,  W.  H.  30  Broad  Street 

Thomas,  Albert  A.  90  Pearl  Street,  Middleboro,  Mass. 

Thomas,  Allen  M.  35  West  54th  Street 

Thomas,  Augustus  New  Rochelle,  N.  Y. 

Thomas,  John  W.  76  William  Street 

Thomen,  Otto  J.  2,2>  Pine  Street 

Thompson,  Mrs.  Charles  L.  156  Fifth  Avenue 

Thompson,  Mrs.  Frederick  F.  283  Madison  Avenue 

Thompson,  Holland  17  Lexington  Avenue 

Thompson,  J.  David  Law  Library,  Columbia  University 

Thompson,  William  B.  14  Wall  Street 

Thorley,  Charles  562  Fifth  Avenue 

Thorne,  Edwin  West  Islip,  L.  L 

Thorne,  Jonathan  43  Cedar  Street 

Thornton,  W.  D.  42  Broadway 
Thurston,  Edward  Sampson          1212  S.  E.  Fifth  St.,  Minneapolis,  Minn. 

Titus,  Arthur  H.  55  Wall  Street 

Tobin,  R.  M.  Hibernia  Bank,  San  Francisco,  Calif. 

Todd,  Albert  M.  Kalamazoo,  Mich. 

Todd,  Ambrose  G.  51  East  s8th  Street 

Tokieda,  M.  55  Wall  Street 

Tomlinson,  John  C.  35  Wall  Street 

Tompkins,  Leslie  J.  Z2  Waverly  Place 

Topakyan,  H.  H.  225  Fifth  Avenue 

(43) 


44 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  Ill 


Toulmin,  H.  A.,  jr. 

Towne,  Henry  R. 

Townsend,  James  M. 

Trube,  Miss  Jessie  Maud         ' 

Trull,  Mrs.  William  C. 

Truman,  Henry  H. 

Trumbull,  Frank 

Tucker,  H.  St.  George 

Tuckerman,  Alfred 

Tupper,  G.  W. 

Turnbull,  Arthur 

Turner,  William  L. 

Turnure,  George  E. 

Turrell,  Edgar  A. 

Tweed,  Miss  Katherine  W. 

Twitchell,  H.  K. 

Tyler,  William  S. 

Ullman,  Joseph 

Underbill,  Francis  Jay 

Urban,  George,  jr. 

Van  Amringe,  Guy 

Van  Beuren,  F.  T 

Van  Beuren,  Michael  M. 

Van  Cortlandt,  R.  B. 

Vanden  Berg,  F. 

Vanderlip,  Frank  A. 

Van  Ingen,  Philip 

Van  Vorst,  Mrs.  Frederick  B 

Van  Wagenen,  Bleecker 

Vernier,   Chester  G. 

Ver  Planck,  William  Gordon 

Vezin,  Charles 

Victor,  Royall 

Villard,  Mrs.  Henry 

Villard,  Oswald  Garrison 

Vitale,  Ferruccio 

von  Mayhoff,  Mrs.  Carl 

Voorhees,  John  H 

Voorhees,  Stephen  H. 

Voorhees  W.  P. 

Wacker,  Charles  H. 

Wade,  G.  K.  B. 

Wade,  William  O. 

Wagner,  Edward  E 

Walbridge,  H.  D. 

Walker,  Roberts 

Walker,  William  Hall 

Wallace,  James  U. 

Walter,  W.  J. 


Schwind  Building,  Dayton,  O. 

121  Madison  Avenue 

165  Broadway 

Bella  Sylva,"  Hastings-on-Hudson,  N.  Y. 

20  Fifth  Avenue 

56  Highland  Avenue,  Orange,  N.  J. 

71  Broadway 

Lexington,  Va. 

University  Club 

74  Pleasant  Street,  Brookline.   Mass. 

38  Wall  Street 

84  Cotton  Exchange  Building 

64  Wall  Street 

76  William  Street 

12  East  36th  Street 

270  Broadway 

30  Church  Street 
160  Broadway 

2131  Broadway 
Pine  Ridge,  Buffalo,  N.  Y. 

31  Nassau  Street 
65  Fifth  Avenue 

7  Wall  Street 

30  Pine  Street 

2,2  Nassau  Street 

55  Wall  Street 

125  East  71st  Street 

II  Euclid  Avenue,  Hackensack,  N.  J. 

443  Fourth  Avenue 

University  of   Illinois,   Urbana,   111. 

149  Broadway 

409  Palisade  Avenue,   Yonkers,  N.  Y. 

ID  West  6ist  Street 

14s  West  58th  Street 

20  Vesey  Street 

1 133  Broadway 

59  East  34th  Street 

Sioux  Falls,  So.  Dak. 

68  William  Street 

35  Union  Street,  New  Brunswick,  N.  J. 

134  La  Salle  Street,  Chicago,  III. 

155  East  72d  Street 

1241  First  National  Bank  Building,  Chicago,  III. 

416  Western  National  Bank  Building,  Mitchell,  S.  D. 

7  Wall  Street 

115  P  roadway 

23  West  S4th  Street 

54  Wall  Street 

52  Broadway 

(44) 


No.  I] 


LIST  OF  MEMBERS 


45 


Warburg,  Felix  M. 
Warburg,  Paul  M. 
Ward,  Owen 
Wardrop,  Robert 
Wardwell,  Allen 
Warfield,  F.  P. 
Warren,  Charles  H. 
Warren,  Lloyd 
Warren,  Mrs.  Schuyler  N. 


52  William  Street 

52  William  Street 

208  Fifth  Avenue 

People's  National  Bank,  Pittsburgh,  Pa. 

15  Broad  Street 

2  Rector  Street 

34  Nassau  Street 

3  East  33d  Street 

311  Lexington  Avenue 


Washington,  William  De  Hertburn 

Waterbury,  John  L 

Watson,  C.  W. 

Watson,  Frank  D. 

Watson.  John  J.,  jr. 

Webb,  George  T. 

Webb,  Silas  D. 

Weber,  A.  F. 

Webster,  Frank  G. 

Weeks,  W.  Holden 

Weil,  Edw^ard  A. 

Weinstein,  Edward  M. 

Weitling,  William  W. 

Welch,  S.  C. 

Welling,  Richard 

Welwood,  John  C. 

Westcott,  Clarence  L. 

Westinghouse,  George 

Weyl,  Walter  E. 

Wheat,  Alfred  A. 

Wheeler,  Everett  P. 

Whinery,  C.  C. 

Whitaker,  Edward  G. 

White,  Andrew  D. 

White,  Archibald  S. 

White,  Horace 

White,  John  B. 

White,  Leonard  D. 

White,  Miss  Mary  Langdon 

Whitin,  E.  Stagg 

Whitin,  Frederick  H. 

Whitlock,  Victor  E. 

Whitman,  Malcolm  D. 

Whitridge,  F.  W. 

Whitten,  Robert  H. 

Wiborg,  F.  B. 

Wickes,  Edward  A. 

Wier,  Frederick  N. 

Wilcox,  Ansley 

Wilcox,  Delos  F. 


267  Fifth  Avenue 
14  Wall  Street 
500  Madison  Avenue 
Hartley  Hall,  Columbia  University 
390  West  End  Avenue 
Ellendale,  N.  Dak. 
32  Burling  Slip 
464  Elm  Street,  Richmond  Hill,  N.  Y. 
P.  O.  Box  7,  Boston,  Mass. 
789  Madison  Avenue 
70  Gold  Street 
Public  Bank,  Delancy  &  Ludlow  Streets 
College  Point,  N.  Y. 
Waynesville,  N.  C. 
2  Wall  Street 
320  Central  Park  West 
100  Broadway 
Pittsburgh,  Pa. 
175  Second  Avenue 
32  Nassau  Street 
735  Park  Avenue 
35  West  32d  Street 
45  Broadway 
Ithaca,  N.  Y. 
Fourth  &  Plum  Streets,  Cincinnati,  O. 
18  West  69th  Street 
Long  Building,  Kansas  City,  Mo. 
52  Broadway 
105  East  22d  Street 
Columbia  University 
501  West  113th  Street 
32  Nassau  Street 
115  East  60th  Street 
59  Wall  Street 
684  East  2ist  Street,  Brooklyn,  N.  Y. 
Cincinnati,  O. 
15  Broad  Street 
42  Eleventh  Street,  Lowell,  Mass. 
684  ElUcott  Square,  Buffalo,  N.  Y. 
75  Sixth  Street,  Elmhurst,  N.  Y. 
(45) 


46 


YEAR  BOOK  OF  THE  ACADEMY 


[Vol.  hi 


Willcox,  W.  F. 
Willcox,  W.  R. 
Wild,  Frank  G. 
Wilkes,  Miss  Grace 
Willard,  Daniel 
Willard,  Eugene  S. 
Willett,  George  F. 
Williams,  Alexander  S. 

Astoria  Veneer 
Williams,  Arthur 
Williams,  Clark 
Williams,  Edward  T. 
Williams,  Ephraim 
Williams,  Frank  B. 
Williams,  George  C.  F. 
Williams,  Harrison 
Williams,  Henry  D. 
Williams,  John  Skelton  * 
Williams,  P.  L. 
Williams,  Richard  H. 
Williams,  Stephen  G. 
Williams,  T.  E. 
Williams,  Timothy  S. 
Williams,  Waldron 
Williamson,  Charles  C. 
Willoughby,  W.  F. 
Willson,  Frederick 
Wilson,  Mrs.  J.  Augustine 
Wilson,  Henry  F.,  jr. 
Wilson,  Hugh  M. 
Wilson,  James  Harrison 
Wilson,  Warren  H. 
Wing,  Daniel  G. 
Wing,  Thomas  E. 
Winthrop,  Bronson 
Witherbee,  F.  S. 
Witizman,  John  R. 
Wolf,  W.  Irving 
Wolfe,  S.  Herbert 
Wolff,  Emil 
Wolff,  Herbert  Alfred 
Wolff,  Mrs.  Lewis  S. 
Wood,  Mrs.  Joseph  S.  i 

Wood,  L.  Hollingsworth 
Wood,  Willis  D. 
Woodbury,  Theodore  C. 
Woodin,  C.  R. 
Woodin,  W.  H. 
Woods,  Frank  H. 


College  of  Arts  and  Sciences,  Ithaca,  N.  Y. 

165  Broadway 

2yy  Broadway 

16  Washington  Square 

Belvedere  Hotel,  Baltimore,  Md 

45  Pine  Street 

248  Summer  Street,  Boston,  Mass. 

Mills  &  Dock  Co.,  Long  Island  City,  N.  Y. 

55  Duane  Street 

293  Madison  Avenue 

54  William  Street 

12  West  44th  Street 

55  West  44th  Street 

990  Prospect  Avenue,  Hartford,  Conn. 

60  Broadway 

141  West  I22d  Street 

801   East  Main  Street,   Richmond,  Va. 

177  13th  East  Street,  Salt  Lake  City,  Utah 

I  Broadway 

30  Broad  Street 

Aurora,  Neb. 

Huntington,  L.  I. 

220  Eleventh  Avenue 

403  West   115th  Street 

Princeton  University,  Princeton,  N.  J. 

P.  O.  Box  295,  Reading,  Pa. 

618  West  138th  Street 

7  Wall  Street 

118  West  57th  Street 

1305  Rodney  Street,  Wilmington,  Del. 

245  Arlington  Avenue,  Brooklyn,  N.  Y. 

First  National  Bank,  Boston,  Mass. 

2,7  Wall  Street 

23  East  33d  Street 

4  Fifth  Avenue 

Conrad,  la. 

511  East  72d  Street 

1038  Fifth  Avenue 

171  West  71st  Street 

250  West  82d  Street 

12  East  70th  Street 

35  South  Second  Avenue,  Mt.  Vernon,  N.  Y. 

2  Wall  Street 

7  Wall  Street 

25  Broad  Street 

40  East  64th  Street 

165  Broadway 

1220  South  20th  Street,  Lincoln,  Neb. 

(46) 


No.  I] 


LIST  OF  MEMBERS 


47 


Woods,  William  W. 
Woodward,  S.  W. 
Woolley,  Edwin  C. 
Woolverton,  W.  H. 
Worden,  Charles  H. 
Wright,  George  M. 
Wright,  H.  J. 
Wright,  H.M.   215  U.S. 
Wright,  Mrs.  James  A. 
Wyckoff,  William  F. 
Wyper,  James 
Young,  Charles  W. 
Young,  Eugene  N.  L. 
Younker,  Herman 
Zabriskie,  Mrs.  C.  B. 
Zachry,  J.  Greer 
Zimmerman,  Miss  R.  E. 


318  Normandie  Avenue,  Los  Angeles,  Calif. 

2015  Wyoming  Avenue,  Washington,  D.  C. 

1716  Hoyt  Street,  Madison,  Wis. 

180  West  59th  Street 

625  West  Wayne  Street,  Ft.  Wayne,  Ind. 

280  Broadway 

7  Dey  Street 

Court  House  &  P.  O.  Building,  San  Francisco,  Calif. 

133  West  nth  Street 

215  Montague  Street,  Brooklyn,  N.  Y. 

2717  Claremont  Boulevard,  Berkeley,  Calif. 

40  Wall  Street 

9  Jackson  Avenue,  Long  Island  City,  L.  L 

220  Fifth  Avenue 

119  East  19th  Street 

68  East  83d  Street 

358  Fifth  Avenue 


SUBSCRIBING   MEMBERS 


Austin  College  Library 

Berkshire  Athenaeum 

Biddle  Law  Library  University 

Boston  Public  Library 

Carnegie  Library 

Chicago  Law  Institute 

City  Library  Association 

City  Library 

Clark  University  Library 

Cleveland  Law  Library  Association 

Cleveland  Public  Library 

Colorado  State  Library 

Cornell  University  Library 

John  Crerar  Library 

Denver  Public  Library 

Detroit  Public  Library 

Emeline  Fairbanks  Memorial  Library 

Enoch  Pratt  Free  Library 

First  National  Bank 

Free  Public  Library 

Free  Public  Library  of  Newark 

Free  Public  Library 

Hoboken  Free  Public  Library 

Interstate  Commerce  Commission 

Lane  Free  Library 

Library  Association 

Library  of  the  Court  of  Appeals 

(47) 


Austin  College,  Sherman,  Tex. 

Pittsfield,   Mass. 

of  Pennsylvania,  Philadelphia,  Pa. 

Copley  Square,  Boston,  Mass. 

Pittsburgh,  Pa. 

1025  County  Building,  Chicago,  111. 

Springfield,  Mass. 

Manchester,  N.  H. 

Worcester,  Mass. 

Cleveland,  O. 

Cleveland,  O. 

Denver,  Colo. 

Ithaca,  N.  Y. 

Chicago,  111. 

Denver,  Colo. 

Detroit,  Mich. 

Terre  Haute,  Ind. 

Baltimore,  Md. 

Hamilton,  O. 

Jersey  City,  N.  J. 

Newark,  N.  J. 

Tulare,  Cal. 

Hoboken,  N.  J. 

Washington,  D.  C. 

Hamilton.  O. 

Portland,  Ore. 

Syracuse,  N.  Y. 


48 


YEAR  BOOK  OF  THE  ACADEMY 


Lincoln  City  Library 
Lobdell,  E.  L.,  &  Co. 
Los  Angeles  Public  Library 
Massachusetts  State  Library 
Meadville  Theological  School  Library 
Medford  Public  Library 
Michigan  State  Library 
Minnesota  State  Reformatory  Library 
New  York  Public  Library 
Northwestern  Law  School 
Patterson  Library 
Public  Library 
Rhode  Island  State  Library 
San  Francisco  Law  Library 
Social  Law  Library 
St.  Joseph  Free  Public  Library 
St.  Louis  Public  Library 
St.  Paul  Public  Library 
University  of  Illinois  Library 
Vermont  State  Library 
Washington,  Public  Library 
Washington   State  College 
Wellesley  College  Library 
Wilmington  Institute  Free  Library 
Women's  Municipal  League 
Young  Men's  Christian  Association  Library 

(48) 


Lincoln,  Neb. 

The  Rookery,  Chicago,  111. 

Los  Angeles,  Calif. 

Boston,  Mass. 

Meadville,  Pa. 

Medford,  Mass. 

Lansing,  Mich. 

St.  Cloud,  Minn. 

476  Fifth  Avenue 

Lake  &  Dearborn  Streets,  Chicago,  111. 

Westfield,  N.  Y. 

Cincinnati,  O. 

Providence,  R.  I. 

805  Grant  Building,  San  Francisco,  Calif. 

Boston,  Mass. 

St.  Joseph,  Mo. 

St.  Louis,  Mo. 

St.  Paul,  Minn. 

University  Station,  Urbana,  111. 

Montpelier,  Vt. 

Washington,  D.  C. 

Pullman,  Wash. 

Wellesley,  Mass. 

Wilmington,  Del. 

46  East  29th  Street 

215  West  23d  Street 


JUDICIAL  INTERPRETATION  OF  CONSTITU- 
TIONAL PROVISIONS^ 

FRANK  J.    GOODNOW 
Professor  of  Administrative  Law,  Columbia  University 

WHEN  the  constitution  of  the  United  States  was  adopted 
at  the  end  of  the  eighteenth  century,  the  conditions 
to  which  it  was  intended  to  apply  were  marked 
by  three  distinguishing  characteristics.  The  first  was  geo- 
graphical in  its  nature ;  the  second  was  economic ;  the  third 
intellectual.  In  the  first  place,  the  United  States  for  which  the 
constitution  was  framed,  consisted  of  a  series  of  communities, 
lying  along  the  Atlantic  seaboard  of  North  America,  largely 
engaged  in  agricultural  pursuits  and  occupying  sparsely  popu- 
lated districts  which  as  compared  with  their  population  were 
richly  endowed  with  natural  resources.  These  communities 
were  in  the  main  connected  one  with  another  only  by  the  sea 
and  by  the  rivers  and  estuaries  which  in  many  instances  pene- 
trated far  into  the  interior.  Their  social  conditions  were  as  di- 
verse as  their  geographical  condition  was  isolated.  In  some 
slave  labor,  in  others  free  labor  was  the  rule.  In  some  one 
racial  element  or  one  religious  confession  was  most  pronounced  ; 
in  others  another.  Their  comparative  geographical  isolation 
and  their  difference  in  economic  and  social  conditions  naturally 
had  the  effect  of  causing  the  states,  as  these  communities  had 
come  to  be  called,  to  regard  the  maintenance  of  a  large  degree 
of  local  independence  as  of  the  greatest  importance. 

In  the  second  place,  the  economic  conditions  of  the  time 
were  comparatively  simple.  Even  the  countries  of  Western 
Europe  which  were  most  advanced  from  an  industrial  point  of 
view  were  only  just  beginning  to  make  use  of  the  factory  sys- 
tem in  their  industrial  organization.  The  hand  tool  had  not  as 
yet  generally  given  place   to    steam-driven    machinery.     The 

'Read  at  the  meeting  of  the  Academy  of  Political  Science,  Oct.  26,  1912. 

(49) 


2  EFFICIENT  GOVERNMENT  [Vol.  Ill 

industrial  worker  in  most  instances  still  followed  his  livelihood 
within  the  narrow  confines  of  his  own  dwelling  and  regulated 
the  hours  of  his  labor  by  his  desires  or  necessities.  The  steam 
locomotive  was  just  about  taking  shape  in  the  imaginative  minds 
of  such  men  as  George  Stephenson.  The  only  means  of  tele- 
graphing was  to  be  found  in  the  beacon,  the  heliograph  and  the 
semaphore.  No  human  being  had  even  dreamed  of  the  tele- 
phone. Such  slight  change  in  European  industrial  conditions 
as  was  due  to  power  machinery  and  the  building  of  factories 
had  not  taken  place  in  North  America,  which  as  has  been  said 
was  predominantly  agricultural  in  character. 

Finally,  the  philosophy  of  the  time  was  based  upon  the  con- 
ception that  society  was  static  rather  than  dynamic  or  progres- 
sive in  character.  Belief  in  verities  eternal  and  absolute  under 
all  conditions  was  almost  universal  among  educated  men. 
Nowhere  was  this  confidence  in  absolute  and  eternal  truth  more 
marked  than  in  the  domain  of  political  thought.  The  various 
Utopias  which  had  been  outlined  by  political  theorists  and 
philosophical  dreamers  had  held  before  the  mind  of  man  a  goal 
which  he  should  strive  to  attain.  An  ideal  state  was  pictured 
in  which,  if  it  were  once  reached,  humanity  would  cease  from 
striving  and  finally  at  rest  would  contemplate  with  complacency 
the  hardships  of  the  past  and  anticipate  with  satisfaction  the 
joys  of  the  future.  It  is  of  course  true  that  political  philoso- 
phers had  not  at  the  end  of  the  eighteenth  century,  any  more 
than  at  any  other  time  in  the  history  of  man,  reached  a  com- 
plete agreement  as  to  the  concrete  measures  whose  adoption 
was  necessary  for  the  realization  of  the  perfect  state  of  which 
all  had  their  visions.  It  is  also  true  that  the  concrete  measures 
which  were  recommended  were  frequently,  if  not  always,  evi- 
dently devised  in  view  of  the  peculiar  evils  which  each  such 
prophet  sought  to  remedy.  At  the  same  time  while  the  politi- 
cal doctors  disagreed  somewhat  as  to  the  proper  medicine,  they 
all  believed  that  some  medicine  would  be  permanently  effica- 
cious, and  few,  if  any,  of  them  imagined  that  the  patient  would 
by  mere  development  so  change  as  to  make  changes  of  treat- 
ment necessary.  The  proper  treatment  once  discovered  was  to 
be  continued  for  all  time  and  would  be  followed  by  the  desired 

results. 

(50) 


No.  2]        INTERPRETATION  OF  THE  CONSTITUTION  3 

Under  the  influence  of  this  static  conception  of  society  the 
political  philosophers  and  lawgivers  of  the  end  of  the  eighteenth 
century  had  accepted  as  a  fundamental  and  everlasting  political 
theory  the  idea  that  the  state  was  Uased  upon  a  compact  entered 
into  between  governors  and  governed.  The  governed — i.  e., 
the  mass  of  mankind — were  considered  to  have  reserved  at  the 
time  of  making  this  compact,  certain  rights  which  were  often 
spoken  of  as  natural  rights  and  of  which  they  might  not  be  de- 
prived. This  doctrine  of  natural  rights  had  for  its  corollary  the 
recognition  of  a  wide  sphere  of  individual  liberty  which  should 
be  unregulated  by  government  action.  This  corollary  ultimately 
came  to  be  known  as  the  principle  of  laissez  faire. 

It  was  in  these  conditions  and  Under  the  influence  of  these 
ideas  that  the  constitution  of  the  United  States  was  adopted. 
This  instrument  was  framed  for  communities  geographically  iso- 
lated, socially  diverse,  living  a  mo^t  simple  life  and  in  a  com- 
paratively low  stage  of  economical  development.  It  was  in- 
tended to  realize  through  actual  application  the  idea  of  a  social 
compact,  the  theory  of  natural  rights  and  the  laissez-faire 
policy.  It  was  based  finally  upon  the  fundamental  proposition 
that  man  could  by  searching  find  out  and  apply  absolute  and 
eternal  political  truth. 

The  geographical  isolation  and  social  diversity  of  the  states 
led  to  the  laying  of  great  emphasis  in  the  constitution  of  the 
United  States  upon  the  necessity  of  preserving  for  all  time  the 
same  degree  of  state  sovereignty  and  independence  as  was 
recognized  to  exist  in  the  latter  part  of  the  eighteenth  century. 
Each  state  was  secured  beyond  the  possibility  of  change  equal 
representation  in  the  Senate  while,  its  consent  was  made  neces- 
sary to  its  division  or  its  union  with  other  states.  No  serious 
attempt  was  made  to  secure  uniformity  of  law,  and  subject  to 
the  necessity  of  maintaining  a  republican  form  of  government, 
each  state  was  left  to  arrange  its  internal  organization  as  it  saw 
fit.  Indeed,  important  matters  affecting  all  the  states  were  left 
to  the  determination  of  each  state,  such  as  suffrage  and  the  method 
of  choosing  presidential  electors. 

The  social-compact,  natural-rights  and  laissez-faire  theories 
found   their   expression   in   the  enumeration  of    governmental 

(51) 


4  EFFICIENT  GOVERNMENT  [Vol.  Ill 

powers,  the  reservation  to  the  people  of  all  powers  not  granted 
to  the  government,  certain  express  denials  of  powers  of  govern- 
ment action  and  the  formulation  of  a  series  of  individual  rights 
which  the  government  was  not  permitted  to  infringe. 

Finally,  the  confidence  of  the  fathers  in  the  existence  of 
eternal  political  verities  and  the  possibility  that  fallible  humanity 
might  ascertain  and  formulate  them  is  seen  in  the  difficulty 
if  not  impossibility  of  amending  the  constitution  which  resulted 
from  the  processes  of  amendment  provided.    For  as  Dicey  says : 

The  sovereign  of  the  United  States  has  been  roused  to  serious  action 
but  once  during  the  course  of  ninety  years.  It  needed  the  thunder  of 
the  civil  war  to  break  his  repose  and  it  may  be  doubted  whether  any- 
thing short  of  impending  revolution  will  ever  again  rouse  him  into  ac- 
tivity. 

If  we  compare  with  the  conditions  which  existed  at  the  time 
the  constitution  was  adopted  those  in  which  we  are  now  living, 
what  a  contrast  at  once  presents  itself !  The  industrial  revolu- 
tion by  which  the  last  century  and  a  half  of  Western  European 
development  has  been  characterized  has  changed  the  face  of 
most  civilized  countries.  Power  machinery  with  its  attendant 
factory  system  has  so  modified  productive  processes  that  in 
almost  all  highly  developed  countries  classes  of  industrial 
workers  have  arisen  which  in  numbers  and  in  minute  differentia- 
tion of  occupation  surpass  anything  the  world's  history  has 
hitherto  exhibited.  Improved  methods  of  transportation  have 
so  facilitated  intercourse  and  so  enlarged  the  sphere  of  man's 
activity  that  what  were  once  regarded  as  insurmountable  ob- 
stacles to  communication  are  no  longer  so  considered,  and 
what  once  seemed  to  be  natural  political  boundaries  have  lost 
their  significance. 

In  other  words,  classes  have  developed  whose  relations  can- 
not be  defined  in  accordance  with  the  rubrics  of  a  once  almost 
universally  accepted  legal  lore  and  centralization  is  necessary  if 
the  political  system  is  to  be  in  accord  with  recognized  economic 
facts.  Just  as  once  the  privilege  of  the  baron  fell  before 
the  rights  of  the  merchant,  and  local  law  gave  way  to  national 
law,  so  at  the  present  time  the  rights  of  labor  are  being  em- 

(52) 


No.  2]        INTERPRETATION  OF  THE  CONSTITUTION  5 

phasized  at  the  expense  of  the  employer  and  a  political  organi- 
zation based  on  more  or  less  local  isolation  is  being  forced 
to  succumb  to  the  needs  of  an  economic  system  founded  upon 
more  general  intercommunication. 

This  development  has  not  failed  to  exercise  an  effect  on  the 
United  States.  The  improvement  in  the  means  of  transporta- 
tion has,  for  example,  been  most  marked  on  this  side  of  the 
water.  The  digging  of  waterways,  the  building  of  railways, 
and  the  spread  of  the  telegraph  and  telephone  have  caused  the 
geographical  isolation  of  the  once  separated  states  to  disappear. 
The  development  of  American  industry  and  commerce,  not- 
withstanding the  acquisition  of  the  fertile  fields  of  the  West 
and  the  attendant  agricultural  development,  has  caused  the 
former  overwhelmingly  predominant  rural  character  of  the 
population  to  disappear.  The  gradual  spread  of  the  English 
language  has  brought  about  an  almost  complete  unity  of  speech 
while  the  greatly  diminished  influence  of  religious  differences 
taken  together  with  the  complete  separation  of  church  and  state 
has  prevented  the  centrifugal  force  of  creeds  from  making 
itself  felt. 

Finally  it  is  to  be  noticed  that  the  intellectual  attitude  of  what 
are  usually  considered  the  more  intelligent  classes  is  quite  dif- 
ferent from  that  which  was  noticeable  in  the  latter  part  of  the 
eighteenth  century.  The  formulation  of  the  evolutionary  theory 
of  development  in  the  world  of  science  has  not  failed  to  have  its 
influence  on  political  thought.  Students  of  politics  are  coming 
more  and  more  to  the  conviction  that  a  static  society  is  impos- 
sible and  that  absolute  political  theories  are  incapable  of  appli- 
cation in  the  changing  conditions  which  have  become  so  notice- 
able since  scientific  methods  have  been  applied  to  the  conduct 
of  life.  More  and  more  political  thinkers  and  social  students 
are  recognizing  that  a  policy  of  intelligent  opportunism  is  the 
policy  most  likely  to  be  followed  by  desirable  results  and  that 
adherence  to  general  theories  which  are  to  be  applied  at  all 
times  and  under  all  conditions  is  productive  of  harm  rather  than 
good. 

This  common  attitude  of  skepticism  with  regard  to  the  de- 
sirability of  attempting  to  postulate  fundamental  political  prin- 

.  (53) 

1   * 


6  EFFICIENT  GOVERNMENT  [Vol.  Ill 

ciples  of  universal  application  has  naturally  caused  questions  to 
be  raised  as  to  the  applicability  under  present  conditions  of  the 
two  great  theories  so  commonly  accepted  at  the  end  of  the 
eighteenth  century,  viz.,  the  theories  of  the  social  compact  and 
of  natural  rights.  Furthermore,  the  discovery  that  through  the 
application  of  scientific  methods  man  has  a  much  greater  influ- 
ence over  his  environment  than  was  formerly  regarded  as  pos- 
sible has  opened  the  way  to  so  many  apparently  effective 
methods  of  governmental  regulation  that  a  serious  blow  has 
been  dealt  to  the  laissez-faire  theory. 

The  question  which  has  been  chosen  for  discussion  this  morn- 
ing is:  Can  a  practically  unamendable  constitution,  adopted  in 
the  conditions  and  under  the  influences  of  the  political  thought 
prevailing  at  the  end  of  the  eighteenth  century,  be  adapted  by 
judicial  interpretation  to  the  needs  and  thought  of  the  twentieth 
century  without  causing  us  to  lose  the  advantages  which  are 
commonly  regarded  as  attached  to  a  written  constitution?  Be- 
fore the  attempt  is  made  to  answer  this  question  attention  must 
be  called  to  two  things. 

In  the  first  place,  it  is  now  an  accepted  doctrine  of  American 
constitutional  law  that  it  is  both  the  right  and  the  duty  of  the 
courts  to  declare  in  cases  which  come  before  them  in  the  ordi- 
nary exercise  of  their  jurisdiction  that  any  act  of  the  legislature 
is  unconstitutional  which  clearly  violates  a  provision  of  the  con- 
stitution. It  would  be  unprofitable  for  us  to  enter  upon  the 
discussion  of  the  question  which  has  recently  been  made  the 
subject  of  considerable  debate,  whether  the  courts  in  exercising 
this  power  have  been  guilty  or  not  of  usurpation.  However 
this  may  be,  it  is  difficult  to  imagine  that  the  federal  courts  at 
this  day  will  relinquish  the  exercise  of  a  power  whose  existence 
has  been  recognized  so  long,  except  as  the  result  of  some  sort 
of  personal  pressure  brought  to  bear  upon  the  judges  which  will 
diminish  greatly  the  independence  they  now  enjoy.  It  is  com- 
monly believed  that  the  judges  of  the  United  States  courts  may 
constitutionally  be  removed  only  through  the  process  of  im- 
peachment, which  as  provided  for  in  the  constitution  is  not  a 
method  of  removal  adapted  for  use  in  influencing  judicial  de- 
cisions on  constitutional  questions.     The  constitution,  however, 

(54) 


No.  2]        INTERPRETATION  OF  THE  CONSTITUTION  y 

has  no  word  to  say  as  to  the  impeachment  of  judges  as  judges. 
It  is  only  as  civil  officers  of  the  United  States  that  they  have 
been  made  subject  to  this  process  of  removal  from  office.  The 
constitution  does,  however,  contain  a  specific  and  express  pro- 
vision with  regard  to  the  tenure  of  judges.  It  says  that  they 
shall  hold  their  office  during  good  behavior.  It  does  not  define 
good  behavior  nor  does  it  provide  a  method,  outside  of  the 
method  of  impeachment  applicable  to  all  civil  officers,  for  de- 
termining when  a  judge  is  guilty  of  misbehavior.  It  has  been 
claimed  more  than  once  in  Congress  that  it  is  within  the  power 
of  the  legislative  authority  of  the  United  States  by  law  to  define 
what  is  misbehavior  and  to  provide  a  method  by  which  misbe- 
havior may  be  ascertained  which  is  less  cumbersome  than  the 
present  method  of  impeachment.  Until  such  action  is  taken,  it 
is  naturally  impossible  to  say  what  would  be  the  decision  of  the 
Suprem.e  Court  as  to  its  propriety.  If,  however,  such  action 
were  regarded  as  constitutional  it  would  be  possible  for  Con- 
gress through  the  exercise  of  a  power  of  removal  similar  to  that 
now  possessed  by  the  legislature  of  Massachusetts  over  the 
judges  of  that  state  to  bring  a  pressure  to  bear  upon  the  judges 
of  the  federal  courts  which  would  have  an  important  influence 
on  the  judicial  interpretation  of  the  constitution. 

In  the  second  place,  it  is  to  be  noted  that  the  doctrines  of  the 
social  compact  and  of  natural  rights  while  regarded  as  truths 
were  not  actually  made  a  part  of  our  constitutional  law  except 
in  so  far  as  specific  rights  conceived  of  as  natural  rights  were 
incorporated  into  the  constitution  and  were  thus  accorded 
judicial  protection.  At  the  same  time  the  tendency  of  our 
courts  has  been  to  read  into  such  general  provisions  as  that 
preventing  the  government  from  depriving  a  person  of  life, 
liberty,  or  property  without  due  process  of  law,  quite  a  number 
of  natural-rights  ideas,  and  to  endeavor,  in  their  efforts  to  deny 
the  right  of  the  government  to  exercise  particular  powers,  to 
obtain  aid  and  comfort  from  the  theory  of  laissez  faire.  A 
good  example  of  such  action  is  to  be  found  in  an  opinion 
of  the  supreme  court  of  Missouri  which  said  in  declaring 
unconstitutional  a  law  levying  a  progressive  inheritance  tax  to 
provide  scholarships  for  indigent  students  at  the  state  university  : 

(55) 


8  EFFICIENT  GOVERNMENT  [Vol.  Ill 

Paternalism,  whether  state  or  federal,  as  the  derivation  of  the  term 
implies ,  is  an  assumption  by  the  government  of  a  quasi-fatherly  relation 
to  the  citizen  and  his  family,  involving  excessive  governmental  regula- 
tion of  the  private  affairs  and  business  methods  and  interests  of  the 
people,  upon  the  theory  that  the  people  are  incapable  of  managing  their 
own  affairs,  and  is  pernicious  in  its  tendencies.  In  a  word,  it  min- 
imizes the  citizen  and  maximizes  the  government.  Our  federal  and 
state  governments  are  founded  upon  a  principle  wholly  antagonistic  to 
such  a  doctrine.  Our  fathers  believed  the  people  of  these  free  and  in- 
dependent states  were  capable  of  self-government ;  a  system  in  which 
the  people  are  the  sovereigns  and  the  government  their  creature  to  carry 
out  their  commands.  Such  a  government  is  founded  on  the  willingness 
and  right  of  the  people  to  take  care  of  their  own  affairs  and  an  indis- 
position to  look  to  the  government  for  everything.  The  citizen  is  the 
unit.  It  is  his  province  to  support  the  government  and  not  the  gov- 
ernment's to  support  him.  Under  self-government  we  have  advanced 
in  all  the  elements  of  a  great  people  more  rapidly  than  any  nation  that 
has  ever  existed  upon  the  earth,  and  there  is  greater  need  now  than  ever 
before  in  our  history  of  adhering  to  it.  Paternalism  is  a  plant  which 
should  receive  no  nourishment  upon  the  soil  of  Missouri. 

In  a  way,  therefore,  it  may  be  said  that  the  political  thought 
prevalent  at  the  end  of  the  eighteenth  century  has  been  read 
into  our  constitution  by  the  courts.  But  unless  we  consider  the 
doctrine  of  stare  decisis  just  as  controlling  in  constitutional 
as  in  other  cases  it  may  not  be  said  of  our  constitutions  and 
particularly  of  the  United  States  constitution  that  they  adopted 
as  a  permanent  guide  for  future  action  any  of  the  theories 
which  have  been  mentioned.  It  is  only  because  of  judicial 
interpretation  that  they  have  legal  force.  By  a  further  process 
of  judicial  interpretation  they  may  lose  their  authority. 

So  far  as  concerns  the  effect  of  the  laissez-faire  theory 
on  the  judicial  interpretation  of  the  constitution,  even  the  ap- 
plication of  the  doctrine  of  stare  decisis  to  constitutional  cases 
will  not  interfere  with  a  considerable  enlargement  of  the  powers 
of  the  federal  government.  In  a  number  of  instances,  among 
which  the  attempted  exercise  of  the  power  to  regulate  com- 
merce is  perhaps  the  most  marked,  the  federal  courts  through 
the  denial  of  the  propriety  of  the  exercise  of  state  powers  laid 
the   basis  for  the   exercise  of  federal  power.     However  they 

(S6) 


No.  2]        INTERPRETATION  OF  THE  CONSTITUTION  9 

may  have  been  influenced  in  their  decisions  by  the  laissez-faire 
theory,  their  actual  decisions  recognized  the  existence  of  federal 
power.  For  state  power  was  denied  because  the  power  at- 
tempted to  be  exercised  had  been  conferred  by  the  constitution 
upon  the  federal  government.  When  in  the  course  of  our 
economic  development  it  came  to  be  believed  that  Congress 
should  take  positive  action,  the  decisions  denying  state  power 
were  thus  at  the  same  time  precedents  in  favor  of  the  propriety 
of  federal  action.  On  the  other  hand,  not  all  the  decisions 
recognizing  that  state  action  was  proper  may  be  regarded 
as  precedents  in  favor  of  the  proposition  that  Congress  is  with- 
out jurisdiction.  For  through  the  adoption  of  the  rule  that 
state  action  is  in  many  cases  proper  only  because  the  federal 
government  has  not  acted,  the  question  as  to  the  propriety 
of  federal  action  is  left  open  for  determination,  to  be  influenced 
if  not  controlled  by  the  conditions  existing  at  the  time  the 
determination  is  made. 

In  the  discussion  of  the  possibility  by  judicial  interpretation 
of  adapting  the  constitution  to  changing  economic  and  social 
needs  we  must  then  remember :  first,  that  it  has  not  been  as 
yet  determined  how  much  pressure  may  constitutionally  be 
brought  by  Congress  upon  the  federal  judiciary  to  interpret 
the  constitution  in  the  way  desired  by  Congress;  and  second, 
that  our  constitution  has  been  made  by  past  judicial  interpreta- 
tion to  take  on  a  meaning  which  is  not  necessarily  the  only 
meaning  which  may  be  given  to  it.  Finally,  attention  should 
be  called  to  the  fact  that  the  present  interpretation  which  is 
popularly  given  to  the  constitution  is  in  many  cases  a  political 
rather  than  a  judicial  interpretation.  Political  parties  as  well 
as  courts  have  been  influenced  by  the  political  and  economic 
theories  of  the  eighteenth  and  early  nineteenth  centuries. 
Under  their  influence  Congress  has  not  even  considered  the 
question  whether  it  may  exercise  powers  which  a  careful  study 
of  the  constitution  might  reveal  that  Congress  possessed.  An 
historical  tradition  with  regard  to  the  constitution  has  sprung 
up  which  finds  its  basis  in  political  expediency  rather  than  in 
constitutional  power.  For  example.  Congress  has  only  just 
begun  to  exercise  its  power  to  regulate  commerce  among  the 

(57) 


lO  EFFICIENT  GOVERNMENT  [Vol.  Ill 

several  states.  What  the  limits  of  that  power  are  no  one  can 
with  safety  say,  but  that  they  transcend  those  assigned  to  that 
power  by  the  accepted  political  interpretation  would  be  denied 
by  few  who  have  made  a  careful  study  of  the  constitution 
itself.  Now  this  political  interpretation  of  the  constitution  may 
easily  change.  It  is  not  in  any  way  influenced  by  the  doctrine 
of  stare  decisis.  For  Congress  is  not  bound  by  the  decisions 
of  its  predecessors  even  on  constitutional  questions. 

If,  however,  we  leave  out  of  consideration  the  possibility  that 
Congress  may  diminish  the  independence  of  the  federal  judi- 
ciary, if  we  put  out  of  our  minds  the  expectation  that  the 
courts  will  adopt  any  new  method  of  constitutional  interpreta- 
tion, and  if  we  confine  ourselves  to  the  consideration  of  the 
present  judicial  interpretation  of  the  constitution,  how  shall  we 
answer  the  question?  In  other  words,  are  the  courts  through 
their  powers  of  interpretation  at  the  present  time  adapting  the 
constitution  to  changing  economic  and  social  conditions? 

To  answer  this  question  adequately  would  of  necessity  in- 
volve an  exhaustive  examination  of  almost  our  entire  constitu- 
tional law  from  the  point  of  view  of  its  historical  development. 
Such  an  examination  would,  however,  be  both  impossible  and 
out  of  place  on  this  occasion.  Resort  to  some  other  less  thor- 
ough and  less  satisfactory  method  is  thus  unavoidable.  It 
might  be  suggested  that  citations  from  opinions  might  be  made 
which  would  show  the  attitude  of  the  Supreme  Court  with 
regard  to  the  constitution.  But  any  citations  which  might  be 
made  as  indicative  of  the  attitude  of  the  court,  in  addition  to 
lacking  the  authority  of  judicial  decision,  might  be  met  by  other 
citations  taking  the  opposite  point  of  view.  For  in  the  century 
and  a  quarter  of  its  history  the  Supreme  Court  has  been  subject 
to  a  variety  of  influences  and  has  inevitably  expressed  conflict- 
ing opinions. 

The  only  method  which  is  applicable  on  this  occasion  would 
seem  to  be  to  consider  certain  important  lines  of  decisions  in 
the  hope  of  finding  from  a  consideration  of  the  law  developed 
by  them  an  answer  to  the  question  which  has  been  propounded. 

Let  us  take  in  the  first  place  the  decisions  which  have  dealt 
with   the   powers  of   the  federal   government  and   particularly 

'58) 


No.  2]        INTERPRETATION  OF  THE  CONSTITUTION  \  i 

those  having  to  do  with  navigation  and  commerce.  The  con- 
stitution does  not  treat  of  navigation  apart  from  commerce 
except  in  so  far  as  it  confers  admiralty  and  maritime  jurisdic- 
tion upon  the  federal  courts.  In  the  early  days  when  local 
differentiation  made  state  independence  more  important  than  at 
present — for  state  lines  now  bear  little  relation  to  our  economic 
system — the  court  was  inclined  to  distinguish  intrastate  from 
interstate  navigation,  and  to  recognize  a  very  narrow  admiralty 
jurisdiction  based  upon  British  precedents.  At  the  present 
time,  however,  the  distinction  between  a  navigation  subject  to 
state  and  one  subject  to  federal  regulation  has  practically  ceased 
to  exist,  and  an  admiralty  jurisdiction  suited  to  the  geographi- 
cal conditions  of  the  North  American  continent  has  been 
developed  out  of  that  which  originated  in  such  different  con- 
ditions as  were  presented  by  Great  Britain. 

The  way  in  which  this  result  was  reached  is  interesting  as 
evidencing  the  methods  of  judicial  interpretation  through  whose 
application  the  constitution  has  in  this  particular  been  adapted 
to  new  social  and  economic  conditions.  Originally  the  Supreme 
Court  was  of  the  opinion  that  the  admiralty  and  maritime  juris- 
diction intended  to  be  conferred  upon  the  federal  courts  was 
geographically  limited  to  waters  affected  by  the  ebb  and  flow 
of  the  tide.  The  case  which  laid  down  this  rule  was  decided 
at  a  time  when  navigation  on  the  Great  Lakes  and  western 
rivers  had  not  developed  to  an  important  extent.  Later  on 
Congress  by  statute  extended  the  jurisdiction  to  the  Great 
Lakes  and  the  Supreme  Court  declared  the  statute  constitu- 
tional. Still  later  the  Supreme  Court  without  any  action  by 
Congress  extended  the  admiralty  jurisdiction  to  all  the  import- 
ant western  rivers  and  finally  based  on  the  admiralty  clause, 
which  merely  gives  power  to  the  courts,  the  power  of  Congress 
to  regulate  the  operations  of  all  vessels  on  navigable  waters 
regardless  of  the  fact  that  they  may  not  be  engaged  in  com- 
merce. 

Somewhat  similar  has  been  the  judicial  interpretation  of  the 
constitutional  power  of  Congress  to  regulate  commerce  on  land. 
While  the  Supreme  Court  has  based  the  power  of  Congress  to 
regulate  navigation  in  large  degree  on  a  clause  in  the  constitu- 

(59) 


12  EFFICIENT  GOVERNMENT  [Vol.  Ill 

tion  which  merely  gave  the  courts  the  power  to  fix  the  sub- 
stantive law  of  admiralty,  in  the  case  of  commerce  by  land  the 
Supreme  Court  has  based  the  power  of  Congress  to  regulate 
part  at  any  rate  of  the  substantive  law  of  master  and  servant 
upon  the  power  given  in  the  constitution  to  Congress  to  regu- 
late commerce  among  the  several  states.  The  safety-appliance 
and  the  employer's-liability  cases  have  thus  recognized  that 
Congress  in  cases  involving  interstate  commerce  may  modify 
the  assumption-of-risk  and  the  contributory-negligence  doc- 
trines of  the  common  law. 

Another  instance  of  the  adaptation  by  judicial  interpretation 
of  the  constitution  to  changing  social  and  economic  conditions 
is  to  be  seen  in  the  lottery  and  pure-food-law  cases  which  have 
recognized  that  Congress  through  the  exercise  of  its  commerce 
power  may  take  the  privilege  of  engaging  in  interstate  com- 
merce from  articles,  commerce  in  which  is  in  the  opinion  of 
Congress  either  productive  of  immorality  or  liable  to  endanger 
the  public  health.  This  result  has  been  reached  although  it  is 
recognized  that  Congress  is  not  by  the  constitution  the  guardian 
of  either  the  public  morals  or  the  public  health. 

The  Supreme  Court  has  in  the  second  place  expressed  its 
belief  that  such  general  provisions  of  the  constitution  as  that 
contained  in  the  fourteenth  amendment  prohibiting  a  state 
from  depriving  any  person  of  life,  liberty,  or  property  without 
due  process  of  law,  are  to  be  interpreted  in  view  of  local  condi- 
tions. Thus  it  has  been  held  that,  in  the  conditions  existing  in 
New  England  where  manufacturing  is  of  great  importance,  the 
power  of  eminent  domain  may  be  used  in  order  to  take  prop- 
erty for  the  purposes  of  a  dam  used  by  a  private  manufacturing 
company.  In  the  mountainous  regions  of  the  West  it  has  been 
held  proper  to  make  use  of  the  same  power  to  take  property 
for  the  purposes  of  an  aerial  railway  used  only  by  a  private 
mining  company.  Finally,  in  the  arid  regions  of  the  Pacific 
States  it  is  regarded  as  constitutional  to  make  use  of  both  the 
taxing  power  and  the  power  of  eminent  domain  to  further  the 
irrigation  of  privately  owned  lands. 

Indeed  it  may  be  said  in  a  general  way  that  the  judicial 
interpretation  which  has  already  been  given  to  the  constitution 

(60) 


No.  2]        INTERPRETATION  OF  THE  CONSTITUTION  13 

has  shown  itself  capable  of  adapting  that  instrument  to  most  of 
the  varied  geographical  conditions  which  exist  in  a  continent 
as  diversified  as  is  North  America  and  to  permit  of  the  most 
advantageous  development  of  its  economic  resources. 

It  is  true  that  as  yet  the  Supreme  Court  has  not  through  the 
judicial  interpretation  of  the  constitution  adapted  it  so  fully  to 
the  changes  in  economic  and  social  conditions  which  have  been 
due  to  the  industrial  revolution  of  the  last  one  hundred  and 
fifty  years.  American  courts  rather  generally,  and  the  Supreme 
Court  to  a  certain  but  after  all  on  the  whole  rather  small  exLent, 
have  not  been  able  to  divest  themselves  of  the  idea  that  legal 
liberty  is  the  only  liberty  which  is  protected  by  the  constitution 
and  have  sometimes  forgotten  that  legal  liberty  in  the  absence 
of  economic  liberty  is  a  shadow  without  substance,  under  which 
there  is  little  if  any  protection  from  the  burning  heat  of  eco- 
nomic struggle. 

A  case  in  Pennsylvania  has  thus  laid  down  the  proposition 
that  an  employer  is  denied  his  constitutional  right  to  the  pursuit 
of  happiness  by  a  law  which  requires  him  to  pay  his  employes 
once  in  two  weeks.  In  the  volume  of  the  digest  in  which  this 
case  is  mentioned  the  very  next  case  referred  is  to  the  effect  that 
one  is  not  denied  the  right  to  the  pursuit  of  happiness  by  a  law 
forbidding  the  smoking  of  opium.  The  immediate  juxtaposi- 
tion of  these  two  cases  is  interesting  as  emphasizing  the  tendency 
of  American  courts  to  recognize  that  while  individual  rights  are 
not  violated  by  laws  regulating  conduct  regarded  as  inconsistent 
with  prevailing  ethical  views,  they  are  infringed  by  any  attempt 
to  protect  the  classes  weaker  in  economic  power  by  diminishing 
their  sphere  of  legal  liberty. 

It  must  be  admitted,  however,  that  the  Supreme  Court  has 
not  as  yet,  largely  because  of  a  defect  in  our  appellate  pro- 
cedure, been  in  a  position  to  express  itself  upon  some  of  the 
most  important  phases  of  the  liberty  guaranteed  to  the  indi- 
vidual by  the  constitution.  But  in  most  of  the  cases  which  have 
come  before  it  where  it  was  possible  to  prove  that  legal  liberty 
must  be  curtailed  in  the  interest  of  health  and  safety  its  de- 
cisions have  recognized  that  under  the  economic  conditions  in 
which  we  live  the  liberty  which  we  may  have  is  much  less  than 

(61) 


J 4  EFFICIENT  GOVERNMENT  [Vol.  Ill 

would  have  been  recognized  a  century  ago  as  our  due.  It  may- 
be added  also  that  in  a  number  of  cases  the  Supreme  Court  has 
expressed  itself  in  such  a  way  as  to  show  clearly  that  it  is  aware 
that  the  economic  liberty  of  vast  classes  of  persons  at  the  present 
time  has  been  so  curtailed  that  the  sphere  of  legal  liberty  for 
which  the  advocates  of  a  laissez-faire  policy  contend  must  also 
be  seriously  curtailed  if  we  are  to  protect  the  economically 
weak  from  their  own  really  involuntary  acts.  Thus  in  the  case 
of  sailors  the  court  has  held  constitutional  an  act  of  Congress 
prohibiting  under  a  penalty  any  payment  of  wages  in  advance, 
and  in  the  case  of  miners  has  upheld  state  statutes  which  have 
regulated  the  method  of  paying  employes  by  providing  for  the 
cashing  of  coal  orders  when  presented  to  their  employers,  and 
for  the  weighing  of  coal  without  screening  where  miners  are 
paid  by  the  weight  of  coal.  In  one  of  these  cases  the  court  re- 
fers to  the  necessity  of  protecting  the  sailor  against  his  own  im- 
providence, and  in  another  cites  with  apparent  approval  from 
the  decision  of  the  state  court  appealed  from  where  it  is  said : 

The  legislature  evidently  deemed  the  laborer  at  some  disadvantage 
under  existing  laws  and  customs,  and  by  this  act  undertook  to  amelio- 
rate his  condition  in  some  measure  by  enabling  him  or  his  bona  fide 
transferee,  at  his  election  and  at  a  proper  time  to  demand  and  receive 
his  unpaid  wages  in  money  rather  than  in  something  less  valuable.  Its 
tendency,  though  slight  it  may  be,  is  to  place  the  employer  and 
employe  on  equal  ground,  and,  so  far  as  it  accomplishes  that  end,  is 
commendable. 

It  is,  of  course,  true  that  a  very  few  of  the  decisions  of  the 
Supreme  Court  have  been  a  grevious  disappointment  to  some  of 
the  most  ardent  advocates  of  social  reform,  but  it  is  to  be 
remembered  that  these  decisions  were  usually  made  by  a  divided 
court,  that  the  personnel  of  the  court  is  seldom  the  same  for  a 
very  long  period,  that  its  members  are  appointed  by  an  officer 
who  is  being  brought  day  by  day  closer  to  the  people  and 
finally,  that  the  Supreme  Court  has  been  known  to  reverse 
its  opinions,  and  is  not  impervious  to  criticisms  and  to  public 
demands. 

There  would  seem  therefore  to  be  really  no  serious  danger 

(62) 


No.  2]        INTERPRETATION  OF  THE  CONSTITUTION  15 

that  judicial  interpretation  as  seen  in  the  long  series  of  decisions- 
of  the  Supreme  Court  is  unable  to  adapt  our  practically  un- 
amendable  constitution  to  changing  economic  and  social  condi- 
tions. If  this  may  not  be  said  of  all  the  state  courts  our  remedy 
is  close  at  hand  and  may  be  applied  without  abandoning  the 
traditions  of  the  past. 

If  state  courts  are,  because  of  their  adherence  to  precedent, 
unable  or  unwilling  to  adapt  the  provisions  of  state  constitu- 
tions to  changes  in  economic  conditions,  we  may  amend  the 
state  constitutions.  Whether  that  is  done  by  the  ordinary 
methods  of  constitutional  amendment  or  by  the  method  which 
has  come  to  be  spoken  of  as  "  the  recall  of  judicial  decisions  " 
is  quite  immaterial  from  the  viewpoint  of  the  question  under 
consideration.  If  we  regard  the  "  recall  of  judicial  decisions  " 
with  suspicion  and  at  the  same  time  consider  the  present  method 
of  constitutional  amendment  as  too  difficult,  too  slow,  or  too 
cumbersome,  it  is  a  comparatively  easy  matter  to  adopt  an 
easier,  quicker,  and  more  simple  method.  The  various  methods 
of  amendment  provided  by  different  state  constitutions  offer 
us  a  choice  of  methods  wide  enough  to  suit  almost  any  taste. 

If  when  our  state  constitutions  are  so  amended  as  to  make  it 
possible  for  the  state  courts  to  bring  their  decisions  into  accord 
with  existing  economic  conditions,  those  courts  still  persist 
in  rendering  decisions  with  regard  to  the  constitutionality  of 
state  laws  from  the  viewpoint  of  the  constitution  of  the  United 
States  which  are  not  in  accord  with  the  decisions  of  the  United 
States  Supreme  Court — in  other  words,  if  the  state  courts  refuse 
to  recognize  the  Supreme  Court  as  the  final  arbiter  as  to  the 
meaning  of  the  United  States  constitution — we  should  urge 
upon  Congress  the  necessity  of  passing  the  bill  introduced 
at  its  last  session  providing  for  an  appeal  to  the  Supreme  Court 
from  the  decisions  of  the  state  courts  on  federal  questions  as 
well  in  cases  in  which  state  laws  have  been  held  unconstitu- 
tional from  the  point  of  view  of  the  federal  constitution  as 
in  those  cases  in  which  they  have  been  held  constitutional.  If 
that  were  done,  the  final  judicial  interpretation  of  the  United 
States  constitution  would  in  all  cases  be  made  by  that  court 
which,  whether  because  of  the  method  of  appointing  its  mem- 

(63) 


J  5  EFFICIENT  GO  VERNMENT 

bers,  or  because  of  the  wide  public  experience  which  most 
of  them  have  had,  or  because  chey  come  from  widely  different 
and  differing  parts  of  the  coimtry,  has  shown  greater  capacity 
than  perhaps  any  other  judicial  body  to  treat  the  constitution  of 
the  United  States  as  an  instrument,  to  use  the  words  of  its 
judges,  "  made  for  an  undefined  and  expanding  future  and  for 
a  people  gathered  and  to  be  gathered  from  many  nations  and 
of  many  tongues,"  as  an  instrument  whose  "  unchanging  pro- 
visions are  adaptable  to  the  infinite  variety  of  the  changing 
conditions  of  our  national  life." 

(64) 


THE   AMENDMENT   OF   THE    FEDERAL 
CONSTITUTION ' 

J.    DAVID    THOMPSON 
Law  Librarian,  Columbia  University 

THE  subject  of  our  discussion  to-day  is  the  adaptation  of 
written  constitutions  to  changing  economic  and  social 
conditions.  One  method  of  such  adaptation,  namely, 
by  judicial  interpretation  of  existing  provisions,  has  been  treated 
by  the  previous  speaker.  It  is  my  purpose  to  consider  a  dif- 
ferent method — alteration  by  the  process  of  formal  amend- 
ment, in  the  particular  case  of  the  Federal  Constitution.  I  am 
not,  however,  concerned  with  desirable  changes  in  the  substan- 
tive part  of  the  constitution,  but  I  wish  to  direct  attention  to  the 
procedure  for  making  such  changes — to  the  amending  clause 
itself. 

When  the  members  of  the  Federal  Convention  of  1787  had 
to  consider  what  provision  should  be  made  for  remedying 
defects  in  their  work  which  they  expected  time  and  experi- 
ence to  reveal,  there  were  practically  no  models  or  precedents 
to  guide  them.  The  state  constitutions  offered  little  that  was 
suggestive.  The  Articles  of  Confederation  were  virtually  un- 
amendable,  requiring  agreement  in  Congress  and  confirmation 
by  the  legislatures  of  every  state  in  the  Union ; '  in  fact,  it  was 
this  very  condition  that  made  necessary  the  calling  of  a  conven- 
tion and  the  adoption  of  the  new  constitution  by  revolutionary 
methods. 

The  delegates  to  the  Federal  Convention  had,  therefore, 
to  find  a  solution  to  a  new  problem  and  the  account  of  the  de- 
bates in  Madison's  journal  shows  plainly  their  uncertainty  as  to 
the  form  it  should  take.      Randolph's  resolution  on  this  subject, 

'  Read  at  the  meeting  of  the  Academy  of  Political  Science,  Oct.  26,  191 2. 

*Art.  xiii.  It  is  interesting  to  note,  however,  that  Franklin's  draft  of  articles  of 
confederation  (1775)  required  amendments  submitted  by  Congress  to  be  approved 
by  a  majority  of  the  colony  assemblies.     Cf.  Watson,  Constitution,  pp.  1302- 1303. 

(65) 


1 8  EFFICIENT  GOVERNMENT  [Vol.111 

as  adopted,  merely  expressed  the  sense  of  the  convention  that 
amendments  should  be  made  whenever  necessary,  the  original 
qualification,  "  without  requiring  the  consent  of  the  national 
legislature,"  having  been  dropped.  We  are  told,  however,  that 
"  several  members  did  not  see  the  necessity  of  the  resolution  at 
all."  ^  The  Pinckney  plan  provided  for  the  calling  of  a  conven- 
tion on  application  of  two-thirds  of  the  state  legislatures  and  for 
the  proposal  of  amendments  by  Congress  on  a  two-thirds  vote 
in  each  house,  ratification  in  either  case  requiring  the  agree- 
ment of  two-thirds  of  the  state  legislatures."  The  committee  of 
detail,  to  which  these  two  drafts  were  referred,  reported  a  rather 
indefinite  clause.  It  merely  provided  that  on  the  application  of 
the  legislatures  of  two-thirds  of  the  states  for  an  amendment 
Congress  should  call  a  convention  for  that  purpose.^  This  was 
agreed  to,  but  on  the  motion  to  reconsider  was  criticized  by 
Gerry,  on  the  ground  that  it  left  the  state  governments  at 
the  mercy  of  a  majority  of  the  convention ;  by  Hamilton, 
because  it  was  inadequate  in  not  providing  for  the  proposal  of 
amendments  by  Congress,  which  he  said  would  be  the  first  to 
perceive,  and  would  be  most  sensible  to,  the  necessity  for  them  ; 
by  Madison,  on  the  ground  of  its  vagueness.  To  meet  these 
objections,  the  amendment  offered  by  Sherman  gave  Congress 
the  power  to  propose  amendments  without  any  proviso  for  a 
two-thirds  majority  but  required  the  consent  of  all  the  states  for 
ratification.  As  this  repeated  the  mistake  made  in  the  Articles 
of  Confederation  Wilson  of  Pennsylvania  proposed  to  cut 
down  the  requirement  for  ratification  to  two-thirds  of  the  states, 
but  this  motion  was  lost  by  a  vote  of  six  to  five.  Then  a  com- 
promise was  effected  on  the  present  basis  of  three-fourths.  At 
this  stage  Madison  proposed  and  Hamilton  seconded  a  substi- 
tute clause  differing  only  from  that  which  was  finally  adopted  in 
providing  that  the  application  of  two-thirds  of  the  legislatures 
should  be  mandatory  to  Congress  for  the  proposal  of  amend- 
ments instead  of  for  calling  a  convention,  and  this  was  adopted 

'  Elliofs  Debates,  vol.  5,  pp.  128,  157,  182. 

^  Ibid.  vol.  5,  pp.  132. 

^  Ibid.  vol.  5,  pp.  381,  498. 

(66) 


No.  2]       THE  AMENDMENT  OF  THE  CONSTITUTION  19 

by  nine  to  one.'  In  this  form  it  went  to  the  committee  on 
style  and  arrangement,  and  was  reported  with  only  slight  verbal 
change.  In  the  further  discussion  the  proposed  clause  was  crit- 
icized on  the  ground  that  the  ameijdatory  power  was  left  too  ex- 
clusively to  Congress,  and  the  provision  for  a  convention  was 
accordingly  inserted.  Subsequent  motions  to  require  ratification 
by  all  the  states,  to  strike  out  the  alternative  provision  for  ratifi- 
cation by  conventions,  and  to  provide  for  a  second  general  con- 
vention were  negatived,  and  the  construction  of  the  present 
unwieldy  and  cumbersome  machinery  was  complete." 

The  few  references  to  this  clause  in  the  state  conventions 
which  followed,  particularly  the  remarks  of  Mr.  Iredell  in  North 
Carolina,  show  clearly  that  it  was  the  expectation  of  the  framers 
that  the  procedure  provided  would  be  found  easily  workable 
when  the  need  arose.3  On  the  contrary  it  has  proved,  as  is  well 
known,  to  be  an  almost  insurmountable  obstacle  in  the  way  of 
securing  either  the  proposal  or  the  adoption  of  amendments  very 
widely  approved  by  the  people. 

The  first  ten  amendmiCnts,  known  as  the  bill  of  rights,  were 
rather  additions  to  the  constitution  than  alterations  of  it.  They 
were  really  initiated  by  the  state  conventions,  being  practically 
the  conditions  precedent  to  ratification.  The  operation  of  the 
machinery,  therefore,  presented  no  difficulty  in  this  case.  The 
time  required  to  make  them  part  of  the  constitution  was  one  year 
and  eight  months  from  the  time  of  proposal  by  Congress.* 

The  eleventh  amendment,  which  arose  from  a  difficulty  cre- 
ated by  a  judicial  decision  (Chisholm  v.  Georgia,)  was  of  minor 
interest,  and  was  not  ratified  by  the  necessary  number  of  states 
until  three  years  and  eight  months  after  it  was  submitted.* 

The  twelfth  amendment,  providing  for  a  change  in  the  polit- 
ical machinery  for  the  election  of  president,  arising  out  of  the 
contest  between  Jefferson  and  Burr,  and  being  urgent  because  a 
new  election  was  approaching,  was  ratified  in  ten  months.s 

^  Elliofs  Debates,  vol.  5,  pp.  530-532.  *  Ibid.  pp.  551-553. 

^  Ibid.  vol.  4,  p.  176.     See  also  Federalist,  no.  85. 
*  Watson,  Constitution,  vol.  2,  p.  131 1. 

^Ames,    H.  V.,  Proposed  amendments  to  the  constitution,   Ann.  Rep.  Am.  Hist. 
Assoc,  1896,  vol.  2,  p.  79. 

(67) 


20  EFFICIENT  GOVERNMENT  [Vol.  Ill 

Then  followed  a  period  of  over  half  a  century,  during  which 
were  introduced  upward  of  four  hundred  amendments  covering 
a  wide  field  of  subjects.  Six  of  these  were  passed  by  the  requi- 
site two-thirds  vote  in  only  one  house  of  Congress ;  one  relating 
to  titles  of  nobility  was  submitted  to  the  state  legislatures  and 
lacked  only  the  vote  of  ofle  state  of  being  adopted.' 

It  was  not,  however,  until  the  sixties,  when  fundamental  eco- 
nomic difficulties  had  to  be  met,  that  the  real  test  came  and  the 
vital  weakness  of  the  constitution  in  its  procedure  for  amend- 
ment was  demonstrated.  The  civil  war  followed,  and  after  its 
conclusion  the  thirteenth,  fourteenth  and  fifteenth  amendments, 
to  define  the  rights  of  a  new  body  injected  into  the  citizenship 
of  the  republic,  were  added  to  the  constitution  by  force  of  the 
superior  power  of  the  victors  in  the  struggle.  From  that  time 
no  suggested  amendment  was  able  to  secure  the  necessary  two- 
thirds  majority  in  both  houses  of  Congress  until  the  year  1909, 
a  period  of  forty  years. 

Each  of  the  two  amendments  recently  proposed  to  the  state 
legislatures  has  peculiar  features  and  has  been  attended  by 
special  circumstances,  making  its  submission  to  the  states  finally 
possible.  The  income-tax  amendment  was  rendered  necessary 
by  a  flagrant  abuse  of  the  judicial  power  to  review  acts  of  Con- 
gress which  had  been  rankling  in  the  public  mind  for  fifteen 
years  and  which  forbade  the  establishment  of  a  national  system 
of  taxation  on  a  just  and  equitable  basis.  As  the  result  of  a 
particular  parliamentary  situation,  a  Republican  President  and 
majority  in  both  houses  of  Congress  found  themselves  in  agree- 
ment with  the  Democratic  minority.  It  was  practically  a  case 
of  proposing  a  constitutional  amendment  by  unanimious  consent. 
The  amendment  has,  however,  been  pending  now  for  three 
years  and  three  months  and  still  requires  ratification  by  two  more 
states  for  its  adoption. 

The  proposed  amendment  for  choice  of  United  States  Sen- 
ators by  popular  vote  in  each  state,  submitted  this  year,  had  been 
the  subject  of  numerous  resolutions  introduced  in  Congress 
since  1826  and  in  some  form  had  secured  the  requisite  two- 
thirds  majority  in  the  House  of  Representatives  in  each  Congress 

'  Ames,  H.  V.,  Proposed  amendments  to  the  constitution,  pp.  19-22. 

(68) 


No.  2]       THE  AMENDMENT  OF  THE  CONSTITUTION  2 1 

from  the  fifty-second.'  A  large  majority  of  the  state  legisla- 
tures had  repeatedly  adopted  resolutions  recommending  this 
amendment.  These  were  finally  taking  the  form  of  applications 
for  a  convention  to  propose  amendments,  and  were  rapidly  ap- 
proaching the  number  of  two-thirds  of  the  states  which  would 
have  required  Congress  to  call  such  a  convention.  Further- 
more, the  present  constitutional  method,  which  has  led  to  pro- 
longed deadlocks,  to  the  corruption  of  legislatures,  and  to  the 
election  of  men  subservient  to  special  interests,  had  been  largely 
set  aside  in  many  states  through  direct-primary  laws,  particu- 
larly where  the  Oregon  system  had  been  adopted.  This  grow- 
ing pressure  of  public  demand  for  a  more  democratic  method 
finally  reduced  the  opposing  minority  in  the  Senate,  the  body 
directly  affected,  to  such  a  point  'that  further  resistance  was 
ineffectual. 

Such,  in  brief,  is  the  history  of  this  ponderous  piece  of  con- 
stitutional machinery  difficult  to  set  in  motion  and  slow  and 
uncertain  in  its  operation,  fully  justifying  its  vigorous  con- 
demnation by  eminent  publicists  at  home  and  abroad.  Certain 
other  serious  objections  to  it  are  based  (i)  on  the  very  unequal 
weight  which  it  gives  to  public  opinion  in  different  parts  of  the 
country,  and  (2)  on  the  preponderating  influence  given  to  the 
state  governments  as  against  the  people. 

Under  the  first  of  these  heads,  without  going  into  any  elab- 
orate statistical  analysis,  it  is  sufficient  to  point  out  that,  accord- 
ing to  the  last  census,  the  population  of  the  state  of  New  York 
is  greater  than  that  of  the  eighteen  smallest  states,  yet  in  finally 
determining  constitutional  issues  the  vote  of  each  of  the  latter 
has  equal  weight  with  that  of  New  York.  Or  in  the  extreme 
case  of  the  largest  and  smallest  of  the  states,  in  point  of  popu- 
lation, we  find  that  public  opinion  in  Nevada  on  any  amend- 
ment submitted  for  ratification  has  a  weight  more  than  100 
times  as  great  per  capita  as  public  opinion  in  this  state.  Fur- 
thermore, the  legislatures  of  the  Pacific  and  mountain  states, 
with  those  of  two  adjacent  states,  comprising  not  more  than 
10  ^  of  the  population  in  all,  have  the  power  to  block  a  change  in 

^The  proposition  was  made  in  the  Federal  Convention,  but  received  the  support  of 
only  one  state,  viz.,  Pennsylvania.     Elliofs  Debates,  vol.  5,  pp.  138,  167-170. 

(69) 
2   * 


22  EFFICIENT  GOVERNMENT  [Vol.  Ill 

the  constitution  desired  by  all  the  other  states  in  the  East,  South 
and  Middle  West,  representing  90  ^  of  the  population.  The 
undue  influence  of  the  states  as  states,  regardless  of  their  popu- 
lation, is  also  shown  in  the  arrangement  by  which  the  states, 
indirecdy  through  their  equal  representation  in  the  Senate  and 
directly  as  units  in  the  ratification  process,  are  consulted  twice 
in  the  course  of  the  amending  procedure,  whereas  the  people 
of  the  states  are  consulted  only  once,  and  indirectly,  through 
their  representation  in  the  lower  house  of  Congress  on  the 
basis  of  population.  This  predominance  of  state  influence  is 
a  survival  from  the  old  Articles  of  Confederation  and  is  really 
at  variance  with  the  idea  of  the  sovereignty  of  the  people  of  the 
United  States  expressed  in  the  preamble  of  the  constitution. 

In  looking  for  suggestions  for  a  better  method  of  amendment 
and  one  more  in  accord  with  modern  democratic  ideas,  we  nat- 
urally turn  in  the  first  place  to  a  consideration  of  the  experience 
of  the  several  states  of  the  Union  and  the  modifications  that 
have  been  made  in  their  constitutions  during  the  last  century  and 
a  quarter.'  This  shows  that,  in  contrast  with  the  Federal  Con- 
stitution, the  various  state  constitutions  have  in  the  course  of 
time  become  more  easily  adjustable  to  changing  conditions  and 
closer  approximations  to  the  will  of  the  people  through  altera- 
tion of  their  amending  clauses  : 

( 1 )  to  make  the  submission  of  amendments  less  difficult,  by 
providing  for  their  proposal  in  one  or  more  of  the  following 
ways:  (a)  by  the  action  of  one  legislature  instead  of  two  suc- 
cessive legislatures;  (b)  by  the  ordinary  legislative  majority  in- 
stead of  by  a  special  majority  {e.  g.,  two-thirds)  ;  and  (c)  by 
initiative  petition  of  a  certain  percentage  of  the  voters. 

(2)  to  provide  for  ratification  by  direct  vote  of  the  electors,  a 
method  which  now  prevails  in  every  state  except  Delaware. 

As  any  amendment  of  the  present  procedure  for  the  altera- 
tion of  the  federal  constitution  will  have  to  receive  the  approval 
of  three-fourths  of  the  state  legislatures  for  its  adoption,  it  is 
clear  that  such  a  proposal  must  be  in  conformity  with  the  ideas 

•  A  full  discussion  may  be  found  in  Dodd,  W.  F.,  Revision  and  amendment  of  staie 
constitutions,  pp.  Ii8  ff. 

(70) 


No.  2]       THE  AMENDMENT  OF  THE  CONSTITUTION  23 

which  have  come  to  prevail  in  the  several  states  regarding  con- 
stitutional changes  and  with  the  methods  they  have  become 
accustomed  to  employ  to  effect  them.' 

We  have,  however,  to  remember  that  we  are  dealing  with  the 
organic  law  of  a  federal  government  as  distinguished  from  that 
of  a  single  state.  It  is,  therefore,  desirable  to  inquire  into  the 
experience  of  foreign  countries  which  have  had  to  face  the 
problem  of  framing  a  federal  constitution.  Fortunately  there 
are  two  such  countries  in  which  instructive  models  are  available 
for  our  investigation,  namely,  Switzerland  and  the  Commonwealth 
of  Australia.  Each  of  these  had  the  advantage  of  being  able 
to  study  American  experience,  both  federal  and  state,  with 
regard  to  the  process  of  amendment. 

Under  the  Swiss  system,  originally  adopted  in  1848  and 
modified  in  1874  and  again  in  1891,  amendments  may  be  pro- 
posed either  by  the  ordinary  legislative  process  or  by  initiative 
petition  of  50,000  voters  in  the  form  of  general  suggestions  or 
of  completed  bills.  General  suggestions  are  elaborated  by  the 
Federal  Assembly  on  its  agreement  thereto  or  after  the  ques- 
tion has  first  been  submitted  to  the  people.  In  the  case  of 
completed  bills,  the  Federal  Assembly  may  submit  with  them 
alternative  proposals  which  it  recommends.  Total  revision  may 
be  undertaken  by  the  Federal  Assembly  at  any  time  when  both 
councils  are  in  agreement;  but  in  case  of  disagreement,  or 
when  50,000  Swiss  voters  demand  such  revision,  the  question  is 
submitted  first  to  a  popular  vote  and  if  a  majority  of  the  citizens 
who  vote  pronounce  in  the  affirmative,  a  new  Federal  Assembly 
is  elected  for  this  purpose.  Proposed  changes  when  formulated 
are  submitted  to  referendum  vote  ai^d  take  effect  when  adopted 

^  A  test  of  opinion  in  Congress  on  this  matter  was  recently  afforded  in  connection  with 
the  admission  of  New  Mexico  and  Arizona  to  statehood.  By  the  joint  resolution  of 
Aug.  21,  191 1,  New  Mexico  was  required,  as  a  condition  precedent  to  admission,  to 
alter  the  amending  clause  of  its  proposed  constitution  (6lst  Cong.,  3d  sess.,  house 
doc.  1369,  p.  38)  so  as  to  reduce  the  requirement  for  the  vote  of  the  legislature  in 
proposing  amendments  from  two-thirds  to  a  majority  of  the  members  of  each  house 
and  for  ratification,  to  substitute  a  majority  of  those  voting  on  the  proposition  in 
place  of  a  majority  constituting  an  affirmative  vote  equal  to  at  least  40  per  cent  of  the 
votes  cast  at  the  election  and  approval  by  at  least  half  the  counties  of  the  state. 

(71) 


24  EFFICIENT  GOVERNMENT  [Vol.  Ill 

by  the  majority  of  Swiss  citizens  voting  thereon  and  by  a 
majority  of  the  cantons.^ 

Next,  let  us  consider  the  amending  clause  of  the  Australian 
constitution  which  went  into  effect  in  1901.  Though  formally 
enacted  by  the  Imperial  Parliament.^"  this  important  instrument 
was  the  result  of  the  deliberations  of  two  conventions  of  dele- 
gates from  the  separate  colonies,  of  which  the  first  met  in  1891 
and  the  second  held  its  sessions  over  a  period  of  three  years, 
1897  to  1899.  The  reports  of  the  debates  in  these  conventions 
are  documents  of  exceptional  importance  for  the  study  of  our 
own  constitutional  problems,  not  only  because  we  see  in  them  a 
kindred  people  with  similar  traditions  grappling  afresh  with  the 
same  questions,  but  also  because  American  experience  is  con- 
stantly referred  to  and  carefully  weighed  and  analyzed. 

The  draft  of  the  bill  adopted  by  the  1891  conventions  pro- 
vided that  any  law  for  the  alteration  of  the  constitution  must  be 
passed  by  an  absolute  majority  of  both  houses  and  be  referred 
to  conventions  in  the  several  states  and  for  adoption,  to  be  sub- 
mitted to  the  Governor-General  for  the  Queen's  assent,  required 
approval  by  the  conventions  of  a  majority  of  the  states,  subject 
to  the  condition  that  the  people  of  these  states  were  also  a  ma- 
jority of  the  people  of  the  commonwealth.  The  draft  of  this 
clause  adopted  by  the  second  convention  eight  years  later,  which 
became  the  final  form,  shows  two  significant  changes — one 
making  the  initiation  of  amendments  easier,  the  other  substi- 
tuting a  popular  referendum  for  ratification  by  conventions.* 
The  requirement  for  proposal  of  amendments  became  an  abso- 
lute majority  in  each  house  or,  in  Case  of  disagreement,  an  ab- 
solute majority  in  one  house  given  twice,  the  second  time  after 

*  Swiss  Federal  Constitution,  Arts.  1 18-123.  -^  ^^  account  of  the  history  of  this 
procedure  is  given  in  Borgeaud's  Adoption  and  amendment  of  constitutions  in 
Europe  and  America  (tr.  by  C.  D.  Hazen,  N.  Y.,  1895)  pp.  291-332. 

'Commonwealth  of  Australia  Constitution  Act,  63  &  64  Vict.  ch.  12. 

"National  Australasian  Convention,  Sydney,  1891,  Official  record  of  the  proceed- 
ings and  debates,  p.  clxxxviii;    debated,  pp.  428-434. 

'National  Australasian  Convention,  Adelaide,  1897,  Official  report  of  the  debates, 
pp.  1020-1030,  1204-1209;  Australasian  Federal  Convention,  Melbourne,  1898,  Of- 
ficial record  of  the  debates  (third  session),  vol.  i,  pp.  715-772. 

(72) 


No.  2]      THE  AMENDMENT  OF  THE  CONSTITUTION  25 

three  months'  interval,  plus  submission  on  both  occasions  to  the 
other  house.  Every  such  law  is  then  to  be  submitted  (after  two 
but  before  six  months)  to  the  voters  of  every  state,  requiring  for 
adoption  the  approval  of  the  people  in  a  majority  of  states  and 
of  a  majority  of  the  people  voting  over  the  whole  Common- 
wealth. 

It  must  be  remembered,  however,  in  endeavoring  to  adapt 
such  a  procedure  to  our  own  circumstances,  that  in  Australia 
there  exist  two  safeguards  which  are  wanting  here,  namely 
responsible  government  and  the  power  of  disallowance  which 
may  be  exercised  by  the  British  government  in  case  of  need. 

The  last  stage  of  our  inquiry  is  to  consider  the  modifications 
of  article  5  that  have  been  proposed.  We  have  seen  that  the 
Articles  of  Confederation  did  not  specify  any  special  majority  in 
Congress  for  the  proposal  of  amendments  and  that  the  provision 
for  a  two-thirds  vote  was  not  formulated  until  a  late  stage  in 
the  proceedings  of  the  Federal  Convention  when  Madison  and 
Hamilton  presented  their  substitute  clause ;  also,  that  the 
motion  to  make  two-thirds  of  the  states  the  number  necessary 
and  sufficient  for  ratification  was  lost  by  only  one  vote.  After 
the  adoption  of  the  constitution,  however,  no  suggestion  for 
facilitating  the  amending  process  was  presented  to  Congress 
until  January,  1861,  when  an  effort  was  made  to  submit  the 
"  Crittenden  Compromise "  to  a  direct  vote  of  the  people. 
Such  a  plebiscite  would  have  been  advisory  only  but  it  is  inter- 
esting to  note  that  such  a  proposal  was  made  at  this  time  of 
great  stress  when  the  machinery  provided  in  the  constitution 
proved  unworkable.  A  similar  proposition  was  also  offered 
when  the  fifteenth  amendment  was  under  consideration. 

The  first  actual  proposal  to  establish  an  easier  method  of 
amendment  was,  however,  contained  in  the  original  draft  of  the 
resolution  for  the  abolition  of  slavery,  as  introduced  by  Senator 
Henderson  of  Missouri  in  January,  1864,  a  substitute  for  which 
ultimately  became  the  thirteenth  amendment.  The  clause, 
which  was  dropped  in  committee,  provided  that  whenever  a 
majority  of  the  members  elected  to  each  house,  or  a  convention 
called  on  the  application  of  the  legislatures  of  a  majority  of  the 
several  states,  should  propose  amendments,  these  in  either  case 

in) 


26  EFFICIENT  GOVERNMENT  [Vol.  Ill 

should  be  valid  when  ratified  by  the  legislatures  of  or  conven- 
tions in  two-thirds  of  the  several  states,  as  Congress  should 
direct.  The  next  resolution  for  a  new  amending  clause  was 
introduced  in  1873  by  Mr.  Porter  of  Virginia.  It  provided 
that  Congress,  whenever  three-fifths  of  both  houses  deem  it 
necessary,  may  propose  amendments  to  the  constitution,  or  may 
call  a  convention  for  proposing  amendments  and  revising  the 
constitution,  and  shall  be  required  to  call  such  a  convention  on 
the  application  of  the  legislatures  of  any  number  of  states, 
embracing  three-fifths  of  the  enumerated  population  of  the  sev- 
eral states.  Amendments  proposed  by  either  of  these  methods 
were  to  be  valid  when  approved  and  ratified  by  a  majority  of 
the  electors  in  the  several  states  voting  thereon,  and  qualified  to 
vote  for  Representatives  in  Congress.' 

Of  later  proposals  three  are  of  special  interest.  Professor  J. 
W.  Burgess  in  his  Political  Science  and  Comparative  Constitu- 
tional Law  ^  (  1 893 )  suggested  the  following  procedure  for 
amendment  of  the  Federal  Constitution :  proposal  of  amend- 
ments in  two  successive  Congresses  by  the  two  houses  in  joint 
session  and  by  simple  majority  vote ;  submission  to  the  state 
legislatures  for  ratification  by  the  houses  thereof,  also  acting  in 
joint  assembly  and  resolving  by  simple  majority  vote ;  in 
counting  the  votes  of  the  legislatures  each  state  should  have  the 
same  weight  as  is  given  to  it  in  the  electoral  college  and  an 
absolute  majority  of  all  the  votes  to  which  all  the  states  were 
entitled  should  be  necessary  and  sufficient  for  ratification. 

Professor  Munroe  Smith  in  his  recent  discussion  of  this  sub- 
ject 3  has  pointed  out  that  we  have  to  consider  not  only  what 
more  workable  method  of  amendment  seems  best  adapted  to 
our  dual  system  of  government  but  also  what  changes  in  the 
amending  clause  would  probably  stand  the  best  chance  of 
securing  the  assent  of  three-fourths  of  the  states.  He,  therefore, 
suggests  as  objections  to  the  Burgess  plan  that,  on  the  one  hand, 

'Ames,  H.  V.  Proposed  amendments  to  the  constitution,  pp.  292-293. 
'Vol.  I,  p.  152. 

^"  Shall  we  make  our  constitution  flexible?  "  in  North  American  Review,  vol.  194, 
pp.  657-673  (Nov.  191 1). 

(74) 


No.  2]       THE  AMENDMENT  OF  THE  CONSTITUTION  27 

it  would  be  felt  that  if  weighted  at  all  the  votes  of  the  states 
should  be  according  to  population  and,  on  the  other  hand,  that 
the  smaller  states  would  demand  equality  with  the  larger  and 
would  not  approve  the  provision  for  a  joint  assembly  of  Congress, 
as  this  would  destroy  the  influence  of  the  equal  representation  of 
the  states  in  the  Senate.  To  meet  these  difficulties  he  would 
substitute  as  the  provisions  of  a  new  amending  clause 

'*  proposal  of  amendments  by  the  majority  vote  of  both  houses  in  two 
successive  Congresses ;  submission  of  such  proposals  to  the  legislatures 
of  the  several  states  or  to  conventions  in  the  several  states  or  directly 
to  the  voters  in  each  of  the  states,  as  one  or  another  of  these  modes  of 
ratification  may  be  proposed  by  Congress  ;  and  ratification  of  proposals 
by  a  majority  of  the  states,  provided  that  the  ratifying  states  contain, 
according  to  the  last  preceding  enumeration,  a  majority  of  the  total 
population  of  all  the  states." 

This  plan  is  better  in  every  way  than  any  previous  proposal 
and  would  go  a  long  way  towards  providing  an  efficient  amend- 
ing procedure.  As,  however,  the  proposal  of  constitutional 
amendments  by  repeated  vote  in  two  successive  legislatures 
has  been  largely  abandoned  in  the  case  of  the  state  constitu- 
tions in  favor  of  action  by  a  single  legislature  or  other  methods, 
it  does  not  seem  necessary  or  desirable  to  introduce  it  at  this 
date  into  the  amending  clause  of  the  Federal  Constitution 
without  good  and  sufficient  cause.  The  reason  assigned  in  this 
case  is  that  it  would  lead  to  proposals  of  superior  precision 
being  submitted  for  ratification.  But  it  seems  probable  that 
this  result  could  be  attained  more  directly  and  effectively  by  the 
establishment  of  the  proposed  legislative  drafting  bureau  for 
Congress.  In  cases  of  disagreement  between  the  two  houses  of 
Congress  on  a  matter  of  constitutional  change  it  might  well  be 
provided  that  amendments  could  be  proposed  by  majority  vote 
of  one  house  in  two  successive  Congresses,  as  an  alternative  to 
proposal  by  majority  vote  of  both  houses  in  one  Congress. 

With  regard  to  the  ratification  process  it  may  be  remarked 
that  the  object  of  this  is  to  take  the  sense  of  the  sovereign  peo- 
ple on  the  amendments  submitted.  The  interposition  of  repre- 
sentative bodies,  either  the  ordinary  legislatures  or  conventions 

(75) 


28  EFFICIENT  GOVERNMENT  [Vol.  Ill 

elected  ad  hoc,  without  power  to  amend  the  proposals  but 
merely  authorized  to  ratify  or  reject  them,  is  little  more  than 
an  indirect  and  unsatisfactory  method  of  counting  the  votes  for 
and  against.  In  competition  with  the  method  of  the  direct 
vote  of  the  electors  which  the  people  are  accustomed  to  use  in 
amending  state  constitutions,  it  is  more  than  probable  that  rati- 
fication by  the  state  legislatures  or  by  conventions  would  go  to 
the  wall,  just  as  the  convention  method,  though  theoretically 
the  better  way,  has  never  been  chosen  by  Congress  in  submit- 
ting amendments  on  account  of  the  greater  practical  advantages 
of  ratification  by  the  state  legislatures.  Furthermore,  the  plan 
makes  no  provision  for  the  proposal  of  amendments  on  the 
initiative  of  the  states.  In  view  of  the  fact  that  the  state 
governments  are  becoming  laboratories  for  trying  out  political 
inventions,  it  is  to  be  expected  that  some  important  devices  for 
a  better  system*  of  government,  including  particularly  methods 
of  regulating  industry  and  commerce,  will  be  discovered  in 
them.  It  is  important  that  the  new  machinery  for  the  proposal 
of  amendments  should  provide  a  means  of  presenting  these  for 
general  adoption  throughout  the  country. 

All  of  these  specifications  for  a  new  amending  clause  are  met 
in  the  joint  resolution  introduced  into  Congress  by  Senator 
LaFollette  towards  the  close  of  the  last  session,  which  presents 
the  following: 

Article  XVIII.  The  Congress,  whenever  an  absolute  majority  of  both 
houses  shall  deem  it  necessary,  or  on  application  of  ten  states  by 
resolution  adopted  In  each  by  the  legislature  thereof  or  by  a  majority 
of  the  electors  voting  thereon,  shall  propose  amendments  to  this  con- 
stitution to  be  submitted  in  each  of  the  several  states  to  the  electors 
qualified  to  vote  for  the  election  of  Representatives,  and  the  vote  shall 
be  taken  at  the  next  ensuing  election  of  Representatives  in  such  man- 
ner as  the  Congress  prescribes.  And  if  in  a  majority  of  the  states  a 
majority  of  the  electors  voting  approve  the  proposed  amendments,  and 
if  a  majority  of  all  the  electors  voting  also  approve  the  proposed 
amendments,  they  shall  be  valid,  to  all  intents  and  purposes, as  part  of 
this  constitution. 

This  proposal,  it  will  be  seen,  embodies  and  adapts  the  prin- 

(76) 


No.  2]       THE  AMENDMENT  OF  THE  CONSTITUTION  29 

ciples  that  have  been  tested  both  in  the  several  states  and  in  the 
foreign  countries  which  have  been  considered.  One  objection 
will  perhaps  be  made  to  it,  namely,  that  it  does  not  take  account 
of  the  fact  that  in  some  states  women  are  entitled  to  vote  as 
well  as  men  and  that  these  states  would  add  a  disproportionate 
number  to  the  total  vote  throughout  the  country.  A  similar 
situation  confronted  the  framers  of  the  Australian  constitution 
and  they  met  the  difficulty  by  providing  that  "  until  the  quali- 
fication of  electors  of  members  of  the  House  of  Represen- 
tatives becomes  uniform  throughout  the  commonwealth  only 
one-half  the  votes  for  and  against  the  proposed  law  shall  be 
counted  in  any  state  in  which  adult  suffrage  prevails."  This 
clause,  however,  proved  to  be  entirely  unnecessary  because 
before  the  first  proposed  amendments  to  the  Australian  con- 
stitution were  submitted  the  enfranchisement  of  women  had 
been  achieved  in  every  state.  On  account  of  the  recent  remark- 
able development  of  the  equal-suffrage  movement  in  the  United 
States  it  seems  likely  that  by  the  time  any  new  amending  clause 
shall  have  received  the  approval  of  two-thirds  of  both  houses 
of  Congress  and  of  the  legislatures  of  three-fourths  of  the  states 
this  difficulty  will  have  vanished.  A  temporary  provision  to 
meet  it  would  not,  however,  interfere  with  the  general  plan  of 
Senator  LaFoUette's  resolution. 

As  this  proposition  provides,  with  adequate  safeguards,  suf- 
ficient facility  for  the  proposal  of  amendments  which  are  widely 
supported  and  for  their  incorporation  into  the  constitution  when 
a  majority  of  the  states  and  of  the  whole  electorate  have  ex- 
pressed their  approval,  it  is  worthy  of  the  earnest  consideration 
of  those  who,  in  the  words  of  Professor  Munroe  Smith,  have 
*'  realized  that  the  first  article  in  any  sincerely  intended  pro- 
gressive program  must  be  the  amendment  of  the  amending 
clause  of  the  Federal  Constitution." 

{77) 


THE  REORGANIZATION  OF  STATE  GOVERNMENT' 

HENRY  JONES   FORD 
Professor  of  Politics,  Princeton  University 

TO  understand  the  events  of  our  times  we  must  see  them 
in  true  perspective.  There  is  one  notion  that  we  must 
discard,  namely,  that  our  existing  state  constitutions 
represent  constitutional  arrangements  made  by  the  fathers,  and 
having  back  of  them  the  weight  of  their  authority  and  influence. 
I  think  that  idea  is  wrong.  We  have  only  to  consider  our  polit- 
ical history  to  find  that  our  state  constitutions  were  simply  pro- 
visional arrangements  to  meet  a  casual  emergency.  There  was 
no  idea  that  they  should  be  regarded  as  fixing  the  type  of  gov- 
ernment. They  were  a  sort  of  act  of  settlement  to  provide 
some  basis  for  action  with  the  expectation  that  political  expe- 
rience would  eventually  bring  governmental  institutions  into 
accord  with  the  needs  of  the  people. 

This  thought  received  strong  expression  in  some  early  docu- 
uments.     In  the  Federalist  (no.  47)  Madison  remarked: 

I  wish  not  to  be  regarded  as  an  advocate  for  the  particular  organiza- 
tions of  the  several  state  governments.  I  am  fully  aware  that  among 
the  many  excellent  principles  which  they  exemplify,  they  carry  strong 
marks  of  the  haste,  and  still  stronger  of  the  inexperience,  under  which 
they  are  framed. 

And  again  in  the  Federalist  (no.  37)  he  said: 

It  may  be  pronounced  with  assurance  that  the  people  of  this  country 
will  never  be  satisfied  until  some  remedy  be  applied  to  the  vicissitudes 
and  uncertainties  which  characterize  the  state  administrations. 

No.  15  of  the  Federalist  is  virtually  an  analysis  of  the 
defects  and  incapacity  of  state  administration,  and  it  was  just 
such   defects    that  energized    the    movement  for  our  national 

'  Address  delivered  at  the  meeting  of  the  Academy  of  Political  Science,  October 
26,  1912. 

(78) 


REORGANIZATION  OF  STATE  GOVERNMENT  31 

constitution.  In  the  constitutional  convention  of  1787  Mercer 
of  Maryland  bluntly  declared  that  the  real  business  in  hand 
was  to 

protect  the  people  against  those  speculating  legislatures,  which  are  now- 
plundering  them  throughout  the  United  States. 

Mercer's  analysis  of  the  situation,  reported  in  Madison's 
Journal  for  August  14,  1787,  is  remarkable  for  its  prescience. 
He  argued  that  unless  the  executive  is  directly  connected  with 
the  legislature,  its  members  will  prey  upon  the  people  instead  of 
defending  the  people.     He  said  : 

The  governments  of  America  will  become  aristocracies.  They  are  so 
already.  The  public  measures  are  calculated  for  the  benefit  of  the 
governors,  not  the  people.  The  people  are  dissatisfied  and  complain. 
They  change  their  rulers,  and  the  public  measures  are  changed,  but  it 
is  only  a  change  of  one  scheme  of  emolument  to  the  rulers,  for  another. 
The  people  gain  nothing  by  it,  but  an  addition  of  instability  to  their 
other  evils. 

As  a  remedy  Mercer  proposed  what  is  now  designated  as  cab- 
inet government.  He  argued  that  "  the  executive  ought  to  have 
a  council,  being  members  of  both  Houses." 

The  distrust  of  existing  forms  of  authority  was  so  great  at 
that  period  that  Jefferson,  then  in  France,  felt  it  as  strongly  as 
statesmen  at  home.  On  December  20,  1787,  Jefferson  wrote  to 
Madison :  "  The  instability  of  our  laws  is  really  an  immense  evil. 
I  think  it  would  be  well  to  provide  in  our  constitution  that  there 
shall  always  be  a  twelve-month  between  the  engrossing  of  a  bill 
and  the  passing  of  it." 

These  citations  are  typical  of  two  tendencies  very  marked  in 
our  political  history.  Mercer's  words  show  that  he  was  looking 
toward  structural  order,  whereas  Jefferson  looked  toward  re- 
straint upon  details  of  procedure.  The  latter  tendency  has  so 
far  governed  constitutional  change  in  this  country.  Owing 
to  the  notion  that  the  way  to  guard  against  abuse  of  power  is 
to  multiply  checks  upon  the  exercise  of  power,  our  state  con- 
stitutions are  schemes  of  restriction  constantly  increasing  in 
complexity.      There   has   been   continual   change  without   im- 

(79) 


32 


EFFICIENT  GOVERNMENT  [Vol.  Ill 


provement.  From  1776  to  1909,  127  distinct  state  constitutions 
have  been  adopted  in  this  country.  We  have  no  record  from 
which  to  get  the  exact  number  of  amendments,  but  from  1894 
to  1904,  381  constitutional  amendments  were  proposed,  of 
which  217  were  adopted.  The  process  has  had  curious  results. 
For  instance,  if  you  examine  the  constitution  of  Maryland,  you 
will  find  in  the  bill  of  rights  a  declaration  that  "  for  the  redress 
of  grievances  and  for  amending  and  strengthening  the  laws  the 
legislature  ought  to  be  frequently  convened."  But  the  process 
of  change  since  has  been  such  that  a  provision  has  been  in- 
serted prohibiting  the  legislature  from  meeting  more  than  once 
in  two  years,  unless  specially  convoked  by  the  governor. 

Hostility  to  legislative  sessions  has  become  a  general  char- 
acteristic of  our  state  constitutions.  There  has  been  a  marked 
movement  toward  biennial  and  even  quadrennial  sessions.  It 
is  plain  that  there  has  been  a  displacement  of  the  legislature 
from  its  normal  position  as  the  body  representing  the  people. 
Constitutional  provisions  exhibit  the  legislature  as  being  a 
misrepresentative  body  against  which  precautions  must  be 
taken.  When  you  compare  American  constitutions  with  those 
of  other  countries,  you  will  observe  that  restrictions  upon 
legislative  authority  are  an  American  peculiarity.  European 
state  constitutions  assume  that  the  legislative  assembly  will  fulf  1 
its  proper  functions ;  American  constitutions  are  framed  en 
the  assumption  that  the  legislature  will  misbehave  unless  sub- 
ject to  restraint. 

Another  American  peculiarity  is  the  expansion  of  the  execu- 
tive negative.  After  every  session  in  New  York  or  Pennsyl- 
vania the  governor  sits  in  judgment  upon  hundreds  of  enact- 
ments, determining  which  shall  be  law  and  which  not.  A 
similar  exaltation  of  executive  prerogative  is  seen  in  the  action 
of  governors  dealing  with  the  appropriation  bills.  In  1909 
Governor  Stuart  of  Pennsylvania  cut  $20,000,000  from  the  ap- 
propriation bills  by  his  vetoes.  According  to  the  traditional 
scheme  the  governor  is  the  chief  executive  and  it  is  the  function 
of  the  representative  assembly  to  control  his  actions,  but  now, 
instead  of  depending  on  the  legislatures  to  control  the  governors, 
the  people  depend  upon  the  governors  to  control  the  legisla- 

(80) 


No.  2]     REORGANIZATION  OF  STATE  GOVERNMENT  33 

tures.  That  is  a  very  singular  constitutional  development, 
without  parallel  in  other  countries. 

Another  marked  feature  is  the  expansion  of  judicial  authority, 
It  cannot  be  understood  unless  we  consider  the  moral  basis  as 
well  as  the  legal  basis.  An  abnorfnal  extension  of  jurisdiction 
has  been  forced  upon  the  courts  through  stress  of  necessity. 
Consider  such  a  situation  as  that  which  existed  in  Montana  after 
the  legislature  adjourned  in  1907.  The  enactments  of  the  ses- 
sion were  so  full  of  mistakes  that  the  official  publication  made 
by  the  secretary  of  state  contained  the  following  notice : 
"  The  within  are  exact  copies  of  the  enrolled  laws  as  the  same 
reached  this  office,  and  neither  this  office  nor  the  printer  em- 
ployed in  the  work  is  responsible  for  spelling  or  punctuation." 
One  law,  presumably  meant  to  prevent  the  sale  of  diseased 
meat,  imposed  a  severe  penalty  on  the  sale  of  "deceased" 
meat.  Compliance  with  the  law  as  it  stood  would  have  required 
butchers  to  supply  their  customers  with  live  cattle.  This  is  an 
instance  of  the  sort  of  legislation  that  compels  American  judges 
to  do  what  the  judges  of  no  other  civilized  country  have  to  do, 
namely,  go  behind  the  language  of  the  act  to  consider  the  mo- 
tives and  intentions  of  the  legislature,  the  practical  result  being 
to  substitute  judicial  discretion  for  legislative  action.  It  is 
true  that  the  law-making  power  has  been  virtually  transferred 
from  the  legislature  to  the  courts,  but  this  result  is  to  be  im- 
puted to  legislative  incapacity  rather  than  to  judicial  arrogance. 
Those  who  are  inclined  to  attribute  to  the  federal  nature  of  our 
government  the  powers  over  law-making  exercised  by  American 
judges  should  consider  the  fact  that  no  such  tendency  has  been 
developed  in  Switzerland  or  Germany.  Some  tendencies  ap- 
peared in  Germany  in  that  direction,  and  Brinton  Coxe,  in  his 
treatise  entitled  "  Judicial  Power  and  Ujiconstitutional  Legisla- 
tion" collected  a  number  of  cases.  But  the  courts  refrained 
from  courses  that  American  courts  have  followed,  not  so  much 
because  of  a  difference  in  the  legal  situation  as  because  of  dif- 
ferences in  the  moral  situation.  When  statutes  are  known  to  be 
a  mature  and  circumspect  expression  of  public  opinion,  judges 
will  hesitate  to  set  up  a  contrary  opinion  of  their  own,  and  in- 
deed the  principle  has  been  laid  down  in  the  courts  of  Germany 

3  (81) 


34  EFFICIENT  GOVERNMENT  [Vol.  Ill 

that  a  constitutional  provision  is  to  be  understood  as  a  rule  for 
the  legislative  power  to  interpret.  No  such  attitude  of  serious 
opinion  could  exist  in  regard  to  the  legislative  power  in  this 
country,  as  its  activities  are  too  crude  and  irresponsible  to  com- 
mand respect.  The  abnormal  exaltation  of  judicial  authority  in 
America  is  correlated  with  an  abnormal  degradation  of  legisla- 
tive authority.  Rectify  the  legislative  situation  and  the  judicial 
situation  will  settle  itself. 

Efforts  to  obtain  good  government  by  constitutional  restraint 
have  about  reached  their  limit,  and  the  political  philosophy 
from  which  they  issued  is  becoming  obsolete.  American  con- 
stitutions started  at  a  time  when  there  was  a  habit  of  regarding 
government  as  a  thing  distinct  and  apart  from  the  people,  so 
that  popular  liberty  implied  limitation  of  the  sphere  of  govern- 
ment. Now  government  is  coming  to  be  regarded  simply  as 
an  institutional  embodiment  of  the  will  of  the  people.  It  is 
their  agency,  existing  for  their  service,  so  that  impairment  of 
its  power  is  an  abatement  of  the  sovereignty  of  the  people. 
The  people  are  now  demanding  a  revision  of  the  system  of 
government,  not  to  put  more  checks  on  the  government  but  to 
take  possession  of  the  government  itself.  Questions  of  funda- 
mental organization  are  now  engaging  consideration.  This 
disposition  affrights  conservative  sentiment,  but  while  the  polit- 
ical mythology  usually  invoked  in  opposition  to  reform  does 
not  deserve  any  respect,  the  anxiety  is  not  baseless.  It  is  not 
true  that  the  system  against  which  radical  reformers  are  in  revolt 
expresses  the  wisdom  of  the  Fathers,  but  it  is  true  that  organic 
change  is  a  dangerous  process.  History  tells  us  that  the  mak- 
ing over  of  constitutions  is  a  process  that  is  apt  to  draw  blood. 
The  French  Revolution  has  not  lost  its  importance  as  a  warn- 
ing. But  by  using  one's  judgment  instead  of  one's  imagination 
to  reach  conclusions  I  think  it  will  appear  that  risks  attending 
the  renovation  of  our  state  constitutions  are  closely  limited  by 
the  essentially  municipal  nature  of  state  authority.  No  matter 
what  blunders  may  take  place  they  will  result  in  public  loss 
and  inconvenience  rather  than  public  disorder.  It  will  be  a 
dry  revolution  and  not  a  wet  revolution  even  at  the  worst. 

The  influences  making  for  a  reorganization  of  state  govern- 

(82) 


No.  2]     REORGANIZATION  OF  STATE  GOVERNMENT  35 

ment  are  now  so  strong  that  a  change  of  type  is  not  likely  to 
be  deferred  for  many  years.  The  eighteenth-century  doctrine 
of  the  separation  of  powers  was  at  one  time  as  generally 
applied  in  city  constitutions  as  it  still  is  in  state  constitutions. 
It  has  been  overthrown  by  the  introduction  of  the  commission 
plan  of  government,  and  the  general  improvement  of  municipal 
government  ensuing  from  the  spread  of  the  new  model  is 
affecting  public  opinion  as  regards  state  government.  It  would 
be  still  more  influential  were  it  not  that  the  body  in  which  the 
commission  plan  connects  the  executive  and  legislative  powers 
is  too  small  for  state  use.  But  for  difficulty  on  that  point 
attempts  might  have  been  made  before  now  to  adopt  the  com- 
mission plan  in  state  government.  The  way  in  which  the  com- 
mission plan  has  directed  public  attention  to  the  advantages  of 
direct  connection  between  the  executive  and  legislative  powers 
will  be  fruitful  in  constitutional  results. 

The  most  significant  indication  of  the  tendency  of  the  times 
is,  I  think,  the  new  constitution  which  the  Oregon  reformers 
are  endeavoring  to  introduce  by  popular  initiative.  In  essence, 
it  proposes  that  the  governor  shall  be  the  general  manager  of 
the  public  business,  meeting  with  the  representative  assembly  as 
with  a  board  of  directors.  He  will  appoint  his  cabinet,  he  will 
have  the  right  to  prepare  the  budget  and  propose  his  measures, 
and  if  his  measures  are  rejected  he  will  have  the  privilege  of 
submitting  them  to  the  direct  vote  of  the  people.  In  acquiring 
these  powers,  he  will  no  longer  have  the  veto  power.  His 
duty  will  be  to  digest  and  propose  measures,  not  to  forbid 
what  the  legislature  may  have  done.  His  power  becomes 
positive  instead  of  negative. 

Not  merely  in  Oregon,  but  even  here  in  New  York  the  trend 
of  opinion  is  in  the  same  general  direction.  It  hardly  seems 
possible  to  do  anything  more  to  increase  the  governor's  power 
of  negative  action.  The  next  step  in  order  is  to  give  him 
power  of  positive  action ;  that  is  to  say,  instead  of  a  power  of 
veto  he  should  have  a  power  of  initiative.  Just  such  a  con- 
stitutional change  has  already  been  proposed  by  Henry  L. 
Stimson,  at  one  time  Republican  party  candidate  for  governor 
of   New  York  and   at  the  present  time    Secretary    of  War  in 

(83) 


36 


EFFICIENT  GOVERNMENT 


President  Taft's  cabinet.  In  a  speech  at  Cleveland,  on  Jan.  28, 
1 9 1 1 ,  he  said  of  the  governor : 

Give  him  the  same  power  to  select  and  control  his  cabinet  and  the 
heads  of  his  departments  which  is  possessed  by  the  President  of  the 
United  States,  especially  with  an  absolute  and  unconditional  power  of 
removal.  The  same  power  should  be  carried  through  all  of  the  execu- 
tive departments  through  which  is  administered  the  regulative  control 
of  our  public  service  corporations  and  other  public  utilities.  Give  him 
the  undisputed  right,  not  only  to  suggest,  but  to  frame  and  introduce 
his  own  legislative  measures,  giving  to  such  measures  a  right  of  pre- 
cedence on  the  legislative  calendar.  Do  away,  for  instance,  with  the 
spectacle  that  we  have  seen  too  often  in  New  York,  of  measures  desired 
by  the  governor  held  up  apparently  by  the  action  of  the  clerk  of  the 
assembly.  If  the  governor's  power  over  legislation  under  such  con- 
ditions should  prove  to  be  great,  it  could  always  be  checked  by  the  use 
of  an  optional  popular  referendum. 

The  short-ballot  movement  makes  in  the  same  direction. 
How  are  you  going  to  shorten  the  ballot  except  by  treating  the 
governor  as  a  general  manager,  filling  subordinate  positions  by 
appointment,  subject  to  responsibility  for  results,  through 
close  connection  vi^ith  the  representative  assembly?  It  is  a 
familiar  business  principle  that  discretion  and  responsibility  go 
together.  In  acquiring  the  power  to  propose  and  explain  his 
measures  directly  to  the  legislature,  and  to  bring  them  to 
determination,  it  will  no  longer  be  necessary  for  him  to  use 
official  patronage  as  a  fund  with  which  to  bribe  the  legislature 
to  consider  the  public  business,  and  it  will  be  politically  incon- 
venient to  make  appointments  on  other  grounds  than  adminis- 
trative efficiency. 

The  ideas  and  influences  that  I  have  sketched  are  yet  to 
receive  institutional  embodiment,  but  that  is  simply  a  question 
of  time.  If  an  efficient  type  of  state  government  appears  any- 
where it  will  spread  everywhere.  Certainly  the  present  situation 
cannot  endure.  Its  evils  are  not  irremediable.  The  forces  of 
progress  will  find  a  way  out.  I  am  sufficiently  optimistic  to 
believe  that  a  reorganization  of  state  authority  is  about  to  begin 
that  will  give  the  American  people  that  which  they  have  never 
had — institutions  of  efficient  government. 

(84) 


THE  RECALL  OF  JUDICIAL  DECISIONS' 
William  Draper  Lewis 

Dean  of  the  Law  School  of  the  University  of  Pennsylvania 

THE  subject  which  I  have  been  asked  to  discuss  is  usually 
called,  though  I  think  miscalled,  "  the  recall  of  judicial 
decisions."  It  is  proposed  that,  when  an  act  passed  by 
a  state  legislature  shall  have  been  declared  contrary  to  the  con- 
stitution, if  a  given  fraction  of  the  electorate  shall  petition  to 
have  the  act  referred  to  popular  vote,  it  shall  be  so  referred, 
and  the  people  after  a  period  for  deliberation  shall  be  given  an 
opportunity  to  vote  directly  on  it.  If  a  majority  of  the  people 
vote  in  favor  of  the  act,  it  shall  thereafter  become  law.  As  actu- 
ally advanced  in  national  and  state  Progressive  platforms,  the 
proposition  is  not  only  limited  to  decisions  of  state  courts  in- 
terpreting provisions  in  state  constitutions,  but  is  further  limited 
to  acts  passed  under  the  police  power.  Thus,  the  national  plat- 
form of  the  Progressive  party  pledges  that  party  to  provide 
"  that  when  an  act  passed  under  the  police  power  of  the  state  is 
held  unconstitutional  under  the  state  constitutions  by  the  courts, 
the  people,  after  an  ample  interval  for  deliberation,  shall  have 
an  opportunity  to  vote  on  the  question  whether  they  desire  the 
act  to  become  a  law  notwithstanding  such  decision." 

It  is,  therefore,  clear  that  those  of  us  who  advocate  this  new 
method  of  dealing  with  certain  constitutional  questions  believe 
that  its  real  usefulness  is  largely,  if  not  wholly,  confined  to  the 
situation  which  arises  when  an  act  passed  under  the  police  power 
of  the  state  is  declared  contrary  to  the  state  constitution.  The 
police  power  of  the  state  is  the  general  power  to  pass  laws  which 
direct  the  conduct  of  the  individual  or  private  associations  of 
individuals,  which  says  that  we  must  do  this  or  that.  It  there- 
fore includes  practically  every  law  except  those  which  relate  to 
the  conduct  of  public  officials  or  the  organization  and  the  oper- 

'  Read  at  the  meeting  of  the  Academy  of  Political  Science,  October  26,  1912. 

3   *  (85) 


38  EFFICIENT  GOVERNMENT  [Vol.  Ill 

ation  of  the  government.  All  acts  dealing  with  social  and  in- 
dustrial conditions  are  passed  under  the  so-called  police  power. 
All  acts  regulating  the  conditions  of  employment,  payment  of 
wages  in  store  orders,  tenement-house  conditions,  and  other  acts 
designed  to  correct  the  more  obvious  social  and  economic  in- 
justices of  our  present  industrial  system,  are  police  laws. 

A  large  part  of  the  present  criticism  of  courts  and  judges,  as 
well  as  the  growing  antagonism  towards  our  constitutional  sys- 
tem, is  due  to  the  decisions  of  state  courts  holding  void  at- 
tempts to  enact  legislation  which  many  believe  necessary  to 
correct  the  more  glaring  injustices  of  our  present  industrial 
system.  The  so-called  "  recall  of  judicial  decisions"  is,  at  the 
present  time,  the  only  constructive  proposal  advanced  to  meet 
a  condition  which  is  giving  grave  concern  to  those  who  still  be- 
lieve that  government  under  a  written  constitution  is  the  best 
form  of  government  for  a  democracy.  As  such  it  demands  our 
careful  consideration. 

In  order  that  we  may  be  in  a  position  to  judge  the  proposal 
on  its  merits,  a  preliminary  word  must  be  said  in  regard  to 
what  we  may  call  social  and  industrial  legislation,  and  the  peculiar 
function  performed  by  the  courts  when  they  declare  such  acts 
as  a  compulsory  workmen's  compensation  act  contrary  to  the  in- 
herent rights  of  the  individual. 

Each  country  has  always  its  social  and  economic  problems, 
because  man,  considered  collectively,  has  always  the  power 
of  further  progress.  The  problem  of  further  progress  is  one  of 
method.  In  any  society  the  proper  method  of  improvement 
becomes  a  matter  of  political  controversy  when  a  proposition 
which,  it  is  alleged,  will  have  the  desired  result  and  which 
involves  a  change  in  existing  law  or  public  administration, 
is  made  in  such  a  way  as  to  command  serious  attention  from, 
those  having  the  power  to  effect  the  change.  Every  economic 
political  controversy  resolves  itself  into  the  question :  Is  it  or  is 
it  not  wise  for  society  to  change  by  law,  in  the  manner  pro- 
posed, the  conditions  under  which  the  individual  makes  his 
choice  of  action? 

Two  illustrations  will  make  my  meaning  clear.  A  given 
country  has  no  tariff.     A  protective  tariff  is  proposed.     The 

(86) 


No.  2]  THE  RECALL  OF  JUDICIAL  DECISIONS  39 

question  is,  will  there  be  greater  progress  economically  if  the 
law  changes  the  existing  legal  conditions  under  which  the 
individual  now  makes  contracts  for  the  purchase  of  certain  pro- 
ducts? Again,  a  given  community  has  no  law  governing  the 
hours  of  labor.  A  proposal  is  made  to  pass  a  law  prohibit- 
ing the  employment  of  women  for  more  than  ten  hours  a  day. 
The  question  is,  should  society  change  in  the  way  proposed  the 
conditions  under  which  the  contract  of  employment  is  made? 
In  neither  case  is  it  proposed  that  society  shall  directly  coerce 
the  individual.  No  one  is  to  be  obliged  to  purchase  goods  or 
employ  women.  But  in  each  case  the  law  proposed  limits  the 
range  of  choice ;  if  one  buys  from  abroad  he  must  pay  duty ; 
if  he  employs  women  he  cannot  do  so  for  more  than  ten  hours 
a  day.  Again,  in  the  second  illustration,  the  proposed  law, 
theoretically  at  least,  limits  the  woman's  range  of  choice ;  she 
cannot  contract  to  work  more  than  ten  hours.  I  say  theoretic- 
ally, because  practically  the  economic  situation  of  the  woman 
may  give  her  no  real  choice — she  must  take  what  is  offered. 

When  we  are  confronted  with  the  question  whether  it  is  wise 
to  adopt  a  particular  tariff  schedule  or  a  particular  law  govern- 
ing the  hours  of  labor,  two  things  influence  our  decision.  We 
have  the  facts  bearing  on  the  particular  question.  But  we  have 
also  our  existing  prejudices  or  principles,  call  them  what  you 
will,  relating  to  the  limit  to  which  society  should  go  in  im- 
posing restrictive  legal  conditions.  The  difference  between  us 
at  any  given  time  is  one  of  degree.  The  most  extreme  indi- 
vidualist admits  that  in  some  cases  restrictive  legal  conditions 
of  a  drastic  character  should  be  imposed.  Thus,  no  one 
objects  to  a  law  prohibiting  the  general  sale  of  certain  dele- 
terious or  poisonous  drugs,  or  a  law  prohibiting  the  employ- 
ment in  dangerous  industries  of  little  children,  even  with  the 
consent  of  the  children  and  their  parents.  On  the  other  hand, 
the  most  advanced  progressive  would  regard  a  law  limiting  the 
hours  of  work  for  women  to  two  hours  in  any  consecutive 
twenty-four  hours  as  arbitrary  and  unjust,  or  would  oppose  a 
compulsory  workmen's  compensation  act  which  required  the 
employer  to  pay  to  any  workman  who  was  permanently  disabled 
by  an  accident  occurring  in  the  business  double  wages  for  life. 

(87) 


40 


EFFICIENT  GOVERNMENT  [Vol.  Ill 


We  all  of  us,  conservative  and  progressive  alike,  have  what  we 
may  describe  as  a  mental  scale,  relating  to  the  limits  of  regula- 
tory legislation.  At  one  end  of  the  scale  are  supposed  legis- 
lative acts,  like  the  act  prohibiting  the  employment  of  women 
more  than  two  hours  a  day,  which  we  regard,  not  merely  as  un- 
wise, but  as  unjust  and  arbitrary.  Further  down  the  scale  we 
come  to  laws,  such  as  a  law  limiting  the  hours  of  employment  of 
women  to  ten  hours  in  any  twenty-four,  which  we  think  wise  or 
unwise,  but  which  do  not,  even  if  we  regard  them  as  unwise, 
shock  our  sense  of  fairness.  Lastly,  at  the  other  end  of  the 
scale,  we  have  those  laws  which,  while  restrictive,  we  regard  as 
expressing  the  unquestioned  duty  of  society  toward  the  indi- 
vidual, such  as  a  law  prohibiting  the  employment  of  little  chil- 
dren in  dangerous  occupations. 

Each  of  us  has  a  more  or  less  distinct  mental  scale  of  this 
kind.  It  may  change  from  day  to  day  or  remain  throughout 
our  lives  largely  the  same.  That  depends  upon  our  experience 
and  our  temperament.  We  may  think  little  of  public  questions, 
and  our  scale  maybe  largely  an  unconscious  one;  but  when 
forced  to  pass  judgment  upon  a  given  proposal,  out  of  our  ex- 
perience and  environment  and  the  extent  and  character  of  our 
study  and  observation,  we  reach  a  decision  for  or  against  the 
proposal  by  fitting  such  facts  as  we  think  have  particular  bear- 
ing on  the  question  into  the  scale  of  arbitrary,  unwise,  debatable, 
wise,  and  essential  governmental  regulations,  placing  restrictive 
legal  conditions  on  the  individual  choice  of  action. 

While,  however,  each  of  us  has  such  a  scale,  the  scale  of  no 
two  men  is  ever  precisely  alike.  Certain  legislation  may  be 
arbitrary  and  unfair  to  all  of  us.  When,  however,  we  pass  from 
acts  arbitrary  to  acts  unwise,  no  two  of  us  draw  the  same  line. 
Indeed,  few  or  none  of  us  draw  a  very  sharp  line  between  arbi- 
trary and  unwise  legal  restrictions.  The  two  classes  of  acts  im- 
perceptibly shade  into  each  other;  but  the  shadow  on  the 
scale  that  marks  the  passage  from  clearly  arbitrary  to  debatable 
acts  in  any  two  individuals  is  never  in  the  same  place.  Take, 
for  instance,  an  eight-hour  day  for  women.  Some  think  that 
a  wise  proposal,  some  unwise,  others  regard  it  as  more  than 
merely  unwise,  as  arbitrary,  unfair,  and  destructive  of  the 
fundamental  right  of  liberty  of  action. 

(88) 


No.  2]  THE  RECALL  OF  JUDICIAL  DECISIONS  41 

Differences  of  opinion  of  this  kind  on  such  a  measure  as  an 
eight-hour  law  exist  in  every  country.  Everywhere  disputes 
arise  as  to  the  justice  or  wisdom  of  society  in  placing  legal  re- 
strictions on  the  wage  contract,  employment  of  children,  or  the 
use  of  this  or  that  kind  of  property.  In  all  other  countries, 
however,  except  the  United  States,  such  questions  are  settled 
finally  by  the  legislature.  When  the  legislature  has  passed  the 
act,  though  many  may  think  such  action  arbitrary  interference 
with  the  individual  and  therefore  more  than  merely  unwise, 
nevertheless  the  legislature  has  spoken  and  the  act  is  law.  We 
alone,  of  all  people,  live  under  a  system  of  government  in 
which  the  courts  have  been  given  or  have  assumed  the  power 
to  examine  into  the  nature  of  the  act,  and  declare  it  void,  if  it 
appears  to  them  more  than  merely  unwise ;  if,  in  short,  in  their 
mental  scale  it  falls  into  the  class  of  acts  arbitrarily  interfering 
with  the  individual's  liberty  or  property. 

You  will  note  that  I  say  that  the  courts  here  either  have 
been  given  or  have  assumed  this  right.  This  is  a  subject  on 
which  those  learned  in  our  constitutional  history  differ.  No 
one,  at  least  no  responsible  person,  accuses  the  courts  of  having 
assumed,  without  any  grounds  for  the  assumption,  that  they 
could  disregard  acts  of  the  legislature  which  to  them  arbitrarily 
restricted  the  individual's  choice  of  action.  Some  earlier  judges 
took  the  position  that  a  legislative  act  which  interfered  with 
what  they  regarded  as  inherent  individual  rights,  was  void 
because  free  governments  were  established  to  protect  such 
rights,  and  when  the  people  adopted  a  constitution  and  vested 
all  legislative  power  in  a  legislature,  they  impliedly  withheld 
the  power  to  deprive  the  individual  of  his  inherent  rights.  In 
modern  times,  as  we  have  drifted  away  from  the  assumption 
that  man  has  "  inherent  rights,"  the  courts  in  setting  aside  acts 
of  the  legislature  which  to  them  appear  grossly  arbitrary,  have 
relied  on  express  declarations  in  the  bill  of  rights  which  ac- 
companies every  state  constitution.  Now  there  are  in  the  fed- 
eral constitution  and  in  all  state  constitutions  clauses  which  it 
may  be  contended  were  intended  to  prohibit  legislation  arbi- 
trarily interfering  with  the  individual's  freedom  of  action  or 
with  his  right  to  use  his  property  as  he  thinks  best.     The  fifth 

(89) 


42  EFFICIENT  GOVERNMENT  [Vol.  Ill 

amendment  to  the  federal  constitution  provides  that  the  federal 
government  shall  not  deprive  any  one  of  "  life,  liberty,  or 
property,  without  due  process  of  law."  The  fourteenth  amend- 
ment imposes  a  similar  prohibition  on  the  states.  Provisions 
similarly  worded  are  found  in  a  large  number  of  state  constitu- 
tions. In  some  constitutions  we  find  in  the  bill  of  rights  an 
express  declaration  that  all  men  have  "  certain  indefeasible 
rights,  among  which  are  those  of  enjoying  and  defending  life 
and  liberty,  of  acquiring,  possessing  and  protecting  property 
and  reputation  and  of  pursuing  their  own  happiness." 

In  interpreting  the  meaning  of  these  clauses  the  courts  were 
obliged  to  determine  two  questions.  First,  did  or  did  not  those 
who  adopted  the  constitution  by  inserting  these  words  intend 
to  declare  that  the  legislature  should  not  pass  an  act  arbitrarily 
interfering  with  the  individual's  liberty  or  property,  or  did  they 
merely  intend  to  declare  that  an  administrative  officer  or  any 
one  else  should  not,  without  the  warrant  of  legislative  act,  inter- 
fere with  the  individual's  liberty  or  property?  Practically  all 
our  courts,  including  the  Supreme  Court  of  the  United  States, 
have  decided  that  the  clause  relating  to  due  process  of  law  and 
similar  clauses  prohibit  arbitrary  legislative  interference  with 
the  individual's  freedom  of  action,  whether  in  the  use  of  prop- 
erty or  in  the  making  of  contracts.  The  publicist  or  constitu- 
tional lawyer,  examining  our  history,  may  doubt  the  correct- 
ness of  this  conclusion ;  but  there  has  been  no  vacillation  in  the 
position  of  our  courts. 

Having  decided  that  the  clauses  referred  to  prohibit  acts  of 
the  legislature  arbitrarily  interfering  with  the  individual  in  his 
use  of  his  property  or  his  power  to  make  such  contracts  as  he 
pleases,  the  courts  were  confronted  by  a  second  question.  The 
constitution,  while  prohibiting  arbitrary  legislative  interference 
with  the  liberty  of  the  individual,  does  not  give  any  standard 
by  which  to  judge  an  act  as  to  whether  or  not  it  is  arbitrary. 
Should  the  courts  therefore  refuse  to  enforce  the  provisions  of 
the  constitution,  or  should  they  do  the  best  they  can  and  declare 
those  acts  void  which  impress  them  as  unquestionably  arbitrary 
and  unfair,  or  which  are  in  their  opinion  arbitrary  and  unfair 
according  to  generally  received  standards?     I  do  not  mean  to 

(90) 


No.  2]  THE  RECALL  OF  JUDICIAL  DECISIONS  43 

say  that  the  judges  went  through  any  such  analysis  in  the  first 
cases  involving  the  contention  that  an  act  deprived  a  person  of 
his  liberty  without  due  process  of  law  because  it  interfered 
arbitrarily  with  his  right  to  make  a  particular  contract  or  use 
his  property  in  a  particular  way.  The  law  does  not  grow  in 
that  way.  For  instance,  in  1884,  the  late  Judge  Gordon,  of  the 
supreme  court  of  Pennsylvania,  was  presented  with  the  question, 
is  an  act  prohibiting  the  payment  of  wages  in  store  orders  con- 
stitutional? He  did  not  consider  it  necessary  to  examine 
elaborately  its  provisions  or  to  analyze  the  processes  by  which 
he  came  to  the  conclusion  that  it  was  contrary  to  a  state  con- 
stitutional provision.  To  him  such  an  act  was  without  question 
well  within  that  part  of  his  mental  scale  of  restrictive  legal  acts 
labeled  "  arbitrary  and  unfair."  His  state  had  a  constitution ; 
the  constitution  had  a  bill  of  rights  in  which  was  a  general 
clause  inserted  to  prevent  arbitrary  legislation.  To  him  the 
act  in  question  was  abitrary  legislation.  He  had  no  doubt 
about  it.  And,  therefore,  he  contented  himself  with  remarking 
that  the  act  was  one  which  could  not  be  passed  in  this  country. 

From  the  time  of  Marshall's  decision  in  Marbury  z;.  Madison, 
the  people  of  this  country  have  been  familiar  with  the  court's 
refusal  to  regard  as  law  acts  of  the  legislature  contrary  to  the 
constitution.  Though  there  had  always  been  a  few  people  who 
insisted  that  the  courts  should  follow  the  legislative  act,  leaving 
it  to  the  people  at  the  polls  to  rebuke  the  legislature,  most  of  us 
have  always  seen  the  importance,  if  we  are  to  preserve  govern- 
ment under  written  constitutions,  of  the  decision  of  the  great 
Chief  Justice.  We  have  also  recognized  the  logical  strength  of 
the  position  that  if  a  court  finds  a  legislative  act  clearly  in  con- 
flict with  a  provision  of  the  constitution  under  which  the  legis- 
lature acts,  the  courts  should  follow  the  constitution  and  not 
the  legislative  act. 

The  function  preformed  by  the  court  in  most  constitutional 
cases  is  to  preserve  the  intent  of  the  people  on  some  clearly 
defined  subject  as  expressed  in  the  constitution.  For  instance, 
experience  convinces  the  majority  of  the  people  that  the 
legislature  should  not  have  power  to  pass  a  law  applying  to  one 
borough.     They  adopt  a  constitution  in  which  they  expressly 

(91) 


44  EFFICIENT  GOVERNMENT  [Vol.  Ill 

say  that  no  special  law  shall  be  passed  relating  to  one  borough. 
Subsequently,  the  legislature  passes  a  bill  which  violates  this 
provision.  The  court  in  refusing  to  recognize  the  law  is  pre- 
serving the  constitution  as  the  people  adopted  it. 

For  a  long  time  it  was  assumed  that  when  an  act  imposing 
restrictive  legal  conditions  was  overthrown  by  a  court  because 
it  deprived  individuals,  "without  due  process  of  law,"  of  the 
right  to  contract  or  to  use  their  property,  the  court  was  per- 
forming a  function  in  no  way  different  from  its  function  in  any 
other  constitutional  case.  In  one  sense  this  is  true.  The  con- 
stitution does  say:  "No  one  shall  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law,"  and  in  the  opinion  of 
the  court  the  act  in  question  does  so  deprive  the  individual.  In 
disregarding  the  act  the  court  is  preserving  the  constitution. 
But  why  does  the  act,  which  we  will  say  restricts  the  hours  of 
labor,  deprive  persons  of  their  liberty  or  property  without  due 
process?  There  are  three  possible  answers:  first,  because  it  is 
arbitrary  in  the  opinion  of  the  court;  or  second,  because  it  is 
arbitrary  according  to  the  court's  opinion  as  to  what  was  con- 
sidered arbitrary  legislation  at  the  time  of  the  adoption  of  the 
constitution;  or  third,  because  it  is  arbitrary  according  to  the 
present  generally  received  opinion  of  what  is  arbitrary.  In 
any  case,  the  court  is  not,  as  in  all  other  constitutional  cases, 
interpreting  a  precise  declaration  in  the  constitution,  but  is 
measuring  by  some  more  or  less  uncertain  mental  scale  what 
is  and  what  is  not  arbitrary  and  unfair  legal  restriction  on 
individual  action. 

It  is  perhaps  a  fair  question  whether  the  action  of  our  courts 
in  this  class  of  cases  is  or  is  not  in  accordance  with  the  ideas  of 
those  who  put  into  our  federal  and  state  constitutions  bills  of 
rights  containing  clauses  against  depriving  a  person  of  his 
liberty  or  property  without  due  process  of  law,  or  similar  gen- 
eral declarations.  Quite  aside  from  this  question,  there  is 
much  to  be  said  in  practise  for  a  system  which  provides  that 
an  act  of  the  legislature,  which  in  the  opinion  of  men  trained 
in  the  law,  and  having  a  knowledge  of  our  legal  history,  arbi- 
trarily interferes  with  the  freedom  of  the  individual  to  contract, 
or  do  some  other  act,  should  not  become  a  law  until  the  people 

(92) 


No.  2]  THE  RECALL  OF  JUDICIAL  DECISIONS  45 

have  a  chance  to  say  at  the  polls  whether  or  not  they  wish  that 
act  to  become  law.  Admitting  that  no  other  civilized  country 
lives  under  a  system  in  which  the  judges  act  practically  like  a 
council  of  elder  statesmen,  vetoing  acts  which  shock  their  sense 
of  justice,  is  there  not  much  to  be  said  in  favor  of  the  system? 

At  the  same  time  the  most  thorough  Tory  and  Conservative 
among  us  has  never  contended  for  a  moment  that,  if  a  per- 
sistent majority  of  the  people  want  an  act,  they  should  not  have 
the  right  to  put  their  desire  into  effect  in  spite  of  the  opinion 
of  the  court  that  the  act  arbitrarily  deprives  a  person  of  his 
liberty  or  property.  The  only  difference  is  as  to  the  method 
by  which  this  desire  on  the  part  of  the  persistent  majority  of 
the  people  should  be  carried  out.  At  the  present  time  we  have 
only  one  method,  the  formal  amendment  of  the  constitution. 
If,  for  instance,  in  New  York  a  compulsory  workmen's  com- 
pensation act  is  declared  to  be  contrary  to  the  state  constitution 
because  it  arbitrarily  takes  the  property  of  the  employer  away 
from  him  without  due  process  of  law,  under  existing  conditions 
the  people  of  New  York,  if  they  have  a  persistent  desire  for  the 
act,  must  amend  their  state  constitution.  Indeed,  this  is  what 
they  are  doing  at  the  present  time.  Why,  it  may  be  asked,  is 
not  this  a  perfectly  satisfactory  method? 

Let  us  admit  that  it  is  not  wholly  unsatisfactory.  An  amend- 
ment can  be  drawn  and  has  been  drawn  reciting  what  are 
regarded  as  the  essential  elements  of  a  compulsory  workmen's 
compensation  act;  on  the  adoption  of  this  amendment  the  act 
can  be  re-passed.  This  method  of  formal  amendment,  in  con- 
trast to  the  so-called  recall  of  judicial  decisions,  is  often  spoken 
of  as  "  the  orderly  method  of  amendment."  And  yet  is  it 
orderly?  After  you  adopt  your  amendment  how  does  your 
constitution  read?  In  effect  it  reads  as  follows:  "Arbitrary 
legislation  interfering  with  the  individual's  freedom  of  contract 
or  taking  his  property  shall  not  be  passed,  but  any  act  having 
the  essential  elements  of  a  compulsory  workmen's  compensation 
act,  no  matter  how  arbitrary,  may  be  passed."  The  process  of 
amendment  may  be  orderly ;  but  is  there  not  something  which 
looks  very  much  like  disorder  in  the  result?  Should  the 
courts  of  any  state  declare  much  legislation  affecting  social  and 

(93) 


46  EFFICIENT  GOVERNMENT  [Vol.  Ill 

industrial  conditions  unconstitutional  because  it  deprives  the 
individual  of  his  liberty  or  his  property  without  due  process  of 
law,  the  constitution  of  that  state  would  soon  become  in  large 
part  a  series  of  long  statements  as  to  what  could  be  done  in 
spite  of  the  due-process-of-law  clause.  It  does  not  take  much 
foresight  to  perceive  that  if  in  any  state  there  exists  for  any 
length  of  time  a  difference  of  opinion  as  to  the  necessity  for  and 
arbitrary  character  of  certain  social  legislation  passed  under  the 
so-called  police  power  of  the  state,  it  will  not  be  long  before 
the  people  will  adopt  an  amendment  wiping  out  forever  the 
due-process  provision  of  their  bill  of  rights. 

The  real  trouble  with  our  present  method  of  amending  the 
due-process-of-law  clause  whenever  the  courts  under  that  clause 
have  declared  unconstitutional  an  act  persistently  desired  by 
the  people,  is  that  it  is  not  an  orderly  because  not  a  scientific 
method  of  meeting  the  situation.  The  method  of  formal 
amendment  in  such  cases  fails  to  recognize  the  nature  of  the 
function  which  the  court  has  performed  in  this  class  of  consti- 
tutional cases.  The  court  has  not  declared  that  the  act  violates 
a  provision  in  the  constitution  which  is  clear,  precise  and  defi- 
nite, and  which  if  the  people  do  not  like  they  should  abolish. 
The  real  situation  is  that  the  court  has  been  given,  or  has 
assumed,  whichever  you  will,  under  this  due-process-ot-law 
clause  or  some  other  similar  clause  in  the  bill  of  rights,  the 
right  or  power  to  declare  unconstitutional  an  act  which  is  con- 
trary either  to  its  own  or  to  the  generally  received  ideas  of 
social  justice,  and  therefore  subversive  of  inherent  individual 
rights.  What  the  people  need  in  such  a  case  is  not  the  power 
to  adopt  formal  amendments  to  the  due-process-of-law  clause ; 
it  is  not  the  power  to  take  a  whole  realm  of  possible  legislation 
and  declare  that  thereafter  any  law  falling  within  this  realm,  no 
matter  how  arbitrary,  shall  thereafter  be  constitutional.  The 
court  has  declared  in  effect  that  a  certain  act  is  arbitrary,  and 
as  such  subversive  of  the  rights  of  the  individual.  But  if  in 
fact  the  act,  to  the  majority  of  the  people,  does  not  seem  arbi- 
trary, they  should  have  a  method  by  which  the  act  can  become 
law,  without  forcing  them,  by  the  passage  of  formal  amend- 
ments to  the  due-process  clause  of  the  bill  of  rights,  to  deprive 

(94) 


No.  2]  THE  RECALL  OF  JUDICIAL  DECISIONS  47 

the  court  of  all  power  to  arrest  social  legislation  of  the  same 
class,  however  arbitrary  or  unfair  such  legislation  may  be. 
This  is  exactly  the  power  which  it  is  proposed  to  give  to  the 
people  by  the  proposition  known  as  the  recall  of  judicial 
decisions.  In  one  sense  it  is  a  method  of  temporarily  amend- 
ing the  constitution.  In  another  it  is  an  attempt  to  preserve 
the  present  power  of  the  courts  to  stop  legislation  which  they 
believe  contrary  to  the  sense  of  social  justice  persistently  prev- 
alent in  the  community  from  going  into  effect  until  that  com- 
munity has  been  given  an  opportunity  to  express  through  the 
ballot  its  own  opinion  of  the  act. 

(95) 


THE  RECALL  OF  JUDICIAL  DECISIONS' 

CLARENCE  D.  ASHLEY 
Dean  of  the  Law  School  of  New  York  University 

NO  reasonable,  thoughtful  man  would  attempt  to  sustain 
the  proposition  for  the  recall  of  judicial  decisions  in  its 
widest  sense.  Judicial  decisions  may  occur  in  litigation 
between  parties,  and  the  title  does  not  necessarily  exclude  jur^' 
trials.  Of  course  no  one  really  desires  to  have  a  recall  which 
shall  apply  to  such  cases.  We  have  recently  had  a  murder 
trial,  and  the  jury  has  reached  a  certain  conclusion.  There  is 
an  appeal  to  the  court  of  appeals.  Suppose  we  exclude  the 
verdict  of  the  jury,  and  confine  the  question  to  the  decision  of 
the  court.  Do  we  mean  that  in  case  the  court  decides  for  re- 
versal there  should  be  an  appeal  to  popular  vote?  Of  course 
such  an  idea  is  absurd.  Yet  many  suppose  the  proposition  to 
be  that  the  people  shall  pass  on  any  judicial  decision,  whether 
arising  in  individual  cases  or  in  those  concerning  governmental 
and  general  public  interest.  In  the  first  place,  if  we  limit  the 
proposal  to  cases  of  public  interest  it  becomes  difficult  to  draw 
the  line  between  such  questions  and  those  concerning  the  indi- 
vidual. A  man  tried  for  murder  is  personally  much  concerned, 
and  so  is  the  public.  When  it  concerns  the  police,  the  govern- 
ment also  is  interested.  These  trials,  then,  are  of  public  inter- 
est. Very  few  will  attempt  to  draw  the  line  here,  and  the  best 
thinkers  have  wisely  limited  the  proposal  to  some  specific  topic. 
One  prominent  writer  says  that  he  would  limit  the  recall  to 
cases  of  due  process  of  law.  What  is  meant  by  that  term  ? 
What  does  the  constitution  mean?  Some  lawyers  may  have  a 
definite  answer  for  this  question.  Personally  I  have  not,  and  I 
have  not  met  one  who  has.  In  a  special  instance  you  may  say 
that  certain  action  deprives  the  defendant  of  due  process  and  is 
forbidden  by  the  constitution,  but  can  you  say  generally  how 
"due   process"    should    be   defined?     Do  you  mean   that   the 

'  Read  at  the  meeting  of  the  Academy  of  Political  Science,  October  26,  191 2. 

(96) 


THE  RECALL  OF  JUDICIAL  DECISIONS  49 

courts  are  to  have  power  to  determine  whether  in  a  given  case 
the  question  of  due  process  has  arisen  or  not,  and  whether  the 
recall  is  applicable  to  the  case?  Surely  it  is  not  intended  to 
leave  the  determination  of  this  question  to  the  courts.  That 
would  negative  the  whole  proposition.  And  who  is  to  decide  if 
the  courts  do  not?  Suppose  that  in  some  way  a  judicial  de- 
cision is  about  to  be  submitted  to  the  people  for  review,  and 
some  one  wishes  to  enjoin  this  submission  on  the  theory  that 
this  is  not  a  proper  case  for  the  exercise  of  the  recall,  in  that  it 
does  not  involve  the  question  of  due  process — there  seems  to  be 
no  tribunal  to  decide  the  question.  Even  though  one  court 
holds  an  act  unconstitutional  on  the  ground  that  there  has  not 
been  due  process  of  law,  another  court  may  find  that  the  ques- 
tion of  constitutionality  does  not  arise. 

Dean  Lewis,  very  wisely  it  seems  to  me,  regards  the  question 
as  limited  to  amendments  of  the  constitution.  We  often  imag- 
ine that  the  constitution  is  at  fault,  when  as  a  matter  of  fact 
the  difficulty  is  with  a  decision  or  the  framing  of  a  bill.  Re- 
cently the  court  of  appeals  of  New  York  reversed  a  case  on 
the  ground  that  a  certain  statute  was  unconstitutional.  A  great 
deal  of  criticism  was  leveled  at  the  decision.  Another  bill 
was  drawn  the  following  year  which  avoided  the  defects  criti- 
cized by  the  court.  It  carried  out  every  object  that  the  original 
draftsman  had  in  view,  and  also  complied  with  the  require- 
ments of  the  constitution.  No  constitutional  amendment  was 
needed,  but  merely  intelligence  arid  skill  on  the  part  of  the 
draftsman.  Again,  it  was  said  the  income  tax  was  improperly 
held  to  be  unconstitutional.  The  supreme  court  for  many  years 
held  that  an  income-tax  law  was  constitutional,  but  now  a  de- 
cision says  that  it  is  not.  The  fault  is  not  with  the  constitution, 
and  the  original  view  held  by  the  court  for  years  may  some- 
time be  reaffirmed,  and  the  desired  result  reached  without  any 
amendment.  My  belief  is  that  the  federal  constitution  owes  its 
strength  mainly  to  the  fact  that  it  is  general  and  does  not 
attempt  particulars.  It  lays  down  general  rules  of  conduct  and 
then  leaves  the  matter  to  Congress  to  work  out  in  detail.  From 
this  characteristic  comes  its  adaptability  to  changing  conditions. 
Its  provisions  are  fundamental. 
L  '97) 


50  EFFICIENT  GOVERNMENT  [Vol.  Ill 

If  you  find  that  a  bill  is  incorrectly  drawn  there  can  be  no 
quicker  process  than  to  have  it  redrawn  and  submitted  the  next 
year.  There  seems  to  be  no  sound  objection  to  such  a  course. 
We  must  educate  the  draftsmen  of  our  bills,  the  thinkers  among 
the  public,  and  mainly  our  lawyers.  That  is  why  the  present 
public  discussions  may  be  objectionable.  They  distract  our  at- 
tention from  the  real  points  of  danger.  I  believe  that  many  of 
our  rules  of  law  are  wrong.  I  think  we  are  living  under  a  sys- 
tem adapted  in  some  respects  to  a  civilization  existing  three 
hundred  years  ago.  It  seems  to  me  that  some  sweeping  changes 
might  well  be  made.  Thus  we  might  abolish  our  rules  of  evi- 
dence, which  are  simply  rules  of  exclusion.  So,  too,  we  could 
modify  the  subject  of  contract,  and,  for  example,  do  away  with 
what  seems  to  be  the  unnecessary  and  ha.mful  doctrine  of  con- 
sideration. I  would  change  many  other  branches  of  our  law. 
Thus  we  know  that  our  criminal  procedure  is  at  fault  and  that 
there  are  many  technicalities  which  allow  rascals  to  escape. 
There  is  a  vast  amount  of  traditional  reverence  for  what  was 
quite  proper  four  or  five  hundred  years  ago,  but  is  not  so  now. 
We  know  that  many  sound  decisions  shock  common  sense.  Do 
not  complain  of  these  things,  but  get  them  changed  by  the  leg- 
islature. 

Our  study  should  be  mainly  directed  towards  a  solution  of 
these  difficult  questions.  Once  bring  our  law  in  accord  with 
modern  civilization  and  many  of  our  troubles  will  cease.  Let  us 
devote  ourselves  to  a  study  of  existing  conditions,  and  determine 
how  best  we  can  educate  our  people  and  lawyers,  so  that  these 
problems  may  be  scientifically  and  carefully  worked  out.  We 
have  a  disease ;  we  do  not  want  quack  medicines,  such  as  are 
often  suggested  for  the  evils  that  exist.  If  we  go  ahead  trying 
all  the  various  remedies,  the  result  probably  will  be  that  the  sit- 
uation will  become  far  worse  than  it  was  before.  We  should  be- 
come more  patient.  I  do  not  believe  that  any  thoughtful  man 
would  really  want  the  restraints  upon  our  impulses  taken  away. 
We  speak  of  the  people — we  generally  mean  "other  people" 
when  we  say  "  the  people  " — as  acting  thoughtlessly,  but  the  ed- 
ucated man  is  just  as  likely  to  be  carried  away  by  the  emotions 
of  the  moment ;   anybody  may  feel  the  madness  of  the  mob. 

(98) 


No.  2]  THE  RECALL  OF  JUDICIAL  DECISIONS  5  i 

Therefore  we  all  need  checks.  What  these  should  be  is  a  ques- 
tion requiring  thought,  but  I  believe  this  entire  present-day- 
movement  arises,  not  necessarily  because  the  people  are  dissat- 
isfied with  the  power  of  the  courts, ^not  necessarily  because  they 
believe  that  the  English  system  without  written  constitution  'is 
best  for  our  people,  but  because  they  justly  believe  that  there  is 
something  wrong.  We  should  devote  our  energies  to  seeing 
-what  is  the  real  evil. 

We  say  the  people  in  the  long  run  are  right,  and  that  is  so ; 
but  we  do  not  mean  that  they  are  necessarily  right  when  they 
are  carried  away  by  excitement.  No  intelligent  man  wants  a 
decision  to  rest  on  such  a  foundation.  We  must  protect  our- 
selves against  this  result,  but  we  should  not  be  so  conservative 
as  to  prevent  any  reformation.  Let  us  bring  about  the  desired 
changes  in  an  orderly,  sound,  scientific  manner.  This  is  not  an 
easy  thing  to  do,  and  requires  much  thought.  It  demands  pro- 
found study,  and  able,  experienced,  thoroughly  trained  lawyers 
should  give  their  earnest  thoughts  to  the  task,  thus  saving  the 
people  and  our  profession,  for  the  good  of  the  people  depends 
on  keeping  our  profession  sound. 

(99) 


THE   DEVELOPMENT   OF   AMERICAN 
CONSTITUTIONAL    LAW 

MUNROE   SMITH 
Professor  of  Comparative  Jurisprudence,  Columbia  University 

AMERICAN  public  law  is  peculiar,  if  not  unique,  in  the 
extent  to  which  the  powers  of  our  representative  legis- 
latures are  restricted  by  written  constitutions.  Many 
of  the  existing  restrictions  are  required  by  our  federal  form  of 
government.  The  fact  that  the  field  of  legislative  action  is 
divided  between  the  federal  Congress  and  the  state  legislatures 
has  compelled  us  to  limit,  in  one  way  or  in  another,  the  powers 
of  both,  either  by  indicating  what  they  may  do  or  by  stating 
what  they  may  not  do.  There  are,  however,  other  restrictions 
that  are  not  required  by  the  federal  form  of  government.  Our 
federal  and  state  constitutions  contain  special  prohibitions  de- 
signed to  prevent  the  misuse  of  legislative  power.  The  most 
important  of  these  special  prohibitions  are  those  which  are  de- 
signed to  protect  personal  liberty  and  private  property  and  to 
maintain  a  formal  legal  equality. 

Natural  Rights 

These  special  prohibitions,  introduced  in  our  earliest  and 
repeated  in  our  latest  constitutions,  embody  principles  which 
had  slowly  taken  form,  in  Europe,  during  a  period  of  more 
than  two  thousand  years.  The  interests  which  they  protect 
had  come  to  be  known  as  "  natural  rights,"  and  these  natural 
rights  were  regarded  as  part  of  a  body  of  "  natural  law."  To 
this  natural  law  many  European  theorists,  from  the  period  of  the 
Stoics  to  the  times  of  Locke  and  Rousseau,  had  ascribed  a  tran- 
scendent authority  ;  and  some  of  them  had  claimed  that  laws  es- 
tablished by  human  authority  which  were  not  in  harmony  with 
natural  law  were  not,  properly  speaking,  entitled  to  the  name 
or  to  the  force  of  law.     In  those  instances,  however,  in  which 

'  Read  at  the  meeting  of  the  Academy  of  PoHtical  Science,  October  26,  1912. 

(100) 


AMERICAN  CONSTITUTIONAL  LA  W 


53 


the  recognized  political  authorities  could  not  be  induced,  by 
argument  or  by  agitation,  to  change  the  positive  law  or  its 
interpretation,  no  method  had  been  discovered  by  which  the 
law  of  nature  could  be  made  to  prevail  except  that  of  revolu- 
tion. Our  separate  national  life  began  in  a  revolution,  justified 
by  appeals  to  natural  law ;  and  in  our  constitutions  we  have 
elevated  a  certain  number  of  natural-law  principles  to  the  posi- 
tion of  supreme  positive  law. 

The  Judicial  Power 

Our  public  law  is  unique,  again,  in  the  extent  to  which  the 
interpretation  and  enforcement  of  constitutional  restrictions 
upon  legislation  are  entrusted  to  f.he  judiciary.  The  ground 
upon  which  Hamilton  and  others  based  their  assertion  that  this 
power  belongs  to  the  courts,  at  least  in  what  are  called  "  non- 
political  "  questions,  involving  private  rights,  remains  unshaken. 
That  a  representative  legislature  of  limited  authority  cannot 
validly  act  beyond  the  scope  of  its  authority  is  self-evident. 
That,  if  it  attempts  to  do  this,  its  act  is  not  law,  and  that  it  is 
the  right  and  the  duty  of  the  courts,  in  deciding  cases,  to  de- 
cide what  is  and  what  is  not  law,  seemed  to  Hamilton  and 
to  Marshall  equally  evident.  Although  this  theory,  when  first 
formulated,  was  disputed,  and  has  often  since  been  combated — 
although  it  has  been  strongly  urged,  in  particular,  that  it  ignores 
the  distinction  between  a  legislature  whose  power  is  coordinate 
with  that  of  the  court  which  undertakes  to  restrain  it  and  a 
legislature  whose  power  is  subordinate — nevertheless  this  theory 
also  has  been  accepted.  The  question  has  been  settled  in  prac- 
tise. The  judicial  power  rests  upon  a  basis  more  solid  than 
any  written  text :  it  rests  upon  our  established  constitutional 
custom. 

In  the  development  of  our  constitutional  custom,  however, 
the  judicial  power  has  proved  to  be  greater  than  was  perhaps 
originally  foreseen  by  its  most  far-seeing  advocates.  The  pro- 
visions in  our  constitutions  which  prevent  our  legislatures  from 
interference  with  private  rights  are  brief  in  their  wording  and 
broad  in  their  scope.  Drawn,  as  we  have  seen,  from  the  theory 
of  natural  rights,  as  formulated   in  the  eighteenth  century,  they 

(loi) 


54  EFFICIENT  GOVERNMENT  [Vol.  Ill 

have  much  of  the  vagueness  which  has  always  characterized 
natural  law.  This  law,  as  Hobbes  long  ago  said,  is,  more  than 
any  other,  in  need  of  an  interpreter.  In  confiding  its  interpreta- 
tion to  the  courts,  we  have  enabled  them  to  make  much  unwritten 
constitutional  law. 

On  the  whole,  the  peculiar  features  of  our  constitutional  sys- 
tem have  stood  the  test  of  time.  For  more  than  a  century,  at 
any  rate,  and  until  recently,  the  system  has  worked  fairly  well 
in  its  proper  field.  When  the  courts  have  attempted  or  have 
been  constrained  to  extend  their  control  over  matters  essentially 
or  mainly  political,  as  the  federal  Supreme  Court  did  in  the 
Dred  Scott  case  and  in  the  legal-tender  and  income-tax  cases, 
the  results  have  been  less  satisfactory ;  and  in  recent  years  the 
Supreme  Court  has  acted  wisely  in  avoiding  the  questions  raised 
by  the  restriction  of  suffrage  in  the  Southern  States  and  by  the 
adoption  of  the  initiative  and  referendum  in  Oregon.  Legal 
questions  that  are  ultimately  economic  and  social,  rather  than 
political,  form,  under  our  system,  the  proper  domain  of  the 
judicial  power;  and  it  is  in  this  domain  that  the  system  has 
worked  satisfactorily.  It  is,  however,  possible  that  its  satis- 
factory operation  has  been  due,  in  large  measure,  to  the  per- 
sistence, until  a  recent  period,  of  the  economic  and  social  con- 
ditions which  prevailed  when  it  was  first  established.  For 
colonial  and  frontier  life,  for  the  settlement  and  development  of 
a  vast  expanse  of  territory,  free  individual  initiative  and  unre- 
strained social  cooperation  are  of  the  highest  value,  and  a  mini- 
mum of  legal  restraint  and  governmental  supervision  is  desir- 
able. It  is  a  well-known  fact  that  French  and  German  colonies 
do  not  thrive  to-day  as  English  colonies  have  thriven ;  and  this 
is  attributed  by  French  and  German  writers  to  an  unduly  elab- 
orate system  of  governmental  management  and  restraint — to 
what  the  Germans  call  das  Assessore7it)nim.  Apparently,  how- 
ever, as  this  country  has  become  settled,  as  its  population  has 
become  denser  and  its  economic  system  more  complex,  the 
restriction  of  governmental  action  and  the  extraordinary  pro- 
tection accorded  to  private  rights  have  become  less  satisfactory. 
There  is  a  growing  demand  for  legislation  intended  to  establish 
a  more  equal  liberty  and  a  less  mechanical  equality — for  what 

(102) 


No.  2]  AMERICAN  CONSTITUTIONAL  LAW  § 5 

is  called  "  social  "  legislation.  It  has  been  found  that  legislative 
measures  of  this  sort  have  great  difficulty  in  running  the  gaunt- 
let of  the  courts.  The  fact  that  some  such  measures  have  been 
pronounced  unconstitutional  has  aroused  popular  dissatisfaction ; 
there  have  been  many  protests ;  there  is  a  popular  agitation 
against  the  degree  of  control  which  our  courts  exercise  over 
legislation.  The  situation  is  one  that  can  no  longer  be  met  by 
exclusively  legal  reasoning:  the  issues  are  political. 

Popular  Sovereignty 

When  the  federal  constitution  of  1787  was  submitted  to  the 
conventions  of  the  several  states,  Hamilton  made  an  ingenious 
effort  to  reconcile  the  judicial  coiitrol  of  legislation  with  the 
principle  of  popular  sovereignty.  His  political  argument  has 
not  worn  so  well  as  his  legal  reasoning.  His  theory  that  the 
courts,  in  refusing  to  give  effect  to  an  unconstitutional  law,  are 
simply  giving  effect  to  the  intention  of  the  sovereign,  preferring 
the  intention  of  the  people  to  the  intention  of  their  agents, 
seemed  more  satisfactory  at  the  time  than  it  does  to-day.  It 
does  not  now  fit  all  the  facts. 

The  Development  of  Our  State  Constitutions 

In  the  several  states,  indeed,  the  written  constitutions  are  now 
more  obviously  the  expression  of  the  will  of  the  people  than 
they  were  in  Hamilton's  day.  In  his  time,  and  later,  state  con- 
stitutions, like  ordinary  laws,  were  adopted  by  representative 
bodies.  To-day  it  has  become  our  practise  to  submit  constitu- 
tional revisions  and  amendments  to  popular  vote.  At  the  same 
time,  however,  other  changes  have  occurred  that  tend  to  modify 
the  relation  of  the  state  courts  to  the  state  electorates,  because 
they  tend  to  efface,  within  the  several  states,  the  distinction  be- 
tween constitutional  law  and  ordinary  law. 

In  the  first  place,  the  field  assigned  to  constitutional  law,  as 
contrasted  with  the  ordinary  law,  has  been  greatly  extended,  until 
today  the  matters  with  which  each  is  concerned  have  come  to  be 
largely  identical.  Like  our  federal  constitution,  our  first  state 
constitutions  were  frames  of  government  and  bills  of  rights. 
By  successive  amendments  and  revisions,  our  later  state  consti- 

(103) 


56  EFFICIENT  GOVERNMENT  [Vol.  Ill 

tutions  have  projected  themselves  more  and  more  extensively 
over  the  fields  of  legislative  procedure,  criminal  law  and  pro- 
cedure, private  law  and  civil  procedure.  When  a  legislature  has 
done  something  which,  in  the  opinion  of  the  people  of  the  state, 
it  ought  not  to  have  done,  constitutional  amendment  has  usually 
withdrawn  from  its  competence  the  field  of  action  in  which  it 
went  astray.  When  a  legislature  has  left  undone  something 
which,  in  the  opinion  of  the  people,  it  ought  to  have  done,  con- 
stitutional amendment  has  frequently  dealt  with  the  matter  in 
the  form  of  positive  regulation.  The  popular  dissatisfaction 
with  representative  legislatures  has  also  expressed  itself  in  con- 
stitutional amendments  which  permit  legislatures  to  assemble 
but  once  in  two  years  and  limit  the  duration  of  their  sessions. 

These  changes,  which  have  fettered  and  largely  crippled  the 
representative  legislatures  of  our  states,  have  brought  in  their 
train  another  important  change.  The  direct  popular  action  now 
required  in  many  matters  for  the  development  of  state  law  is 
assuming  a  new  form.  In  addition  to  the  process  of  constitu- 
tional amendment  by  referendum,  we  have  now,  in  many  of  our 
states,  a  process  of  legislation  by  referendum,  and  to  the  legis- 
lative referendum  some  of  these  states  have  added  the  popular 
initiative.  With  this  change,  the  distinction  between  constitu- 
tional law  and  ordinary  law  becomes  even  hazier.  The  exten- 
sion of  constitutional  law^  over  the  field  of  ordinary  law  had 
already  largely  effaced  the  distinction  between  the  two  bodies  of 
law  as  regards  the  matters  with  which  they  respectively  deal. 
The  development  of  direct  popular  legislation  wholly  effaces  the 
distinction  between  constitutional  law  and  ordinary  law  as  re- 
gards the  source  from  which  they  respectively  emanate.  The 
only  distinction  that  remains  is  procedural.  If  a  measure  be 
submitted  to  and  approved  by  the  electorate  in  the  manner  pre- 
scribed for  amendment  of  the  constitution,  it  becomes  part  of 
the  superior  constitutional  law.  If  it  be  submitted  and  ap- 
proved in  the  manner  prescribed  for  direct  legislation,  it  be- 
comes part  of  the  inferior  ordinary  law.  If  the  methods  of 
submission  and  approval  are  substantially  the  same  in  both 
cases,  the  distinction  is  purely  nominal :  a  measure  that  is  de- 
scribed, in  its  title,  as  an  amendment  to  the  constitution  is  con- 
stitutional law ;   a  measure  not  so  described  is  ordinary  law. 

(104) 


No.  2]  AMERICAN  CONSTITUTIONAL  LAW  57 

Under  these  conditions,  Hamilton's  political  reasoning  is  on 
longer  applicable.  If  a  state  adopts  by  popular  vote  a  measure 
that  is  not  described  as  an  amendment  to  the  constitution,  and 
if  the  state  judiciary  declares  this  measure  unconstitutional,  the 
court  is  not  preferring  the  intention  of  the  people  to  the  inten- 
tion of  their  agents;  it  is  preferring  the  earlier  intention  of 
the  people  to  their  later  intention,  their  forethought  to  their 
afterthought. 

When  we  consider  the  constant  and  irresistible  action  of 
political  facts  upon  formal  law,  it  is  a  serious  question  whether 
the  distinction  which  is  still  drawn  in  our  states  between  consti- 
tutional amendment  and  direct  legislation  can  long  be  main- 
tained. From  the  point  of  view  of  the  popular-sovereignty 
theory,  it  is  quite  illogical  that  the  courts  should  have  power  to 
declare  direct  legislation  unconstitutional.  This  may  well  be 
regarded  as  an  argument  against  direct  legislation  ;  but  we  have 
not  now  to  consider  whether  this  form  of  legislation  is  or  is  not 
desirable.  It  exists  and  it  is  spreading;  it  is,  accordingly  a 
political  fact;  and  what  we  must  take  into  account  is  the  effect 
of  this  fact  upon  our  political  theory  and  practise. 

The  ''Recall  of  Decisions'' 

That  the  formal  distinction  between  the  constitutional  law 
and  the  ordinary  law  of  our  states  is  tending  to  break  down  and 
disappear  is  drastically  illustrated  by  a  proposal  that  has  at- 
tracted much  attention  during  the  past  few  months,  the  mis- 
called "  recall  of  decisions."  The  proposal  is  that  a  law  which 
has  been  pronounced  unconstitutional  by  the  highest  court  of  a 
state,  on  the  ground  that  it  is  in  conflict  with  the  state  constitu- 
tion, shall,  on  popular  initiative,  be  submitted  to  popular  vote, 
and,  if  approved  by  the  electorate,  shall  become  law. 

This  proposal  is  a  wholly  natural  and  absolutely  logical  pro- 
duct of  the  "  people's  rule  "  movement.  Moreover,  however 
little  Hamilton  would  have  liked  to  see  his  own  artillery  turned 
against  his  own  political  intrenchments,  the  proposal  is  logically 
consistent  with  the  popular-sovereignty  theory  which  he  em- 
ployed in  defense  of  the  judicial  power.  If,  in  pronouncing  a 
law  unconstitutional,  the  judiciary  represents  and  acts  for  the 

(105) 


58  EFFICIENT  GOVERNMENT  [Vol.  Ill 

people,  preferring  their  intention  to  that  of  their  legislative 
agents,  it  is  not  easy  to  show  why  the  intention  of  the  people, 
directly  declared,  is  not  to  be  preferred  to  that  of  their  judicial 
agents.  If,  on  referendum,  the  voters  of  the  state  may  disallow 
the  act  of  one  set  of  agents,  it  is  difficult  to  see  why  they  may 
not  similarly  disallow  the  act  of  another  set  of  agents. 

It  is  said,  in  reply,  that  a  judicial  interpretation  of  law  is  a 
different  thing  from  an  act  of  legislation.  From  the  popular- 
sovereignty  point  of  view,  however,  the  difference  is  immaterial : 
the  interpretation  of  constitutional  law  by  a  court  and  the  act 
passed  by  a  representative  legislature  are,  each  of  them,  at- 
tempts of  agents  of  the  people  to  express  the  intention  of  the 
people.  And  in  fact  the  distinction  between  legislation  and  ju- 
dicial decision  is  largely  a  formal  one.  Every  authoritative  in- 
terpretation of  written  law  establishes  a  rule  of  law;  and,  if  the 
law  to  be  interpreted  be  general  in  its  terms,  interpretation  may 
make  a  great  many  rules  of  law.  This  fact  is  recognized  in  our 
legal  theory:  the  Supreme  Court  of  the  United  States  has  more 
than  once  invalidated  a  judicial  decision  rendered  by  the  highest 
court  of  a  state,  on  the  ground  that  a  state  may  not  make  "  a 
law  "  impairing  the  obligation  of  contract. 

Recognition,  however,  that  a  proposal  is  logically  consistent 
with  accepted  political  theory  has  never  been  regarded  by  any 
English-speaking  people  as  a  sufficient  reason  for  adopting  it. 
When  a  change  in  political  practise  is  proposed,  such  a  people 
always  inquires,  first,  whether  any  change  is  necessary;  second, 
how  the  proposed  change  is  likely  to  work. 

The  first  of  the  questions  is  answered  by  the  opponents  of 
the  "  recall "  proposal,  by  pointing  out  that  in  most  of  our 
states  it  is  easy  to  amend  the  constitution.  In  some  of  our 
states  such  an  amendment  may  be  proposed  either  by  the  legis- 
lature or  by  a  small  minority  of  voters,  and  may  be  adopted, 
with  little  delay,  by  a  majority  of  those  who  vote  on  the  pro- 
posal. If  in  other  states  the  process  of  amendment  is  unduly 
difficult  or  protracted,  the  obvious  and  sufficient  remedy  is  to 
change  the  process.  On  the  other  hand,  the  advocates  of  the 
"  recall "  proposal  insist  that  the  ordinary  process  of  amend- 
ment has  unnecessary  and  undesirable  results  which  the  "  recall  " 

io6) 


No.  2]  AMERICAN  CONSTITUTIONAL  LAW  59 

avoids.  This  contention  was  first  clearly  and  intelligibly  pre- 
sented by  Dean  Lewis  of  the  University  of  Pennsylvania  Law 
School.  He  maintains  that  the  "  recall "  is  not  only  a  more 
efficient  instrument  for  adapting  written  constitutions  to  chang- 
ing economic  and  social  conditions,  but  that  it  preserves  the 
judicial  control  over  unconstitutional  legislation  which  the  ordin- 
ary form  of  amendment  tends  to  impair.  This  last  assertion 
seems  to  me  to  be  true. 

The  question  how  the  "  recall "  will  work  in  other  respects — 
the  question,  in  particular,  of  its  immediate  practical  results  as 
distinguished  from  its  ultimate  theoretical  results — has  been 
little  discussed.  In  endeavoring  to  indicate  how  it  will  prob- 
ably work,  we  must,  of  course,  take  the  proposal  as  it  is  now 
formulated.  It  is  obviously  impossible  to  consider  how  all  other 
conceivable  proposals  of  a  similar  general  character  might 
operate. 

The  constitutional  restriction  upon  legislation  which  has  at- 
tracted most  attention  during  the  past  few  years,  and  which  has 
elicited  most  discussion  during  the  past  few  months,  is  found  in 
provisions  requiring  legislative  measures  to  conform  to  "  due 
process  of  law."  And,  inasmuch  as  it  has  long  been  recognized 
by  our  courts  that  due-process  restrictions  may  cease  to  be  ap- 
plicable and  operative  when  legislative  action  is  taken  under  the 
"  police  power,"  this  power  also  has  been  much  discussed.  The 
discussion  has  not  turned  upon  the  proper  meaning  of  due 
process  or  upon  the  extent  of  the  police  power.  The  question 
is :  how  the  interpretation  which  the  courts  give  to  these  ex- 
pressions is  to  be  controlled ;  how  the  people  are  to  exercise  a 
power  to  determine,  in  last  instance,  what  their  constitutional 
law  shall  be. 

As  the  "recall"  proposal  was  originally  presented  by  Mr. 
Roosevelt,  the  referendum  on  decisions  was  not,  apparently,  to 
be  limited  to  due-process  cases;  it  was  to  be  available  whenever 
a  state  law  was  declared  to  be  invalid  because  in  conflict  with 
any  provision  of  the  state  constitution.  In  view,  however,  of  the 
inconvenient  and  even  absurd  results  that  might  possibly  be  pro- 
duced by  an  unlimited  "  recall,"  it  is  now  proposed  that  refer- 
enda on  decisions  shall  be  limited  to  due-process  cases.     The 

(107) 


6o  EFFICIENT  GOVERNMENT  [Vol.  Ill 

proposal  is  so  formulated,  for  example,  by  Mr.  William  L. 
Ransom  in  his  recent  book  on  Majority  Rule  and  the  Judiciaryy 
to  which  Mr.  Roosevelt  contributes  an  introduction. 

In  order  that  we  may  see  how  this  limited  "recall"  would 
probably  work,  let  us  take  a  situation  which  has  already  been 
much  discussed,  which  has  been  frequently  chosen  by  the  ad- 
vocates of  the  "recall"  to  illustrate  the  need  of  a  new  remedy, 
and  which  Mr.  Ransom  claims  would  be  remedied  by  a  "  recall  " 
limited  to  due-process  cases.  Let  us  take  the  situation  which 
exists  in  New  York  as  regards  compensation  of  workmen,  or  of 
their  widows  and  children,  in  cases  of  injury  or  death  caused  by 
industrial  accidents.  A  law  passed  by  the  state  legislature  was 
pronounced  unconstitutional  by  the  Court  of  Appeals,  because 
it  proposed  to  take  the  money  of  the  employers  without  due 
process  and  was  not  within  the  sphere  of  the  police  power.  It 
is  claimed  that  a  "  recall  "  limited  to  due-process  cases  would 
have  sufficed  to  validate  the  law  and  make  it  immediately 
effective.  But,  in  pronouncing  this  law  unconstitutional,  the 
New  York  Court  of  Appeals  declared  that,  for  the  purpose  of 
reaching  a  decision,  it  was  not  necessary  for  the  court  to  deter- 
mine whether  the  act  was  unconstitutional  solely  as  denying  due 
process.  It  declined,  in  particular,  to  decide  whether  it  was 
unconstitutional  as  denying  the  employers'  right  to  trial  by  jury. 
It  seems  clear,  therefore,  that  even  if  the  decision  of  the  court 
had  been  "  recalled,"  the  law  would  have  been  validated  only 
so  far  as  due  process  was  concerned,  and  that  the  question  which 
the  Court  of  Appeals  declined  to  decide  would  remain  open. 
If,  when  this  issue  was  raised,  the  Court  of  Appeals  should 
again  declare  the  law  unconstitutional,  it  would  apparently  be 
necessary,  under  the  limited-recall  program,  to  introduce  a  new 
amendment  to  the  constitution,  widening  the  scope  of  the  recall, 
and  to  institute  a  new  referendum.  If  the  new  amendment 
were  limited  in  its  application  to  the  matter  of  jury  trial,  it  is 
not  impossible  that  question  might  arise  whether  the  law  was  not 
in  conflict  with  some  other  provision  of  the  constitution,  or  with 
the  general  spirit  of  the  constitution. 

So  numerous  are  the  grounds  upon  which  any  law  that  at- 
tempts to  realize  what  is  to-day  described  as  "social  justice" 

(io8) 


No.  2]  AMERICAN  CONSTITUTIONAL  LAW  6 1 

may  conceivably  be  pronounced  unconstitutional,  that  it  will  be 
no  easy  task  to  frame  a  recall  amendment  that  will  cover  all 
these  grounds  and  yet  remain  limited  in  its  scope.  It  seems 
doubtful,  to  put  it  mildly,  whether  any  recall  proposal  thus  far 
formulated  promises  to  secure  a  more  speedy  adaptation  of  our 
state  constitutions  to  changing  conditions  than  the  existing 
process  of  substantive  amendment.  It  seems  highly  improb- 
able that  it  will  bring  to  a  more  prompt  and  satisfactory  con- 
clusion any  differences  of  opinion  or  of  sentiment  between  the 
state  courts  and  the  state  electorates.  For  a  single  political 
battle,  terminated  by  a  single  substantive  amendment,  the 
limited  "  recall "  appears  to  substitute,  primarily  at  least,  a 
prolonged  political  war,  in  which  the  electorate  would  realize 
its  intention  only  after  several  campaigns.  Moreover,  after 
each  campaign,  the  limited  recall  would  be  widened  in  its  opera- 
tion ;  and  it  would  thus  gradually  approach  that  unlimited 
recall  which  the  supporters  of  the  plan  do  not  at  present 
advocate. 

A  more  fundamental  objection,  which  applies  to  any  con- 
ceivable form  of  referendum  on  laws  pronounced  unconstitu- 
tional, is  that  it  offers  us  a  crude  and  unsatisfactory  means 
of  obtaining  the  end  desired.  The  purpose  of  the  proposed 
referendum  is  to  obtain,  particularly  in  matters  of  natural  right, 
popular  expressions  of  the  sense  of  social  justice.  Such  ex- 
pressions are  to  create  precedents  which  the  state  courts  are  to 
follow.  It  is,  however,  extremely  improbable  that  the  elector- 
ate will  consciously  attempt  to  express  its  sense  of  social 
justice.  The  great  majority  of  the  voters  will  express  their 
varying  judgments  as  to  the  probable  effects,  good  or  bad, 
of  the  particular  measure  submitted  to  them.  If  it  be  replied 
that  the  majority  judgment  will  contain,  by  implication,  an 
expression  of  its  prevailing  sense  of  justice,  it  may  be  remarked 
that  implications  are  matters  of  opinion,  and  that  widely  differ- 
ent implications  may  be  discovered  in  every  such  popular 
decision.  After  every  general  election  there  appear  widely 
different  theories  as  to  what  was  really  "  the  verdict  of  the 
people."  It  may  be  added  that  successive  referenda  on  differ- 
ent measures  may  well  contain  implications  that  cannot  easily 

(109) 


62  EFFICIENT  GOVERNMENT  [Vol.  Ill 

be  reconciled.  The  difficulty  which  the  courts  now  experience 
in  determining  the  true  reasons  for  their  own  decisions  on  con- 
stitutional questions  will  appear  slight  indeed  in  comparison 
with  the  difficulty  which  they  will  encounter  if  they  be  called 
upon  to  determine,  first,  what  intuitions  of  social  justice  seem 
to  be  implied  in  a  series  of  popular  decisions,  and,  second,, 
what  rules  of  constitutional  interpretation  can  be  formulated 
that  will  express  these  intuitions.  To  the  average  lawyer  such 
a  process  of  developing  law  seems  fantastic :  hence  the  gener- 
ally hostile  reaction  of  the  legal  profession  to  the  "recall" 
proposal.  To  the  student  of  legal  history,  on  the  other  hand^ 
the  process  is  not  fantastic  but  familiar.  It  was  by  this  very 
process — the  expert  interpretation  of  popular  decisions — that 
law  was  taking  form  in  the  Mediterranean  city-states  twenty-five 
centuries  ago  and  again  among  the  Teutons  fifteen  centuries 
ago.  If  the  reaction  of  the  legal  historian  to  the  proposal 
is  also  hostile,  it  is  not  because  the  process  seems  novel  but  be- 
cause it  is  seen  to  be  archaic.  Like  the  whole  direct-govern- 
ment movement,  of  which  it  is  a  product,  it  is  a  reversion  to  the 
primitive  processes  of  early  civilization. 

The  Development  of  the  Federal  Constitution 

Closely  connected  with  the  problem  of  adapting  our  state 
constitutions  to  changing  social  and  economic  conditions  is  the 
problem  of  the  development  of  our  federal  constitutional  law. 
The  due-process  requirement  and  other  restrictions  found  in 
our  state  constitutions  are  contained  in  the  federal  constitution 
also ;  and  a  state  court  may  declare  an  act  of  a  state  legislature 
invalid  because  it  is  in  conflict  with  the  supreme  organic  law  of 
the  nation  as  well  as  with  the  constitution  of  the  state.  The 
New  York  Workmen's  Compensation  Act,  for  example,  was 
declared  to  be  in  conflict  with  the  federal  as  well  as  the  state 
constitution ;  and  it  would  apparently  remain  invalid  even  if 
the  due-process  clause  of  the  state  constitution  were  amended 
or  overridden.  This  being  the  case,  it  seems  singular  that 
at  present  there  should  be  so  much  discussion  of  means  of 
developing  our  state  constitutions  and  so  little  discussion  of  the 
possibility  of  developing  the  federal  constitution. 

(no) 


No.  2]  AMERICAN  CONSTITUTIONAL  LAW  63 

The  explanation  is,  of  course,  that  during  the  last  few  years 
the  attitude  of  the  federal  Supreme  Court  toward  social-reform 
legislation  has  been  more  friendly,  or  at  least  more  tolerant, 
than  that  of  some  of  our  state  courts.  At  Washington  the 
judicial  interpretation  of  due  process  has  come  to  be  less  purely 
historical  than  at  some  of  our  state  capitals,  and  a  somewhat 
wider  scope  has  been  attributed  to  the  police  power. 

When  the  highest  court  of  a  state  has  declared  a  law  invalid, 
because  in  conflict  with  the  federal  constitution,  there  is  at 
present  no  possibility  of  appeal  to  the  federal  Supreme  Court. 
Appeal  can  be  taken  only  when  the  law  is  declared  to  be  con- 
stitutional. This  rule,  however,  is  statutory ;  it  is  contained  in 
the  federal  Judiciary  Act.  For  the  present,  accordingly,  the 
effort  of  those  who  desire  to  promote  social-reform  legislation 
is  very  properly  concentrated  on  the  proposal  so  to  amend  the 
Judiciary  Act  that  all  cases  involving  a  question  of  federal  con- 
stitutional law  may  be  carried  to  the  federal  Supreme  Court. 
Such  a  change,  coupled  with  substantive  amendment  of  the 
state  constitution  or  with  the  adoption  of  the  "  recall  of  de- 
cisions" in  the  several  states,  will  doubtless,  as  things  stand, 
make  the  course  of  social-reform  legislation  run  much  more 
smoothly.  If  appeal  lies  to  the  Supreme  Court,  the  state 
courts,  in  their  interpretation  of  the  federal  constitution,  will 
follow  more  closely  the  decisions  of  the  federal  judiciary ;  and 
it  will  be  increasingly  difficult  for  them  to  maintain  divergent 
interpretations  of  similar  provisions  in  the  state  constitutions. 

For  the  present,  then,  this  opportunist  program  seems  to 
meet  the  situation.  It  should,  however,  be  remembered  that, 
while  the  attitude  of  the  federal  Supreme  Court  is  at  present 
satisfactory  to  friends  of  social-reform  legislation,  this  has  not 
always  been  the  case.  It  was  not  the  case  a  few  years  ago, 
when  the  Supreme  Court  decided  by  a  bare  majority  (five  to 
four)  that  the  New  York  legislature  could  not  limit  the  hours  of 
adult  male  labor  in  bakeries.  At  that  time  the  United  States 
Supreme  Court  was  subjected  to  nearly  as  much  criticism  as 
has  since  been  directed  against  the  New  York  Court  of  Appeals. 
The  subsequent  change  observable  in  the  attitude  of  the  Su- 
preme Court  is  coincident  with  an  unusually  rapid  change  in  its 

(III) 


64  EFFICIENT  GOVERNMENT  [Vol.  Ill 

membership;  and  the  appointments  which  have  so  largely 
changed  its  membership  were  made  during  the  period  in  which 
there  was  widespread  criticism  of  its  conservative  position. 
There  is  no  conclusive  reason  to  assume  that  this  court  may  not 
again,  at  some  future  time,  become  at  least  as  conservative  as 
the  majority  of  the  state  courts. 

The  problem  of  adapting  our  federal  constitution  to  changing 
economic  and  social  conditions,  although  for  the  moment  rele- 
gated to  the  background  of  political  discussion,  will  in  the  long 
run  be  recognized  as  far  more  important  than  the  problem  of 
constitutional  amendment  in  the  several  states.  Its  solution  is 
far  more  difficult.  Formal  amendment  of  the  federal  constitu- 
tion is  almost  impossible.  During  the  last  hundred  years  no 
amendments  have  been  adopted  except  those  that  followed  and 
sealed  the  victory  of  the  national  forces  in  the  Civil  War.  If, 
as  now  seems  probable,  the  pending  income-tax  amendment  be 
adopted,  it  must  be  remembered  that  this  proposal  has  come 
before  the  country  under  exceptionally  favorable  auspices.  Pro- 
posed by  a  Republican  President,  approved  by  the  Senate  unani- 
mously and  opposed  in  the  House  of  Representatives  by  only 
fourteen  members,  it  has  the  further  advantage  of  presenting 
itself,  not  as  an  innovation,  but  as  a  restoration.  It  accords  to 
Congress  a  power  which  that  body  has  previously  exercised  with 
the  approval  of  the  Supreme  Court,  and  of  which  it  has  been  de- 
prived only  because  that  court  has  reversed  itself.  The  failure  of 
this  amendment,  indeed,  would  go  far  to  prove  that  formal 
change  of  the  federal  constitution  is  at  present  impossible,  but 
its  adoption  should  not  unduly  elate  those  who  desire  further 
amendments.  The  absurdity  of  the  existing  process  of  amend- 
ment is  best  illustrated  by  the  fact  that  thirteen  states  contain- 
ing less  than  5  per  cent  of  the  total  state  population  could  de- 
feat an  amendment  supported  by  thirty  states  containing  about 
95  per  cent  of  the  total  state  population.  Under  such  a  pro- 
cess, amendment  of  the  federal  constitution  is  possible  only  by 
what  is  practically  almost  unanimous  consent.  And  even  where 
consent  is  so  general  as  to  be  almost  unanimous,  the  process  is 
exceedingly  slow,  as  is  shown  by  the  fact  that  the  income-tax 
amendment  was  submitted  to  the  state  legislatures  three  and  a 

(112) 


No.  2]  AMERICAN  CONSTITUTIONAL  LAW  65 

half  years  ago  and  has  received  but  thirty-four  of  the  thirty- 
six  state  votes  required. 

The  difficulty  of  formal  amendment  has  forced  us  to  develop 
our  federal  constitution  largely  by  interpretation ;  and  as,  in  all 
matters  not  of  a  strictly  political  character,  the  power  of  final 
interpretation  has  been  accorded  to  the  judiciary,  the  greater 
part  of  our  unwritten  constitutional  law  is  found  in  the  federal 
law  reports.  So  great  is  the  power  of  interpretation  to  make  law, 
especially  when  the  text  to  be  interpreted  is  so  concise  as  is  that 
of  the  federal  constitution,  and  so  freely  has  the  Supreme  Court 
made  use  of  this  power,  that  to  many  students  it  seems  that 
formal  amendment  is  unnecessary.  To  many,  however,  it  seems 
doubtful  whether  our  federal  constitution  meets  all  the  needs  of 
the  existing  generation,  and  few  will  be  so  bold  as  to  affirm 
that  it  can  be  adapted  without  formal  amendment  to  meet  all  the 
needs  of  the  generations  yet  to  be  born.  And  if  a  point  is 
reached  at  which  the  constitution  cannot  be  bent  by  the  economic 
and  other  social  forces  which  it  already  checks,  there  is  danger 
that  it  will  be  broken. 

Here,  again,  Hamilton's  defense  of  the  judicial  power  has  be- 
come unsatisfactory.  The  greater  part  of  the  written  constitu- 
tion took  form  one  hundred  and  twenty-five  years  ago ;  its  most 
recent  provisions  were  adopted  nearly  half  a  century  ago ;  and 
when  the  Supreme  Court  declares  a  law  invalid  because  in  con- 
flict with  the  constitution,  it  is  not  preferring  the  intention  of 
the  people  of  the  United  States  to  that  of  their  agents ;  it  is 
preferring  the  intention  of  the  dead  to  that  of  the  living.  To 
infer  any  real  consent  of  the  living  from  their  acquiescence, 
when  change  is  almost  impossible  except  by  revolution,  is  to 
employ  a  legal  fiction. 

It  is  not  yet  formally  proposed  to  apply  a  popular"  recall  "  to 
the  decisions  of  the  federal  judiciary;  but  there  have  been  sug- 
gestions that,  if  the  system  should  be  introduced  and  should  ap- 
prove itself  in  the  several  states,  it  might  be  extended  to  the 
nation.  The  chief  difficulty  which  will  be  encountered  by  any- 
one who  endeavors  to  formulate  a  proposal  for  the  submission 
of  constitutional  questions  to  the  people  of  the  United  States  is 
that,  in  public  law,  the  people  means  the  electorate,  and  that 

5  ("3) 


66  EFFICIENT  GOVERNMENT  [Vol.  Ill 

there  is  no  national  electorate.  Nor  can  the  forty-eight  state 
electorates  fitly  be  recognized  for  any  purpose  whatever  as 
a  national  electorate.  The  conditions  on  which  the  different 
states  grant  the  right  to  vote  are  so  diverse  that  a  popular 
majority  obtained  in  a  nation-wide  vote  would  neither  de- 
serve nor  receive  serious  consideration.  Such  a  majority  might 
possibly  be  due  to  the  fact  that  in  nine  or  ten  states  the  total 
vote,  and  consequently  the  majorities  recorded,  were  doubled 
by  woman  suffrage.  It  might  be  due  to  the  fact  that  negroes, 
who  vote  freely  in  the  northern  and  western  states,  are  prac- 
tically excluded  from  the  suffrage  in  the  southern  states.  To  the 
total  affirmative  and  negative  votes  of  these  forty-eight  elec- 
torates no  legal  significance  could  reasonably  be  attached  unless 
the  conditions  of  voting  were  equalized.  A  "  recall "  of  the 
decisions  of  the  federal  judiciary  could,  of  course,  be  legalized 
only  by  constitutional  amendment.  Unless  such  a  proposal  car- 
ried with  it  the  further  proposal  that  Congress  be  empowered 
to  determine  who  should  vote,  it  would  assuredly  be  rejected 
because  of  its  absurdity.  If  it  carried  with  such  a  further  pro- 
posal, it  would  probably  be  rejected  by  the  votes  of  the  south- 
ern states  alone,  even  if  the  rest  of  the  country  favored  it.  For 
these  reasons,  if  there  were  no  others,  the  "  recall"  of  federal 
judicial  decisions  must  be  regarded  as  a  matter  of  speculative  in- 
terest only.  For  the  present,  at  least,  it  is  not  in  the  realm  of 
practical  politics. 

There  remains  the  question  whether  the  federal  constitution 
cannot  be  made  more  adaptable  to  social  changes  by  changing 
the  process  of  amendment.  Here,  in  my  opinion,  we  reach  the 
heart  of  the  question  that  is  before  us.  The  amending  clause 
of  the  federal  constitution  can  be  amended  by  the  vote  of  three- 
fourths  of  the  states.  A  new  and  less  difficult  method  of  amend- 
ment, if  thus  legalized,  would  make  it  possible  to  change  by 
orderly  and  constitutional  process  any  provision  of  the  existing 
constitution  except  that  which  assures  to  all  the  states  equal 
representation  in  the  federal  Senate.  The  different  plans  which 
have  been  proposed  for  amendment  of  the  amending  clause  in 
the  federal  constitution  are  so  fully  discussed  in  Mr.  Thompson's 
paper  that  they  need  not  here  be  noted.     By  the  adoption  of 

(114) 


No.  2]  AMERICAN  CONSTITUTIONAL  LAW  6/ 

any  of  these  plans  the  constitutional  situation  would  be  radically 
improved.  To  Senator  LaFollette's  plan  there  is,  however,  one 
serious  objection.  Starting  with  the  sound  idea  that  a  majority 
of  states  is  required  by  the  federal »principle  and  a  popular  ma- 
jority by  the  democratic  principle,  he  proposes  to  recognize  the 
forty-eight  state  electorates  as  a  national  electorate,  and  to  treat 
a  majority  resulting  from  the  combination  of  the  heterogeneous 
votes  cast  in  the  forty-eight  states  as  a  true  popular  majority. 
The  objections  to  such  a  procedure  have  already  been  stated. 

Conflicting  Legal  Theories 

There  is,  as  the  political  debates  of  the  past  year  have 
shown,  a  large  and  respectable  body  of  American  citizens  who 
deny  the  necessity  of  adapting  our  written  constitution  to 
changing  economic  and  social  conditions.  They  are  satisfied 
with  our  present  organic  laws.  They  are  particularly  averse  to 
qualifying,  in  any  manner,  the  protection  which  our  written 
constitutions  give  to  personal  liberty  and  to  private  property. 
They  are  equally  averse  to  impairing  the  formal  legal  equality 
of  all  persons  which  these  instruments  safeguard.  They  not  only 
object  to  any  formal  change  in  what  Professor  Burgess  has 
described  as  "  the  constitutional  organization  of  liberty,"  but 
they  dislike  any  modification  of  the  existing  organization  by 
re-interpretation  of  the  old  formulas. 

Men  of  this  way  of  thinking  are  especially  numerous  in  the 
legal  profession.  The  ordinary  lawyer  is  mainly  concerned 
with  the  protection  of  private  rights,  and  in  helping  to  protect 
them  he  renders  valuable  service  to  society  as  well  as  to  his 
clients.  General  social  interests  are  less  obvious  to  him  :  they 
are  in  the  background  of  his  daily  life  and  thought;  private 
rights  are  in  the  foreground. 

Most  of  these  persons,  whether  lawyers  or  laymen,  are  in 
reality  adherents  of  the  school  of  natural  law.  The  lawyer  who 
has  read  his  Hobbes  or  his  Austin  may  assent,  intellectually,  to 
the  doctrine  that  law  is  the  expression  of  the  will  of  the  political 
sovereign  ;  the  lawyer  who  knows  his  Maine  or  his  Holmes  may 
similarly  assent  to  the  theory  that  law  is  a  historical  product; 
the  one  may  call   himself  an  analytical,  the  other  a  historical 

(lis) 


68  EFFICIENT  GOVERNMENT  [Vol.  Ill 

jurist ;  but  if  either  feels  that  there  are  legal  principles  which 
the  sovereign  cannot  modify  and  which  historical  development 
merely  exhibits,  he  is  really  a  disciple  of  the  natural-law  school. 
Similarly,  many  laymen,  who  know  nothing  of  the  wranglings 
of  the  philosophical  schools,  are  instinctively  adherents  of  the 
school  of  natural  law,  although  they  might  be  as  much  sur- 
prised to  hear  this  as  was  Moliere's  M.  Jourdain  when  he 
discovered  that  he  had  unwittingly  talked  prose  all  his  life. 

Between  such  persons,  and  those  who  believe  that  law  is 
a  social  instrument  which  men  deliberately  fashion  to  serve 
their  purposes,  or  those  who  believe  that  it  is  a  product  of  the 
entire  social  life  and  must  needs  change  with  changing  social 
conditions,  discussion  is  difficult. 

It  may  be  an  irenic  suggestion  to  say  that  each  of  these 
philosophical  theories  has  in  it  a  core  of  truth,  but  that,  as  none 
is  wholly  false,  so  none  embodies  the  whole  truth.  There  are 
conditions  of  social  life  and  progress  which  are  so  essential  that 
no  legal  system  can  disregard  them,  without  imperiling  the 
welfare  and  possibly  the  existence  of  the  society  which  it 
governs.  These  conditions  may  be  described  as  determined 
by  nature.  As  far  as  they  fit  into  the  framework  of  law  and 
are  capable  of  statement  as  legal  principles,  they  are  appropri- 
ately described  as  natural  law.  Again :  the  cooperation  on 
which  human  society  is  based  is  not  mechanical,  like  that  of 
the  ant-hill ;  it  is  a  cooperation  of  free  individuals  whose  per- 
sonality is  not  wholly  merged  in  any  group  and  whose  interests 
are  indeed  subordinated  but  not  sacrificed  to  group  interests. 
The  human  type  of  cooperation  is  one  that  leaves  room  for 
competition;  and  social  progress  is  largely  the  result  of 
limited  competition.  The  protection  of  human  personality 
and  of  individual  interests,  the  staking-off  of  fields  of  free 
competition — these  are  necessary  conditions  of  social  life 
among  men,  and  they  find  expression  in  the  so-called  natural 
rights  of  the  human  being.  On  the  other  hand,  the  precise 
adjustment  of  social  and  individual  interests  is  not,  as  far 
as  we  can  see,  determined  by  nature.  It  is  determined  in 
large  measure  by  the  historical  development  of  societies ;  it 
changes,  and  apparently  must  change,  as  social  conditions  are 
modified.     It  is  also  determined,  to  a  considerable  degree,  by 

(ii6) 


No.  2]  AMERICAN  CONSTITUTIONAL  LA  W  69 

the  human  will.  And  when  the  conditions  of  social  life  and 
progress  and  the  adjustment  of  social  and  individual  interests 
are  to  be  expressed  in  written  laws  and  constitutions,  the  human 
will  has  complete  freedom.  The  content  of  legal  rules  may  be 
determined  by  nature  or  by  history ;  their  form  is  determined 
by  human  authority.  It  may  then  be  conceded  that,  in  a  very 
real  sense,  there  is  natural  law  and  there  are  natural  rights.  It 
does  not  follow,  however,  that  any  statement  of  this  law  or  any 
formulation  of  these  rights  can  be  eternally  valid.  All  such 
statements  and  formulations  require  continuous  evolutive  inter- 
pretation ;  and  from  time  to  time  there  will  be  need  of  restate- 
ments and  reformulations. 

(117) 


5   • 


DISCUSSION    OF   THE    ADAPTATION    OF    WRITTEN 

CONSTITUTIONS  TO  CHANGING  ECONOMIC 

AND    SOCIAL  CONDITIONS' 

HENRY    ROGERS    SEAGER 
Professor  of  Political  Economy,  Columbia  University 

AS  an  advocate  of  labor  laws,  some  of  which  have  been 
held  unconstitutional,  I  might  be  expected  to  dissent 
from  Professor  Goodnow's  conclusions.  Instead,  my 
experience  and  observation,  not,  of  course,  as  a  constitutional 
lawyer,  but  merely  as  a  student  of  labor  legislation,  cause  me  to 
agree  with  every  important  position  he  has  taken.  I  believe, 
as  he  does,  that  judicial  interpretation  can  and  will  adapt  our 
federal  constitution  to  our  changing  economic  and  social  condi- 
tions. There  is  nothing  in  that  instrument,  as  he  has  shown, 
which  expressly  bars  the  way  to  a  thorough-going  program  of 
social  and  labor  legislation.  Where  the  way  has  been  barred 
by  decisions  of  the  Supreme  Court,  as  in  the  reactionary 
decision  holding  the  ten-hour  bake-shop  law  of  this  state 
unconstitutional,  the  cause  has  clearly  been  not  in  the  constitu- 
tion, but  in  the  personal  opinions  and  prejudices  of  the  judges 
called  on  to  interpret  the  constitution.  To  prove  this  conten- 
tion it  is  necessary  only  to  recall  that  in  the  case  referred 
to  four  out  of  the  nine  judges,  quite  as  able  and  learned-in-the- 
law  as  their  colleagues,  took  an  exactly  opposite  view  of  the 
meaning  of  the  constitution.  Moreover,  it  was  a  reflection  on 
the  intelligence  of  the  American  people  to  ask  them  to  believe 
that  their  fundamental  law,  which  had  been  held  a  few  years 
before  to  permit  the  state  of  Utah  to  prohibit  the  employment 
of  men  in  underground  mines  and  smelters  for  more  than  eight 
hours  a  day,  would  not  permit  the  state  of  New  York  to  pro- 
hibit their  employment  in  bakeries  for  more  than  ten  hours 
a  day.     In  all  decisions  involving  the  scope  of  the  police  power, 

'At  the  meeting  of  the  Academy  of  Political  Science,  October  26,  1912. 

(118) 


CONSTITUTIONS  AND  SOCIAL  CONDITIONS  71 

that  is,  the  question  as  to  how  far  the  liberty  of  the  individual 
may  be  curbed  to  promote  the  larger  social  interests  of  the 
community,  we  are  clearly  in  the  domain  of  fallible  and  chang- 
ing opinion.  Judicial  opinion  is  only  one  segment — a  con- 
servative segment,  no  doubt — of  general  public  opinion.  As 
public  opinion  is  aroused  to  industrial  evils  and  voices  itself  in 
legislation  regulating  labor  and  other  social  conditions,  judicial 
opinion  will  respond.  In  only  a  few  instances,  and  then  by 
bare-majority  decisions  certain  to  be  subsequently  reversed,  has 
the  Supreme  Court  of  the  United  States  refused  to  uphold 
measures  consonant  with  the  prevailing  morality  and  the  gener- 
ally accepted  opinion  of  the  day. 

While  I  agree  with  Professor  Goodnow's  conclusions,  I  should 
emphasize  even  more  strongly  than  he  has  done  the  importance 
of  the  changes  in  our  legal  system  which  are  necessary  to  make 
the  process  of  adaptation  by  judicial  interpretation  work  freely 
and  easily.  With  the  fourteenth  amendment  to  the  federal 
constitution  given  the  broad  scope  which  it  now  has,  I  should 
like  to  see  the  bills  of  rights  amended  out  of  the  state  constitu- 
tions all  together.  Private  rights  do  not  require  the  double 
constitutional  protection  which  they  now  enjoy.  The  only  im- 
portant result  of  it  is  that  labor  and  other  laws  which  have  good 
prospect  of  being  upheld  by  the  federal  Supreme  Court  are 
often  declared  unconstitutional  by  the  less  able  and  less  pro- 
gressive state  courts  of  last  resort.  If  this  proposal  seems  to 
go  too  far,  certainly  there  can  be  no  valid  objection  to  making 
the  machinery  for  amending  a  state  constitution  so  simple  and 
so  ready  in  its  operation  that  measures  like  the  workmen's  com- 
pensation act  which  was  held  unconstitutional  by  our  court 
of  appeals  and  which  have  public  opinion  overwhelmingly 
behind  them,  can  be  within  a  reasonable  period  expressly 
authorized  by  constitutional  amendment- 

The  necessary  corollary  to  machinery  for  the  easy  amend- 
ment of  state  constitutions  is  the  other  measure  of  which 
Professor  Goodnow  spoke,  a  federal  statute  permitting  appeal 
to  the  federal  courts  whenever  the  interpretation  of  the  consti- 
tution of  the  United  States  is  the  issue  on  which  a  decision 
turns.     That  appeal  may  be  taken  from  decisions  upholding 

(119) 


72 


EFFICIENT  GOVERNMENT 


Statutes  and  not  from  decisions  declaring  statutes  unconstitu- 
tional is  an  anomaly  in  our  present  system  which  history  may 
explain  but  which  logic  can  not  defend. 

With  state  constitutions  that  may  be  easily  amended  and  the 
right  to  appeal  to  the  federal  Supreme  Court  whenever  there  is 
a  question  as  to  what  the  federal  constitution  permits  or  does 
not  permit,  I  believe  we  should  be  able  to  enjoy  all  of  the  ad- 
vantages which  come  from  written  constitutions  and  at  the  same 
time  largely  escape  the  disadvantages,  of  which  we  have  been 
made  so  conscious  in  the  last  few  years, 

(120) 


DISCUSSION  OF  WRITTEN  CONSTITUTIONS  AND 
SOCIAL  CONDITIONS 

MILES  M.  DAWSON 
New  York  City 

IT  is  singular  that  among  the  various  proposals  to  reform  and 
improve  methods  of  legislation  the  adoption,  with  appro- 
priate alterations,  of  the  republican  government  plan  long 
in  use  in  Great  Britain,  her  dependencies  and  other  countries, 
has  not  been  more  frequently  advocated. 

The  cause  is,  seemingly,  that  our  written  constitutions  in  state 
and  nation  do  not  lend  themselves  readily  to  insensible,  gradual 
modification,  and  when  they  were  adopted,  responsible  govern- 
ment had  not  so  far  developed,  even  in  Great  Britain,  that  its 
true  nature  was  comprehended. 

Even  at  this  day,  while  the  parliamentary  government  of 
Great  Britain  is  well  understood  by  students  of  governmental 
theories,  it  is  not  understood  by  the  mass  of  our  population, 
though  such  a  system  has  been  in  use  for  many  years  in  Canada 
and  its  superiority  is  the  boast  of  all  Canadians.  We  are  too 
prone  to  assume  that  responsibility  of  government  to  the  voters 
prevails  so  generally  that  Americans  must  have  understood  and 
deliberately  discarded  it.     Such  is  by  no  means  the  case. 

Scarcely  half  the  countries  of  Europe  enjoy  parliamentary 
government  with  a  responsible  ministry.  The  Norwegians 
separated  from  Sweden  to  obtain  it.  In  Sweden  and  in  Den- 
mark, the  voters  are  still  struggling  without  success  to  wrest 
from  the  crown  the  right  to  hold  the  ministry  responsible. 
Finland  enjoyed  this  right  till  recently.  In  Germany,  Austria, 
Russia,  and  other  countries,  responsible  parliamentary  govern- 
ment does  not  exist. 

Except  in  the  United  States,  however,  it  is  found  wherever 
free  government  exists ;  without  excepting  the  United  States, 
it  may  be  said  that  it  is  found  in  every  country  where  govern- 
ment is  not  frequently  a  failure,  in  failing  to  execute  the  policies 

(121) 


74  EFFICIENT  GOVERNMENT  [Vol.  Ill 

approved  at  the  polls.  Witness  the  complete  breakdown  of 
successive  administrations  at  Washington  and  in  our  largest 
and  most  important  commonwealths.  It  is  not  unusual  to  have 
the  President  or  governor,  with  the  veto  power,  at  loggerheads 
with  one  or  both  houses  of  the  legislature.  As  a  result,  there 
is  little  legislation — virtually  none — which  the  people  have 
passed  upon  at  the  polls  and  approved  by  putting  in  power 
that  party  which  promised  to  enact  it.  Not  only  do  we  see  a 
political  party  opposed  to  the  executive  in  control  frequently 
of  one  or  both  legislative  chambers,  but  even  when  one  party  is 
in  complete  control  of  the  government,  it  has  so  little  sense  of 
its  responsibility  to  carry  out  its  promises,  that  not  infrequently 
the  administration  goes  to  pieces.  Moreover,  when  this  occurs, 
although  at  the  commencement  of  an  administration,  the 
country  must  patiently  await  its  end  before  it  can  change  these 
conditions,  and  experience  has  shown  that  usually  it  exchanges 
one  mechanism  which  will  not  work  for  another  no  better. 

So  intolerable  has  this  become  that  a  President  or  a  governor 
of  strong  views  and  powerful  character  must  declare  his  own 
policies  and  force  them  on  a  reluctant  legislature  under  a  pres- 
sure somewhat  similar  to  the  dissolution  of  parliament  where 
responsible  government  exists,  viz.,  by  a  threat  to  appeal  to  the 
people,  that  is,  to  attack  the  legislators  in  their  home  districts 
before  and  after  nomination,  if  necessary.  This  is  certainly 
an  awkward  substitute  for  responsible  government,  in  which 
the  party  and  its  leaders  are  held  accountable  without  intro- 
ducing anything  foreign  to  the  scheme  of  legislative  govern- 
ment, such  as  executive  interference  which,  however  necessary, 
is   rightly  regarded  as  tyrannical. 

Moreover  such  a  plan  is  not  practicable  unless  the  executive 
has  policies  which  he  is  determined  to  carry  out,  and  the  power 
to  make  an  appeal  to  the  people  effective.  Under  responsible 
government,  such  a  man  becomes  the  leader  of  his  party — 
the  head  of  the  cabinet  when  it  is  in  power — and  would  retain 
his  position  so  long  as  he  retained  popular  support.  Under 
the  substitute  for  such  responsible  government  which  necessity 
caused  Roosevelt,  Hughes  and  LaFollette  to  introduce,  we  are 
compelled,  in  order  to  continue  their  effective  leadership,  either 

(122) 


No.  2]       CONSTITUTIONS  AND  SOCIAL  CONDITIONS  75 

to  keep  them  in  executive  office  indefinitely,  or  permit  them  to 
assume  the  r61e  of  poHtical  bosses  when  not  in  office ;  or  in  such 
an  office  as  United  States  senator,  which  has  nothing  to  do  with 
state  legislation,  to  have  them  dominate  state  policies  by  threat- 
ening to  appeal  from  the  legislators  to  their  constituents.  In 
brief,  conditions  are  so  complex,  inarticulate  and  dissociated 
that  this  can  scarcely  be  called  a  legislative  mechanism,  but 
merely  the  triumph  of  some  powerful  personality,  a  triumph 
achieved  despite  the  want  of  machinery  through  which  the 
leader's  proposals  may  be  given   effect  by  the  voter's  approval. 

It  would  be  well  if  responsible  government  were  tried  in  one 
of  the  more  advanced  states.  It  would  solve  our  legislative 
problem  if  this  could  be  brought  about  in  the  near  future,  so 
that,  for  instance,  Roosevelt's  wonderful  qualities  of  leadership 
could  be  utilized  to  the  full  and  his  policies  carried  into  effect  if 
approved  by  the  voters  without  the  necessity  that  he  remain 
President  or  that  another  man  as  President  be  compelled  to 
pursue  the  legislative  policy  of  a  party  leader  out  of  office.  It 
is  a  good  rule  which  causes  American  voters  to  hesitate  to  con- 
fide the  executive  power  too  frequently  to  one  man.  But 
where  responsible  government  exists,  the  head  of  the  state  is 
virtually  powerless,  except  as  an  administrator  with  executive 
powers  only ;  the  legislative  power  includes  the  legislative 
policy  of  the  administration,  and  all  matters  that  require  the 
consent  of  the  legislature  are  entrusted  to  a  cabinet,  which  must 
hold  its  confidence  and  retain  its  support  or  retire  from  office, 
or  else  dissolve  the  legislature  and  appeal  to  the  people. 
Under  such  conditions,  liberty  is  best  conserved  by  continuing 
a  leader  in  power  so  long  as  his  leadership  exists,  instead  of 
jealously  guarding  against  his  too  long  continuance,  as  is 
considered  necessary  if  he  is  at  the  same  time  chief  executive. 

The  solution  of  our  governmental  problems  would  be  easier, 
could  we  keep  at  the  front  the  strongest,  wisest  and  best  men 
throughout  their  entire  lifetime,  like  Gladstone  in  Great  Britain, 
instead  of  ending  their  influence  upon  legislation  with  their 
retirement  from  executive  office.  We  not  only  waste  the 
powers  of  our  most  serviceable  citizens,  but  permit  the  com- 
plete breakdown  at  times  of  our  legislative  system  as  a  means 
of  carrying  into  effect  the  policies  approved  by  the  voters. 

(123) 


THE   ISSUES  INVOLVED  IN  THE   METHODS  OF 
SELECTING  AND  REMOVING  JUDGES' 

HARLAN    F.  STONE 
Dean  of  the  Law  School  of  Columbia  University 

WHEN  our  judicial  system  was  established  in  the  United 
States,  two  of  its  features  were  peculiarly  adapted  to 
its  separation  from  political  influence  and  activity. 
The  general  policy  adopted  in  all  of  the  states  down  to  1812  of 
appointing  all  judicial  officers  with  life  tenure  of  office  was  cal- 
culated to  remove  the  selection  of  judges  from  political  control 
and  from  the  influences  of  the  strife  and  passions  of  political 
campaigns.  Their  appointment  for  life  or  during  good  be- 
havior removed  the  temptation  to  seek  a  new  election  or  ap- 
pointment as  a  reward  for  political  or  party  service. 

The  other  feature  of  our  judicial  system  which  has  tended 
hitherto  to  keep  the  American  judge  from  the  political  arena 
has  been  the  fact  that  in  the  exercise  of  his  power  to  interpret 
statutes  or  to  declare  statutes  unconstitutional,  he  judges  the  law 
only  in  order  to  judge  a  case  involving  the  rights  of  individuals. 
He  does  not  appear  in  the  role  of  an  assailant  of  the  law,  nor, 
on  the  other  hand,  is  his  professional  conduct  as  a  magistrate  in 
determining  the  law  made  even  indirectly  the  occasion  of  reward 
or  punishment  by  the  electorate.  As  De  Tocqueville  stated  in 
commenting  on  this  fact: 

It  will  be  readily  understood  that  by  connecting  the  censorship  of  the 
laws  with  the  private  interests  of  members  of  the  community,  and  by 
ultimately  uniting  the  prosecution  of  the  law  with  the  prosecution  of  an 
individual,  legislation  is  protected  from  wanton  assaults  and  from  the 
daily  aggressions  of  party  spirit. 

He  might  well  have  added  that  the  judicial  interpretation  of  laws 

'  Introductory  address  as  presiding  officer  at  the  meeting  of  the  Academy  of  Polit- 
ical Science,  October  25,  1912. 

^124) 


SELECTING  AND  REMOVING  JUDGES 


77 


and    the  constitution    was   likewise   protected   by    our  judicial 
scheme  from  the  direct  political  attacks  of  parties  or  factions. 

The  system  of  appointment  of  judges  for  life  or  during  good 
behavior  has  long  since  been  abandoned  in  most  of  our  states. 
Influenced  undoubtedly  by  the  democratic  tendencies  which 
swept  over  the  country  in  the  first  half  of  the  eighteenth  cen- 
tury, Georgia  first,  in  1 8 12,  in  the  case  of  its  inferior  judges, 
and  Mississippi  in  1832  provided  for  popular  election  of  judges 
for  limited  terms.  This  method  of  selecting  judges  was  rapidly 
adopted  by  other  states,  until  at  the  present  time  I  believe  the 
only  states  retaining  the  appointive  system  are  Delaware,  Mas- 
sachusetts and  New  Jersey.  By  this  radical  change  in  our 
polity  the  judicial  office  was  cast  into  the  arena  of  party  politics 
and  became  potentially  at  least  subject  to  influences  which  are 
wholly  inconsistent  with  that  sense  of  security  and  freedom 
which  the  founders  of  our  government  deemed  essential  to 
judicial  integrity  and  efficiency.  It  is  perhaps  not  within  my 
province  as  the  presiding  officer  of  this  meeting  to  attempt  to 
comment  upon  the  merits  of  the  prevailing  methods  of  selecting 
judges,  but  it  may  be  permitted  to  me  to  say  in  passing  that  if 
there  is  any  substantial  basis  for  the  current  criticisms  of  our 
judges,  the  system  of  electing  judges  for  limited  terms  has  not 
been  justified  by  its  results.  On  the  other  hand,  if  our  judges 
the  country  over  were  as  distinguished  for  their  learning  and 
integrity  as  are  the  judges  of  Delaware,  Massachusetts  and  New 
Jersey,  where  the  appointive  system  still  exists,  there  would  be 
little  occasion  for  the  serious  agitation  over  and  discussion  of 
our  judicial  system  which  now  prevails.  These  are  significant 
facts,  which  should  arrest  our  attention  at  the  very  outset  of  our 
search  for  new  methods  of  subjecting  our  judges  to  the  control 
of  the  popular  will.  I  therefore  venture  to  express  the  hope 
that  the  papers  and  discussions  to  which  we  shall  have  the 
pleasure  of  listening  this  afternoon  will  turn  the  light  of  search- 
ing inquiry  upon  our  existing  method  of  selecting  judges.  With 
political,  as  with  physical  ills,  the  removal  of  the  cause  is  likely 
to  prove  more  efficacious  than  the  application  of  remedies, 
especially  if  they  are  new  and  untried.  It  is  to  my  mind  a 
singular  and  noteworthy  fact  that  this  consideration  has  hitherto 

(125) 


78  EFFICIENT  GOVERNMENT  [Vol.  Ill 

played  comparatively  little  part  in  the  various  aspects  of  the 
public  discussion  of  our  judicial  system,  and  it  is  therefore 
especially  gratifying  to  note  that  the  first  paper  of  the  afternoon 
will  be  devoted  to  an  examination  of  our  system  of  appointing 
judges. 

The  censorship  of  laws,  through  the  determination  of  the 
rights  of  individuals,  with  the  consequent  detachment,  in  prac- 
tise, at  least,  of  our  judges  from  direct  assaults  upon  or  defense 
of  our  laws,  has  continued  to  be  the  method  of  squaring  our 
legislation  with  the  mandates  of  our  constitutions,  state  and  na- 
tional. This  device  was  believed  by  the  founders  of  our  political 
system  to  be,  and  has  until  recently  been  praised  by  political 
philosophers  and  writers  as  being  the  most  powerful  barrier  yet 
devised  against  the  tyranny  of  political  assemblies  and  of  pop- 
ular majorities.  Changing  times  and  changing  conditions  have^ 
however,  brought  change  in  opinion,  certainly  with  a  very  con- 
siderable number  of  our  political  thinkers,  and  it  is  now  insist- 
ently urged  that  the  judicial  interpretation  of  laws  and  constitu- 
tional provisions  which  some  members  of  the  community  believe 
to  interfere  with  social  progress  should  be  modified  by  subjecting 
the  judicial  function  to  popular  control  through  the  devices  of 
recall  of  judicial  decisions  and  recall  of  judges. 

The  recall  of  decisions,  as  it  has  been  defined  by  ex-President 
Roosevelt,  its  most  prominent  advocate,  as  will  doubtless  be 
made  to  appear  by  the  discussions  at  these  meetings,  is  in  its 
essence  a  form  of  constitutional  amendment,  and  in  practise  will 
affect  the  judiciary  in  about  the  same  manner  and  to  the  same 
extent  as  any  other  method  of  constitutional  amendment  by 
popular  vote.  The  recall  of  judicial  decisions,  therefore,  despite 
its  somewhat  misleading  name,  does  not  directly  affect  the  judi- 
ciary, but  rather  is  a  scheme  for  a  perpetual  popular  convention^ 
by  which  the  constitution  may  be  made  always  to  mean  what  a 
majority  of  the  electorate  wish  it  to  mean.  Whatever  our  views 
may  be  about  the  desirability  of  this  method  of  constitutional 
amendment  (and  personally  it  seems  to  me  an  innovation  which 
will  be  found  to  be  impracticable  in  operation  and  fraught  with 
danger  to  our  institutions,)  we  shall  be  obliged  to  concede  that 
its  adoption  would   leave  our  judicial  system   in   just  about  the 

(126) 


No.  2]  SELECTING  AND  REMOVING  JUDGES  79 

situation  which  it  now  occupies  in  our  scheme  of  government, 
although  it  is  to  be  feared  that  judges  would  not  find  the  task 
of  interpretation  of  our  constitution  any  less  perplexing  and 
difficult  after  its  provisions  had  been  subjected  to  the  process 
of  amendment  by  the  recall  of  decisions. 

The  recall  of  judges,  however,  vitally  affects  the  position  of 
the  judiciary  in  our  governmental  plan.  The  recall  of  judges,  if 
adopted,  would  be  exercised,  we  may  assume,  either  because  the 
recalled  judge  is  corrupt  or  incompetent,  or  because  his  view  of 
the  law  does  not  agree  with  that  of  the  electorate,  or  so  much  of 
it  as  takes  a  sufficiently  active  interest  in  the  subject  to  go  to  the 
polls  and  vote  on  the  question.  In  so  far  as  we  favor  the  recall 
as  a  cure  for  the  corrupt  or  incompetent  judge,  I  have  already 
suggested  the  wisdom  of  careful  inquiry  directed  toward  the 
question  whether  our  system  of  selection  is  the  best  adapted  to 
prevent  the  recurrence  of  this  evil.  A  second  consideration 
should  be  whether,  assuming  the  existence  of  a  properly  safe- 
guarded system  of  selecting  judges,  the  rare  case  of  corruption 
or  gross  incompetency  in  judicial  office  under  such  a  system 
could  not  be  adequately  dealt  with  through  the  process  of  im- 
peachment. We  should  also  inquire  whether  the  right  or  priv- 
ilege of  recall  would  be  likely  to  be  wisely  and  justly  exercised, 
so  that  only  the  corrupt  and  incompetent  judge  would  be  re- 
called, and  finally,  whether  the  recall  would  leave  to  the  judge 
that  freedom  and  independence  which  are  essential  to  the  main- 
tenance of  personal  rectitude  and  to  the  exercise  of  sound  pro- 
fessional judgment. 

In  the  case  of  the  recall  of  the  judge  because  his  view  of  the 
law  or  the  constitution  is  not  acceptable  to  the  people,  we  sub- 
ject, always  potentially  at  least,  the  law  itself,  through  the  person 
of  the  judge,  to  "  the  wanton  assaults  and  the  daily  aggressions 
of  party  spirit."  The  law  itself,  through  its  duly  constituted 
mouthpiece,  becomes  the  center  and  subject  of  political  strife. 
The  judge's  position  is  changed  from  that  of  the  arbiter  of  pri- 
vate litigation  determining  rights  of  individuals,  unbiased  by 
personal  or  political  considerations,  to  that  of  the  assailant,  or 
defender,  as  the  case  may  be,  of  the  law  or  the  constitution,  and 
the   soundness  or  unsoundness  of  his  decision  as  the  sufficient 

(127) 


So  EFFICIENT  GOVERNMENT  [Vol.  Ill 

reason  for  the  continuation  or  cutting  off  of  his  official  Hfe  be- 
comes the  subject  of  poHtical  controversy.  Such  a  step  is  neces- 
sarily the  great  and  final  one,  not  only  toward  pure  democracy, 
but  toward  shifting  the  law,  wherever  it  affects  in  the  same  way 
any  considerable  number  of  people,  from  its  semi-scientific 
basis,  as  developed  by  the  skill  and  professional  learning  of  the 
magistrate  and  of  the  legal  profession  generally,  to  a  political 
basis,  and  its  development  in  form  and  substance  must  be  pro- 
foundly influenced  by  the  determination  of  popular  vote. 

Such  are  in  brief  outline  the  issues,  or  rather  the  salient 
points  which  present  themselves  in  any  orderly  and  logical 
examination  of  the  current  discussions  of  our  judicial  system. 
How  genuine  are  the  faults  with  which  our  existing  system 
is  charged,  whether  the  proposed  changes  are  wise  or  unwise  in 
principle — in  short,  whether  they  are  worth  the  price  we  must 
pay  for  them — and  whether  they  will  work  in  practise,  are  ques- 
tions which  I  shall  leave  to  the  speakers  of  the  afternoon  to 
answer.  They  will  support  their  conclusions  with  appropriate 
arguments. 

I  shall  take  the  liberty  of  introducing  to  you  all  three  of  the 
speakers  of  the  afternoon  at  once ;  not  only  to  avoid  the  usual 
unnecessary  repetitions  in  performing  that  function,  but  in 
order  that  the  harmonious  development  of  the  discussion  may 
be  jarred  by  no  discordant  note  from  your  somewhat  conserva- 
tive presiding  officer. 

The  paper  on  the  elective  and  appointive  methods  of  selec- 
tion of  judges  will  be  read  by  the  Honorable  Learned  Hand, 
United  States  District  Judge  for  the  Southern  District  of  New 
York.  Of  Judge  Hand  it  need  be  said  only  that  any  system  of 
selecting  judges  which  operates  to  select  a  judge  of  the  learning, 
ability  and  fidelity  of  Judge  Hand  has  much  to  commend 
it,  and  if  a  system  could  be  devised  by  which  all  judges  should  be 
of  like  character  and  ability,  there  would  be  no  occasion  for 
this  discussion. 

Mr.  Roe  and  Mr.  Dougherty,  who  will  read  papers  on  the 
recall  of  judges,  are  well-known  lawyers  in  this  city,  well  quali- 
fied by  experience  and  ability  for  the  discussion  of  that  sub- 
ject.    I  suspect  that  the  unconscious  influence  of  environment 

(128) 


No.  2]  SELECTING  AND  REMOVING  JUDGES  8 1 

will  be  revealed  in  their  respective  papers.  I  do  not  know 
what  their  views  are  upon  this  important  subject,  but  I  know 
that  Mr.  Dougherty  was  born  and  has  lived  all  his  life  in  con- 
servative New  York.  Mr.  Roe,  on  the  other  hand,  was  for 
some  years  the  law  partner  and  associate  of  Senator  La  Follette, 
and  must  have  imbibed  progressivism  in  the  very  air  he  breathed, 
and  so  they  are  t>'pical  representatives  of  the  two  schools 
of  thought  on  this  subject,  and  we  may  look  to  them  to  present 
the  views  and  strongest  arguments  of  each  with  respect  to  it. 

(129) 


THE  ELECTIVE  AND  APPOINTIVE  METHODS  OF 
SELECTION  OF  JUDGES  ' 

LEARNED  HAND 
United  States  District  Court,  New  York  City 

IN  England  the  crown  has  from  the  earliest  times  appointed 
the  judges,  originally  with  no  very  definite  limitation  of 
their  duties  to  functions  now  regarded  as  judicial.  They 
remained  subject  to  removal  by  the  crown  until  1688,  after 
which  time  their  tenure  was  during  good  behavior.  One  of  the 
important  causes  which  dethroned  the  Stuarts  was  their  coercion 
of  the  judges,  and  much  of  the  American  feeling  for  an  inde- 
pendent judiciary  as  the  security  of  liberty  undoubtedly  goes 
back  to  that  period  and  to  the  great  English  struggle  for  popu- 
lar government,  because  the  colonists  were  nearly  all  good 
Whigs  and  especially  fond  of  the  Bill  of  Rights.  Nevertheless, 
it  was  George  III,  the  apostle  of  absolutism,  who  finally  secured 
the  entire  independence  of  the  judges  by  providing  that  they 
should  keep  their  commissions  on  the  demise  of  the  crown. 

When  the  colonies  came  to  make  their  constitutions,  they 
generally  accepted  such  institutions  as  they  were  used  to,  and 
most  of  them  provided  for  the  appointment  of  the  judges  by 
the  executive.  Yet  even  at  the  outset,  in  some  states  the 
elective  principle  obtained.  Thus  in  New  Jersey,  Virginia  and 
South  Carolina  the  legislature  elected  the  judges,  and  Vermont 
and  Tennessee  when  they  became  states  in  1793  and  1796  each 
adopted  the  same  practise.  Georgia  has  the  distinction,  good  or 
bad,  of  being  in  1812  the  first  state  to  elect  any  judges  by  vote 
of  the  people,  though  the  change  applied  only  to  the  inferior 
courts,  and  it  was  not  till  twenty  years  later  that  Mississippi,  in 
a  burst  of  democratic  enthusiasm,  became  the  first  to  elect  all 
its  judges  by  popular  vote.  Since  that  time  this  method  has 
been  very  generally  extended.     The  great  state  of  New  York, 

'  Read  at  the  meeting  of  the  Academy  of  Political  Science,  October  25,  1912. 

(130) 


METHODS  OF  SELECTION  OF  JUDGES  83 

which  gave  her  laws  to  many  of  her  younger  sisters,  followed  in 
1846  under  the  full  tide  of  Jacksonian  democracy,  and  has 
been  consistently  loyal  ever  since.  To-day  the  process  is  com- 
plete except  in  some  of  the  eastern  states.  The  legislature  ap- 
points in  Rhode  Island,  Virginia  and  South  Carolina,  while  the 
governor,  with  the  consent  of  the  senate,  appoints  in  New 
Jersey  and  Mississippi,  the  governor  and  council  in  New  Hamp- 
shire, Massachusetts  and  Maine,  the  governor  alone  in  Delaware, 
and  the  legislature  on  nomination  of  the  governor  in  Connecti- 
cut. Thus,  in  three-fourths  of  the  states  to-day  judges  are 
elected  by  popular  vote.  It  may  be  said  that  the  institution  of 
judicial  election  has  hitherto  generally  been  regarded  by  the 
American  people  as  implied  in  a  thorough-going  democratic 
state. 

To  ascertain  the  effect  upon  the  judiciary  of  elective  selection 
is  difficult  without  a  good  deal  oft  research ;  perhaps  it  is  im- 
possible. Undoubtedly,  the  general  opinion  of  the  bar  is  in 
favor  of  appointment.  I  think  there  can  be  no  impropriety  in 
my  saying  that  the  federal  judges  have  generally,  in  most  parts 
of  the  country,  a  somewhat  better  reputation  with  the  bar  for 
ability  than  the  state  judges.  Probably  the  greatest  state  courts 
have  been  in  states  which  appointed  their  judges.  Thus, 
Masssachusetts  has  been  easily  pre-eminent  over  all  other  states 
in  the  quality  of  her  judges,  and  for  many  years  New  Hamp- 
shire had  a  court  which  was  hardly,  if  at  all,  second  to  that  of 
Massachusetts.  New  Jersey  has  likewise  an  enviable  record. 
However,  the  evidence  is  by  no  means  all  one  way.  Michigan 
for  a  while  had  a  court  of  most  distinguished  reputation ;  New 
York,  since  1846,  has  produced  inclividuals  of  fine  capacity,  and 
Vermont  and  Pennsylvania  have  had  creditable  records.  Be- 
sides, the  problem  is  much  complicated  by  other  factors,  espe- 
cially the  character  of  the  tenure,  of  which  more  hereafter. 
For  example,  in  by  far  the  greater  number  of  states  the  federal 
judges  receive  a  larger  salary  than  the  highest  state  judges. 
Their  tenure  is  for  life  and  until  about  twenty  years  ago  appeals, 
at  least  from  the  circuit  judges,  were  so  expensive  and  slow  as 
to  be  practically  impossible  in  ordinary  cases.  As  a  result,  the 
position  of  federal  judges  in  most  states  was  more  attractive  in 

(131) 


84  EFFICIENT  GOVERNMENT  [Vol.  Ill 

every  way  than  any  place  on  the  state  bench,  so  that  if  the 
incumbents  deserved  or  had  a  higher  reputation  than  the  state 
judges,  it  should  not  necessarily  be  attributed  to  the  mode  of 
their  selection. 

Again,  in  Massachusetts  the  whole  administration  of  the  state 
was  for  long  on  a  decided^y  higher  level  than  elsewhere,  and  the 
character  of  the  judges  was  very  probably  only  a  reflection  of  a 
generally  better  political  tone.  In  New  York,  there  certainly 
has  been  a  great  general  decadence  in  judicial  ability  since  1846, 
due  to  a  good  many  other  reasons,  I  believe,  than  the  election 
of  the  judges,  and  indeed,  perhaps,  not  due  to  that  at  all.  The 
evidence,  therefore,  would  hardly  justify  one  in  going  further 
than  to  say  that  the  experience  of  sixty  years  seems  to  suggest 
a  falling  off  in  ability  where  the  judges  have  been  elected. 
How  far  this  decline  in  ability  has  had  to  do  with  the  present 
popular  distrust  of  the  judiciary  as  a  whole,  it  is  naturally  impos- 
sible to  tell.  That  it  has  perhaps  had  nothing  at  all  to  do  with 
it  is  suggested  by  the  fact  that  on  the  whole  the  federal  judic- 
iary is  at  present  more  jealously  and  suspiciously  regarded  than 
that  of  the  states. 

There  remain  a  priori  considerations,  at  best  feeble  supports 
for  a  conclusion.  In  the  first  place,  one  is  tempted  to  say  with 
Dana  in  the  Massachusetts  convention  of  1853  and  Chambers 
in  the  Maryland  convention  of  185  i  that  the  mode  of  selection 
makes  very  little  difference  and  that  the  same  influences  which 
control  the  caucus — or,  as  we  should  say,  the  party — will  con- 
trol the  governor.  There  has  been  some  corroboration  of  this 
in  New  York,  whenever  the  governor  has  been  in  harmony 
with  the  local  leaders  ;  other  experience  I  do  not  know.  How- 
ever, there  have  arisen  governors  from  time  to  time  who  have 
been  independent  of  the  party,  while  they  have  not  been  strong 
enough  to  dominate  it.  Such  men  as  Mr.  Justice  Hughes,  for 
example,  would  have  appointed,  and  did  appoint,  different  judges 
from  those  whom  either  of  the  parties  have  as  a  rule  put  upon 
the  bench.  In  short,  in  so  far  as  a  governor  becomes  inde- 
pendent of  party  influences  we  must  expect  that  the  result  of  ap- 
pointment will  be  different  from  that  of  election,  which  is  neces- 
sarily dependent  upon  party  control.     Have  we  a  right  to  ex- 

(132) 


No.  2]  METHODS  OF  SELECTION  OF  JUDGES  85 

pect  that  this  will  become  less  or  more  frequent,  and  have  we  a 
right  to  expect  that  if  it  becomes  more  frequent,  it  will  result 
well  or  ill? 

The  signs  of  the  times,  in  so  far  as  w^e  can  see,  point  to  a 
decay  in  the  party  system.  Direct  primaries  are  a  blow  to  it, 
little  though  they  appear  to  be  such  superficially,  because,  while 
at  first  blush  they  serve  to  accentuate  the  division  of  voters  into 
parties,  they  at  the  same  time  tend  to  destroy  the  influence  of 
the  permanent  party  leaders,  as  indeed  present  experience  is 
showing  and  as  the  universal  instinct  of  the  leaders  themselves 
foretold,  though  their  speech  denied  it.  Such  primaries  un- 
doubtedly give  a  great  advantage  to  the  independent  individual 
of  taking  personality,  providing  he  can  command  enough  money 
to  secure  publicity;  they  tend  to  minimize  the  influence  of  those 
who  through  the  general  apathy  keep  the  control  of  nominating 
machinery. 

If  with  a  system  of  direct  primaries  there  be  coupled  the 
short  ballot,  the  governor's  independence  of  party  will  be  in- 
creased. Moreover,  it  would  hardly  be  possible  that  direct 
primaries  should  continue  without  the  addition  of  the  short 
ballot,  for  popular  interest  would  certainly  not  sui'vive  an  appeal 
by  several  candidates  for  the  many  oflftces  now  elective.  Indeed, 
the  very  apathy  which  has  led  to  party  domination  in  the  case 
of  minor  administrative  officers  would  frustrate  a  system  of 
primaries  for  all  such  as  are  now  elected.  The  system  of  direct 
election  has  broken  down,  because  the  people  cannot  be  ex- 
pected to  know  anything  about  the  minor  officers  to  be  elected. 
Even  less  would  they  distinguish  between  the  candidates  for 
nomination  to  such  offices.  The  success  of  direct  primaries, 
even  for  the  chief  executive,  depends  in  large  measure  upon 
the  power  and  responsibility  of  that  officer.  The  short  ballot 
to-day  commands  the  assent  of  substantially  all  parties,  and  is 
the  proposal  apparently  most  likely  to  succeed  of  all  those  at 
present  prominent.  It  results  in  a  consolidation  of  power  which 
undoubtedly  would  not  be  accepted  without  some  continuous 
popular  control  over  the  executive,  but  it  is  so  obviously  a 
necessary  corollary  to  direct  selection  of  the  executive  by  the 
people  that  even  the  most   thorough-going  democrat  will  be 

6   i,  ^'^^^ 


86  EFFICIENT  GOVERNMEN7  [Vol.  Ill 

likely  to  accept  it.  That  it  should  include  the  appointment  of 
judges  by  the  executive  is  most  probable.  A  judge  is  an  ad- 
ministrative officer,  little  as  American  traditions  like  to  concede 
it ;  he  is  concerned  only  with  the  enforcement  of  the  sovereign's 
will ;  and  there  is  no  reason  why  he  should  not  be  appointed 
by  the  executive,  if  other  administrative  officers  are  so  ap- 
pointed. The  considerations  which  require  his  independence 
of  the  executive  arise  only  after  he  is  appointed  to  office ;  the;;'' 
affect  only  his  indifference  to  pressure  in  individual  cases,  pres- 
sure which  cannot  be  exercised  in  advance  of  their  occurrence. 
If  the  short  ballot  comes,  every  reason  for  it  applies  to  includ- 
ing judges  within  it. 

In  answer  to  the  first  question,  therefore,  we  may  say  that 
there  is  good  reason  for  supposing  that  in  the  future  a  directly 
nominated  governor  will  appoint  the  judges,  and  that  whether 
or  not  he  has  this  power,  it  would,  if  he  did  have  it,  be  under 
the  control  of  influences  different  from  those  that  have  con- 
trolled election  or  would  continue  to  control  it  if  judges  should 
remain  elective.  The  distinction  which  Dana  in  Massachusetts 
and  Chambers  in  Maryland  could  not  see  in  the  fifties  would 
arise  if  the  people  became  accustomed  to  choose  their  chief 
executives  directly,  whether  by  direct  primary  nominations  or 
by  direct  election  without  party  name  or  symbol  and  without 
preliminary  nomination.  There  remains  the  question  whether 
the  operation  of  this  change  will  affect  the  appointment  of 
judges  favorably  or  not. 

While  a  governor  elected  by  direct  primary  would  be  more 
directly  responsive  to  popular  feeling,  since  his  continued  pos- 
session of  power  would  depend  upon  the  popular  approval  of 
his  personal  conduct,  his  judicial  appointments,  unless  scandal- 
ous, would  weigh  very  little  in  the  balance  for  or  against  him ; 
for  so  far  as  we  can  judge,  the  personnel  of  candidates  for  the 
bench  is  a  matter  of  almost  complete  indifference  to  the  people 
at  large.  It  is  true  that  they  become  easily  aroused  over  the 
conduct  of  an  incumbent,  but  between  candidates  they  usually, 
and  quite  rightly,  assume  the  indifference  of  ignorance.  Thus 
a  governor  would  not  have  to  reckon  very  seriously  with  pres- 
ent-day   public    opinion    in    his    judicial    appointments    if    he 

(134) 


No.  2]  METHODS  OF  SELECTION  OF  JUDGES  87 

avoided  scandal.  Because  of  the'same  public  indifference,  the 
party  leaders  need  reckon,  and  have  reckoned,  but  little  with 
public  opinion  in  the  nomination  of  elective  judges.  This 
would  remain  quite  as  true  under^a  system  of  direct  primaries 
for  judges,  for  it  is  hardly  conceivable  that  primary  contests 
between  judges  should  arouse  much  public  interest. 

Assuming,  therefore,  that  direct  public  interest  in  the  matter, 
barring  actually  scandalous  instances,  must  be  eliminated,  which- 
ever the  method  of  choice,  have  we  reason  to  suppose  that  a 
governor,  dependent  upon  the  people,  would  do  better  or  worse 
than  the  party  leaders  acting  as  it  were  behind  the  scenes? 
This  question  is  of  course  not  peculiar  to  the  appointment  of 
judges  ;  it  raises  indeed  the  whole  (Question  of  the  working  of  the 
short  ballot.  An  executive  vested  like  the  President  with  general 
power  of  appointment,  but  unlike  him  directly  dependent  upon 
the  popular  will  for  his  selection,  dven  while  he  may  in  the  case 
of  a  single  appointment  have  little  to  reckon  with,  does  on  the 
whole  carry  his  record  to  the  people,  and  it  all  goes  together 
into  a  general  pot  which  the  people  may  or  may  not  relish,  as 
the  flavor  turns  out.  But  it  is  also  true  that  precisely  the  same 
responsibility  rests  upon  the  party  collectively,  and  the  party 
has  the  same  incentive  to  act  agreeably  to  the  popular  taste ; 
it  is  moreover  true  that  a  party  is  after  all  nothing  but  a  group 
of  men,  who  enjoy  power  and  wish  to  do  what  they  can  to  keep 
it.  Parliamentary  government  may  be  better  or  worse  than  a 
directly  representative  executive,  but  it  is  quite  idle  to  consider 
parliamentary  government  for  the  United  States,  for  any  time 
that  we  can  see.  The  real  point  with  us  is  this :  that  is  not  par- 
liamentary government  which  vests  an  uncertain  power  in  the 
hands  of  unknown  men  who  have  no  formal  responsibility,  so 
that  the  actual  power  is  in  fact  unseen,  and  the  individuals  who 
exercise  it  do  not  themselves  come  before  the  public.  A  min- 
istry is  one  thing,  a  cabal  another.  We  cannot  fail  to  profit  by 
a  change  from  appointment  by  cabal  to  appointment  by  a  genu- 
inely representative  elected  executive. 

While,  therefore,  under  the  system  which  has  actually  existed, 
it  is  perhaps  questionable  whether  appointed  judges  have  been 
better  than  elected,  there  is  good  ground  to  suppose  that  under 

(135) 


88  EFFICIENT  GOVERNMENT  [Vol.  Ill 

a  system  of  appointment  by  executives  not  dependent  upon 
party,  judges  will  be  better  than  if  chosen  formally  by  an  indif- 
ferent electorate,  but  actually  by  a  group  the  power,  influence 
and  tenure  of  whose  uncertain  members  cannot  be  definitely 
ascertained. 

Strictly  speaking,  the  subject  of  this  paper  does  not  include 
the  tenure  of  judges,  and  a  consideration  of  that  subject  cer- 
tainly trenches  somewhat  upon  the  subject  of  the  recall. 
Nevertheless,  historically  the  method  of  selecting  judges  has 
been  interwoven  in  constitutional  discussion  with  tenure  in  such  a 
way  that  it  is  really  quite  impossible  to  omit  all  reference  to  the 
latter.  In  the  Maryland  and  Massachusetts  conventions  in  the 
early  fifties,  the  conservatives  realized  that  the  real  fight  was  not 
as  to  whether  judges  should  be  elected  or  appointed,  but  whether 
they  should  be  subject  to  political  influence  after  taking  office. 
All  the  arguments  which  now  appear  in  relation  to  the  recall 
were  made  with  as  much  ability  then  as  now.  On  the  one 
hand  the  conservatives  feared  for  the  integrity  of  the  judges; 
on  the  other,  the  democrats  resented  their  absolute  inde- 
pendence. There  was  no  suggestion  made  of  popular  elec- 
tion for  a  term  of  good  behavior  and  the  institution  does 
not  exist  in  the  United  States  to-day.  In  Massachusetts,  New 
Hampshire,  Rhode  Island  and  Delaware  at  the  present  time  the 
judges  hold  during  good  behavior;  in  the  other  states  for  terms 
varying  from  two  years  in  Vermont  to  twenty- one  in  Pennsyl- 
vania. In  Massachusetts  judges  are  subject  to  recall  by  the 
governor  on  address  by  a  majority  vote  of  both  houses,  without 
charges  or  trial ;  in  New  York  by  a  two-thirds  vote  of  both 
houses  on  charges ;  and  legislative  recall  is  a  common  feature 
in  state  constitutions.  The  limitation  of  tenure  which  was  so 
much  feared  a  half  century  ago,  therefore,  has  actually  been 
brought  about,  and  the  judges  are  to  that  extent  within  popular 
control.  Whether  such  limitation  and  control  is  desirable  or 
not  is  quite  another  question. 

The  purpose  of  a  limited  tenure  is  of  course  to  relieve  the 
oflJice  of  an  undesirable  incumbent,  a  purpose  certainly  wise  and 
commendable.  There  are  two  grounds  for  removing  a  judge : 
first,  that  he  has   actually  misconducted  himself  in  ways  which 

(136) 


No.  2]  METHODS  OF  SELECTION  OF  JUDGES  89 

mayt)e  specified  and  proved;  second,  that  he  has  shown  him- 
self undesirable  in  respect  to  his  ability,  his  political  or  eco- 
nomic bias,  or  that  vague  range  of  conduct  which  we  group 
together  under  temperament.  Fair  play  and  the  general  ex- 
perience of  most  civilized  peoples  require  for  the  first  cause 
something  in  the  nature  of  charges  and  proof;  this  would 
indeed  meet  with  very  general  approval.  It  is  as  to  action 
on  the  second  ground  that  difference  of  opinion  arises.  One 
party  insists  that  since  the  judge  has  no  right  to  regard  any 
popular  expression  except  what  has  already  obtained  formal 
authoritative  expression,  therefore  to  make  him  answerable 
to  public  opinion  is  to  put  upon  him  an  influence  which 
cannot  possibly  operate  except  to  corrupt  his  integrity.  For 
popular  opinion,  intent  upon  its  as  yet  unexpressed  purpose, 
will  forget  that  it  is  the  judge's  duty  to  regard  only  what  has 
already  received  expression.  The  other  party  insists  that 
though  the  judge  is  unquestionably  limited  by  the  existing 
authoritative  expression  of  the  public  will,  so  also  are  all  other 
administrators  of  law,  as  to  whom  immunity  from  popular  con- 
trol is  not  thought  necessary.  Further,  it  is  insisted  that  there 
is  no  practical  line  of  distinction  between  interpretation  and 
legislation,  whatever  may  be  the  case  dialectically.  Even  the 
most  carefully  drawn  statute  leaves  room  for  alternative  con- 
struction and  to  choose  between  two  constructions  is  in  effect  to 
legislate.  Further,  in  the  interpretation  of  the  broad  phrases 
of  the  constitutions,  and  in  the  treatment  of  precedents,  just  as 
they  did  in  developing  the  common  law  from  the  register  of  writs^ 
the  judges  are  legislating,  building  up  a  customary  law  which  is 
as  much  their  creation  as  any  statute  is  that  of  the  legislature. 
This  power,  it  is  said,  the  people  have  come  to  recognize  as 
giving  so  wide  a  latitude  to  judicial  conduct  that  in  a  democracy 
it  cannot  be  immune  from  some  popular  control,  from  sub- 
jection to  the  dominant  political  convictions  of  the  time. 
While  such  control  is  a  dangerous  thing  in  that  it  may  twist  the 
conscience  of  a  judge  into  pretending  there  is  an  ambiguity  of 
expression  where  there  is  none,  nevertheless  it  is  more  danger- 
ous to  leave  such  broad  power  in  the  hands  of  men  in  no  way 
responsive  to  popular  control. 

(137) 


90  EFFICIENT  GOVERNMENT  [Vol.  Ill 

It  is  practically  quite  idle  to  discuss  the  comparative  value  of 
these  lines  of  argument,  if  the  issue  be  absolute  independence, 
because  it  is  certain  that  looking  forward  to  any  time  we  can 
now  hope  to  influence,  the  American  people  will  not  give  up 
some  control  over  judicial  tenure.  The  consistent  tendency  of 
sixty  years  is  if  anything  stronger  to-day  than  it  has  ever 
been  before.  It  is  quite  useless  to  consider  how  often  any 
genuine  ambiguity  of  expression  really  exists,  and  whether  a 
sympathetic  effort  to  reassume  the  position  of  the  legislator  or 
of  the  preceding  judge  will  not  generally  solve  the  problem. 
The  people  believe  that  the  usual  judge  has  not  the  detachment 
of  will  which  makes  this  possible  for  him,  and  that  he  will  in- 
evitably carry  some  bias  to  the  problem.  I  may  say  that  my 
personal  experience  with  judges  quite  corroborates  that  belief. 
The  people  have  hitherto  attempted  to  correct  a  bias  contrary 
to  the  popular  will  temporarily  dominant,  by  bringing  up  the 
judge  for  examination  at  stated  intervals.  They  will  desire  to 
continue  to  exercise  this  control  in  some  equivalent  way. 

Therefore  the  question  arises,  if  the  judges  become  appoint- 
ive in  the  way  I  have  suggested,  what  shall  be  their  tenure?  Is 
the  governor  to  appoint  them  for  stated  terms  during  which  they 
are  independent?  Is  he  to  appoint  them  on  good  behavior 
subject  to  legislative  recall?  Is  he  to  appoint  them  for  stated 
terms  subject  to  legislative  recall?  Is  the  action  of  the  legisla- 
ture in  the  matter  of  the  recall  to  be  subject  itself  to  a  refer- 
endum? Is  there  to  be  an  immediate  popular  recall?  Starting 
with  some  popular  control  over  the  tenure  of  judges,  which 
must  in  any  case  be  the  price  of  the  surrender  of  the  power  to 
elect,  what  is  the  most  desirable  plan?  This,  it  seems  to  me, 
depends  very  largely  upon  the  degree  to  which  constitutions  are 
to  check  the  will  of  the  majority.  Fixed  terms  operate  for 
their  earlier  part  to  remove  the  judge  from  the  pressure  either 
of  persons  or  of  popular  ideas  ;  as  they  run  out  they  subject  him 
to  both.  An  indefinite  tenure,  with  popular  power  to  recall,  sub- 
stantially removes  a  judge  forever  from  personal  pressure,  while 
it  continually  subjects  him  to  popular  ideas.  In  so  far  as  the 
constitutions  check  the  popular  will,  his  \niegnty  is  certainly 
menaced;    in   so   far  as  by   referendum   or  othenvise    the   dis- 

(138) 


No.  2]  METHODS  0I<  SELECTION  OF  JUDGES  91 

tinction  between  the  constitution  and  the  popular  will  is  lessened 
his  integrity  becomes  safer.  Yet  even  in  the  first  case,  the  pro- 
tection is  not  great.  Judicial  terms  in  the  United  States  do  not 
on  the  average  exceed  six  or  eight  years,  I  believe.  If  the 
judge  is  to  retain  entire  independence  through  his  term,  that 
term  will  not  be  lengthened,  and  popular  memory  is  likely  to 
last  for  two  or  three  years. 

We  may  sum  up  the  positions,  therefore,  as  follows :  Any 
limitation  of  tenure  should  be  objectionable  to  those  who  set 
great  store  upon  constitutional  limitations  of  the  immediate 
popular  will,  who  chiefly  dread,  in  the  classic  language  of 
American  conservatives,  the  rule  of  the  mob.  It  is  true  that  to 
them  the  present  system  of  fixed  terms  should  be  monstrous  in 
that  for  a  substantial  period  it  menaces  the  judge's  constitutional 
integrity;  but  in  so  far  as  it  gives  him  some  measure  of  inde- 
pendence of  popular  pressure  it  is  good,  even  though  it  submits 
him  also  to  dependence  on  persons  as  his  term  runs  out.  To 
those,  on  the  other  hand,  who  look  for  a  more  ready  expression 
of  popular  will,  the  fixed  term  has  no  advantage  in  giving  inde- 
pendence of  popular  feeling,  while  it  has  the  great  demerit  of 
subjecting  the  judge  to  personal  influences.  Continuous  power 
to  recall  eliminates  the  latter,  while  a  more  plastic  system  would 
greatly  lessen  the  number  of  occasions  when  the  judge  would 
come  into  conflict  with  such  a  determined  popular  feeling  as  he 
should  fear.  To  the  latter  class,  therefore,  some  form  of  recall 
is  better  than  fixed  stated  t.3rms.  What,  then,  is  the  price  which 
must  be  paid  if  terms  are  to  be  extended  to  good  behavior 
— who  is  to  judge  that  good  behavior?  Shall  it  be  the  gov- 
ernor, the  legislature,  the  people  or  any  combination  of  the  two  ? 
A  recall  by  the  governor  would  rather  perpetuate  the  evils  of 
appointments  for  fixed  terms;  it  may  be  dismissed.  There 
remain  legislative  recall,  popular  recall,  and  a  combination  of 
the  two.  Legislative  recall  has  been  in  force  in  Massachusetts 
and  in  many  other  states  for  over  a  century  and  has  been  sel- 
dom resorted  to,  though  it  was  used  once  in  Massachusetts  most 
unjustly.  It  has  the  advantage  of  being  already  customary  and 
of  giving  better  opportunity  for  preliminary  discussion  and  for 
recognition  of  the  fact  that  a  judge  may  have  been  led  to  an 

(139) 


92 


EFFICIENT  GOVERNMENT 


undesirable  result  merely  from  loyalty  to  his  duties,  merely  from 
unwillingness  to  usurp  authority.  Nevertheless,  if  the  matter 
ended  with  the  legislature,  it  would  be  no  equivalent  for  the 
surrender  of  direct  popular  control  now  exercised  through  fixed 
terms,  and  I  think  it  quite  clear  that  the  people  would  not 
accept  it.  Moreover,  in  a  state  where  there  was  a  referendum 
upon  legislative  action  generally,  it  would  be  unlikely  that  this 
legislative  action  alone  would  remain  unreviewable.  If  the 
people  could  review  the  legislative  action,  however,  there  could 
be  no  just  objection  that  full  control  over  judges  was  lacking ; 
it  would  not  be  too  speedy,  but  it  would  be  effective. 

In  conclusion,  therefore,  we  may  say  that  under  a  system  in 
which  the  importance  of  constitutional  limitations  is  not  strongly 
felt  because  the  institutions  easily  reflect  popular  feeling,  the 
practical  conservative  position  would  be  to  appoint  judges  on 
indefinite  terms,  subject  to  recall  by  the  legislature,  with  refer- 
endum to  the  people,  and  that  this  is  a  thoroughly  democratic 
institution.  The  radical  position  would  be  fixed  terms  with 
immediate  popular  recall.  The  intermediate  position  would  be 
indefinite  terms  with  immediate  popular  recall,  from  which  the 
judge's  position  ought,  I  think,  to  exempt  him.  It  is  not  un- 
reasonable to  insist  upon  that  opportunit}'  for  discussion  which 
the  preliminary  action  of  the  legislature  would  insure. 

C140) 


THE  RECALL  OF  JUDGES' 

GILBERT    E.  ROE 

New  York  City 

I  do  not  advocate  the  recall  of  judges  as  a  means  of  correcting 
all  judicial  abuses.  I  do  not  think  it  would  revolutionize 
courts.,  and  I  do  not  think  that  the  recall  should  be  applied 
to  judges  until  it  is  applied  to  all  other  public  officials.  The 
position  of  those  who  advocate  the  recall  of  judges  simply  is 
that  when  the  people  in  good  time  and  in  their  wisdom,  if 
wisdom  it  is,  have  decided  to  bring  public  officers  generally 
under  the  control  of  the  recall,  no  distinction  shall  be  made  in 
the  case  of  judges.  The  issue,  so  far  as  there  is  an  issue  on 
this  question,  is  between  those  who  say  that  a  distinction  should 
be  made  in  the  case  of  judges,  that  reasons  exist  why  the  recall 
should  not  be  applied  to  judges  when  it  might  be  perhaps  suc- 
cessfully applied  to  other  officials,  and  those  who  hold  that  no 
such  distinction  should  be  made. 

If  there  ought  to  be  any  distinction,  in  my  judgment  it  would 
be  in  favor  of  applying  the  recall  to  judges  rather  than  to  many 
other  public  officials.  Here  is  my  principal  reason  for  saying 
this :  the  judges,  more  than  any  other  class  of  officials,  ought 
to  be  close  to  the  public  if  they  are  going  to  perform  their 
proper  function  in  this  government.  The  President,  with  his 
control  of  the  army  and  navy  and  the  vast  influence  which  he 
has  the  means  of  exercising,  may  be  able  to  carry  forward  a 
policy  for  a  time  without  popular  support;  the  legislative  branch 
of  the  government,  with  its  control  of  the  finances,  also  is 
measurably  independent  of  the  people's  will ;  but  the  courts 
have  no  army  and  navy,  no  control  of  the  finances;  they  must 
depend  for  their  support  upon  the  approval  of  the  people  of  the 
country,  or  they  must  fail   in  their  function.     Therefore  I  say 

'  An  address  delivered  at  the  meeting  of  the  Academy  of  Political  Science,  October 
25,  1912. 

(141) 


94  EFFICIENT  GOVERNMENT  [Vol.  Ill 

that  whatever  brings  the  judge  and  the  people  closer  together 
is  in  my  judgment  a  good  thing,  and  that  is  the  reason — one  of 
the  reasons,  at  least — why  I  advocate  the  application  of  the 
recall  to  judges. 

The  recall  would  be  a  good  thing  not  only  for  the  judge  and 
his  decisions,  but  for  the  people  themselves,  and  after  all  that  is 
the  real  reason  why  we  want  any  of  these  democratic  measures. 
I  am  not  at  all  sure  that  where  there  are  direct  primaries  better 
candidates  have  been  nominated  than  under  the  old  system,  but 
I  do  know  this,  that  it  has  been  a  good  thing  for  the  people ; 
the  discussion,  the  agitation,  the  education,  the  interest  excited 
has  laid  broad  and  deep  the  principles  of  democracy  in  those 
communities,  and  that  is  why  it  has  been  good.  And  I  beUeve 
the  same  thing  will  be  true  of  the  initiative  and  referendum. 

I  was  impressed  with  one  or  two  things  that  the  preceding 
speaker  said,  and  the  unconscious  way  in  which  he  said  them. 
Perhaps  it  was  the  intentional  eloquence  of  understatement. 
He  spoke  quite  as  a  matter  of  course  of  the  dissatisfaction 
existing  on  the  part  of  people  so  far  as  the  courts  were  con- 
cerned, indicating  that  there  was  not  the  trust  and  confidence 
existing  between  them  that  should  exist.  Again,  he  said  that 
the  people  were  almost  wholly  indifferent  to  the  character  of  a 
candidate  for  judicial  office  but  were  very  alert  as  to  the  acts  of 
the  incumbent  of  that  office.  Both  those  expressions  are  true, 
and  both  thoughts  relate  directly  to  the  subject  of  the  recall  of 
judges.  That  there  does  exist  in  this  country  to-day  a  wide- 
spread distrust  of  the  courts — not  of  individual  judges  merely, 
but  of  the  courts  and  their  purposes,  and  a  dissatisfaction  with 
the  result  of  the  work  of  the  courts, — is  a  fact  that  we  must  all 
admit.  I  have  tried  to  analyze  somewhat  the  basis  or  reason 
for  that  dissatisfaction,  and  as  briefly  as  I  can  I  want  to  tell  you 
my  conclusions  about  it. 

Since  the  foundation  of  this  government,  the  people  have 
been  reaching  out  and  gaining  more  and  more  complete  and 
direct  control  over  both  the  executive  and  the  legislative 
departments  of  the  government.  You  know  that  the  constitu- 
tion provided  for  the  device  of  an  electoral  college  because  it 
did  not  trust  the  people,  because  the  framers  of  the  constitution 

(142) 


No.  2]  THE  RECALL  OF  JUDGES  95 

were  unwilling  to  commit  to  the  mass  of  people  the  important 
function  of  electing  the  President  of  the  United  States.  Then 
also  it  was  felt  necessary  that  one  branch  of  the  legislature 
should  represent  the  wealth  and  financial  interest  of  the  country, 
hence  the  provision  for  electing  United  States  senators  by  state 
legislatures  and  electing  them  for  long  terms.  At  once  the 
people  set  about  destroying  these  barriers,  and  so  they  found  a 
way  to  get  around  the  electoral  college,  and  to  abrogate  the  con- 
stitutional provisions  providing  for  the  election  of  United  States 
senators  by  state  legislatures.  The  direct  primary  is  another 
step  in  the  same  direction,  so  that  more  and  more  all  through 
the  years  from  the  time  the  constitution  was  framed  to  this 
moment  the  people  have  been  seeking  and  securing  more  com- 
plete control  of  the  executive  and  legislative  branches  of  their 
government,  bending  these  ofiicials  more  completely  to  their 
will,  and  as  I  think,  properly  so.  But  that  is  not  the  question 
at  this  moment. 

With  the  judiciary  just  the  opposite  course  has  been  pursued, 
or  rather  the  judiciary  has  traveled  an  opposite  road.  With  a 
constitution  that  gave  so  little  power  to  the  Supreme  Court  of 
the  United  States  that  John  Jay,  the  first  Chief  Justice,  resigned, 
because  he  said  there  was  not  power  enough  in  the  office  to 
make  it  worth  a  man's  time  to  hold  it, — starting  out  from  that 
point  and  coming  down  to  this  time  the  courts  by  their  decisions 
have  removed  themselves  more  and  more  from  popular  control. 
I  am  not  going  to  enter  on  the  discussion  of  the  question 
whether  the  constitution  granted  to  the  court  the  right  to 
declare  a  law  unconstitutional ;  it  is  my  belief  that  it  did  not. 
That  question  is  one  of  the  most  interesting  in  all  our  history. 
But  we  all  agree  upon  this,  that  when  the  doctrine  was  first 
announced  that  a  court  could  declare  a  law  unconstitutional, 
always  that  announcement  was  coupled  with  the  expression  that 
it  was  a  power  so  dangerous  for  a  court  to  exercise,  so  danger- 
ous to  what  we  call  popular  government,  that  a  court  would 
never  exercise  it  except  in  a  case  that  was  free  from  all  doubt. 
When  you  put  a  statute  side  by  side  with  the  written  constitu- 
tion and  it  was  perfectly  plain  that  the  two  were  in  conflict 
only  then  could  the  court  say  that  the  statute  was  unconstitu' 

(143) 


96  EFFICIENT  GOVERNMENT  [Vol.  Ill 

tional  and  must  fall.  Everyone  agrees  that  that  was  the 
position  the  court  took  when  it  first  announced  the  doctrine. 
But  today,  so  far  have  our  courts  got  away  from  that  old  land- 
mark laid  down  by  Marshall  and  other  great  judges  of  that  day 
that  no  one  knows  to-day,  when  a  legislature  or  the  Congress 
passes  a  law,  whether  it  is  law  or  not  until  it  has  been  passed 
on  by  the  courts.  We  have  often  found  of  late  years,  when  it 
has  been  sought  to  remedy  some  great  abuse,  as  in  the  income- 
tax  law,  the  workmen's  compensation  acts,  employers'  liability 
laws  and  many  others,  that  there  has  been  built  up  a  great  body 
of  public  sentiment  in  favor  of  the  law,  and  then  that  public 
sentiment  became  so  strong  that  it  could  knock  successfully  at 
the  doors  of  a  legislature  or  the  Congress  and  command  atten- 
tion there.  So  after  long  days  or  weeks  or  years  of  discussion 
the  law  was  passed  by  the  Congress  or  a  state  legislature,  each 
body  containing  many  of  the  most  eminent  lawyers  of  the 
state  or  nation,  every  objection  possible  having  been  brought 
up  and  discussed  and  answered  and  provided  for,  and  then  the 
law  went  to  the  President,  who  had  the  benefit  of  the  advice  of 
the  ablest  minds  of  the  country,  and  he  signed  it,  and  it  was 
written  on  the  statute  books.  After  all  this,  the  day  comes  to 
enforce  this  law,  and  you  go  into  court  on  it  and  the  question 
is  all  argued  out  whether  it  is  constitutional  or  not,  and  the 
court  thinks  it  is.  Then  there  is  an  appeal  to  the  next  court. 
The  next  court  thinks  it  is,  and  perhaps  that  involves  a  decision 
of  four  or  five  or  six  judges,  all  holding  it  constitutional.  Then 
another  appeal  is  taken  to  a  little  higher  court,  and  perhaps 
here  three  judges  out  of  five  say  that  it  is  not  constitutional, 
that  it  shall  not  stand.  So  then  you  have  the  word  of  three 
men  against  all  the  wisdom  of  the  lower  courts,  of  the  President, 
of  both  houses  of  Congress  and  of  the  people — and  your  law 
falls. 

Because  that  thing  has  happened  in  this  country  within  your 
memory  and  mine  not  once  but  many  times,  not  on  unimpor- 
tant matters,  but  on  matters  that  touch  vitally  the  lives  and  the 
happiness  of  the  people  in  a  majority  of  the  homes  of  this 
country,  because  laws  of  the  kind  above  referred  to  have  been 
stricken  down  and  destroyed,  because  three  or  four  men  clothed 

(144) 


No.  2]  THE  RECALL  OF  JUDGES  97 

with  judicial  authority  have  set  themselves  up  in  opposition  to 
the  will  and  intelligence  of  the  rest  of  the  country,  because  of 
this  there  has  been  a  demand  on  the  part  of  the  people  to  bring 
these  judicial  officers  more  completely  within  their  control. 

The  result  of  bringing  them  within  the  popular  control  would 
be  good  for  the  judges  and  good  for  the  people.  We  lawyers 
are  a  good  deal  to  blame  about  the  mistakes  that  judges  make. 
If  the  first  speaker  had  been  elected  to  the  United  States 
Senate  at  the  time  he  was  appointed  to  the  bench  he  would 
have  brought  just  the  same  integrity,  ability,  conscientiousness 
of  purpose  and  fidelity  to  the  one  set  of  duties  that  he  has 
brought  to  the  other, — and  yet  in  public  estimation  how  differ- 
ent would  his  position  be.  We  feel  that  it  is  anybody's  priv- 
ilege to  go  out  and  praise  or  criticize  or  discuss  the  members 
of  the  United  States  Senate  or  House  of  Representatives,  and 
the  result  is  on  the  whole  the  establishment  of  a  very  good 
feeling  between  the  people  and  the  members  of  the  law-making 
branch  of  the  government ;  but  when  a  man  goes  on  the  bench 
we  have  been  taught  to  feel  that  he  goes  into  a  different  realm, 
that  his  acts  must  not  be  discussed,  his  conduct  must  not  be 
brought  under  criticism.  I  do  not  believe  that  that  is  a  right 
view,  but  I  say  we  lawyers  are  largely  responsible  for  bringing 
about  the  false  sentiment  on  that  question,  and  the  thing  that 
would  do  most  to  correct  that  is  the  recall.  Make  your  judges 
and  their  actions  the  subject  of  discussion ;  let  the  people  talk 
about  them,  and  not  be  fined  for  contempt  of  court  if  they  do 
talk  about  them ;  let  us  discuss  what  the  judge  does  just  as  we 
discuss  what  the  member  of  Congress  does. 

It  was  said  that  the  people  are  apt  to  know  nothing  about 
the  character  of  the  candidate  for  judicial  office  and  to  be 
indifferent  to  it.  That  is  why  I  would  have  the  recall  and 
would  have  a  life  tenure  unless  the  recall  was  exercised.  In 
the  hurly-burly  of  an  election  there  are  many  candidates  and 
many  issues,  the  record  of  any  particular  candidate  is  lost  sight 
of.  But  in  a  recall  election  the  man  and  his  conduct  stand  out; 
it  is  the  one  thing  you  are  considering.  There  has  been  in 
this  country  just  one  attempt  to  recall  a  judge ;  that  was  in 
Oregon  in  191 1.  A  judge  there  presided  at  a  murder  trial  in  a 
7  (145) 


98  EFFICIENT  GOVERNMENT 

very  unpopular  way,  making  such  rulings  that  the  man  charged 
with  the  crime  escaped  conviction.  A  considerable  part  of  the 
community  believed  that  the  judge's  decisions  were  wrong,  and 
that  they  argued  such  corruption  or  such  incompetency  that  he 
ought  to  be  removed.  So  they  started  out  to  circulate  a  recall 
petition.  As  you  know,  every  state  that  has  a  law  providing  a 
recall,  safeguards  it  so  that  several  months  must  elapse  between 
the  filing  of  the  petition  and  the  election.  In  this  case  it  was 
necessary  to  get  twenty-five  per  cent  of  the  voters  of  the  district 
to  sign  the  petition  that  a  recall  election  be  held.  The  law  also 
provides  that  each  side  shall  at  the  public  expense  state  its 
reasons  why  the  recall  is  demanded  on  the  one  side,  and  why 
the  judge  should  be  continued  on  the  other.  After  that  the 
election  is  to  be  held  some  months  in  the  future.  The  people 
in  Oregon  did  not  take  even  the  first  step,  although  the  case 
appeared  a  rather  flagrant  one.  They  could  not  get  anywhere 
near  the  twenty-five  per  cent  necessary  even  to  submit  the 
question  to  another  election.  But,  you  may  say,  if  a  recall 
would  be  so  seldom  exercised,  why  do  you  advocate  it?  For 
just  the  reason  that  if  there  is  the  power  of  recall,  if  the  people 
feel  that  they  have  control  over  the  judge,  and  the  judge  feels 
that  he  is  really  the  servant  and  not  the  master,  then  you  will 
have  a  condition  which  will  make  the  recall  unnecessary  except 
in  rare  instances  and  at  long  intervals. 

(146) 


SUBSTITUTES  FOR  THE  RECALL  OF  JUDGES' 

J.    HAMPDEN   DOUGHERTY 
New  York  City 

AFTER  almost  two  years  of  discussion  does  anything 
remain  to  be  said  in  favor  of  judicial  recall  ?  No  pub- 
lic question  in  recent  years  has  received  more  con- 
sideration. It  has  been  the  theme  of  debates,  pamphlets, 
books  and  resolutions.  Practically  all  the  bar  associations 
throughout  the  country  have  opposed  it.  The  debate  in  Con- 
gress upon  the  admission  of  Arizona  with  its  constitutional  pro- 
vision for  judicial  recall  was  so  exhaustive  as  to  leave  nothing 
to  be  said.  The  speeches  of  statesmen  like  Root  and  Lodge  in 
the  Senate,  and  Pickett,  Kinkaid,  Legare  and  others  in  the 
House,  conclusively  showed  its  fallacy.  President  Taft's  veto 
message,  a  great  state  paper  destined  to  rank  high  in  history, 
thoroughly  shattered  the  notion.  The  vote  upon  the  Arizona 
bill  in  the  Senate  and  the  House  would  be  completely  mis- 
understood were  it  assumed  to  represent  a  preponderant  senti- 
ment in  favor  of  judicial  recall.  Many  senators  and  repre- 
sentatives to  whom  the  idea  was  repugnant  voted  for  Arizona's 
admission  because  they  felt  that  the  state  itself  had  the  right  to 
determine  whether  it  would  instal  such  an  unwise  policy  or 
not.  A  few  opponents  of  the  measure  believed,  as  did  Presi- 
dent Taft,  that  such  a  revolutionary  doctrine  was  subversive  of 
republican  government. 

Judicial  recall  has  been  abandoned  by  some  of  its  most  con- 
spicuous advocates  and  the  notion  of  recall  of  judicial  decisions 
substituted  for  it.  Thus  Colonel  Roosevelt  who,  two  years  ago, 
in  describing  judges  as  "  fossilized  minds  "  asserted  that  judicial 
recall  might  become  advisable,  now  advocates  recall  of  judicial 
decisions.  Two  recent  critics  of  our  judicial  system,  Mr. 
Gilbert  E.  Roe  and  Mr.  William  L.  Ransom,  differ  so  radically 

'  Read  at  the  meeting  of  the  Academy  of  Political  Science,  October  25,  191 2. 

U47) 


lOO  EFFICIENT  GOVERNMENT  [Vol.  Ill 

that  the  arguments  of  one  may  well  be  set  off  against  those  of 
the  other.  In  his  interesting  book  entitled  Our  Judicial 
Oligarchy  Mr.  Roe  regards  judicial  recall  as  the  remedy 
to  prevent  the  courts  from  usurping  powers  which  according  to 
him  they  do  not  possess.  Mr.  Ransom,  on  the  other  hand, 
while  equally  alarmed  at  what  he  conceives  to  be  judicial 
usurpation,  invokes  the  remedy  of  recall  of  judicial  decisions. 
No  one  has  more  incisively  refuted  judicial  recall  than  has 
Mr.  Ransom,  and  no  one  has  better  shown  the  fallacy  of  the 
recall  of  judicial  decisions  than  has  Mr.  Roe. 
Of  judicial  recall  Mr.  Ransom  says: 

If  a  judge  incorrectly  gauges  "  the  preponderant  opinion  "as  to  the 
social  necessity  for  a  particular  law ,  why  remove  him  ?  Why  not  let  the 
people  vote  directly  to  decide  what  the  majority  opinion  is?  If  a  judge 
is  dishonest,  impeach  him  ;  if  he  is  incompetent,  remove  him  by  com- 
plaint before  the  legislature  or  refuse  him  re-election,  but  it  does  not 
seem  quite  fair  to  require  him  to  take  the  final  guess  as  to  what  the 
"  prevailing  morality  "  and  the  '*  preponderant  opinion  "  of  a  state  re- 
ally is,  and  then  chop  off  his  judicial  head  if  he  "  guesses  "  or  **  calcu- 
lates "  wrong. 

For  Mr.  Ransom's  specific  Mr.  Roe,  on  the  contrary,  has  the 
scantest  respect.     He  says  : 

The  recall  of  judges  is  to  be  carefully  distinguished  from  another  idea, 
which  is  supported  by  some  men  of  prominence,  and  which  has  come 
to  be  described  as  the  "  recall  of  judicial  decisions."  The  former  may 
be  applied  without  materially  departing  from  our  constitutional  form  of 
government;  the  latter  is  absolutely  destructive  of  the  constitution. 
The  recall  of  judges  merely  means  that  where  a  judge  has  shown  from 
any  cause  that  he  is  not  discharging  the  functions  of  the  judicial 
office  in  fundamental  and  important  matters  as  the  people  desire,  he 
will  be  discharged  and  a  new  judge  possessing  the  necessary  technical 
qualifications  selected  in  his  place.  The  recall  of  judicial  decisions 
means  that  the  wholly  untrained  layman  shall  undertake  to  do,  person- 
ally, the  highly  specialized  and  technical  work  of  a  judge.  The  great 
vice  in  this  idea,  however,  is  that  it  would  be  used  as  a  means  of  amend- 
ing the  constitution  by  a  majority  vote.  It  would  soon  come  about 
that  laws  would  be  passed,  simply  for  the  purpose  of  having  them  de- 
clared unconstitutional,  and  then  by  a  popular  vote  overturning  thede- 

(148) 


No.  2]     SUBSTITUTES  FOR  THE  RECALL  OF  JUDGES        loi 

cision  of  the  court,  and  in  that  respect  amend  the  constitution.  The 
constitution,  therefore,  would  be  immediately  reduced  to  the  level  of  a 
statute,  since  any  portion  of  it  could  be  amended,  or  repealed,  at  any 
time  by  a  mere  majority  of  the  popular  vote.  While  there  is  little  like- 
lihood of  this  idea  finding  a  permanent  place  in  the  minds  of  the  people, 
that  anyone  should  be  found  who  seriously  advocates  this  idea  is  signif- 
icant of  the  extent  to  which  the  dissatisfaction  with  the  courts  has  gone, 
and  ought  to  show  the  necessity  of  reforming  the  courts,  along  lines 
less  revolutionary. 

Mr.  Ransom  has  Colonel  Roosevelt  on  his  side.  Colonel 
Roosevelt  has  written  an  introduction  to  Mr.  Ransom's  book  in 
which  he  declares  that  the  people  ought  to  have  the  power  to 
decide  for  themselves  in  the  last  report  what  legislation  is  neces- 
sary in  exercising  the  "police"  powers,  or  "general-welfare" 
powers,  so  as  to  give  expression  to  the  general  morality  and  the 
general  or  common  opinion  of  what  is  right  and  proper,  and  he 
is  careful  to  say  that  he  is  advocating  a  system  which  "  will  ob- 
viate the  need  of  such  a  drastic  measure  as  the  recall."  What 
Colonel  Roosevelt  seems  to  overlook  is  that  the  people  to-day 
enjoy  ample  power  to  change  their  constitutions  so  as  to  secure 
whatever  legislation  they  may  desire  in  the  interest  of  the  public 
welfare. 

Thus  those  who  think  judges  usurpers  and  oligarchs  are  di- 
vided into  two  hostile  bands.  One  would  introduce  judicial 
recall  as  the  remedy,  the  other  would  have  the  people  recall 
the  judicial  decision  by  popular  vote,  and  each  stigmatizes  the 
other's  panacea  as  in  the  last  degree  dangerous  and  unwise. 

Surely  after  all  the  discussion  upon  this  subject,  argument 
can  hardly  be  needed  to  show  the  unwisdom  of  judicial  recall. 
As  I  view  it,  the  proposal  is  based  upon  two  fallacies : 

First,  it  is  declared  that  the  judiciary  has  transcended  its 
functions  in  passing  upon  the  constitutionality  of  legislation,  and 
that  the  judiciary  is  the  undemocratic  and  unprogressive  branch 
of  the  government.  These  things  are  asserted  as  to  the  judic- 
iary not  only  of  the  nation  but  of  the  several  states ;  yet  in  the 
majority  of  the  states  the  judges  of  the  higher  courts  are  elected 
by  popular  vote,  and,  in  many  instances  for  short  terms. 

Second,   it   is   held   that   the   courts,   instead   of   attempting 

(149) 


I02  EFFICIENT  GOVERNMENT  [Vol.  Ill 

to  follow  the  constitution  which  they  have  sworn  to  support 
and  to  which  every  statute  should  conform,  ought,  on  the  con- 
trary, to  uphold  a  law  in  conflict  with  the  constitution,  if  that 
law  expresses  the  popular  will,  thus  substituting  the  popular 
will,  or  as  it  has  been  called,  the  "  manifest  and  express  will  of 
the  people  "  for  the  constitution  as  their  guide  in  certain  classes 
of  cases — this  class  being  cases  affecting  the  social  conditions 
of  the  whole  or  a  part  of  the  community.  According  to  this 
view,  it  is  not  the  constitution  but  the  so-called  "  popular  will " 
that  should  be  regarded  as  the  law  of  the  land. 

As  I  read  history  the  courts  have  not  usurped  the  power  to 
declare  legislation  unconstitutional.  To  say  that  the  judiciary 
is  the  unprogressive  branch  of  the  government  is  merely  an- 
other way  of  saying  that  it  is  the  business  of  the  judges  not  to 
make  law  but  to  declare  it,  and  in  this  sense  the  judiciary  is  the 
most  conservative  branch  of  the  government.  The  courts  say 
what  the  law  is,  not  what  they  think  it  should  be,  and  as  con- 
stitutions are  in  theory  at  least  easily  amendable,  the  law  can 
readily  be  so  modified  by  amendment  as  to  express  the  most 
enlightened  public  sentiment.  The  public  will  is  presumably 
expressed  in  the  constitution.  The  constitution  must  remain 
the  supreme  law  until  the  people  see  fit  to  change  it,  and  cer- 
tainly in  the  states  the  power  of  amendment  of  the  constitution 
is  easily  available.  In  New  York  state  the  constitution  is,  if 
anything,  too  readily  amendable.  The  constitution  thus  repre- 
sents the  "  popular  will  "  for  the  time  being,  and  to  attempt  to 
substitute  something  else  as  an  expression  of  the  popular  will 
by  an  unconstitutional  method  is  in  reality  to  subvert  the 
popular  will. 

Even  granting  all  the  charges  that  of  late  have  been  made 
against  the  courts — and  I  am  personally  willing  to  concede  that 
in  some  instances  the  courts  have  seemed  arbitrary  aud  unjust 
and  judges  have  been  selected  as  a  result  of  improper  influences 
— I  maintain  that  recall  is  not  the  remedy  for  any  error  in  a 
judicial  decision. 

The  recall  would  undermine  judicial  independence.  After 
all  that  has  been  said  in  Congress  and  elsewhere  it  is  unneces- 
sary to  show  that  a  system  which  makes  the  judge  liable  to 

(150) 


No.  2]     SUBSTITUTES  FOR  THE  RECALL  OF  JUDGES       103 

removal,  not  for  breach  of  duty,  but  upon  the  mere  arbitrary 
determination  of  any  power,  whether  a  king,  a  legislature  or 
the  people,  is  destructive  of  manliness,  integrity,  and  inde- 
pendence of  character.  As  Preydent  Taft  has  well  said,  no 
self-respecting  man  would  accept  judicial  office  with  such  a 
sword  of  Damocles  hanging  over  him. 

The  recall  would  inevitably  fail.  If  I  wished  to  pack  the 
bench  of  this  state  with  the  tools  of  bosses,  or  the  instru- 
ments of  the  great,  powerful  and  wealthy  interests  that  too 
often  dominate  legislatures  and  courts,  I  would  strongly  advo- 
cate judicial  recall.  Unscrupulous  combinations  with  large 
funds  at  their  command  could  use  this  power  for  the  removal 
of  the  incorruptible  judge.  It  Would  be  a  weapon  that  could 
readily  be  turned  against  the  people  in  behalf  of  special  inter- 
ests, and  nothing  could  be  more  dangerous  to  the  popular 
welfare. 

Recall  is  a  species  of  punishment;  it  implies  dissatisfaction. 
To  my  mind  there  is  something  inherently  wrong  in  punishing 
a  judge  for  the  expression  of  an  honest  and  intelligent  opinion. 
I  can  understand  punishment  when  a  person  does  wrong,  but  to 
punish  one  who  with  ability  is  presenting  his  own  best  convic- 
tions, is,  to  my  mind,  an  utter  absurdity.  The  bench  should  be 
composed  of  lawyers  who  express  their  convictions,  not  mere 
popular  instruments.  The  recall  was  applied  by  James  II 
of  England,  when  he  dismissed  the  Chief  Justice  of  the  Common 
Pleas  and  his  associates,  because  they  were  unwilling  to  give  a 
judgment  that  accorded  with  the  royal  will  and  not  with  the 
law.  Jones,  the  Chief  Justice,  had  been  abject,  even  servile, 
but  when  told  by  the  king  that- he  must  give  up  either  his 
opinion  or  his  place,  answered :  "  For  my  place  I  care  little;  I 
am  old  and  worn  out  in  the  service  of  the  Crown,  but  I  am 
mortified  to  find  that  your  Majesty  thinks  me  capable  of  giving 
a  judgment  which  none  but  an  ignorant  or  a  dishonest  man 
could  give." — "  I  am  determined,"  said  the  king,  "  to  have 
twelve  judges  who  shall  be  all  of  my  mind  as  to  this  matter." 
"  Your  Majesty,"  answered  Jones,  "  may  find  twelve  judges  of 
your  mind  but  hardly  twelve  lawyers."  The  king  dismissed 
him    and    his    associates.     This    is    what   would    happen  with 

(151) 


104  EFFICIENT  GOVERNMENT  [Vol.  Ill 

judicial  recall  in  force.  Judges  would  seek  to  know  the  popu- 
lar will  and  to  follow  it,  which  would  be  subversive  of  juris- 
prudence, and  in  turn  of  the  rights  and  liberties  of  the  people 
themselves. 

Assuming  that  there  are  errors  in  the  present  administration 
of  justice  which  need  ta  be  corrected,  assuming  that  judges 
have  encroached  upon  the  legislative  branch  of  the  government 
and  constituted  themselves  a  species  of  upper  house  to  veto 
legislation  by  substituting  their  opinion  for  legislative  opinion, 
the  remedy  does  not  lie  in  the  recall  of  judges  or  in  recall 
of  their  decisions.  On  the  contrary,  the  remedy  is  far  simpler, 
more  efficacious,  more  wholesome,  less  subversive  and  revo- 
lutionary. 

In  the  first  place,  compel  judges  to  return  to  the  sound,  old- 
fashioned  notion  that  no  law  may  be  held  unconstitutional  unless 
it  clearly  transcends  legislative  power.  It  is  a  travesty  to  assert 
a  law  plainly  and  palpably  unconstitutional  which  five  judges 
out  of  a  bench  of  nine  consider  unconstitutional,  while  the  re- 
maining four  believe  it  within  legislative  authority.  A  statute 
which  three  judges  out  of  seven  or  four  judges  out  of  nine  deem 
constitutional  is  not  plainly  and  palpably  unconstitutional,  and 
no  court  by  any  vain  show  of  reasoning  can  make  it  appear  to 
be  so.  Whenever  there  is  doubt  of  the  validity  of  a  statute, 
the  courts,  as  the  late  Mr.  Justice  Harlan  of  the  Supreme  Court 
admirably  said,  "  must  keep  their  hands  off,  leaving  the  legisla- 
ture to  meet  the  responsibility  for  unwise  legislation."  If  the 
economic  wisdom  of  a  legislative  measure  fails  to  meet  judicial 
approval,  that  is  no  reason  why  a  court,  particularly  a  divided 
court,  should  declare  the  statute  repugnant  to  the  constitution. 
If  the  judges  cannot  agree  that  the  law  violates  the  constitution, 
the  law  should  stand.  The  true  theory  was  never  stated  better 
than  by  Mr.  Justice  Iredell,  one  of  the  earliest  members  of  the 
United  States  Supreme  Court,  and  Iredell,  quite  as  much  as 
Hamilton,  was  a  staunch  advocate  of  the  duty  and  power  of  the 
judiciary  to  declare  unconstitutional  laws  that  were  repugnant 
to  the  fundamental  law  of  the  land.  As  far  back  as  1 798  Iredell 
said: 

(152) 


No.  2]      SUBSTITUTES  FOR  THE  RECALL  OF  JUDGES       105 

If  any  act  of  Congress  or  of  the  legislature  of  a  state  violates  those 
constitutional  provisions,  it  is  unquestionably  void  ;  though  I  admit  that 
as  the  authority  to  declare  it  void  is  of  a  delicate  and  awful  nature ,  the 
court  will  never  resort  to  that  authority,  but  in  a  clear  dj\d  urgent  case. 
If,  on  the  other  hand,  the  Legislature  of  the  Union  shall  pass  a  law 
within  the  general  scope  of  their  constitutional  power,  the  court  cannot 
pronounce  it  void  merely  because  it  is,  in  their  judgment,  contrary  to 
the  principles  of  natural  justice.  The  ideas  of  natural  justice  are  regu- 
lated by  no  fixed  standard  ;  the  ablest  and  purest  men  have  differed 
upon  the  subject. 

If  necessary,  I  would  favor  an  amendment  to  every  constitu- 
tion depriving  the  judges  of  power  to  nullify  laws  by  a  majority 
vote.  A  constitutional  provision  might  be  thus  formulated : 
Judges  shall  have  power  to  declare  statutes  unconstitutional  only 
when  they  plainly  violate  an  express  provision  of  the  constitu- 
tion and  then  only  by  unanimous  or  greatly  preponderating 
vote. 

Second,  I  would  so  amend  the  national  judiciary  law,  or  if 
necessary  the  federal  constitution,  as  to  permit  a  review  in 
the  highest  tribunal  of  the  nation  of  every  statute  involving  the 
due-process-of-law  clause,  whether  the  statute  was  upheld  or 
abrogated  by  the  state  court.  The  guarantee  of  due  process  of 
law  is  the  same  in  words — in  any  event  it  is  identical  in  mean- 
ing— in  the  national  and  the  various  state  constitutions.  Had 
the  judiciary  act  permitted,  the  Ives  case,  which  according  to 
the  New  York  court  of  appeals  offended  against  this  clause  of 
the  state  and  the  national  constitution,  would  have  been  re- 
viewed in  the  United  States  Supreme  Court.  With  one  final 
tribunal  to  determine  whether  any  statute,  state  or  federal,  con- 
flicts with  the  due-process  clause,  there  will  be  evolved  a  clear 
definition  of  the  clause  ;  there  will  also  be  harmony  in  decisions. 
Furthermore,  in  every  case  involving  this  provision,  attention 
will  be  centered  upon  the  court  that  possesses  this  final  authority. 
The  guarantee  of  due  process  of  law  may  have  been  distorted 
and  extended  far  beyond  its  original  meaning,  as  some  claim ; 
yet,  on  the  other  hand,  the  words  of  a  constitution  must  be 
fluid,  and  no  meaning  once  assigned  can  control  the  signification 
of  the  words  if  new  circumstances  give  them  a  new  meaning. 

(153) 


Io6  EFFICIENT  GOVERNMENT  [Vol.111 

Every  interest  which  regards  its  property  as  unjustly  affected,  or 
perhaps  confiscated,  by  a  statute  the  purpose  of  which  is  social 
improvement,  has  a  right  to  be  heard,  but  all  such  statutes 
should  be  brought  to  final  test  before  the  Supreme  Court  of  the 
United  States.  That  court  is  to-day  more  progressive  than  any 
state  court  of  elected  judges — a  fact  that  tends  to  show  the  fal- 
lacy of  judicial  recall.  Judges  entrenched  in  office  for  life,  and 
therefore  immune  from  recall  except  by  impeachment,  have 
been  found  more  favorable  to  legislation  designed  to  secure  the 
popular  welfare  than  judges  elected  and  subject  to  recall  at  fixed 
intervals. 

Third,  to  avoid  the  danger  of  the  creation  of  an  utterly  irre- 
sponsible bench,  I  would  favor  the  freest  criticism,  consistent 
with  decorum,  of  judicial  decisions  and  especially  of  judicial 
conduct,  and  make  impeachment  and  removability  for  cause  real 
remedies.  Every  judge  ought  to  discharge  his  duties  under  the 
shadow  of  possible  impeachment.  Impeachment  could  be  made 
a  live  remedy.  Its  tedious  and  elaborate  processes  should  be 
abolished.  Let  a  judge  be  put  on  trial  on  the  complaint  of  an 
association  of  lawyers  or  of  any  other  responsible  civic  body. 
No  servant  of  the  people  should  enjoy  immunity  from  removal 
for  cause.  Our  political  inventiveness  is  atrophied  indeed  if  we 
cannot  devise  methods  for  the  fair  and  expeditious  trial  of 
judges,  without  resorting  to  recall.  With  proper  publicity  judi- 
cial removal  would  rarely  be  necessary.  The  bar  and  the  public 
should  be  stimulated  to  make  all  reasonable  complaints  so  that 
the  record  of  judges  could  be  followed.  A  judge  should  be  re- 
movable not  merely  for  one  specific  offense,  but  for  a  generally 
poor  and  unsatisfactory  record. 

The  greatest  evil  is  an  elective  system  which  permits  bosses 
and  machines  to  nominate  judicial  candidates  and  place  upon 
the  bench  men  of  inferior  calibre  and  feeble  morality.  An 
elective  system  naturally  puts  availability  or  activity  in  politics, 
and  not  fitness  and  integrity,  in  the  foreground  of  qualifica- 
tions. I  would  return  to  the  appointive  system  and  have  every 
judge  hold  office  during  good  behavior — which  should  mean 
good  behavior.  If  deemed  desirable,  judges  should  at  periodic 
intervals,  say  of  five  or  ten  years,  be  compelled  to  pass  ex- 

(154) 


No.  2]      SUBSTITUTES  FOR  THE  RECALL  OF  JUDGES       107 

aminations  to  prove  that  they  possessed  the  qualifications  for 
their  great  position.  Every  judge  whose  conduct  fell  below 
the  high  standard  which  the  community  has  a  right  to  prescribe 
for  a  judicial  officer  should  become  subject  to  removal.  Every 
judge  whose  use  of  judicial  patronage  indicates  subserviency  to 
an  organization  or  a  boss  should  also  be  subject  to  removal. 

If  the  frontiers  of  judicial  power  are  not  properly  defined,  let 
us  define  them.  I  for  one  am  convinced  that  in  the  nature  of 
things  courts  must  construe  statutes  and  decide  whether  they 
conflict  with  the  fundamental  law.  Some  authority  must  be 
established  to  interpret  legislation  and  to  determine  whether 
an  act  of  the  legislature  is  within  the  legislature's  power;  other- 
wise the  legislature  becomes  supreme — even  over  the  constitu- 
tion. But  to  recall  a  judge  for  the  expression  of  an  honest 
and  intelligent  conviction  is  to  my  mind  unthinkable.  It 
would  put  a  premium  upon  judicial  insincerity  and  sycophancy. 
Curtail  the  power  of  the  judiciary  if  after  full  deliberation  that 
seem  to  be  wise,  but  never  do  anything  to  weaken  the  judge's 
independence,  his  immunity  from  responsibility  for  every  act 
not  legally  or  morally  reprehensible. 

The  problem  is  how,  while  retaining  a  tenure  during  good 
behavior,  to  insure  prompt  accountability  and  removability  for 
cause.  But  the  proposal  to  recall  judges  for  unpopular  de- 
cisions would,  as  President  Taft  has  well  said,  be  "  nothing  less 
than  a  proposal  to  abolish  courts.  To  abolish  courts  is  to 
abolish  freedom.  However  innocent  the  motives  of  those  who 
propose  the  measure,  no  deadlier  blow  was  ever  aimed  at  the 
heart  of  human  liberty  than  this.  The  people  have  only  to 
understand  it  to  reject  it." 

To  those  who  will  not  heed  President  Taft's  wise  words,  let 
me  cite  the  opinions  of  a  great  English  economist,  statesman 
and  political  philosopher,  John  Stuart  Mill.  In  his  well 
known  work,  Considerations  on  Representative  Government,  Mr. 
Mill  presented  the  following  cogent  and  conclusive  reasons 
against  judicial  recall ; 

If  a  judge  could  be  removed  from  office  by  a  popular  vote ,  whoever 
was  desirous  of  supplanting    him    would  make  capital  for  that  pur- 

(155) 


I08  EFFICIENT  GOVERNMENT 

pose  out  of  all  his  judicial  decisions ;  would  carry  all  of  them ,  as  far  as 
he  found  practicable,  by  irregular  appeal  before  a  public  opinion 
wholly  incompetent,  for  want  of  having  heard  the  case,  or  from  having 
heard  it  without  either  the  precautions  or  the  impartiality  belonging  to 
judicial  hearing  ;  would  play  upon  popular  passion  and  prejudice  where 
they  existed,  and  take  pains  to  arouse  them  where  they  did  not.  And 
in  this,  if  the  case  were  interesting,  and  he  took  sufficient  trouble,  he 
would  infallibly  be  successful,  unless  the  judge  or  his  friends  descended 
into  the  arena,  and  made  equally  powerful  appeals  on  the  other  side. 
Judges  would  end  by  feeling  that  they  risked  their  office  upon  every 
decision  they  gave  in  a  case  susceptible  of  general  interest,  and  that  it 
was  less  essential  for  them  to  consider  what  decision  was  just,  than  what 
would  be  most  applauded  by  the  public,  or  would  least  admit  of 
insidious  misrepresentation. 

He  thus  presents  the  pith  of  the  whole  question : 

The  question  however,  is  whether  in  the  peculiar  position  of  a  judge 
and  supposing  that  all  practicable  securities  have  been  taken  for  an 
honest  appointment,  irresponsibility,  except  to  his  own  and  the  public 
conscience,  has  not  on  the  whole  less  tendency  to  pervert  his  conduct 
than  responsibility  to  the  government  or  to  a  popular  vote. 

To  resort  to  judicial  recall  would  be  to  flee  to  evils  that  we 
know  not  of.  How  many  persons  have  tried  to  imagine  what 
would  be  the  procedure  under  such  a  system  and  how  unlikely 
it  is  that  a  judge  would  be  recalled  upon  the  real  issue? 
It  would  be  unfortunate  to  have  more  questions  thrust  upon 
the  people  for  determination  when  they  already  vote  upon  too 
large  a  number.  Some  critics  of  the  bench  think  that  the 
judges  have  become  policy-determining  officials.  If  so,  recall 
would  be  no  remedy.  I  have  tried  to  point  out  some  feasible 
methods  which  would  avoid  anything  so  ruinous  as  the  recall 
of  judges.  If  we  set  about  it  in  earnest  we  can  readily  make 
impeachment  or  removability  for  cause  such  vital  procedures  in 
the  elimination  of  improper  judges  that  there  will  be  no  oc- 
casion for  the  recall. 

(156) 


DISCUSSION   OF   THE    SELECTION   AND    REMOVAL 

OF  JUDGES' 

Richard  S.  Childs,  Secretary  of  the  Short  Ballot  Organ- 
ization : 

As  secretary  of  the  Short  Ballot  Organization  I  have,  of 
course  been  obliged  to  consider  with  great  care  the  question  of 
whether  in  the  process  of  shortening  the  ballot  and  transferring 
minor  elective  offices  to  the  appointive  list,  the  judges  also 
should  be  made  appointive.  The  working  rule  which  we  use 
is  this :  When  a  given  office  is  on  the  elective  list,  does  it 
normally  attract  sufficient  scrutiny  to  protect  it  from  contamina- 
tion? There  is  no  question  as  to  whether  the  people  ought 
to  look  more  sharply  at  these  offices.  The  question  is,  after 
two  generations  of  trial,  do  they  look  sharply  enough  at  the 
candidates  for  these  offices  to  compel  good  nominations?  We 
know  that  in  the  case  of  conspicuous  officers  like  the  governor 
or  mayor,  public  scrutiny  compels  the  politician  to  nominate 
better  candidates  than  he  wants  to,  better  candidates  than  he 
does  nominate  for  minor  offices  where  he  has  his  own  way. 

Does  it  work  this  way  with  judges?  I  think  not.  I  offer  as 
a  fair  demonstration  the  case  of  the  so-called  judiciary  nom- 
inators in  New  York  city,  who  put  a  ticket  of  judges  in  the 
field  a  few  years  ago  when  the  number  of  judges  to  be  elected 
was  unusually  large  and  when  such  leadership  as  this  should 
have  been  much  in  demand.  The  judiciary  nominators  put  up 
a  first-class  ticket  and  practically  the  only  votes  received  by 
their  candidates  were  those  secured  through  the  endorsement 
of  other  parties.  In  spite  of  heavy  advertising,  in  spite  of  a 
splendid  ticket,  they  were  unable  to  make  a  dent  in  the  public 
consciousness  in  the  matter  of  judicial  nominations.  An  ad- 
verse report  made  by  a  bar  association  on  a  given  nomination 
makes  absurdly  little  difference  in  the  election,  and  the  report 
is  forgotten  in  two  days.     My  present  audience,  cultured  and 

^At  the  meeting  of  the  Academy  of  Political  Science,  October  25,  19 12. 

U57) 


I  lo  EFFICIENT  GOVERNMENT  [Vol.  Ill 

intelligent  as  it  is,  contains  only  a  small  percentage  of  citizens 
who  can  name,  to  say  nothing  of  describing,  the  judicial  candi- 
dates of  the  several  parties  at  the  coming  election.  The  average 
citizen  does  not  know  what  judicial  offices  are  to  be  filled  or 
who  the  candidates  are. 

The  experiment  of  having  judges  on  the  elective  list  has 
therefore  failed,  inasmuch  as  it  has  led  in  practise  to  control 
by  professional  politicians  rather  than  control  by  the  people. 
The  judges,  therefore,  must  be  taken  off  the  elective  list  and 
made  appointive  by  the  people's  governor,  in  order  to  bring 
their  selection  under  popular  control.  The  average  radical 
will  froth  at  the  mouth  at  this  suggestion,  but  he  is  wrong  and 
I  am  right, — the  appointive  way  insures  closer  popular  con- 
trol than  direct  election  does.  Taft,  Wilson  and  Roosevelt  are 
all  frankly  in  favor  of  the  appointive  rather  than  the  elective 
method. 

Current  popular  discussion  regarding  the  judiciary  makes 
propaganda  work  for  an  appointive  judiciary  seem  hopeless, 
and  the  short-ballot  movement  is  contenting  itself  for  the 
present  with  placing  emphasis  on  the  desirability  of  the  selec- 
tion of  minor  administrative  officers  by  appointment  instead  of 
election. 

There  are  two  things  that  can  be  urged,  I  think,  as  hopeful 
compromises.  There  are  two  classes  of  judges,  those  who  are 
expected  to  legislate  and  those  who  are  not.  The  former  are 
considered  policy-determining  officers,  and  in  the  minds  of 
many  people,  should  be  kept  elective,  at  least  until  the  evolu- 
tion of  something  like  the  recall  of  decisions  diminishes  their 
policy-determining  authority.  There  can  be  no  argument,  how- 
ever, about  the  non-legislating  judges  and  magistrates,  and  the 
popular  opposition  to  putting  the  New  York  city  magistrates 
on  the  elective  list,  as  proposed  by  the  Sullivan  bill  of  two 
years  ago,  shows  that  there  is  a  possibility  of  getting  popular 
support  in  making  this  class  of  judges  appointive  and  taking 
them  out  of  the  hands  of  our  present  ruling  class,  the  politicians. 

Another  line  of  advance  lies  in  the  following  suggestion. 
Let  judges  have  a  separate  non-partisan  column  on  the  ballot. 
Impose  upon  the  governor  the  duty  of  selecting  a  complete  list 

(158) 


No.  2]  SELECTION  AND  REMOVAL  OF  JUDGES  1 1 1 

of  judicial  candidates  six  weeks  before  the  election  and  allow 
three  weeks  after  that  during  which  counter  nominations  may 
be  made  by  petition  by  such  voters  as  find  reason  for  dissatis- 
faction with  the  governor's  nomination,  all  the  candidates' 
names  to  appear  without  the  party  label,  except  that  opposite 
the  governor's  selections  shall  be  the  words,  "  recommended  by 
the  governor."  This  would  have  all  the  appearance  of  popular 
election,  would  give  the  people  perfectly  fair  opportunity 
to  nominate  and  elect  when  they  felt  it  necessary  to  correct  the 
governor  and,  without  taking  away  any  of  the  "  privilege " 
of  direct  election  of  judges,  would  bring  about  practically  an 
appointive  system. 

Everett  P.  Wheeler,  New  York  city:  The  method  of 
judicial  appointments  is  of  great  practical  importance. 

A  lawyer  in  good  practise  who  has  the  confidence  of  his 
clients  is  measurably  satisfied  with  his  position  and  is  not  going 
to  a  caucus  to  get  a  political  nomination,  so  he  stays  out.  On 
the  other  hand,  a  governor  who  knows  his  duty  will  search  for 
the  best  men.  I  have  had  extended  experience,  and  I  know 
you  can  get  first-rate  lawyers  to  take  nominations  for  the 
bench  if  you  seek  them  out,  but  they  will  not  go  into  a  cam- 
paign. It  is  perfectly  true,  as  the  last  speaker  said,  that  the 
average  voter  pays  very  little  attention  to  his  judiciary  ticket. 
Years  ago  when  Croker  was  the  leader  of  Tammany,  he  took 
offense  at  Joseph  F.  Daly,  who  refused  to  vote  for  apportioning 
judicial  sales  to  some  of  Croker's  friends.  Croker  had  influ- 
ence enough  to  prevent  Daly's  renomination.  A  few  of  us 
independents,  in  cooperation  with  the  Republicans,  nominated 
a  ticket  with  three  candidates,  Mr.  Daly,  a  Roman  Catholic, 
Mr.  Taft,  the  President's  brother,  a  Protestant,  and  Mr.  William 
N.  Cohen,  who  had  been  on  the  bench  temporarily,  a  Hebrew, 
and  one  of  our  very  best  lawyers.  There  was  a  representative 
ticket,  a  Roman  Catholic,  a  Jew  and  a  Protestant,  all  of  them 
men  of  the  first  rank  in  their  profession.  And  yet  with  all  the 
campaigning  we  could  do,  and  all  the  energy  we  could  put  into 
the  fight,  we  lost  that  election.  Had  that  been  a  matter  of 
judicial  selection  there  is  no  question  that  any  governor  would 

(159) 


112  EFFICIENT  GOVERNMENT  [Vol.  Ill 

have  been  disgraced  to  refuse  to  appoint  these  men  as  against 
those  that  were  elected. 

Then  again,  since  we  are  dealing  with  facts,  pray  allow  a 
witness  to  speak  from  personal  observation.  I  have  been 
practising  for  fifty  years  at  the  bar,  about  half  that  time  in  the 
federal  and  half  in  state  courts.  I  say  without  fear  of  contra- 
diction that  on  the  whole  the  judges  of  the  federal  court  are 
superior  men  and  do  more  work  than  the  judges  of  the  state 
courts.  I  do  not  say  there  are  not  many  men  on  the  bench  in 
the  state  courts  who  are  the  peers  of  the  federal  judges.  But 
take  them  altogether  they  are  distinctly  inferior,  and  I  think 
any  lawyer  with  the  same  amount  of  experience  will  agree  with 
me  in  this.  The  judges  in  the  federal  courts  are  appointed  by 
the  President  to  serve  during  good  behavior. 

So  much  for  the  method  of  judicial  appointment.  As  to  the 
judicial  recall,  permit  me  to  say  as  a  result  of  my  endeavor  to 
keep  in  touch  with  the  plain  people,  that  it  is  my  belief  that  the 
great  majority  of  the  plain  people  have  no  such  distrust  of  the 
judges  as  has  been  assumed.  You  look  at  a  storm  on  the  sea, 
and  think  the  whole  body  of  water  is  convulsed,  but  this  is  not 
so ;  it  is  only  the  surface ;  below  the  surface  it  is  calm.  The 
sentiment  expressed  and  described  in  Mary  Antin's  remarkable 
book,  The  Promised  Land,  is  just  and  true ;  our  people  love 
their  country,  are  proud  of  their  institutions,  satisfied  that 
more  than  any  others  they  permit  the  prosperity  of  hard-work- 
ing industrious  men.  These  are  the  men  for  whom  gov- 
ernment is  formed  and  they  prosper  under  it,  and  it  is  es- 
sential that  the  rights  of  the  individual  should  be  protected 
against  the  tyranny  or  corruption  of  a  temporary  legislature. 
We  have  experienced  that.  In  the  old  Georgia  case  there  was 
offer  of  proof  that  a  legislature  was  bribed ;  the  court  said  it 
could  not  look  into  it,  but  the  fact  was  undoubted.  There  have 
been  legislatures  in  my  time  that  have  passed  acts  for  money 
consideration.  The  Senate  of  the  United  States  found  that  the 
legislature  of  Illinois  was  bribed  to  elect  Lorimer.  It  is  to 
guard  against  such  abuses  that  our  constitution  provides 
certain  limitations  to  the  power  of  the  legislature.  For  the 
judge   to   have    the   decision   recalled    is   to   destroy    his    self- 

(i6o) 


No.  2]  SELECTION  AND  REMOVAL  OF  JUDGES  113 

respect ;  he  would  always  know  that  the  fight  would  have  to  be 
made  at  some  time  in  a  contest  involving  not  his  moral  char- 
acter, but  his  success  in  a  controversy.  The  knowledge  that 
such  a  fight  was  imminent  would  be  destructive  of  his  inde- 
pendence. We  have  a  remedy  by  impeachment  for  mis- 
conduct in  office :  in  my  time  three  judges  have  been  im- 
peached in  this  state  and  removed  from  office.  I  do  not  object 
at  all  to  the  suggestion  that  the  proceedings  for  that  purpose 
be  facilitated.  I  should  be  willing  that  the  bar  association,  for 
instance,  should  present  charges;  they  did  so,  in  fact,  in  the 
cases  I  speak  of.  That  is  what  the  bar  association  of  this  city 
was  originally  organized  for,  to  present  charges  against  these 
three  corrupt  men.  We  got  our  hearing  from  the  legislature, 
though  it  is  true  we  had  to  go  to  the  assembly  first.  Within 
a  few  years  another  such  proceeding  was  taken  at  the  instance 
of  the  state  bar  association.  These  things  are  quite  within  the 
competence  of  existing  societies.  If  a  judge  is  accused  of 
corruption,  he  should  be  subject  to  removal,  and  there  should 
also  be  provision  for  removing  an  incompetent  judge.  But 
if  you  put  this  matter  into  the  hands  of  a  group  of  voters, 
who  may  choose  to  bring  up  an  issue,  not  of  whether  the  judge 
has  done  wrong,  but  of  whether  the  people  want  to  get  rid  of 
him,  you  destroy  the  judge's  independence,  and  preclude  the 
possibility  of  getting  independent  and  first-rate  men  on  the 
bench.  It  seems  to  me  that  the  adoption  of  judicial  recall  is 
destructive,  and  I  look  upon  the  men  who  advocate  it  as  I  do 
upon  the  men  who  fired  on  Fort  Sumter.  Believe,  me,  friends, 
if  this  should  be  adopted  our  distinctive  system  of  government 
would  be  broken  down  and  the  security  of  individual  rights  of 
person  and  of  property  would  be  destroyed. 

Charles  Hopkins  Hartshorne,  Jersey  City :  It  may  be  of 
some  interest  to  you  to  know  that  in  the  adjoining  state  of  New 
Jersey  we  have  more  than  one  system  of  appointing  judges. 
None  are  elected  except  justices  of  the  peace.  The  judges  of 
one  of  the  strongest  courts  in  the  state  are  neither  elected,  nor 
appointed  by  the  governor ;  the  judges  of  the  court  of  chancery, 
or,  as  they  are  called,  vice-chancellors,  are  appointed  for  terms 

8  (161) 


114  EFFICIENT  GOVERNMENT  [Vol.  Ill 

of  seven  years  by  the  chancellor  without  any  concurrent  author- 
ity at  all.  The  constitution  of  New  Jersey  provides  that  "  the 
court  of  chancery  shall  consist  of  a  chancellor,"  so  that  there 
may  be  legally  no  judge  of  that  court  except  the  chancellor; 
but  some  thirty  years  ago,  when  it  was  found  that  no  one  man 
could  keep  pace  with  the  work  of  the  court,  a  vice-chancellor 
was  appointed  by  authority  of  a  statute.  The  number  has  since 
been  increased  to  seven.  In  theory,  they  are  only  referees, 
but  in  fact  they  exercise  nearly  all  the  functions  of  the  chan- 
cellor, nearly  all  the  powers  of  the  court.  The  decrees  of  the 
court  are  signed  by  the  chancellor  in  the  form  advised  by  them. 
No  appeals  lie  from  their  decisions  to  the  chancellor,  but  directly 
to  the  court  of  errors  and  appeals.  The  chancellor  has  found 
it  necessary  to  select  for  his  relief  and  the  credit  of  his  court 
the  best  men  he  could  get  for  that  office.  I  think,  of  all  who 
have  been  appointed,  there  was  only  one  who  was  not  of  ex- 
ceptional ability,  and  he  held  office  only  one  term.  As  to  the 
judges  of  the  other  superior  courts,  they  are  all  appointed  by 
the  governor  for  terms  of  seven  or  five  years.  But  there  has 
grown  up  a  practise  that  has  become  unwritten  law,  that  a  judge 
of  the  supreme  court  who  is  satisfactory  shall  be  reappointed, 
and  for  so  long  as  he  gives  satisfaction  to  the  bar  and  the  public. 
I  think  there  has  been  no  case  within  my  memory  where  a  judge 
of  that  court  has  failed  of  reappointment  except  from  advanced 
age  or  illness,  with  the  result  that  although  their  terms  are  for 
only  seven  years,  we  have  had  judges  who  have  served  for  thirty 
years,  and  few  who  have  served  less  than  three  or  four  terms, 
and  if  they  have  left  then  it  has  been  because  of  their  own  wish 
or  because  of  advanced  age.  The  result  of  this  practise  has 
been  a  very  satisfactory  court. 

But  when  we  come  to  the  courts  of  common  pleas,  the  county 
courts,  the  case  is  different.  I  am  sorry  to  say  appointments  to 
them  have  been  generally  regarded  as  spoils  of  office.  There 
has  been  this  result,  however,  from  the  appointive  system,  that 
with  one  or  two  exceptions  the  judges,  even  of  the  county 
courts,  have  been  entirely  removed  from  politics.  The  senti- 
ment of  the  state  is  so  strong  against  a  judge  mixing  in  politics 
that  by  mere  force  of  that  sentiment  a  judge  finds  himself  com- 

(162) 


No.  2]  SELECTION  AND  REMOVAL  OF  JUDGES  1 1  5 

pelled  to  withdraw  from  direct,  and  even  from  indirect,  connec- 
tion with  politics.  From  that  point  of  view,  at  least,  I  think  the 
appointive  system  has  been  successful. 

Edward  D.  Page,  Oakland,  N.  J. :  In  raising  the  question  as 
to  whether  there  was  widespread  distrust  of  the  courts,  Mr. 
Wheeler  injected  a  note  of  skepticism  which  I  think  it  will  be 
of  value  to  continue,  as  this  is  one  of  the  two  points  upon  which 
the  proposition  of  the  recall  of  judges  seems  to  be  based. 
My  own  experience  is  that  no  such  widespread  distrust  of  the 
courts  exists.  Coming  in  contact  with  a  great  variety  of  people, 
both  as  a  recorder  in  a  New  Jersey  borough  and  in  rather 
extensive  civil  litigation  in  the  city  of  New  York,  as  president 
of  the  Merchants'  Protective  Association,  I  am  led  to  believe 
there  is  almost  everywhere  a  most  profound  respect  for  the 
courts  which  penetrates  the  great  inarticulate  masses — the 
people  who  are  not  glib  talkers  anjl  who  rarely  express  their 
opinions  in  public. 

The  only  other  point  on  which  the  advocacy  of  this  remedy 
seems  to  be  founded  is  that  it  would  be  an  education  for  the 
people  to  be  obliged  to  discuss  and  determine  for  themselves 
the  decisions  of  law  with  which  they  may  be  dissatisfied.  Is  it 
not  rather  a  large  undertaking  for  the  people  at  large  to  gain 
the  necessary  knowledge  to  inform  their  judgment  so  that  they 
may  intelligently  express  opinions  about  matters  such  as  those 
who  advocate  the  recall  of  judges  or  the  recall  of  decisions 
would  put  before  them?  I  think  most  people  would  rather  not 
have  such  a  responsibility  put  upon  them,  and  I  think  that  the 
real  reason  why  there  is  now  so  little  interest  in  the  election  of 
judges  is  that  the  voters  realize  that  they  do  not  possess  the 
information  necessary  for  them  to  express  an  intelligent  opinion. 
They  are,  therefore,  content  to  leave  the  matter  in  the  hands  of 
the  men  who  make  the  nominations,  following  them  because 
they  have  better  judgment  as  to  the  qualifications  of  a  judge.  I 
think  whenever  you  present  a  question  which  people  know  is 
beyond  their  judgment  they  will  tend  to  rely  on  someone  else, 
and  if  the  boss  seems  the  handiest  man,  they  will  naturally  follow 
him.  They  certainly  will  follow  the  district  leader,  and  he  is 
always  for  the  "  ticket." 

(163) 


1 1 6  EFFICIENT  GO  VERNMENT 

It  is  a  fallacy  to  believe  that  the  recall  is  a  new  question. 
There  was  a  democracy  in  Athens,  where  the  recall  of  the 
judges  prevailed.  Was  it  not  Aristides  who,  when  the  question 
of  his  recall  was  being  voted  on,  sat  beside  the  urn  where  the 
voters  were  casting  their  votes,  and,  asking  a  man  who  voted  to 
ostracize  him,  "  Do  you  know  this  Aristides?  "  got  the  answer, 
"  No,  but  I  am  tired  of  hearing  him  called  '  the  Just.'  "  Socrates 
also  was  obliged  to  suffer  the  recall  and  to  drink  the  hemlock 
because  of  the  vague  popular  opinion  against  him.  How  can 
people  who  cannot  possibly  inform  themselves  be  expected  to 
express  an  opinion  intelligently  on  such  subjects?  Are  we 
ready  as  a  democracy  to  present  these  questions  to  the  whole 
body  of  voters?  Can  we  trust  a  majority  of  them,  no  matter 
how  much  we  believe  in  "  the  people,"  to  express  opinions  in- 
telligently on  subjects  on  which  they  cannot  be  informed?  Are 
we  not  going  rather  rapidly  with  political  experiment  when  we 
expect  the  mass  of  the  people,  as  in  Oregon,  to  read  and  digest 
a  book  of  two  hundred  and  fifty  pages  before  they  can  express 
an  opinion  on  the  questions  at  issue  in  a  single  election?  Are 
we  ready  to  advocate  that  state  of  affairs,  and  may  we  not,  in 
our  zeal  for  democracy,  destroy  democracy  by  its  own  excess? 

(164) 


THE  FEDERAL  BUDGET: 

WHAT  THE  PRESIDENT   IS   TRYING   TO  DO  BY  WAY  OF   BUDGET 
MAKING  FOR  THE  NATIONAL  GOVERNMENT  ' 

FREDERICK   A.    CLEVELAND 


I 


AM  assuming  that  you  wish  me  to  say  something  concrete 
about  what  the  President  is  trying  to  do  by  way  of  budget 
making  for  the  national  government. 


The  Presidenf s  Inquiry  into  Economy  and  Efficiency 

The  first  step  which  was  taken  by  the  President  looking 
toward  a  revision  of  methods  of  making  and  submitting  esti- 
mates for  the  national  government  was  in  October,  1910.  An 
appropriation  of  $100,000  had  been  made  at  his  request 

to  enable  the  President  *  *  *  to  inquire  more  effectually  into  the 
methods  of  transacting  public  business  *  *  *  with  a  view  to  inaugurating 
new  or  changing  old  methods  *  *  *  so  as  to  attain  greater  economy  and 
efficiency  therein  *  *  *. 

A  preliminary  inquiry  was  first  organized  under  Hon.  Charles  D. 
Norton,  Secretary  to  the  President.  In  mapping  out  the  inquiry 
it  was  thought  that  the  investigation  of  methods  should  bear  on 
one  or  the  other  of  two  subjects,  i.  e.,  it  should  look  toward 
more  intelligent  and  more  efficient  "planning,"  or  it  should 
look  toward  the  more  efficient  and  economical  "  execution  of 
plans."  One  of  the  first  subjects  to  which  attention  was  given, 
therefore,  was  the  procedure  relative  to  the  making  of  estimates 
and  appropriations — the  subject  of  "  planning "  for  the  next 
year's  business. 

The  Appointment  of  a   Commission  of  Experts  to  Report  with 
Recommendatiojts 

March  8,  191 1,  the  President's  Commission  on  Economy  and 

*  Read  at  the  meeting  of  the  Academy  of  PoHtical  Science,  October  26,  191 2. 

(165) 
8    • 


Il8  EFFICIENT  GOVERNMENT  [Vol.  Ill 

Efficiency  was  organized.  This  commission  took  over  the  work 
which  had  been  begun  under  Mr.  Norton,  and,  among  other 
things,  undertook  to  prepare  a  report  on  the  need  for  a  national 
budget.  On  June  19,  191 2,  about  fifteen  months  after  the 
commission  was  organized,  it  submitted  its  report  on  this  sub- 
ject with  recommendations  to  the  President.' 

The  President  Decides  to  Prepare  and  Submit  a  Budget 

As  a  first  step  toward  providing  the  necessary  means  for 
locating  both  executive  and  legislative  responsibility  for  the  in- 
telligence and  the  efficiency  with  which  plans  are  made,  the 
commission  recommended  that  the  Executive  should  prepare 
and  submit  to  Congress  each  year  a  prospectus  of  work  to  be 
undertaken,  with  an  estimate  of  cost.  The  report  of  the  com.- 
mission  was  approved  and  sent  to  Congress  by  special  message 
June  27  last.  On  July  10  the  President  addressed  a  letter  to 
each  department  head  in  which  he  said : 

It  is  my  desire  to  send  to  Congress,  at  the  same  time  that  the  Book  of 
Estimates  *  *  *  is  presented  by  the  Secretary  of  the  Treasury,  a 
budget  along  the  lines  set  forth  in  my  message  to  Congress  of  June  27 
last.  In  order  that  this  may  be  accomplished  it  will  be  necessary  for 
the  head  of  each  executive  department  and  other  government  establish- 
ment to  prepare  two  sets  of  estimates  and  summaries  of  estimates,  one 
in  accordance  with  the  present  practise  and  one  substantially  in  accord- 
ance with  the  forms  contained  in  the  report  of  the  Commission  on 
Economy  and  Efficiency,  which  was  sent  to  Congress  with  my  message. 

Attempt  to  Prevent  Action  of  President 
The  message  with  the  report  of  the  commission  was  laid  be- 
fore Congress  too  late  to  receive  formal  consideration.  The 
committee  on  appropriations  took  cognizance  of  the  report 
and  recommendations  approved  by  the  President  as  well  as  of 
his  letter  of  July  10,  and  inserted  in  the  revised  draft  of  the 
legislative,  executive,  and  judicial  appropriation  bill  (the  first 
bill  having  been  vetoed),  the  following: 

^  "  The  A^eed for  a  National  Budget ^  House  Document  854,  62d  Congress,  2d 
Session,  575  pp.,  transmitted  to  Congress  by  special  message  of  the  President,  June 
27,  191 2,  referred  to  the  committee  on  appropriations,  and  ordered  printed. 

(166) 


No.  2]  THE  FEDERAL  BUDGET  II9 

Sec.  9.  That  until  otherwise  provided  by  law,  the  regular  annual  esti- 
mates of  appropriations  for  expenses  of  the  government  of  the  United 
States  shall  be  prepared  and  submitted  to  Congress  *  *  *  only  in  the 
form  and  at  the  time  now  required  by  law,  and  in  no  other  form  and  at 
no  other  time. 

The  belated  appropriation  bill  containing  this  clause  was  passed 
on  August  24.  Explaining  the  purpose  of  section  9,  just 
quoted,  the  chairman  of  the  committee  on  appropriations  on 
the  floor  of  the  House,  said : 

//  was  believed  *  *  *  that  it  would  not  be  wise  for  Congress  to  abdicate, 
even  by  implication,  its  prerogative  in  this  matter.  A  message  from  the 
President  had  already  laid  before  Congress  a  very  full  and  luminous  ex- 
position of  the  proposed  "  national  budget,"  and  until  it  could  be  de- 
termined by  careful  and  deliberate  study  of  the  scheme  whether  it 
should  be  accepted  and  adopted,  it  was  not  deemed  wise  or  provident 
to  have,  as  indicated  in  the  public  press,  the  time  and  energies  of  large 
numbers  of  the  most  capable  persons  in  the  several  branches  of  the 
public  service  diverted  to  transforming  the  entire  estimates  for  the  next 
fiscal  year  into  this  new  and  imauthorized  plan  of  a  so-called  national 
budget,  to  the  neglect  of  their  ordinary  and  pressing  duties. 

The  President  Orders  Heads  of  Departments  to  Cooperate  in 
Preparing  a  Budget 
This  statement  was  made  by  the  chairman  of  the  committee 
on  appropriations  on  August  27.,  As  the  result  of  the  con- 
fusion which  followed,  the  President  on  September  19  sent  to 
the  Secretary  of  the  Treasury  and  to  each  department  head 
a  letter,  in  which  he  again  called  attention  to  his  instruction  of 
July  10,  and  clearly  set  forth  that,  in  his  opinion,  Congress 
could  pass  no  law  which  would  estop  the  President  from  obtain- 
ing from  administrative  officers  such  information  as  he  may 
desire.  The  President's  attitude  in  relation  to  the  budget  may 
best  be  expressed  in  his  own  language : 

Under  the  constitution  the  President  is  intrusted  with  the  executive 
power  and  is  responsible  for  the  acts  of  heads  of  departments  and  their 
subordinates  as  his  agents,  and  he  can  use  them  to  assist  him  in  his 
constitutional  duties,  one  of  which  is  to  recommend  measures  to  Congress 
and  to  advise  it  as  to  the  existing  conditions  and  their  betterment.  ♦  *  * 

(167) 


I20  EFFICIENT  GOVERNMENT  [Vol.  Ill 

If  the  President  is  to  assume  any  responsibility  for  either  the  manner 
in  which  business  of  the  government  is  transacted  or  results  obtained, 
it  is  evident  that  he  cannot  be  limited  by  Congress  to  such  information 
as  that  branch  may  think  sufficient  for  his  purposes.  In  my  opinion,  // 
is  entirely  competent  for  the  President  to  submit  a  budget,  and  Congress 
can  not  forbid  or  prevent  it.  It  is  quite  within  his  duty  and  power  to 
have  prepared  and  to  submit  to  Congress  and  to  the  country  a  state- 
ment of  resources,  obligations,  revenues,  expenditures,  and  estimates  in 
the  form   he  deems  advisable.     And  this  power  I  propose  to  exercise. 

In  order  that  there  might  be  no  mistake  with  respect  to  the 
duty  of  administrative  officers,  the  President  further  said : 

In  conclusion,  therefore,  my  instruction  is  to  print  and  send  to  Congress 
the  forms  of  estimates  required  by  it  of  officers,  without  delay  ;  also  to 
have  sent  to  me  the  information  asked  for  in  my  letter  of  July  lO,  igi2. 
This  will  be  made  the  basis  for  review,  revision,  and  summary  state- 
ment in  the  form  of  a  budget  vi\\h  supporting  documents  which  may  be 
sent  to  Congress  by  special  message  as  the  proposal  of  the  adminis- 
tration. 

I  have  given  to  you  this  short  historical  sketch  of  what  has  hap- 
pened at  Washington,  in  order  to  clear  the  way  for  a  discussion 
of  the  proposals  of  the  President  so  far  as  these  relate  to  fixing 
both  executive  and  legislative  responsibility  for  the  inefficiency 
and  waste  due  to  lack  of  intelligence  in  making  and  approving 
plans  for  work  to  be  undertaken  and  due  to  conditions  attached 
to  appropriations  which  make  it  difficult  to  execute  plans  after 
they  have  been  approved. 

Budget  Procedure  Recommended  by  the  Commission 

As  related  to  the  location  of  responsibility,  the  budget  pro- 
cedure which  is  recommended  by  the  commission  is  as  follows: 

1.  That  preliminary  bureau  estimates  should  be  prepared  by 
the  technical  experts  in  charge  of  the  work — thereby  making 
available  to  the  cabinet  officer  and  to  the  President  the  infor- 
mation and  the  opinions  of  those  who  are  in  a  position  to  under- 
stand both  the  character  of  the  work  to  be  done  and  the  practical 
conditions  to  be  met. 

2.  That  these  preliminary  bureau  estimates  should  be  submit- 

(i68) 


No.  2j  THE  FEDERAL  BUDGET  12 1 

ted  first  to  department  heads — in  order  that  the  cabinet  officer 
as  departmental  executive  may  consider  the  request  of  each 
bureau  in  relation  to  the  work  of  the  department  as  a  whole, 

3.  That  preliminary  departmental  estimates,  having  thus  been 
prepared  by  bureau  heads  and  reviewed  by  the  cabinet  officer 
in  charge,  should  then  be  submitted  to  the  President  with  the 
recommendations  of  the  cabinet  officer. 

4.  That  the  President  should  then  have  the  preliminary  de- 
partmental estimates  and  the  recommendations  of  the  heads  of 
departments  compiled  and  analyzed  by  someone  representing 
him  as  Chief  Executive — in  order  that  the  requests  of  each 
bureau  and  the  recommendations  of  each  cabinet  officer  may 
be  readily  understood  and  considered  in  perspective, 

5.  This  having  been  done,  the  President,  with  his  cabinet, 
would  consider  each  request  and  recommendation  for  the  pur- 
pose of  deciding  what  the  President  as  the  responsible  head  of 
the  administration  shall  submit  to  Congress  as  a  request  for 
appropriations,  and  what  changes  in  law  will  be  asked  for  to 
enable  the  Executive  to  transact  the  business  of  the  government 
with  greatest  economy  and  efficiency. 

6.  Final  conclusion  as  to  what  the  administration  will  stand 
for  having  been  reached,  not  only  with  respect  to  requests  for 
appropriations,  but  also  with  respect  to  methods  of  financing, 
these  conclusions  would  be  summarized  in  the  form  of  a  definite 
budget  which  would  be  sent  to  Congress  and  at  the  same  time 
laid  before  the  country  through  the  President  as  the  constitu- 
tional head  of  the  administration. 

Essential  Differences  Between  the  Present  and  the  Proposed 

Method 

The  differences  between  the  method  at  present  employed  and 
the  plan  proposed  by  the  President  in  his  special  message  of 
June  27  last  are  these: 

First :  At  the  present  time  Congress,  by  law,  requires  the 
many  heads  of  departments  and  establishments  to  report  esti- 
mates to  Congress  direct  without  providing  for  revision  or  re- 
view by  the  President.  The  President  takes  the  position  that  it  will 
not  only  locate  responsibility  for  proposals  made,  but  will  add 

(169) 


122  EFFICIENT  GOVERNMENT  [Vol.  Ill 

very  materially  to  the  eflficiency  of  the  executive  branch  of  the 
government  if  plans  for  future  work  be  prepared  by  heads  of 
bureaus  and  establishments  as  the  subordinates  of  the  President 
who,  under  the  constitution,  is  made  responsible  for  their  acts. 
Among  the  results  which  it  is  thought  that  this  change  in 
method  would  accomplish  are  these : 

It  would  improve  discipline  by  making  heads  of  bureaus 
and  offices  feel  a  more  direct  responsibility  to  superiors. 
It   would    establish    greater    solidarity    and    unanimity    of 
official  actions,  in  that  it  would  bring  departmental  offi- 
cers into  more  direct  dealing  with  the  President. 
It  would  give  to  executive  officers  a  greater  sense  of  re- 
sponsibility in  the  making  of  plans  for  future  work  as 
well  as  in  the  consideration  of  results  of  past  work,  which 
would  be  reported  as  a  basis  for  legislative  consideration 
of  the  budget  submitted. 
Executive  heads,  knowing  that  they  would  be  called  upon 
by  the  President  to  render  a  strict  account  of  steward- 
ship, would  take  their  responsibility  for  supervision  and 
control  more  seriously ;   they  would  insist  on  having  the 
information  made  available  which  is  necessary  to  enable 
them  to  think  about  the  business  of  the  department  and 
to  confer  intelligently  with  the  President  about  it. 
It  would   do  away  very  largely  with   personal   politics  and 
"  understandings"  as  a  means  of  obtaining  funds  for  the 
support  of  bureau  and  local  activities. 
It  would  require  the  officer  in  charge  of  a  bureau  or  sub- 
division to  depend  on  his  superior  instead  of  constantly 
circumventing  him — in  many  instances  working  openly 
against  him — in  order  that  he   may  find  more  favorable 
standing  with  members  of  Congress. 
It  would  make  necessary  the  keeping  of  records  and  the 
making  of  reports,  instead  of  having  the  plans  of  work 
decided   in  a  committee  room  behind  closed  doors  on 
oral  statements  of  persons  in  charge  of  work,  statements 
based  on  personal  experience  and  carefully  guarded  as 
the  stock  in  trade  of  the  officer  or  the  committeeman. 
Second :  At  the  present  time   the   preliminary  estimates  of 

(170) 


No.  2l  THE  FEDERAL  BUDGET  1 23 

departments  are  sent  to  the  Secretary  of  the  Treasury,  who  acts 
as  an  editor  and  messenger  for  Congress.  The  President  takes 
the  position  that  it  will  not  only  locate  responsibility,  but  will  add 
much  both  to  the  economy  and  to  the  efficiency  with  which  plans 
are  made  for  future  work,  if  these  plans  are  submitted  to  Con- 
gress and  to  the  country  by  the  President  with  such  supporting 
data  as  may  be  necessary  to  the  consideration  of  every  question 
of  public  policy  which  is  involved. 

Among  the   results  which  it  is  thought  that  this  change  in 
jnethod  would  accomplish  are  the  following: 

It  would  require  that  the  President,  with  his  cabinet,  shall 
carefully  consider  every  detail  necessary  in  view  of  the  ex- 
ecutive responsibility  for  proposals  made,  before  they 
are  submitted. 
It  would  reiquire  that  the  information  with  respect  to  past 
work  of  the  government  as  well  as  the  information  with 
respect  to  work  to  be  undertaken,  should  be  in  such  de- 
tail and  so  classified  and  summarized  as  will  enable  the 
President  and  his  cabinet  to  consider  every  question  of 
public  policy  relating  to  work  proposed  before  submitting 
the  budget. 
This  information  having  been  collected  for  the  benefit  of 
the  President  and  the  heads  of  departments,  would  be 
available  for  Congress  and  for  the  public. 
Third :  At  the  present  time  Congress  assumes  responsibility 
for  submitting  the  first  formal  proposal  for  financing  future 
work,  as  a  result  of  which  it  is  necessary  for  it  to  submit  the 
preliminary  estimates  to  committees  who,  in  the  nature  of  things, 
cannot  report  until  near  the  end  of  the  session.     The  President 
takes  the  position  that  it  will  not  only  place  responsibility  where 
it  belongs,  but  will  add  materially  to  the  information  of  Con- 
gress and  to  the  efficiency  of  the  executive  branch  of  the  Gov- 
ernment to  have  a  definite,  concrete,  well-considered,   under- 
standable request  for  appropriations,  with  recommendations  as 
to   methods   of  financing  laid   before  Congress  at  the  time  it 
convenes. 

Among  the  results  which  it  is  thought  that  this  change  in 
method  would  accomplish  are  these : 

(171) 


124  EFFICIENT  GOVERNMENT  [Vol.  Hi 

Those  who  are  asked  to  prepare  preliminary  estimates 
would  do  so  knowing  that  they  were  deaHng  with  their 
official  superiors  and  therefore  would  be  under  the 
necessity  of  dealing  frankly  and  open-handedly  with 
them.  They  would  also  have  every  inducement  to  give 
to  such  officers  the  best  information  with  respect  to  each 
proposal  submitted  as  a  means  of  enabling  their  official 
superiors  to  represent  them  most  ably. 

Knowing  that  their  estimates  as  well  as  the  recommenda- 
tions of  heads  of  departments  would  be  considered  by 
the  President,  there  would  be  the  same  motive  as  at 
present  for  each  bureau  head  to  advance  the  claims  of 
his  service,  and  there  would  be  the  added  advantage  of 
having  the  conclusion  reached  in  conference  made  a  part 
of  an  executive  program  which  could  be  thought  about 
and  understood  by  the  country  as  well  as  by  individual 
members  of  Congress. 

Instead  of  being  required  to  wait  until  committees  on  ap- 
propriations had  reported  before  questions  of  changes 
in  organic  law  recommended  by  heads  of  bureaus  and 
departments  could  be  considered,  these  questions  would 
be  laid  before  Congress  at  the  beginning  of  the  session ; 
this  would  enable  Congress  to  refer  these  requests  to 
proper  committees  and  to  have  action  taken  on  their 
recommendations  while  the  committees  on  appropri- 
ations were  at  work  on  the  estimates. 

Instead  of  being  put  to  the  necessity  of  loading  up  the  bills 
prepared  by  regular  committees  on  appropriations  with 
"  riders,"  because  there  is  no  time  remaining  for  inde- 
pendent consideration,  the  committees  on  appropria- 
tions could  formulate  their  bills  on  the  action  taken  by 
Congress  on  each  subject  submitted  for  constructive  leg- 
islation at  the  beginning  of  each  session. 

When  the  committee  on  appropriations  reported  its  con- 
clusions in  the  form  of  a  bill,  each  member  of  Congress 
and  the  country  as  a  whole  would  be  in  a  position  to 
form  an  intelligent  opinion  about  the  significance  of  its 
recommendations,  since  the  same  information  would  be 

available  to  all. 

(172) 


No.  2]  THE  FEDERAL  BUDGET  1 25 

Instead   of  having  hundreds  of  millions  of  dollars  voted 
away  by  Congress  within  a  single  day,  without  question 
raised  by  any  member  on  the  floor,  appropriation  bills 
would  necessarily  be  discussed  at  length,  as  they  would 
also    be    discussed     by    the    press    and    through    other 
agencies  of  publicity. 
Fourth  :  At  the  present  time  the  conditions  attached  to  ap- 
propriations are  such  as  to  rob  the  government  and  the  country 
of  benefits  to  be  derived   through  the  exercise  of  executive  dis- 
cretion with  respect  to  questions  of  business  that  cannot  be 
properly   considered    a  "year  ahead    of    their   occurrence.      The 
President  takes  the  position  that  it  will  not  only  locate  responsi- 
bility where  it  belongs,  but  it  will  add  very  much  to  the  efficiency 
and  economy  with  which  business  is  done,  if  the  conditions  at- 
tached  to   appropriations   are   limited  to  questions  of   general 
policy  and  do  not  hamper  the  officer  in  the  use  of  judgment 
with  respect  to  the  details  of  work  to  be  done. 

Among  the   results  which  it  is  thought  that  this  change  in 
method  would  accomplish  are  these : 

Upon  the  information  which  is  submitted  with  the  budget, 
and    such    further    information    as    may    be    developed 
through  legislative  inquiry  after  the  submission  of  the 
budget,  Congress  would  assume  responsibility  for  decid- 
ing what  work  should  be  done ;   what  should  be  the  or- 
ganization provided  for  doing  work ;   what  amounts  or 
funds  should  be  voted. 
Congress   would   also   assume    responsibility  for   deciding 
what  conditions  should  be  attached  to  appropriations  as  a 
matter  of  general  law. 
Subject   to   these   conditions  of   general  law,  the  head  of 
each  department  would  assume  responsibility  for  decid- 
ing how  the  money  should  be  spent,  to  the  end  that  he 
might  use  his  organization  and  do  the  work  for  which  he 
was    made    responsible,    with    greatest    economy    and 
efficiency. 
By  giving  to  the  Executive  the  right  to  decide  what  is  best 
adapted  to   the  accomplishment  of  a  given  end,  i.  e., 
what  shall  be  purchased  or  contracted  for,  what  prices 
(173) 


J 26  EFFICIENT  GOVERNMENT  [Vol.  Ill 

shall  be  paid — by  requiring  that  the  responsible  officer 
shall  render  an  account  that  will  reflect  the  efficiency  of 
each  employe  as  well  as  of   his  organization  as  a  whole, 
and  the  economy  with  which  expenditures  are  made — 
the  cost  of  doing  public  business  may  be  very  materially 
reduced,  and  the  character  of  the  service  rendered  cor- 
respondingly improved. 
Fifth  :  At  the  present  time  there  is  no  adequate  means  pro- 
vided for  locating  executive  responsibility  for  inefficiency  and 
waste.     The  President  takes  the  position  that  the  plan  proposed 
will  locate  executive  responsibility  not  only  for  the  efficiency 
with    which  plans  are  made,    but    also  for  the   economy    and 
efficiency  with  which  plans  are  executed. 

The  means  proposed  for  locating  executive  responsibility  for 
the  efficiency  and  economy  with  which  plans  are  made,  and  the 
work  authorized  is  executed,  are  as  follows : 

Congress  should    attach    to  all    funds   appropriated,  as  a 
provision  of  general  law,  the  following  conditions : 

(a)  that  before  any  part  of  any  appropriation  or  fund 
is  encumbered  or  expended,  allotments  to  subor- 
dinates for  work  to  be  undertaken  by  them  shall  be 
made ; 

(b)  that  each  allotment  shall  be  based  on  estimates 
prepared  by  officers  in  charge  of  the  work ; 

(c)  that  estimates  prepared  as  a  basis  for  allotment 
shall  be  expressed  in  the  same  detail  as  expendi- 
ture accounts  are  required  to  be  kept  and  reported ; 

(d)  that  in  case  the  estimate  is  for  work  of  a  char- 
acter which  has  heretofore  been  carried  on,  it  shall 
be  supported  by  comparative  expenditure  data ; 

(e)  that  the  estimates  prepared  as  a  basis  for  allot- 
ment be  submitted  to  the  heads  of  the  department 
or  establishment  to  which  the  appropriation  runs ; 

(f)  that  the  estimates  for  allotments  thus  prepared 
and  submitted  shall  be  considered  by  the  head  of 
the  department  in  relation  to  the  amount  and  pur- 
pose of  the  appropriation  which  has  been  made 
available ; 

(174) 


No.  2]  THE  FEDERAL  BUDGET  12/ 

(g)  that  after  the  requests  for  allotments  have  been 
so  considered  and  decision  is  reached  that  an  allot- 
ment shall  be  made,  an  advice  of  allotment  setting 
forth  the  amount  alloted  for  each  purpose  shall  be 
formally  executed  and  made  a  matter  of  public 
record ; 

(h)  that  as  a  means  of  giving  publicity  to  the  allot- 
ment so  made  a  copy  shall  be  sent  to  the  depart- 
m.ent  of  the  treasury  for  the  information  of  the 
auditor,  and  also  a  copy  to  the  clerk  of  each  house 
for  the  information  of  Congress ; 

(i)  that  whenever  it  may  seem  desirable  to  rescind 
or  modify  any  allotment,  these  rescindments  or 
modifications  shall  be  made  in  the  same  formal 
manner; 

(j)  that  fund  accounts  shall  be  kept  in  such  manner 
as  to  show  :  ( i  )  the  allotments  and  unallotted  bal- 
ances of  appropriations,  (2)  the  encumbrances  and 
the  unencumbered  balances  of  appropriations  and 
allotments,  (3)  the  unexpended  balances  of  appro- 
priations, (4)  the  balance  still  subject  to  requisitions 
for  cash  and  (5)  the  available  balance  in  the  hands 
of  disbursing  officers ; 

(k)  that  expenditure  accounts  be  so  kept  as  to  show : 
(i)  the  cost  by  allotments,   by  jobs  or   subdivis- 
ions of  work  under  allotments  and  (2)  that  each  of 
these  be  kept  and  reported  in  such  an  analysis  as 
would  show  the  amount  expended  for  salaries  and 
wages,    supplies,    materials    and    other    articles,   or 
objects  of  expenditure  in  the  manner  prescribed  by 
the  comptroller  of  the  treasury,  in  order   that  the 
information  produced  may  be  summarized  and  re- 
capitulated for  each  service,   for  each  department, 
and  for  the  government  as  a  whole. 
By  requiring  each  executive  head  to  assume  responsibility  for 
saying  how  he  proposes  to  spend  his  appropriations  before  any 
action  is  taken,  and  by  requiring  him  to  keep  an  up-to-date 
analysis  of  expenditures  which  will  show  how  the  money  has 

(175) 


128  EFFICIENT  GOVERNMENT  [Vol.  Ill 

been  spent,  as  well  as  the  character  of  results  which  have  been 
obtained,  and  by  making  both  the  "fund  accounts"  and  the 
"expenditure  accounts"  public  records  to  which  any  one  who 
may  be  interested  may  have  access  (subject  to  such  reasonable 
rules  as  may  be  prescribed  for  the  protection  of  the  office),  by 
providing  further  for  a  system  of  reporting  which  will  make 
these  facts  regularly  available  to  executive  officers  and  period- 
ically available  to  the  public,  any  attempted  subversion,  any 
result  which  may  show  inefficiency  in  the  organization,  any 
waste  which  may  be  due  to  lack  of  proper  attention  or  super- 
vision, would  be  a  matter  which  no  chief  executive  could  afford 
to  overlook. 

Should  it  happen  that  an  executive  officer  desired  to  use 
funds  wastefully  or  in  a  manner  not  intended,  the  President 
could  not  afford  to  assume  responsibility  for  his  action  or  con- 
tinuation in  the  service.  Nor  would  Congress  be  lacking  in  the 
means  necessar}'-  to  protect  the  best  interests  of  the  public,  if  the 
evidence  necessary  for  locating  executive  responsibility  were  at 
all  times  at  hand. 

This  is  the  alternative  proposed  to  the  present  method  of 
transacting  public  business  behind  closed  doors  and  in  the  dark, 
the  legislative  branch  dealing  with  the  executive  branch  as 
under  suspicion,  the  administrative  officer  withholding  informa- 
tion from  Congress  and  the  public  on  the  theory  that  he  is  to  be 
placed  on  trial  and  must  appear  as  a  witness  for  his  own  prose- 
cution— therefore  the  less  said  the  better. 

Proposals  of  the  President  Based  on   Common  Experience  and 

Common  Sense 

These  proposals  of  the  President  are  based  on  common  ex- 
perience and  common  sense.  They  are  supported  by  the  best 
judgment  and  the  best  experience  which  has  been  gained  in 
organization  and  management  of  corporate  bodies,  both  public 
and  private.  While  officers  of  a  private  corporation  are  not  or- 
dinarily limited  by  law  in  such  manner  as  to  make  it  necessary 
for  them  to  act  under  formal  appropriations,  it  is  the  ordinary 
method  of  transacting  business  to  have  the  president  of  a  corpo- 
ration  lay  before   the   board,   at  its   annual   meeting,  a   report 

(1/6) 


No.  2]  THE  FEDERAL  BUDGET  1 29 

which  is  also  made  available  to  citizens  or  stockholders ;  it  is 
common  experience  for  the  president,  as  the  responsible  head 
of  the  executive  branch,  to  set  forth  what  has  been  done  during 
the  past  year  and  what  it  is  proposed  that  the  corporation  should 
do  during  the  next  year ;  it  is  common  experience  for  the  presi- 
dent, as  the  head  of  the  administration,  to  accompany  his  pro- 
posals with  estimates ;  it  is  common  experience  for  the  execu- 
tive, as  the  head  of  the  administration,  to  submit  estimates  with 
recommendations  as  to  how  proposed  expenditures  shall  be 
financed.  These  data  are  submitted  to  the  board  and  made 
available  to  the  public  or  the  stockholders  as  a  basis  for  con- 
sideration before  authorization  is  given  to  go  ahead.  On  the 
basis  of  the  report  submitted  as  well  as  the  proposals  made 
the  president  of  a  corporation  expects  to  obtain  the  support 
and  cooperation  of  the  board,  in  so  far  as  his  record  may  en- 
title him  to  support  and  his  report  and  proposal  may  in  their 
judgment  accord  with  the  ends  and  purposes  of  the  institution 
which  they  represent.  When  the  proposal  of  the  executive  is 
thus  clearly  stated,  responsibility  for  action  taken  is  definitely 
located.  In  case  there  is  a  division  of  opinion  between  the 
board  and  the  executive,  their  differences  are  clearly  defined 
and  may  be  acted  upon  by  stockholders  or  citizens,  as  the 
case  may  require.  It  would  be  little  less  than  insane  for  the 
trustees  of  a  private  corporation,  as  the  representatives  of  stock- 
holders, to  pass  a  by-law  requiring  that  each  department  and 
division  head  should  report  to  the  board  direct  what  he  thought 
ought  to  be  done  with  the  estimates  of  costs,  without  having 
these  matters  first  passed  upon  by  his  executive  superior. 
Under  such  circumstances  the  board  could  not  expect  to  act 
on  the  best  advice  ;  what  they  could  expect  and  invariably  would 
receive  would  be  proposals  for  expansion  and  corresponding 
proposals  for  expenditures  that  would  bear  no  relation  to  the 
ability  of  the  corporation  to  finance  them.  Such  a  requirement 
is  just  as  adverse  to  intelligent  planning  and  to  the  economic 
execution  of  pla?is  in  government  work  as  it  would  be  if  im- 
posed by  the  board  on  a  private  corporation.  It  is  this  method 
that  the  President  is  undertaking  to  supplant. 

(177) 


130  EFFICIENT  GOVERNMENT  [Vol.  Ill 

The  Budget  as  a  Means  of  Locating  Congressional  Responsibility 
Having  before  them  a  definite  statement  as  to  what  it  is  that 
the  President  assumes  responsibility  for,  having  before  them  the 
brief  of  the  administration  supporting  each  proposal,  then  the 
responsibility  of  the  members  of  Congress  would  be  just  as 
clearly  marked.  As  each  member  would  have  before  him  at 
the  beginning  of  the  session  a  statement  of  facts  about  each 
question  in  which  he  or  his  constituency  may  be  interested, 
each  member  and  each  committee  would  be  in  a  position  at 
once  to  go  into  each  item  or  question  submitted,  and  in  case 
any  detail  necessary  to  complete  understanding  was  lacking,  to 
ask  that  this  detail  be  supplied.  The  effect  of  such  a  proposal 
as  is  made  by  the  President  would  be  to  make  each  member  of 
Congress  free  to  think,  to  speak  and  to  vote  as  he  chooses  on 
each  proposition  for  which  the  President  assumes  responsi- 
bility; he  would  be  able  to  act  independently  instead  of  being 
led  around  by  the  nose  by  some  one,  or  some  few,  who  may 
have  a  monopoly  of  information.  But  while  each  member  is 
thinking  and  speaking  and  voting,  citizens  may  likewise  be 
thinking;  the  press  may  be  speaking;  the  constituency  of  each 
member  may  be  busy  "  instructing  their  representative  "  as  to 
which  proposals  of  the  administration  or  of  Congress  are  at 
variance  with  their  views. 

One  proposal  of  the  President  deserves  special  consideration, 
viz.,  that  in  case  Congress  sees  fit  to  bring  in  new  measures — 
measures  requiring  appropriations  not  contemplated  in  the 
budget  submitted  by  the  President — such  measures  shall  be 
submitted  as  a  separate  bill,  instead  of  being  injected  as  a 
"  rider"  on  the  regular  bill.  The  advantage  of  such  a  proposal 
is  obvious.  It  puts  responsibility  where  it  belongs.  It  gives  to 
the  President  the  same  opportunity  to  consider  and  act  inde- 
pendently on  proposals  for  appropriations  originating  in  Con- 
gress that  Congress  has  with  respect  to  proposals  originating 
with  the  administration. 

The  Difficulties  which  Lie  in  the  Way  of  the  President 
In  giving  this  enlarged   interpretation  to  executive  responsi- 
bility under  the  constitution,  President  Taft  has  undertaken  a 

(178) 


No.  2]  THE  FEDERAL  BUDGET  1 3 1 

task  the  difficulties  of  which  can  scarcely  be  comprehended. 
Not  only  has  the  government  never  had  a  budget,  but  it  has 
never  had  a  balance  sheet ;  it  has  never  had  an  operation  ac- 
count ;  it  has  never  known  how  it  stood  financially ;  it  has  never 
had  any  means  for  reviewing  its  contracting  and  purchasing 
relations ;  it  has  never  had  the  information  necessary  for  con- 
sidering questions  of  economy  and  efficiency  of  service  ren- 
dered. As  a  safeguard  against  ignorance  and  official  irresponsi- 
bility, the  service  has  been  bound  up  in  a  mass  of  red  tape  that 
makes  efficient  management  impossible.  Instead  of  being  able 
to  base  his  proposals  on  accounts  and  reports  such  as  are 
ordinarily  available  to  a  corporate  executive,  the  President  is 
put  to  the  extremity  of  requiring  re-analyses  of  all  the  transac- 
tions of  the  past  two  years.  He  is  also  put  to  the  necessity  of 
having  the  estimates  prepared  on  entirely  new  lines.  This 
could  not  be  done  before  the  last  fiscal  year  was  completed — 
July  I.  The  mass  of  detail  which  must  be  analyzed  and  sum- 
marized is  only  suggested  when  we  consider  that  the  Govern- 
ment is  engaged  in  practically  every  kind  of  undertaking  known 
to  private  concerns,  and  on  a  scale  that  puts  executive  attention 
and  judgment  to  the  severest  test.  That  the  first  budget  sub- 
mitted cannot  be  all  that  may  be  desired  is  certain ;  but  if, 
through  this  first  submission,  the  people  of  the  United  States 
have  laid  before  them  a  picture  of  what  it  is  that  Congress  is 
asked  to  finance,  and  if  the  way  be  pointed  out  for  locating  re- 
sponsibility for  failure  to  provide  adequately  for  welfare  needs, 
an  end  will  have  been  achieved  that  will  make  it  as  impossible 
to  continue  to  do  business  by  the  methods  that  have  obtained 
as  it  would  be  for  the  American  people  to  revert  to  coach  and 
pillion  after  the  introduction  of  the  railroad  and  the  automobile. 

(179) 


EFFICIENT  ORGANIZATION  OF  THE  PERSON- 
NEL   IN   ADMINISTRATION' 

W.   F.   WILLOUGHBY 
Professor  of  Jurisprudence  and  Politics,  Princeton  University 

MY  discussion  of  this  topic  will  be  confined  entirely  to  a 
consideration  of  the  problem  as  it  presents  itself  in 
our  national  government,  though  most  of  the  points 
raised  and  lines  of  action  urged  are,  it  is  believed,  of  more 
general  application. 

The  subject  of  the  government  personnel  may  be  considered 
from  a  number  of  viewpoints : 

( 1 )  That  of  improvement  of  our  political  institutions  and 
purification  of  politics. 

(2)  That  of  justice  between  individual  citizens  in  respect  to 
opportunities  for  entrance  into  the  government  service,  and  of 
advancement  after  entrance  according  to  personal  merit. 

(3)  That  of  efficiency,  or  securing  the  maximum  return 
in  work  done  for  expenditures  made  for  remuneration  of  per- 
sonal service. 

In  a  general  way  these  three  manners  of  viewing  the  question 
may  be  said  to  be  those  of  looking  at  the  problem  from 
the  standpoint  of:  (i)  the  general  public,  (2)  the  employe 
and  (3)  the  employer. 

It  is  my  purpose  to  approach  this  important  question  of 
efficiency  in  administration  from  the  third  of  these  standpoints 
— that  of  the  employer,  the  hard  dollars-and-cents  point  of 
view  of  getting  the  most  for  your  money. 

The  personnel  of  the  government  may,  for  purposes  of  con- 
sideration, be  divided  into  three  classes:  (i)  Subordinate 
positions.  (2)  Directing  personnel  at  Washington.  (3)  Field 
positions. 

In  respect  to  the  first  of  these,  the  selection  of  entrants  to  the 

*  Read  at  the  meeting  of  the  Academy  of  Political  Science,  October  26,  191 2. 

(180) 


THE  PERSONNEL  IN  ADMINISTRATION 


133 


service  through  some  form  of  examination,  competitive  where 
feasible,  has  now  come  to  be  the  accepted  method  of  determining 
merit  or  fitness.  As  regards  this  class  and  their  method  of 
entrance  into  the  service,  the  battle  for  the  merit  system  may 
be  said  to  be  almost  over.  There  are  many  other  problems, 
however,  connected  with  securing  efficiency  in  respect  to  this 
class  of  public  servants  that  still  remain  to  be  solved.  The  so- 
called  "  apportionment  principle,"  in  accordance  with  which  the 
effort  is  made  to  distribute  appointments  among  the  several 
states  in  proportion  to  their  population,  is  vicious  in  theory  and 
detrimental  in  practice.  It  means  the  payment  of  higher  salaries 
than  are  necessary,  since  a  greater  remuneration  must  be  of- 
fered to  induce  competent  personS;  to  come  from  distant  points 
to  Washington  at  their  own  expense.  It  means  that  such  per- 
sons leave  their  homes,  where  their  expenses  of  living  are  lower 
than  they  are  in  Washington,  where  they  must  make  independ- 
ent provision  for  quarters  and  board.  It  means,  further,  that 
the  more  efficient  will  be  passed  over  in  favor  of  the  less 
efficient,  simply  because  the  latter  happen  to  hail  from  states 
whose  quotas  are  not  filled. 

Again,  scarcely  a  beginning  has  been  made  toward  the  estab- 
lishment in  the  several  services  at  Washington  of  proper  effi- 
ciency tests  through  which  the  work  of  individuals  may  be  con- 
trolled and  ratings  for  promotion  prepared.  The  classification 
of  employes  and  the  adjustment  of  compensation  to  character 
of  work  performed  are  defective  in  the  extreme.  No  scheme 
has  as  yet  been  put  into  practise  for  retiring  superannuated  em- 
ployes, though  the  adoption  of  a  proper  plan  for  accomplishing 
this  is  a  sine  qua  non  if  an  efficient  personnel  is  to  be  secured. 
This  last  matter  has  received  especial  attention  at  the  hands  of 
the  Commission  on  Economy  and  Efficiency.  That  commission 
has  submitted  a  report  outlining  a  plan  which  it  believes  will 
fully  meet  the  needs  of  the  situation.  This  report  has  been 
transmitted  to  Congress  by  the  President  with  his  hearty  en- 
dorsement. 

I  will  pass  over  these  matters  touching  the  subordinate  per- 
sonnel with  this  mere  mention,  as  I  desire  to  devote  my  atten- 
tion to  certain  problems  connected  with  the  other  two  classes, 

(181) 
9  • 


134  EFFICIENT  GOVERNMENT  [Vol.  Ill 

the  directing  personnel  at  Washington  and  the  persons  in  field 
positions,  as  these  classes  have  received  little  or  no  attention  at 
the  hands  of  the  public  and  it  is  desirable  that  they  should  at 
least  be  brought  forward  in  meetings  of  the  character  of  the 
present  one. 

In  respect  to  the  first  of  these  two  groups,  the  directing 
personnel  at  Washington,  scarcely  a  beginning  has  been  made 
toward  the  adoption  of  the  merit  principle  as  the  determining 
factor  in  selecting  persons  for  appointment.  All  of  these  posi- 
tions, by  which  are  meant  such  positions  as  assistant  secretaries 
of  departments  and  chiefs  and  assistant  chiefs  of  bureaus, 
by  whom,  under  the  President  and  the  nine  Secretaries,  the  real 
work  of  directing  the  government  services  is  performed,  are  now 
with  few  exceptions  appointed  by  the  President  by  and  with 
the  advice  and  consent  of  the  Senate,  mostly  for  terms  of  four 
years.  As  such  they  are,  in  conformity  with  civil-service  rule 
II,  adopted  in  1902,  excluded  from  the  classified  competitive 
service  of  the  United  States. 

I  have  no  hesitation  in  saying  that  in  my  opinion  this  condi- 
tion constitutes  one  of  the  most  serious  defects  in  our  govern- 
mental machinery  as  bearing  upon  the  matter  of  efficiency 
of  personnel,  and  that  its  continued  existence  militates  strongly 
against  securing  the  maximum  of  efficiency  and  economy  in 
the  administration  of  public  affairs  to  which  the  country  is 
entitled.  I  say  this  notwithstanding  the  fact  that  it  is  difficult 
to  contradict  the  statement  that  these  positions  of  assistant 
secretaries,  chiefs  and  assistant  chiefs  of  bureaus  are  in  general 
held  by  an  efficient  and,  for  the  most  part,  technically  qualified 
body  of  men. 

My  objection  to  the  present  system  is  not  that  honest  and 
capable  men  have  not  been  secured  under  it  for  these  important 
positions.  But  these  positions  should  be  made  a  part  of  the 
general  classified  service  in  respect  to  which  permanency  of 
tenure  during  good  behavior  and  a  satisfactory  performance  of 
duty  prevails,  and  appointment  to  which  is  nominally  by  pro- 
motion within  the  particular  service  in  which  the  vacancies 
occur,  or  within  the  government  service  generally,  and  failing 

(182) 


No.  2]  THE  PERSONNEL  IN  ADMINISTRATION  135 

this  by  some  selective  process  that  will  test  the  capacity  of  the 
persons  not  in  the  government  service  who  are  considered  for 
appoiniment.  Until  these  principles  are  definitely  put  into 
practise  it  is  impossible  to  secure  that  well-balanced  service  and 
esprit  de  corps  running  from  the  top  to  the  bottom  in  the  ser- 
vices individually  and  in  the  government  service  generally  that 
must  exist  if  the  best  work  is  to  be  obtained. 

It  will  be  seen  that  the  point  upon  which  I  lay  emphasis  in 
thus  urging  that  these  higher  administrative  positions  at  Wash- 
ington be  made  an  integral  part  of  the  permanent  classified 
service  of  the  government  is  the  beneficial  effect  that  such 
action  will  have  upon  the  service  generally.  Only  in  secondary 
degree  do  I  attach  importance  to  the  consideration  of  securing 
a  higher  class  and  more  technically  competent  corps  of  officials 
for  these  positions. 

At  the  present  time  what  amounts  to  a  deadline  is  drawn  at 
the  positions  of  chief  clerk  and  chief  of  division,  the  prevailing 
salaries  for  which  are  $2,000,  $2,500,  and  $3,000.  Up  to  this 
point  the  government  employe  may  look  upon  his  service  as 
one  in  which  he  may  hope  for  advancement  as  he  shows  merit. 
Beyond  this  lie  the  positions  of  the  real  directing  heads,  the 
positions  that  constitute  the  posts  that  are  really  worth  while, 
indeed  the  only  ones  offering  an  effective  incentive  to  per- 
sons to  adopt  the  government  service  as  a  career.  Remove 
this  barrier,  make  it  possible  to  pass  as  a  matter  of  normal 
promotion  from  the  position  of  chief  of  division  to  assistant 
chief  of  bureau,  chief  of  bureau  and  assistant  secretary,  and 
the  government  service  at  once  becomes  one  offering  a  real 
career.  Not  merely  will  action  in:  this  way  afford  to  the  am- 
bitious attractions  to  enter  the  service  that  do  not  now  exist, 
but  a  strong  stimulus  will  be  given  to  persons  in  the  service 
to  discharge  their  duties  efficiently  and,  by  study  and  research, 
to  fit  themselves  for  the  discharge  of  the  duties  pertaining 
to  the  superior  positions. 

Under  this  system  when  a  vacancy  occurs  in  an  important  po- 
sition, such,  for  example,  as  that  of  assistant  secretary  or  chief 
of  a  bureau,  the  appointing  power — the  Secretary  or  the  Presi- 
dent— will  canvass  the  qualifications  of  the  chiefs  of  divisions  in 

(183) 


136  EFFICIENT  GOVERNMENT  [Vol.  Ill 

the  particular  service  affected.  If  just  the  right  man  :'s  not 
found  within  such  service  the  qualifications  of  persons  holding 
important  positions  in  other  services  engaged  in  analogous  lines 
of  work  will  next  be  scrutinized.  Only  after  it  is  found  that  a 
man  having  the  qualifications  desired  cannot  be  obtained  within 
the  government  service  will  resort  be  had  to  persons  outside  the 
service.  In  this  case  selection  will  be  made  through  some  selec- 
tive process  such  as  is  represented  by  a  competitive  examina- 
tion. There  can  be  little  reason  to  doubt  that  resort  to  this 
latter  method  will  be  had  only  in  exceptional  cases,  since  the 
appointing  powers  will  certainly  prefer  1:o  select  one  whose 
qualifications  and  personal  characteristics  are  definitely  known 
rather  than  to  run  the  risk  involved  in* holding  an  open  com- 
petitive examination.  There  will,  however,  be  a  few  cases, 
where  highly  technical  or  specialized  qualifications  are  desired, 
where  the  administration  will  want  to  go  outside  the  govern- 
ment service.  Indeed  a  case  will  now  and  then  occur  where  the 
services  of  a  particular  individual  are  desired,  and  where  resort 
will  be  had  to  the  power  of  the  President  to  except  such 
specific  appointment  from  the  general  rules. 

This  proposition  that  the  higher  directing  personnel  at 
Washington  up  to,  but  of  course  not  including,  the  Secretaries 
of  the  Departments,  was  strongly  urged  by  the  Commission  on 
Economy  and  Efl[iciency  in  its  report  to  the  President  on 
methods  of  appointment,  which  report  was  transmitted  by  the 
President  with  his  approval  to  Congress. 

From  this  consideration  of  the  directing  personnel  at  Wash- 
ington, I  wish  now  to  turn  to  the  third  of  the  three  groups 
into  which,  for  purposes  of  consideration,  I  have  divided  the 
government  personnel.  This  group  constitutes  what  is  known 
in  government  circles  as  the  field  services  or  field  establishments 
as  distinct  from  the  departments  at  Washington. 

It  is  a  common  mistake  for  persons  unconsciously  to  take 
the  position  that  the  work  of  conducting  the  affairs  of  the 
nation  is  performed  at  Washington.  Nothing  could  be  further 
from  the  fact.  The  real  work  is  done  at  the  thousands  of 
points   scattered   throughout  the  country  at  which  are  located 

(184) 


No.  2]  THE  PERSONNEL  IN  ADMINISTRATION  137 

the  post  offices,  the  custom  houses,  the  offices  of  collectors  of 
internal  revenue,  the  Indian  reservations,  the  national  forests 
and  the  like.  The  work  done  at  Washington  is  for  the  most 
part  but  that  of  a  central  office  for  general  administration,  with 
but  twenty  or  thirty  thousand  employes  out  of  a  total  of  three 
hundred  or  four  hundred  thousand. 

All  that  has  been  said  regarding  covering  superior  adminis- 
trative positions  at  Washington  under  the  classified  service, 
making  these  positions  permanent  and  establishing  the  practise 
of  filling  them  through  promotions,  applies  with  equal  force  to 
these  field  positions.  The  headships  of  these  field  services, 
thousands  in  number,  are  now  treated  as  political  offices.  It  is 
unnecessary  for  me  to  state  that  there  is  nothing  of  a  political 
nature  in  their  duties.  Their  functions  are  purely  administra- 
tive and,  until  they  are  so  regarded,  anything  approaching  a 
really  economical  administration  of  their  offices  is  impossible. 

It  is  difficult  to  realize  the  full  importance  of  the  changes 
that  would  result  if  the  recent  recommendation  to  Congress  by 
the  President,  that  all  these  positions,  high  and  low,  be  covered 
under  the  classified  service,  were  carried  out.  It  is  probable 
that  to  most  persons  the  significance  of  the  action  here  recom- 
mended is  simply  that  of  taking  the  civil  service  once  for  all 
out  of  politics.  It  would  do  that,  and  that  would  be  an 
enormous  gain.  This,  however,  would  be  but  the  beginning 
of  the  good  that  would  result.  From  the  standpoint  of 
efficient  administration  it  would  lay  the  basis  for  a  complete 
reorganization  of  the  several  services  that  would  be  revolution- 
ary in  character. 

I  believe  that  there  are  few  persons  who  appreciate  the  fact 
that  at  the  present  time  there  do  not  exist,  and  under  present 
conditions  cannot  exist,  real  national  services  for  the  administra- 
tion of  these  important  civil  establishments.  By  national  service 
I  mean  one  in  which  each  employe  is  a  unit  in  a  general  scheme, 
instead  of  a  unit  in  a  personnel  scheme  for  the  particular 
office  in  which  he  is  employed,  one  in  which  transfers  and  promo- 
tions can  freely  take  place  from  one  unit  to  another  as  merit 
warrants  and  the  interests  of  the  service  as  a  whole  dictate. 
It  is   only  necessary  to  contrast  conditions  now  prevailing  in 

(185) 


138  EFFICIENT  GOVERNMENT  [Vol.  Ill 

a  service  which  has  been  nationalized,  so  to  speak,  such  as  the 
consular  or  diplomatic  service,  with  those  prevailing  in  the 
postal  service,  the  customs  service  or  the  internal  revenue 
service,  which  are  still  on  the  localized  basis,  to  appreciate  the 
differences  between  the  two  from  an  administrative  standpoint. 

In  the  consular  and  diplomatic  services  the  theory  is — and 
practise  is  more  and  more  conforming  to  this  theory — that 
each  officer  and  employe  is  a  member  of  a  single  unified  ser- 
vice. When  a  person  enters  either  of  these  services  in  a  sub- 
ordinate capacity  he  can  look  forward  to  advancement,  if  he 
merits  it,  anywhere  within  the  entire  service.  On  the  other 
hand  the  government,  as  soon  as  it  finds  an  officer  or  employe 
doing  good  work  in  a  subordinate  position,  can  secure  the  great 
advantage  that  will  result  from  his  transfer  to  a  more  important 
position.  Much  the  same  conditions  obtain  in  the  public 
health  and  marine  hospital  service  of  the  Treasury  Department. 
Under  this  system  each  employe  is  under  a  constant  incentive 
to  give  his  very  best  efforts  to  the  performance  of  his  work 
and  by  study  to  fit  himself  for  more  responsible  positions. 
The  development  of  an  esprit  de  corps,  efficiency  and  faithful- 
ness follows  almost  as  a  matter  of  course. 

Compare  this  with  conditions  as  they  exist,  and  as  pointed  out, 
must  inevitably  exist  under  present  conditions  as  regards  appoint- 
ments in  the  great  services — the  post  ofTice,  customs,  internal 
revenue,  and  many  others  that  might  be  mentioned — which 
represent  so  large  a  part  of  the  administrative  activities  of  the 
government.  In  these  services  each  field  station  is  treated  almost 
as  a  local  office  to  be  managed,  as  far  as  personnel  is  concerned, 
as  a  detached  enterprise.  Its  directing  head  in  practically  all 
cases  is  not  only  appointed  from  among  residents  of  the  district, 
but  the  real  selection  is  made,  not  by  the  directing  head  of  the 
service  but  by  the  local  representative  of  the  district  in  Con- 
gress or  on  the  governing  board  of  the  party  organization. 
Only  in  exceptional  cases  is  a  vacancy  now  filled  by  promotion 
from  the  ranks.  Practically  never  is  the  head  of  a  station  who 
has  proved  his  competence  transferred  to  a  more  important 
post  in  the  service.  To  make  matters  still  worse,  appointments 
to  these  positions  are  made  for  the  most  part  for  terms  of  but 

(i86) 


No.  2]  THE  PERSONNEL  IN  ADMINISTRATION  139 

four  years.  In  like  manner  the  subordinate  personnel,  even 
though  they  are  selected  through  competitive  civil  service  ex- 
aminations, are  for  the  most  part  taken  from  the  district  in  which 
the  station  is  located  and  they  have  little  or  no  prospect  of  pro- 
motion except  within  the  particular  station  to  which  they  are 
attached.  Even  here  they  are  debarred  from  any  reasonable 
expectation  of  rising  to  the  top  as  a  result  of  faithful  and 
conscientious  discharge  of  their  duties. 

It  is  difficult  to  conceive  of  a  scheme  of  organization  better 
adapted  to  deprive  a  personnel  of  incentive  for  good  work,  to 
stifle  ambition  for  advancement  within  the  service,  or  to  tie  the 
hands  of  a  central  administration  desiring  to  put  its  service 
upon  a  really  efficient  basis.  No  private  enterprise  would 
undertake  to  conduct  its  affairs  upon  any  such  basis  for  a 
moment.  Not  the  first  beginning  is  made  toward  treating  the 
services  as  offering  permanent  careers  to  their  personnel.  No 
pretense  is  made  of  building  up  a  corps  of  directing  officers 
representing  a  selection  of  the  most  capable.  Were  efficiency 
really  sought,  can  there  be  any  question  that  if  a  vacancy  were 
to  occur  in  such  a  position  as  that  of  collector  of  the  port  of 
New  York,  the  administration  would  fill  it  by  promoting  to  it 
some  collector  who  has  done  efficient  work  at  a  less  responsible 
post,  and  so  on  down  the  line?  Except  in  respect  to  the  sub- 
ordinate personnel  and  then  only  within  very  narrow  limits,  no 
emphasis  is  laid  upon  efficiency  in  the  performance  of  duty. 

In  urging  the  desirability  of  giving  permanence  to  the  higher 
personnel  of  the  field  services  and  of  placing  those  services 
upon  a  really  national  basis  as  regards  organization  and  per- 
sonnel, I  am  not  basing  my  argument  merely  upon  theoretical 
considerations.  Some  twelve  years  ago  it  was  my  good  fortune 
to  be  sent  to  Porto  Rico  as  the  treasurer  of  that  island.  Among 
the  various  duties  that  I  had  to  perform  in  that  capacity  was 
the  collection  of  the  general  property  tax.  For  that  purpose 
the  island  was  divided  into  sixty-six  districts  corresponding  to 
the  sixty-six  municipal  districts  into  which  for  purposes  of 
local  administration  the  island  had  been  divided.  At  the  head 
of  each  district  was  a  collector  of  taxes.  The  theory  upon 
which   this  service   was  organized  was  that  now  obtaining  in 

(187) 


I40  EFFICIENT  GOVERNMENT  [Vol.  Ill 

respect  to  most  of  the  field  services  of  the  national  government 
here.  Each  office  was  a  local  service.  There  was  practically 
no  such  thing  as  a  man  moving  from  one  office  to  another.  I 
changed  all  this.  I  nationalized  or  rather  unified  the  ser- 
vice. I  arranged  the  several  districts  in  classes  according  to 
their  importance  and  made  a  scale  of  remuneration  for  the  col- 
lectors in  charge  running  from  $480  per  annum  in  the  case  of 
the  least  important  to  $2000  in  the  case  of  the  most  important. 
There  are  probably  eight  or  ten  classes  between  these.  I  then 
established  the  practise  of  filling  superior  positions  strictly  by 
promotion  and  for  merit.  A  man  entered  the  service  as  col- 
lector at  a  small  town  with  a  salary  of  but  $480  per  annum. 
If  efficient  he  was  transferred  from  post  to  post  until  the  higher 
positions  were  reached.  The  result  more  than  justified  my 
greatest  expectations.  A  genuine  esprit  de  corps  was  developed. 
The  collectors  knew  that  promotions  depended  upon  their  col- 
lecting the  taxes  and  performing  their  other  duties  properly. 
The  result  was  that  when  I  left  the  treasurership  some  six  years 
later,  uncollected  or  delinquent  taxes  for  the  island  as  a  whole 
were  less  than  two  per  cent.  I  doubt  whether  there  is  any 
state  that  can  show  an  equally  good  record. 

Later,  as  secretary  of  the  island,  the  task  fell  to  me  of  draft- 
ing a  revised  police  law.  In  Porto  Rico  the  policing  of  the 
island  is  done  by  a  single  insular  police  force  of  about  eight 
hundred  men.  Having  in  mind  the  success  following  the 
unifying  of  the  tax  collection  service,  I  adopted  the  same  prin- 
ciple in  preparing  my  draft.  The  island  was  divided  into  sixty- 
six  districts  corresponding  to  the  municipal  districts  into  which, 
as  stated,  the  island  is  divided,  and  a  district  chief  was  placed 
in  charge  of  each.  These  were  arranged  in  a  hierarchy  with 
graduated  salaries  precisely  as  was  the  tax  collection  force,  and 
the  same  principle  of  filling  positions  by  promotion  from  less 
important  posts  was  adopted.  Equally  favorable  results  were 
obtained  from  this  law.  A  m^an  now  enters  the  police  service 
as  a  permanent  career.  He  knows  that  he  can  be  advanced 
from  post  to  post  as  he  merits  such  promotion.  From  the 
standpoint  of  the  government  the  responsible  positions  are  as 
a  matter  of  course  filled  by  men  whose  competence  has  been 
proved  in  lower  posts. 

(188) 


No.  2]  THE  PERSONNEL  IN  ADMINISTRATION  141 

I  know  that  it  will  be  urged  in  favor  of  the  local  system  now 
obtaining  in  the  United  States  that  this  system  is  congenial  to 
our  historical  traditions  and  institutions ;  that  it  represents  but 
one  phase  of  the  predilections  of  the  American  people  for  a 
local  as  against  a  national  administration  of  public  offices ;  that 
the  people  will  never  acquiesce  in  having  as  their  postmaster, 
collector  of  customs  or  collector  of  internal  revenue,  a  person 
brought  from  another  state.  Whatever  may  have  been  the 
validity  of  these  arguments  in  the  past,  when  matters  of  states 
rights  and  local  control  loomed  larger  than  at  present,  I  believe 
that  all  basis  for  them  has  passed  away.  I  believe  that  the 
people  are  fully  prepared  to  accept  real  national  services,  and 
to  support  a  movement  that  will  make  our  great  national 
services  offer  a  real  and  permanent  career  to  all  persons  high 
and  low  therein  employed.  They  are  certainly  asking  the 
question  why  these  services  cannot  be  as  efficiently  and  eco- 
nomically organized  and  conducted  as  are  private  enterprises. 
Whatever  the  position  they  may  take,  the  people  are  certainly 
entitled  to  know  what  are  the  defects  of  the  present  system,  why 
they  exist  and  what  action  is  required  to  remove  them.  If  they 
acquiesce  in  the  present  system  they  should  at  least  recognize 
the  sacrifice  in  efficiency  involved  in  its  maintenance. 

In  the  foregoing  I  have  considered  in  detail  only  two  of  the 
many  questions  connected  with  the  securing  of  an  efficient  gov- 
ernment personnel.  These  two,  however,  I  consider  as  fun- 
damental. They  are  both  of  the  same  general  character.  They 
have  to  do  with  the  one  great  end  that  must  be  obtained  if  a 
really  efficient  service  is  to  be  secured,  that,  namely,  of  making 
the  government  service  a  real  career  to  the  ambitious,  one  in 
which  not  only  permanency  of  tenure  during  good  behavior  is 
offered,  but  in  which  the  positions  really  worth  while  can  be  se- 
cured as  the  result  of  conscientious  and  intelligent  work  within 
the  service.  No  other  device  can  take  the  place  of  the  incentive 
to  good  work  that  would  thus  be  offered.  Until  that  incentive 
is  furnished,  until  the  administration  seeks  to  put  the  most 
competent  man  in  the  most  responsible  position,  other  meas- 
ures will  be  at  best  but  patching  up  a  defective  machine. 

(189) 


LEGISLATIVE  DRAFTING' 

THOMAS    I.  PARKINSON 
Legislative  Drafting  Bureau 

THE  need  for  better  drafted  legislation  has  been  presented 
frequently  and  forcibly  by  prominent  lawyers  and  polit- 
ical scientists.  The  quantity  and  quality  of  our  statute 
law,  federal  and  state,  has  been  the  subject  of  vigorous  criticism 
for  many  years.  There  exists  a  well-founded  belief,  which 
found  frequent  expression  at  the  recent  meeting  of  the  Ameri- 
can Bar  Association,  that  the  popular  discontent  arising  from 
the  tendency  of  our  courts  to  declare  unconstitutional  or  render 
ineffective  by  interpretation  legislation  enacted  to  remedy  ex- 
isting social  and  industrial  evils  can  be  traced  directly  to  the  fact 
that  much  of  our  so-called  social  legislation  is  hastily  prepared, 
ill-considered,  and  thrown  on  the  statute  book  without  careful 
study  of  constitutional  limitations,  existing  statutes,  or  the 
phraseology  of  the  principles  and  rules  necessary  to  give  effect 
to  the  intentions  of  its  proponents. 

The  Federal  Employers'  Liability  Act  of  1 906,  enacted  to 
apply  only  to  workmen  engaged  in  interstate  commerce,  was  so 
inaptly  worded  that  the  courts  held  that  it  included  as  well  em- 
ployes engaged  in  intrastate  commerce,  and  for  this  reason  was 
unconstitutional.'  In  1908  the  same  act  was  re-enacted  in 
words  which  precisely  limited  its  effect  to  workmen  engaged  in 
interstate  commerce,  and  in  this  form  it  has  recently  been  held 
constitutional.^  Senator  Sutherland,  in  a  paper  before  the  bar 
association,*  expressed  the  opinion  that  the  decision  in  the  Ives 
case  might  have  been  different  if  the  New  York  Workmen's 
Compensation  Law  ^  had  been  more  carefully  drafted. 

'  Read  at  the  meeting  of  the  Academy  of  Political  Science,  October  26,  1912. 
'See  Employers'  Liability  Cases,  207  U.  S.  463. 
'See  Second  Employers'  Liability  Cases,  223  U.  S.  I. 
*  American  Bar  Association  Report,  191 2. 

*Ch.  674  Laws  of  igio ;  declared  unconstitutional  in  Ives  v.  South  Buffalo  Rail- 
way Co.,  201  N.  Y.  271. 

(igo) 


LEGISLATIVE  DRAFTING 


H3 


The  subject  of  Prof.  Reinsch's  paper '  this  afternoon  empha- 
sizes another  need  for  accurate  drafting.  If  the  initiative  is  to 
be  made  a  successful  method  of  legislating,  means  must  be  pro- 
vided for  the  scientific  preparation  of  initiated  measures.  Bills 
must  be  reasonably  within  the  comprehension  of  the  people  if 
they  are  to  be  enacted  or  rejected  intelligently.  Errors  and 
"  jokers  "  are  less  likely  to  be  detected  by  the  whole  mass  of 
the  people  than  by  committees  of  the  legislature,  and,  if  de- 
tected, are  more  dangerous  because  the  bills  cannot  be  amended 
in  the  course  of  discussion  and  before  final  action  as  they  could 
be  in  the  legislature. 

My  subject  is  not  the  need  for  or  the  desirability  of  better 
drafted  statutes,  but  the  means  by  which  they  may  be  had. 
The  scientific  preparation  of  a  statute  involves : 

1 .  Knowledge  of  conditions  proposed  to  be  regulated,  and  de- 
termination of  the  exact  evils  requiring  regulation. 

2.  Determination  of  the  nature  of  the  regulation  required 
and  the  precise  principles  or  rules  which  will  effect  such  reg- 
ulation. 

3.  Phraseology  of  the  new  principles  or  rules  and  of  neces- 
sary administrative  provisions  in  apt  and  precise  language  which 
will  fit  them  into  existing  principles  of  constitutional  and  statute 
law  and  make  them  reasonably  clear  to  the  executive  and  judi- 
cial officers  who  are  to  enforce  them. 

So-called  practical  legislators  are  fond  of  dividing  these  prob- 
lems into :  ( I )  matters  of  substance,  which  are  for  the  legislator, 
not  for  the  drafter,  and  (2)  matters  of  form,  which  may  be  dele- 
gated to  the  drafter.  The  distinction,  however,  is  of  little  value, 
for  changes  in  phraseology  frequently  result  in  changes  in  policy. 
Policies  determined  upon  in  conference  are  often  hard  to  recog- 
nize when  they  come  from  the  pen  of  the  drafter.  No  such 
division  of  the  problems  of  preparing  legislation  is  possible. 
So-called  matters  of  substance  and  matters  of  form  go  hand  in 
hand,  and  if  the  problems  of  legislation  are  to  be  solved  wisely 
and  effectively,  the  legislator  and  the  expert  drafter  must  work 
together. 

'"  Initiative  and  Referendum,"  by  Prof.  Paul  S.  Reinsch,  University  of  Wisconsin. 
See  p.  203,  infra. 

(191) 


144  EFFICIENT  GOVERNMENT  [Vol.  Ill 

Prof.  John  W.  Patton,  of  the  University  of  Pennsylvania  Law 
School,  says : 

Legislative  action,  however,  should  be  based  upon  demonstrated  need, 
careful  study  of  the  proposed  remedy  in  substance,  of  its  constitution- 
ality, of  the  meaning  of  every  word  used  in  a  proposed  act,  with  a  care- 
ful examination  of  existing  decisions  as  well  as  statutes.  Knowledge 
of  law  as  well  as  of  the  English  language  is  required,  and  the  pen  of 
one  who  thinks  he  has  a  facility  for  legislative  expression  should  indeed 
"  make  haste  slowly."  ^ 

In  workmen's  compensation  legislation,  for  example,  the  leg- 
islator, if  he  performs  his  legislative  duty  seriously,  must  first 
study  existing  employers'  liability  law,  and  the  evils,  if  any,  pro- 
duced by  its  operation.  He  must  analyze  these  evils  and  con- 
sider the  possible  methods  of  remedying  them,  and  for  this 
purpose  he  ought  to  know  and  appreciate  the  methods  by  which 
in  other  states  or  countries  similar  evils  have  been  remedied. 
Having  decided  that  the  compensation  system  offers  the  best 
means  of  doing  justice,  there  remain  for  his  decision  important 
questions  of  policy  involved  in  working  out  the  details  of  such 
a  scheme.  For  example,  shall  the  scheme  apply  in  all  employ- 
ments, in  all  with  certain  exceptions,  or  in  certain  specified  em- 
ployments selected  because  of  their  extra  hazard  or  otherwise? 
Are  all  injuries  in  the  course  of  employment  to  be  compensated, 
or  are  certain  injuries,  such  as  those  caused  by  an  employe's  own 
deliberate  act,  to  be  excepted  ?  Upon  what  basis  shall  the  com- 
pensation be  computed,  and  how  shall  the  computation  be  made, 
and  under  what  conditions  shall  it  be  paid?  What  shall  be  the 
procedure  to  determine  controverted  questions?  What,  if  any, 
administrative  organization  is  required  for  the  proper  enforce- 
ment of  the  scheme?  Every  one  of  these  problems  involves 
the  determination  of  a  multitude  of  detailed  questions  of  policy 
before  the  precise  limits  of  the  rights  and  liabilities  created  by 
the  act  are  defined  in  such  manner  that  employer,  employe,  ad- 
ministrative officer  and  the  court  may  know  when  and  to  what 
extent  the  legislature  intended   that  A,  an  employer,   should 

'  *^  Festina  Lenie,"  Penna.  Law  Rev.,  vol.  59,  p.  214. 
(192) 


No.  2]  LEGISLATIVE  DRAFTING  1 45 

compensate  B,  his  employe,  in   case  the  latter   is  injured  in  the 
course  of  his  employment. 

The  foregoing  are  frequently  described  as  questions  of  policy 
with  which  the  drafter  should  have  nothing  to  do ;  they  are 
solely  for  the  legislator.  Theoretically,  this  is  true.  If  all 
these  questions  were  carefully  weighed  and  decided  by  the 
legislator  there  would  be  nothing  left  for  the  drafter  but  to  put 
the  legislative  decision  into  language.  Practically,  however, 
the  great  majority  of  these  questions  of  policy  do  not  occur  to 
the  legislator  until  the  drafter  in  the  detailed  statement  of  the 
legislative  intent  uncovers  the  numerous  instances  to  which  the 
legislative  intent  has  not  been  applied. 

Determination  of  these  questions  of  policy  by  no  means  com- 
pletes the  legislative  task.  There  remain  questions  of  consti- 
tutionality and  the  selection  of  devices,  such  as  the  so-called 
elective  scheme,  to  avoid  constitutional  restrictions ;  the  adjust- 
ment of  the  statutory  scheme  decided  upon  to  the  existing 
statute  law  on  the  same  or  similar  subjects;  and,  finally,  the  se- 
lection of  the  language  which  will  carry  the  statutory  scheme 
into  a  statute  at  once  constitutional  and  effective  for  the  pur- 
poses for  which  it  was  intended. 

Mere  phraseology  of  a  statute  is  itself  a  difficult  task  because 
of  the  imperfections  and  inadequacies  of  language,  its  unskil- 
ful use  and  the  inability  of  the  human  mind  to  foresee  all 
the  contingencies  which  will  arise  in  the  daily  operation  of  the 
law.'  For  this  reason  it  is  sometimes  said  that  statutes  should 
declare  principles  and  not  go  into  detail. 

If  important  legislation  is  to  be  stated  effectively  in  general 
principles  it  can  be  done  only  after  very  careful  consideration 
by  the  drafters  of  all  questions  of  detail  and  the  selection 
of  such  general  language  as  is  suited  precisely  to  the  develop- 
ment and  application  of  the  general  principle  to  the  numerous 
particular  instances  to  which  it  will  be  applied.  Otherwise,  the 
act  is  not  truly  general ;  it  is  simply  incomplete. 

There    is    an    impression    in   this   country   that    the    English 

'  Compare  remarks  of  F.  Vaughn  Hawkins,  Esq.,  rtprintec]  in  Thayer's  Prelimin- 
ary Treatise  on  Evidence,  appendix  C,  p.  585. 

1  c  (193) 


146  EFFICIENT  GOVERNMENT  [Vol.  Ill 

Workmen's  Compensation  Act  is  a  good  example  of  a  well 
drafted  act  which  states  only  general  principles.  In  the  case  of 
Lysons  vs.  Knowles,'  Lord  Davey,  in  rendering  his  opinion  in 
the  House  of  Lords,  referred  to  the  act  of  1897  as  an  "  extra- 
ordinary ill-drawn  act,"  and  said  : 

The  difficulty  really  arises  from  this — that  the  draftsman  has  apparently 
not  worked  out  on  paper  into  legislative  language  the  scheme  which  he 
had  in  his  head,  and  it  looks  very  much  as  if  the  act  had  really  been 
framed  from  notes  of  legislative  intention  and  had  not  been  expanded 
into  the  proper  legislative  language.  Cases  which  have  arisen,  and 
cases  which  are  likely  to  arise,  appear  not  to  have  been  contemplated, 
but  apparently  were  supposed  to  be  covered  by  the  general  language 
used  in  the  act. 

The  English  Compensation  Act  of  1 897  was  expressed  in  1 2  ^ 
printed  pages;  the  amended  act  of  1906  required  24  pages, 
and  in  addition  there  are  now  more  than  150  pages  of  statutory 
rules  and  regulations'  which  have  the  force  of  law.  Compen- 
sation, under  the  act  of  1897,  was  based  on  "  average  weekly 
earnings  "  3  without  any  indication  of  the  method  of  computing 
such  earnings.  This  computation  gave  rise  to  so  many  diffi- 
culties in  the  cases  which  arose  under  the  act  that  the  drafters 
of  the  amended  act  of  1906  used  nearly  400  additional  words  to 
explain  the  method  of  computing  average  earnings,*  a  total  of 
400  words  in  the  place  of  the  3  words  in  the  original  act.  The 
German  Insurance  Code  of  191 1  represents  a  like  expansion  of 
the  original  laws.* 

The  tendency  to  couch  statutes  in  general  terms  and  to  leave 
details  of  their  administration  to  executive  discretion  simply 
shifts  to  executive  officers  the  burden  of  applying  the  general 
principle  to  a  particular  case.     This  puts  off  the  difficulty  but 

'  84  L.  T.  R.  65,  vol.  3,  Workmen's  Compensation  Cases  (Minton-Senhouse), 
p.  I  (1901). 

'The  act  and  rules  are  reprinted  in  the  appendix  to  Ruegg's  Employers'  Liability 
and  IVorkmen's  Compensation  (1910),  pp.  688-868. 

'First  Schedule,  sec.  i,  b. 

*  First  Schedule,  section  I,  clauses  (  i)  and  (2). 

'See  translation  in  Bulletin  No.  96  of  United  States  Bureau  of  Labor. 

U94) 


No.  2]  LEGISLATIVE  DRAFTING  1 47 

does  not  overcome  it;  for  if 'Lhe  law  is  to  be  even  reasonably 
clear,  executive  officers  must  draft  the  rules  and  regulations  and 
prescribe  the  schedules,  reports  and  records,  provision  for  which 
has  been  omitted  from  the  statute.  In  this  country,  however, 
because  of  the  general  impression  that  such  rules  and  regula- 
tions, supplementing  general  statutes,  represent  an  unconstitu- 
tional delegation  of  legislative  power,  it  usually  happens  that  the 
general  principle  is  applied  in  hit-or-miss  fashion  to  each  par- 
ticular case  as  it  arises.  The  New  York  labor  law  requires 
"  good  and  sufficient  ventilation  "  in  factories.'  No  specific 
rules  have  been  prescribed  and  the  act  is  practically  unen- 
forceable. 

Moreover,  when  a  general  statute  is  well  drawn,  the  men  who 
have  worked  out  its  provisions  and  selected  the  language  in 
which  to  state  them  are  in  a  better  position  to  state  the  specific 
rules  for  the  application  of  the  act  to  particular  instances  than 
are  administrative  and  judicial  officers  before  whom  it  comes  as 
a  totally  new  and  often  unconsidered  matter.  The  drafters  of 
a  workmen's  compensation  act,  for  example,  if  they  have  done 
their  work  well,  ought  to  know  whether  free  house  rent  re- 
ceived by  an  employe  is  to  be  included  in  the  computation  of 
his  wages  for  the  purpose  of  determining  his  compensation  in 
case  of  injury,  and  if  they  fail  to  state  in  their  act  whether  it  is 
to  be  included  or  not,  employers,  employes,  insurance  com- 
panies and  courts  are  going  to  spend  a  great  deal  of  time  in 
attempting  to  discover  whether  the  legislature  intended  to 
include  or  exclude  this  item,  and  no  one  is  ever  going  to  know 
what  the  legislature  did  intend  until  some  individuals  have  car- 
ried to  the  court  of  last  resort  a  ease  involving  the  question, 
and  then  the  chances  are  even  that  the  court  will  guess  wrong 
and  that  the  intent  of  the  legislature  if  it  had  been  expressed 
would  have  been  directly  opposite.  For  example,  take  the 
Sherman  anti-trust  law,  the  meaning  of  which  was  in  doubt  for 
twenty  years.  There  are  many  people  who,  if  they  had  been 
placed  in  the  position  of  the  Supreme  Court,  would  probably 
have  guessed  differently  as  to  the  Congressional  intent. 

'New  York  Consolidated  1  aws,  ch.  31,  sec.  86. 
(195) 


148  EFFICIENT  GOVERNMENT  [Vol.  Ill 

My  point  is  not  that  statutes  should  provide  for  all  conceiv- 
able circumstances.  I  do  not  expect  to  see  a  perfect  statute. 
As  was  said  by  Judge  Dean:  "Laws  seem  to  be  born  full- 
grown  about  as  often  as  men  are."'  But  this  does  not  justify 
putting  on  to  the  statute  books  legislation  which  is  obviously  in- 
complete. The  New  Jersey  Compensation  Act  ^  bases  compen- 
sation on  wages  and  contains  no  definition  of  the  term  "  wages." 
The  slightest  consideration  of  the  operation  of  this  act  would 
disclose  to  its  drafters  the  absolute  certainty  that  within  thirty 
days  of  its  enactment  cases  would  arise  involving  the  question, 
"  How  are  wages  to  be  determined?  " 

It  seems  foolish  to  omit  such  provisions  merely  to  avoid  what 
are  called  detailed  provisions.  Indeed,  it  is  generally  true  that 
lawyers  and  other  people  who  attempt  to  prepare  written  docu- 
ments on  subjects  of  which  they  know  little  prefer  the  use  of 
general  language,  and  it  usually  happens  that  the  more  consid- 
eration and  study  one  gives  to  the  preparation  of  a  written  doc- 
ument the  less  general  language  is  found  in  it.  Explicitness  of 
language  is  in  direct  proportion  to  the  writer's  knowledge  of  his 
subject  matter  and  its  problems. 

Commenting  on  the  detail  of  some  statutes,  Frederick  W. 
Lehmann,  in  his  President's  address  before  the  American  Bar 
Association,^  cited  a  Kansas  act  requiring  for  each  bed  in  a 
public  inn  "  clean  sheets  of  sufficient  width  and  length  to  reach 
the  entire  width  and  length  of  the  bed,  and  with  the  upper  sheet 
to  be  of  sufficient  length  to  fold  back  over  the  bedding  at  the 
upper  end  or  head  of  the  bed,"  and  observed  that  the  drafter 
forgot  to  require  that  the  sheet  be  long  enough  for  tucking  in  at 
the  foot.  These  details  may  seem  petty,  but  suppose  that  the 
statute  had  provided  in  general  terms  for  sanitary  bed  cover- 
ings, would  the  administrative  officers  have  carved  out  of  this  an 
enforceable  rule  which  would  have  effected  the  purposes  of  the 
act,  and  what  would  the  ordinary  judge  have  said  with  respect 
to  the  meaning  and  effect  of  this  act  had  it  come  before  his 

'  In  Waters  v.  Wolf,  162  Pa.  167. 
'Ch.  95,  Laws  of  ign. 
*  American  Bar  Association  Report,  1909. 

(196) 


No.  2]  LEGISLATIVE  DRAFTING  1 49 

court  for  application?  Would  he  not  have  quoted  the  rule  that 
statutes  in  derogation  of  the  common  law  must  be  construed 
strictly,  and  that  as  the  statute  said  nothing  about  the  length  or 
the  breadth  of  sheets  it  was  not  to  be  interpreted  as  interfering 
with  individual  liberty  more  than  its  language  absolutely  re- 
quired? 

Definitions  are  helpful  in  attaining  precision,  but  they  must 
be  skilfully  used.  The  New  Jersey  Compensation  Act  defines 
"  wilful  negligence  "  as  "  deliberate  act  or  deliberate  failure  to 
act." '  Literally,  this  means  that  a  man  can  escape  the  charge 
of  negligence  only  by  careless  action  or  inaction. 

Blunders  in  legislative  language  are  varied.  They  run  from 
the  ridiculous  to  the  serious.  Congress,  for  example,  enacted : 
"  That  no  sponges  taken  from  (specified)  waters  shall  be 
landed,  delivered,  cured  or  offered  for  sale  at  any  port  or  place 
in  the  United  States  of  a  smaller  size  than  four  inches  in 
diameter."  ""  How  many  of  our  ports  could  answer  the  descrip- 
tion of  less  than  four  inches  in  diameter?  The  Illinois  Com- 
pensation Act  for  disfigurement  of  an  employe,  grants  him  one- 
fourth  of  his  compensation  in  case  of  death.  3  The  second 
draft  of  a  compensation  act,  prepared  by  the  Pennsylvania 
commission,  granted  compensation  to  widows  of  killed  work- 
men, and  defined  widow  to  include  "  only  those  who  are  liv- 
ing with  the  decedent  at  the  time  of  his  death."  When  it 
was  pointed  out  that  this  suggestion  of  a  plurality  of  wives 
sounded  more  like  Utah  than  Pennsylvania,  the  commission  was 
much  impressed  with  the  necessity  for  a  change  in  the  wording, 
and  after  retiring  into  executive  session  produced  the  following, 
which  appears  in  its  latest  printed  draft :  The  term  widow  shall 
include  "  only  a  widow  living  with  the  decedent  at  the  time  of 
his  death."  ^  This  may  relieve  the  Pennsylvania  workman  from 
the  insinuation  of  Mormonism,  but  if  the  intent  is  to  give  com- 
pensation to  the  decedent's  widow  only,  why  not  say :    "  shall 

»  Sec.  3,  par.  23. 

*U.  S.  Statutes  at  Large,  v.  34,  p.  313. 

*  Act  of  June  10,  191 1,  sec.  5,  c. 

*  Industrial  Accidents  Commission  of  Pennsylvania,  4th  draft  of  compensation  act, 

art.  II,  sec.  6,  cj.  10. 

(197) 
1   C    • 


I50  EFFICIENT  GOVERNMENT  [Vol.  Ill 

include  only  the  decedent's  wife,  living  with  him  at  the  time  of 
his  death?" 

Language  which  reads  smoothly  does  not  always  represent 
good  drafting.  As  a  member  of  Congress  put  it,  "  Like 
Browning's  poetry  it  may  be  well  said  and  yet  not  say  any- 
thing"  to  the  ordinary  reader. 

The  framers  of  important  legislation  should  have  the  benefit 
of  the  experience  of  other  states  and  countries  in  the  same 
field.  They  should  know  the  legislation  of  other  states  and  its 
operation.  Mere  copying  of  foreign  legislation  will  not  suffice. 
Drafters  of  American  compensation  acts  have  repeatedly  copied 
from  the  English  act  the  words  "injuries  arising  out  of  and  in 
the  course  of  employment."  Apparently,  it  is  assumed  that  the 
meaning  of  these  words  has  been  fixed  by  the  English  courts 
and  is  well  understood.  Prof.  Francis  H.  Bohlen  recently 
demonstrated  '  that  this  phrase,  instead  of  having  a  definite  and 
fixed  meaning,  is  one  of  the  most  prolific  sources  of  doubt  and 
litigation  in  the  English  act.  Mere  copying  in  the  Nevada 
Compensation  Act  resulted  in  putting  into  the  very  first  section 
an  important  reference  to  "  the  preceding  section  of  this  act." ' 

Legislation  is  constantly  enacted  in  ignorance  of  existing  laws. 
For  example,  on  February  14,  1903,  Congress  passed  an  act 
transferring  the  immigration  duties  of  the  Secretary  of  the 
Treasury  to  the  Secretary  of  Commerce  and  Labor. 3  On  March 
3  of  the  same  year  Congress  passed  an  immigration  act,  in 
many  clauses  of  which  duties  were  imposed  on  the  Secretary  of 
the  Treasury .<  A  joint  resolution  was  subsequently  necessary  to 
correct  this  blunder.^ 

There  appears  in  a  congressional  appropriation  bill  an  appro- 
priation for  publishing  the  laws  in  newspapers,  although  such 
publication  had  been  expressly  prohibited  four  or  five  times 
during  the  same  session.^ 

^  Harvard  Law  Rev.,  vol.  25  (1912),  pp.  328,  401,  517. 

^  Laws  0/  igii,  ch.  183,  sec.  i. 

^  Statutes  at  Large,  vol.  32,  p.  825. 

^ Ibid.,  vol.  32,  p.  1213. 

^ Ibid.,  vol.  33,  p.  591. 

*  Ibid.,  vol.  18,   p.  349. 

(198) 


No.  2]  LEGISLATIVE  DRAFTING  151 

In  19 1 2  the  New  York  legislature  amended  a  section  of  the 
labor  law.  Later,  at  the  same  session,  the  same  section  was 
again  amended  without  reference  to  the  previous  amendment.' 
The  question  arises  whether  the  amendment  incorporated  in  the 
first  act  of  19 1 2,  which  is  not  contained  in  the  second  amend- 
ment of  191 2,  is  or  is  not  part  of  the  labor  law  of  the  state? 

Another  and  frequent  type  of  bad  drafting  is  the  statement 
of  the  same  idea  in  different  words  in  the  same  act.  In  one  section 
of  the  New  Jersey  Compensation  Act  there  are  no  less  than  four 
different  methods  of  stating  the  same  computation  of  time.* 

The  obvious  suggestion  for  the  correction  of  many  of  our 
political  ills,  including  unscientific  statutes,  is  the  election  of 
better  men  to  the  legislature.  A  good  legislator,  however, 
is  not  necessarily  a  good  drafter;  and  a  legislator  who  is  a  good 
drafter  is  so  busy  with  legislative  policies  on  a  host  of  subjects 
that  he  has  little  time  to  devote  to  jthe  wording  of  laws.  Mark 
Twain  said  that  a  man  who  attempts  to  study  German  has  not 
much  time  for  anything  else.  Drafting  statutes  is  much  like 
learning  German. 

John  Stuart  Mill  declared  :  "  There  is  hardly  any  kind  of  in- 
tellectual work  which  so  much  needs  to  be  done,  not  only  by 
experienced  and  exercised  minds,  but  by  minds  trained  to  the 
task  through  long  and  laborious  study,  as  the  business  of  making 
laws."  3  Our  legislators  are  elected  to  voice  for  brief  periods 
the  political  sentiment  of  their  communities  and  their  attention 
is  largely  confined  to  this  field  of  activity.  Having  in  mind  the 
statement  of  Mill,  it  is  apparent  that  the  selection  of  legislators 
by  the  elective  method  does  not  insure  the  selection  of  men  of 
"experienced"  minds  for  making  written  law;  that  the  fre- 
quency of  election  fails  to  assure  any  opportunity  for  a  pro- 
longed experience  in  lawmaking;  and  that  the  nature  of  the 
political  work  which  legislators  must  perform  to  gain  and  keep 
their  seats  precludes  them  from  and  unfits  them  for  "  long 
and  laborious  study." 

■  Laws  of  igi2,  ch.  337  and  ch.  543. 
^  Laws  0/  igii,  ch.  95,  sec.  II,  par.  15. 

*  Representative  Government,   People's  Edition,  1876,  p.  39. 

(199) 


152  EFFICIENT  GOVERNMENT  [Vol.111 

Great  Britain  has  solved  the  drafting  problem  partially  by 
creating  the  office  of  parliamentary  counsel,  by  whom  all 
government  bills  are  drafted.  Practical  legislators  and  lawyers 
in  this  country  have  an  indefinite  notion  that  the  creation  of  an 
expert  official  drafting  agency  would  in  some  way  interfere 
with  the  ordinary  functions  of  the  legislator.  The  real  function 
of  the  legislator  is  to  make  known  the  social  need  for  a  given 
rule  of  law  at  a  given  time.  It  does  not  necessarily  include  the 
phrasing  of  that  rule.  Originally,  the  English  Parliament  peti- 
tioned the  king  for  the  enactment  of  laws ;  the  king  and  his 
counsellors,  if  the  petition  were  granted,  determined  the  phrase- 
ology of  the  law.  Representative  legislators  elected  by  popular 
vote  may  voice  the  wishes  of  their  constituents  with  respect  to 
the  general  policy  which  shall  govern  the  community  on  any 
particular  subject;  but,  ordinarily,  they  are  not  sufficiently 
skilled  in  the  handling  of  the  English  language  as  an  instrument 
of  law-making,  and  in  the  knowledge  of  existing  constitutional 
and  statute  law,  to  determine  the  precise  phraseology  of  the 
rules  which  shall  make  effective  the  policies  so  determined 
upon. 

The  consequence  of  using  unprecise  language  in  a  statute  is  a 
loss  of  that  effective  control  over  the  policies  of  legislation 
which  the  legislature  is  empowered  constitutionally  to  exercise 
to  the  entire  exclusion  of  both  the  executive  and  judicial 
branches  of  the  government.  Moreover,  a  vast  amount  of  time 
and  painstaking  care  is  expended  by  administrative  officers, 
lawyers,  and  courts  in  the  determination  of  the  exact  meaning 
of  a  statute  or  of  its  words  or  phrases.  In  all  but  one  or  two  of 
the  cases  which  have  been  litigated  under  the  California  Com- 
pensation Act  during  the  first  year  of  its  operation  "  the  issue 
was  upon  the  construction  of  the  act  and  not  the  fact  of  disability 
or  the  extent  of  the  injury.' 

The  conclusion  seems  inevitable  that  every  legislative  body 
ought  to  be  supplied  with  a  force  of  carefully-trained  lawyers 
whose  duty  it  shall  be  to  give  attention  to  these  problems  before 
a  statute  is  cast  in  its  final  form. 

'Article  by  A.  J.  Pillsbury,  member  of  Industrial  Accident  Board  of  California,  in 
The  California  Outlook,  Saturday,  Oct.  5,  1912. 

(200) 


No.  2]  LEGISLATIVE  DRAFTING  1 5 5 

Definite  proposals  are  now  being  made  to  furnish  legislatures 
with  expert  drafting  assistance.  Several  states,  notably  Wis- 
consin and  Pennsylvania,  have  drafting  and  legislative  refer- 
ence bureaus  at  the  state  capitol.  At  the  last  session  Congress 
gave  serious  attention  to  a  bill  creating  a  similar  agency  at 
Washington.'  The  Am.erican  Bar  Association  has  just  created 
a  special  committee  on  the  drafting  of  legislation  to  study 
existing  agencies  for  the  rendering  of  technical  assistance  to 
legislators  in  the  preparation  of  their  laws,  and  to  report  its 
recommendations  to  the  annual  meeting  in  191 3.' 

Legislative  reference  libraries  are  doing  excellent  work  so 
far  as  they  go,  but  the  drafting  end  of  their  work  has  not  been 
so  well  developed  as  the  collection  and  indexing  of  printed  ma- 
terials. This  may  be  due  to  the  fact  that  the  lawyers  are 
slower  than  the  political  scientists  in  catching  up  with  modern 
tendencies. 

Another  device  of  which  frequent  use  is  now  being  made  is 
to  take  the  preparation  of  important  legislation  out  of  the 
hands  of  the  regular  legislator  and  entrust  it  to  a  legislative  com- 
mission. This  plan  may  or  may  not  be  effective  for  good. 
The  commission,  like  many  other  governmental  agencies,  de- 
pends for  its  usefulness  on  the  men  who  constitute  it,  the  time 
they  devote  to  their  work  and  the  men  to  whom  they  entrust 
the  actual  preparation  of  their  bills.  If  a  skilled  workman  were 
to  do  his  work  as  carelessly  and  with  as  many  blotches  appear- 
ing over  the  whole  face  of  it  as  appear  in  some  of  the  compen- 
sation acts  drafted  by  commissions,  his  employer  would  not 
hesitate  to  discharge  him  without  pay  or  send  him  back  to  do 
his  job  over  again. 

The  wise  solution  of  this  problem  of  drafting  American  stat- 
utes will  do  much  to  relieve  administrative  officers  and  courts  of 

'  Concessional  Reference  Bureau :  Hearings  before  the  Committee  on  the 
Library,  House  of  Representatives,  Feb.  26th  and  27th,  1912.  (Published  in 
pamphlet  form  by  Government  Printing  Office.) 

'The  members  of  this  committee  are:  WiHiam  Draper  Lewis,  Philadelphia,  Pa., 
Chairman;  Samuel  Untermyer,  New  York,  N.  Y. ;  Louis  D.  Brandeis,  Boston, 
Mass.;  Frederick  W.  Lehmann,  St.  Louis,  Mo.;  Henry  C.  Hall,  Colorado  Springs, 
Colo.  J  Thomas  L  Parkinson,  New  York,  N.  Y. ;  Ernst  Freund,  Chicago,  Hi. 

(201) 


154 


EFFICIENT  GOVERNMENT 


vain  efforts  to  discover  legislative  intent  where  there  is  none,  or 
where  it  is  confused  in  a  mass  of  ill-chosen  words,  and  will  re- 
move one  important  cause  of  the  discontent  which  has  been 
made  the  basis  for  the  proposal  of  popular  recall  of  judicial  de- 
cisions affecting  the  constitutionality  of  state  legislation  or  the 
recall  of  judges  rendering  such  decisions. 

I  have  no  panacea  for  the  ills  of  legislation.  I  have  no  scheme 
to  suggest  for  the  production  of  well-drafted  statutes.  I  know 
of  no  device  or  organization  which  can  be  depended  upon  to 
provide  us  with  good  drafting.  Official  drafting  and  legislative 
reference  bureaus  are  not  of  themselves  sufficient;  machinery 
will  not  run  without  power.  In  the  last  analysis  the  problem  is 
to  secure  men  of  training  and  experience  who  will  devote  their 
professional  careers  to  the  scientific  formulation  and  develop- 
ment of  our  written  laws.  In  the  words  of  E.  W.  Smith,  Esq.. 
president  of  the  Pennsylvania  Bar  Association,  the  drafting  of  a 
statute  is  not  a  "  pastime  for  a  summer  afternoon." '  In  many 
ways  preparation  of  statutes,  because  of  the  increasing  quantity 
and  broad  effect  of  our  statute  law,  is  even  more  important  than 
the  judicial  function  which  operates  only  on  controversies  as 
they  arise  between  man  and  man.  Again,  Mr.  Smith  says: 
"  Legislation  is  necessarily  fragmentary,  unless  it  is  prepared  by 
skilful  lawyers,  familiar  with  the  subject,  who  are  ready  to  de- 
vote much  time  and  thought  to  its  preparation.  But  it  is  foolish 
to  assume  that  all  lawyers  can  draft  statutes.  Such  work  re- 
quires a  concentration  of  mind  and  of  expression  that  few  men 
have."  Until  we  are  impressed  with  the  necessity  of  having  our 
statute  law  drafted  by  such  men,  and  until  we  find  the  men,  we 
shall  continue  to  find  in  our  session  laws  numerous  examples  of 
legislative  blunders,  some  of  them  amusing,  some  pathetic,  and 
unfortunately  many  of  them  serious. 

'  Pennsylvania  Bar  Association  Report,  191 1. 
(202) 


THE   INITIATIVE  AND   REFERENDUM  ' 

PAUL    S.    REINSCH 
Professor  of  Political  Science,  University  of  Wisconsin 

IT  is  very  fashionable  on  the  part  of  those  who  consider 
themselves  conservative  and  given  to  test  the  safeness  of 
things,  to  look  upon  the  initiative  and  referendum  in  this 
country  as  a  political  fad,  a  part  of  a  political  disease  of  our 
people.  They  think  this  a  phase  we  shall  have  passed  through 
in  a  comparatively  short  time  to  return  to  saner  methods.  Yet 
it  seems  to  me  that  those  who  console  themselves  about  the 
progress  of  this  institution  in  such  a  manner  are  taking  a  most 
superficial  view.  If  I  read  our  present  situation  as  a  nation 
aright,  I  believe  we  must  see  in  it  the  awakening  of  a  much 
deeper  political  consciousness  than  we  have  hitherto  had. 
Heretofore  our  life  has  been  occupied  with  economic  interests, 
and  the  political  factor,  strident  as  it  was  at  times,  was  never- 
theless superficial — the  old  marching  campaign  was  its  emblem. 
We  did  have  times  of  important  political  action,  but  in  general 
we  were  more  concerned  with  economic  life.  I  consider  the 
movement  for  the  initiative  and  referendum  as  a  part  of  that 
great  political  awakening  which  the  nation  is  now  experiencing 
and  which  will  bring  about  a  permanent  change  in  our  political 
methods. 

The  old  party  caucus  with  all  its  trickery  and  all  its  sham 
has  been  so  utterly  discredited  that  we  shall  never  he  able  to  go 
back  to  it.  We  have  seen  with  new  eyes  the  old-time  platforms, 
and  they  will  no  longer  satisfy  us.  The  cry  of  democracy  is 
"  More  democracy."  It  holds  that  as  the  constitutions  of  the 
past  have  not  worked  well  we  must  have  them  more  demo- 
cratic. We  are  outdoing  Rousseau.  He  pronounced  for  demo- 
cratic action  even  in  a  large  state,  but  could  not  work  out  the 

'  Read  at  the  meeting  of  the  Academy  of  Political  -Science,  October  26, 
1912. 

(203) 


ic6  EFFICIENT  GOVERNMENT  [Vol.  Ill 

necessary  mechanism,  and  therefore  stopped  short  of  national 
democracy ;  he  never  got  beyond  federalism  in  his  constructive 
ideas.  Accordingly  the  modern  initiative  and  referendum 
completes  the  Rousseauic  theory,  in  that  it  considers  the 
nation  a  unit,  makes  use  of  the  modern  advances  in  com- 
munication and  views  the  electorate  as  one  body  capable  of 
acting  together. 

We  shall  have  to  go  through  this  second  phase  of  Rousseau- 
ism.  The  convention  phase  was  put  to  the  proof  during  the 
French  revolution  when  the  older  Rousseauism  was  thoroughly 
tested.  Now  it  will  be  tested  in  all  its  completeness  by  making 
the  people  the  primary  factor  in  political  action.  This  brings 
up  the  question  of  certain  elements  of  human  nature,  according 
to  which  political  institutions  are  viewed  not  as  instruments,  not 
as  elaborating  energy  that  already  exists,  but  as  virtually  creat- 
ing new  energy,  as  if  new  virtues  could  manifest  themselves 
through  them.  That  is  expecting  too  much  of  any  institution. 
There  exists  in  a  people  the  political  energy,  virtue,  conscious- 
ness, which  seeks  for  a  vent,  which  wants  to  manifest  itself 
in  action;  and  if  there  are  impediments,  institutions  that  dam 
up  such  energies,  there  will  be  an  outbreak  of  some  kind. 

To  a  certain  extent  the  energy  of  public  opinion  was  hampered 
by  our  institutions  of  the  past,  and  yet  it  would  be  too  much  to 
say  that  by  creating  new  institutions  we  shall  give  to  the  body 
politic  a  different  energy.  There  lies  the  chief  argument  against 
the  initiative  and  referendum.  It  seems  to  demand  too  much, 
to  consider  the  people  as  a  body  able  to  initiate,  having  the  con- 
stant energy  to  watch  the  affairs  of  the  state  and  judge  their  de- 
tails, as  well  as  to  make  themselves  masters  of  the  legislative 
situation.  That  is  where  the  fault  lies  in  my  opinion — in  the 
extreme,  the  radical  policy  of  the  initiative  and  referendum. 
There  are  many  functions  in  the  state.  There  is  the  function 
of  deliberation,  of  judging,  of  taking  administrative  action,  and 
to  think  that  the  function  of  voting  in  itself  can  take  the  place 
of  any  or  all  of  these  others  and  make  them  unnecessary,  is 
expecting  too  much.  Voting  has  often  been  used  for  the  pur- 
pose of  assisting  legislation ;  it  was  used  even  in  the  Romans' 
day,  but  then  there  was  always  a  clear  alternative,  yes  or  no — 

(204) 


No.  2]  THE  INITIATIVE  AND  REFERENDUM  157 

a  point  that  ought  to  be  worked  out  and  thoroughly.  But  we 
desire  to  go  beyond  that;  we  desire  to  have  the  consciousness  of 
the  people  enter  more  intimately  into  the  work  of  legislation, 
and  yet  we  are  expecting  too  much  of  this  reform  when  on  the 
one  hand  we  believe  that  a  popular  vote  can  take  legislative 
action  in  its  fullness  and  completeness  and  thus  virtually  super- 
sede the  legislature,  and  on  the  other  hand  expect  from  it  the 
political  regeneration,  the  creation  of  new  political  forces, 
energies  and  virtues. 

With  these  reservations,  however,  I  consider  the  initiative  and 
referendum  as  an  institution  that  carries  within  it  a  great 
promise  for  our  commonwealths,  one  that  ought  to  be  utilized 
and  taken  advantage  of,  and  that  cannot  be  brushed  aside. 

Throughout  the  world  parliamentary  bodies,  have  been  a 
disappointment  in  not  coming  up  to  the  ideal  of  liberalism,  in 
not  being  the  "  councils  of  the  wise,"  in  which  after  due  delib- 
eration the  best  interests  of  the  body  politic  are  expressed  in 
the  form  of  law.  That  is  not  the  nature  of  any  legislative  body, 
not  even  of  that  most  excellent  one,  the  British  Parliament. 
Too  much  was  expected  of  this  institution,  as  of  every  institu- 
tion when  first  introduced  to  the  world.  Now  the  tendency  is 
in  the  opposite  direction.  In  England  even  it  is  the  elector  that 
has  direct  relation  with  the  controlling  interest,  and  Parliament 
seems  hardly  more  than  a  registering  agency  to  record  the  will 
of  the  electorate  and  keep  the  ministry  in  power.  The  old 
dramatic  struggle  for  influence  in  the  House  of  Commons  that 
lent  life  and  interest  to  the  political  action  of  England  during 
the  greater  part  of  the  nineteenth  century  has  almost  passed 
away  and  it  is  now  carried  on  before  the  electorate.  But 
Parliament  has  not  lost  its  importance,  because  it  is  the  place 
where  energies  converge,  where  opinions  are  formed,  the  place 
for  the  promoting  of  policies,  and  it  remains  by  far  the  most 
powerful  and  interesting  body  of  legislation  in  the  world.  How 
different  with  our  state  legislatures  !  They  have  become  so  dis- 
credited that  they  offer  no  field  for  political  action  of  a  high 
type,  and  so  they  naturally  became  the  instruments  of  the 
"  great  interests"  whose  leaders  alone  have  been  far-sighted 
enough  to  see  how  important  the  political  power  therein  con- 

(205) 


158  EFFICIENT  GOVERNMENT  [Vol.  Ill 

centrated  really  is.  Now  it  is  in  this  connection — in  making  the 
body  of  the  electorate  conscious  of  the  vital  importance  of  state 
legislation — that  I  believe  the  greatest  value  of  the  initiative 
and  referendum  lies. 

My  expectation  is  that  its  effect  will  be  as  follows:  This 
institution  will  assist  the  people,  the  body  of  the  electorate,  in 
the  development  of  its  political  consciousness;  the  conscious- 
ness of  power  which  it  brings  will  assist  in  that  direction. 
Second,  it  will  make  the  body  of  the  electorate  more  familiar 
with  legislative  problems  and  more  interested.  In  Athenian 
democracy,  every  citizen  was  supposed  to  take  part  in  all  the 
functions  of  government,  to  judge,  administer,  elect.  That 
is  no  longer  possible,  but  nothing  will  so  train  the  electorate  to 
see  the  difficulties  and  problems  of  legislation,  and  to  form  an 
intelligent  judgment  about  them,  as  having  to  solve  those  prob- 
lems itself  at  times.  Moreover,  it  will  increase  the  interest  of 
the  people  in  the  legislatures,  as  being  organs  which  are  con- 
stantly engaged  with  dealing  with  these  important  matters ;  and 
finally  it  will  serve  to  increase  the  sense  of  responsibility  of 
these  bodies.  We  cannot  of  course  hope  to  get  that  direct 
sense  of  responsibility  which  is  the  key  to  the  English  system, 
where  the  possibility  of  a  dissolution  and  an  appeal  to  the 
nation  weighs  constantly  on  Parliament  and  every  member 
thereof;  but  the  referendum,  too,  is  an  appeal  to  the  electorate, 
and  the  adoption  of  the  proposal  rejected  by  the  legislature 
in  a  measure  parallels  the  return  to  power  of  a  British  "Op- 
position." At  present  there  is  no  adequate  way  in  which  the 
electorate  can  express  its  concurrence,  or  its  disapproval,  or  its 
indignation  at  what  has  been  done.  General  elections  are  not 
fitted  for  this;   at  the  most  they  may  take  out  an  important 

ssue,  make  it  a  matter  of  general  interest,  and  submit  it  to  the 
people. 

I  have  not  time  to  go  into  discussion  of  the  details  of  legis- 
lation thus  far  attempted,  but  if  you  will  bear  with  me  I 
will  point  out  one  or  two  essential  matters.  The  legislation  of 
Oregon  to  my  mind  is  attempting  too  much.     It  expects  of  the 

electorate  a  constant  exercise   of  legislative  action  and  if  this 
expectation  should   be  met  it  would  mean  a  removal  of  the 

(206) 


No.  2]  THE  INITIATIVE  AND  REFERENDUM  \  59 

center  of  deliberation  from  the  halls  of  legislation  to  the  popu- 
lar forum.  Now  the  Oregonians  who  are  the  most  ardent 
supporters  of  this  system  always  protest  that  they  did  in  no 
sense  intend  to  discredit  the  legislature.  Mr.  U'Ren  said  it 
would  be  far  more  creditable  to  go  to  the  legislature  after  this 
reform  has  been  completely  established  than  ten  years  ago, 
because  it  would  no  longer  be  prima  facie  evidence  of  corrup- 
tion and  low  political  motives  to  be  a  member  of  that  body. 
But  the  actual  tendency  is  different.  If  there  is  to  be  a  con- 
stant exercise  of  the  legislative  function  by  the  general  elector- 
ate it  cannot  be  expected  that  the  legislature  itself  will  con- 
tinue important  enough  to  deserve  the  attention  and  coopera- 
tion of  really  able  men.  In  the  suggestion  that  all  that  is  really 
necessary  is  a  council  to  work  out  administrative  measures  to 
be  submitted  to  the  electorate,  we  have  an  explicit  admission 
of  the  tendency  to  eliminate  that  body  which  our  own  experi- 
ence and  that  of  other  countries  has  shown  to  be  of  value. 
Between  the  growing  administration  and  the  electorate,  there 
would  be  no  intermediary,  no  body  of  men  somewhat  above  the 
ordinary  political  intelligence,  somewhat  more  experienced,  to 
judge  of  measures  which  the  administration  suggests,  to  in- 
terpret them  in  a  way  to  the  electorate ;  and  at  the  same  time  to 
give  the  administration  assistance  in  getting  close  to  public 
opinion  and  the  needs  of  the  state ;  the  inevitable  result  would 
be  a  close  bureaucracy.  California  has  tried  to  encourage  the 
legislature  by  giving  it  the  Swiss  alternative,  so  that  it  may 
either  send  a  measure  directly  from  the  initiative  to  the  electors 
or  submit  at  the  same  time  an  alternative  measure  of  its  own. 
This  is  apt  to  cause  a  good  deal  of  confusion:  as  has  been 
cynically  remarked  by  the  Evening  Post,  the  electors  would 
usually  vote  for  both  measures,  and  then  that  measure  which 
carried  the  majority  would  be  declared  law ! 

Another  defect  appears  when  laws  passed  by  popular  vote 
cannot  be  repealed  except  by  a  like  vote.  We  have  already 
constitutional  law  and  legislative  law  and  we  then  should  have 
popular  law  in  addition.  Logically  any  action  of  the  legisla- 
ture which  superseded  a  part  of  the  popular  law  must  be  con- 
sidered void   by  the    courts.     The  complexity  which    is   intro- 

(207) 


l60  EFFICIENT  GOVERNMENT  [Vol.  Ill 

duced  into  our  system  through  the  fact  of  a  judicial  review 
would  be  emphasized  by  the  California  arrangement  where  you 
have  three  categories,  legislative  law,  popular  law  and  constitu- 
tional law,  one  standing  above  the  other,  one  prevailing  over  tha 
other.  This  is  unnecessary.  The  Oregon  courts  have  refused 
to  give  the  popular  law  a  higher  rank  than  the  legislative ;  the 
proposed  provision  in  Washington  is  that  popular  law  may  be 
repealed  after  two  years,  but  not  before,  by  legislative  action. 
It  seems  to  me  it  is  best  to  place  all  law  on  an  equal  footing, 
allowing  to  the  popular  law  its  prestige  as  having  been  passed  on 
by  the  electorate,  but  giving  it  no  artificial  validity,  which  only 
introduces  confusion  and  complexity  into  our  system.  While 
speaking  of  the  California  system  it  ought  to  be  said  that  the 
Californians  believe  that  the  complexity  of  their  system  will  be 
reduced,  because  hitherto  they  have  amended  their  constitution 
so  frequently  (sometimes  fifteen  or  sixteen  amendments  pend- 
ing at  the  same  time)  that  it  became  a  vast  code  of  legislative 
matter.  After  the  introduction  of  the  initiative  and  referendum, 
changes  that  are  popular  may  be  made  without  being  put  into  the 
constitution,  and  there  will  not  be  so  much  judicial  interference 
with  legislation.  That  is  their  hope,  and  yet  their  provision 
with  respect  to  giving  a  special  degree  of  validity  to  the 
popular  will  seems  to  run  counter  to  it. 

The  proposed  law  of  Wisconsin  is  based  on  the  idea  that  the 
initiative  and  referendum  is  to  be  an  agency  for  assisting  the 
legislature,  but  in  no  way  making  it  superfluous.  Accordingly 
any  measure  that  is  introduced  into  the  legislature,  whether 
passed  or  rejected,  but  only  such  measures,  may  be  referred  to 
the  electorate.  Thus  every  bill  that  goes  before  the  people  must 
have  had  the  benefit  of  being  discussed  there  and  acted  upon, 
whether  favorably  or  unfavorably.  In  this  way  it  is  intended  to 
protect  the  importance  of  the  legislature,  and  even  to  increase 
it  by  centering  there  the  public  interest.  If  in  this  connection 
we  consider  the  growth  in  importance  of  state  governments,  we 
see  how  an  opportunity  is  given  for  a  governor,  if  he  is  a  con- 
structive statesman,  to  have  his  measures  introduced  in  the  legis- 
lature, to  have  it  known  that  they  go  with  the  endorsement  of 
his  political  judgment,  and  if  they  are  defeated  in  that  body  to 
have  them  called  out  and  referred  to  the  public. 

(208) 


No.  2]  THE  INITIATIVE  AND  REFERENDUM  i6l 

It  is  not  believed  that  the  people  will  be  constantly  legislat- 
ing. That  is  where  most  of  the  opponents  of  the  system  argue 
wrongly,  one  might  almost  say  deceitfully.  The  recall  is  a 
power  to  be  used  only  very  rarely,  and  the  referendum  is,  per- 
haps, best  understood  as  giving  tne  electorate  the  right  and 
power  to  make  itself  felt  at  any  time  without  revolutionary 
action.  We  are  living  at  the  present  time  in  a  period  of  almost 
revolutionary  energy,  but  that  will  pass  away.  These  energies 
are  not  permanent;  it  is  necessary  to  count  upon  the  steady 
interest  of  the  public  in  politics,  but  of  that  we  cannot  expect 
too  much.  Our  constitutional  machinery  ought  to  be  so  ad- 
justed that  the  force  of  public  opinion  would  be  sufficient 
to  start,  stop  or  control  it.  There  ought  to  be  means  by  which 
the  public  can  obtain  a  specific  law  which  it  demands  and 
which  is  blocked  by  our  state  legislatures. 

The  initiative  and  referendum  will  introduce  clearness  and 
logical  sequence  into  our  political  action,  and  center  the  public 
interest  on  legislative  problems,  but  will  not  mean  that  every 
matter  of  legislation  will  be  laid  before  the  electorate  to  the 
wearying  of  political  energies.  The  Wisconsin  legislation  is 
an  experiment,  but  one  which  bases  itself  upon  the  premise 
that  the  legislatures  are  performing  a  function  that  cannot 
be  fulfilled  by  mere  voting,  and  that  this  function  must  be 
strengthened,  elevated  and  purified  but  not  extinguished  or 
passed  over  to  a  body  which  cannot  deliberate  as  a  legislative 
body  can.  It  is  thus  that  I  consider  the  initiative  and  refer- 
endum to  be  a  reform  in  true  harmony  with  the  great  move- 
ment which  is  passing  over  our  nation  at  the  present  time. 
There  will  be  a  liberation  of  political  energies  when  it  is  possible 
for  the  energies  at  any  time  to  make  themselves  decisive.  The 
initiative  and  referendum  will  have  a  clarifying  and  quieting 
effect,  because  as  everybody  knows,  the  people  are  essentially 
conservative.  If  they  have  the  knowledge  that  it  is  in  their 
power  to  ask  and  obtain,  it  will  be  a  safety  valve  in  the  most 
dangerous  periods  through  which  our  republic  may  have  to 
pass.  And  in  all  times  it  will  be  an  education  for  the  people, 
just  as  it  is  in  the  English  democracy,  to  feel  that  at  any  time 
they  may  have  to  vote,  and  that  any  important  measure  may 
be  brought  to  them  for  their  pronouncement. 
1   1  (209) 


THE    DIRECT   PRIMARY   VERSUS 
THE    CONVENTION' 

ALBERT   BUSHNELL    HART 
Professor  of  Government,  Harvard  University 

IT  is  with  some  hesitation  that  I  appear  this  evening  to  speak 
upon  a  subject  so  vast  and  so  imperfectly  understood.  The 
word  "  primary  "  has  not  until  recently  been  used  as  we  are 
using  it  now.  We  have  had  primary  colors  and  primary  affec- 
tions and  prime  mess  beef;  it  is  an  anomaly  that  such  a  new 
use  of  the  term  should  have  been  created,  and  a  demand  caused 
for  a  new  dictionary. 

I  feel  sensibly  the  danger  of  using  new  words,  even  the 
most  ordinary,  lest  they  might  be  misunderstood  in  their  politi- 
cal connection.  These  are  the  days,  at  least  this  is  the  week, 
when  nobody  can  use  the  word  "liar"  without  somebody 
indignantly  answering:  "  He  is  nothing  of  the  kind;  why  does 
the  ex-President  attack  the  senator  from  Pennsylvania?"  You 
can't  say  "  primary  "  without  somebody  shouting :  "  He's  not  a 
primary  force,  there  are  a  great  many  others."  I  must  say 
that  the  attention  which  is  paid  by  the  American  public  to  one 
of  its  public  men  makes  me  think  of  the  Sunday  school  into 
which  the  brisk  minister  came  and  said,  "  Now,  children,  as  I 
came  along  I  saw  a  wonderful  creature.  This  creature  was 
sitting  in  a  tree.  It  was  sitting  on  a  bough.  It  was  a  creature 
with  a  bushy  tail,  and  it  was  holding  a  nut  in  its  claws.  Now 
can  any  of  you  tell  me  what  that  wonderful  creature  was?  " 
And  there  was  only  one  child  who  could  answer  and  he  said : 
"  It  was  God."  Well,  there  is  more  than  one  man  in  this 
country,  more  than  one  candidate,  certainly  there  is  as  much 
as  a  candidate  and  a  half  and  possibly  there  are  two. 

We  are  not  speaking  to-night  of  candidates  or  politics,  but  of 
primaries,  and  in  the  discussion  between  Senator  Brackett  and 

'Address  at  the  dinner  of  the  Academy  of  Political  Science,  October  25,  191 2. 

(210) 


DIRECT  PRIMARY  VERSUS  CONVENTION  163 

myself,  I  understand  that  we  are  to  follow  the  plan  of  Irish 
"repartay"  "where  you  say  to-day  what  you  are  going  to 
think  of  to-morrow."  So  the  address  of  Senator  Brackett  will 
overset  what  is  now  being  said.  But  Senator  Brackett  and  you 
and  I  and  all  other  sensible  people  will  agree  that  we  are  sim- 
ply discussing  a  practical  question,  that  what  we  desire  is 
to  secure  the  expression  of  the  will  of  the  people  in  their  nomi- 
nations, and  then  to  secure  the  choice  of  those  who  will  carry 
out  the  will  of  the  people.  To  that  end  we  desire  to  nominate 
persons  who  really  represent  the  party,  and  to  destroy  all  that 
tends  to  interfere  with  a  genuine  expression  of  popular  will. 

For  this  discussion  I  have  singular  personal  qualifications, 
having  been  elected  by  a  state-wide  primary  in  a  state  where  I 
could  not  have  been  elected  in  any  other  way,  then  having 
served  in  the  greatest  nominating  convention  ever  held, — the 
greatest  and  perhaps  the  last — and  being  now  a  candidate  for 
office  by  designation  of  a  political  committee  of  a  party  which 
has  no  political  existence  recognized  by  the  laws  of  Massachu- 
setts. Thus  you  will  observe  that  I  have  cultivated  imparti- 
ality; whatever  may  be  the  decision  of  this  distinguished  jury, 
I  shall  be  acquitted. 

We  have  before  us  the  two  rival  systems  of  the  convention 
and  the  primary,  and  I  will  try  to  take  the  wind  out  of  the  sails 
of  the  gentleman  who  is  to  follow  by  discussing  the  advantages 
of  conventions.  The  first  one  is  that  the  United  States  has 
somehow  got  on  with  the  political  convention,  and  a  large 
number  of  distinguished  men,  lovers  of  their  kind  and  excellent 
public  servants,  have  reached  the  public  service  by  that  road. 
Then,  the  convention  is  a  means,  though  perhaps  not  the  only 
means,  of  a  common  acquaintance  and  understanding,  which  is 
of  great  significance  and  value.  In  the  next  place,  conventions 
have  frequently  reflected  the  wishes  of  the  voters,  and  the  con- 
vention is  in  harmony  with  the  representative  system  ;  nobody 
can  deny  that.  Additional  advantages  are  that  conventions 
balance  the  ticket  geographically,  a  result  impossible  to  attain 
otherwise;  that  conventions  allow  for  second  choices;  that  the 
convention  has  the  making  of  the  platform  by  tradition,  and 
thus  the  committing  of  the  party  to  a  variety  of  reforms  and 

(211) 


1 64  EFFICIENT  GOVERNMENT  [Vol.  Ill 

principles — upon  which  it  usually  proceeds  to  turn  its  back. 
Further,  there  is  nothing  that  is  so  much  fun  as  a  political  con- 
vention. It  is  more  sport  than  a  baby,  noisier  than  a  football 
game,  more  complex  than  a  woman's  club  ;  it  cheers  the  voter, 
benefits  the  newspaper  proprietor,  and  leaves  squashy  footsteps 
on  the  sands  of  time. 

Nevertheless  I  ask  you  gentlemen  before  me,  from  personal 
experience,  if  you  do  not  agree  with  me  that  there  are  serious 
disadvantages  in  political  conventions,  which  have  tended  to 
bring  them  into  disrepute.  That  disadvantage  which  appears 
most  prominent  is  the  disorder  and  turmoil  of  conventions. 
This  is  not  inherent,  but  is  due  largely  to  the  practise  of  national 
and  state  conventions  of  holding  meetings  in  enormous  halls  in 
the  presence  of  hundreds  or  thousands  of  spectators,  frequently 
put  there  to  influence  the  work  of  the  convention.  On  the  floor 
there  is  confusion,  noise,  cheering,  uproariousness.  Conven- 
tions have  of  late  grown  much  noisier,  probably  from  the  habit 
on  the  part  of  some  of  the  members  of  attending  college  ath- 
letic sports;  and  the  convention  is  not  a  place  in  which  to  learn 
good  manners  or  sobriety  of  speech. 

It  ought  to  be  said,  however,  that  the  disorder  of  conventions 
is  not  the  novelty  which  some  people  suppose  it.  In  the  Re- 
publican convention  in  i860  there  was  just  such  a  hullabaloo  as 
in  191 2.  A  "  howler"  was  employed  to  aid  the  cause  of  Abe 
Lincoln.  In  1856,  when  Fremont  was  nominated,  there  was  a 
great  uproar;  the  picture  of  the  candidate  was  shown  and  a 
salute  of  guns  fired.  There  is  always  a  possibility  of  stampeding 
a  convention,  for  the  thing  has  been  done  many  times ;  but  the 
shrewd  political  leader  takes  his  precautions  against  that  danger. 
I  must  say  from  a  brief  but  intense  experience  in  a  political 
convention  that  I  believe  that  noise  and  uproar  and  pictures 
make  about  as  much  difference  to  a  convention  as  the  rooting 
of  the  fans  makes  with  a  first-class  pitcher.  Few  conventions 
can  be  stampeded  by  the  audience. 

Another  indictment  is  the  fraud  in  which  conventions  are  so 
frequently  engaged.  That  is  not  a  subject  of  which  respectable 
people  like  the  members  of  this  academy  have  knowledge,  but 
when  you  get  inside  politics  you  discover  how  county  and  state 

(212) 


No.  2]         DIRECT  PRIMARY  VERSUS  CONVENTION  165 

and  national  conventions  are  manipulated  and  furthermore  how 
they  are  linked  together  under  the  elaborate  representative 
system.  That  system  is  the  growth  of  natural  conditions.  The 
county  convention  usually  elects  to  the  state,  and  the  state  to  the 
national  convention ;  so  if  there  is  any  taint  of  fraud  or  violence 
it  goes  all  the  way  up ;  the  state  convention  is  carried  in  scores 
of  cases  by  fraudulent  county  conventions,  and  the  national 
convention  may  be  affected  in  the  same  way. 

The  reason  why  such  fraud  and  violence  are  possible  is 
largely  that  political  leaders  have  looked  on  politics  as  a  game 
with  certain  rules  which  you  are  at  liberty  to  ignore  if  the 
umpire  is  not  looking;  and  when  a  delegation  is  stolen  the 
other  side  acquiesces,  thinking  it  will  do  the  same  thing  next 
time.  Anyone  examining  the  contests  at  Chicago  from  the 
southern  states  must  be  struck  by  the  fact  that  almost  every 
one  of  the  delegations  down  there  is  tainted  with  irregularity 
of  some  kind. 

I  say  irregularity.  We  must  never  forget  that  regularity  is  a 
political  term  with  a  special  definition.  In  politics  the  regular 
is  simply  the  man  or  committee  or  convention  which  is  re- 
cognized by  the  next  highest  authority  as  being  the  proper 
thing.  That  county  convention  is  regular  which  is  manipulated 
by  people  in  accord  with  the  state  committee ;  that  state  con- 
vention is  regular  which  is  so  recognized  by  the  national  com- 
mittee of  the  party.  There  is  no  such  thing  as  absolute  regu- 
larity, because  in  the  development  of  American  parties  they 
have  been  treated  as  private  clubs,  and  until  very  recently  there 
has  been  no  legal  ascertainment  of  what  is  regular  or  irregular. 

I  do  not  mean  to  say  that  a  considerable  portion  of  all  the 
conventions  is  stolen  or  manipulated,  that  the  wrong  people  are 
admitted  and  the  right  kept  out;  but  within  about  ten  years  in 
Massachusetts  we  have  had  two  disgraceful  state  conventions. 
In  one  a  faction  got  possession  of  the  admission  tickets  and 
gave  them  to  their  friends,  took  possession  and  nominated  the 
candidate.  The  state  courts  dealt  with  that  and  disallowed  it. 
Another  convention  was  stampeded  by  one  of  the  factions  stay- 
ing in  the  hall  all  night;  when  morning  dawned  they  had  posses- 
sion, gave  out  the  tickets,  refused  to  be  dispossessed,  and  con- 

(213) 
1  ^   • 


1 66  EFFICIENT  GOVERNMENT  [Vol.  Ill 

trolled  that  hall ;  the  main  part  of  the  party  trooped  out  to 
another  place  and  two  conventions  were  held  at  the  same  mo- 
ment. I  will  not  say  which  was  the  proper  one,  but  they 
could  not  both  have  been  the  regular  expression  of  the  party. 

In  national  conventions  there  has  been  much  less  difficulty; 
for  the  national  convention  is  under  the  limelight;  membership 
is  highly  prized,  partly  as  a  badge  of  party  honor,  partly 
because  of  the  pleasure  of  being  present,  partly  because  of  the 
glittering  badges  with  which  you  paralyze  your  neighbors  when 
you  get  home.  In  any  case  membership  is  eagerly  desired. 
There  have  been  very  few  accusations  of  foul  play  in  national 
conventions  in  comparison  with  the  state  conventions.  That 
was  why  the  country  was  so  aroused  by  the  difficulty  at  Chicago 
in  191 2.  As  a  participant  it  struck  me  that  the  real  issue  was 
not  the  fortunes  of  this  or  that  candidate,  but  a  rivalry  between 
members  of  two  sections  of  the  party,  each  asserting  that  it  had 
gone  through  a  proper  process  for  ascertaining  and  expressing 
the  opinion  of  the  voters  from  whom  it  came. 

Another  reason  why  conventions  have  been  losing  ground  is 
that  they  have  been  attacked  by  "  conventionitis."  You  know 
how  you  may  have  within  your  person  a  latent  need  for  an 
operation  for  appendicitis ;  you  go  on  for  years,  and  one  day 
you  wake  in  the  morning  very  uncomfortable,  and  off  you  go 
to  a  hospital  and  there  is  an  operation.  That  is  about  what 
has  happened  to  the  convention.  Conventionitis  has  been 
latent  all  the  time ;  but  all  of  a  sudden  there  was  a  terrible  at- 
tack and  the  whole  country  became  aware  of  it.  The  patient 
groaned  fearfully;  experts  were  called  in  and  the  operation  has 
been  performed — but  we  do  not  know  what  the  state  of  the 
patient  is  now.  There  was  a  man  in  Indiana  last  winter  who 
was  taken  to  the  hospital  with  typhoid  fever ;  next  day  paraly- 
sis set  in ;  the  day  after,  he  was  operated  on  for  appendicitis, 
and  they  said  he  was  doing  well.  Some  political  parties  seem 
to  be  going  through  such  an  experience. 

The  next  great  difficulty  is  the  bosses.  If  there  is  any  boss 
present  I  beg  to  say  there  is  nothing  personal  intended.  Out 
in  Colorado  they  had  as  speaker  in  the  legislature  a  rather  im- 
patient  man.     One   day  a  member   rose   solemnly   to  declare 

(214) 


No.  2]         DIRECT  PRIMARY  VERSUS  CONVENTION  167 

that  the  record  of  the  previous  day  was  incorrect  and  moved 
that  it  be  corrected,  and  the  speaker  answered  him  sternly: 
"  Young  man,  don't  you  cast  no  aspirations  on  the  help  in  this 
house."  I  won't  cast  no  aspirations  on  gentlemen  who  are 
carrying  on  the  politics  of  the  country.  Bossism,  so  far  as  it 
means  control  of  parties,  is  a  perfectly  reputable  pursuit,  and 
there  is  no  reason  why  a  man  should  not  make  it  a  life-work 
provided  he  plays  the  game  above  board  and  has  a  majority  be- 
hind him.  The  real  difficulty  comes  with  the  proprietary  bosses, 
men  who  are  working  in  the  dark  to  create  something  which 
shall  be  opposed  to  the  real  desire  of  the  people  whom  they 
represent.  The  boss  convention  is  intolerable  because  of  a 
sinful  secrecy  of  action ;  the  boss  .knows  what  is  going  to  hap- 
pen ;  the  voter  does  not,  and  still  less  does  the  member  of  the 
convention.  The  efficient  boss  develops  a  military  system  in 
which  a  hundred  to  twelve  hundred  delegates  elected  in  the 
ordinary  way  by  party  constituencies  or  conventions  are  con- 
fronted with  the  mystery  of  the  convention.  It  seems  incred- 
ible that  such  a  body  of  intelligent  men  should  submit  to  do  as 
one  man  tells  them  to  do ;  when  that  happens  it  is  not  a  con- 
vention, it  is  a  phonograph. 

Another  difficulty  with  the  convention  is  the  feudal  side  of 
it.  The  truth  is  we  are  always  illustrating  what  the  eugenic 
people  call  the  reversion  to  an  original  type,  always  going  back 
to  the  middle  ages  in  our  politics.  We  have  substantially  a 
series  of  feudal  systems,  in  which  you,  the  voter,  put  your 
hands  between  the  hands  of  the  district  captain ;  the  captain 
pledges  allegiance  to  the  county  chairman ;  the  county  chair- 
man accepts  the  suzerainty  of  the 'state  boss.  There  is  a  lord- 
ship and  an  over-lordship  all  the  way  up ;  you  perform  military 
service — that  is,  you  vote — and  your  over-lord  protects  you. 
There  was  in  Europe  a  century  ago,  a  breaking-up  process  called 
immediatization,  by  which  a  man  jumped  over  the  lord  and  went 
straight  to  the  king,  and  the  primary  is  a  system  by  which  the 
candidate  may  come  into  direct  communication  with  the  men 
who  are  to  elect  him. 

The  convention  system  has  broken  down  ;  it  is  sick  and  about 
to  go  to  the  hospital  because  of  the  lack  of  a  tribunal  for  settling 

(215) 


1 68  EFFICIENT  GOVERNMENT  [Vol.  Ill 

in  a  fair  manner  the  cases  of  contest.  They  have  been  settled 
sometimes  by  the  chairman,  by  the  executive  committee,  or  by 
the  standing  political  committee,  but  frequently  without  any 
reference  to  the  real  merits  of  the  case,  the  ground  of  decision 
being,  not  how  the  members  are  chosen  but  whether  they  will 
vote  for  A  or  for  B ;  that  is,  the  conventions  are  not  really 
representative.  They  give  rise  to  the  question  whether  the 
whole  constituency  shall  nominate  or  a  self-selected  part  of  the 
constituency. 

Of  course  everyone  is  aware  that  there  is  such  a  thing  as  an 
unbossed  convention;  New  York  gave  us  a  sample  in  191 2. 
Yet  people  look  with  wonder  at  the  idea  that  there  should  be  an 
unbossed  convention.  To  arrive  at  that  result  you  must  get  rid 
of  a  large  part  of  your  customary  political  machinery.  The 
children  at  school  were  one  day  asked  to  make  a  sentence 
in  which  should  be  used  the  rather  unfamiliar  word  "  disar- 
range." One  little  Italian  girl  managed  it.  She  said :  "  Li 
padre  dissa  morning  fin  de  range  notta  burn ;  he  say,  '  Damma 
dissa  range.'  "  I  put  no  words  in  the  mouths  of  persons  re- 
sponsible for  conventions  when  they  find  a  disarrangement  of 
their  system. 

The  convention  system  is  visibly  in  a  state  of  collapse,  as  was 
revealed  through  the  contests  at  Chicago.  These  contests  in 
part  turned  not  on  the  question  whether  delegates  had  proper 
credentials,  but  on  the  right  of  a  state  to  regulate  the  election  of 
delegates  to  a  national  convention.  In  the  course  of  that  dis- 
cussion it  was  discovered  that  a  considerable  number  of  dele- 
gates sat  there  through  the  workings  of  state  primary  statutes. 
I  was  one  of  those  persons,  and  hotly  resented  it  when  Sereno 
E.  Payne  declared  on  the  floor  that  any  state  law  that  was  con- 
trary to  a  rule  made  by  the  Republican  national  committee  was 
no  law.  That  raised  the  question  of  which  was  servant  and 
which  master,  convention  or  voter. 

If  conventions  do  not  work  well,  what  of  the  rival  system  of 
primaries?  Let  me  enumerate  and  admit  the  very  serious  dis- 
advantages of  the  primary  system.  It  means  frequency  of 
elections  and  a  chronic  difficulty  as  to  second  choices.  It  un- 
doubtedly facilitates    the    nomination   of   weak   men,  raises   a 

(216) 


No.  2]         DIRECT  PRIMARY  VERSUS  CONVENTION  169 

difficulty  about  the  platform,  which  usually  has  to  be  made  in 
some  new  fashion,  and  it  has  introduced  a  new  element  of 
expense  and  difficulty  and  hard  work  that  was  never  heard  of 
before.  The  legitimate  expenses  of  a  candidate  under  the 
system  of  primaries  are  considerably  greater  than  in  the  old 
system.  Governor  Deneen  spent  $200,000  this  year  in  the 
primary  election.  To  make  a  man  known  to  all  the  voters 
by  a  postal  card  costs  $12,000  in  Illinois.  Such  expenses  are 
legitimate,  but  out  of  proportion  to  the  means  of  ordinary  men; 
and  it  is  clear  that  if  the  system  is  to  be  worked  in  that  way  it 
must  break  down. 

At  last  we  reach  the  advantages  of  primaries.  Shall  I  say 
they  are  so  clear  to  an  intelligent  audience  that  they  do  not 
need  enumeration?  First  of  all,  the  system  enlarges  the  field 
of  public  service  by  increasing  the  range  of  men  who  can  have 
some  hope  of  getting  into  office ;  it  even  allows  some  cranks 
to  get  in.  We  need  men  who  have  the  complete  belief  that 
the  particular  reform  on  which  they  are  engaged  is  necessary 
to  society;  and  such  men  we  call  cranks.  It  would  do  every 
legislature  good  to  have  one  or  two  cranks.  Of  course  they 
must  not  be  so  cranky  as  to  differ  seriously  with  us !  The 
socialist,  for  instance,  is  simply  a  man  who  thinks  on  social 
questions  differently  from  the  men  in  your  club ;  and  the  cranks 
are  simply  those  who  are  more  cranky  than  their  neighbors. 

A  further  advantage  of  this  system  is  that  you  get  unbossed 
men.  You  may  recall  the  method  by  which  the  Yale  sopho- 
more achieved  "  Skull  and  Bones."  He  broke  into  their 
house  and  found  out  all  their  secrets,  whereupon  they  had  to 
elect  him.  Many  men  have  got  into  the  organization  by  show- 
ing that  the  election  could  not  be  carried  without  them.  But 
under  the  system  of  primaries  it  is  possible  for  men  to  aspire 
to  office  and  to  reach  it  without  being  dependent  on  the  good 
will  or  adoption  of  a  particular  individual.  Not  only  are  many 
more  men  candidates,  but  many  others  have  hopes;  and  the 
hopelessly  hopeful  can  by  the  primary  be  brought  to  realize 
that  they  cannot  be  nominated.  To  be  sure,  the  primary 
system  involves  numerous  elections ;  but  when  people  feel 
there  is   a  great  issue  and  a  great  man  before   them,  they  find 

(217) 


I70  EFFICIENT  GOVERNMENT  [Vol.  Ill 

no  difficulty  in  getting  out  to  vote.  That  means  that  there 
is  a  wider  chance  of  accompHshing  ends  through  the  primary. 
Futhermore,  a  primary  on  delegates  to  a  convention  involves 
the  discussion  of  a  candidate's  work  and  qualifications  before 
the  convention  meets,  if  the  convention  is  retained. 

I  think  there  is  nothing  more  hopeful  than  the  kind  of  cam- 
paign we  have  had  lately,  the  persistent  effort  to  persuade  the 
voter  by  literature,  public  meetings  and  an  appeal  to  personal 
loyalty.  In  my  experience  no  campaign,  certainly  none  since 
i860,  has  made  the  people  of  the  United  States  so  intent  on 
these  problems.     It  is  an  educative  process. 

The  primary  system  simplifies  the  electoral  machinery.  It 
strikes  at  the  places  where  the  difficulties  are  greatest.  It 
eliminates  a  great  number  of  small  conventions,  and  greatly 
diminishes  campaign  contributions  and  expenditures  of  an  un- 
licensed kind.  Election  expenses  have  seemed  to  increase,  but 
it  is  publicity  of  accounts  that  makes  it  seem  so.  The  investiga- 
tion at  Washington  shows  how  much  smaller  are  the  outlays  this 
year  than  in  any  campaign  for  twenty  years.  The  primary  sys- 
tem almost  prevents  carrying  contests  to  a  convention.  If  more 
states  had  adopted  the  primary  system,  there  would  have  been 
no  row  at  Chicago,  for  if  the  delegates  had  all  brought  certifi- 
cates of  election  from  their  state  officials,  there  could  not  have 
been  any  difficulty  in  their  taking  their  seats.  The  method 
shuts  out  dark  horses.  It  does  not  always  exclude  men  of  in- 
firm character,  but  it  is  almost  impossible  to  nominate  an 
unknown  man.  I  have  heard  of  a  man  in  Nebraska  with  no 
friends  or  following,  who  got  himself  at  the  same  election  on 
the  Republican,  Democratic  and  Socialist  tickets  and  got  2,000 
votes.     Still  2,000  is  far  from  a  majority  in  Nebraska. 

Finally,  the  great  merit  of  the  system  is  that  it  weakens  the 
boss's  power.  The  boss  is  a  condition,  not  a  theory;  he  exists 
because  the  complexity  of  modern  politics  makes  him  almost 
essential.  The  boss  is  also  the  man  who  has  reconciled  the 
executive  with  the  legislative  power.  Nevertheless  the  boss  is 
not  omnipotent;  if  you  can  alter  the  circumstances  by  which  he 
gets  illicit  power  against  the  public,  you  can  to  a  great  extent 
destroy   that  power.     The  primary  furnishes  the   best  way  of 

(218) 


No.  2]  DIRECT  PRIMARY  VERSUS  CONVENTION  171 

finding  out  whether  the  boss  is  a  boss.  Nobody  outside  of 
New  York,  of  course,  knows  who  is  the  best  candidate  for  the 
governorship  of  the  state ;  but  one  thing  is  certain,  neither  of 
the  old-party  candidates  now  in  the  field  in  this  state  would 
have  been  nominated  but  for  the  desire  to  "  pander  to  the 
better  elements  of  society." 

The  primary  makes  it  possible  for  men  to  enter  absolutely 
against  the  boss.  Governor  Johnson  in  191 1  defied  the  polit- 
ical and  railroad  machine;  but  he  could  not  have  done  it  ex- 
cept for  primary  laws.  Is  not  the  the  main  reason  for  opposing 
the  primary  system  the  fact  of  its  being  unfavorable  to  bossism? 
Otherwise  why  is  it  so  difficult  to  find  the  bosses  who  want  it? 
Do  you  think  that  such  shrewd  men  would  have  allowed  a 
device  like  the  primary  to  pass  by  them  if  they  could  have 
controlled  it?  Do  you  know  a  boss  who  works  for  this  system 
on  the  ground  that  it  makes  him  safer  in  his  power?  We  must 
not  suppose  that  the  primary  system  will  do  everything. 
There  will  be  selfish  men  and  thieves  and  demagogues  still.  A 
maker  of  patent  medicine  years  ago  made  a  fortune  by  adver- 
tising that  his  medicine  would  not  cure  "  thunder  humor,"  and 
the  apparent  honesty  of  this  exclusion  attracted  everyone's 
attention.  Sick  people  commented  on  it,  and  confident  that 
they  had  not  got  "  thunder  humor,"  felt  safe  in  buying  a  bottle 
to  cure  what  they  had  got.  So  I  will  say  that  the  primary  will 
not  cure  everything ;  perhaps  it  will  not  cure  boss-humor,  but 
it  will  infallibly  cure  some  of  our  political  evils  and  will  build 
up  a  more  nearly  democratic  community. 

(219) 


THE  ADVANTAGES  OF  THE  CONVENTION^ 


w 


EDGAR  T.  BRACKETT 
Senator  from  the  Thirtieth  Senatorial  District,  New  York 

HATEVER  I  say  here  to-night  is  said  from  the  stand- 
point of  a  countryman  and  a  republican.  I  could  not 
divorce  myself  from  those  characteristics  if  I  would, 
and  I  would  not  if  I  could.  I  make  this  statement  because  I 
want  you  to  know  the  point  of  view  from  which  I  approach  the 
subject  under  discussion.  I  hope  that  this  confession  will  not 
be  taken  as,  at  most,  more  than  presumptive  evidence  of 
criminal  instincts  on  my  part. 

At  the  same  time  I  assure  you  that  it  is  as  nearly  as  possible 
a  matter  of  indifference  to  me  personally  whether  the  system  of 
direct  primaries  is  to  be  put  or  kept  in  force  or  not.  I  do  not 
much  care  who  formulates,  or  what  are,  the  rules  of  the  political 
game,  providing  only  they  apply  alike  to  all  of  us.  Then,  too, 
I  have  come  to  that  time  when  I  may,  and  perhaps  love  to,  liken 
myself  to  the  weather-beaten  Palinurus  who  has  furled  the  sail 
and  put  aside  the  oar,  and  no  longer  feels  any  personal  interest 
in  the  rules  governing  navigation. 

This  matter  of  direct  primaries,  or  the  reverse,  is  only  a 
question  of  methods,  a  matter  of  difference  as  to  how  we  shall 
take  one  of  the  steps  in  reaching  a  proper  conduct  of  the  affairs 
of  the  body  politic.  The  direct  primary  never  yet  built  a  hos- 
pital to  care  for  the  wards  of  the  state ;  never  yet  improved  our 
common-school  system ;  never  helped  solve  the  question  of  the 
congestion  of  population  in  cities ;  never  assisted  to  prevent  the 
spread  of  contagious  disease  among  the  people ;  never  yet 
itself,  as  an  end,  was  of  the  slightest  consequence.  It  is  a  tool 
for  the  hand  of  the  worker,  and  whether  it  fits  his  hand  and 
best  does  his  work,  must  be  evidenced,  not  by  the  tool  itself, 
but  by  the  character  of  the  finished  work  it  does. 

It  is  well,  at  the  outset,  to  know  with  reasonable  accuracy  the 

'  Address  at  the  dinner  of  the  Academy  of  Political  Science,  October  26,  191 2. 

(220) 


THE  ADVANTAGES  OF  THE  CONVENTION 


173 


terms  of  the  question  we  are  discussing,  It  would  be  unfortu- 
nate that  we  should  be  rent  in  twain  over  the  question,  only  to 
discover  afterward  that  the  differences  were  the  outcome  of  a 
misunderstanding.  Oliver  Wendell  Holmes,  in  one  of  that 
Breakfast  Table  series  that  delighted  the  students  of  forty  years 
ago,  tells  of  a  religious  quarrel  resulting  entirely  from  a  differ- 
ence of  definition.  Let  us  be  sure  that  we  are  not  falling  into 
any  like  dilemma.  If  this  system  of  conventions,  a  system  that 
has  given  to  the  country  and  to  the  world  the  records  from 
Lincoln  to  Taft,  of  the  state  from  Seward  to  Hughes — if  this 
system  is  to  be  put  on  trial  for  its  life,  with  premonitory  warn- 
ings of  summary  conviction  and  execution,  it  is  at  least  right 
and  decent  to  have  the  indictment  against  it  clearly  read  and 
its  terms  understood. 

Exactly  what  do  those  advocating  direct  primaries  mean 
when  they  make  their  demand  for  a  change  from  the  conven- 
tion system,  that  has  served  us  so  well  for  a  half-century?  Do 
they  want  only  some  system  by  which  electors,  now  deprived  of 
their  political  privileges,  are  to  have  them  restored?  If  so, 
some  of  us,  who  are  now  opposed,  will  be  found  on  that  side, 
once  we  are  convinced  that  any  one  is  now  thus  deprived  of 
political  privileges,  and  that  this  plan  will  restore  them. 

But  I  take  it,  although  I  do  not  think  that  all  the  pros  are 
united  in  it,  that  what  is  generally  wanted  when  direct  primaries 
are  favored,  is  an  abolition  of  physical  getting  together  in 
caucus  and  convention,  and  an  election  within  the  party,  sur- 
rounded by  all  the  safeguards  of  an  election  between  parties, 
where  the  elector  may  go,  and  without  discussion,  without 
meeting  any  one  except  the  officials  who  are  in  charge,,  may 
there  cast  his  ballot  for  his  choice.  If  anything  more  than  an 
election  within  the  party  is  intended,  if  it  is  desired  that  mem- 
bers of  one  party  may  go  into  the  primaries  of  another  and 
there  vote  on  the  nominations  of  such  other  party,  I  refuse 
to  discuss  any  such  scheme  as  preposterous — as  almost  in- 
famous. No  plan  is  honest  that  permits  a  Democrat  to  par- 
ticipate in  a  Republican  caucus,  whose  nominee  he  has  no  in- 
tention of  supporting,  or  the  reverse.  But,  assuming  that  I 
am  right  in  diagnosing  the  demand  as  one  for  an   intra-party 

(221) 


174  EFFICIENT  GOVERNMENT  [Vr.L.  Ill 

selection  of  candidates,  we  have  a  right  to  know  just  how  some 
of  you  think  this  will  better  present  conditions. 

And,  in  asking  this,  those  for  whom  I  speak  are  not  satisfied 
with  the  statement  that  the  proposed  scheme  will  down  the 
bosses.  This  is  not  argument;  it  is  mere  assertion  and  pres- 
ently runs  to  mere  rant,  and  it  is  not  satisfying.  How  will  it 
down  the  bosses?  Some  of  us  have  been  engaged  for  some 
years  in  an  obscure,  small  way,  in  seeking  that  very  result, — I 
might  add  seeking  it  when  a  little  help  from  some  of  those  now 
vociferous  in  their  denunciations  of  the  bosses  would  have  been 
grateful  to  us,  and  potent  in  result,  and  when  it  was  not  given. 
But  that  is  detail. 

It  is  said,  however,  that  the  change  will  down  the  bosses. 
Broad  across  one  of  the  letters  I  received  on  the  subject  was 
the  flaming  slogan,  "  Direct  nominations  the  cure  for  bosses." 
Oh,  if  it  only  were  !  I  believe  that  I  would  order  my  ascension 
robe.  If  we  could  but  believe  that  the  adoption  of  this  doc- 
trine would  really  do  the  business  and  down  the  bosses — and 
keep  any  others  from  taking  their  places — if  it  were  only  true, 
I,  for  one — not  one,  Saul-like,  suddenly  converted,  but  with  the 
conviction  of  years  that  the  boss  system  is  an  unmitigated 
curse, — and  those  for  whom  I  speak,  would  run  like  a  bride- 
groom to  his  chamber  to  seize  that  boon,  waiving  in  its  favor 
everything  not  deemed  essential  to  our  system  of  government. 
But  reflection  and  observation  have  convinced  me  that  while 
direct  primaries  may  change  the  personnel,  they  will  leave  the 
system  of  bossism  more  strongly  intrenched  in  power  than  ever. 

Where  do  you  spell  out  the  relief  you  claim,  in  any  place 
where  it  has  been  tried?  Do  you  find  Wisconsin  emancipated 
from  bossism  under  the  rule  of  La  Follette?  Is  Kansas  less 
boss-ridden  under  Bristow  and  Murdock  than  it  was  under 
Ingalls  and  Plumb?  Is  Iowa  freer  in  its  political  action 
between  the  knees  of  Cummins  and  his  cohorts  than  it  was 
under  Allison  and  Shaw? 

The  only  other  thing  I  have  heard  urged  in  favor  of  the 
change  is  that  it  will  result  in  a  wider  participation  by  the 
people  in  the  selection  of  candidates,  will  insure  a  more  general 
participation  by  the  people  in  matters  political. 

(222) 


No.  2]        THE  ADVANTAGES  OF  THE  CONVENTION  175 

I  confess  I  can  see  no  such  prospective  result.  The  problem 
for  a  decade  has  been  to  keep  the  people  interested  enough  so 
that  they  will  register  and  vote,  and  the  cry  has  been  that  they 
have  too  much  politics  and  will  not  attend.  And  so  we  have 
abolished  spring  town  meetings  and  have  done  everything 
possible  to  render  it  easy  for  one  to  exercise  the  electoral 
franchise.  How  then  the  addition  of  another  election  day  to 
the  ones  we  already  have  will  result  in  calling  out  a  more  gen- 
eral attendance  and  participation,  it  is  difficult  for  the  ordinary 
mind  to  comprehend.  You  do  not  satisfy  the  man  who  is  com- 
plaining of  overwork  by  doubling  his  hours  of  labor,  even  if 
you  couple  it  with  the  suggestion  that  he  will  take  more  interest 
in  his  work. 

But  some  one  says  that  some  of  the  great  states  in  the 
Middle  West  and  the  Northwest  have  legislated  for  direct 
primaries,  and  it  is  safe  for  the  Empire  State  to  follow.  Let 
me  recall  a  little  of  not  very  ancient  history  to  you.  I  do  not 
stand  here  unappreciative  of  the  intelligence  of  the  people  of 
those  states,  I  make  no  criticism  of  their  efforts  nor  of  their 
conception  of  that  wherein  they  think  they  find  their  greatest 
good.  If  nothing  else,  a  recollection  of  the  years  during  which 
I  lived  among  them  and  loved  them,  was  one  of  them,  would 
close  my  mouth  to  any  harshness  of  comment  upon  any  action 
of  theirs,  even  if  I  believed  that,  like  the  men  of  Athens,  they 
are  continually  going  about  seeking  some  new  thing.  But, 
when  you  ask  us  to  accept  this  novelty  into  our  system,  be- 
cause of  their  action,  I  recall,  as  well  within  my  personal  recol- 
lection, that  by  the  same  sign  we  should  have  accepted  their 
delusion  of  fiat  money  with  all  its  crazy  attachments  and  con- 
sequences, that  a  little  later  came  the  vagary  of  the  free  coinage 
of  silver  at  the  ratio  of  sixteen  to  one.  I  recall,  too,  that  in  some 
of  the  states  having  direct  primaries,  they  have  also  the  refer- 
endum and  recall,  and  that  wherever  they  have  any  one  of  these 
methods,  they  mean  to  have  them  all.  If  to-day  you  read  into 
your  party  faith  this  doctrine  of  direct  primaries,  and  it  is  fol- 
lowed by  legislation,  I  warn  you  to  prepare  for  both  the  refer- 
endum and  the  recall,  for  they  will  follow  as  surely  as  night 
follows  day.     Do  not  ask  us  to  believe  in  this  new  faith,  because 

(223) 


176  EFFICIENT  GOVERNMENT  [Vol.  Ill 

it  has  been  adopted  by  Iowa  and  Kansas,  by  Wisconsin  and 
Oregon.  We  must  measure  by  our  own  yardstick  and  accept 
or  reject  by  what  is  shown  by  it. 

Is  the  voter  under  the  system  of  caucus  and  convention  stifled 
in  his  right  to  make  known  his  wants?  If  there  is  any  one 
here  from  Rensselaer  County  let  me  inquire  of  him  if  he  thinks 
so.  I  choose  to  interrogate  someone  from  that  county  because, 
being  a  next-door  neighbor,  I  know  something  of  what  a  nice 
little,  tight  little  machine  they  have  had  there  for  a  generation. 
As  we  used  to  describe  our  fences  out  on  the  prairies,  it  was 
deemed  horse-high,  bull-strong  and  hog-tight,  and  yet  but  a 
little  time  since  it  was  beaten  to  a  peanut  in  the  primaries  by 
no  machine  at  all. 

How  was  it  with  my  other  neighbor  on  the  south,  Schenectady, 
two  years  ago?  That  machine,  with  its  captains  of  tens  and  its 
captains  of  hundreds,  a  machine  strengthened  and  nourished  by 
the  canal,  advised  and  helped  by  my  friend  Barnes,  that  behe- 
moth of  organizers,  in  the  same  congressional  district  with  it, 
was  pounded  into  a  pulp  over  night  by  men  whom  the  machine 
deemed  political  nobodies  and  who,  twenty-four  hours  before 
the  convention,  had  not  a  semblance  of  a  machine,  not  a  thought 
of  organization.  Do  you  say  that  Schenectady  needs  direct 
primaries,  to  be  properly  represented  in  convention  when  you 
have  that  object-lesson  before  you?  As  I  recall  these  inci- 
dents, do  you  tell  me  that  caucuses  and  conventions  are  not 
responsive  to  public  sentiment? 

I  want  to  stand  for  the  proposition  that  never  yet  has  the 
wisdom  of  man  devised  a  scheme  for  ascertaining  the  will  of  a 
free  people  so  good  as  that  of  caucus  and  convention.  The 
opportunity  to  come  together,  whether  in  the  little  caucus  in 
the  barn  back  in  the  alley,  or  in  the  large  convention,  to  look 
each  other  level  in  the  eyes,  to  tell,  each  to  the  other,  the 
reasons  actuating  one,  and  to  press  one's  views  upon  his 
fellow  citizens,  this  is  a  privilege  which,  if  awake  to  their  true 
interests,  the  people  will  never  consent  to  surrender.  It  is  a 
method  ingrained  and  bound  up  in  the  conduct  of  every  other 
business  involving  the  concurrence  of  different  individuals.  No 
board  of  directors  of  any  corporation  can  legally  act  without  a 

(224) 


No.  2]        THE  ADVANTAGES  OF  THE  CONVENTION  177 

majority  coming  together.  Separate  concurrence  by  each 
director  individually  sending  in  his  vote  in  writing  reaches  no 
legal  action.  And  why?  Because  each  member  has  the  right 
to  try  to  impress  his  views  upon  his  fellows,  and  unless  and 
until  he  has  the  opportunity  to  exercise  that  right,  no  result 
may  be  reached.  Suppose  that  a  jury,  after  hearing  the  evi- 
dence and  the  argum.ents  of  counsel,  should  separate,  each  man 
going  to  his  own  room  and  sending  in  his  vote  to  the  clerk — 
what  sort  of  verdict  would  they  reach  in  that  way? 

The  overruling  power  has  constructed  us  on  certain  lines. 
One  characteristic  of  humanity  is  that  the  attrition  of  mind  with 
mind  will  promote  harmony  and  reach  a  satisfactory  result.  It 
is  so  in  matters  political  as  in  any  other  activity.  And  while 
it  is  so,  you  never  can  get  a  better  system  than  one  that  lets 
this  attrition  have  its  full  course  and  result. 

Is  there  any  great  religious  body  in  the  world  that  does  not 
have  its  gathering?  The  Methodists  come  together  every  year 
in  district  conferences,  and  every  four  years  in  a  general  con- 
ference, country-wide  in  its  sweep.  The  Baptists  have  their 
yearly  meetings,  the  Presbyterians  each  year  their  general 
assembly.  Rome  has  her  consistories  and  her  gatherings — and 
all  because  the  wisdom  of  the  ages  has  demonstrated  that  this 
is  the  truest  method  of  ascertaining  the  wants  of  the  members 
constituting  the  organization,  and  of  conducting  its  business. 
There  is  scarcely  a  profession  or  a  class  of  business  that  does 
not  meet  for  conference.  Shall  we  try  to  place  the  conduct  of 
the  business  of  a  great  party  in  a  class  by  itself? 

But,  says  Professor  Hart,  the  convention  is  sick.  I  shall  not 
deny  that  imperfections  exist  in  the  system.  And  I  would 
medicine  them  powerfully,  but  the  measure  you  propose  is  not 
the  true  remedy  to  select  from  your  political  alexipharmics,  to 
meet  the  case. 

The  greatest  evil  in  our  conventions,  state  and  national,  has 
been  the  adoption  of  rules  cutting  off  debate.  Where  you 
have  free  debate,  you  have  begun  the  extinction  of  the  boss. 
A  convention  where  full  discussion  is,  or  may  be  had,  is  almost 
of  necessity  an  unbossed  convention.  It  may  be  that  a  candi- 
date or  a  measure  can  be  bossed  through  the  convention,  but 
^  2  ("5) 


178  EFFICIENT  GOVERNMENT  [Vol.  Ill 

the  light  there  let  in  by  a  free  discussion,  renders  later  success 
so  doubtful  that  such  bossing  will  not  be  risked. 

Given  a  convention  of  a  hundred  members,  no  boss  on  earth 
can  carry  it  against  fifty-one  of  such  members,  if  they  have 
serious  wishes  on  the  subject.  If  an  elector  has  no  serious 
notions  on  the  subject,  nothing  will  protect  him.  And,  after 
all,  I  am  not  sure  but  that  it  all  comes  down  to  having  serious 
notions  and  being  willing  to  fight  for  them.  There  is  no 
method  of  procedure  that  will  make  a  lion  into  a  sheep,  or  a 
sheep  into  a  lion.  And  I  want  to  lay  it  down  as  a  postulate, 
that  nobody  is  ever  really  bossed  politically,  who,  way  down  in 
his  heart  (whatever  he  may  say  about  it)  is  not  willing  to  be 
bossed. 

But  it  is  said  finally  that  the  people  want  direct  primaries  and 
those  opposed  may  as  well  yield,  since  opposition  is  useless. 
There  are  two  ways  of  treating  an  agitation  for  some  proposition 
you  believe  wrong.  One  is  to  yield  to  it,  no  matter  how  wrong; 
the  other  to  argue  it  out  and  convince  the  people  that  it  is 
wrong,  or  yourself  be  convinced.  You  cannot  shirk  the  re- 
sponsibility by  saying  what  someone  else  wants.  The  one  test 
for  you  is,  is  it  right?  And  until  this  question  is  settled  right, 
it  is  not  settled  at  all,  and,  in  its  settling,  it  is  your  duty  not  to 
consider  any  chances  of  successs  or  failure. 

Better,  like  Hector,  on  the  field  to  die, 
Than,  like  the  perfumed  Paris,  turn  and  fly. 

It  isn't  the  fact  that  you're  licked  that  counts, — but  how  did 
you  fight,  and  why? 

I  long  ago  reached  the  conclusion  that  whenever  a  majority 
of  the  people  want  a  change  that  is  within  the  lines  of  the  con- 
stitution, they  are  entitled  to  have  it.  The  minority  must 
either  accept  it,  or  get  out.  But  that  fact  does  not  lessen  your 
duty  or  mine  to  oppose  any  innovation  we  think  wrong,  until  it 
has  been  adopted — to  prevent  the  change  if  we  can.  The 
trouble  with  the  interpretation  of  the  people's  rights  in  these 
strenuous  times  is  that  to  the  undoubted  and  indubitable  right 
of  the  majority  to  have  what  they  want,  there  is  attempted  to 

(226) 


No.  2]        THE  ADVANTAGES  OF  THE  CONVENTION 


179 


be  grafted  the  doctrine  that  they  have  the  right  to  have  it  the 
first  fifteen  minutes  they  think  of  it.  No  such  right  as  that, 
constitutional  or  other,  belongs  to  any  one.  It  is  no  denial  of 
constitutional  government,  it  is  no  denial  of  the  right  of  the 
majority  to  rule,  to  insist  upon  a  reasonable  time  for  reflection 
before  changes  are  made.  To  the  gospel  of  strenuousness 
there  must  be  added  the  doctrine  of  thoughtfulness,  or  we  have 
set  sail  on  a  dangerous  sea. 

Mr.  Chairman,  I  believe  in  representative  government;  with 
my  whole  being  I  believe  in  it.  I  believe  in  it  for  government. 
I  believe  in  it  for  party.  I  believe  in  it  as  giving  the  largest 
measure  of  individual  participation,  with  the  surest  result  of 
deliberation  and  reflection.  And  I  want  to  say  to  you  that  the 
fathers  who,  in  their  wisdom,  established  representative  govern- 
ment in  this  land,  did  not  do  it  from  any  lack  of  knowledge  of 
the  workings  and  of  the  exact  value  of  a  pure  democracy. 
When  they  came  together  for  the  purpose  of  framing  a  govern- 
ment which  would  protect  them  and  their  descendants,  as  they 
hoped  and  prayed,  to  the  latest  generation,  they  did  not  select 
the  representative  forrti  from  all  the  forms  then  existing  or 
theretofore  existing,  because  they  were  ignorant  of  any  of  the 
virtues  or  merits  of  an  unmixed  democracy.  They  had  studied 
the  democracy  of  Greece,  and  knew  its  history.  They  remem- 
bered its  treatment  of  Socrates;  they  did  not  forget  the  history 
of  Aristides.  They  selected  representative  government  because 
they  believed,  not  that  it  gave  the  people  the  widest  measure 
of  direct  and  immediate  influence  upon  the  government  at 
every  moment  of  time,  but  because  they  believed  that  it  as- 
sured that  balance  in  government,  that  thoughtfulness  in  its 
conduct,  without  which  it  would  not  be  worthy  of  the  name,  or 
survive  the  first  shock  of  the  storm.  They  believed,  in  doing 
this,  they  had  so  combined  the  right  of  every  individual  to 
be  represented  in  the  government,  that  it  gave  to  every  one 
a  voice  and  an  influence,  but  that  at  the  same  time  it  prevented 
the  government  from  the  shock  of  yielding  to  every  sudden 
craze  that  should  sweep  over  the  people.  And  so  they  studied 
Magna  Charta ;  they  studied  the  Petition  of  Rights;  they 
studied  the  Bill  of  Rights;   they  studied  the  principles  of  the 

(227) 


l8o  EFFICIENT  GOVERNMENT 

common  law;  and  in  making  their  framework,  they  omitted 
not  one  of  them  that  made  for  enduring  liberty.  The  result 
was  what  we  have,  and  what  I  believe  and  what  the  broadening 
experience  and  study  of  the  years  makes  me  believe  more  and 
more,  was  the  wisest  and  best  solution  of  governmental  questions 
that  ever  mortal  brain  gave  out.  And,  having  done  it,  having 
established  the  form  of  government  in  which  they  meant  care- 
fully to  preserve  individual  rights  and,  at  the  same  time,  to  give 
that  stability  to  government  which  they  believed  and  I  believe 
necessary,  they  "  lived  out  their  lease  of  life,  and  paid  their 
debt  to  time  and  mortal  custom,"  in  the  confident  conviction 
that  their  work  was  wise  and  that  they  had  succeeded  where  all 
others  had  failed. 

The  burden  rests  upon  us — upon  you  and  me,  not  as  a  gen- 
eral, far-off  proposition,  but  here  and  now,  not  alone  in  the 
question  we  are  here  discussing,  but  in  all  the  successive  prob- 
lems in  government  that  come  to  us,  to  see  to  it  that  we  neither 
do,  nor  without  protest  permit  to  be  done  anything  that  will 
diminish  our  heritage. 

We  must  not  be  reactionary,  but  we  must  see  to  it  that,  no 
matter  how  rapid  the  progress,  it  shall  be  along  lines  that  the 
experience  of  the  past  pronounces  good. 

(228) 


STATEMENTS  ON  DIRECT  PRIMARIES^ 

Job  E.  Hedges,  Candidate  of  the  Republican  party  for  gov- 
ernor of  New  York  : 

In  the  canvass  of  the  state  which  preceded  my  nomination 
for  governor  at  Saratoga,  I  visited  nearly  every  section  of  New 
York,  appealing  directly  to  the  voters  without  previously  seek- 
ing the  sanction  of  anyone.  My  belief  was,  and  still  is,  that 
the  voters  are  entitled  to  such  a  procedure.  To  have  done 
otherwise  and  to  have  relied  upon  influence  which  entails 
rewards,  was  to  have  abandoned  the  right  of  free  speech  and 
free  conduct.  Belief  in  the  people  and  in  the  direct  primary, 
so-called,  is  shown  in  practise  and  not  in  rhetorical  expression. 

The  announcement  of  my  candidacy  stated : 

If  elected  governor  I  shall  consider  it  a  binding  obligation  to  stimulate 
popular  interest  in  public  questions,  and  to  endeavor  to  provide  there- 
for, by  law,  means  of  expression,  simple  and  direct.  Whenever  new 
conditions  shall  arise  requiring  statutory  provision,  enactments  of  the 
legislature  passed  in  expression  of  the  popular  will  and  making  govern- 
ment by  the  people  real  and  not  a  fiction  will  meet  executive  approval. 

That  was  my  pledge  then  and  is  my  pledge  now. 

The  successful  candidate  for  governor  must  command  public 
confidence  regardless  of  party  affiliations.  People  must  believe 
in  his  character,  constructive  ability  and  unqualified  independ- 
ence. The  four  most  distinctive  issues  in  the  state  campaign 
are :  Personal  obligation  and  individual  responsibility  in  all 
social  and  political  matters ;  honest,  economical  and  efficient 
administration ;  the  attempted  solution  of  the  high  cost  of  liv- 
ing and  a  more  practicable  working  out  of  the  ends  of  social 
justice. 

Within  the  category  of  the  first  clause  falls  the  direct  primary. 
With  regard  to  this  issue  as  with  respect  to  the  whole  subject 
of  primary  and  general  elections,  I  tried  to  sum  up  the  whole 

'  Read  at  the  dinner  of  the  Academy  of  Political  Science,  October  25,  1912. 

(229) 

1  2    • 


1 82  EFFICIENT  GOVERNMENT  [Vol.  Ill 

subject  in  a  speech  at  Madison  Lake  in  July  before  an  assemb- 
lage of  farmers,  and  specifically  with  relation  to  the  Ferris- 
Blauvelt  primary  law  and  the  Levy  election  law. 

If  I  am  elected  Governor  I  will  urge  an  immediate  repeal  of 
the  Ferris-Blauvelt  primary  law.  It  is  involved,  cumbersome, 
burdensome  to  tax  payers,  full  of  chicanery  and  obviously  in- 
tended to  sicken  people  of  the  direct  primary  idea.  As  a  sub- 
stitute I  should  recommend  the  enactment  of  a  law  which  would 
permit  the  voter  to  express  at  the  primary  his  preference  as  to 
nominations  and  party  control  by  the  simplest  and  most  direct 
means,  leaving,  until  the  experiment  can  be  worked  out  to  a 
practicable  conclusion,  the  convention  plan  as  to  governor  and 
state  offices.  I  should  veto  any  act  which  made  of  either 
primary  or  general  election  ballot  a  puzzle.  The  ballot  should 
be  so  simple  that  every  voter  could  comprehend  it.  I  should 
not  favor  any  act  which  placed  insuperable  obstacles  in  the  way 
of  independent  voting.  As  a  Republican  partisan  I  am  abso- 
lutely and  unqualifiedly  in  favor  of  a  primary  and  an  election 
law  in  consonance  with  the  unmistakable  meaning  of  the  con- 
stitution. Such  an  act  would  not  only  be  a  recognition  of  the 
inalienable  right  of  citizenship,  but  also,  from  my  point  of  view, 
the  very  best  policy  in  politics.  I  should  endeavor,  however, 
to  make  the  people  understand  that  no  primary  law  is  or  can 
be  of  itself  a  panacea.  At  best  it  can  be  only  a  means  to  an 
end  and  an  instrumentality  of  correction.  No  primary  act  can 
be  effective  to  a  greater  degree  than  the  willingness  of  the 
people  to  advantage  themselves  of  the  opportunity  to  express 
their  preference.  Further  than  this,  a  primary  act  is  useful 
only  as  an  instrumentality  through  which  the  people  can  readily 
punish  their  political  leaders  when  those  leaders  disregard  their 
obligation  to  their  party  and  the  public. 

I  should  veto  any  act  which,  like  the  Wisconsin  law,  seems, 
as  shown  in  the  Stephenson  senatorial  investigation,  to  handicap 
ability  and  conviction  and  to  put  the  ambitious  rich  man  and 
the  ambitious  poor  man  on  an  unequal  basis.  The  limitation 
of  the  amount  of  campaign  expenditures,  however,  is  not  so 
important  as  the  precise  definition,  in  a  corrupt  practises  act, 
of  the  purposes  for  which  money  can  and  cannot  be  expended ; 

(230) 


No.  2]  STATEMENTS  ON  DIRECT  PRIMARIES  183 

and  in  conjunction  with  that,  a  periodic  pubHshed  statement  of 
contributions  and  expenses. 

As  governor  I  should  feel  it  my  duty  to  veto  any  act  which 
would  facilitate  vote-trading  between  the  parties,  as  under  some 
western  laws,  under  which  men  may  connive  at  weak  and  unfit 
nominations  in  order  to  bring  about  the  election  of  others  in 
the  service  of  some  special  interest,  or  may  conspire  in  defeat- 
ing the  nomination  of  a  strong  man  and  in  favor  of  a  weak  man 
who  could  be  more  easily  beaten  at  the  polls.  These  I  regard 
as  the  great  defects  in  most  of  the  primary  acts  either  proposed 
or  now  upon  the  statute  books. 

As  governor,  I  should  urge  the  immediate  repeal  of  the  Levy 
election  law.  It  is  inequitable,  burdensome  to  taxpayers  and 
obviously  intended  to  defeat  that  free  and  independent  expres- 
sion of  the  popular  will  which  is  the  clear  and  unmistakable 
intent  of  both  state  and  national  constitutions.  In  place  of  the 
Levy  law  I  should  urge  the  enactment  of  a  statute  which 
would,  in  the  first  place,  prevent  illegal  voting  so  far  as  it  is 
possible  so  to  do,  and  in  the  second  place,  give  facility  under 
proper  limitations  to  independent  voting.  I  should  conceive  it 
my  duty  as  governor  to  stimulate  public  interest  in  the  primary 
and  general  elections,  and  to  safeguard  both  through  effective 
statutes.  The  most  important  end  to  attain,  to  my  mind,  is  the 
formulation  and  enactment  of  a  corrupt  practises  act  which 
shall  make  no  discrimination  between  primary  and  general 
elections,  but  which,  on  the  contrary,  shall  amply  safeguard 
both,  through  the  following  means,  (which  I  advocated  in  an 
address  in  June)  and  which  were  evolved  out  of  my  experience 
as  deputy  attorney  general  in  prosecution  of  election  frauds  in 
New  York  city : 

There  should  and  could  be,  as  a  matter  of  law,  provision  made  whereby 
the  burden  of  proof  of  illegal  voting  either  at  primary  or  election  day 
should  be  shifted  so  that  in  prosecuting  offenders  prosecuting  officers 
or  complaining  citizens  might  not  be  compelled  to  bear  the  entire 
burden  of  proof  and  establish  beyond  all  question  of  doubt  that  a  man 
is  not  entitled  to  vote.  Of  course,  in  criminal  procedure  the  burden 
of  proof  is  on  the  prosecutor,  and  the  man  charged  with  crime  is 
entitled  to  the  benefit  of  the  doubt  and  the  presumption  of  innocence. 

(231) 


1 84  EFFICIENT  GOVERNMENT  [Vol.111 

This  rule  cannot  be  abrogated  in  the  prosecution  of  political  criminals 
more  than  of  others.  But  in  getting  back  to  first  principles,  you  can 
lay  the  burden  of  demonstrating  a  right  to  vote  upon  the  enrolled  or 
registered  voter  so  that  he  must  establish  by  his  own  affidavit  and 
proof  if  necessary,  so  affirmatively  and  clearly  his  legal  right  to  vote 
that  when  the  prosecution  comes  it  is  made  easier  for  those  who  are 
seeking  to  use  the  law  to  protect  the  suffrage  to  secure  conviction. 

No  man  can  consistently  object  to  meeting  such  requirements 
and  proving  his  right  to  vote  at  the  primary  or  general  election, 
when  not  to  do  so  gives  opportunity  to  the  evil-minded  either 
to  vote  when  having  no  right  so  to  do,  or  to  vote  more  than 
once.  To  do  either  of  the  latter  is  to  rob  some  one  of  his  right 
of  franchise.  To  rob  another  of  the  right  of  franchise  destroys 
the  most  sacred  right  of  citizenship,  prevents  majority  rule  and 
is  the  most  dastardly  crime  against  republican  institutions.  Let 
me  say  here  that  the  constitutional  institution  of  the  short 
ballot  is  to  my  mind  the  fundamental  prerequisite  to  the  insti- 
tution of  a  just  and  comprehensive  direct  primary  statute. 

With  relation  to  the  operation  of  a  direct  primaries  act  let 
me  say  that  the  handicap  must  in  any  primary  or  general  elec- 
tion rest  upon  the  unorganized  sentiment.  Order  and  organi- 
zation are  the  first  laws  of  the  universe.  Organization  is  the 
first  law  of  society.  The  army  is  effective  only  to  the  degree 
in  which  its  individuals  act  as  a  unit,  and  only  up  to  the  point 
where  individuality  and  individual  initiative  are  absorbed  in  the 
personality  and  initiative  of  a  single  individual  or  a  number  of 
individuals.     So  it  is  must  be  with  partisan  political  organizations. 

To  my  mind  a  machine  is  generically  an  organization  that 
has  become  enervated  through  inbreeding,  resulting  in  crass 
selfishness  and  despotism.  As  a  drilling  organization  a 
machine,  up  to  a  certain  fixed  point,  is  a  delight  to  the  mind ; 
as  a  potential  fighting  organization  a  machine  becomes  impotent 
the  moment  its  members  lose  their  individuality  and  spirit  of 
initiative. 

You  cannot  legislate  into  the  heart  of  any  citizen  a  sense  of 
civic  duty.  We  have  not  as  yet  brought  ourselves  to  the  point 
where  we  believe  it  necessary  to  compel  the  citizen  to  partici- 
pate in  those  activities  which  pertain  directly  to  him  and  to  his 

(232) 


No.  2]  STATEMENTS  ON  DIRECT  PRIMARIES  185 

own  personal  welfare  and  that  of  his  neighbors.  It  is  not  pos- 
sible with  any  kind  of  direct  primary,  I  do  not  care  what  its 
terms  and  provisions  may  be,  to  compel  the  people  to  recognize 
and  understand  the  fact  that  the  primary  is  the  very  source  and 
wellspring  of  good  or  bad  citizenship  and  that,  therefore,  they 
are  worthy  of  citizenship  only  to  the  extent  to  which  they  indi- 
vidually actively  participate  in  the  choosing  of  their  candidates 
and  nominees.  No  primary  act  has  yet  been  devised,  and 
maybe  one  cannot  be  in  our  day,  that  will  bring  to  the  polls  on 
primary  day  the  same  number  of  men  who  vote  on  the  day  of 
general  election,  for  the  reason  that  all  the  voters  have  not  yet 
accepted  understandingly  the  fact  that  the  primary  is  fully  as 
important  as  the  general  election,  if  not  even  more  important. 

What  a  practicable,  fair  and  proper  direct  primary  law  can 
do  when  such  a  law  is  formulated  and  placed  on  the  statute 
books  is  to  afford  to  the  people  at  a  time  of  emergency  an 
instrumentality  through  which  they  can  directly  and  easily 
apply  a  remedy  for  mismanagement  and  malfeasance.  There- 
fore it  is  not  to  be  wondered  at  and  should  not  have  been 
regarded  as  indicative  of  inherent  weakness  that  the  president- 
ial primaries  were  participated  in  by  a  much  smaller  number  of 
persons  than  ordinarily  vote  at  a  presidential  election.  It  will 
be  only  when  the  voting  public  regards  its  civic  duty  in  proper 
perspective  that  the  primaries  will  reach,  so  far  as  the  number 
of  votes  cast  is  concerned,  the  importance  of  a  general  election. 

I  believe  in  the  simplest  and  most  direct  means  of  public  ex- 
pression. I  do  not  believe  that  a  primary  or  election  law 
should  make  of  a  ballot  a  preposterous  puzzle.  It  should  be 
so  simple  that  the  most  ingenuous  and  simple  mind  could  use 
it  understandingly.  I  do  not  believe  intended  obstacles  should 
stand  in  the  way  of  independent  voting.  On  the  conti.ury,  a 
law  which  practically  inhibits  fusing  or  independent  voting  is  a 
two-edged  sword.  Always  it  happens  that  a  fusing  or  inde- 
pendent movement  helps  one  party  or  another,  one  individual 
or  another,  one  faction  or  another.  As  a  Republican  partisan 
I  am,  as  I  have  said,  absolutely  and  unqualifiedly  in  favor  of  a 
primary  law  and  an  election  law  which  will  permit  ease  in 
independent  voting. 

(233) 


1 86  EFFICIENT  GOVERNMENT  [Vol.  Ill 

This  is,  I  repeat,  not  only  a  recognition  of  the  inalienable 
rights  of  citizenship,  but  also,  to  my  mind,  the  very  best  policy 
and  politics.  There  is  no  doubt  that  independent  movements 
are  more  often  directed  against  individuals  than  against  parties, 
and  that  they  are  properly  inimical  to  any  rule-or-ruin  policy 
of  leadership.  This  is  absolutely  as  it  should  be,  for  no  leader- 
ship is  worthy  of  respect  that  will  not  consider  the  rights  of 
others  and  the  rules  of  fair  play.  To  my  mind  leadership 
springs  from  the  heart  and  has  its  roots  in  human  understand- 
ing and  responds  to  public  needs  with  human  sympathy.  A 
man  who  regards  leadership  as  a  proposition  in  absolutism,  as 
a  game  and  not  as  a  duty,  as  a  selfish  interest  and  not  as  a 
human  obligation,  is  unworthy  of  a  place  at  the  head  of  any 
party  or  of  any  organization,  and  the  law  should  make  it  easy 
for  the  party  voters  to  oppose  and  depose  unworthy  men  who 
ill-use  the  powers,  prerogatives  and  privileges  of  leadership. 

Oscar  S.  Straus,  candidate  of  the  National  Progressive 
party  for  governor  of  New  York : 

The  question  of  primary  reform  is  no  new  one  to  me.  In 
New  York  in  1898  the  first  National  Primary  League  was 
formed  and  held  its  meetings  in  the  rooms  of  the  board  of  trade 
and  transportation.  I  had  the  honor  of  presiding  over  this 
convention  during  the  three  days  of  its  sessions.  At  that  tim.e 
I  advocated  such  reforms  in  nominating  methods  as  would 
place  the  control  of  the  nominating  process  more  completely 
in  the  hands  of  the  voters  of  each  party. 

For  the  last  three  years  of  his  term.  Governor  Hughes 
devoted  more  time  and  energy  to  primary  reform  than  to  any 
other  problem.  Against  the  bitter  opposition  of  both  the 
Rep-^K^iican  and  the  Democratic  organization  he  advocated  a 
thorough-going,  state-wide  system  of  direct  primaries.  Up  to 
the  present  time,  however,  his  efforts  have  been  to  all  intents 
and  purposes  without  tangible  results.  All  the  political  parties 
are  now  at  least  nominally  committed  to  the  principle  of  the 
direct  primary — and  gcticral  arguments  in  favor  of  this  system 
as  against  the  convention  system  are  therefore  superfluous — 
but  we  are  still  without  any   real  or  honest  embodiment  of  this 

(234) 


No.  2  ]  ST  A  TEMENTS  ON  DIRECT  PRIMARIES  \  %  7 

principle  in  the  form  of  law.  The  so-called  direct  primary  law 
of  191 1,  enacted  by  a  Democratic  legislature  with  the  help  of 
the  Republican  machine,  is  an  absolute  negation  of  all  that 
Governor  Hughes  fought  for,  a  denial  of  the  very  foundation 
principle  of  the  direct  primary.  Instead  of  giving  to  the  rank 
and  file  of  the  party  voters  an  effective  control  over  the  nomi- 
nating process,  it  merely  rivets  more  firmly  than  ever  the  grip 
of  the  machine,  and  gives  to  what  was  formerly  an  unrecognized 
and  unofficial  machine  dictation  the  sanction  of  legal  recogni- 
tion. It  does  this:  first,  by  conferring  upon  party  committees 
— chosen,  not  as  under  the  Hughes  plan,  but  by  a  process  which 
makes  them  virtually  self-perpetuating — the  power  to  designate 
or  propose  candidates  for  nomination  to  public  ofifice;  second, 
by  making  it  exceedingly  difficult  for  anyone  else  in  the  party 
to  propose  alternative  candidates;  third,  by  providing  for  an 
official  primary  ballot — the  like  of  which  has  never  been  seen 
before  under  the  primary  law  of  any  other  state — of  such  a 
form  that  none  but  the  candidates  proposed  by  party  com- 
mittees stand  any  real  chance  of  being  nominated;  and,  fourth, 
by  omitting  from  the  application  of  the  law  the  very  offices  in 
which  the  voters  are  most  interested,  and  thus  discouraging 
them  from  attending  the  primaries. 

As  if  not  content  with  their  handiwork,  and  desirous  of  an 
even  more  cast-iron  control  over  nominations,  the  Republican 
and  Democratic  machines  combined  at  the  session  of  191 2  to 
pass  an  amendment  to  this  law  permitting  the  party  organiza- 
tions to  make  the  assembly  district,  instead  of  the  election 
district,  the  unit  of  representation  in  the  choice  of  party  commit- 
tees. This  permission  was  promptly  taken  advantage  of  by  both 
organizations,  with  the  result  that  the  party  voter  in  New  York 
city  at  the  primaries  last  March  instead  of  being  called  upon  to 
elect  from  one  to  eight  members  of  the  county  committee  of 
his  party  was  asked  to  choose  from  seventy- five  to  four  hun- 
dred members.  The  result  as  to  other  committees  and  in 
other  parts  of  the  state  was  almost  equally  absurd.  The  pri- 
mary ballots  were  from  six  to  fourteen  feet  in  length ;  it  was 
practically  impossible  for  any  independent  element  in  either 
party  to  run  a  rival  ticket  for  party  offices  against  that  proposed 

(23s) 


I  8  8  EFFICIENT  GO  VERNMENT  [Vol.  1 1 1 

by  the  "organization;"  and  the  whole  operation  of  this  sham 
direct  primary  system  was  rendered  ridiculous. 

So  much  for  the  type  of  primary  law  favored  by  the  two  old 
parties.  Both  of  them  promise  amendments  at  the  coming 
session,  but  the  kind  of  amendment  which  we  may  expect  from 
either  of  them  is  well  indicated  by  the  amendment  which  they 
passed  last  year. 

Without  going  into  details,  it  is  most  important  to  apply  the 
direct  primary  law  to  all  public  offices  and  party  positions, 
including  United  States  senators  and  delegates  to  national  party 
conventions,  and  excluding  only  such  'minor  local  offices  as 
were  excluded  under  the  Hinman-Green  bill.  To  such  an 
extension  both  the  old  parties  are  definitely  opposed — but  if 
the  direct  primary  system  is  sound  and  desirable  as  applied  to 
all  other  offices,  why  should  it  not  be  applied  to  the  most  im- 
portant offices  of  all,  the  very  offices  in  which  the  voters  are 
most  interested  and  in  regard  to  which  they  have  the  clearest 
and  strongest  preferences?  The  opponents  of  such  an  exten- 
sion will  reply  that  it  is  sufficient  that  the  party  voters  should 
have  power  to  "  instruct "  the  delegates  to  the  state  convention 
as  to  their  preference  for  state  officers.  Even  assuming,  how- 
ever, that  such  instructions,  when  clear  and  unanimous,  will  be 
carried  out  by  the  convention — an  assumption  by  no  means 
certain  to  be  justified, — it  is  wholly  unfair  to  the  voters  to  ex- 
pect them,  with  no  more  information  or  assistance  than  is 
supplied  them  under  the  convention  system,  even  to  have  any 
clear  preference  as  to  party  candidates,  to  say  nothing  of  taking 
the  trouble  to  go  to  the  polls  and  express  it  when  they  have  no 
assurance  that  such  an  expression  of  their  opinion  will  produce 
any  result.  Up  to  the  time  the  primaries  are  held  there  has 
been,  under  the  present  system,  no  adequate  public  discussion 
of  the  merits  of  the  various  candidates  for  nomination.  The 
candidates  have  not  come  forward  and  conducted  a  campaign 
to  acquaint  the  voters  with  their  personalities  or  their  views. 
Their  names  do  not  appear  on  the  official  primary  ballot  which 
is  handed  to  the  voter  at  the  polling-place.  All  that  he  has  be- 
fore him  is  a  list  of  names  of  eminently  respectable  and  other- 
wise colorless  gentlemen  who  are  seeking  election  as  delegates 

(236) 


No.  2 J  STATEMENTS  ON  DIRECT  PRIMARIES  189 

to  the  state  convention,  and  who  have  been  carefully  picked 
out  beforehand  by  the  leaders  of  the  "  organization"  as  persons 
who  can  be  relied  upon  to  do  what  they  are  told.  There  is 
nothing  to  indicate  whom  these  gentlemen  favor  as  party  candi- 
dates for  the  various  state  offices — indeed,  they  often  have  very 
little  idea  themselves.  The  ballot  seldom  contains  the  names 
of  any  opposing  list  of  candidates  for  the  positions  of  delegates 
— chiefly  for  the  reason  that  there  is  at  this  time  no  issue  on 
which  any  fight  against  the  organization  candidates  can  be  made 
except  that  of  their  personalities  or  the  general  issue  of  opposi- 
tion to  the  "  organization,"  which  as  yet  has  not  shown  its  hand. 
The  voters,  in  short,  are  merely  asked  to  give  a  blind  power  of 
attorney  to  the  "  organization,"  which,  later  on,  will  announce 
through  its  mouthpiece,  the  convention,  whom  it  has  selected. 
Under  this  system  the  task  of  the  voters,  at  best,  is  to  suggest. 
It  remains  for  the  "  organization  "  to  decide.  I  beHeve,  on  the 
contrary,  in  a  system  under  which  the  "  organization  "  will  sug- 
gest and  the  party  voters  finally  decide.  Let  the  "  organiza- 
tion "  be  given  the  right,  together  with  any  other  groups  within 
the  party,  to  propose  candidates  for  nomination.  Let  these 
candidates  go  before  the  party  voters  and  present  their  claims 
to  the  nomination,  so  that  the  party  voters,  when  they  go  to  the 
primaries,  may  decide  between  them  as  intelligently  and  with 
as  complete  information  as  to  their  merits  as  possible.  But  let 
the  party  voters  themselves  have  the  last  word. 

I  believe  all  the  more  strongly  in  applying  the  direct  primary 
principle  to  state  offices  because  the  statistics  from  other  states 
show  that  where  this  is  done  the  popular  vote  at  the  primaries 
is  larger  than  in  those  states  where  only  local  officers  are  directly 
nominated.  Since  the  chief  purpose  of  the  direct  primary  is  to 
secure  as  full  and  representative  an  expression  of  opinion  as 
possible  within  each  party,  every  factor  which  serves  to  mcrease 
the  popular  vote  at  the  primaries  should  be  taken  advantage  of 
to  the  fullest  extent. 

Another  reason  why  I  favor  the  extension  of  our  direct  prim- 
ary law  to  state  offices  is  that,  in  other  states,  wherever  the 
direct  primary  system  has  been  adopted  for  certain  local  elec- 
tions, its  application  has  almost  always  been  subsequently  ex- 

(237) 


ipo 


EFFICIENT  GOVERNMENT  [Vol.  Ill 


tended,  and  in  twenty-eight  states  direct  nominations  are  now 
mandatory  for  practically  all  elective  offices.  In  six  other 
southern  states  the  system  is  optional,  but  under  the  rules  of  the 
Democratic  party,  practically  all  elective  officers  are  nominated 
at  legally  regulated  direct  primaries.  In  only  four  states  out- 
side of  New  York  is  the  application  of  the  system  still  limited 
to  local  offices.  Surely  the  experience  of  the  rest  of  the  coun- 
try has  something  to  teach  us  on  this  point. 

But  our  direct  primary  law  should  not  merely  be  extended  to 
apply  to  the  state  offices  in  its  present  form.  It  should  also  be 
amended  so  as  to  provide  for  an  official  primary  ballot  of  the 
office-group  type,  such  as  is  now  in  use  in  every  other  state 
which  has  adopted  the  direct  primary  system.  Our  present 
form  of  primary  ballot,  with  its  separate  column  for  each  fac- 
tion, its  permission  to  the  organization  within  the  party  to  use 
the  emblem  of  the  party  as  a  whole  to  designate  its  own  candi- 
dates for  nomination,  its  provision  that  the  name  of  a  candidate 
for  nomination  may  appear  in  only  one  column,  and  its  special 
provision  for  straight  ticket  voting,  is  cunningly  devised  to  give 
the  organization  an  impregnable  position  and  absolutely  prevent 
all  independent  action  within  the  party.  We  should  adopt  a 
form  of  ballot  on  which  all  candidates  for  nomination  are 
placed  upon  an  absolute  equality. 

Another  most  urgently  needed  amendment  to  our  present 
law  is  one  providing  for  a  reduction  in  the  number  of  signatures 
required  to  place  a  candidate's  name  on  the  official  primary 
ballot  by  petition.  At  present  such  petitions  must  be  signed 
by  at  least  five  per  cent  of  the  enrolled  part>'  voters  in  the  dis- 
trict and  four  per  cent  of  the  total  party  vote  for  governor  in 
the  district  at  the  last  preceding  gubernatorial  election.  This 
requirement  often  renders  the  proposal  of  candidates  for  nom- 
ination by  any  group  within  the  party  other  than  the  organiza- 
tion practically  impossible.  It  should  be  altered  for  the  same 
reasons  which  demand  a  change  in  the  form  of  the  primary 
ballot. 

In  order,  furthermore,  to  prevent  any  repetition  of  the  ab- 
surdly long  ballots  used  at  the  primaries  last  spring,  and  to  put 
into  force    within    the   party  the    same   short  ballot    principle 

(238) 


No.  2]  STATEMENTS  ON  DIRECT  PRIMARIES 


191 


which  we  are  advocating  for  public  offices,  the  use  of  the  elec- 
tion district,  instead  of  the  assembly  district,  as  the  unit  of 
representation  in  the  choice  of  party  committees  should  be  made 
mandatory.  The  same  principle  demands  that  only  the  most 
important  party  committees  be  made  elective  by  the  party 
voters.  These  amendments  would  remedy  the  worst  defects  in 
the  existing  law. 

In  conclusion  I  wish  to  call  attention  to  the  fact  that  the  di- 
rect primary  is  not  the  only  method  which,  in  full  accordance 
with  the  Progressive  platform,  I  am  earnestly  advocating  for  the 
purpose  of  giving  to  the  people  a  more  complete  control  over 
their  government.  The  adoption  of  the  short  ballot  system  for 
public  offices  is  particularly  important  as  a  corollary  to  the  di- 
rect primary,  since  without  it  the  task  of  the  voter  in  making 
nominations  will  be  left  unnecessarily  complicated,  and  his  con- 
trol over  the  nominating  process  correspondingly  impaired.- 
This  does  not  mean  that  we  should  postpone  the  enactment  of 
a  thorough-going  direct  primary  law  until  after  we  have  amended 
the  constitution  to  provide  for  the  short  ballot,  but  it  does 
mean  that  we  should  supplement  our  direct  primary  law  by  a 
shortening  of  the  ballot  as  soon  as  possible. 

Wm.  Sulzer,  candidate  of  the  Democratic  party  for  gover- 
nor of  New  York:  I  am  in  favor  of  simplifying  the  ballot, 
extending  the  corrupt  practises  act,  and  instituting  direct  prim- 
aries. I  have  been  advocating  these  reforms  ever  since  I  was 
in  the  legislature  twenty  years  ago.  In  cooperation  with  the 
late  Senator  Saxton,  I  passed  the  first  ballot  reform  law  and 
the  first  corrupt  practises  act  when  we  were  in  the  legislature, 
and  from  that  day  to  this  I  have  been  doing  everything  in 
my  power  to  promote  these  salutary  reforms.  In  the  future, 
as  in  the  past,  the  people  of  New  York  can  rely  on  me  to  take 
no  step  backward. 

(239) 


PROCEEDINGS  OF  THE  AUTUMN  MEETING  OF  THE 

ACADEMY  OF  POLITICAL  SCIENCE  HELD  IN 

NEW  YORK,  OCTOBER  25  AND  26,  1912 

THE  autumn  meeting  of  the  Academy  of  Political  Science 
held  in  New  York  on  October  25  and  26,  191 2,  dealt 
with  Efficient  Government.     Three  sessions  were  held 
at  Earl  Hall,  Columbia  University.    The  program  was  as  follows : 

FIRST  SESSION 
Friday  afternoon,  October  25 

Topic 
The  Selection  and  Removal  of  Judges 

Introductory  address 

Harlan  F.  Stone 
The  Elective  and  Appointive  Methods  of  Selection  of  Judges 

Learned  Hand 
The  Recall  of  Judges 

Gilbert  E.  Roe 

y.  Hampden  Dougherty 
Discussion    by    Richard    S.    Childs,    Everett    P.    Wheeler, 
Charles  H.  Hartshorne  and  Edward  D.  Page 

THIRD   SESSION 
Saturday  morning,  October  26 

Topic 

The  Adaptation  of  Written  Constitutions  to  Chang- 
ing Social  Conditions 
Introductory  address 
Munroe  Smith 
Judicial  Interpretation  of  Constitutional  Provisions 
Fra?ik  J.  Goodnow 

(240) 


PROCEEDINGS  OF  THE  AUTUMN  MEE'J ING  193 

The  Amendment  of  the  Federal  Constitution 

J .  David  Thompson 
The  Reorganization  of  State  Government 

Henry  Jones  Ford 
The  Recall  of  Judicial  Decisions 

William  Draper  Lewis 

Clarence  D.  Ashley 
Discussion  by  Henry  R.  Seager 

FOURTH  SESSION 
Saturday  afternoon,  October  26 

Topic 
Legislation  and  Administration 

Initiative  and  Referendum 

Paul  S.  Reinsch 
The  Federal  Budget 

Frederick  A.  Cleveland 
Efficient  Organization  of  the  Personnel  in  Administration 

W.  F.  Willoughby 
Legislative  Drafting 

Thomas  /.  Parki?iso?i 

Harlan  F.  Stone,  Dean  of  the  Law  School  of  Columbia  Uni- 
versity, presided  at  the  first  session,  and  Munroe  Smith,  Pro- 
fessor of  Roman  law  and  comparative  jurisprudence  in  Columbia 
University,  presided  at  the  third  and  fourth  sessions. 


CONFERENCE  DINNER 

The  second  session  was  the  regular  conference  dinner  held 
at  the  Hotel  Astor  on  Friday  evening,  October  25,  President 
Samuel  McCune  Lindsay  presiding. 

The  general  topic  for  discussion  was  "  The  Direct  Primary 
versus  the  Convention  Method  of  Choosing  Candidates  for 
Public  Office." 

Addresses  were  made  by  Albert  Bushnell  Hart,  Professor  of 

(341) 
1  3 


194  EFFICIENT  GOVERNMENT 

Government  in  Harvard  University  and  by  the  Hon.  Edgar  T. 
Brackett,  of  the  New  York  state  senate. 

Statements  on  direct  primaries  by  the  three  leading  candi- 
dates for  governor  of  New  York,  Messrs.  Hedges,  Straus  and 
Sulzer,  were  read.  Mr.  Hedges  was  represented  by  Mr.  John 
A.  Stewart,  State  Chairman  of  the  RepubHcan  Party;  Mr. 
Straus  by  Mr.  William  H.  Hotchkiss,  State  Chairman  of  the 
National  Progressive  Party;  and  Mr.  Sulzer  by  Col.  Alexander 
S.  Bacon. 

The  papers  read  at  the  sessions,  the  discussions,  and  the 
addresses  and  statements  at  the  dinner  are  printed  elsewhere 
in  this  volume. 

(242) 


PROCEEDINGS  OF  THE  MEETING  OF  THE  BOARD  OF 
TRUSTEES  IN  CONFERRING  HONORARY  MEM- 
BERSHIP UPON  THE  RIGHT  HONORABLE 
JAMES  BRYCE 

AT  a  meeting  held  on  January  8,  191 3,  the  Board  of  Trus- 
tees  of   the  Academy  of    Political   Science,   acting   in 
accordance  with  the  powers  conferred  by  article  IV  of 
the   constitution,   created    a    class   of    honorary   members   and 
elected  the  Honorable  James  Bryce,  British  Ambassador  to  the 
United  States,  as  the  first  honorary*  member. 

A  special  meeting  of  the  Board  of  Trustees  of  the  Academy 
was  held  in  the  trustees'  room  of  Columbia  University  on  Fri- 
day, February  24,  at  four  o'clock.  To  this  meeting  the  life 
members  of  the  Academy  and  a  few  special  guests  were  invited. 
Upon  the  arrival  of  Mr.  and  Mrs.  Bryce,  Professor  Samuel 
McCune  Lindsay,  President  of  the  Academy,  called  the  meeting 
to  order  and  explained  its  purpose.  In  behalf  of  the  trustees, 
President  Nicholas  Murray  Butler,  a  member  of  the  advisory 
council  of  the  Academy,  presented  to  Mr.  Bryce  a  certificate 
of  membership,  handsomely  engrossed  and  bound  in  leather 
covers.  President  Butler  referred  to  Mr.  Bryce's  distinguished 
public  services  and  his  notable  contributions  to  political  science, 
expressing  the  hope  that  he  might  employ  the  leisure  following 
his  retirement  in  formulating  an  interpretation  of  the  whole 
modern  democratic  movement. 

Mr.  Bryce  responded  in  a  happy  speech,  expressing  his 
interest  in  the  Academy,  his  pleasure  in  becoming  its  first 
honorary  member  and  his  belief  in  the  importance  of  the  work 
of  such  institutions  in  America.  In  closing  he  referred  to  the 
possible  services  of  the  United  States  in  forwarding  the  cause 
of  arbitration  and  world  peace. 

Following  this  meeting  the  Academy  tendered  a  reception  to 
Mr.  and  Mrs.  Bryce  in  Earl  Hall.  All  the  members  and  many 
guests  were  invited  and  several  hundred  persons  attended, 

(243) 


1  3  • 


THE  BRYCE  MEETING  [Vol.  Ill 


Introductory  Remarks  of  Professor  Samuel  McCune 

Lindsay,  President  of  the  Academy  of  Political 

Science 

This  special  meeting  of  the  Board  of  Trustees  of  the  Academy 
of  Political  Science  has  been  called  at  a  time  when  Mr.  Bryce 
could  be  with  us,  for  the  purpose  of  giving  added  emphasis  to 
the  action  already  taken  by  the  Board  at  its  meeting  on  January 
8,  when  Mr.  Bryce  was  elected  the  first  honorary  member  of 
the  Academy. 

Over  thirty-two  years  ago  this  Academy  was  organized  by  a 
small  group  of  men  inspired  by  the  greatest  scholar  and  teacher 
in  the  field  of  political  science  that  America  has  produced,  our 
own  Dean  Burgess,  who  was  then  just  beginning  the  great  work 
he  has  now  laid  down  here  at  Columbia,  and  in  the  fruits  of 
whose  labor  most  of  us  here  to-day  have  peculiar  reason  to 
rejoice.  For  many  years  the  Academy  restricted  its  efforts  to 
building  up  high  standards  of  scientific  work  and  to  encouraging 
productive  scholarship  in  political  science. 

An  organization  with  such  an  aim  was  much  needed  at  that 
time  and  the  influence  of  the  Academy  was  potent  in  the  some- 
what narrow  circle  of  the  teaching  profession  and  of  the  few 
specialists,  chiefly  lawyers,  who  gave  some  scientific  considera- 
tion to  the  problems  of  government. 

With  the  passing  of  the  years  have  come  new  problems  in 
our  public  life.  The  relations  of  citizens  to  government  have 
changed  and  educational  institutions  must  undertake  a  new  work 
in  preparing  citizens  for  ideal  participation  in  democratic  gov- 
ernment. The  Academy  has  proved  sufficiently  elastic  in  its 
organization  to  respond  to  these  new  needs,  and  within  the  last 
five  years  it  has  undergone  almost  a  complete  change  in  its 
activities.  It  aspires  to  be  a  real  educational  force  in  our 
American  democracy,  bringing  the  studies  of  the  specialist  and 
the  highly  educated  professional  man  to  the  average  man  and 
the  average  woman  who  must  needs  participate  in  government 
and  upon  whose  intelligence  and  efficiency  the  possibilities  of 

(244) 


No.  3]         REMARKS  OF  SAMUEL  MCCUNE  LINDSAY  3 

government  depend.  It  aims  to  popularize  the  growing  litera- 
ture of  political  science,  without  loss  of  scientific  value,  to 
stimulate  active  discussion  of  the  facts,  conditions  and  problems 
of  government  as  it  affects  the  ordinary  man. 

In  this  work  the  Academy  has  enlisted  the  cooperation  of 
over  two  thousand  of  our  fellow-citizens.  Its  membership  is 
open  to  men  and  women  alike  who  are  willing  to  share  in  its 
work.  The  Political  Science  Quarterly  holds  a  foremost  place 
in  the  scientific  world,  and  as  the  organ  of  the  Academy,  so 
ably  edited  by  the  faculty  of  political  science  of  this  university, 
brings  us  into  close  affiliation  with  the  scientific  life  of  the  uni- 
versity. The  Academy  does  not  propose  as  it  grows  in  num- 
bers and  resources  to  weaken  the  influence  of  such  publications 
as  the  Political  Science  Quarterly,  but  if  possible  to  extend  and 
strengthen  such  influence  through  the  addition  of  other  publi- 
cations like  our  Proceedings,  and,  possibly,  a  still  more  popular 
periodical  yet  to  be  issued,  adapted  to  the  needs  of  a  wider 
circle  of  intelligent  men  and  women  anxious  to  know  more 
about  government  and  to  do  their  part  to  aid  in  the  establish- 
ment of  rational  and  sound  public  opinion. 

In  this  work  and  in  the  creation  of  the  ideals  which  it  pre- 
supposes, we  are  already  indebted  to  Mr.  Bryce  as  to  no  other 
writer  in  the  English-speaking  world.  No  one  has  done  more 
than  he  to  give  us  a  clear  vision  of  the  possibilities  of  democ- 
racy ;  no  one  has  voiced  more  clearly  the  challenge  of  democracy 
to  the  forces  of  education.  We  shall  miss  him  all  the  more 
when  he  leaves  our  shores,  because  he  has  been  so  vitally  iden- 
tified with  the  deeper  currents  of  American  life  and  American 
thought.  In  his  home  land  or  wherever  he  may  be,  however, 
we  shall  not  lose  him  so  long  as  he  has  voice  or  pen  to  con- 
tribute to  the  thought  of  his  time  and  to  the  wisdom  of  all  ages. 
We  shall  now  count  upon  him,  as  our  first  honorary  member, 
for  counsel  and  guidance,  and  we  shall  ever  look  to  him  as  an 
example  of  the  ideal  citizen  who  serves. 

I  now  have  the  honor,  by  authority  of  this  Board,  to  ask 
President  Butler,  a  member  of  the  advisory  council  of  the 
Academy,  to  present  to  Mr.  Bryce  a  certificate  of  honorary 
membership. 

.'245) 


THE  BRYCE  MEETING  [Vol.  Ill 


Remarks  of  Nicholas  Murray  Butler,  President  of 
Columbia  University,  in  presenting  certificate  of 
honorary  membership  in  the  Academy  of  Political 
Science  to  Ambassador  Bryce 

Mr.  Chairman,  Mr.  Bryce: 

My  colleagues  have  given  me  the  grateful  privilege  of  trans- 
mitting to  you,  sir,  this  formal  certificate  to  mark  the  honorary 
relation  in  which  they  are  glad  to  know  that  you  are  hereafter 
to  stand  to  this  Academy. 

In  handing  you  this  document,  I  find  it  difficult  to  withhold 
one  or  two  personal  words.  My  mind  goes  back,  sir,  nearly 
thirty  years  to  the  beginnings  of  a  strong  friendship  and  of  that 
sort  of  admiration  which  a  younger  man  is  sometimes  fortu- 
nately permitted  to  have  for  his  elder,  when  in  your  library, 
first  in  Bryanston  Square  and  afterwards  in  Portland  Place,  we 
used  to  spend  delightful  mornings  in  discussing  public  affairs, 
the  movement  of  public  opinion,  and  the  literature  of  political 
science  and  of  philosophy.  It  was  then  and  there  that,  through 
your  courtesy  and  kindly  hospitality,  I  had  the  opportunity  and 
the  high  privilege  of  meeting  and  of  coming  to  know  so  many 
of  the  men  who  were  at  that  time  leading  the  opinion  of  the 
British  people  and  formulating  the  issues  of  British  politics. 

At  that  time,  sir,  as  you  will  easily  recall,  the  first  bills  for 
the  government  of  Ireland  were  being  drafted  and  presented 
for  formal  consideration.  It  has  taken  all  the  intervening  years 
for  the  political  movements  and  the  political  tendencies  in  which 
we  were  then  so  keenly  interested  to  move  forward  to  the  ac- 
complishment of  the  result  which,  by  the  recent  vote  of  the 
House  of  Commons,  seems  now  to  be  substantially  assured. 

To  this  personal  word,  let  me  add  something  more.  You 
have  stood  in  a  peculiar  relation  to  those  of  us  who  are  students 
of  public  affairs,  and  especially  to  those  of  us  who  have  had 
some  part  in  the  shaping  of  international  opinion  and  in  the 
conduct  of  international  relations.  One  of  our  colleagues  at 
this  university,  who  has  the  happy  and  inveterate  habit  of  mix- 

(246) 


No.  3]        REMARKS  OF  NICHOLAS  MURRA  Y  BUTLER  5 

ing  wit  with  his  wisdom,  has  said  that  it  was  given  to  you  to 
invent  the  Holy  Roman  Empire  and  to  discover  the  American 
Commonweahh.  We  are  glad  that  you  have  given  us  the  two 
well-known  books  on  these  subjects.  But  you  have  done  much 
more  than  that.  Somewhere  in  your  writings — I  think  it  was 
in  your  biographical  essay  on  your  friend,  Lord  Acton — you 
have  made  a  statement  which  has  seemed  to  me  to  be  very  true 
of  yourself,  namely,  that  in  estimating  the  great  things  of  his- 
tory Lord  Acton  had  not  overlooked  the  significance  of  the 
smaller  things  and  so  had  not  lost  his  sense  of  proportion  in 
dealing  with  matters  of  history  and  politics. 

Let  me  say,  too,  with  what  pleasure  some  of  us  have  been 
reading  your  newest  and  very  illuminating  book  on  South 
America.  One  characteristic  of  that  book,  in  particular,  has 
impressed  me,  and  that  is  that  out  of  the  wealth  of  your  per- 
sonal knowledge  and  out  of  your  wide  travel  in  each  of  the 
continents  of  the  world  you  have  gained  material  for  compara- 
tive and  instructive  judgments  as  to  mountain  ranges,  plains, 
products  of  the  soil,  lines  and  routes  of  travel — judgments  that 
have  made  your  account  of  what  you  have  seen  in  these  South 
American  republics  by  far  the  most  helpful  that  has  yet 
been  written  by  anyone.  In  that  book  not  only  have  you  given 
us  a  record  of  what  you  saw  there,  but  you  have  given  us  that 
record  in  terms  of  what  you  had  already  so  widely  seen  else- 
where. 

Greatly  to  the  regret  not  only  of  our  government  but  of  our 
whole  people,  you  are  now  about  to  retire  from  the  great  post 
that  has  been  been  distinguished  by  your  occupancy.  We  can 
let  you  go,  sir,  only  on  the  condition  that  you  will  devote  the 
years  that  are  to  come  to  illuminating  for  us  some  of  the  dark 
places  that  still  remain  in  the  public  life  and  thought  of  the 
world.  We  greatly  hope  that  out  of  your  visits  to  South  Africa, 
to  Australia,  to  Canada,  to  Latin  America,  and  out  of  your  wide 
and  minute  knowledge  of  the  United  States,  there  may  yet 
come  a  critical  study  and  interpretation  of  the  whole  modern 
democratic  movement.  We  need  this  study  and  interpretation 
of  democracy,  not   only  from   the   point  of  view  of  political 

(247) 


6  THE  BRYCE  MEETING  [Vol.  Ill 

institutions,  but  from  that  of  its  personal,  its  social,  and  its 
economic  results,  together  with  its  effect  upon  individual  human 
beings  and  upon  the  life  and  progress  of  humanity  as  a  whole. 

You  go  from  us  to  assume  a  new  honor.  You  are  to  be  one 
of  the  panel  of  judges  representing  Great  Britain  from  which  is 
constituted  on  occasion  the  great  supreme  international  court 
of  arbitral  justice  at  The  Hague,  a  court  which  you  have  labored 
to  establish  and  in  the  principles  underlying  which  you  pro- 
foundly believe.  It  is  grateful  to  think  that  the  court  is  to  be 
the  forerunner  of  a  number  of  influential  international  institu- 
tions that  shall  help  bind  the  nations  of  the  earth  together  in 
unity  and  concord,  and  to  free  both  men  and  nations  from  the 
crushing  burdens  of  armaments  and  from  the  fears  and  terrors 
out  of  which  they  grow. 

And  so,  sir,  in  handing  you  this  certificate  of  membership,  I 
do  so  on  behalf  of  this  company  of  friends,  friends  who  have 
become  such  through  knowledge  of  your  personality,  through 
the  sympathetic  and  attentive  following  of  your  public  career. 
When  you  go  back  to  Great  Britain  to  take  up  the  duties  that 
await  you  there,  you  carry  with  you  the  full  weight  of  the 
affection  and  regard  of  the  American  people,  and  of  none  more 
than  those  who  are  assembled  in  this  room,  who  have  formed 
the  habit  of  looking  up  to  you  as  a  guide  and  philosopher,  and 
as  a  true  and  well-tried  friend. 


Reply  of  Ambassador  Bryce 

Mr.  President,  Professor  Lindsay  and  Gentlemen: 

I  can  hardly  find  words  to  express  my  sense  of  the  honor 
you  have  done  me  and  of  the  gratification  given  me,  both  by 
the  honorary  membership  in  your  Academy  which  has  been 
conferred  upon  me,  and  also  by  the  terms  in  which  that  has 
been  conveyed  to  me  by  my  old  and  valued  friend,  the  president 
of  your  university,  and  by  Professor  Lindsay. 

It  would  be  superfluous  for  me  to  attempt  to  say — because  I 
know  that  you  must  feel  yourselves — how  large  a  part  friend- 
ship has  had  in  dictating  the  words  which  President  Butler  has 

(248) 


No.  3]  REPLY  OF  JAMES  BRYCE  7 

let  fall ;  it  would  be  superfluous  for  me  to  say  that  the  words  he 
has  used  express  an  estimate  of  my  aspirations  rather  than  of 
my  achievements.  Nevertheless  I  am  cheered  by  his  words 
and  by  your  kindness  to  believe  that  some  good  may  have  been 
done  and  I  am  encouraged  to  use  whatever  of  life  and  strength 
may  remain  to  me  in  the  persevering  endeavor  to  elucidate 
some  of  these  complex  phenomena  of  government  whose  com- 
prehension will  enable  us  in  some  measure  to  understand  other 
countries  in  their  reality,  and  to  appreciate  the  character  of 
their  people. 

I  do  not  think  that  any  greater  service  can  be  conferred  upon 
the  world  by  learned  men  who  are  trying  to  find  solutions  for 
all  the  problems  that  press  upon  us  than  by  the  creation  of 
bodies  such  as  this  Academy,  bodies  which  devote  themselves 
to  a  scientific  investigation  of  government,  economics,  adminis- 
tration, and  what  is  called  social  science  in  general.  You  here 
are  confronted  by  a  number  of  problems  probably  more  difficult 
and  intricate  than  any  other  country  has  ever  had  to  face.  In 
some  ways  they  are  more  complex  than  in  Europe ;  yet  in 
many  respects  they  are  not  so  dangerous,  and  often  they  are 
easier  to  face  than  the  problems  of  European  countries.  No 
greater  service  can  be  rendered  toward  the  solution  of  these 
problems  than  by  the  cultivation  of  patient  and  impartial 
thought.  Thought  governs  the  world  ;  seeming  to  be  ruled  by 
votes,  the  world  is  actually  ruled  by  thought.  All  the  great 
movements  of  the  world  have  begun  from  the  thought  of  a 
comparatively  small  number  of  geniuses  marking  out  the  lines  ; 
they  were  followed  by  others  who  devoted  their  lives  to  de- 
veloping the  ideas  and  examining  the  facts  to  which  the 
principles  ought  to  be  applied. 

The  need  was  never  greater  than  now.  Just  because  we  are 
apt  to  be  carried  away  by  popular  passion,  it  is  the  more  neces- 
sary that  all  these  things  should  be  investigated  by  such  a  body 
as  your  Academy  in  the  spirit  that  I  have  sought  to  indicate. 
It  is  not  merely  the  political  problems,  urgent  though  they  be, 
to  which  I  refer.  I  speak  also  of  economic  problems,  which 
are  becoming  increasingly  important  with  the  immense  increase 

(249) 


8  THE  BRYCE  MEETING  [Vol.  Ill 

of  wealth,  the  development  of  communication  and  transporta- 
tion, and  the  growth  of  those  closer  relations  which  now  exist 
between  all  parts  of  the  world.  I  have  likewise  in  mind  what 
we  call  social  questions.  There  is  a  surprising  growth  of  active 
philanthropy.  There  is  a  stronger  feeling  than  ever  before  of 
the  responsibility  of  the  rich  for  the  poor  and  of  the  necessity 
of  applying  our  ethical  and  religious  principles  to  bettering  the 
lot  of  those  who  most  need  it.  The  difficulty  is  to  know  how 
to  do  it.  The  difficulty  is  to  know  how  you  can  help  others 
without  superseding  the  help  which  they  ought  to  give  them- 
selves. In  all  that  immense  field  there  is  need  for  the  closest 
study  of  social  schemes  and  theories  and  of  the  methods  of 
social  reform  that  ought  to  be  adopted.  I  believe  that  your 
Academy  will  be  just  as  useful  in  grappling  with  these  social 
problems  as  it  will  in  dealing  with  political  questions. 

I  should  like,  in  saying  that,  to  express  the  recognition  of 
our  English  students  of  the  value  of  your  journal,  the  Political 
Science  Quarterly,  which  is  so  ably  edited  by  the  university 
faculty  of  political  science.  We  have  nothing  like  it  in  our  own 
country,  and  I  am  not  sure  that  a  similar  publication  would 
secure  the  number  of  readers  necessary  for  its  support.  I  have 
read  it  assiduously  since  its  foundation  and  I  have  never  opened 
it  without  being  enlightened,  and  I  sincerely  hope  that  under 
the  auspices  of  the  Academy  it  will  continue  to  flourish  and 
render  service  to  you  and  to  us  as  it  has  done  heretofore. 

I  will  only  add  further,  Mr.  President,  that  I  am  deeply 
touched  not  only  by  your  references  to  our  old  friendship  but 
by  what  you  say  with  regard  to  whatever  work  I  may  still  hope 
to  do.  I  have  planned  to  write  something,  not  of  so  large  a 
scope,  and  1  am  afraid  not  venturing  to  attempt  such  heights,  as 
you  have  indicated,  but  still  something  of  the  kind  to  which 
your  words  pointed.  I  am  much  encouraged  by  your  words 
and  by  those  of  my  other  friends  to  go  on  and  to  devote  to  the 
task  whatever  time  and  strength  my  small  powers  will  permit. 

Let  me  say  further  that  when  I  return  home  there  will  be 
nothing  which  I  shall  prize  more  highly  than  the  opportunity  to 
help  to  make  known  to  the  English  people  the  true  feelings  of 

(250) 


No.  3]  REPLY  OF  JAMES  BRYCE  g 

the  American  people.  I  shall  assure  them,  as  I  know  I  confi- 
dently can,  of  the  friendship  of  this  country  and  of  the  strong 
desire  which  exists — and  which  is  the  desire  of  my  own  people 
as  well — that  the  United  States  and  Great  Britain  should  walk 
hand  in  hand  and  should  together  hold  aloft  that  torch  of  lib- 
erty that  our  common  ancestors  lighted  so  many  centuries  ago. 

I  may  say  that  since  I  have  been  here  I  have  come  to  realize 
more  and  more  what  is  the  pacific  and  honorable  attitude  of 
your  people.  I  am  more  than  ever  convinced  that  the  cause 
of  arbitration  and  world  peace  will  prosper  pretty  much  in 
proportion  as  it  has  the  loyal  adherence  of  the  United  States 
government  and  people. 

May  I  say  further,  as  it  has  been  my  privilege  in  time  past  in 
England — and  here  I  speak  for  my  wife  as  well  as  for  myself — 
as  it  has  been  our  joy  and  delight  frequently  to  see  our  Ameri- 
can friends  when  they  come  over  and  to  do  what  we  could  to 
help  them,  so  it  will  be  a  continual  privilege  to  us  to  meet  you 
and  your  friends  and  to  do  what  we  can  for  you,  whether  by 
putting  you  in  touch  with  our  people  or  by  supplying  informa- 
tion to  your  Academy  with  regard  to  what  is  going  on  in 
Britain. 

It  is  a  great  privilege  to  be  able  to  feel  oneself,  if  not  tech- 
nically at  least  practically,  a  citizen  of  two  such  countries.  You 
have  made  me  a  citizen  of  your  country  and  I  shall  never  forget 
that  privilege.  Whatever  I  can  do  to  aid  you  and  yours,  that  I 
shall  do  in  unforgetting  remembrance  of  your  kindness. 

(251) 


PROCEEDINGS 

OF  THE 

ACADEMY  OF   POLITICAL  SCIENCE 


IN  THE  CITY  OF  NEW  YORK 


Volume  III]  JULY,  1913  [Number  4 

THE  CAGED  MAN 


PUBLISHED   QUARTERLY   BY 
THE   ACADEMY   OF   POLITICAL   SCIENCE 

Columbia  University 
1 1  6th  Street  and  Broadway,  New  York 


Entered  as  tectmd^last  matter  Nov.  sz,  iqio,  at  the  post  office  at  New  York,  N.  Y. 
under  the  Act  of  Congress,  July  lb,  18Q4. 

COPYKIGHT,  igi3,  BY  THE  ACADEMY  OF  POLITICAL  SCIENCE 


PROCEEDINGS 
OF  THE  ACADEMY  OF  POLITICAL  SCIENCE 

The  Proceedings  are  issued  by  the  Academy  as  a  record 
of  its  activities  and  as  a  means  of  giving  detailed  treatment  to 
special  subjects  of  importance.  Each  volume  consists  of  four 
numbers,  published  in  January,  April,  July  and  October.  The 
January  and  July  numbers  give  in  full  the  papers  read  and  a 
report  of  the  discussions  at  the  meetings  of  the  Academy  and  the 
addresses  at  the  dinner  meetings. 

The  numbers  thus  far  issued  are  as  follows: 

Vol,  I,  No.  I.     The  Economic  Position  of  Women 

October,  1910.  Pp.  190 

No.  2.     The  Reform  of  the  Currency 

January,  1911.  Pp.  3CX) 

No.  3.     The  Year  Book  of  the  Academy 

April,  191 1.  Pp.  27 

No.  4.     The  Reform  of  the  Criminal  Law  and  Procedure 

July,  191 1.  Pp.  208 

Vol.  II,  No.  I.     Capital  and  Labor  Unified 

October,  1911.  Pp.     50 

No.  2.     Business  and  the  Public  Welfare 

January,  19 1 2.   Pp.   185 

No.  3.     National  Housing  Association 

April,  1912.  Pp.  236 

No.  4.     Organization  for  Social  Work 

July,   191 2.   Pp.   236 

Vol.  Ill,  No.  I.     The  Year  Book  of  the  Academy 

October,  191 2.  Pp.      48 

No.  2.     Efficient  Government 

January,  19 1 3.  Pp.   194 
April,   1913.   Pp.      16 


No.  3.     The  Bryce  Meeting 
No.  4.     The  Caged  Man 


July,   1913.  Pp.   136 

Separate  copies  of  numbers  i,  2  and  4  of  volume  I, 
numbers  2  and  4  of  volume  II,  and  numbers  2  and  4  of  volume  III, 
may  be  obtained  in  paper  cover  at  ^1.50.  A  limited  number  of 
copies  are  also  available  in  cloth  binding  at  $2  each. 

Volume  II,  number  i,  and  volume  III,  number  3,  may  be 
obtained  separately  at  50  cents. 

Communications  in  reference  to  the  Proceedings  should 
be  addressed  to  Henry  Raymond  Mussey,  Editor  of  the 
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PROCEEDINGS 

OF  THE 

ACADEMY    OF    POLITICAL   SCIENCE 

IN  THE  CITY  OF  NEW  YORK 


Volume  III]  JULY,  1913  [Number  4 


THE   CAGED   MAN 

A  SUMMARY  OF  EXISTING  LEGISLATION  IN  THE  UNITED  STATES 
ON  THE  TREATMENT  OF  PRISONERS 


E.   STAGG  WHITIN,  Ph.D. 

Assistant  in  Social  Legislation,  Columbia  University  and  Chairman 
Executive  Cot^mittee,  National  Committee  on  Prison  Labor 


Prepared  on  the  Henry  Bergh  Foundation  for  the  Promotion  of  Humane 
Education  in  Columbia  University 


The  Academy  of  Political  Science 

Columbia  University,  New  York 

1913 


COPYKIGHT   By 

The  Academy  of  Political  Science 


TABLE  OF  CONTENTS 

THE  CAGED  MAN 

a  su  mmary  of  existing  legislation  in  the  united  states  on  the 
Treatment  of  Prisoners 

I 
what  is  the  status  of  the  prisoner  ? 
The  property  of  the  state — The  ward  of  the  state 


II 

why  is  he  confined? 

To  work  off  a  fine  and  costs.  To  satisfy  a  sentence — Fixed  or  indetermin- 
ate.    Awaiting  capital  punishment 5-16 

III 
how  may  he  be  punished? 

Cruel  and  unusual  punishme\its — Punishment  exceeding  hard  labor — Solitary 
confinement — Dungeons — Blood  hounds — Shackles  and  chains — Reduc- 
tion of  food — The  gag,  iron  mask,  etc. — Corporal  punishment — Showering 
with  cold  water — Stocks — Crucifix,  yoke,  buck,  etc. — Punishment  injurious 
to  mind  or  body — Greater  or  more  severe  punishment  than  prescribed  by 
board .       17-23 

IV 

HOW    MAY    HE   BE   WORKED? 

Leased  to  individuals  for  work  outside  the  institution — Leased  to  individuals 
for  work  inside  the  institution — The  state  may  work  him^State  industries 
for  state  consumption — Farms  for  state  consumption — Public  works — State 
farms  for  community  consumption — State  factories  for  community  con- 
sumption. Under  specific  limitations — Competition  with  free  labor — 
Number  of  convicts  in  one  industry — Use  of  machinery — Manufacture  of 
goods  manufactured  by  free  factories — Branding  of  prison-made  goods^ 
Manufacture  of  certain  articles — Work  injurious  to  health  or  dangerous  to 
person  of  convict — Association  with  free  laborers  during  work  hours — 
Labor  which  can  be  carried  on  without  expense  to  the  county  and  is 
consistent  with  safe  keeping  of  prisoners.     Hours  of  labor 24-46 


iv  TABLE  OF  CONTENTS 

PAGE 
V 

HOW   IS    HE   MAINTAINED? 

Bunking — Food — Clothing 47-5^ 

VI 

HOW    IS    HE   CARED   FOR? 

Health  provisions — Religious  provisions — Educational  provisions — Moral 
education — Reduction  of  time  for  good  conduct — Special  indulgences  for 
good  conduct — Reporting  of  good  conduct  to  Board — Merit  marks — Grad- 
ing of  prisoners — Wage  reward.  General  education — Prison  schools — 
Prison  libraries — Industrial  education 59-91 

VII 

WHO    CAN    SET    HIM   FREE? 

Parole — Pardon — The  Governor — The  Governor  and  Board  of  Pardons — 

Governor  and  Council — Governor  and  Senate — Legislature 92-100 

VIII 

WHAT   SPECIFIC    DISABILITIES   ARE   CAUSED   BY   A   PRISON   SENTENCE? 

Loss  of  citizenship — Change  in  marital  relationship — Loss  of  power  of  procre- 
ation (vasectomy) — A  criminal  record — Use  of  dead  body  for  scientific 
purposes 101-117 


INTRODUCTION 

THE  laws  of  Continental  United  States,  that  is  of  the 
forty-eight  states  and  the  District  of  Columbia  but 
excluding  Alaska,  Hawaii,  Porto  Rico  and  the 
Philippines,  regulating  the  treatment  of  prisoners  during  con- 
finement, under  the  caption  "  The  Caged  Man  ",  have  been 
gathered  together  and  classified  so  as  to  bring  vividly  to  the 
mind  of  the  student  the  answer  to  the  question  "  What  means 
a  prison  sentence  ".  The  collection  of  this  material  has  been 
an  arduous  task  because  the  statutes  affecting  prisoners  are  to 
be  found  under  the  most  diverse  headings  and  as  parts  of  the 
law  on  many  subjects.  The  constitutions,  the  latest  revised 
statutes  and  the  session  laws  down  to  January'  1st,  191 3,  have 
been  carefully  read  and  classified.  The  segregation  of  this 
material  taken  from  its  context  and  the  classification  of  many 
hundreds  of  references,  under  an  arbitrary  classification,  has 
required  a  knowledge  of  the  actual  administration  of  the  law 
in  the  several  states,  and  the  ascertaining,  as  far  as  possible, 
the  probable  meaning  of  the  confused  and  varied  expression 
of  the  thought  contained  in  many  poorly-drawn  and  ill- 
conceived  statutes,  hidden  away  in  legislation  often  foreign 
to  the  actual  subject  under  consideration  and  conflicting  in 
many  details  with  other  statutes.  The  administrative  charac- 
ter of  this  legislation  has  led  to  the  interpretation  of  these 
conflicts  by  administrative  boards  and  the  changing  personnel 
of  the  Attorney  General's  office,  rather  than  by  adjudication 
in  courts  of  record.  This  study  therefore  must  be  considered 
in  the  light  of  these  limitations  and  as  having  been  presented 
more  as  an  exhibit  of  the  vagaries  of  legislative  caprice,  than 
as  suggesting  either  the  actual  practice  existing  under  the 
prison  administrations  in  the  several  states,  or  as  an  ideal  upon 
w^hich  to  model  new  and  better  legislation.  It  suggests  the 
repeal  of  many  worn-out,  antiquated  and  unused  statutes ;  it 
makes  possible  the  laying  down  of  the  principle  that  legislation 
should  deal  with  broad  principles  and  leave  administrative 
detail  to  the  duly  constituted  body  which  has  been  created  for 
administration  ;  and  it  brings  to  light  many  isolated  provis- 


2  INTRODUCTION 

ions  which  would  be  valuable  in  the  working  out  of  a  more 
perfect  and  better  conceived  penal  statute  law  than  is  now 
found  on  the  statute  books  of  any  state.  References  are  given 
in  full  in  the  hope  that  students  of  the  subject  will  be  able 
to  use  the  material  in  their  work  of  drafting  legislation,  and 
in  the  hope  that  through  such  working  over  there  may  come  to 
light  and  to  our  attention  those  errors  which  must  necessarily 
have  crept  in  because  of  the  inherent  difficulty  of  compilation 
and  the  variation  resulting  from  the  use  of  personal  judgment 
in  classification.  Such  suggestions,  which  will  be  gratefully 
received,  should  be  sent  to  Miss  Julia  Jaffray,  Secretar\%  Edu- 
cational Department,  National  Committee  on  Prison  Labor, 
319  University  Hall,  Columbia  University,  New  York  City. 
Miss  Jaffray  has  compiled  the  statutes  to  which  reference  is 
made  in  this  monograph. 

E.  Stagg  Whitin. 
New  York  City,  April,  1913. 

(254) 


THE  CAGED  MAN 

HUMANE  treatment  of  prisoners  finds  expression  not 
alone  in  the  limitations  placed  upon  keepers  but  in  the 
development  of  those  incentives  for  a  better  life  which 
play  upon  the  dormant  emotions  and  depleted  energies  of 
prisoners  and  vitalize  them  into  normal  being.  Cruelty  lies 
equally  in  the  failure  to  provide  these  opportunities  for  reform 
as  in  the  over-development  of  prohibitory  measures.  The 
surgical  instruments  of  a  century  ago  seem  both  cruel  and 
crude  to  those  familiar  with  modern  surgery.  Many  of  the 
instruments  of  penal  administration  herein  referred  to  will 
seem  as  archaic  to  those  who  view  them  from  the  standpoint 
of  modern  psychology  and  ask  the  pertinent  question  what  a 
prison  sentence  means  today  to  society  as  well  as  to  the  "  caged 
man  ". 

I. 

WHAT  IS  THE  STATUS  OF  A  PRISONER? 

The  state  has  a  property  right  in  the  labor  of  the  prisoner. 
The  Thirteenth  Amendment  of  the  Constitution  of  the  United 
States  provides  that  neither  slavery  nor  involuntar}'  servitude 
shall  exist,  yet  by  inference  allows  its  continuance  as  punish- 
ment for  crime,  after  due  process  of  law.  Similar  provisions 
are  found  in  the  constitutions  of  most  states.^  The  absolute 
prohibition  of  slavery  without  exception  in  Maryland,  Rhode 
Island  and  Vermont  abrogates  the  status  of  penal  servitude 
but  continues,  under  police  power,  the  penal  system  for  the 
protection  of  the  community  and  for  the  protection  of  the 
wayward  individual,  his  status  being  analogous  to  that  of  the 
insane,  defective  and  othervvise  incompetent  wards  of  the  state. 

The    Property    of    the    State.  The   Ward  of  the  State. 

"  Neither    slavery    nor    involuntary  "  Slavery  shall  not  be  permitted  in 

servitude,   unless   for   the  punishment       this  state." 

of   crime,    shall    ever   be    tolerated   in  Rhode  Island,  Const.    1842,  Art.   i, 

this  state."  Sec.  4. 

California,     Const.     1879,     Art.     i, 
Sec.    18. 

1  American  and  English  Encyclopedia  of  Law,  1898,  vol.  22,  p.  1302. 

(255) 


THE  CAGED  MAN 


The  Property  of  the  State  in: 


Alabama 
Arkansas 

California 

Colorado 

Florida 

Georgia 

Indiana 

Iowa 

Kansas 

Kentucky 

Michigan 

Minnesota 

Mississippi 

Missouri 

Montana 

Nebraska 

Nevada 

North  Carolina 

North   Dakota 

Ohio 

Oregon 

Tennessee 

Utah 
Wisconsin 


Const. 
Const. 
Sec. 
Const. 
Sec. 
Const. 
Sec. 
Const. 
R., 
Const. 
Par. 
Const. 
Sec. 
Const. 
Sec. 
Const. 
R-, 
Const. 
R., 
Const. 
i8. 
Const 
R., 

Const. 
Sec. 
Const. 
Sec. 
Const. 
Sec. 
Const, 
Sec 
Const 
Sec 
Const 
Sec 
Const 
Sec 
Const 
Sec. 
Const. 
Sec. 
Const 
Sec 
Const 
Const 
Sec 


1901,  Sec.  32. 

1874,  Art.  2,  I 

27. 

1879,  Art.  I, 

18. 

1876,  Art.  2, 
26. 

1885,   D.    of 
Sec.   19. 

1877,  Art.  I, 
,    17. 

1851,  Art.  I, 

37- 

1857,  Art.  I, 

1859.    B.    of 
Sec.  6. 
,    1890,    B.    of 

Sec.  25. 
.      1850,     Art. 

Sec.    II. 

,    1857,    B.   of 

Art.  I,  Sec.  2. 
.  1890,  Art.  3, 

.  15- 

.  1875,  Art.  2, 

•  31- 

.  1889,  Art.  3, 
28. 

1875,  Art.  r, 
2. 

1909,  Art.  I, 
2. 
.  1876.  Art.  I, 

33- 

1889,  Art.  I, 

17- 
:.  i8qi.  Art.  i, 
6. 
1857,  Art.  I, 

35- 

1870.  Art.  I, 

33- 
.  1895,  Sec.  21. 
1848,  Art.  I, 

(256) 


The  Ward  of  the  State  in: 

Maryland  Const.    1867,   D.   of 

R.,  Art.  24. 

Rhode  Island  Const.  1842,  Art.  i, 
Sec.  4. 

Vermont  Const.    i793.    C.    i, 

Sec.  I. 


II. 

WHY  IS  HE  CONFINED? 
Three  classes  of  convicts  ^  are  found  in  our  penal  institutions  : 

A.  Prisoners  working  off  fines  and  costs. 

B.  Prisoners  serving  sentences,  either  fixed  or  indeterminate. 

C.  Prisoners  awaiting  capital  punishment. 

A.  Prisoners  working  off  fines  and  costs. 

Persons  convicted  of  minor  offences  are  often  sentenced  to 
pay  fines,  the  cost  of  conviction  being  assessed  along  with  the 
fine.  Fines  may  be  paid  out  of  the  convicted  man's  personal 
possessions  or  by  a  "  next  of  friend  "  to  whom  he  becomes  a 
debtor  under  agreement  to  refund  in  kind  or  labor.  Failure 
to  pay  the  fine  results  in  committment  to  penal  servitude  for 
such  a  time  as  it  may  take  to  pay  off  the  full  amount  due  at 
the  rate  established  by  statute.  Credits  toward  the  satisfaction 
or  payment  of  fines  and  costs  are  allowed  as  follows : 

1.  $100.00  per  year  during  confitiement. 

Connecticut  (State  prison.)  R.    S.    1902,    Sec. 

Every    prisoner    held    in    said    prison  2914. 

for  non-payment  of  a  fine  shall  he  al- 
lowed one  hundred  dollars  a  year  for 
his  labor,  from  the  time  when  his  im- 
prisonment for  non-payment  of  said 
fine  commenced,  if,  in  the  opinion  of 
the  warden  and  directors,  he  shall  have 
been  submissive  to  the  officers  of  the 
prison  during  his  confinement  and  con- 
ducted himself  as   a  faithful  prisoner. 

2.  $3.00  for  each  day's  confinement. 

Nebraska  Whenever    district   court    or    probate     R.  S.  191 1,  C.  49, 

judge  shall  have  determined  that  a  per-  Sec.  2692. 

son,  confined  in  jail  for  any  criminal 
offence,  has  no  estate  with  which  to 
pay  fine  and  costs,  it  shall  be  the  duty 
of  said  judge  to  discharge  such  person 
from  further  imprisonment  for  such 
fine  and  costs.  Discharge  to  operate 
as  complete  release  from  such  fine  and 

^  This  study  covers  only  convicted  prisoners,  hence  persons  awaiting  trial  or 
held  as  witnesses  are  not  included  though  frequently  found  especially  in  local 
jails. 

(257) 


THE  CAGED  MAN 


[Vol.  Ill 


Texas 


Washington 


costs,  provided  nothing  shall  authorize 
any  person  to  be  discharged  from 
prison  before  the  expiration  of  the 
time  for  which  he  or  she  is  sentenced 
to  imprisonment,  nor  until  convict  shall 
have  been  imprisoned  at  least  one  daj- 
for  every  $3  of  the  amount  adjudged 
against  him. 

When  a  defendant  is  convicted  of  a  R.  S.  191 1,  Crim. 
misdemeanor  and  his  punishment  is  Stat ,  Title  9, 
assessed    at    a    pecuniary    fine,    if    he  C.  4,  Art.  878. 

makes  oath  in  writing  that  he  is  un- 
able to  pay  the  fine  and  costs,  he  may 
be  hired  out  to  manual  labor,  or  be  put 
to  work  in  a  manual  labor  work-house, 
or  on  a  farm  or  public  work  of  the 
count}'.  If  there  be  no  such  work- 
house, farm,  etc.,  and  the  authorities 
fail  to  hire  him  out,  he  shall  be  im- 
prisoned in  the  county  jail  for  a  suf- 
ficient length  of  time  to  discharge  the 
full  amount  of  fine  and  costs,  rating 
such  punishment  at  three  dollars  for 
each  day  thereof. 

Any  person  ordered  into  custody  R.  S.  1910,  Title 
until  the  fine  and  costs  adjudged  3,  C.  19,  Sec. 
against  him    are   paid,  who   within    five  2206. 

days  shall  not  pay  or  cause  payment 
of  same,  shall  be  imprisoned  in  the 
county  jail  until  the  fine  and  costs 
are  paid,  or  until  he  has  been  impris- 
oned in  jail  i  day  for  every  three  dol- 
lars of  such  fine. 

3.     $2.00  for  each  day's  confinement. 

California  A   judgment  that  a  defendant  pay  a     Penal  Code,  1909, 

fine  may  also  direct  that  he  be  impris-  Title  8,  Sec. 
oned  until  the  fine  is  satisfied,  but  the 
judgment  shall  specify  the  extent  of 
the  imprisonment,  which  shall  not  ex- 
ceed I  day  for  every  $2.00  of  the  fine, 
nor  extend  in  any  case  beyond  the 
term  for  which  the  defendant  might 
be  sentenced  to  imprisonment  for  the 
offence  for  which  he  has  been  con- 
victed. 

Idaho  Whenever   any  person   under  convic- 

tion for  anj'^  criminal  offense  is  con- 
fined in  any  jail  for  non-payment  of 
fine,  the  district  Court,  upon  satis- 
factory evidence  of  such  inability,  may, 
in  lieu  thereof,  confine  such  person  in 
the  county  jail  at  the  rate  of  $2.00  per 
day   until   the   fine  imposed   is   satisfied. 

Montana  When  judgment  of  fine  and  costs  is 

entered  against  a  defendant  and  it  is 
ordered  that  he  be  committed  until  the 
same  are  paid,  if  at  any  time  there- 
after defendant  prove  to  court  that  he 
is  unable  to  pay  such  fines,  costs,  or 
any  part  thereof,  the  Court  or  judge 
(258) 


1205. 


R.    S.    1908,    Sec. 
8545. 


R.  S.  1907,  Title 
9,  C.  I,  Sec. 
9373- 


No.  4] 


WHY  IS  HE  CONFINED 


Nevada 


Oregon 


may  order  the  sheriff  to  release  him 
upon  his  having  been  confined  in  jail 
I  day  for  every  $2.00  of  such  fine  and 
costs,  or  any  portion  remaining  un- 
paid ;  but  if  he  do  not  prove  to  satis- 
faction of  court  that  he  is  unable  to 
pay  he  shall  not  be  released,  unless  the 
sheriff  has  made  the  same  upon  execu- 
tion out  of  his  property. 

Whenever  anj'  person,  under  convic- 
tion for  any  criminal  offense,  shall  be 
confined  in  jail  for  anj'  inability  to  pay 
any  fine,  forfeiture  or  costs,  or  to  pro- 
cure sureties,  the  district  court,  upon 
satisfactory  evidence  of  such  inability 
may,  in  lieu  thereof,  confine  the  person 
in  the  county  jail  at  the  rate  of  $2.00 
per  day  until  the  fine,  forfeiture  or 
costs  so  imposed  shall  have  been  satis- 
fied. 

A  judgment  that  a  defendant  pay  a 
fine  must  also  direct  that  he  be  im- 
prisoned in  the  county  jail  until  the 
fine  be  satisfied,  specifying  the  extent 
of  imprisonment,  which  cannot  exceed 
I  day  for  every  $2.00  of  fine.  In  case 
the  entry  of  judgment  shall  omit  to 
direct  the  imprisonment  and  the  ex- 
tent thereof,  the  judgment  to  pay  the 
fine  shall  operate  to  authorize  and  re- 
quire the  imprisonment  of  the  defend- 
ant until  the  fine  is  satisfied  at  the 
rate  above  mentioned. 

4.     ^7.00  for  each  day's  confinement. 
Indiana  In   case    such    defendant    do   not   im- 

mediately pay  or  replevy  such  judg- 
ment and  costs  the  justice  shall  com- 
mit him  to  jail  there  to  remain  one 
day  for  each  dollar  of  such  fine  and 
costs. 

Whenever  anj^  person  shall  be  com- 
mitted to  prison  for  non-payment  of 
any  fine  or  costs,  such  imprisonment 
shall  be  reckoned  at  the  rate  of  $1.00 
per  day  in  reduction  of  fine. 

A  judgment  that  the  defendant  pay 
a  fine  may  also  direct  that  he  be  im- 
prisoned until  the  fine  is  satisfied, 
specifj'ing  the  extent  of  the  imprison- 
ment, which  cannot  exceed  one  day  for 
every  $1.00  of  the   fine. 

5.     60  cents  for  each  day's  confinement. 
Ohio  When  a  fine  is  the  whole  or  part  of 

a  sentence,  the  court  may  order  that 
the  person  sentenced  remain  impris- 
oned in  jail  until  such  fine  and  costs 
are  paid,  or  he  is  legally  discharged, 
provided  that  the  person  so  impris- 
oned shall  receive  credit  upon  such 
fine  and  costs  at  the  rate  of  60  cents 
per  day  for  each  day's  imprisonment. 

(259) 


New  Mexico 


Utah 


R.    S.    1912,    Sec. 
76 II. 


R.  S.  1910,  Title 
18,  C.  II,  Sec 
1577- 


R.    S.    1908,   Sec. 
1954- 


R.  S.   1897,  C.  9, 
Sec.  832. 


R.  S 

9I' 
4919 


1907,  Title 
C.   37,   Sec. 


Laws  1910,  H.  B. 
146. 


THE  CAGED  MAN 


[Vol.  Ill 


Oklahoma 


Oregon 


6.     SsVz  cents  jor  each  day's  confinement. 
Vermont  A    person    committed    to    the    House 

of  Correction  for  non-payment  of  fine 
may  be  discharged  on  paying  the  bal- 
ance of  the  fine,  or  fine  and  costs, 
after  deducting  2i3>Y3  cents  for  each 
day  he  has  been  committed  for  such 
default. 

7      $2.00  for  each  day's  labor. 
North    Dakota  For    each    day's   labor   performed   by 

any  convict  under  the  provisions  of 
this  chapter,  there  shall  be  credited  on 
any  judgment  for  fine  and  costs  against 
him  the  sum  of  $2.00. 

For  every  day's  labor  performed  by 
any  convict,  under  the  provisions 
hereof,  there  shall  be  credited  on  any 
judgment  for  fine  and  costs  against 
him  the  sum  of  $2.00. 

Whenever  any  person  shall  be  con- 
victed of  a  criminal  offense  under  any 
of  the  ordinances  of  a  city  or  town, 
and  shall  be  adjudged  to  pay  a  fine 
and  costs  and  shall  fail  to  pay  the 
same,  he  shall  be  sentenced  to  labor 
one  day  for  every  $2.00  of  such  fine 
upon  the  streets  or  other  public  works 
of  said  city  under  such  officer  as  com- 
mon council  may  provide ;  common 
council  may  provide  such  fetters  and 
manacles  as  may  be  necessary  to  secure 
the  person  of  such  criminal  during 
his  term  of  labor. 

For  every  day's  labor  performed  by 
any  convict  under  the  provisions 
hereof,  there  shall  be  credited  on  any 
judgment  for  fine  and  costs  against 
him   the  sum  of  $2.00. 

Any  person  sentenced  to  the  watch- 
house  or  place  of  confinement  of  the 
village  who  is  not  physically  disabled 
shall  be  compelled  to  perform  labor 
upon  any  public  work  of  said  village, 
under  such  supervision  and  control  as 
the  village  may  provide,  and  for  each 
day's  labor  performed  the  person  so 
sentenced  shall  be  credited  with  the 
sum  of  $2.00,  which  shall  apply  on  such 
fine  and  costs  until  same  are  paid,  or 
until  such  person  is  released  from  cus- 
tody. 

8.     $1.^0  jor  each  day's  labor. 
Illinois  Any    person    convicted    of    petit    lar- 

ceny or  any  misdemeanor  punishable 
under  the  laws  of  this  state,  may  be 
compelled  by  Court  of  Record  to  work 
out  fine  and  costs,  in  the  work-house 
of  the  city,  town  or  county,  or  in  the 
streets  and  alleys  of  any  town  or  city 
(260) 


R.     S.     1906,     C. 
261,   Sec.   6022. 


South   Dakota 


Wisconsin 


R.   S.    1905,   Sec. 
10446. 


R.    S.    1903,    Sec. 
5728. 


R.  S.  1910,  Title 
26,  C.  4,  Sec 
3237- 


R.    S.    1910,    Sec. 
749- 


Acts  1907,  C.  117. 


R.  S.  1897,  Title 
26.  C.  I,  Sec. 
5657- 


No.  4] 


IF/IV  IS  HE  CONFINED 


Iowa 


Minnesota 


Wyoming 


or  on  the  public  roads  of  the  county, 
under  the  proper  person  in  charge  of 
such  work-house  at  the  rate  of  $1.50 
for  each  day's  labor. 

For  every  day's  labor  performed  by 
any  convict  under  provisions  of  sees. 
5652-4,  shall  be  credited  on  any  judg- 
ment for  fine  and  costs  against  him 
the  sum  of  $1.50  and  no  person  shall 
be  entitled  to  the  benefits  of  the  law 
providing  for  the  liberation  of  poor 
convicts,  if,  in  the  opinion  of  the  sher- 
iff, the  judgment  may  be  satisfied  by 
the  labor  of  the  person  as  herein  au- 
thorized. 

For  each  day's  labor  the  prisoner 
shall  be  credited  $1.50  on  any  judg- 
ment for  fine  and  costs,  and,  when  im- 
prisoned in  d  fault  of  payment  of  a 
fine  or  fine  and  costs,  he  shall  be  dis- 
charged whenever  he  has  performed 
sufficient  labor  to  pay  the  same.  The 
officer  in  charge  of  such  prisoners  shall 
protect  them  from  insult  and  annoy- 
ance, while  at  labor  or  going  to  and  re- 
turning therefrom. 

Whenever  the  defendant  is  sentenced 
to  prison  for  the  violation  of  a  city  or- 
dinance, he  shall  be  put  to  work  for  the 
benefit  of  the  city,  under  the  discre- 
tion of  the  mayor,  for  the  term  of  his 
imprisonment,  and  when  committed  for 
the  non-payment  of  a  fine  or  costs  he 
shall  be  put  to  work  for  the  benefit  of 
the  city,  and  shall  be  credited  on  such 
fine  and  costs  $1.50  per  day  for  each 
day  he  shall  work. 


9.     $1.00  for  each  day's  labor. 


Arizona 


Colorado 


Connecticut 


Kansas 


Whenever  any  prisoner  shall  be  sen- 
tenced to  pay  a  fine  and  to  be  com- 
mitted until  paid,  shall  be  employed  at 
hard  labor,  he  shall  be  allowed  the  sum 
of  $1.00  for  each  day's  labor  to  be 
credited  on  such  fine,  and  when  he 
shall  have  earned  the  amount  of  such 
fine  he  shall  be  discharged. 

Whenever  any  prisoner  sentenced  to 
pay  a  fine  and  costs,  shall  be  employed 
at  hard  labor,  he  shall  be  allowed  the 
sum  of  $1.00  for  each  day's  labor  and 
when  he  shall  have  earned  the  amount 
of  such  fine  and  costs  he  shall  be  dis- 
charged. 

County  convicts  committed  for  crim- 
inal offense  and  held  for  fine  and  costs 
are  credited  $1.00  for  each  day's  labor. 
Convicts  may  not  be  held  more  than 
4  months. 

Prisoners  shall  be  allowed  $1.00  for 
each  day's  work  performed  by  them 
in  good  faith  or  if  prisoners  prefer  the 
(261) 


R.  S.  1897,  Title 
26,  C.  I,  Sec. 
5657- 


R.     S.     1905,     C. 
106,  Sec.  5471. 


R.     S.     1910,    C. 
121,    Sec.    1768. 


R.   S.   1909,  Title 
15,  Sec.  1201. 


R.  S.  1908,  C.  35. 
Sec.  2024. 


R.     S.     1902,     C. 
177,   Sec.    2942. 


R.  S.  1909.  C.  97> 
Art.  18,  Sec 
6942. 


10 


THE  CAGED  MAN 


[Vol.  Ill 


Board  of  County  Commissioners  mav 
allow  each  prisoner  a  specified  sum 
per  cubic-  yard  for  breaking  stone. 
When  the  same,  either  by  the  day  or 
the  cu.  yd.  shall  amount  to  the  sum  of 
the  fine  and  costs,  the  same  shall  be 
deemed  a  full  satisfaction. 

Kentucky  When    punishment    for   a  crime   is   a 

fine  or  imprisonment  in  the  county  jail 
or  both,  the  jury  may  in  their  discre- 
tion, if  the  defendant  is  a  male,  pro- 
vide in  their  verdict  that  the  defendant 
shall  work  at  hard  labor  until  fine 
and  costs  are  satisfied.  The  defendant 
shall  not  be  required  to  labor  more 
than  8  hours  a  day,  and  may  at  any 
time  pay  the  costs,  or  whateyer  part 
thereof  remains  unpaid,  after  receiving 
credit  of  $i.oo  for  each  day  worked  in 
payment  thereof. 

LouiSlAN.\  In   all  criminal  prosecutions  where  a 

person  is  convicted  in  any  of  the  courts 
of  the  state  of  any  crime  punishable 
under  the  law  with  imprisonment  at 
hard  labor,  but  not  necessarily  so,  the 
judge  before  whom  such  conviction  is 
had  may  sentence  person  so  convicted 
to  work  on  the  public  roads  or  streets 
of  parish  or  city  in  which  crime  was 
committed,  and  which  may  eventually 
be  chargeable  with  costs  of  prosecu- 
tion, for  a  term  not  exceeding  term 
now  specified ;  when  a  fine  in  said 
cases  is  imposed  as  part  of  the  penalty, 
in  default  of  liquidation  thereof,  the 
judge  may  sentence  to  hard  labor  at 
the  rate  of  $i.00  per  day. 

Missouri  If  the  punishment  be  by  fine  and  the 

iine  be  not  paid,  for  every  dollar  of 
such  fine  the  prisoner  shall  work  one 
day  and  shall  also  work  for  such  per- 
iod of  time  as  he  would  otherwise  be 
required  to  remain  in  jail  in  order  to 
be  released  from  the  payment  of  any 
costs,  in  such  case. 

Rhode  Island  Fines  can  be  worked  off  at  fifty  cents 

a  day  for  first  thirty  days;  and  $i.oo 
for  ensuing  days. 

West  Virginia  Any    male    prisoner    imprisoned    for 

failure  to  pay  fine  and  costs  may  be 
ordered  by  the  county  court  to  work 
on  the  county  roads,  or  on  the  streets 
or  alleys  of  an  incorporated  city,  under 
the  direction  of  such  officer  as  court 
may  direct,  at  the  rate  of  $i.oo  per  day 
until  fine  and  costs  are  paid. 

Wyoming  In  cases  of  vagrancy  or  petit  larceny 

and  in  other  cases  in  which  a  justice 
has  jurisdiction  to  hear  and  determine, 
when  the  party  charsjed  is  found  guilty, 
it  shall  be  lawful  for  the  justice  to 
(262) 


R.  S.  1909,  C.  36, 

Sees.  1377-80. 


Acts  of  1878,  No. 
38,   Sec.   I. 


R.    S.    1909,    Sec. 
3733- 


Laws      191 1,      C. 
669. 

R.  S.  1906.  C.  36, 
Sec.  II 68. 


R.     S.     1910,    C. 
399,   Sec.   61 1 1. 


No.  4]  IVHV  IS  HE  CONFINED  1 1 

sentence  such  person  to  imprisonment 
at  hard  labor  or  to  fine  him  or  both ; 
and  in  default  of  paj'ment  of  fine,  the 
sheriff  shall  set  him  to  work  on  any 
public  improvements  which  he  may- 
deem  proper.  The  rate  of  compensa- 
tion to  be  allowed  by  the  county  for 
such  prisoners  shall  be  $1.00  a  day  for 
services  rendered  in  payment  of  fines 
imposed  and  costs  incurred,  when  not 
paid  in  cash. 

10.  ^'5  cents  for  each  day's  labor. 

Alabama  The    court    may    impose    hard    labor      R.    S.    1907.   Art. 

for  the  county  for  such  period,  not  to  5,  Sec.  7635. 

exceed    10  mos.,   as  may  be  sufficient  to 

paj'    the   costs,   at   the   rate    of    75    cents 

per  day,  and   the  court  must  determine 

the  time  required  to  work  out  the  costs 

at  this  rate. 
Arkansas  Each  person  worked,  as  provided  in      R.    S.    1904,    Sec. 

the  preceding  section,  shall  be  credited  7353- 

with   the   sum   of   75   cents   on   the   fine 

and    costs    adjudged    against    him    for 

every  full  day's  labor  so  performed  by 

him   when   he   is   kept   and   fed   by   the 

overseer  and  shall  be  credited  with  the 

sum  of  $1.00  for  each  dav's  labor  when 

he  boards  himself. 

11.  40  cents  for  each  day's  labor. 

Tennessee  Each    person    confined    in    the    work-      R.   S.   1896,  Title 

house    for    a    failure    to    pay    fine    and  7,  Art.  5,  Sees, 

costs,    shall   be   credited   at   the   rate   of  7417-21. 

40  cents  for  each  day  of  actual  work 
done  and  no  prisoner  shall  be  dis- 
charged upon  the  act  of  insolvency,  nor 
before  said  fine  and  costs  or  costs  only 
have  been  worked  out,  fully  paid  or  se- 
cured, unless  by  order  of  the  Board  of 
Commissioners. 

12.  JO  cents  for  each  day's  labor. 

Florida  No  such  convict  shall  be  required  to      R.   S.    1906,  Title 

work  more  than    10  hours  in  each   24,         4,     C.     2,     Sec. 
and    every    such    convict    shall    be    en-         41 13. 
titled  to  receive,  together  with  subsist- 
ence,  a  credit  at  the   rate   of  30  cents 
per  diem  on  account  of  fines  and  costs 
adjudged  against  him. 

13-     25  cents  for  each  day's  labor. 
Virginia  Any  person  held  to  labor,  under  the      R.   S.   1904.  Title 

provisions    of    this    chapter,    for    non-  53,  C.  191,  Sec. 

payment    of    any     fine    imposed     upon  3936. 

him,  shall  be  required  to  work  out  the 
full  amount  thereof,  including  the  legal 
costs,  at  the  rate  of  25  cents  per  day, 
for  each  day  so  held,  Sundays  ex- 
cepted, and  shall  be  entitled  to  a  credit 
of  25  cents  for  each  day  of  his  con- 
finement, whether  he  labors  or  not.  No 
(^63) 


12  THE  CAGED  MAN  [Vol.  Ill 

person  shall  be  held  to  labor  in  any 
chain  gang  for  the  non-payment  of  any 
fine  imposed  upon  him  for  a  longer 
period  than  6  months. 

14.  Added  allowance  for  efficient  labor. 

Mississippi  Any   convict   working   under    the    di-     R.  S.  1906,  C.  22, 

rection    of    the    Board    of    Supervisors,  Sec.  842. 

who  renders  efficient  services  and  com- 
plies with  all  necessary  rules  and  regu- 
lations, may  have  deducted  from  his 
fine  and  the  term  of  his  imprisonment 
one-fourth  thereof. 

15.  Journeyman's  i^age  jar  like  labor. 

Connecticut  Prisoners    held    for    costs    only    al-     R.     S.     1902,    C. 

lowed  the  wages  of  journeymen  for  like  176,    Sec.   2913. 

labor.  If  in  judgment  of  directors 
convict  is  unable  to  pay  costs  and  has 
conducted  himself  well  during  his  con- 
finement warden  may  remit  them. 

16.  Amount  obtained  for  prisoner's  labor. 

Michigan  Convicts     committed     in     default     of     R.  S.  1897,  C.  86, 

payment   of   fines   shall   be   allowed   the  Sec.   12. 

amount    obtained    for    their    labor,    less 

the     cost     of     their     support.        When 

amount   of  fine  is  completed   they   shall 

be  discharged. 
New  Hampshire         Convicts  committed  in  default  of  pay-     R.     S.     1901,     C. 

ment    of    fines    shall    be    allowed    the  282,  Sec.  15. 

amount    obtained    for    their    labor,    less 

the  cost  of  their  support. 
New   Jersey  When   judgment   is   given   in   any  of     R.  S.   19 10,  Page 

the  courts   of  the   state   for   fine   or   im-  1874,    Sec.    162. 

prisonment,    with    or    without    costs,    it 

shall  be   lawful   to   place    the   defendant 

against   whom    such   judgment    shall   be 

rendered  at  labor  in  any  county  jail  or 

penitentiary,    until    fine    and    costs    are 

paid  by  the  proceeds  of  such  labor. 
North   C.'VROI.ina         The   Board   of  Commissioners  of  the      Laws  of  1908,  C. 

several   counties   may   hire   out   persons         24,  Sec.  4. 

imprisoned  in  jails  who   fail  to  pay  all 

the    costs    they    are    adjudged    to    pay, 

provided  the  amount  realized  from  hir- 
ing  out   such   persons   shall   be   credited 

to  them  on  the  fine  and  bill  of  costs  in 

all  cases  of  conviction. 

B.  Prisoners  serving  sentences,  either  fixed  or  indeterminate. 

The  prisoner  convicted  of  crime  is  sentenced  for  a  fixed  or 
indeterminate  period  to  penal  servitude.  This  period  may  be 
determined  by  statute,  by  the  judge  at. the  time  of  conviction, 
limited  by  the  statutor\^  designations  as  maximum  and 
minimum  penalty,  or  it  may  be  indeterminate  in  that  the 
maximum  is  designated  but  the  actual  time  can  be  affected  by 

(264) 


No.  4] 


JFHV  IS  HE  CONFINED 


13 


the  conduct  of  the  prisoner  judged  by  a  duly  constituted  board 
of  judgment.  Term  or  fixed  sentences  are  still  found  for  some 
crimes  in  every  state.  There  are  no  indeterminate  sentences 
prescribed  by  law  as  yet  in  Alabama,  Arkansas,  California, 
Delaware,  District  of  Columbia,  Florida,  Georgia,  Louisiana, 
Maine,  IMar^'land,  Mississippi,  Missouri,  Montana,  Nevada, 
North  Carolina,  Oregon,  Rhode  Island,  South  Carolina, 
Tennessee,  Texas,  Utah,  Vermont,  Virginia,  Washington, 
West  Virginia,  Wisconsin. 


Arizona 


Colorado 


Connecticut 


Idaho 


Indiana 


Illinois 


Iowa 


Kansas 


Sentences  are  Indeterminate  in: 

For  convicts  over  18  years  of  age, 
for  any  crime,  except  treason  and  first 
degree  murder,  the  maximum  and 
minimum  sentence  to  be  that  pre- 
scribed by  law  for  the  crime. 

For  any  person  sentenced  to  prison 
for  other  than  life  term,  the  minimum 
sentence  not  to  be  less  nor  the  maxi- 
mum more  than  prescribed  by  law  for 
the  crime. 

For  all  persons  except  tramps  or 
those  with  a  life  sentence,  committed 
to  prison  or  reformatory.  The  maxi- 
mum not  greater  than  specified  by  law  ; 
the  minimum  not  less   than  one  year. 

For  all  persons  except  those  con- 
victed of  treason  or  murder  of  the 
first  degree.  Maximum  shall  not  ex- 
ceed the  longest  term  fixed  by  law ; 
the  minimum  shall  not  exceed  the  mini- 
mum fixed  by  statute,  and  no  minimum 
to  be  less  than  6  mos.  and  where  the 
sentence  may  be  for  life  or  a  number 
of  years,  the  court  shall  fix  maximum. 

For  any  male  persons  thirty  or  over, 
convicted,  except  of  treason,  first  and 
second  degree  murder.  Minimum  and 
maximum  sentences  to  be  those  pro- 
vided by  law. 

For  every  male  person  over  21  and 
every  female  over  18  convicted  of  fel- 
on}-,  except  treason,  murder,  rape  and 
kidnaping.  The  maximum  shall  not 
exceed  maximum  provided  by  law  ;  the 
minimum  not  less  than  one  year,  mak- 
ing allowance  for  good  time  as  pro- 
vided by  law. 

For  any  person  over  16,  convicted  of 
felony,  except  treason  or  murder. 
Maximum  not  more  than  provided  by 
law ;  no  minimum  set  forth. 

For  all  persons  except  those  con- 
victed of  murder  or  treason.  Mini- 
mum and  maximum  sentences  those 
prescribed  by  law.  subject  to  control 
of  trial  iudge. 

(26s) 


Laws  1912,  C.  46. 


R.  S.  1908,  C.  35. 
Sees.  2037-8. 


R.  S.  1902,  Title 
7,  C.  97,  Sees. 
1535-7- 


R   S.  1909.  H.  B. 
No.  214. 


R.    S.    1908,    Sec. 
2152. 


R.  S.  1909,  C.  38, 
Sec.  498. 


R.  S.  1907,  Title 
26,  C.  2,  Sec. 
5718,  a  13. 

R.  S.  iao9.  C.  97, 
Sec.  6837. 


14 


THE  CAGED  MAN 


[Vol.  Ill 


Ken'TUCKY  For     persons     convicted     of     felony ; 

maximum  and  minimum  sentences  pro- 
vided by  law. 

Massachusetts  For    any    convict    sentenced    to    state 

prison  except  for  life  or  as  an  habitual 
criminal.  Minimum  sentence  not  less 
than  two  and  one-half  years.  Maxi- 
mum not  more  than  prescribed  by  law. 
Additional  sentence  begins  at  expira- 
tion of  first  minimum. 

MiCHIG.'VN  For  all  convicts  except  life. 

When  convict  has  served  25  years  of 
life  sentence  less  the  commutation 
which  would  have  been  allowed  if  his 
sentence  had  been  for  25  years,  Gov- 
ernor has  power  to  parole  him. 

Minimum  sentence  not  less  than  6 
months.  Maximum  not  more  than  pro- 
vided by  law.  Judge  can  recommend 
proper  maximum. 

Minnesota  For    all    convicts    except    those    con- 

victed of  treason  or  murder.  Life  pris- 
oners not  to  be  paroled  until  Xhty  have 
served  35  years  less  diminution  for 
good  conduct  which  would  have  been 
allowed  if  sentence  had  been  35  years. 
Maximum  shall  not  exceed  maximum 
provided  by  law  ;   minimum   not  stated. 

Nebraska  For    all    convicts    over    18    convicted 

of  penitentiary  oifence,  except  murder, 
treason,  rape,  kidnaping  or  having 
served  two  previous  terms.  The  maxi- 
mum and  minimum  sentences  to  be  pro- 
vided by  law. 

New  Hampshire  For  any  convict  sentenced  to  state 
prison  except  for  life  or  as  an  habitual 
criminal.  Maximum  and  minimum 
sentences  to  be  those  provided  by  law 
for  his  offense. 

New   Jersey  For  all  convicts   sent  to  state  prison 

except  first  degree  murder.  Maximum 
sentence  as  provided  by  law  ;  minimum 
not  less  than  one  year,  and  not  more 
than  one-half  of  maximum.  Where 
death  sentence  has  been  commuted 
minimum  must  be  twenty-five  years. 

New    Mexico  For    all    prisoners    sent    to    the    peni- 

tentiary. Court  to  fix  minimum  and 
maximum  sentences. 

New    York  For    all    first    offenders    convicted    of 

felonies  other  than  murder  of  first  or 
second  degree.  Minimum  sentence  not 
less  than  i  year  or  not  more  than  Yi 
longest  period  fixed  by  law  for  crime. 
Maximum  the  longest  period  fixed  by 
law. 

North    Dakota  For   any   person   convicted   of   felony 

except    treason,    murder    of    ist    degree, 

rape    and    kidnapping.      Maximum    and 

minimum  sentences  as  provided  by  law. 

(266) 


Laws   19 10,  C.  4. 


Laws      191 1,     C. 
451- 


Laws   IQ05,  C.   184. 
Acts     1911,     No. 
237- 


Laws      1905,      C. 
184. 


Laws      191 1,      C. 


Laws      191 1,      C. 
184. 


Laws      1909,      C. 
120. 


Laws      1911,      C. 
191. 


Laws  1909.  C.  32. 


5irdseye's  Con- 
solidated Laws, 
1909,  Art.  196, 
Sec.  2189. 


R.  S.  1909,  C.  175. 


No.  4]  IVHV  IS  HE  CONFINED 


15 


Ohio  Compulsory  for  all  prisoners  sent  to      R.    S.    19 10,    Sec. 

state  reformatory.  2132. 

Optional   for   prisoners   sent   to   state      R.    S.    1910,    Sec. 

penitentiary.  2160. 

Maximum     and     minimum     sentences      R.    S.    1910,   Sees. 

are    optional    with  judge    but   minimum  2141-4    &    Sees. 

cannot   be   less   than    prescribed   by   law  2167-75. 

for    offense    committed,    nor    maximum 

greater  than  prescribed  by  law. 
Pexxsylvaxia  For  any  person  sentenced  to  the  peni-      R.     S.     1909,    pp. 

tentiary.        Maximum      and      minimum  5329-31,  Sec.  6. 

sentences    to    be    determined    by    judge 

but    maximum    cannot    be    more    than 

prescribed    by   law   nor   minimum    more 

than  one-fourth  of  maximum. 
South    Dakota  For   all    first   offenders   over    16,  sub-      Laws      191 1,      C. 

ject   to    a   penitentiary    sentence,    except  169. 

for  treason  or  murder,  or  convicts  with 

abnormal     tendencies.       Maximum     and 

minimum  sentences   to  be  prescribed  by 

law. 
Wyoming  For    all    convicts    sentenced    to    the     R.  S.  1910,  C.  42, 

penitentiary    otherwise    than     for    life.  Sees.    530-531. 

The  maximum  sentence  to  be  no  longer 

than  prescribed  by  law  and  the  mini- 
mum not  less  than  minimum  pre- 
scribed.    Both  to  be  regulated  by  judge. 

C.  Prisoners  azvaiting  capital  punishment 

Pending  the  execution  of  the  death  penalty,  prisoners  so 
sentenced  are  confined  in  a  penal  institution.  Capital  punish- 
ment has  been  abolished  in  Kansas  (R.  S.  1909,  sec.  2496), 
Maine  (R.  S.  1903,  C.  119,  sec.  i),  Minnesota  (laws,  191 1, 
H.  F.  No.  2),  Michigan  (R.  S.  1897,  sec.  11470),  Rhode 
Island  (R.  S.  1909,  C.  343,  sees,  i  and  2)  except  for  life 
prisoners  who  commit  murder,  Wisconsin  (R.  S.  1889,  C.  181, 
sec.  4338).  Pro\-isions  determining  confinement  for  prisoners 
awaiting  execution  and  the  manner  of  their  execution  are 
found  in  the  following  states  : 

Alabama  R.  S.  1907,  C.  165,  Sec.  6310. 

R.  S.  1907,  C.  278,  Sec.  7639. 

Arizoxa  R.  S.  igoi.  Title  8,  C.  i.  Sec.  174. 

Arkansas  R.  S.  1904,  C.  49,  Sec.  2441. 

California  Penal  Code,  1909,  Title  8,  C.  2,  Sec.  1217. 

Colorado  R.  S.  1908,  C.  35,  Sec.  2028. 

Connecticut  R.  S.  1902,  C.  82,  Sec.  1141. 

Delaware  R.  S.  1893,  C.  32,  Sec.  11. 

District  of  Columbia  R.  S.  1911,  C.  19,  Sec.  801. 

Florida  R.  S.   1906.  Div.  5,  Title  2,  C.  2,  Sec.  3205. 

Georgia  R.  S.  191  i.  Sec.  1069. 

Idaho  R.  S.  1908,  P.  2,  Title  8,  Sec.  8020. 

Indiana  R.  S.  1908,  Sec.  2196. 

Illinois  R.  S.  igoq.  Page  827,  Sec.  439. 

(267) 


i6 


THE  CAGED  MAN 


[Vol.  Ill 


Iowa 

Kentucky 

Louisiana 

Maryland 

Massachusetts 

Mississippi 

Missouri 

Montana 

Nebraska 

Nevada 

New  Hampshire 

New  Jersey 

New  Mexico 

New  York 

North  Carolina 

North  Dakota 

Ohio 

Oklahoma 

Oregon 

Pennsylvania 

South   Carolina 

South  Dakota 

Tennessee 

Texas 

Utah 

Vermont 

Virginia 

Washington 

West  Virginia 

Wyoming 


R.  S. 

R.  S. 

R.  S. 

R.  S. 

R.  S. 

R.  S. 

R.  S. 


Penal 
R.  S. 
R.  S. 
R.  S. 
R.  S. 
R.  S. 
R.  S. 
R.  S. 
R.  S. 
R.  S. 


R.  S. 

R.  S. 

R.  S. 

R.  S. 

R.  S. 


897,  Sec.  4728. 

909,  C.  36,  Sec.  1 149. 

904,  Sec.  975. 

904,  Art.  27,  Sec.  335. 

902,  C.  207,  Sec.  2. 

908,  C.  29,  Sec.  1512. 

909,  Sec.  4450. 

907,  P.  I,  Title  8,  C.   I,  Sec.  8293. 

911,  P.    I,   C.    I,   Sees.   2050-2052. 

912,  Sec.  6386. 

901,  C.  255,  Sec.  6. 

910,  Page  1781,  Sec.  108. 
897,  C.  2,  Sec.  1066. 

Law,  1909,  C.  4,  Sec.  1044. 

908,  C.  8x,  Sec.  3631. 

905,  C.  18,  Sec.  8799. 

910,  Part  4,  Title  i,  C.  3,  Sec.  12400. 

903,  C.  25,  Art.  17,  Sec.  2174. 
910,  Title  19,  C.  2,  Sec.  1903. 

903,  Page  3486,  Sec.  9. 

902,  Criminal  Code,  C.   10,  Sec.   136. 
910,  C.  17,  Sec.  253. 

896,  P.  4,  C.  2,  Sec.  6442. 
89s,  Title  9,  C.  4,  Sec.  861. 
907,  C.  14,  Sec.  4162. 

906,  Title   12,  C.   114,  Sec.  2366. 

904,  Title  52,  C.  180,  Sec.  3663. 
910,  Title  14,  C.  5,  Sec.  2392. 
906,  C.  152,  Sec.  4454. 

910,  C.  385,  Sec.  5789. 
(268) 


Ill 

HOW  MAY  HE  BE  PUNISHED? 


Punishment  prescribed  by  the  court,  should  it  exceed  the 
statutory  provision/  or  the  common  acceptation  of  just 
penalty,'  may  be  declared  void  and  the  servitude  terminated.^ 

Cruel  and  Unusual  Punishments  are  Prohibited  in: 

Alabama  R.  S.  1907,  Sec.  6543. 

Arizona  Const.  1910,  Art.  2,  Sec.  15. 

Arkansas  Const.  1874,  Art.  2,  Sec.  9. 

Colorado  Const.   1876,  Art.  2,  Sec.  20. 

Florida  Const.   1885,  D.  of  R.,  Sec.  8. 

R.  S.   1906,  Art.  6,  Sec.  4139. 

Georgia  Const.  1877,  Art.   i,  Par.  9. 

Idaho  Const.  1889,  Art.  i,  Sec.  6. 

Illinois  R.  S.  1909,  C.  108,  Sec.  37. 

Indiana  Const.  1851,  Art.  i,  Sec.   16. 

R.   S.   1908,  C.   124,  Sec.  9864. 

Iowa  Const.   1857,  Art.  i,  Sec.  17. 

Kansas  Const.  1859,  B.  of  R.,  Sec.  9. 

R.  S.  1909,  C.  108,  Sec.  8583. 

Kentucky  Const.  1890,  B.  of  R.,  Sec.  17. 

Rev.  1909,  C.  97,  Sec.  3797. 

Louisiana  Const.   1898,  Art.   12. 

M.A.INE  Const.    1819,   Art.    i,    Sec.   9. 

Maryland  Const.   1867,  D.  of  R.,  Art.  25. 

Massachusetts  Const.  1780,  P.  i,  Art.  26. 

Michigan  Const.  1850,  Art.  6,  Sec.  31. 

Minnesota  Const.  1857,  Art.  i,  Sec.  5. 

Mississippi  Const.  1890,  Art.  3,  Sec.  28. 

Missouri  Const.  1875,  Art.  2,  Sec.  25. 

Montana  Const.  1889,  Art.  3,  Sec.  20. 

Nebraska  Const.  1875,  Art.  i,  Sec.  9. 

Nevada  Const.  19 10,  Art.  i,  Sec.  ^ 

R.  S.  1912,  Art.  8,  Sec.  178. 

New  Mexico  Const.  1910,  Art.  2,  Sec.  13. 

New   Jersey  Const.  1897,  Art.  i,  Sec.  15. 

New   York  Const.  1894,  Art.   i,  Sec.  5. 

North   Carolina  Const.  1876,  Art.  i,  Sec.  14. 

North  Dakota  Const.  1889,  Art.  i,  Sec.  6. 

Ohio  Const.  1851,  Art.  i,  Sec.  9. 

Oklahoma  Const.  1907,  Art.  2,  Sec.  9. 

Oregon  Const.    1857,  Art.   i,   Sec.   16. 

Pennsylvania  Const.  1873,  Art.  i,  Sec.  13. 

Rhode   Island  Const.  1842,  Art.  i,  Sec.  8. 

South   Carolina  Const.  1895,  Art.  i.  Sec.  19. 

South  Dakota  Const.  1889,  Art.  6,  Sec.  23. 

Tennessee  Const.  1870,  Art.  i,  Sec.  16. 

1  Robinson  v.  Miner,  68  Mich..  549. 

-  State  V.  Driver,  78  N.  Car.,  423.     State  v.  Miller,  75  N.  Car.,  73. 
3  Amer.  and  English  Ency.  of  Law,  2d  edit.,  vol  Vlll,  pp.  436-440. 

(269) 


i8 

Texas 

Utah 

Virginia 

Washington 

West  Virginia 

w'isconsin 

Wyoming 


THE  CAGED  MAN 


[Vol.  Ill 


Const.  1876,  B.  of  R.,  Sec.  13. 
Const.  1896,  Art.  i,  Sec.  9. 
Const.  1902,  Art.  i,  Sec.  9. 
Const.  1889,  Art.  i,  Sec.  14. 
Const.  1872,  Art  3,  Sec.  5. 
Const.  1848,  Art.  i,  Sec.  6. 
R.  S.  1898,  Sec.  4923. 
Const.  1889,  Art.  i,  Sec.  14. 


The  sentence  of  the  court  whether  expressly  provided  or 
not  is  understood  to  be  a  sentence  to  hard  labor. 

Punishment  Exceeding  Hard  Labor  is  Prohibited  in: 

Tennessee  Workhouse  prisoners.  R.   S.    1896,  Title 

7,   Art.   4,   Sec. 
7391- 

Punishment  other  than  hard  labor  is  often  permitted,  de- 
fined and  prescribed  b\'  law.  Indeed,  hard  labor,  under  rea- 
sonable restrictions  as  required  in  most  prisons,  is  healthful 
for  mind  and  body  and,  in  the  judgment  of  prisoners  is  a 
veritable  boon,  compared  with  enforced  idleness.  For  dis- 
ciplinan,'  purposes,  therefore,  other  forms  of  punishment  have 
been  instituted  by  prison  authorities  and  oftentimes  are  of  a 
character  that  amounts  to  torture.  Hence,  it  has  become  neces- 
sarv^  to  define  by  statute  the  parts  of  such  punishment  as  may 
amount  to  torture  and  to  define  definitely  those  that  are  per- 
mitted and  those  that  are  prohibited.  The  following  special 
forms  of  punishment  are  regulated  in  the  several  states  as 
follows : 


Delaware 
Idaho 
Indiana 
Iowa 

Kansas 

Louisiana 
Maine 
Maryland 
Massachusetts 


Solitary   Confinement   is  permitted   in: 
Bread  and  water  diet. 

Bread  and  water  diet. 

Bread  and  water  diet. 


Deprivation  of  light  and  limitation 
of  food  so  as  to  produce  distress  but 
not  hazard  the  life  of  the  convict. 


Bread  and  water  diet. 

10  daj's  on  bread  and  water. 

Solitary  labor  ;  bread  and  water  diet 
unless  physician  directs  otherwise. 

(270) 


R.     S.     1893,     C. 

133.  Sec.   5. 
R.    S.    1098,    Sec. 

8502. 
R.     S.     1908,     C. 

124,  Sec.  10036. 
R.  S.   1907,  Title 

26,  C.    2,    Sec. 
5675. 

R.     S.     1909,     C. 

108,     Art.     30, 

Sec.  8583. 
R.    S.    1904,    Sec. 

2864. 
R.     S.     1903,     C. 

141,   Sec.   39. 
R.    S.    1904,    Art. 

27.  Sec.  640. 
R.     S.     1902,     C. 

225,  Sees.  34  & 
35- 


No.  4] 

Michigan 

New  Hampshire 

Oklahoma 
Pennsylvania 

South  Carolina 

Tennessee 

Utah 

Wisconsin 

New    Mexico 

New  Jersey 

New  York 
Oregon 

South    Dakota 

Virginia 

South  Carolina 
Virginia 


HOW  MAY  BE  BE  PUNISHED 


Life  prisoners  who  assault  prison 
officials  or  attempt  escape  may  be  sen- 
tenced to  six  months. 

Other  prisoners  for  30  days. 

Not  more  than  3  days ;  bread  and 
water  diet  unless  other  food  is  necessary 
for  preserving  health  of  convict. 

Confinement  may  be  at  hard  labor. 


Bread     and    water     diet ;     not    more 
than  30  days  for  one  offense. 


Bread  and  water  diet. 


2.  Dungeons   are  permiited   in: 

Jail  prisoners  may  be  confined  i 
week  on  bread  and  water. 

Solitary  confinement  on  bread  and 
water  diet  with  chain  on  leg  or  hand- 
cuffs or  both  for  six  days. 

Short  allowance  prescribed  by  phy- 
sician. 

Everj^  jail  to  have  one  cell  or  dun- 
geon for  confinement  of  criminals  sen- 
tenced  to  solitary   confinement. 

On  bread  and  water  diet.  Not  more 
than  three  days  for  one  offense. 


3.  Blood  Hounds  are  permitted  in: 

To  be  kept  for  the  purpose  of  track- 
ing fugitive  convicts. 

To  be  maintained  at   the   expense  of 
the  county. 


19 

R.     S.     1897,    C. 

75,  Sec.  37- 
R.     S.     1901,    C. 

285,   Sec.    12. 

R.     S.     1901,     C. 

285,   Sec.   15. 
R.    S.    1903,    Sec. 

5731- 

R.  S.   1907,  Page 

2010,     Sec.     I, 

Page  3486,  Sec. 

II. 
R.  S.   1902,  Title 

2,    C.    3,i,    Sec. 

661. 
R.  S.   1896,  Sees. 

7537-8. 
R.    S.    1907,    Sec. 

2262. 
R.   S.   1898,  Title 

34,  C.  201,  Sec. 

4917. 


R.  S.  1897,  Title 
7,  C.  9,  Sec. 
830. 

R.  S.  1910,  Page 
4913- 

R.  S.  1909,  C.  47, 
Art.  6,  Sec.  154. 

R.  S.  1910,  C.  14, 
Sec.  4525. 

R.  S.  1910,  Title 
12,  Sees.  673  & 
752. 

R.  S.  1904,  Sec. 
4143- 


R.   S.   1902,  Title 
2,    C.    32,    Sec. 

659- 
Acts   of    1910,   C. 
213. 


4.   Shackles  and  Chains : 


(A)   Permitted  in; 
Alabama  Only  with  con  - 

sent    of    inspec- 
tors. 

Connecticut 


(B)  Prohibited  in: 


R.  S. 
1907, 
Sec. 

6545- 
R.  S. 
1902, 

Sec. 
2900. 


Louisiana 


R.  S. 
1904, 
Page 

1315* 
Sec.  2. 


(271) 


20 


THE  CAGED  MAN 


[Vol.  Ill 


'A)    Permitted  in: 

(B)  Prohibited  in: 

Colorado 

Convicts  at 

R.  S. 

I  New  Jersey       Shackled  con-      Acts  of 

work  on  streets, 

1908, 

victs  may  not  be         191 1, 

quarries,    or    in 

Sec. 

marched  through       C.  372. 

mines. 

2023. 

the  streets  of  any 

Florida 

Municipal  con- 

R. S. 

community,    nor 

victs    who    have 

1906, 

employed   under 

escaped  and  been 

Art.  2, 

guard  upon  pub- 

recaptured. 

Sec. 

lic  improvements 

4114. 

where  free  labor 

Georgia 

Chain    gang 

R.  S. 

is  employed. 

permitted. 

1911. 
Sec.  697. 

Idaho 

Ball  and  chain 

R.  S. 

attached  to  one 

1908, 

leg. 

Sec. 
8502. 

Kansas 

Ball  and  chain 

R.  S. 

so  used  as  not  to 

1909, 

torture  limbs. 

C.  108, 
Art.  30, 

Sec. 

8583. 

Massachu- 

Log and  chain 

R.  S. 

setts 

for  county  pris- 

1902, 

oners. 

C.  225, 
Sec.  37. 

New  Jersey 

Chain   on    leg 

R.  S. 

or  handcuffs,  or 

1910, 

both,    permitted 

Page 

on    prisoners    in 

4913- 

solitary'    confine- 

ment. 

Oklahoma 

R.  S. 

1903, 
Sec. 

5731- 

Pennsyl- 

Keepers of 

R.  S. 

vania 

county  jails  may 

1907, 

put    iron    yokes 

Page 

round  prisoner's 

201 1, 

neck,  chains  on 

Sec.  I, 

leg,  or  otherwise 

restrain  in  irons. 

South 

Chain     gangs 

R.  S. 

Carolina 

permitted,       for 

1902, 

convicts  with 

Sec. 

sentence     under 

772-3- 

five  years. 

South 

Ball  and  chain 

R.  S. 

Dakota 

for  county   con- 

1910, 

victs. 

Title  12, 
Sec. 

■WASHINGTO^ 

Ball  and  chain 

745- 
R.  S. 

for  county  con- 

1910. 

victs. 

Sec. 
8493- 

West 

Ball  and  chain 

R.  S. 

Virginia 

for  county   con- 

1906. 

victs. 

C.  36. 

Sec. 
I168. 

(272) 


No.  4] 


HOW  MAY  HE  BE  PUNISHED 


21 


5 ,   Reductii 

3«  of  Food. 

(A)  Permitted  in: 

(B)  Prohibited  in: 

Tennessee 

Jail    prisoners 

Laws 

Florida 

Labor  without 

R.  S. 

refusing  to  work 

1899, 

food. 

1906, 

to  have  only  one 

c.  358. 

Art.  6, 

meal  a  day  until 

Sec. 

they     do      good 

4139- 

work. 

Montana 

Rations     may 

R.  S. 

Virginia 

With  the  con- 

R. S. 

not    be   reduced 

1907, 

sent  of  the  Gov- 

1904, 

without  reducing 

Sec. 

ernor    misdeme- 

Sec. 

the    amount    of 

9736. 

anornot  amount- 

4143- 

labor  required. 

ing  to  felony  may 

Nevada 

Rations     may 

R.  S. 

be  punished  with 

1 

not    be   reduced 

1912, 

lower  and  coarser 

unless    hours   of 

Sec. 

diet. 

labor      are      re- 
duced. 

1S19- 

6. 

The  Gag,  Iron  Mask,  etc. 

(A)  Permitted  in: 

(B)  Prohibited  in : 

Virginia 

R.  S. 

Connecticut      Fine  of  $50.00 

R.  S. 

1904, 

for  officer  using 

1902, 

Sec. 

gag. 

Sec. 

4143- 

2924. 

Massachu 

Fine  of  $50.00 

R.  S. 

setts 

for  officer  using 
gag- 

1902, 
C.  225, 
Sec.  33. 

7.    Corporal 

Punishment 

(A)   Permitted  in: 

(B)   Prohibited  in: 

Alabama 

Administered 

R.  S. 

Georgia 

Const. 

only  by  party  au- 

1907, 

1877. 

thorized  by  Pres- 

Sec. 

Art.  I, 

ident    of    Board 

6543- 

Par.  7. 

of  Inspectors. 

Illinois 

R.  S. 

Connecticut      Moderate 

R.  S. 

1909, 

whipping,     not 

1902, 

C.  108, 

exceeding  lo 

Sec. 

Sec.  37. 

stripes    for    one 

2900. 

Kansas 

R.  S. 

offense. 

1909, 

Delaware 

In   extreme 

R.  S. 

C.  108, 

cases    overseer 

1893, 

Art.  30, 

with    consent   of 

C.  54, 

Sec. 

one  commission- 

Sec. 10. 

8583. 

er     may     inflict 

Maine 

R.  S. 

moderate    whip- 

1903, 

ping. 

C.  141, 

Whipping  may 

Laws  of 

Sec.  10. 

only  be  inflicted 

1905, 

Michigan 

Whipping  with 

R.  S. 

by  agents  of  the 

C.  125. 

lash     on    bare 

1897, 

board . 

body. 

C.  75, 

Georgia 

Whipping  Boss 

R.  S. 

Sec.  40. 

to   be  appointed 

1911, 

Montana 

R.  S. 

b  y     County     or 

Title  7, 

1907, 

m  u  n  i  c  ipal  au- 

Sec. 858. 

Sec. 

thorities,    which 

9736. 

fix   his   compen- 

Nevada 

R.  S. 

sation   and   pre- 

1912^ 

scribe  his  duties. 

Sec. 
7S9Q. 

(273) 


22 


THE  CAGED  MAN 


(A)  Permitted  in : 

(B)  Prohibited  in: 

Indiana 

Only  by  order 

R.  S. 

New  Mexico 

R.  S. 

of     Warden    in 

1908, 

1897, 

presence  of  pris- 

C. 124, 

Sec. 

on  physician  and 

Sec. 

1056. 

moral  instructors 

9867. 

New  Jersey 

R.  S. 

of  prison.      Not 

1910, 

until    12     hours 

Page 

after  offense  and 

4913. 

only  between 

Art.  7. 

the   hours    of    8 

New  York         Blows. 

R.  S. 

and  lo  a.  m. 

1909, 

Kentucky 

In  presence  of 

R.  S. 

C.  47, 

Warden.      Not 

1909, 

Art.  6, 

until     12    hours 

C.  97, 

Sec.  153. 

after  offense. 

Sec. 

Utah                  Whipping  with 

R.  S. 

3797- 

a  lash. 

1907, 

Louisiana 

Board  of  Con- 

Acts of 

Sec. 

trol    responsible 

1900, 

2266. 

that  punishment 

No.  70, 

Wisconsin 

R.  S. 

is  not   harsh  or 

Sec.  6. 

1898, 

severe. 

Title  34, 

Maryland 

1 3  lashes  max- 

R. S. 

C.  201, 

imum  ;      warden 

1904, 

Sec. 

may       authorize 

Art.  27, 

4923- 

under  officers  to 

Sec.  640. 

inflict  one  to  five 

lashes;  to  be  re- 

sorted to  as  little 

as  possible. 

Michigan 

Only  in  pres- 
ence   of     prison 
physician. 

R.  S. 
1897, 

C.  75. 
Sec.  40. 

Mississippi 

Superintend- 
ent allows    farm 
sergeants      the 
privilege    of    in- 
flicting   corporal 
punishment; 
farm      sergeants 
forbidden      t  h  e 
use     of     intoxi- 
cants. 

R.  S. 
1906, 
C.  107, 
Sec. 
3602. 

Sec. 
3617. 

Rhode 

Only  under  di- 

R. S. 

Island 

rection      of      at 
least   two   mem- 
bers of  board. 

1909, 
C.  360, 
Sec.  23. 

Texas 

Whipping  not 
exceeding    20 
lashes    on    the 
bare    rump    and 
thigh  to  prison- 
ers of  the  third 
class;  strap  to  be 
of    leather,    not 
over   2I-2   inches 
wide    and     24 
inches   long,   at- 
t  a  c  h  e  d    to    a 
wooden  handle; 

R.  S. 
1911, 
Title  19, 
Page 
1637- 

(274) 


No.  4] 


Utah 


(A)  Permitted  in : 

whipping  must 
be  authorized  by 
2  members  of 
board  of  com- 
missioners; phy- 
sician must  be 
present;  skin  of 
con^-ict  must  not 
be  broken. 

Only  in  pres- 
ence of  physi- 
cian. 


HO  W  MA  Y  HE  BE  PUNISHED 

(B)  Prohibited  in : 


23 


R.  S. 
1907, 
Title  57. 
Sec. 
2266. 


8.  Showering  with   Cold   Water  is  prohibited  in: 


Michigan 
Montana 
New  York 
Utah 

Delaware 


9.  Stocks  are  prohibited  in: 
10.   Crucifix,  Yoke  and  Buck  are  prohibited  in: 


R.     S.     1897,     C. 

75,  Sec.  40. 
R.    S.    1907,   Sec. 

9736. 
R.  S.  1909,  C.  47, 

Art.  6,  Sec.  153. 
R.    S.    1907,    Sec. 

2266. 


Laws  of  1905,  C. 


New  York  R.  S.  1909,  C.  47, 

Art.  9,  Sec.  153. 

II.  Punishment  Injurious  to  Mind  or  Body  is  prohibited  in: 
Florida  R.   S.    1906,   Art. 

6,  Sec.  4139. 
Kansas  Binding    the    limbs    or    any    member  R.     S.     1909,     C. 

thereof   or  keeping  prisoner   in   painful  108,     Art.     30, 

posture.  Sec.  8583. 

12.   Greater  or  More  Severe  Punishment  than  Prescribed  by  Board  is  pro- 
hibited in: 
Arkansas  Officer     inflicting    such     punishment  R.    S.    1904,    Sec. 

guilty   of    felony    and   liable    to   impris-  5923- 

onment  from  one  to  five  years.  If 
death  ensues  he  and  his  abettors  guilty 
of  murder  or  manslaughter. 

(275) 


IV 


HOW   CAN    HE   BE   WORKED? 

The  prisoner  is  the  property  of  the  state  or  a  subdivision  of  the 
state  while  he  is  in  penal  servitude.  This  property  right  the  state 
or  its  subdivision  may  lease  or  retain  for  its  own  use,  the  manner 
being  set  forth  in  state  constitutions  and  acts  of  legislatures.' 


I .    He  May  be  Leased  to 
(A)   Permitted  in: 
Alabama  State  convicts. 


County      con- 
victs. 


Individuals  for  Work  Outside  the  Institution 
(B)  Prohibited  in : 


R.  S. 

1907, 
C.  191, 

Sec. 

6484. 

R.  S. 

1907, 
C.  191, 

Sec. 
6580-1. 


Not  more  than 

R.  S. 

20  state  orcounty 

1907, 

convicts     to     be 

C.  191, 

hired  to  one  per- 

Sec. 

son  at  the  same 

6528. 

time.     Leasing 

to  relatives  pro- 

hibited. 

Arkansas          County     con- 

R. S. 

victs. 

1904, 

Sec. 

IIOI. 

Florida             No  act  leading 

R.  S. 

to    leasing    per- 

1907, 

mitted  until  July, 

Sec. 

1913- 

4146. 

Acts  of 

1911, 

Com. 

Res.  12. 

Louisiana          County     con- 

Laws of 

victs   leased    for 

1894, 

road  work. 

No.  29. 

No  convict 

R.  S. 

whose     sentence 

1904, 

is  for  more  than 

Page 

2    years    to     be 

1313. 

leased  and  none 

Sec.  2. 

to  be  leased  out 

of  county  where 

convicted. 

Alabama 


Iowa 


Kansas 


Tennessee 


Utah 


Leasing    to 
relatives. 


For 
work. 


road 


Em  pi  oyment 
under  contract 
outside  prison 
prohibited. 

A  misdemeanor 
to  hire  out  a  fe- 
male convict, 
either  as  cook, 
washerwoman  or 
for  any  other 
purpose. 

The  labor  of 
convicts  outside 
the  prison 
grounds,  except 
on  public  works 
under  the  direct 
control  of  the 
state. 


R.  S. 

1907, 
C.  191, 

Sec. 

6528. 

R.  S. 

1897. 
Title  4, 

C.  6, 

Sec. 

5654. 
R.  S. 
1909, 
Sec. 

8595- 

R.  S. 

1897, 

C.  125, 

Sec.  28, 


Const. 

1895, 

Art.  16, 

Sec.  3. 


'  Whitin,  E.  Stagg,  "  Penal  Servitude,"  Introduction. 
(276) 


HO  W  CAN  HE  BE  WORKED 

25 

A)  Permitted  in: 

(B)   Prohibited  in: 

North 

County      pris- 

R. S. 

Carolina 

oners. 

1908, 
C.  24, 
Sec. 
1352. 

South 

County      con- 

R. S. 

Carolina 

victs  to  be  leased 
for  road  work. 

1902, 
C.  20, 
Sec. 
777- 

Tennessee 

The  more  able- 
bo  died    short- 
term     convicts, 
not  otherwise 
employed  or  that 
cannot    be    em- 
ployed   within 
the   walls  or   on 
the  farm,  may  be 
employed    under 
contract  in  road- 
building,     farm- 
ing, etc.,  where 
competing      the 
least    with     free 
labor.    Any  con- 
tract   of    more 
than  ninety  days 
to    be    approved 
by  Governor, 
Secretary   of 
State  and  Attor- 
ney General. 

Laws  of 

1897, 

C.  125, 

Sec.  31. 

2.   Leased  to  Individuals  for  Work  Inside  the  Institution. 

(A)  Permitted  in: 

(B)  Prohibited  in: 

Colorado 

R.  S. 

1908, 

C.  108, 

Sec. 

California 

Laws  of 

1911, 

P.  I.  C. 

56. 

4851. 

Georgia             No      contract 

R.  S. 

Connecticut     No     contract 

Laws  of 

whereby   con- 

1911, 

for  more  than  4 

1911, 

tractor   is   inter- 

Vol. II, 

years. 

C.275. 

ested  in  amount 

Sec. 

Idaho 

R.  S. 
1908, 

of  work  done  by 
prisoners. 

1212. 

Sec. 

Indiana              At     Reforma- 

Laws of 

8461. 

tory. 

1911, 

Indiana 

Labor  of  400 

R.  S. 

C.  212. 

convicts    to    be 

1908, 

Illinois 

R.  S. 

leased,     and     if 

C. 124, 

1909, 

population      ex- 

Sees. 

C.  108, 

ceeds    800,    fifty 

9845- 

Sec.  79. 

per  cent  of  num- 

9847. 

Kansas               R  e  f  0  rmatory 

R.  S. 

ber  above  800  to 

prisoners. 

1909, 

be   leased    also; 

C. 108, 

number  of  con- 

Art. 131, 

victs  in   one  in- 

Sec.  748. 

(277) 


26 


THE  CAGED  MAN 


[Vol.  Ill 


Iowa 


Kansas 


Kentucky 


Maine 


Maryland 


Massachu- 
setts 


Minnesota 


Nebraska 


(A)  Permitted  in: 
dustry  not  to  ex- 
ceed I go;  no 
contracts  to  run 
beyond  Oct.  i, 
1910. 

Warden  with 
consent  of  exec- 
utive council  to 
make  contracts. 
Contracts  to  run 
ID  years. 

Contracts  not 
to  exceed  6  years 
and  to  go  to  the 
highest  bidder; 
price  not  less 
than  45  cents 
per  day  per  man. 

Contract  to  run 
4  years. 


Warden  to 
make  contracts; 
not  more  than 
20  per  cent  of 
male  convicts  to 
be  employed  at 
one  time  in  one 
industry  and,  so 
far  as  practic- 
able, convicts 
to  manufacture 
goods  not  man- 
ufactured else- 
where in  the 
state. 

Directors  to 
make    contracts. 


Copies  of  all 
contracts  at  all 
times  to  be  pub- 
lic documents. 

Under  name  of 
"  piece-price." 


As  rapidly  as 
it  can  be  done, 
state  to  provide 
for  employment 
of  convicts  on 
its  own  account; 
contracts  not  to 
extend  over  3 
years. 


R.  S. 
1897, 
Sec. 
5702. 


R.  S. 
1909, 
C. 108, 
Sec. 
8591. 


R.  S. 

1909, 

C.  97. 

Art.  I, 

Sees.  13, 

I5>  17- 
R.  S. 

1903, 
C. 141. 

Sees. 
19.  31- 


R.  S. 

1904, 
Art.  27, 
Sec.  565. 

R.  S. 

1902, 
C. 225. 
Sec.  50. 

R.  S. 

1905, 
C. 105, 

Sec. 

5447- 
R.  S. 
1911, 
Sec. 
IQ166. 


(B)  Prohibited  in : 
Michigan  No    new  con- 

tracts after  Dec. 
II,  1911. 

Minnesota  After  expira- 
tion of  existing 
contracts. 


At     Reforma- 
tories. 

Mississippi         State  convicts. 


County  con- 
victs. 


Missouri  After    expira- 

tion of  contracts 
existing  in  191 1. 

Montana 


New  Mexico 


New  Jersey 


New  York 


North 
Dakota 


Louisiana 


Ohio 


Oklahoma 


Leasing  for 
other  than  road 
work  prohibited. 


Laws  of 

1909, 
No.  140. 

R.  S. 

1905. 

C. 105, 

Sec. 

5447- 
Sec. 

5458. 

Const. 

1890, 
Art.  10, 
Sec.  223. 
Laws  of 

1908, 

S.  B. 
No.  83. 

Laws  of 
1911, 
S.  B. 

No.  23. 

Const. 

1889. 

Art.  18, 

Sec.  2. 

Const. 

1910, 
Art.  20, 
Sec.  iS. 
Laws  of 

1911, 

S.  B. 

ISO- 
Const. 

1904, 
Art.  3, 
Sec.  29. 

R.  S. 

1905, 

Sec. 

10394. 

R.  S. 

1904, 
Page 

1315. 
Art.  2. 

Const. 

Amdt. 

1912, 

Art.  2, 

Sec.  41. 

Const. 

1907, 

Art.  23, 

Sec.  2. 


(278) 


No.  4] 


HOW  CAN  HE  BE  WORKED 


27 


(A)   Permitted  in: 

(B)   Prohibited  in: 

Nevada 

State  convicts. 

R.  S. 

Oregon 

For  manufac- 

R. S. 

1912, 

ture  of  overalls, 

1910, 

Sec. 

shirts,    under- 

Sec. 

7561. 

wear,    boots    or 

4519- 

County  con- 

R. S. 

shoes,     or     any 

victs. 

1912, 
Sec. 
7609. 

clothing,  head  or 
foot  gear  of  any 
description. 

New  Hamp 

Governor  with 

R.  S. 

Pennsyl- 

After    expira- 

R. S. 

SHIRE 

advice  of  council 

1 90 1, 

vania 

tion  of  exisiting 

1895, 

makes  contracts. 

C.  285, 

contracts,     con- 

page 

Sec.  5. 

\dcts  to   be  em- 

3487, 

North 

State     prison- 

R.  S. 

ployed  on  behalf 

Sec.  18. 

Carolina    ers. 

1908, 

of  the  state. 

C. 116, 

Sec.  697. 

Sec. 

Utah 

R.  S. 

5391- 

1910, 

Oregon 

Contracts    not 

R.  S. 

Sec. 

to      exceed      10 

1910, 

2257. 

years;  price  not 

Sec. 

Const. 

less  than  35  cents 

4518. 

1895, 

per  day  per  man. 

Art.  16, 

South 

Contracts   not 

R.  S. 

Sec.  3. 

Dakota 

to    exceed     5 

1910, 

Washington      After  Jan.    i, 

Const. 

years. 

Title  12, 
Sec.  694. 

1890. 

1889, 
Art.  2, 

Rhode 

R.  S. 

Sec.  29. 

Island 

1909, 
C.  360,     i 
Sec.  12. 

Wyoming 

Laws  of 
1911, 
C.  61. 

Tennessee 

Not  more  than 
199   men    under 
any  contract  un- 
til July  I,  1915. 

County  con- 
victs. 

Laws  of 
1909, 
H.  B. 

789. 

R.  S. 

1896, 

Title  7, 

Art.  5, 

Sec. 
7428. 

Vermont 

Contracts   not 
to    exceed    5 
years. 

R.  S. 

1906, 
Title  33, 
C.  260. 

Sec. 

5995- 

Virginia 

Convicts  who, 
because      of 
health,  character 
0  r      disposition, 
are  deemed   un- 
safe     for     road 
work,     may     be 
hired  out  to  work 
at    Penitentiar)-, 
pro\aded  number 
of     convicts     so 
hired,     exclusive 
of  women,   does 
not  exceed  500; 

Laws  of 
1972, 
C.  59- 

(279) 


28 


THE  CAGED  MAN 


[Vol.  Ill 


(B)   Prohibited  in ; 


(A)  Permitted  in: 

and  provided 

further  that  the 

present   contract 

shall  not  be  re- 
newed; nor  shall 

any  contract  be 

made  if  convicts 

can  be  profitably 

worked    without 

a  contract.     No 

contract    to    ex- 
ceed    5     years. 

Contracts   to   be 

made    with    the 

consent    of    the 

Board  of  Direct- 

o  r  s,     Governor 

and  Secretary  of 

State    Board    of 

Charities,    or    a 

majority  of  them, 

of     which      the 

Board  of  Direct- 
ors shall  be  one. 

The    tasks    pro- 
vided   under    all 

contracts    to    be 

fixed  by  the  Su- 
perintendent. 
Wisconsin         Contracts   not        R.  S. 

to     exceed     five         1889, 

years.  Sec. 

4938. 

West  R.  S. 

Virginia  1906, 

Sees. 
4659- 
4677. 

3.   The  State  may  work  him  in  State  hidustries  for  State  consumption 
California 


Idaho 

Indiana 

Kansas 

Massachusetts 
Missouri 
New  Jersey 


Preparing  grounds,  and  manufactur- 
ing material  for  state  sanitarium. 
Reformatory. 

Coal  mined  by  convict  labor. 


Extension  of  market  to  all  public  in- 
stitutions, state  and  county. 


Beginning  April  i,  1912.  at  least  300 
state  convicts  are  to  be  added  each  year 
to  number  employed  under  state  use 
till  all  are  so  employed. 


Laws    of    191 1,    P. 

I,  C.  56. 
Laws  of  1911,  C. 

41. 
Acts   of   1911,   C. 

212. 
R.     S.     1909,    C. 

108,     Art.     30, 

Sec.  8596-8600. 
Laws  of  1910,  C. 

414. 
Laws  of  1912,  C. 

565. 
Laws  of  1911,  C. 
414. 


Laws  of   191 1,  S. 
B.    150. 


(280) 


No.  4] 


HOW  CAN  HE  BE  WORKED 


29 


New   York  Const.   1894,  Art. 

3,  Sec.  29,  Laws 
of  1909,  C.  47, 
Sec.   175. 

"  The  legislature  shall,  by  law,  provide  for  the  occupation  and  employment 
of  prisoners  sentenced  to  the  several  state  prisons,  penitentiaries,  jails  and 
reformatories  in  the  state ;  and  on  and  after  the  first  day  of  January,  in  the 
year  one  thousand  eight  hundred  and  ninety-seven,  no  person  in  any  such 
prison,  penitentiary,  jail  or  reformatory,  shall  be  required  or  allowed  to  work, 
while  under  sentence  thereto,  at  any  trade,  industry  or  occupation,  wherein  or 
whereby  his  work,  or  the  product  or  profit  of  his  work,  shall  be  farmed  out, 
contracted,  given  or  sold  to  any  person,  firm,  association  or  corporation.  This 
section  shall  not  be  construed  to  prevent  the  legislature  from  providing  that 
convicts  may  work  for,  and  that  the  products  of  their  labor  may  be  disposed 
of  to  the  state  or  any  political  division  thereof,  or  for  or  to  any  public  institu- 
tion owned  or  managed  and  controlled  by  the  state,  or  any  political  division 
thereof." — N.  Y.  State  Constitution,   1894,  Art.  3,  Sec.  29. 


North   Dakota 

Ohio 
Pennsylvania 

Utah 

Virginia 
West   Virginia 
Wyoming 


Factory  for  supplying  equipment  for 
schools  and  public  institutions  to  be 
established   from   profits   of  brickyard. 

County  convicts. 


After  expiration  of  existing  con- 
tracts convicts  may  manufacture  for 
state  institutions. 

The  Board  of  Corrections  is  author- 
ized to  employ  such  number  of  con- 
victs as  it  may  deem  proper  in  the 
manufacture  of  clothing  and  equipage 
for  the  national   guard. 

Convicts  deemed  unsafe  for  road 
work  may  be  employed  by  the  Peniten- 
tiary Board  in  work  for  the  state. 
Convicts  not  working  on  contract  or 
hired  out  may  manufacture  articles  for 
the   state. 


Laws  of  191 1,  C. 
205. 

R.    S.    1905,    Sec. 

10442. 
Laws  of  191 1,  H. 

B.   946. 
R.    S.    1895,    Pg- 

3487,   Sec.    18. 

R.   S.    1907,  Title 
48,   Sec.    1477. 


Laws  of  1912,  C. 

59- 

R.     S.     1903.    C. 
163,   Sec.   39. 

Laws  of  191 1,  C. 
61. 


4.   The  State  may  work  him  on  farms  for  State  consumption: 
New  Jersey  To   be    given    preference    in   develop-  Laws  of  191 1,  S. 

ment  of  state  use  industries.  B.    150. 

Ohio  Laws  of  191 1.  H. 

B.    146. 

5.    The  S/nle  may  7vork  him  07t  Public  Works. 


(A)   Permitted  in : 

(B 

)   Prohibited  in : 

Alabama 

County    con- 

R. S. 

Alabama 

For     women 

R.  S. 

victs;     to    be 

1907, 

convicts. 

1907, 

worked  in  squads 

C.  191, 

C.  191, 

with    other   per- 

Sees. 

Sec. 

"="«^"" .  . 

2^' sons    Hable    to 

6580  and 

6582. 

'"'■ 

road  duty. 

6581. 

Kentucky 

State  convicts. 

Const. 

Bssnans 

1891, 

Arkansas 

j         County      con- 

R. S. 

Sec.  253 

victs. 

1904, 

Mississippi 

For     women 

R.  S. 

C.  37, 

convicts. 

1906, 

Sec. 

C.  22, 

1066. 

Sec.  874 

(281) 


30 


THE  CAGED  MAN 


[Vol.  Hi 


(A)  Permitted  in: 
Arizona  So  that  labor 

does  not  inter- 
fere with  free 
labor. 

California        County     con- 
victs. 


Colorado       State  convicts. 


County      con- 
victs. 

Connecticut  Guards  to  ac- 
company prison- 
ers laboring  out- 
side prison  walls. 

Delaware 


Florida  County  prison- 

ers. 

Georgia 


Idaho 


Illinois 


Indiana 


Iowa 


State  convicts 
in  building  walls, 
ditches,  etc.,  on 
prison  grounds. 

County  prison- 
ers not  physically 
disabled. 


I  n  preparing 
road  material, 
fertilizer  and 
deepening  chan- 
nels of  rivers. 

County  con- 
nets  in  county 
wherein  con- 
victed. 

County  con- 
victs. 


Able  bodied 
male  convicts; 
not  to  be  leased 
when  so  employ- 
ed; breaking  of 
stone  for  convicts 
n  o  t  otherwise 
employed. 


R.  S. 

1901, 
Title  15, 

Sec. 

1197. 

Penal 

Code, 

1909, 

Sec. 

1613. 
Laws  of 

1905, 

C.  86. 
Laws  of 

1911, 
C.  130. 

R.  S. 

1902, 

Sec. 

2901. 

R.  S, 

1893, 

Page  976, 

Sec.  6. 

Laws  of 

1907, 
Sec.  110. 

R.  S. 

1911, 

Sec. 

1207. 
Laws  of 

1911, 
C.  216. 

R.  S. 
1901, 
Sec. 
S541- 
8542. 
R.  S. 

1909. 
C.  108, 
Sec.  27. 

R.  S. 

1908, 

Vol.  I, 

C.  4,  Sec. 

2189. 

R.  S. 

1897, 
Title  26, 
C.  I,  Sec. 

5653- 
R.  S. 
1897, 
Title  26, 
C.  2,  Sec. 
5707. 


(B)   Prohibited  in: 

Wisconsin         Stone  crushing  Acts  of 
prohibited     for         1909, 

women  convicts.  C.  333. 


(282) 


No.  4] 


HOW  CAN  HE  BE  WORKED 


31 


Kansas 


Kentucky 


Louisiana 


(A)   Permitted  in: 

Convicts    n  0 1 

R.  S. 

employed    under 

1909, 

contract    or    in 

C.  108, 

coal  mining. 

Art.  30, 

Sec. 

8604. 

County      con- 

Sec. 

victs. 

6942. 

R.  S. 

1903, 

County      con- 

C. no, 

victs. 

Art.  I, 

Sec. 

4322. 

Board  to  con- 

Acts of 

tract  for  building 

1900, 

of  public  roads, 

No.  70, 

levees,   and    to 

Sec.  14. 

(B)   Prohibited  in ; 


Maine 


Maryland 


bid  in  the  same 
way  as  a  private 
concern. 

Upon  written 
application  from 
county  or  munic- 
ipal authorities, 
Board  of  Inspec- 
tors may  direct 
that  jail  prison- 
ers be  worked  on 
county  roads. 

Sheriffs  of  cer- 
tain counties  per- 
mitted to  work 
convicts  over  16 
years  of  age  on 
public  roads. 

Prisoners  in 
the  county  jail 
of  Garrett  county 
whose  term  of 
commitm  e  n  t 
does  not  exceed 
one  year,  may  be 
sentenced  to 
hard  labor  on 
the  roads  of  that 
county,  under 
the  direction  of 
the  town  or 
county  commis- 
sioners, but  their 
hours  of  labor 
may  not  exceed 
ten  a  day. 

Convicts  of 
Frederick  county 
may  be  employed 
by  sheriff  on  the 
public  roads  of 
the  county. 


Laws  of 

1905, 

C.  126. 


Laws  of 
1906, 
C.  36. 


Laws  of 
1912, 

c.  597. 


Laws  of 

1912, 

C.  386. 


(283) 


32 


THE  CAGED  MAN 


[Vol.  Ill 


(A)  Permitted  in: 
Massachu-         County     con- 
SETTS  victs    may     pre- 

pare road  ma- 
terial using  only 
hand  or  foot 
power. 

Empl  oyment 
in  caring  for  pub- 
lic lands  and 
buildings. 


(B)   Prohibited  in 


Michigan 


All  able-bodied 
state  prisoners 
may  be  placed 
on  the  county 
roads;  the  award 
of  labor  to  the 
highest  bidder; 
expense  of 
guarding  "if 
guards  are  neces- 
sary "  is  borne 
by  prison  author- 
ities. Transpor- 
tation, housing, 
food,  and  tools 
by  the  county 
road  commis- 
sioners; stone 
crushing  and 
light  work  is 
allowed  but 
nothing  requir- 
ing skilled  labor. 
County     con- 


R.  S. 

1902, 
C.  225, 
Sec.  59. 


R.  S. 

1908, 

Page 

1469, 
Sec.  I. 
Acts  of 

1911, 
No.  181. 


Acts  of 


victs. 

1910, 
No.  10. 

Minnesota        County     con- 

R. S. 

victs. 

1905, 
C.  106, 

Sec. 

Mississippi         So    that   they 

5468. 
Const. 

remain     under 

1890, 

state  control. 

Art.  10, 

Sec. 

No     guarding 

224. 
R.  S. 

by  trusties. 

1906, 

C.  107, 

Sec. 

Convicts    over 

3603. 
C.  22, 

eighteen  years  of 

Sec.  870 

age  and  under 
fifty  sentenced 
to  the  farms  of. 
four  counties 
may  be  requited 
to    work    fifteen 


(284) 


No.  4] 


HO  IV  CAN  HE  BE  WORKED 


33 


Missouri 


Montana 


New  Jersey 


(A)  Permitted  in: 
days  on  the  pub- 
lic roads  of  the 
counties  where 
they  are  held  as 
prisoners.  Work 
to  be  performed 
under  supervi- 
sion of  Supt.  of 
pen.  County 
supervisors  to 
furnish  suitable 
quarters  for  the 
men. 

300  state  con- 
victs may  be  em- 
ployed on  pubhc 
works. 

County  con- 
victs. 


State  convicts. 


County      con- 
victs. 


County      con- 
victs. 


Male  convicts 
in  state  prison 
may  labor  on 
roads  if  they  de- 
sire  and  if 
warden  and 
Board  are  will- 
ing. 

County  con- 
victs leased  for 
public  works. 

Convict  Labor 
Commission  to 
formulate  plans 
for  the  use  of  all 
convicts  physic- 
ally able  on  pub- 
lic roads,  in 
public  parks, 
forestry    and 


Laws  of 

1911, 
S.  B.,23. 

R.  S. 
1909, 

C.  34, 

Art.  5, 

Sec. 

3732-33- 
R.  S. 
1907, 

P-3, 

Title  I, 

Sec. 

9729- 
R.  S. 
1907, 

P-3. 

Title  2, 

Sec. 

9775- 

R.  S. 

1911, 
C.  49, 

Sec. 

2695. 
Laws  of 

1911, 
C.  71. 


Laws  of 
1912, 
J.  R. 

No.  5. 


(B)  Prohibited  in ; 


(285) 


34 


THE  CAGED  MAN 


[Vol.  Ill 


(A)   Permitted  in: 

other    ways    for 

public  benefit. 

County-board 

Laws  of 

of  Chosen  Free- 

1912, 

holders  to  make 

C.  223. 

application,  stat- 

ing   number    of 

prisoners  desired. 

Prison    Labor 

Commission,     in 

connection    with 

governing    body 

of   institution  to 

determine    num- 

ber    to    be    as- 

signed,   cost    of 

transportation, 

maintenance  and 

c  0  m  p  e  n  s  ation 

and    may    enter 

into    agreement. 

Any  moneys  law- 

fully      available 

for     roads    may 

be  spent  in  hous- 

ing and   feeding 

such  convicts. 

New  Mexico      Appropriation 

Laws  of 

of  $5000.00  for 

1903. 

guards  and  ma- 

c. 56. 

terials    for   road 

works. 

Prisoners  to  be 

Laws  of 

so  worked  when- 

1909, 

ever  possible. 

C.42. 

County     pris- 

Laws of 

oners. 

1909, 

C.  89. 

No  convict  to 

R.  S. 

go  out  to  labor 

1897, 

unguarded,    un- 

Sec. 

less    he    be    a 

3528. 

trusty. 

New  York          Appropriation 

Laws  of 

of    $10,000    for 

1912, 

construction     of 

c.  530. 

(B)   Prohibited  in ; 


highways  by  con- 
vict labor  in  vicin- 
ity of  Clinton  and 
Great  Meadow 
prisons. 

Not  to  exceed 
300  convicts  on 
highways. 

Convict  labor 
may  be  employed 
by  the  conserva- 
tion commission 
i  n     propagating 


Laws  of 

1909, 

C.  47. 

Sec.  179. 

Laws  of 
1912, 

C.  444- 


(286) 


No.  4] 


HOW  CAN  HE  BE  WORKED 


35 


(A)  Permitted  in: 

trees  and  in  field 

planting. 

North 

Convicts  hired 

R.  S. 

Carolina 

to     counties    or 

1908, 

municipalities. 

Sec. 
5411- 

County      con- 

R. S. 

victs. 

1908, 

Sec. 

1355- 

North 

A 1 1     convicts 

Laws  of 

Dakota 

not      otherwise 

1909, 

employed. 

C.  133- 

Ohio 

Stone     crush- 

Laws of 

ing. 

1911, 
S.  B. 
238. 

Oklahoma 

State     prison- 

Laws of 

ers. 

1909, 

c.  32, 

Sec.  50. 

County  prison- 

Laws of 

ers. 

1909, 
C.32. 

Sec.  40. 

Oregon 

County     con- 

R. S. 

victs. 

1910, 

Sec. 

6432-34. 

Expense  of 

R.  S. 

extra  guards  for 

1910, 

road  work  to  be 

Sec. 

borne    by    state 

4521. 

board  of  agricul- 

ture. 

Pennsyl- 

10 per  cent,  of 

R.  S. 

vania 

the    inmates    of 

1909, 

any  workhouse. 

p.  5622, 
Sec.  I. 

South 

Convicts    who 

Const. 

Carolina 

are    able-bodied 

1895, 

are    placed    on 

Art.  12, 

chain-gang     un- 

Sec. 6. 

less    otherwise 

Laws  of 

provided  by  spe- 

1911, 

cial  order  of  the 

No.  no. 

judge. 

County     con- 

R. S. 

victs. 

1902, 

Title  3, 

C.  32, 

Sec.  657. 

South 

County      con- 

R. S. 

Dakota 

victs.     If  Sheriff 

1907, 

can    work    con- 

Title 12, 

victs  more  profit- 

Sec. 745. 

ably  outside  jail. 

( B)  Prohibited  in  ; 


(287) 


36 


THE  CAGED  MAN 


[Vol.  Ill 


Tennessee 


Texas 


Utah 


Virginia 


(A)  Fermitted  in  : 
Counties  to 
construct  and 
maintain  porta- 
ble, movable  or 
stationary  work- 
houses for  work- 
ing prisoners 
upon  the  public 
roads. 

Legislatures  to 
make  provisions 
for  using  convict 
labor  on  public 
roads. 

County  con- 
victs. 


County  Com- 
missioners to 
make  regulations 
for  state  prisor.- 
ers  to  work  on 
roads  laid  out  by 
road  commission. 

County  prison- 


All  persons 
convicted  of 
crime  and  sen- 
tenced to  hard 
labor  on  the  pub- 
lic roads,  prior  to 
May  1st,  1913, 
and  after  that 
date  all  persons 
sentenced  to  con- 
finement in  the 
Penitentiar)-  and 
all  persons  con- 
fined in  our  pub- 
lic jails  shall, 
when  delivered 
to  the  Superin- 
tendent of  the 
Penitentiary,  con- 
stitute theconnct 
road  force. 

Prisoner  con- 
victed of  felony 
prior  to  May  ist, 
191 3,  may  be 
sentenced  to 
vpork  on  public 
roads.  After 
Mayf  1st,    1913, 


(B)   Prohibited  in; 


Laws  of 
1907, 
S.  B. 
239- 


Const, 

1876, 

Art.  16, 

Sec.  24. 

R.  S. 

1911, 

Title  104, 

C.3, 
Sec. 
6238. 
Laws  of 
1911, 
C.  76. 


Laws  of 
1909, 

C.  89. 

Sec.  15. 

Laws  of 
1912, 
C.58. 


Laws  of 
1912, 
C.  59- 


C288) 


No.  4] 


HOJV  CAN  HE  BE  WORKED 


37 


(A)  Permitted  in: 

all   male  prison- 

ers, except  such 

as  Superintend- 

ent   deems    un- 

safe, because  of 

condition    of 

health,  character 

or      disposition, 

shall   be  subject 

to  work  on  pub- 

lic roads. 

Vermont           State    prison- 

R. S. 

ers — Supt.    may 

1906, 

employ  as  many 

Title  33, 

as  lo  state  con- 

C. 260, 

victs  at  one  time 

Sec. 

outside  prison 

5996-7- 

walls. 

County      con- 

R. S. 

victs. 

1906, 

Title  33, 

C.  262, 

Sec. 

6105. 

Washington      County      con- 

R. S. 

victs. 

1910, 

Sec. 

3895- 

State  convicts. 

R.  S. 

1910. 

Title  68, 

C.  4, 

Sec. 

8575- 

Wyoming           Any      convict 

R.  S. 

may     work      on 

1910, 

public  highways 

C.  418, 

or  streets. 

Sec. 

6401. 

(B)  Prohibited  in; 


6.   The  State  may  ivork  him  on  State  Farms  for  Community  Consumption: 


Arkansas 


PYORIDA 


Georgia 


Board  of  Commissioners  to  purchase  R.     S.     1904,     C. 

or    lease    and   equip    a    farm    or    farms  123,    Sec.    5855. 

to  pay  for  the  same  out  of  the  labor  or 
products  of  the  labor  of  the  convicts, 
or  they  may  select  any  lands  of  the 
state  and  clear  and  improve  and  estab- 
lish a  farm,  on  the  same  of  sufficient 
area  to  employ  all  convicts  able  to 
work. 

Female,   aged,   diseased,   crippled,   de-  Laws      of 

formed,    or    otherwise    unable    to    per-  No.   72- 

form  manual  labor  to  be  withheld  from 
lease   and  employed   on   farm. 

Reformatory  prisoners.  R.    S.    1911, 

1243. 

Convicts    not    engaged    in    work    for  R.    .S.    1911,    Sec. 

municipalities    or    counties,    or    convicts  1214. 

considered  dangerous  and  not  safe  on 
public  works. 

(289) 


1909. 


Sec. 


38 


THE  CAGED  MAN 


[Vol.  Ill 


Louisiana 

Michigan 
Mississippi 

North  Carolina 
North   Dakota 
Oregon 

Pennsylvania 


South    Dakota 
Tennessee 
Texas 
Utah 

Virginia 

Wisconsin 

7.   The  State  may 
Arkansas 

California 

Delaware 

Illinois 


Indiana 
Michigan 
Minnesota 
Missouri 


Females,  aged,  diseased  and  infirm, 
and  boys  under  fifteen. 

Board  of  Control  with  ai)proval  of 
Governor  to  purchase  or  lease  a  tract 
of  land  to  be  cultivated  by  convict 
labor. 

Warden  has  power  to  employ  con- 
victs on  farm. 

Legislature  to  purchase  farms  and 
have  convicts  work  thereon  under 
state  supervision. 

Purchase  of  state   farms  authorized. 


State  Board  of  Agriculture  author- 
ized to  make  requisition  for  use  of 
convict  labor  on  state  fair  grounds. 

The  Board  of  Inspectors  of  the  West- 
ern Penitentiary  is  empowered  to  se- 
cure one  thousand  five  hundred  acres 
of  forest  land  and  take  the  necessary 
steps  toward  the  erection  of  a  suitable 
institution.  The  able-bodied  male  con- 
Aacts  are  to  assist  in  the  improvement 
of  the  tract  and  construction  of  the 
building. 

Farming  and  stone  quarrying  out- 
side  prison    walls    authorized. 

One  member  of  Board  to  superintend 
and  manage  all  farming  operations. 

For  countv  convicts. 


R.  S.  191 1,  Sec. 

1205. 
R.  S.  1904,  Page 

1307,  Sec.  ID. 


R.  S.  1897,  Sec. 

2110. 
Const.    1890,  Art. 

ID,  Sec.  225. 

R.     S.     1908,     C. 

107,   Sec.    5063. 
R.    S.    1905,    Sec. 

10368. 
R.    S.    1910,    Sec. 

4521. 

R.    S.    191 1.    No. 
37- 


R.  S.  iqio.  Title 
12,   Sec.   683. 

Laws  of  1897,  C. 
I2i;,    Sec.    II. 

R.  S.  191 1,  VoL 
5,   Page    mo. 

R."  S.  1910,  Title 
74,  Sees.  2254, 
2259. 

Laws  of  19 1 2.  C. 
59- 

R.  S.  1889,  C. 
201,   Sec.  4927. 

ork  him   in  Slate  Factories  for   Community   Consumption: 

R.    S.    1904,    Sec. 

5856. 
Laws  of  191 1.  P- 

I,  C.  56. 
R.   S.   1893,  Page 

428,   Sec.   14. 
R.     S.     1909,     C. 

108,    Sees.    87- 

90. 


Convicts  deemed  unsafe  for  road 
work  may  be  employed  by  the  Peniten- 
tiary Board  on  the  state  farm. 

Warden  may  employ  convicts  outside 
walls  in  stone  quarrying  or  on  farm. 


Jute  bags  and  crushing  of  stone. 
Stone  crushing. 


Industries  to  be  assigned  to  different 
institutions  due  regard  beng  paid  to 
location  of  prison,  market,  and  ma- 
chinery already  installed  and  number 
of  convicts. 

Surplus  articles  from  Reformatory. 

Binder  twine,  Manufacture  of 
chairs,  Detroit  House  of  Correction. 


Binder   twine. 


R.  S.  1908,  Sec. 

9921. 
Acts  of  1907.  No. 

211. 
R.  S.  1905.  Sec. 

5448. 
Laws  of  191 1.  S. 

B.    23. 


(290) 


No.  4] 

Montana 
New    Mexico 
North   Dakota 

Tennessee 
Virginia 


Washington 
Wisconsin 


HOW  CAN  HE  BE  WORKED 


Binder  twine;  jute  bags. 


Lindur   twine. 

Brick  making,  manufacture  of  farm 
implements  authorized. 

Mining,  one  member  of  Board  to 
superintend  all  mining  operations. 

Convict  Lime  Board  consisting  of  the 
Governor,  Superintendent  of  the  Peni- 
tentiary and  Commissioner  of  Agricul- 
ture created  to  provide  for  working 
long-term  or  desperate  convicts  in  the 
manufacture  of  ground  lime  stone  or 
oyster  shells.  Board  may  acquire  by 
gpift,  purchase  or  lease  suitable  lime- 
stone quarries  and  suitable  deposits  of 
oyster  shells  convenient  to  transporta- 
tion by  rail  or  water.  Board  to  see  that 
competent  and  reliable  men  are  placed 
in  charge  of  the  machinery.  When- 
ever possible  convicts  to  be  used  for 
all  the  work  of  the  plants.  No  one 
purchaser  to  secure  more  than  one  car 
load  during  any  one  year,  if  there  are 
other  applications  therefore.  Product 
not  to  be  sold  to  purchaser  except  for 
his  own  use. 

As  many  convicts  as  possible  to  be 
employed  in  the  manufacture  of  jute. 

Binder  twine. 


39 

Laws  of  1909,  H. 

J.    R.    6. 
R.    S.    1897,    Sec. 

3548. 
Laws  of  1909,  C. 

228. 
Laws  of  1911,  C. 

204. 
Laws  of  1897,  C. 

125,   Sec.    12. 
Laws  of   1912,  C. 

295- 


R.    S.    1910,    Sec. 

8555. 
Laws  of  1911,  C. 

377- 


8.    The  State  may  work  him   Under  Specific  Limitations: 

The  unfair  competition  of  prison  goods  with  the  products  of 
free  labor  before  the  introduction  of  state  production  for  state 
consumption  resulted  in  the  introduction  of  methods  which 
should  in  part  le.ssen  the  injurious  competition. 


Colorado 

Georgia 
Illinois 
Tennessee 
Utah 


Competition  with  Free  Labor  prohibited  in: 

Convicts  shall  not  be  used  in  build- 
ing bridges  or  similar  structures  which 
require  the  employment  of  free  labor. 


Industries  to  compete  as  little  as 
possible  with   free  labor. 

Diversified  lines  of  industry  to  be 
selected  so  as  to  interfere  as  little  as 
possible  with  industries  of  the  State. 


R.     S.     1908,     C. 
108,   Sec.   4880. 

R.    S.    19 II.    Sec. 

1212. 
R.     S.     1909,     C. 

108,   Sec.   77. 
Laws  of  1909,  H. 

B.    789. 
R.   S.    1910,  Title 

74,   Sec.   2257. 


The  limitation  of  output  in  lines  affected  was  the  prevailing 

(291) 


40 


THE  CAGED  MAN 


[Vol.  Ill 


remedy,  based  on  the  theory  that  where  the  quantity  was  small 
the  debasing  effect  of  the  goods  on  the  market  would  be  small. 
As  the  limitation  upon  the  quantity  of  output  was  difficult  to 
legislate  upon  and  in  a  field  in  which  the  union  men  were  not 
versed,  the  limitation  was  placed  upon  the  number  of  con- 
victs that  could  be  employed  on  any  one  commodity'  and  the 
restriction  upon  the  use  of  machinery. 


Number  of  Convicts  in  One  Industry  Limited: 


Massachusetts  Not   more   than   30   per   cent   of   the 

convicts  may  be  employed  in  any  in- 
dustry except  cane-seating  and  um- 
brella making. 

Brushes  not  more  than  80  men ; 
chairs  with  wood  frames  not  more  than 
80  men ;  clothing  other  than  shirts  or 
hosiery  not  more  than  375  men ;  har- 
ness not  more  than  50  men ;  mats  not 
more  than  20  men ;  rattan  chairs  not 
more  than  75  men ;  rush  chairs  not 
more  than  75  men ;  shirts  not  more 
than  80  women ;  shoes  not  more  than 
375  men  ;  shoe  heels  not  more  than  125 
men;  stone  cutting  not  more  than  150 
men  ;  laundry  work  not  more  than  100 
men. 

Minnesota  Number   of   convicts   in    any   one   in- 

dustry not  to  exceed  10  per  cent  of 
total  number  of  persons  engaged  in 
such  industry  in  the  state,  unless 
needed  to  produce  articles  for  State  or 
Charitable  institutions.  Number  in 
each  industry  to  be  determined  by  a 
commission  consisting  of  the  State 
Labor  Commissioner,  a  member  of  the 
Board  of  Control  and  a  citizen  not 
connected  with  the  prison,  the  last  two 
appointed  by  the  Governor. 

This  provision  does  not  apply  to  the 
number  of  prisoners  employed  in 
manufacture  of  binder  twine,  binder, 
mowers,  and  rakes  at  Stillwater,  nor 
to  number  manufacturing  brushes  at 
Cloud,  nor  to  number  hereafter  em- 
ploj'ed  at  Stillwater  in  any  industry 
not  now  carried  on  in  the  State. 

Pennsylvania  Not  more  than  ^  per  cent  of  inmates 

to  manufacture  brooms  and  hollow- 
ware  nor  10  per  cent  other  goods. 

Ohio  Total  number  employed  in  the  manu- 

facture of  any  one  kind  of  goods 
manufactured  elsewhere  in  the  State 
not  to  exceed  10  per  cent  of  the  num- 
ber of  persons  in  the  .'^tate  outside  the 
Penitentiary  employed  in  such  manu- 
facture. 

(292) 


R. 


S.     1903,     C. 
225,   Sec.  48. 


.     S.     1902,     C. 
225,   Sec.  47. 


.     S.     190S,     C. 
105,   Sec.    5449. 


.     S.     1909,     C. 
105,  Sec.  5449- 


,.  S.    1903,  Page 
3488.    Sec.   26. 

..    S.    1910,   Div. 
4.     C.     3,     Sec. 

2244. 


No.  4j  HOW  CAN  HE  BE  WORKED  4 1 

The   Use  of  Machinery  is  forbidden   in: 

Illinois                          No  more  motive  power  or  machinery  R.     S.     1909,     C. 

other  than  hand  or   foot  than  is  abso-  108,   Sec.  80. 
lutely  necessary. 

Indiana                          All    work    done    under    State    account  R.     S.     1908,     C. 

to  be  hand  work  if  possible.  124,    Sec.   9850. 

Pennsylvania  ^  R.  S.  1902,  Page 

3489,   Sec.   28. 

Similar  prohibitions  are  found  for  the  manufacture  of  any 
goods  which  would  compete  with  any  goods  manufactured  in 
the  state  in  which  the  prison  was  located. 

The  manufacture  of  goods  manufactured  by  free  industries  in  the  State  is  pro- 
hibited as  follows: 

Idaho  No  contract   shall  be  let  to  perform      R.   S.    1908,   Part 

any  labor  which  shall  conflict  with  any  3,    Title     I,    C. 

existing     manufacturing    industries     of  i,  Sec.  8461. 

the  state. 

Michigan  No     mechanical     trades     shall     here-     Const.    1850,   Art. 

after  be  taught  the  convicts  in  the  state  18,   Sec.  3. 

prisons  of  this  state  except  the  manu- 
facture of  those  articles  of  which  the 
chief  supply  for  home  consumption  is 
imported  from  other  states  or  coun- 
tries. 

Utah  Board  to  select  diversified  industries      R.   S.   190".  Title 

with    reference    to    interfering    as    little  74.    C.    10,    Sec. 

as  possible  with  the   same  lines   ot   m-  2257. 

dustry  carried  on  by  citizens  of  the 
state. 

The  branding  of  prison  goods,  or  the  use  of  a  prohibitory 
license  have  been  the  subject  of  statutes  in  many  states,  though 
held  unconstitutional  pending  the  action  of  Congress.^ 

The  Branding  of  convict-made  goods  and  licensing  the  sale  of  convict-made 
goods   is  permitted  in: 

California  Each  and  every  article  manufactured     Laws      of      191 1. 

under    the    provisions    of   this    act    shall  Page  72.  Art.  8. 

have  plainly  marked  or  stamped 
thereon  either  the  words  "  San  Quen- 
tin  Prison "  or  the  words  "  Folsom 
Prison  ",  according  as  such  article  may 
be  manufactured  at  one  or  other  of 
said  prisons. 

Colorado  No  convict-made  goods  shall  be  sold      R.     S.     1908,     C. 

without    a    license    from    the    Secretary  29,  Art.  2,  Sec. 

of    State.      This    license    is    to    be    con-  835. 

spicuously  posted  in  the  dealer's  place 
of  business.  License  fee  is  $500. 
License  must  be  renewed  every  year. 
Goods    are    to   be    plainly   marked    and 

^  Kempf  vs.  Francis,  Xo.  9,  Oct.  Term,  1912.     Filed  Jan.  6,  1913. 
^  157  N.  Y.,  I.     "Hawkins'  Case." 

(293) 


42 


THE  CAGED  MAN 


[Vol.  Ill 


IXDIAXA 


Louisiana 


KcNTrCKY 


Mains 


Xkw   Jersey 


New    York 


Ohio 


branded  "  convict  made ".  Bond  of 
$5,000  must  be  furnished  for  the  faith- 
ful observance  of  the  law. 

Requirements  as  to  license,  bond,  fee, 
etc.,  same  as  in  Colorado.  All  con- 
vict-made clothing  must  have  linen 
label  sewed  on  each  article  in  a  con- 
spicuous place. 

It  shall  be  unlawful  for  any  corpor- 
ation, merchant  or  other  person,  in  the 
State  of  Louisiana,  to  deal  in  or  sell 
brooms,  made  in  the  different  state 
penitentiaries,  by  convicts  or  other  per- 
sons confined  therein,  unless  each 
broom  is  stamped  or  labeled  "  convict- 
made  " ;  said  label  or  stamp  to  be  not 
less  than  four  inches  long,  two  and  a 
half  inches  wide,  and  the  letters  thereof 
not  less  than  one  inch  in  size.  Anv 
corporation,  merchant  or  other  person 
violating  the  provisions  of  this  act 
shall,  on  conviction  thereof,  be  fined 
not  less  than  fifty  dollars,  or  be  im- 
prisoned in  the  parish  jail,  for  not  less 
than  thirty  days,  for  each  offense,  at 
the  discretion  of  the  court. 

All  goods  made  in  prison  outside  of 
the  state,  must  be  plainly  marked  "con- 
vict made  ".  Penalty  for  removal  of 
mark — year's  imprisonment  and  fine  of 
$500.  Xo  one  shall  have  convict-made 
goods  in  his  possession  for  the  purpose 
of  sale  that  are  not  so  marked. 

All  articles  and  goods  manufactured 
at  the  prison  for  sale  shall  be  distinctly 
labeled  or  branded  with  these  words, 
"  Manufactured  at  the  Maine  State 
Prison." 

All  goods  made  in  whole  or  in  part 
within  the  state  prison  and  intended 
for  sale  to  be  plainly  marked  "  Manu- 
factured in  the  New  Jersey  state 
prison,"  or  if  impractical  to  mark  ar- 
ticle, package  or  box  in  which  goods 
are  contained  to  be  plainly  marked. 

No  one  shall  offer  for  sale  or  sell  or 
have  in  his  possession  for  the  purpose 
of  sale,  any  convict-made  goods  with- 
out a  license  from  the  State  Comp- 
troller. This  license  renewable  every 
year.  Fee  $500.  Application  for 
license  to  be  accompanied  by  bond  of 
$5,000  for  the  faithful  observance  of 
the  law.  Requirements  as  to  marking 
goods  same  as  in  Colorado.  Penalty 
for  violation,  fine  of  not  less  than  $100 
nor  more  than  $1,000,  or  imprisonment 
not  less  than  ten  days,  or  by  both  fine 
and  imprisonment. 

Goods  manufactured  in  this  or  any 
other     state     to     be     branded     "  convict 

(294) 


Acts   of    1901,   P. 
618. 


R.  S.   1904,  Page 
433- 


R.  S.  1909,  C.  30, 
Sees.    524-526. 


R.     S.     1903,    C. 
141,  Sec.  32. 


R.   S.   1910.  Page 
4916. 


Penal    Law    iqoq. 
Art.  60. 


R.  S.  iqio,  C.  16, 
Sees.  62i-?.62 


ID,  * 

i8.| 


No.  4] 


HOW  CAN  HE  BE  WORKED 


43 


made  ".  Such  brand  to  be  placed  out- 
side of  and  upon  the  most  conspicuous 
part  of  the  finished  article  and  its  box, 
crate,  or  covering.  When  the  Commis- 
sioner of  Labor  has  reason  to  believe 
this  statute  has  been  violated  he  shall 
notify  the  Attorney-General  who  shall 
institute  proceedings. 

Oklahoma  Any    article    manufactured    by    con-      Laws  of  1910,  H. 

victs   in    any   prison   or   penitentiary   of  B.   No.   21. 

any  state  of  the  U.  S.,  or  in  any  fed- 
eral prison  or  penitentiary,  before  being 
sold  or  offered  for  sale  shall  bear  a 
label  to  be  placed  on  the  outside  of  the 
most  conspicuous  part  of  the  article. 
Any  person  found  guilty  of  violating 
this  act  shall  be  fined  not  less  than 
$100  or  more  than  $500.00. 

Oregon  All   goods  made  in  any  penitentiary,     R.  S.  191 1,  IL  B. 

prison,  or  reformatory   shall  be  plainly  82. 

branded  "  convict  made ",  followed  by 
year  and  name  of  the  penitentiary  in 
plain  English  lettering.  If  it  is  im- 
practical to  brand  articles  label  shall 
be  placed  on  the  box  or  other  cover- 
ing. Any  person  violating  this  act  shall 
be  sentenced  to  pay  a  fine  of  not  ex- 
ceeding $1,000. 

Pennsylvania  All   goods,   wares,  etc.,  manufactured      R.     S.     1903,    P. 

in    any    prison,    etc.,    whether    for    the         3488,   Sees.    22- 
direct  benefit   and  maintenance   of  such  25. 

institution  or  under  contract  made  by 
the  authorities  with  any  third  party 
shall  be  placed  on  the  package  or  other 
covering ;  mark  always  to  be  placed 
upon  the  most  conspicuous  part  of  the 
article  or  box.  Goods  shipped  to 
points  outside  the  state  shall  not  be  so 
branded.  Fine  not  exceeding  $1000  or 
imprisonment  for  one  year.  Any  per- 
son offering  such  goods  for  sale  with- 
out license  shall  be  subject  to  a  fine 
not  exceeding  $500  or  imprisonment 
for  6  months. 

Wisconsin  All   goods  manufactured   in  a  prison,     R.     S.     1898,     C. 

etc..  in  any  state  except  this  state,  shall  202,   Sec.    4960. 

be  branded  "convict  made".  If  im- 
practical to  brand  articles,  packages  or 
boxes  in  which  they  are  contained, 
must  be  clearly  marked.  It  is  the  duty 
of  the  Commissioner  of  Labor  and  the 
District   Attorneys   to   enforce   this   law. 

Special  interests  have  attempted  to  secure  statutes  prohibit- 
ing the  prison  manufacture  of  the  special  commodities  from 
the  sale  of  which  thev'  secured  a  livelihood. 


(295) 


44  THE  CAGED  MAN  [Vol.  Ill 

The  Manufacture  of  Certain  Articles  is  prohibited  in: 

CONXECTICUT                  Tobacco   or    any   article   which    in    its  R.    S.    1902,    Sec. 

use  comes  into  contact  with  the  mouth  2902. 

of  human  being. 

Indiana                          Manufacture   of   school    desks,   print-  R.     S.     1908,     C. 

ing   of   school   books   or   any   books   ex-  124,    Sec.    9920. 

cept  for  use  in  institution,  at  Reforma- 
tory. 

M.'VINE                               Wagons,    sleighs    and    carriages    ex-  R.     S.     1903,     C- 

cept  infants'  carriages.  141,    Sec.    31. 

Maryland                  Tin  cans  for  oyster  and  fruit   packing  R.    S.    1904,   Art. 

purposes,  or  iron   stoves  for  heating  or  27,    Sec.    565. 

cooking   purposes,   or   iron   castings    for 

machinery  purposes. 

Massachusetts            Engraving.  R.     S.     1902,    C. 

225,   Sec.   26. 

New  York                     Printing  and  photo  engraving.  R.  S.  1909,  C.  47, 

Sec.    176. 

The  unhealthful  conditions  prevailing  in  certain  prison 
workshops  has  resulted  in  special  provisions  prohibiting  dan- 
gerous trades. 

Work  Injurious  to  Health  or  Dangerous  to  Person  of  Convict  is  prohibited  in: 

Kansas  R.    S.     1909.    C. 

108,  Sec.  8595. 
Kentucky  R.  S.  1909,  C.  97, 

Art.  I,  Sec.  17. 
South    Dakota  R.  S.  1910,  Title 

12,   Sec.  696. 

The  introduction  of  free  laborers  into  tlie  prison  workshops 
during  the  hours  of  labor  so  as  to  supplement  the  labor  of 
prisoners  and  aid  in  the  development  of  state  workshops  for 
the  production  of  commodities  for  sale  in  the  open  market  has 
been  prohibited  by  statute.^ 

Association  with  Free  Laborers  during  Work  Hours  is  prohibited  in: 

Kentucky  R-    S.    1909,   Sec. 

3809. 

The  avoidance  of  expense  is  sought  by  means  of  a  statute. 

Labor  7vhich   can   be  carried  on  without   expense  to   county  and   is  consistent 
with  safe-keeping  of  prisoner  is  permitted  in: 

New  Hampshire  R-     S.     1901,     C. 

282,   Sec.    14. 

His  hours  of  labor  are  limited.  The  desire  to  restrict  the 
quantitA'  of  the  goods  he  may  produce  has  prevented  his  over- 
exertion, while  militating  against  his  efficiency. 

^  See,  Whitin,  Penal  Servitude,  pp.  67-69. 

(296) 


No.  4] 


HOIV  CAN  HE  BE  WORKED 


45 


Nevada 
New  Mexico 

Colorado 

Delaware 

Florida 

Idaho 

Minnesota 

New  York 

Pennsylvania 

Utah 

Wisconsin 

New  Jersey 
West   Virginia 

Arkansas 

Kansas 

Louisiana 

Maryland 

Michigan 

Minnesota 

Missouri 

North  Dakota 
Oregon 

Tennessee 

South    Dakota 


Hours  fixed  at  six  per  day: 

County  convicts ;  when  weather  per- 
mits. 

County  prisoners ;  between  9  and  4 
p.  m. 

Hours  fixed  at  eight  per  day: 

Misdemeanants. 

Between  8  a.  m.  and  5  p.  m. 

Not  less  than  8  or  more  than  10. 

County  prisoners. 

No  convict  to  labor  more  than  8 
hours  per  day  at  stone  work. 

County   prisoners. 


Hours  fixed  at  nine  per  day: 


Hours  fixed  at  ten  per  day: 


County  convicts;  not  to  begin  before 
6  a.  m. 


Male  prisoners  over  16  and  under  50 
to  labor  not  more  than  10  hours  per 
day. 

Eight  hours  per  day  from  Oct.  IJ 
to  April  15;  ten  hours  per  day  from 
April   I?  to  October  15. 


R.    S.    1912,    Sec. 

7619. 
Laws  of  1909,  C. 


Laws  of  191 1,  C. 

130. 
R.  S.   1893,  Page 

426,  Sec.  5. 
R.    S.    1906,    Art. 

6,   Sec.   4138. 
R.    S.    1901,   Sec. 

8542. 
R.     S.     1905,    C. 

105,   Sec.   5458. 
Prison  Law  1909, 

Art.  171. 
R.  S.   1909,  Page 

5622,  Sec.  I. 
R.    S.    1907,    Sec. 

2263. 
Laws  of  1909,  C. 

333- 

Laws  of  191 1,  S. 

B.    i;o. 
R.    S.    1903,    Sec. 

4672. 

R.    S.    1904,    Sec. 

5899- 
R.    S.    1909,    Sec. 

8595. 
R.  S.   1904,  Page 

1313,  Sec.  4. 
Laws  of  1906.  C. 

36- 
R.  S.  1897.  C.  75. 

Sec.    38. 
R.     S.     1905.     C. 

106,    Sec.    5468. 

R.    S.    1909,    Sec. 
1657. 

Laws  of  190Q,  C. 

228. 
R.    S.    1910.    Sec. 

4^18. 
R.   S.   1896.  Title 

7,   Art.    2,   Sec. 

7512. 


Hours  determined  by  7'arious  proznsions : 
Constant    employment    for    benefit   of 


state. 


R.  S.  iqio.  Title 
12,  C.  I.  Sec. 
674. 


(297) 


46 


THE  CAGED  MAN 


Supreme  Court  to  make  rules. 


Hours  to  be  determined  by  discretion  of  Prison  Board: 
Arizona  R.  S.  1901,  Title 

56,    C.    2,    Sec. 

3589. 
Penal  Code  1909, 

Sec.  1586. 
R.  S.  1902,  Title 

17,  C.  176,  Sec. 

2899. 
R.  S.  191 1,  C. 

35,  Sec.  1 196. 
R.  S.  191 1,  Sec. 

1 199. 
R.  S.  1909,  Sec^ 

3812. 
Laws  of  1903,  C 

141,  Sec.  4. 
R.  S.  1906,  C. 

107,  Sec.  3592. 
R.  S.  1907,  Sec. 

9717. 
R.  S.  1911,  C.  51,. 

Sees.  2743-4. 
R.  S.  1912,  Sec- 

756g- 
R.  S.  1901,  C. 

285,  Sec.  5. 
R.  S.  1899,  Sec. 

3491- 
R.  S.  1908,  C. 

116.  Sec.  5391. 
R.  S.  1910,  Div. 

4.  C.  2,  Sec. 

2159. 
Acts  of  1908,  H. 

B.  715. 
R.  S.  1909,  Title 

38,  C.  360,  Sec. 

2. 
R.  S.  1906,  Sec. 

5Q90. 
R.  S.  19 10.  Title 

68.  Sec.  8521. 

(298) 


California 
Connecticut 

District  of 
Columbia 
Georgia 

Kentucky 

Maine 

Mississippi 

Montana 

Nebraska 

Nevada 

New  Hampshire 

New  Mexico 

North  Carolina 

Ohio 

Oklahoma 
Rhode  Island 

Vermont 
Washington 


State   prisoners. 

Discretion  of  governor  and  council. 

State  prisoners. 


V 


HOW  IS  HE  MAINTAINED? 


Supplied  with  a  bunk,  the  prisoner  is  required  to  keep  it 
according  to  certain  regulations  and  is  protected  in  the  use 
of  it  by  regulations. 


Alabama 


Arkansas 


California 


Colorado 


Connecticut 


Delawarb 


District  of 
Columbia 
Florida 


Georgia 


I.  Bunking. 

White  and  colored  prisoners  to  be 
housed  separately.  Fine  of  $ioo  for 
jailer  who  houses  them  together  if 
there  is  sufficient  accommodation  to  do 
otherwise. 

Separation  of  white  and  colored  pris- 
oners, male  and  female. 

Separate  cells  for  all  convicts  at 
night. 

Beds  of  straw ;  sufficient  number  of 
blankets. 

County — Some  suitable  woman  to 
have  charge  of  women  prisoners ;  they 
must  not  see  or  be  seen  by  or  converse 
with  male  prisoners ;  guard  may  not 
search  women  prisoner  or  enter  her 
cell  except  in  presence  of  matron. 

County  —  Sheriff  responsible  for 
cleanliness  of  jails;  prisoners  under 
civil  process  to  be  kept  separate  from 
those  under  criminal  process.  Separa- 
tion of  sexes. 

Warden  to  make  regulations. 

County — Prisoners  on  civil  process 
not  to  be  lodged  in  same  rooms  as  those 
held  on  criminal  process.  County  to 
provide  suitable  bedding  and  fuel. 

Sheriff  paid  as  much  per  day  as 
Levy    Court    decides    for    bedding,    etc. 

Separation  of  males  and  females  and 
young  prisoners  from  hardened  of- 
fenders. 

All  regulations  to  be  made  by  Su- 
preme Court. 

Allowance  of  bedding  the  same  as 
fixed    by    the    U.    S.    army    regulations. 

Separation  of  white  and  negro  con- 
victs at  all  times  when  not  at  work. 

Separation  of  sexes  and  races  on 
farm. 

.Separation  of  races  and  sexes  and 
first  offenders  from  hardened  criminals. 

(299) 


R.  S.  1907,  C. 
192,  Sec.  6619. 


R.  S.  1904,  C. 
123,  Sees.  5900- 
5901. 

Penal  Code  1909, 

Sec.  1587. 
Penal  Code  1911, 

Title  2,  Part  3, 

Sec.  16 16. 


R.  S.  1908,  C.  74, 
Sees.  3585-7. 


R.  S  1902,  Sec. 

2901. 
R.  S.  1902,  Sees. 

2945  &  2929. 


R.  S.  1893.  C.  54, 

Sec  3. 
Laws  of  1898,  C. 

247. 

R.  S.  1911,  C.  35, 

Sec.  1 196. 
R.  S.  1906,  Art. 

6,  Sec.  4132. 
Sec.  4142. 

R.  S.  1906,  Sec. 

4117. 
R.  S.  1911,  Vol. 

2,  Sec.  1203. 


THE  CAGED  MAN 


[Vol.  Ill 


Idaho 


Illinois 


Indiana 


Iowa 


Kansas 


Kentucky 


Total  supplies  for  institution,  in- 
cluding salaries  of  officers  and  all  other 
expenses  connected  therewith,  not  to 
exceed  85c.  per  day  per  prisoner. 

Separate  cells  for  all  prisoners 
whenever  possible. 

County — All  jails  to  contain  a  suffi- 
cient number  of  cells  to  allow  prison- 
ers belonging  to  the  following  classes 
to  be  separated :  Civil  from  criminal ; 
persons  convicted  from  those  detained 
as  witnesses ;   male   from   female. 

State — Female  convicts  to  be  sent  to 
some  other  state  where  there  is  a  wo- 
man's prison. 

State — Commissioners  to  make  all 
regulations. 

County — Debtors  and  witnesses  not 
to  be  confined  in  same  room  as  persons 
committed  to  crime. 

Separation  of  males  and  females 
and  young  prisoners  from  hardened 
offenders.  Keepers  to  furnish  prison- 
ers with  sufficient  clean  water  daily  to 
provide   for  personal  cleanliness. 

Jail  to  be  kept  in  a  healthful  condi- 
tion and  whitewashed  with  lime  at  least 
once  every  three  months ;  rooms 
wherein  prisoners  are  confined  to  be 
whitewashed  once  a  month  between 
May  and  November.  Keeper  to  see 
constant  attention  is  paid  to  cleanli- 
ness of  prisoners. 

Clean  straw  beds,  sufficient  cover- 
ings for  comfort  of  prisoners.  Separ- 
ation of  young  prisoners  from  hard- 
ened offenders  and  of  males  and 
females. 

Keeper  responsible  that  jail  is  kept 
in  a  healthy,  cleanly  condition  and  for 
personal  cleanliness  of  the  prisoners. 
Each  prisoner  to  be  furnished  daily 
with  sufficient  clean  water  for  drink 
and  personal  use  and  with  a  clean 
towel  once  a  week. 

Separate  apartments  for  females  in 
all  jails. 

Young  prisoners  to  be  separated  from 
hardened  offenders. 

State — Separate  rooms  for  sexes. 

County — Sheriff  to  supply  fuel ;  juve- 
nile prisoners  to  be  separated  when 
possible. 

Prison  commission  to  make  rules 
necessary  for  the  preservation  of  the 
convict's  health  and  general  sanitary 
arrangements   of  the   Penitentiary. 

Warden  at  regular  intervals  to  cause 
all  cells  to  be  thoroughly  cleaned  and 
aired;  to  see  that  sufficient  clean,  com- 
C300) 


R.    S.    1908,    Sec. 
8468. 


R.    S.    IQ08,    Sec. 

8494. 
R.    S.    1908,    Sec. 

8526. 


R, 

.    S. 
851S 

1908, 

Sec. 

R 

.     S. 

1909, 

c. 

108, 

Sec.    I, 

3- 

R. 

,  S.  I 

909,  c. 

75. 

Sees. 

11-16. 

Sees.  20  &  32. 


R.  S.  1908.  C. 
124,  Sees.  9863 
&  9814. 


R.   S.   1897,  Title 
26,   Sec.   5640. 


Sec.    5639. 

Sec.    5638. 

R.  S.  1909,  C.  60, 

Sec.  4559- 
Sec.  4575. 


R.    S.    1909,    Sec. 
3812. 


Sec.  3797- 


No.  4] 


HOW  IS  HE  MAINTAINED 


49 


Louisiana 


Maine 


Maryland 


Massachusetts 


Michigan 


Minnesota 


Mississippi 


Missouri 


fortable  bedding  is  provided  for  each 
convict ;  cells  and  bedding  to  be  thor- 
oughly inspected  at  least  once  a  week. 

Count}' — Jails  to  be  kept  clean  and 
free  from  nauseous  odors ;  to  be  kept 
comfortably  warm.  Each  prisoner  to 
have  sufficient  bed  clothing  to  be  paid 
for  out  of  county  levy. 

Separation  of  male  and  female, 
blacks  and  whites  at  Penitentiary. 

Police  jury  to  make  regulations  for 
convicts  working  under  its  supervision. 

Sheriff  responsible  for  cleanliness  of 
jail ;  walls  to  be  whitewashed  annu- 
alh'  and  attention  paid  to  cleanliness  of 
prisoners. 

Inspectors  to  make  recommendations 
to  county  commissioners  as  to  im- 
provement in  sanitary  conditions,  heat- 
ing, lighting,  etc.,  of  jail. 

Separation  of  sexes;  walls  to  be 
whitewashed  at  least  three  times  a 
year ;  warden  to  take  proper  meas- 
ures for  the  health  and  cleanliness  of 
the  prisoners  and  to  see  convicts  pay 
proper  attention  to  their  person. 

All  penal  institutions  to  be  well  ven- 
tilated, beds  of  good  quality  and  suffi- 
cient covering  for  comfort  of  prison- 
ers, to  include  matress,  blankets  and 
pillows ;  strict  attention  to  be  paid  to 
cleanliness ;  clean  towels  weekly ; 
clothes  not  to  be  washed  at  night  or 
hung  wet  in  room  occupied  by  pris- 
oner. 

Bedding  to  be  plain  but  of  good 
quality  and  sufficient  quantity  for 
comfort  of  convict. 

Fuel  and  comfortable  bedding  to  be 
provided  for  county  convicts  by  super- 
visors. 

Bedding  of  coarse  material ;  separate 
cells  for  all  prisoners  whenever  pos- 
sible. 

County — Separation  of  males  and 
females,  youthful  prisoners  from  hard- 
ened criminals,  insane  from  other  pris- 
oners ;  as  far  as  possible  each  prisoner 
to  have  a  separate  cell ;  sheriff  to  see 
jail  is  kept  clean. 

Separation  of  races  and  sexes. 

County — Separation  of  sexes. 

Board     of     supervisors     to     establish 
rules  for  housing  of  county  convicts. 
Bedding  of  coarse  material. 

County — Civil  and  criminal  cases  to 
be  kept  separate,  also  females  and 
males.  Grand  jury  to  visit  jail  monthly 
and  examine  conditions  thereof. 

(301) 


R.  S.  1909,  C.  73, 
Sec.  2236. 


Acts  of  1900,  No. 

70,  Sec.  6. 
R.  S.   1908,  Page 

623,   Sec.   7. 
R.  S.  1903,  C.  82, 

Sec.  38. 


Laws  of  1909,  C. 
126. 


R.  S.  1904,  Art. 
27,  Sees.  595-6 
&  630. 


R.     S.     1902,     C. 
225,  Sec.  30. 


R.  S.  1897,  C.  76, 
Sec.  25. 

R.  S.  1897,  C.  86, 
Sec.  6. 

R.     S.     1905,    C. 

105,  Sees.  5435, 

5439- 
R.    S.     1905,    C. 

106.  Sec.  5475. 


R.    S.     1906.    C. 

107,   Sec.   3625. 
R.  S.  1906.  C.  22, 

Sec.  874. 
Sec.  843. 

R.    S.    1909,    Art. 

IQ,   Sec.    1637. 
R.    S.    1009.    Art. 

18.    Sees.    1576 

&  1583. 


THE  CAGED  MAN 


[Vol.  Ill 


Montana  County     jails     to     contain     sufficient 

cells  to  permit  separate  confinement  of 
persons  committed  for  civil  or  crimi- 
nal causes ;  males  from  females  and 
persons  held  under  sentence  from  those 
held  as  witnesses. 

Board  of  Commissioners  to  make 
rules  in  regard  to  management  of  Peni- 
tentiary. 

Nebraska  Bedding    of    coarse    material ;    when 

there  are  sufficient  cells  convicts  to  be 
confined  separately. 

Count}' — Judges  of  district  courts  to 
make  rules  as  to  cleanliness  of  jails 
and  prisoners,  beds,  heating,  lighting 
and  ventilating  of  jail. 

New    H.^mpshire       Jailers  to  provide  bedding,  etc. 

Governor  to  establish  rules  for  health 
and  comfort  of  prisoners. 

New  Mexico  Board     of     commissioners     to     make 

regulations   for   Penitentiary. 

County  commissioners  to  ^^sit  jails 
at  least  twice  a  year  and  carefully  ex- 
amine as  to  cleanliness,  etc.  Sheriff  to 
keep  jails  clean  and  healthy  and  ob- 
serve special  care  as  to  habits  of  clean- 
liness among  the  prisoners. 

New   Jersey  Each  convict  to  have  a  separate  cell. 

County — Female    prisoners    to    be    re- 
moved    as     far     possible     from     male ; 
female  guards  to  watch  such  prisoners 
day  and  night. 
New  York  Separate  cells  for  all  prisoners. 

County — Civil  and  criminal  prisoners 
to  be  housed  separatel}' ;  also  male  and 
female. 
North  C.'VROLin.a  State — Directors  to  make  all  ar- 
rangements for  sanitarj-  condition  of 
Penitentiary. 

County — Jails  must  have  at  least  5 
separate  and  suitable  compartments,  one 
for  white  male  criminals,  one  for  white 
female,  one  for  colored  males,  one  for 
colored  females,  one  for  other  prison- 
ers. Cells  to  be  so  heated  as  to  be 
warm  and  comfortable;  bedding  to  be 
furnished,  including  good  warm  blank- 
ets. Sheriff  or  keeper  to  daily  cleanse 
all  occupied  rooms  in  cell  house. 
North    DaK0T.\  County   commissioners    to   examine   at 

least  yearly  as  to  health  and  cleanliness 
of  prisoners.  Keeper  to  see  jail  is  con- 
stantly kept  in  a  clean  and  healthful 
condition  and  that  strict  attention  is 
paid  to  personal  cleanliness  of  all  pris- 
oners ;  each  prisoner  to  be  furnished 
with  clean  water  daily  and  one  clean 
towel  per  week. 


R.  S.  1907,  Part 
3,  Title  2,  Sec. 
9760. 


R.  S.  1907,  Part 
3,  Title  I,  Sec. 
97I7- 

R.  S.  1911,  Sees. 
10179,  10180. 

Sec.   10137. 


R.     S.     1901,     C. 

282,   Sec.   4. 
C.   28s,   Sec.   5. 

R.    S.    1897,    Sec. 

3498. 
R.   S.    1897,  Title 

7,    C.    9,    Sees. 

823-827. 


R.  S.  1910,  Page 
4912,  Sec.  7. 

Laws  of  191 1,  C. 
137. 


R.  S.  1909,  C.  27, 

Sec.  151. 
R.  S.  1909,  C.  47, 

Art.  13,  Sees. 

345-6. 
R.  S.  ic)o8,  C. 

116,  Sec.  5390. 

R.  S.  1908,  C.  24, 
Sees.  1336-7-8 
&  1343- 


R.  S.  1905,  C.  19, 
Sees.  10434-8. 


No.  4] 


HOW  IS  BE  MAINTAINED 


51 


Ohio 


Oklahoma 


Oregon 


Pennsylvania 


Rhode  Island 


State — Males  and  females  to  be 
housed  separately ;  separate  cells  for  all 
prisoners  at  night. 

Board  of  managers  make  all  ar- 
rangements. 

County — Sheriff  to  examine  the  con- 
dition of  each  prisoner  at  least  once  a 
month.  Cells  to  be  whitewashed  at 
least  three  times  a  year. 

Court  of  common  pleas  to  regulate 
cleanliness  of  prison  and  prisoners, 
warming,  lighting  and  ventilating  of 
jail. 

Separate  cells  for  prisoners. 

State — Regulations  to  be  made  by 
board  of  control. 

County — Courts  to  make  rules  for 
cleanliness  of  prisoners,  classification  as 
to  sex,  age,  crime,  etc. ;  also  as  to  beds 
and  warming,  lighting  and  ventilating 
of  jail;  county  commissioners  to  inspect 
at  least  once  a  week  and  to  examine  in 
regard  to  cleanliness.  Jailer  to  keep 
jail  clean  and  to  be  responsible  for 
cleanliness  of  prisoners ;  prisoner  to 
have  all  necessary  clean  water  and  a 
clean  towel  weekly. 

All  jails  not  previously  standing  to 
be  built  of  brick  or  stone,  floor  of 
cement,  ceiling  of  plaster,  iron  or  steel, 
roof  of  metal,  slate  or  non-combustible 
material,  doors  of  iron  or  steel,  windows 
of  glass  with  no  more  wood  than  is 
necessary ;  whole  structure  as  nearly 
fire-proof  as  possible. 

Male  and  female  prisoners  to  be  kept 
separate. 

In  everj'  county  of  100,000  a  discreet, 
capable  matron  shall  have  charge  of 
women  prisoners. 

State — A  sufficient  number  of  cells 
to  provide  for  solitary  housing  of 
prisoners. 

Countj' — Keepers  responsible  for 
sanitary    arrangement. 

Warden  to  see  convicts  are  cleanly  as 
to  their  persons. 


Jailer  to  supply  all  necessities  and  to 
be  allowed  the  amount  fixed  by  law  for 
support  of  prisoners. 
South    Carolina         Lodging  to  be  carefully  provided  for 
in  all  contracts. 

County  commissioners  to  furnish 
blanket  and  such  other  bedding  as 
shall  be  necessarj'  for  persons  con- 
fined in  jail;  criminal  prisoners  to  be 
provided  with  at  least  2  blankets  in 
winter. 

(303) 


R.  S.  1905,  Code 
of  Criminal 
Procedure,  C. 
17,  Sec.  10360. 

R.  S.  1910,  Div. 
4,  C.  2,  Sec. 
2159- 

R.  S.  1910,  C.  14, 
Sec.  3160. 


R.  S.  1910,  C.  4, 
Sec.  3162. 


I,   C. 


Sec.  3168. 
Laws  of  ic 
22. 

R.  S.  1903,  Sees. 
5750  &  5719- 


R.  S.  1910,  C.  14, 
Sec.  4527. 


Sec.  4533. 
Sees.  4535-6. 


R.  S.  1903,  Page 
3485,  Art.  I. 

R.  S.  1903,  Pa^ 
2010,  Sec.  I. 

R.  S.  1909,  C. 
360,  Sees.  23  & 
38. 

C.  358,  Sec.  4. 


R.  S.  1902,  Title 

2,  C.  2,z,    Sec. 

684. 
R.  S.  1902,  Title 

2,  C.  32,  Sec. 

652. 


52 

South    Dakota 


Tennessee 


Texas 


Utah 


Vermont 


Virginia 


Washington 


West  Virginia 


THE  CAGED  MAN 

State — Prisons  to  be  kept  clean  ;  per- 
sonal cleanliness  of  convicts  to  be  en- 
forced ;  prisoners  to  have  all  clean 
water  necessary ;  clean  towel  once  a 
week. 

Convicts  to  be  confined  in  separate 
cells  at  night  and  in  day  time  inter- 
course between  them  to  be  prevented  as 
far  as  possible ;  all  communications 
between  male  and  female  convicts  to 
be  prevented. 

County — Judges  of  circuit  court  to 
make  regulations  for  cleanliness  of 
jails,  separation  of  sexes,  etc.,  and  for 
warming,  lighting  and  ventilating  jails. 

Chairman  of  board  to  make  regula- 
tions for  housing. 

Young  and  old  prisoners,  males  and 
females,  white  and  colored  to  be  separ- 
ated ;  separate  cells  for  all  convicts  at 
night. 

County — Jailer  to  keep  jail  clean  and 
to  remove  all  filth  from  cells  once  in 
every  24  hours ;   se.xes  to  be  separated. 

Separation  of  sexes  and  races. 

County — Commissioners  to  see  jails 
are  clean  and  well  ventilated  and  not 
overcrowded  and  beds  comfortable  for 
prisoners. 

Whenever  there  is  a  sufficient  number 
of  cells  prisoners  shall  be  kept  separate 
at  night  and  when  unemployed. 

County — Separation  of  male  and 
female  prisoners,  also  criminal  from 
civil  prisoners.  Women  to  be  under 
care  of  suitable  matron. 

Prisons  to  be  arranged  for  complete 
separation  of  sexes. 

County — children  under  16  to  be 
separated   from  hardened  criminals. 

-State — All  cells  to  be  whitewashed 
twice  a  year  by  convicts,  and  floors  to 
be  washed  as  often  as  necessar}-. 

County — Jails  to  be  whitewashed  at 
least  twice  a  year,  properly  aired,  and 
always  clean.  Prisoners  to  have  proper 
beds  and  bedding.  Jails  to  be  warmed 
in  winter. 

Beds  of  straw,  or  other  suitable  ma- 
terial.    Sufficient  covering  of  blankets. 

County — Superior  judges  to  make 
rules  as  to  cleanliness  of  jails,  classifi- 
cation of  prisoners  in  regard  to  sex, 
beds,  warming,  lighting  and  ventilation. 

i^tate — Board     to     make     regulations. 

County — Separate  apartments  for 
prisoners ;  every  apartment  to  be  kept 
comfortable. 

(304) 


[Vol.  Ill 

R.   S.   1910,  Title 
12,   Sec.   740. 


Sec.  674. 


R.  S.   19x0,  C.  4, 
Sec.  720. 


R.   S.    1896,   Sec. 

7469. 
R.  S.    1897,  Title 

7,  Art.  4.  Sees. 

7520-1. 

Sees.  7484,  7522- 
7527- 

R.  S.   191 1,  Sees. 

6209-62 1 1. 
R.  S.   191 1,  Sees. 

c;io8-mio. 


R.  S.  1907,  Sec. 
2265. 

R.  S.  1907,  Title 
15,  C.  7,  Sec. 
577- 

R.   S.    1906,    Sec. 

6082. 
R.  S.   1906,  Title 

-?3,  C.  262,  Sec. 

6116. 
R.   S.   1904,  Title 

55,    Sec.   412S. 

R.  S.  1004,  C.  42, 
Sec.  928. 


R.  S.  1910,  Title 
68.  C.  2.  Sec. 
8520. 

R.  S.  1910,  C.  I, 
Sec.  849?. 


R.  S.  1906,  C. 

163,  Sec.  4638. 
R.  S.  1906,  C.  39» 

Sec.  1212. 


No.  4] 


HOW  IS  HE  MAINTAINED 


53 


Wisconsin 


Jails  to  be  whitewashed  twice  per 
year ;  bedding  to  be  kept  clean,  and 
apartments  warm. 

County — Jails  to  be  kept  in  a  clean 
and  healthy  condition ;  attention  to  be 
paid  to  personal  cleanliness  of  prison- 
ers ;  clean  water  daily ;  clean  towel 
weekly ;  criminal  and  civil  prisoners 
to  be  separated ;  also  separation  of 
sexes. 


2.  Food   is  supplied  according  to   varying  standards: 


R.  S.  1906,  C.  39, 
Sec.  1342. 

R.  S.  1889,  Title 
34,  C.  202,  Sees. 
4950,   4952. 


Alabama  Sufficient   good,   wholesome    food   for 

county  convicts. 

State — Sound    and    wholesome    food. 

Arizona  County — Sheriff    allowed    reasonable 

compensation  for  board  of  prisoners. 
Arkansas  State — Sufficient  wholesome  food. 

County — Sheriff  to  provide  needy 
prisoners  with  food  sufficient  for  their 
support. 

California  State — Sufficient      plain,      wholesome 

food  as  to  conduce  to  health  of  pris- 
oners. 

County — Sheriff  to  provide  necessary 
food  for  which  he  shall  be  allowed  rea- 
sonable compensation  to  be  determined 
by  board  of  supervisors. 

County — Keeper  to  supply  food  at 
his  own  expense ;  board  of  commission- 
ers to  allow  him  reasonable  amount 
per  day  for  dieting  prisoners. 

Connecticut  Warden  to  arrange  food. 

County — Prisoners  permitted  to  pro- 
vide their  own  supplies  provided  con- 
sent of  sheriff  is  obtained. 

Delaware  Sheriff  paid  by  prisoner  as  much  per 

day  as  Levy  Court  determines ;  pris- 
oner detained  until  payment  of  board 
which  shall  be  added  to  other  costs. 
All  prisoners  except  convicts  to  pro- 
cure their  food  at  their  own  cost  and 
to  send  for  same. 

District   of  Attorney-general    to   pay    for   subsist- 

Columbia  ence   of  prisoners  such  sum  as  it  actu- 

ally costs  to  subsist  them. 

Florida  Allowance  of  food  the  same  as  stand- 

ard fixed  by  U.  S.  Array  regulations. 
Leasees  to  provide  suitable  food  ac- 
cording to  directions  of  board  of  com- 
missioners. 

Georgia  Prison     commissioners      to      regulate 

food. 

Idaho  Sufficient      quantity      of     substantial, 

wholesome  food. 

County — Sheriff  to  supply  necessary 
food  for  which  he  shall  be  allowed 
reasonable  compensation  by  county. 

(305) 


R.     S.     1907,     C. 

192,   Sec.   6609. 
R.    S.    1901,    Sec. 

6538. 
R.  S.   190X,  Title 

IS,  Sec.  1194. 
R.    S.    1904,    Sec. 

S920. 
R.  S.  1904,  C.  91, 

Sec.    4402. 

Penal  Code  1909, 

Part  3,  Title  i. 

Sec.  1587. 
R.  S.  1909,  Part 

3,  Title  2,  Sec. 

1611. 

R.  S.  1909,  C.  74, 
Sec.  3'585. 


R.  S.  1902,  Sec. 

2901. 
R.  S.  1902,  Sec. 

2930. 

R.  S.  1893,  C.  54. 
Sec.  3. 


R.  S.  1911.  C.  35, 
Sec.  1204. 

R.  S.  1906,  Art. 
6,  Sees.  4132, 
4150. 


R.  S.  191 1,  Vol. 

2,  Sec.  1 199. 
R.  S.  1908,  Sec. 

8405. 
R.  S.  1908,  Part 

3,  Title  3.  Sec, 
8539- 


54 

Illinois 
Indiana 


Iowa 


Kansas 


Kentucky 


Louisiana 


Maine 


Maryland 


Massachusetts 
Michigan 

Minnesota 


THE  CAGED  MAN 

State  commissioners  to  make  regula- 
tions in  regard  to  food. 

County — Keeper  to  furnish  sufficient 
well-cooked  food  three  times  a  day. 

Coarse,  wholesome  food,  not  less  than 
three-quarters  of  a  pound  of  meat,  and 
sufficient  vegetables  to  conduce  to 
health. 

Count}' — Sheriff  to  provide  meat  and 
drink  for  jail  prisoners  unless  they  are 
able  to  supply  themselves. 

Nine  dollars  per  month  allowed  for 
support  of  each  convict  at  Fort  Madi- 
son, and  $9.50  at  Anamosa. 

County — Jail  prisoners  to  be  served 
daily  with  three  well-cooked  meals. 

State — Board  of  Directors  to  make 
regulations. 

County — Sheriff  to  supply  proper 
bread,  meat  and  drink. 

Prison  Commission  to  make  regula- 
tions for  food. 

County — Keeper  of  jail  to  receive  75 
cents  per  day  per  person  for  keeping 
and  dieting. 

Food  and  rations  not  to  be  less  than 
those  prescribed  by  U.  S.  Army  regu- 
lations for  soldiers. 

Police  juries  to  regulate  fees  of  sher- 
iffs for  keeping  prisoners.  Compen- 
sation not  to  be  less  than  25  cents  per 
diem  per  prisoner,  or  more  than  50 
cents  per  diem. 

Inspectors  to  make  regulations  in 
regard  to  food. 

County — Prisoners  to  be  supplied 
with  food ;  all  expenses  over  earnings 
from  labor  to  be  met  by  county. 

Three  meals  a  day  consisting  in  all 
of  one  and  one-quarter  pounds  flour, 
three-quarters  of  a  pound  of  beef  or 
half  a  pound  of  bacon  of  good,  coarse 
quality,  one  herring,  one  gill  of  mo- 
lasses, one  pint  of  potatoes  or  vege- 
tables with  soup,  rye-coffee,  tea  and  salt. 

Three  meals  a  day  of  wholesome 
food. 

Food  plain  but  of  good  quality  and 
sufficient  quantity  for  sustenance  and 
comfort  of  convicts. 

Board  of  Supervisors  to  provide 
food  for  county  convicts. 

Sufficient  quantity  of  substantial, 
wholesome  food. 

County — Sheriff  to  be  paid  for  board 
of  prisoners,  the  sum  averaging  from 
71  to  120  cents  per  prisoner  per  day;  3 
meals  per  day  of  sufficient  well-cooked 
food ;  meat  once  a  day  but  no  butter  or 
other  luxuries  except  on  Sunday. 
(306) 


[Vol.  Ill 

R.     S.     1909,    L. 

108,   Sec.    13. 
R.  S.  1909,  C.  75. 

Sec.   16. 
R.     S.     1908,     C. 

124,    Sec.   9863. 


R.     S.     1908,     C. 
124,   Sec.   9814. 

R.   S.    1897,  Title 

26,    C.    2,    Sec. 

5718. 
R.  S.   1897,  Title 

36,    Sec.    5640. 
R.     S.     1909,     C. 

108,   Sec.   8563. 
R.  S.  1909,  C.  60, 

Sec.  4559. 
R.    S.    1909,    Sec. 

3812. 
Laws  of  1910,  C. 

96. 

R.    S.    1904,    Sec. 
2866. 

R.  S.  IQ04,  Page 
1767,  Sec.  I. 


R.  S.  1903,  Title 

12,  C.  141,  Sec. 

II. 
R.  S.  1903,  Title 

12,  C.  82,  Sees. 

43,  44. 
R.  S.  1904,  Art. 

27,  Sec.  597. 


R.  S.  1902,  C. 

225,  Sec.  30. 
R.  S.  1897,  C.  75. 

Sec.  25. 

R.  S.  1897,  C.  86, 

Sec.  8. 
R.  S.  1905,  C. 

105,  Sec.  5435. 
R.  S.  1905.  C. 

106,  Sees.  5473- 
6. 


No.  4] 


Mississippi 


Missouri 


Montana 


Nebraska 


New  Hampshire 


New  Mexico 


New   Jersey 


New  York 


HOW  IS  HE  MAINTAINED 

Coarse,  wholesome,  well-cooked  food ; 
vegetables  in  season. 

County — Board  of  supervisors  to 
make  regulations. 

Board  to  make  regulations ;  prison- 
ers to  have  nothing  more  except  under 
physician's  orders. 

County — Prisoners,  except  those  con- 
victed of  felony  to  send  for  their  own 
food  and  drink. 

Board  of  commissioners  to  make 
regulations. 

County — Sheriff  to  provide  food  for 
which  he  shall  be  allowed  reasonable 
compensation. 

Substantial,  wholesome  food. 

County — Sheriffs  to  receive  70  cents 
per  day  per  prisoner  from  which  to 
provide   food  and  other  necessities. 

Governor  to  provide  for  purchase  of 
supplies. 

Countj' — Jailer  to  provide  food  for 
which  county  commissioners  shall  al- 
low him  reasonable  compensation. 

For  each  one  hundred  rations  per  day 
is  allowed:  60  lbs.  bacon,  or  150  lbs.  of 
fresh  meat,  112  lbs.  flour,  30  lbs.  beans 
or  15  lbs.  rice,  10  lbs.  coffee  or  2  lbs. 
tea,  15  lbs.  sugar  or  molasses,  4  qts. 
vinegar,  4  lbs.  salt,  8  lbs.  soap,  6  ozs. 
pepper,  3  lbs.  baking  powder. 

County — Jail  prisoners  to  be  fur- 
nished food  of  sufficient  quantity  3 
times  a  day. 

Plain  food  at  discretion  of  keeper, 
subject  to  approval. 

County — Sheriffs  allowed  15  cents  per 
day  for  feeding  prisoners. 

Sufficient  quantity  of  inferior  but 
wholesome  food. 

County — Sheriff  to  make  regula- 
tions. 


North  Carolina         Board  to. make  regulations. 


North  Dakota 


Oklahoma 


County — I  lb.  of  good  bread,  i  lb.  of 
good  meat  and  other  necessities  daily. 

Coarse,  wholesome  food,  sufficient 
quantity  of  meat  and  vegetables  for 
health  of  convicts. 


County — 3    meals    a    day    of    whole- 
some, well-cooked  food. 


Board    of    control    to    make    regula- 
tions. 

(307) 


55 

R.     S.     1906,    C. 

107,   Sec.   3640. 
R.  S.  1906,  C.  22, 

Sec.  843. 
R.    S.    1909,    Art. 

19,    Sec.     1637. 

R.    S.    1909,   Art. 
18,    Sec.     1582. 

R.   S.    1907,   Part 

3,  Title   I,  Sec. 

9717. 
R.    S.    1907,   Part 

3,  Title  2,  Sec. 

9773- 
R.    S.    191 1,    Sec. 

10180. 
R.    S.    191 1,    Sec. 

10147. 

R.     S.     iqoi,     C. 

285,   Sec.    5. 
R.   S.   1901,  Title 

35,  C.  282,  Sec. 

4- 
R.    S.    1897,    Sec. 

3545- 


R.  S.  1897,  Title 
7,  C.  9.  Sec. 
827. 

R.  S.  1910,  Page 
4912,  Art.   7. 

Laws  of  19 1 1, 
Sec.  279. 

Prison  Law  1909, 
C.  47,  Sec.  152. 

Prison  Law  1 909, 
C.  47,  Art.  3, 
Sec.  340. 

R.  S.  1908,  C. 
116,    Sec.    i;390. 

R.  S.  1908,  C.  24, 
Sec.  1343. 

Code  of  Crimi- 
nal Procedure, 
1905,  C.  17, 
Art.  7,  Sec. 
10362. 

Code  of  Crimi- 
nal Procedure, 
1905,  Sec. 

10438. 

Laws  of  1908,  C. 
22,  Art.   I. 


56 


THE  CAGED  MAN 


[Vol.  in 


County — Prisoners  to  be  served  three 
times  dailj'  with  good,  wholesome  food 
in  sufficient  quantity. 

Oregon  Jail     prisoners     to     be     supplied     by 

keeper  with  wholesome  food. 

Ohio  Board   of   managers   to   make    regula- 

tions. 

Pennsylvania  No  prisoners  to  receive  anything  but 

prison  allowance  of  food. 

County — Keepers  to  supply  food. 

Rhode    Island  No   convict    to    receive    anything   but 

prison  allowance  of  food  unless  by 
order  of  physician. 

South  Carolina         Sufficient  plain,  wholesome  food. 


County — Food  to  be  carefully  pro- 
vided for  in  all  contracts. 

Such  proportion  of  meat  and  vege- 
tables as  warden  deems  best  for  health 
of  convict. 

County — Three  meals  a  day  of  whole- 
some, well-cooked  food. 


South    Dakota 


Tennessee 


Texas 
Utah 

Vermont 
Virginia 

Washington 


Each  convict  to  have  ample  supply 
of  bread,  -)4  'b.  of  bacon,  i  lb.  of  pork 
and  Y2  lb.  of  beef  and  such  quantities 
of  coffee,  sugar,  molasses  and  vege- 
tables as  provided  by  law. 

County — 2  meals  a  day  of  good, 
sound  bread  and  meat  well  cooked, 
with  vegetables  at  one  of  the  meals. 
Plenty  of  water  twice  a  day  from 
May  to  November ;  once  a  day  from 
November  to  May. 

.Sufficient   plain  and   wholesome    food. 


Food  of  ])lain,  good  quality  suffi- 
cient  for  sustenance  and  comfort. 

County — Sheriff  to  supply  food  for 
which  he  shall  be  allowed  a  reasonable 
sum. 

Keeper  of  jail  to  ])rovide  good  board. 


Bread  of  Indian  meal  or  other  coarse 
bread.  One  meal  a  day  of  coarse  meat. 
Board  of  directors  may  regulate  diet 
for  good  cause. 

County — Wholesome     food     of     suffi- 
cient quantity- 
Sufficient    food    of    plain    and    whole- 
some variety  as  may  be  most  conducive 
to  good  health. 

County — Grand  jury  of  each  county 
to  inspect  food. 

(308) 


R.  S.  1903,  Sec. 
5719- 

R.    S.    igio.    Sec. 

4534- 
R.   S.    1910,   Div. 

4,     C.     2,     Sec. 

2159. 
R.  S.   1903,  Page 

3494,  Sec.  12. 
R.  S.   1903,  Page 

2010,   Sec.    I. 
R.     S.     1909,     C. 

360,   Sec.  39. 

R.  S.  iq02,Crim- 
inal  Code,  C. 
Z2,,  Sec.  684. 

R.  S.  1902,  C.  33, 
.Sec.  684. 

R.  S.  1910,  Code 
of  Criminal 
Procedure,  Sec. 

675- 
R.  S    1910,  Code 

of         Criminal 

Procedure,  Sec. 

740. 
R.   S.    1896,  Title 

7,    Art.   2,   Sec. 

7481. 


R.  S.  1896,  Title 
7,  Art.  6,  Sec. 
7430- 


R.   S.    191 1,  Title 

104,  C.  2,   Art. 

6205. 
R.    S.    1907,    Sec. 

2243. 
R.   S.    1907,  Title 

i;,    C.    7,    Sec. 

580. 
R.  S.   1906,  Title 

2,2,,  C.  262,  Sec. 

6117. 
R.  S.   1904,  Title 

55,  Sec.  4127. 


R.  S.  1904,  C.  42, 

Sec.  928. 
R.   S.    iqio.  Title 

68,    C.    2,    Sec. 

8520. 
R.   S.    1910,  Title 

68.    C.    I,    Sec. 

8503. 


No.  4] 


HOW  IS  HE  MAINTAINED 


57 


West   Virginia 


Wisconsin 


Board  of  directors  makes  regulations.      R.     S.     1906,     C. 

162,  Sec.  4638. 
County — Wholesome      and      sufficient     R.  S.  1906,  C.  41, 


food. 

Wholesome,  coarse  food  with  such 
proportion  of  meat  and  vegetables  as 
the  warden  shall  deem  best  for  health 
of  prisoners. 

County — Good,  well-cooked  food. 


Sec.   1342. 
R.    S.    1889,    Sec. 
4919. 


R.  S.  1898,  Title 
34,  C.  202,  Sec. 
4950. 

3.   Clothing  prescribed  by  the  Board,  unless  the  law  designates  a   uniform  or 
permits  the  use  of  citizens'  clothing: 

(a)   Prison    uniform    required: 
Alabama  Coarse    and    cheap    uniform    to    dis-      R.    S.    1907,    Sec. 

tinguish  from  other  persons.  6537. 

Arkansas  Uniform  prescribed  by  board.  R.    S.    1904,    Sec. 

5920. 
California  Clothing     to     distinguish     grades     of     Penal  Code   1909, 

state  prisoners.  Sec.   1578. 

County — Boards     of     supervisors     to      Penal   Code    1909, 
provide  distinctive  clothing  for  county         Sec.   1614. 
convicts. 

Uniform    to   be   determined   by   board      R.   S.    1906,  C.  3, 

Art.      2,      Sec. 
4116. 


Florida 
Mississippi 


of  commissioners. 

Coarse,  strong  penitentiary  stripes. 


Missouri 

Nevada 

New  Jersey 
North  Carolina 
Rhode  Island 

Tennessee 

Texas 

Virginia 
Washington 

Nevada 


Uniform   prescribed    by   inspectors. 

Garb  of  first-grade  prisoners  one 
color  throughout ;  garb  of  second- 
grade  prison  stripes ;  garb  of  third- 
grade  trousers  of  prison  stripes ;  red 
shirts. 

Comfortable  clothing  of  coarse  ma- 
terial, uniform  in  color  and  make. 


R.    S.     1906,    C. 

107,   Sees.  3641 

&  3602. 
R.    S.    1909,    Sec. 

1637- 
R.    S.    1912,    Sec. 
1583. 


R.  S.   1877,  Page 

1251,  Art.  211. 

R.    S.    1908,    Sec. 

5415- 
R.     S.     1909,     C. 
360,  Sec.    17. 


Only     reformatory     convicts     exempt 
from  wearing  garb. 

Uniform   to  be  determined  by  board. 

Comfortable  garments  of  coarse,  cheap  R.   S.   1896,  Title 

material,  made  in  uniform  and  peculiar  7,   Art.   4,    Sec. 

style  so  as  to  distinguish  convicts  from  7524. 
other    persons — style    to    be    determined 
by  commissioners. 

Except  for  third-class  prisoners  or  as  R.   S.    1911,  Title 

punishment    stripes    are    abolished    and  104,   C.   2,   Art. 

a   suitable   uniform   substituted.  6202. 

Distinctive     uniform     for     each     sex  R.    S.    1904,  Title 

made  of  coarse  material.  SS>    Sec.   4124. 

Garments   of  coarse,   substantial    ma-  R.   S.   1910,  Title 

terial   of  distinctive  manufacture.  68,    C.    2,    Sec. 

8520. 

(b)    Citizens'  clothing  permitted: 

Stripes    need    not    be    worn    by    con-      Laws  of  191 1,  C. 
victs  engaged  in  road  work.  71. 

(309) 


THE  CAGED  MAN 


New  Hampshire  Appropriation  of  $700  to  carry  out 
vote  of  Governor  and  Council  to  change' 
the  clothing  of  the  prisoners. 

North  Carolina         Reformatory  prisoners  need  not  wear 
convict  garb, 
(c)    Other  provisions  as  to  clothing,  and  care  of 

Iowa  Prisoners  to  be  furnished  with  clean 

shirts  once  a  week. 

Massachusetts  Shirts    to    be    washed    weekly;    male 

prisoners     shaved,     and     all     prisoners 
bathed. 

Shirts  to  be  washed  weekly. 


North  Dakota 
Oklahoma 
Rhode   Island 

South    Dakota 
Tennessee 

Wisconsin 


Shirts   to   be   washed   weekly. 

A  change  of  underclothing  to  be  fur- 
nished each  prisoner  weekly. 

Shirts  to  be  washed  weekly. 

Jailer  to  have  2  pieces  of  clothing 
for  each  prisoner  washed  every  week 
and  to  furnish  necessary  apparatus  for 
shaving  once  a  week. 

Shirts   to   be   washed   weeklv. 


(310) 


Laws  of  1907,  C. 
49. 

R.    S.    1908,    Sec. 

5415- 
person : 
R.  S.   1897,  Title 

26,   Sec.   5640. 
R.     S.     1902,    C. 

225,   Sec.  30. 

R.  S.  1905,  C.  19, 

Sec.   10438. 
R.    S.    1903,    Sec. 

5719- 
R.     S.     1909,     C. 
360,  Sees.  23  & 

38. 
R.    S.    1910,    Sec. 

740. 
R.  S.   1897,  Title 

7,  Art.  4,  Sees. 

7481  &  7431- 

R.  S.  1889.  Titlr. 
34,  C.  202,  Sec. 
4950. 


VI 


HOW    IS    HE    CARED    FOR? 


A  physician  is  provided  with  powers  of  inspection  into  the 
conditions  of  the  individual  and  tlie  healthfulness  of  his  sur- 
roundings and  with  certain  powers  to  remedy  conditions.  The 
supervision  of  punishment  devolves  upon  the  physician. 


Alabama 


Arizona 


Arkansas 


I.  Health   and  Medical   Inspection: 

Physician  inspector  to  vasit  at  least 
twice  a  year  every  county  jail  and  alms 
house  in  the  state  and  to  aid  in  secur- 
ing just,  humane  and  economic  man- 
agement of  such  institutions.  Also  to 
aid  in  securing  erection  of  sanitary 
buildings  for  accommodation  of  the  in- 
mates and  to  investigate  the  manage- 
ment of  such  institutions  and  the  con- 
duct and  efficiency  of  persons  charged 
with  their  management.  County  Court 
to  attend  within  30  days  to  recom- 
mendations of  inspector  and  in  event 
his  recommendations  are  not  carried 
out  inspector  may  have  convicts  re- 
moved to  jail  of  another  county  at  ex- 
pense of  county.  For  failure  to  comply 
with  inspector's  recommendation  a  fine 
of  from  $25  to  $500  may  be  imposed. 

State  Convicts — Physician  inspector 
reports  monthly  to  president  of  board 
of  inspectors  conditions,  health  and 
sanitary  arrangements  of  the  institu- 
tions with  recommendations  for  nec- 
essary change.  He  devotes  entire  time 
to  care  of  convicts. 

Fully  qualified  physician,  resident  at 
prison. 

Convicts  to  be  removed  to  place  of 
safety  when  contagious  disease  or  pesti- 
lence endangers  their  health. 

Physician  attends  all  sick  convicts ; 
examines  cells  weekly  as  to  cleanliness 
and  ventilation,  food  as  to  quality, 
quantity  and  general  conditions,  and 
convicts  as  to  physical  ability  to  labor; 
to  report  any  convict  likely  to  die  of 
incurable  disease,  which  convict  may  be 
pardoned.  Physician  has  full  charge 
of  hospital  and  selects  nurses  from 
among  the  convicts. 

(311) 


R.  S.   1907,  Sees. 


Laws    191 1,    No. 
303  &  No.  530. 


R.  S.  1 90 1,  Title 
56,    C.    2,    Sec. 

3585. 
R.  S.    1901,  Title 
15.   Sec.    1191. 

R.  S.  1904,  C. 
123,  Sees.  5884- 
5889. 


6o 

California 
Colorado 


Connecticut 


District  of 
Columbia 
Florida 


Georgia 


Idaho 


Fl  I.INOIS 


THE  CAGED  MAN 

Jail  prisoners  to  be  removed  in  event 
of  pestilence  or  contagious  disease. 

Hair  cutting   for   sanitary   purposes. 

Physician  in  good  standing  to  per- 
form such  daily  duties  as  commission- 
ers determine. 

Removal  of  convicts  to  place  of 
safety  in  case  of  pestilence  or  con- 
tagious disease. 

Jail  prisoners — Suffering  from  con- 
tagious disease  to  be  removed  to  quar- 
antine. 

Physician  in  good  standing  to  visit 
prison  once  a  month  or  when  commis- 
sioners request. 

Physician  skilled  in  treatment  of  in- 
sane to  act  as  consulting  physician. 

Prisoners  suffering  from  venereal 
disease  whose  discharge  would  be  dan- 
gerous to  public  health  to  be  detained 
in  institution  until  physician  reports 
such  danger  overcome. 

Provision  to  be  made  for  care  of 
sick  jail  prisoners. 

Prisoner  suffering  from  a  malignant 
disease  or  malady  which  will  be  incur- 
able during  his  term  of  imprisonment 
to  be  discharged. 

Supreme  Court  to  make  rules  neces- 
sary to  health  of  prisoners. 

Physician  to  visit  prison  hospital  at 
least  once  each  day. 

Leassees  to  provide  medical  care  for 
sick  convicts ;  such  convicts  to  be  in- 
spected daily  by  a  physician  designated 
by  board  of  state  institution  and  to  be 
paid  from  profits  of  contract ;  he  shall 
prohibit  sick  convict  from  working  and 
see  that  provisions  for  care  of  convicts 
are  carried  out. 

Physicians  for  convict  camps  may 
continue  the  regular  practice  of  their 
profession. 

Grand  juries  to  inspect  jails  in  re- 
spect to  sanitary  conditions. 

Physician  to  examine  cells  and  all 
sanitary  arrangements  of  the  prison 
and  the  food  and  clothing  of  convicts 
once  a  week. 

In  case  of  pestilence  convicts  to  be 
removed  to  place  of  safety. 

County  Commissioners  to  inspect 
jails  once  every  three  months  and  see 
that  necessary  precautions  are  taken 
against  sickness  or  infection. 

Prison  physician  to  attend  to  all  the 
wants  of  sick  convicts ;  to  examine 
weekly  as  to  cleanliness  and  ventilation 
(312) 


[Vol.  Ill 

R.  S.  1909,  Penal 
Code,  Title  2, 
Sec.   1608. 

Sec.   1615. 

Acts  of  1909,  H. 
B.   No.   149. 

R.  S.  1908,  C. 
108,    Sec.  4890. 

R.  S.  1908,  C. 
115,    Sec.   5058. 

R.  S.  1902,  Title 
18,  C.  176,  Sec. 
2906. 

Sec.  2904. 

R.  S.  T902,  Title 
18.  C.  176,  Sees. 
2975-6. 


Sees.       2935 

2941. 
Sec.  2943. 


R.  S.  1911,  C.35, 
Sec.   1 196. 

R.   S.   1906,  Title 

4,  C.  2,  Art.  5, 
Sec.  4133. 

R.   S.    1906,   Div. 

5,  Title  4,  C.  2, 
Sees.  4150-1. 


R.    S.    191 1,   Sec. 
1 196. 

R.    S.    191 1,    Sec. 

1 196. 
R.    S.    1908.    Part 

3,  Title  I,  C.  2, 

Sec.  8483. 

R.    S.    1908.   Part 

3,  Title  I,  C.  3, 

Sec.  8490. 
R.   S.    1908.   Part 

7,,  Title    3.   Sec. 

8543. 

R.     S.     1909,    C. 
108,   Sec.  32. 


No.  4] 


HOW  IS  HE  CARED  FOR 


61 


of  cells  ;  to  examine  quantity  and  qual- 
ity of  food  weekly. 

Keeper  to  supply  medical  aid  for  jail 
prisoner. 

Indiana  Prison     physician     to     have     general 

oversight  as  to  health  of  convicts. 

Iowa  Prison  physician  to  have  oversight  of 

health   of   convicts. 

Keeper  to  supply  medical  aid  for  jail 
prisoners. 
Kansas  Prison    physician     to    have    care    of 

health  of  prisoners. 

County  to  provide  medical  aid  for 
sick  prisoners. 

Kentucky  Prison  physician  to  have  full  care  of 

sick  convicts ;  to  manage  hospital  and 
make  recommendations  as  to  food,  etc., 
after  daily  visiting  the  kitchen. 

County — Jail  physician  to  be  ap- 
pointed in  all  counties  having  popula- 
tion of  150,000  or  more. 

Louisiana  Physician    to    visit   convicts    at    least 

three  times  a  week. 

Lessees  to  provide  medical  aid  for 
county  convicts. 

12Y2  cents  extra  allowed  for  diet  of 
sick  convicts. 

Maine  Prison    physician    to    have    oversight 

of  health  of  convicts. 

County  to  provide  medical  aid  for 
jail  prisoners. 

Maryland  Prison     physician      to     visit     prison 

daih'  and  to  examine  prisoners  on  ad- 
mission, noting  bodily  defects  for  direc- 
tion of  warden  in  assigning  tasks. 

Massachusetts  Prison  physician  to  care  for  all  state 

and  county  prisoners. 

Prison  camp  and  hospital  to  be  estab- 
lished. 

Michigan  Prison   physician   to  examine  all  sick 

convicts  and  cells  for  purpose  of  regu- 
lating ventilation  and  cleanliness,  etc., 
and  to  superintend  all  corporal  pun- 
ishment. 

County  supervisors  to  provide  medi- 
cal aid  for  sick  convicts. 

Minnesota  State  board  of  health  to  have  super- 

vision over  construction  and  equip- 
ment of  penal  institution  in  regard  to 
sanitary  arrangements. 

Prisoners  to  be  removed  to  place  of 
safety  in  case  of  epidemic  of  con- 
tagious disease  endangering  their  lives. 

Mississippi  Prison   physician   to   give   entire    time 

to  care  of  convicts. 

Missouri  Prison    physician    to    attend    all    sick 

convicts,  and  examine  weekly  as  to  ven- 
tilation of  cells,  cleanliness,  etc.,  also 
as  to  quantity,  quality  and  condition  of 
food. 


R.  S.  1909,  C.  75, 

Sec.  19. 
R.  S.  1908,  C. 

124,  Sec.  9838. 
R.  S.  1897.  Title 

26,  C.  2,  Sec. 

5672. 
R.  S.  1907,  Title 

26,  Sec.  5643. 
R.  S.  1909,  C.  97, 

Sec.  6840. 
R.  S.  1909,  C.  97. 

Art.   16,   Sec. 

6907. 
R.  S.  1909.  C.  97, 

Sec.  3802. 


R.  S.  1909.  C.  73, 
Sec.  3237. 

Acts  of  1900,  No. 

70,  Sec.  8. 
Acts  of  1894,  No. 

29,  Sec.  4. 
R.  S.  1904,  Sec. 

2837. 
R.  S.  1903.  C. 

141.  Sec.  z:^. 
R.  S.  1903.  C.  82, 

Sec.  46. 
R.  S.  1904,  Art. 

27.  Sees.  613- 

623. 

R.  S.  1902,  C. 

225,  Sec.  TOO. 
R.  S.  1908,  Page 

1478. 
R.  S.  1897.  C.  75. 

Sec.  2094. 


R.  S.  1897,  C.  86, 

Sec.  5. 
R.  S.  1905,  C.  29, 

Sec.  2131. 


R.  S.  1905,  C. 
105,  Sec.  5442. 

R.  S.  1906.  C. 

107,  Sec.  3598. 
R.  S.  1909.  C.  19, 

Sec.  1646. 


62 


THE  CAGED  MAN 


[Vol.  Ill 


Montana 
Nebraska 

New  Mexico 
New  Hampshire 

New  Jersey 
New  York 


North  Carolina 


North   Dakota 


Ohio 


County  to  provide  medical  aid  for 
sick  prisoners. 

County  Commissioners  to  take  neces- 
sary precautions  against  sickness  or 
infection. 

Prison  physician  who  shall  be  a 
member   of  penitentiar)'  medical   board. 

Judges  of  district  courts  to  make 
rules  as  to  employment  of  medical  and 
surgical  aid  for  sick  convicts. 

Prison  physician  who  shall  express 
no  opinion  as  to  disability  of  prisoner 
except  on  his  record. 

Warden  to  make  regulations  for 
health  of  prisoners. 

Jailers  to  provide  necessary  medi- 
ical  aid  for  prisoners. 

Prison  physician  to  visit  each  pris- 
oner once  a  week  or  oftener  if  the  state 
of  his  health  requires ;  he  has  super- 
vision over  cleanliness,  ventilation  and 
diet. 

Prison  physician  to  attend  daily  all 
sick  convicts,  and  to  examine  cells  as  to 
cleanliness,  etc.,  weekly  and  to  examine 
food  daily. 

County — supervisors  to  appoint  phy- 
sician. 

Prisoners  to  be  removed  to  place  of 
safety  in  case  of  contagious  disease. 

Same  provisions  for  county  prisoners. 

All   prisoners   to   be   examined   in    re- 
gard    to     tuberculosis 
after  confinement. 

Separate     cells     for 
victs. 

Cells  for  tubercular  prisoners  in 
either  jails  or  state  prisons  to  be  thor- 
oughly fumigated  before  being  used 
for  any  other  purpose. 

A  parcel  of  land  not  exceeding  6 
acres  to  adjoin  each  jail  and  all  pris- 
oners not  committed  for  treason  or 
felony,  giving  bond  to  sheriff  of 
county  to  keep  within  rules,  to  walk 
therein  out  of  the  prison  for  the  bene- 
fit of  their  health. 

Prison  physician  to  perform  duties 
prescribed  by  board. 

Judges  of  district  courts  to  make 
rules  for  employment  of  proper  medi- 
ical  and  surgical   aid  for  convicts. 

State — Prison  physician  to  perform 
duties   prescribed  by  board. 

County — Medical  care  to  be  supplied. 


(314) 


within     5     days 
tubercular    con- 


R.  S.  1909,  C.  19, 

Sec.  1601. 
R.  S.  1907,  Part 

3,  Title  2,  Sec. 

9777- 
R.  S.  191 1,  Sec. 

10107. 
R.  S.  1911,  Sec. 

10137. 

R.  S.  1897,  Sees. 
3531-3- 

R.  S.  1901,  C. 

285,  Sec.  4. 
R.  S.  1901,  C. 

282,  Sec.  4. 
R.  S.  1910,  Page 

4912,  Art.  5. 


Prison  Law,  1909, 
C.  47,  Art.  6, 
Sec.  138. 

Sec.  348. 

Sec.  155. 

Sec.  351. 
R.  S.  1908,  Sec. 
1343- 

R.  S.  1908,  C. 

116,  Sec.  5390. 
R.  S.  1908,  C.  24, 
Sees.   1336   & 

1343- 

R.  S.  1908,  C.  24, 
Sec.  1339. 


Criminal  Code, 
190S,  C.  17, 
Sec.  10361. 

R.  S.  1905,  C.  17, 
Sec.  10418. 

R.  S.  1910,  Div. 

4,  C.  2,  Sec. 

2194. 

R.  S.  1910,  Div. 

4,  C.  5,  Sec. 

3177- 


No.  4] 


HOW  IS  HE  GAINED  FOR 


63 


Oklahoma 

Oregon 

Pennsylvania 


Rhode  Island 
South  Carolina 
South    Dakota 

Tennessee 


Texas 


Utah 
Virginia 


Order  to  be  obtained  from  court 
sentencing  prisoners  for  removal  of 
those  suffering  from  contagious  dis- 
ease to  isolation  hospital. 

County  commissioners  to  inspect  as 
to  health  of  jail  prisoners. 

Keeper  to  supply  county  convicts 
with  necessary  medical  aid. 

State — Prison  physician  to  visit 
every  prisoner  twice  weekly ;  to  ex- 
amine into  mental  condition  of  all 
prisoners  and  when  he  believes  the 
mind  of  the  prisoner  to  be  affected  by 
discipline  to  recommend  modifications. 
To  give  directions  for  health  and  clean- 
liness of  prisoners  and  recommend 
changes  in  diet  when  necessary. 

In  counties  of  from  5,000  to  800,000 
inhabitants  salary  of  jail  physician  to 
he  $1,800  per  annum. 

Prison  physician  to  be  appointed  by 
board. 

Prison  physician  to  inspect  all  state 
prisoners  and  report  to  Governor. 

Prison  physician  to  be  appointed  by 
board. 

Grand  jury  of  each  county  respon- 
sible for  health  of  convicts. 

From  November  15th  to  March  15th 
to  visit  prison  at  7  A.  M.  each  day  and 
examine  physical  condition  of  convicts 
and  report  on  their  ability  to  work. 
If  unable  to  work  he  shall  direct  that 
they  be  returned  to  their  cells  or  the 
hospital.  From  March  15th  to  Novem- 
ber 15th  he  shall  visit  prison  at  6.30 
A.   M.  for  same  purpose. 

Prison  physician  to  visit  penitentiary 
daily  and  examine  health  of  convicts ; 
he  may  employ  nurses  with  the  ap- 
proval of  the  assistant  superintendent 
in  cases  of  serious  illness  or  epidemics  ; 
in  charge  of  sanitary  regulation  of 
prison  and  to  see  all  precautions  are 
taken  to  keep  the  prison  healthy  and 
to  prevent  contagious  disease. 

County  commissioners  responsible 
that  prisoners  be  kept  in  a  healthy  con- 
dition. 

Prison  physician  to  examine  all  cells 
weekly  and  report  as  to  cleanliness. 

Prison  physician  to  see  that  convicts 
take  the  exercise  necessary  to  main- 
tain their  health. 

County  commissioners  to  provide 
suitable   medical   aid   for  convicts. 

(315) 


R.  S.  1910,  Div. 
5,  C.  ir,  Sec. 
4444. 

R.    S.    igo3.    Sec. 

5715- 
R.    S.    1910,    Sec. 

4534- 
R.  S.   1903,  Page 
3493,  Sec.  42. 


R.   S.   1903,  Page 
880,   Sec.   26. 

R.   S.    1909,  Title 

38,  C.  360,  Sec. 

15- 
Criminal        Code, 

igo2.    Title     3, 

C.  33,  Sec.  688. 
R.   S.   1910,  Title 

12,    C.    I,    Sec. 

676. 
R.    S.    1910,   C.  5, 

Sec.   762. 
R.  S.    1896,  Title 

7,  C.  2,  Art.  2, 

Sec.    7506. 


R.  S.  1897,  Title 
79,  C.  4,  Sees. 
3681-6. 


R.   S.   1911,  Title 
61,  Art.   3135. 

R.  S.   1907,  Title 

74,  Sec.  2234. 
R.  S.   1904,  Title 

55,  C.  202,  Sec. 

4129. 
R.  S.  1904,  C.  43, 

Sec.  928. 


64 


THE  CAGED  MAN 


[Vol.  Ill 


Washington  Superior  judges  to  make   rules  as  to 

employment    of    medical     and    surgical 
aid   for  county  convicts. 

West    Virginia  County    convicts    to    have    necessary 

medical   attention. 

Wisconsin  Proper    medical    care    for    sick    pris- 

oner in  state  prison. 

County  to  supply  proper  medical  aid 
for  sick  prisoners. 

Wyoming  Sheriff    to    furnish    medical    attention 

for  jail  prisoners. 


R.   S.    1910, 
Sec.  84Qv 


C.   I, 


R.  S.  1906,  C.  41, 

Sec.   1342. 
R.     S.     1898,     C. 

201,  Sec.    4904. 
R.     S.     1898.     C. 

202,  Sec.    4954. 
R.  S.  1910,  C.  86, 

Sec.    1091. 


2.  Religious  ieaching  is  provided  under  certain  limitations 


Alabama  The    prison    chaplain    to    give    entire 

time   to   work   with   the   convicts. 

Convicts   to   be  provided  with   Bibles. 

Arizona  Two   chaplains   of   different    religious 

beliefs  to  give  as  much  instruction  to 
convicts  as  employment,  etc.,  permits, 
and  to  ha\''e  access  at  all  times  to  the 
convicts. 

Arkansas  Prison     chaplain     to     hoUl     religious 

services  at  least  weekly. 

Colorado  Prison    chaplain    to    perform    duties 

prescribed  by  commissioners. 

Connecticut  Prison    chaplain    to    give    entire    time 

to   work  with  convicts. 

Sunday-school  to  be  conducted  in  the 
prison. 

Illinois  Prison   chaplain    to    visit   convicts    in 

their  cells  and   give  moral  instruction. 

Each  convict   to  be   furnished   with  a 
Bible. 

Iowa  Prison  chaplain  to  have  access  to  con- 

victs at  all  seasonable  times. 

Kansas  Prison  chaplain  to  preach  every  Sun- 

day and  to  use  best  interests  to  pro- 
mote the  religious  and  moral  welfare 
of  the  convicts. 

Kentucky  Prison  chaplain   to   give   full   time  to 

work  with  convicts. 

Louisiana  Prison  chaplain  to  have  access  to  the 

prisoners  at  all   times. 

Maine  $?o   appropriation    annually   for   Sun- 

dav-school  at  which  jiersons  from  out- 
side  the   prison   may   assist. 

Prison    chaplain    to    hold    divine    ser- 
vice each  Sunday. 

Maryland  To  hold  divine  service  at  which  war- 

den or  assistant  warden  and  all  the 
convicts  shall  be  jiresent  unless  pre- 
vented by  sickness. 

Massachusetts  Sunday-school     to    be    conducted    by 

such  instructors  as  board  deems  ad- 
visable. 

Michigan  Prison  chaplain   to   furnish   each  con- 

vict with  a  bible  and  to  visit  sick. 

(316) 


R.  S.  1907,  C. 

191,  Sec.  6503. 
R.  S.  1907,  C. 
191,  Sec.  6539. 
R.  S.  190 1,'  Title 

56,  Sec.  3576. 


R.  S.  1904,  C. 

123,  Sec.  5892. 
R.  S.  1908,  C. 

ig8.  Sees.  4860- 

4862. 
R.  S.  1902,  C. 

176,  Sec.  2911. 
R.  S.  1902,  C. 

176,  Sec.  2911. 
R.  S.  1909,  Page 

1670,  Sec.  23. 
R.  S.  1909,  Page 

1670,  Sec.  23. 
R.  S.  1897,  Title 

26,  C.  2.  Sec. 

5671- 
R.  S.  1909.  C. 

108,  Sec.  8=;77. 


R.  S.  1908,  C.  97. 

Sec.  3803. 
Acts  of  1900,  No. 

70,  Sec.  7. 
R.  S.  1903.  C. 

141.  Sec.  50. 

R.  S.  1903,  C. 

141,  Sec.  50. 
R.  S.  1904.  Art. 

27.  Sec.  635. 


R.  S.  1902.  C. 
225,  Sec.  73. 

R.  S.  1897.  Sec. 
2097. 


No.  4] 


HOW  IS  HE  CARED  FOR 


6S 


Minnesota 

Mississippi 

Missouri 

Nevada 

New  Hampshire 
New  Jersey 

New  Mexico 
New  York 
North  Carolina 
North   Dakota 

Ohio 

Oklahoma 

Pennsylvania 

Rhode  Island 

South  Carolina 
Tennessee 

Texas 


Jail  prisoners  to  be  provided  with 
Bibles  at  expense  of  county. 

Any  minister  willing  to  conduct  ser- 
vice for  jail  prisoners  has  permission 
to  do  so. 

Prison  chaplain  to  visit  each  of  the 
convict  farms  at  least  once  a  month ; 
to  hold  Sunday  services  at  penitentiary 
in  the  morning  for  the  whites  and  in 
the  afternoon  for  the  blacks. 

All  clergymen  of  the  City  of  Jeffer- 
son to  have  free  access  to  the  convicts 
at  all  times  in  accordance  with  prison 
discipline. 

Divine  service  each  Sunday ;  expense 
not  to  exceed  $520  per  year. 

Commissioners  to  furnish  Bibles  and 
other  books  they  deem  necessary. 

Suitable  religious  instruction  to  be 
provided. 

Prisoners  to  be  furnished  the  Bibles 
and  such  other  books  as  keeper  deems 
necessary,  and  to  receive  religious  in- 
struction from  competent  persons. 

Prison  chaplain  appointed  by  gov- 
ernor. 

Prison  chaplain  to  attend  to  spiritual 
wants  of  prisoners. 

$50  appropriation  annually  for  Sun- 
day-school. 

Warden  to  employ  resident  clergymen 
of  Bismarck  to  officiate  in  turn ;  com- 
pensation $5.00  per  week. 

$400  appropriation  for  religious  ser- 
vices and  library  at  penitentiary. 

Warden  to  furnish  each  convict  with 
a  Bible. 

Convicts   to  be  supplied  with   Bibles. 

Chaplain  whose  salary  shall  be  $900 
per  year. 

Eastern  Penitentiary — Moral  in- 
structor. 

Western  Penitentiary — Non-sectarian 
religious  services. 

Prison  chaplain  to  perform  religious 
services  and  act  as  agent  for  procur- 
ing employment  for  prisoners  on  re- 
lease. 

Prison  chaplain  to  give  religious  in- 
struction to  prisoners. 

Sunday-school   at   reformatory. 

Religious  services  on  Sunday. 


Bibles  and  other  moral  books  to  be 
furnished  to  convicts. 

Religious  services  at  prisons,  farms 
and  camps ;  prisoners  to  attend  at  least 
two  such  services  per  month. 

(317) 


R.     S.     1905,     C. 

106,   Sec.    5477. 

R.     S.     1905,     C. 

106,  Sec.   5477. 

R.    S.     1908,    C. 

107,  Sec.  3598. 


R.  S.  1909,  C.  19, 
Art.  I,  Sec. 
1664. 

R.    S.    19 1 2,    Sec. 

7576. 
R.    S.    1912,   Sec. 

7576. 
R.   S.   1901,  Title 

35,  C.  285,  Sec. 

24. 
R.  S.   1910,  Page 

4910,  Art.  3. 


R.    S.    1897,    Sec. 

3547- 
R.  S.  1909,  C.  47, 

Sec.  292. 
R.     S.     1908,    C. 

116,   Sec.    5405. 
R.    S.    1905,   Sec. 

10352. 

Acts  of  1910,  H. 

B.,  No.  536. 
R.    S.    1910,    Sec. 

2185. 
R.   S.    1903,   Art. 

23,   Sec.   5720. 
Laws  of  1909,  C. 

31- 

R.  S.  1903,  Page 
3497,  Sec.  58. 

R.  S.  1903,  Page 
3497,  Sec.  59. 

R.  S.  1909,  C. 
360,  Sec.  15. 


R.  S.  1912,  Sees. 
960-961. 

R.  S.  1896,  Title 
7,  Art.  4,  Sec. 
7530. 

R.  S.  1896,  Title 
7,  Art.  4,  Sees. 

R.  S.  191 1,  Sec. 
6204. 


66 


THE  CAGED  MAN 


[Vol.  Ill 


Utah  Religious    services    as    board    deems 

wise. 
Vermont  Prison  chaplain   appointed  by  board. 

Washington  Prison    chaplain    appointed    by    gov- 

ernor. 

Wisconsin  Both    Protestant    and    Catholic    chap- 

lains. 

Wyoming  Prison    chaplain    to    have    charge    of 

moral  welfare  of  the  prisoners. 


R.  S.  1907,  C.  10, 

Sec.  2264. 
R.   S.   1906,  Title 

30,  C.  260,  Sec. 

5993- 
R.   S.   1910,  Title 

78,    C.    2,    Sec. 

8532. 
R.     S.     1898,    C. 

201,   Sec.  4905. 
R.  S.  1910,  C.  41, 

Sec.  528. 


(a)    Good  conduct  aw 
(A)  When  permitted 
Alabama  By  o  r  d  e  r  of 

Governor. 

2  mos.  from 
each  of  ist  2 
years. 

3  mos.  from 
each  of  next  2 
years. 

4  mos.  from 
each  of  next  2 
years. 

5  mos.  from 
each  of  next  2 
years. 

6  mos.  from 
each  year  after 
the  8th.  If  sen- 
tence is  less  than 
2  years  and  more 
than  6  mos.  pro 
rata  deduction. 
No  d  e  d  u  ct  i  o  n 
when  sentence  is 
under  6  mos. 

Arizona  2    mos.    from 

each    of    ist     2 
years. 

4  mos.  from 
each  of  next  2 
years. 

5  mos.  from 
remaining  years. 

Similar  deduc- 
tions   in  Cali- 
fornia and  Ore- 
gon, 
Arkansas  i  mo,  from  ist 


3.  Moral  Education, 
'arded  by  reduction  of  the  time  of  confinement. 
(B)  When  forfeited: 


from 


year. 

2  mos. 
2nd  year. 

3  mos.    from 
3rd  to  lothyears. 

6    mos.    from 
succeeding  years. 


R.  S. 
1907, 
Sec. 
7514. 


R.  S. 

1901, 
Title  56, 
C,  2,  Sec, 

3589. 


R,  S. 

19045 

Sec. 

5904- 


Alabama 


Arkansas 


Convict  con- 
victed a  second 
time  for  crmie  in- 
volving moral 
turpitude;  con- 
vict who  escapes. 


Convict  who 
escapes  or  at- 
tempts escape 
forfeits  all  good 
time.  Convict 
violating  prison 
rules  so  as  to  be 
corrected  three 
times  forfeits  all 
good  time. 


R.  S, 

1907, 
Sec. 
7514- 


Convict  as- 

R, S, 

saulting      fellow 

1901, 

convict,      guard, 

Sec. 

etc. 

3589. 

R.  S. 
1904, 
Sec. 
5905. 


(318) 


No.  4] 


HOW  IS  HE  CARED  FOR 


67 


(A)   When  permitted 
California       2    mos.    from 
each    of    ist     2 
years. 

4  mos.  from 
each  of  next  2 
years. 

5  mos.  from  re- 
maining years. 

Similar  provis- 
ions in  Arizona 
and  Oregon. 

County  con- 
victs 5  days  per 
mo. 


Colorado  i  mo.  from  ist 

year. 

2  mos.  from 
2nd  year. 

3  mos.  from 
3rd  year. 

4  mos.  from 
4th  year. 

5  mos.  from 
5lh  year. 

6  mos.  from 
succeeding  years. 

Similar  provis- 
ions in  Idaho 
and  New  Mex- 
ico. 

Extra  deduc- 
tion for  convicts 
engaged  in  road 
work, conditioned 
ongood  behavior 
and  cheerful 
compliance  with 
all  rules. 
Connecticut  60  days  from 
each  of  ist  5 
years  if  sentence 
be  5  years  or  less. 

90  days  from 
each  year  if  sen- 
tence be  over  5 
years. 

County  con- 
victs. 5  days 
from  each  mo.  if 
sentence  is  over 
3  mos. 
Delaware  5  days  from 
each  month  dur- 
ing 1st  year. 

7  days  from 
each  month  from 
2nd  year. 

9  days  from 
each  month  3rd 
year. 


Penal 
Code 
1909, 

Sec. 


R.  S. 
1909, 
Sec. 
1614. 
R.  S. 
1908, 
C.  108, 
Sec. 
4871. 


Laws  of 
1905, 
S.  B. 
224. 


R.  S. 
1902, 
Sec. 
2900. 


R.  S. 
1902, 
Sec. 
2956. 

Acts  of 

1898, 

C.  247. 


(B)  When  forfeited : 
California  Convict  who 
violates  p  r  i  son 
rules,  assaults 
guard,  fellow 
convict  etc.  shall 
forfeit  such  por- 
tion of  gain  time 
as  Board  directs. 


Colorado 


Convict   w  h  0 
violates  rules. 


Connecticut  Loss  of  all  or 
part  of  time  for 
refusal  to  con- 
form with  regu- 
lations. This 
provision  does 
not  apply  when 
sentence  is  less 
than  one  year. 


Delaware 


For  every  vio- 
lation of  rules 
convict  forfeits 
all  gained  time. 


Penal 

Code 

1909, 

Sec. 

1588. 


R.  S. 
1908, 
Sec. 
4872. 


R.  S. 
1902, 
Sec. 
2900. 


R.  S. 

1898, 
C.  247. 
Sec.  5. 


(319) 


68 


THE  CAGED  MAN 


[Vol. 


(A)   When  permitted 

(B)   When  forfeited: 

lo   days    from 

each  month  each 

succeeding  year. 

Florida             2    days     from 

R.  S. 

Florida              Violation     0  f 

R.  S. 

1st  mo. 

1906, 

rules  causes  for- 

4140. 

13    days   from 

Title  4, 

feiture    of    gain 

1st  3  mos. 

Art.  6, 

time. 

25    days    from 

Sec. 

1st  6  mos. 

4140. 

I    mo.    and    3 

days  from   ist  8 

mos. 

I   mo.  and  21 

days   from    each 

year. 

Georgia             2    mos.    from 

R.  S. 

Georgia             Only    applied 

Sec. 

2nd  year. 

1911, 

to    convicts    not 

I22I. 

3    mos.    from 

Sec. 

sentenced      f  0  r 

each    year   until 

1221. 

life  and  who  ob- 

the loth. 

serve  rules. 

4    mos.    from 

remaining  years. 

County      con- 

R. S. 

victs  4  days  from 

1911, 

each  month. 

Sec. 
1 1 79. 

Idaho                i  mo.  from  ist 

R.  S. 

Idaho                  Convict     who 

R.  S. 

year. 

1908, 

escapes,  attempts 

1908, 

2    mos.     from 

Sec. 

escape,  or  injures 

Sec. 

2nd  year. 

8504. 

guard  forfeits  all 

8504. 

3    mos.     from 

good  time. 

3rd  year. 

4    mos.     from 

4th  year. 

5    mos.     from 

5th  year. 

6    mos.    from 

succeeding  years. 

Similar  deduc- 

tions in  Colorado 

and  New  Mexico. 

Illinois             i  mo.  from  ist 

R.  S. 

Illinois             For  ist  viola- 

R. S. 

year. 

1909, 

tion  of  rules  con- 

1909, 

2    mos.     from 

C.  108, 

vict     forfeits     2 

C.  108, 

2nd  year. 

Sec.  45. 

days;  for  second 

Sec.  46. 

3    mos.    from 

offense   4  days; 

3rd  year. 

for    third    eight 

4    mos.     from 

days;   for  fourth 

4th  year. 

sixteen  days;  for 

5    mos.    from 

more  than  4  of- 

5th year. 

fenses      warden 

6    mos.     from 

may  deprive  him 

succeeding  years. 

of  such  portion 
as  he  deems  wise; 
convict  also  for- 
feits number    of 
days    he    is     in 
punishment. 

(320) 


HOW  IS  HE  CARED  FOR 


69 


(A)   When  permitted : 

1  mo.  from  1st 
year. 

2  mos.     from 
2nd  year. 

3  mos.     from 
3rd  year. 

4  mos.     from 
4th  year. 

5  mos.    from 
5th  year. 

5    mos.    from 


5th  to  2 1  St  years. 


1  mo.  from  1st 
year. 

2  mos. 
2nd  year. 

3  mos. 
3rd  year. 

4  mos. 
4th  year. 

5  mos. 
5th  year. 

6  mos. 
6th  to  25th  years. 

Similar  pro- 
visions in  Mon- 
tana, Wisconsin, 
Wyoming. 

3     days 
from 


from 
from 
from 
from 
from 


mo. 
year 
6 
mo. 
year 


each 
1st 


days 
from 


each 
2nd 


days  each 
mo.  during  re- 
mainder of  sen- 
tence. 

7  days  from 
each  mo. 

Similar  pro- 
visions in  Maine. 

Board  of  con- 
trol to  make 
rules  for  commu- 
tation of  sen- 
tences. 

Yz  commuta- 
tion to  second 
termers;  none  to 
third  termers. 

Jail  prisoners 
one-sixth  of  sen- 
tences. 


R.  S. 
1908, 
Sec. 
9886, 


(B) 


R.  S. 
1897, 
Title  26, 
C.  2, 
Sec. 
5703- 


R.  S. 
1909, 
Sec. 
8";8i. 


R.  S. 

1909, 

C.  97, 

Sec. 

3801. 

R.  S. 

1908, 

page  623, 

Sec.  6. 


R.  S. 

1908, 

page  623, 

Sec.  6. 


Indiana 


Iowa 


Kansas 


When  forfeited  : 
For  1st  offense 
2  days;  for  2nd 
4  days;  3rd  8 
days;  4th  16 
days;  and  for 
more  than  4  of- 
fenses warden 
may  use  judg- 
ment. If  first 
offenses  are  seri- 
ous warden  may 
deprive  him  of 
more  than  time 
specified. 

1st  offense  2 
days;  2d  offense 
4  days;  3rd  of- 
fense 8  days;  4th 
offense  16  days. 
In  addition 
thereto  days  he 
is  inpunishment. 
For  more  than  4 
offenses  warden, 
with  approval  of 
governor,  may 
use  judgment  as 
to  depriving  him 
of  all  or  part  of 
gain  time. 

All  or  part  of 
good  time. 


R.  S. 

1908, 

C.  124, 

Sec. 


R.  S. 
1897, 
Title  26, 
C.  2, 
Sec. 
5704- 


R.  S. 

1909, 
C.  108, 
Art.  30, 

Sec. 

8581. 


(321) 


70 


THE  CAGED  MAN 


(A)   When  permitted : 


(B)  When  forfeited 


Maine 


Maryland 


Massachu- 
setts 


Michigan 


Minnesota 


7  days  from 
each  month. 
Does  not  apply 
to  life  prisoners. 

Similar  provi- 
sions in  Ken- 
tucky. 

5  days  from 
each  mo. 


I  day  per  mo. 
if  sentence  be  4 
mos.  and  less 
than  I  year. 

3  days  per  mo. 
from  1st  to  3rd 
years. 

4  days  per  mo. 
from  3rd  to  5th 
years, 

5  days  per  mo. 
from  5th  to  lOth 
years. 

6  days  per  mo. 
from  succeeding 
years. 

5  days  per  mo. 
from  1st  2  yrs. 

6  days  per  mo. 
from  2nd  2  yrs. 

7  days  per  mo. 
from  3rd  2  yrs. 

9  days  per  mo. 
from  7th,  8th  and 
9th  yrs. 

10  days  per 
mo.  from  loth  to 
14th  yrs. 

12  days  per 
mo.  from  15th  to 
19th  yrs. 

15  days  per 
mo.  from  suc- 
ceeding yrs. 

5  days  per  mo. 
during  1st  yr. 

7  days  per  mo. 
during  2nd  yr. 

9  days  per  mo. 
during  3rd  yr. 

10  days  per 
mo.  during  re- 
mainder of  sen- 
tence. 


R.  S. 

1903, 
C.  141, 
Sec.  15. 


R.  S. 

1904, 

Art.  27, 

Sec.  474. 


R.  S. 

1902, 
C.  225, 
Sec.  113. 


R.  S. 
1897, 

C.  75. 
Sec.  33. 


R.  S. 

1905, 

C.  105, 

Sec. 
5445- 


Maryland 


Massachu- 
setts. 


All  good  time 
in  mos.  delm- 
quency  accrues 
to  be  forfeited; 
according  to  na- 
ture of  offense, 
board  may  de- 
duct good  time. 

Forfeiture  for 
violation  of  rules. 


R.  S. 

1904, 

Art.  27. 

Sec.  474. 


R.  S. 

1902, 

C.  225, 

Sec.  113. 


Michigan  For    violation        R.  S. 


of    rules    or   at 

'"•"" -         C.75 


ui      1  uics     ui     ui-  18971 

tempt  to  escape.        C.  75, 
Sec.  33. 


Minnesota        Only    granted  R.  S. 

if  convict  passed  1909, 

entire  time  with-  C.  105, 

out  violation   of  Sec. 

rules.  5445. 


(322) 


No.  4] 


HOW  IS  HE  CARED  FOR 


71 


(A.)   When  permitted 

(B)   When  forfeitel: 

Mississippi 

For      efficient 
service,    board 
may  allow  county 
convicts  3^  time. 

R.  S. 

1905, 

C.  22, 

Sec.  842. 

Missouri 

Convict    serv- 
ing ^4  of  time  in 
exemplary   man- 
ner shall  be  dis- 
charged in  same 
manner  as  if  he 
had     been    par- 
doned.    In  such 
cases  no  pardon 
from  the  Gover- 
nor is  necessary. 

R.  S. 
19C9, 
Art.  19, 
Sec, 
1656. 

Montana 

I  mo.  from  ist 

R.  S. 

Montana           Good    time 

R.  S. 

year. 

1907, 

conditioned    0  n 

1907, 

2    mos.    from 

Sec. 

good    behavior 

Sec. 

2nd  year. 

9737- 

and  regular  labor 

9737- 

3    mos.    from 

during     good 

3rd  year. 

health. 

4    mos.    from 

4th  year. 

5     mos.    from 

Sth  year. 

6    mos.    from 

6th  to  25th  year. 

Similar  provi- 

sions   m    Iowa, 

Wisconsin     and 

Wyoming. 

Nebraska 

2     mos.    from 

R.  S. 

Nebraska          Good    time 

R.  S. 

1st    and     2nd 

1911, 

conditioned    0  n 

1911, 

years. 

Sec. 

good     conduct 

Sees. 

3    mos.    from 

2737- 

and  faithful,  or- 

2737-8 

3rd  year. 

derly  and  peace- 

4   mos.    from 

ful   performance 

succeedingyears. 

of    duties;     mis- 

Similar provi- 

conduct   can 

sions  in  Nevada. 

cause  loss  of  75 
per  cent,  of  time 
gained. 

Nevada 

2    mos.     from 

R.  S. 

!  Nevada               Forfeited      by 

Sec. 

1st    and    2nd 

1912, 

assault  on  keeper 

7581. 

years. 

Sec. 

or    other    viola- 

3   mos.    from 

7581. 

tion  of  rules. 

3rd  year. 

4    mos.    from 

succeedingyears. 

Similar   provi- 

s  i  0  n  s    in    Ne- 

braska. 

Additional  de- 

Laws of 

duction     of      10 

1911, 

days  each  mo.  for 

C.  71. 

good  conduct  on 

road  work. 

County      con- 

R. S. 

victs  allowed  de- 

1912, 

duction  of  5  days 

Sec. 

for  each  mo. 

7622. 

(323) 


72 


THE  CAGED  MAN 


[Vol.  Ill 


(A)   When  permitted : 


(B)  When  forfeited: 


New  Hamp-        I  day  per  mo. 

R.  S. 

SHIRE           if  sentence  be  2 

1901, 

years  or  less. 

C.  285. 

2  days  per  mo. 

Sec.  14. 

if  sentence  be  3 

years. 

3  days  per  mo. 

if  sentence  be  4 

years. 

4  days  per  mo. 

if  sentence  be  5 

years. 

5  days  per  mo. 

if     sentence    be 

from  5  to  7  years. 

6  days  per  mo. 

if    sentence    be 

from    6   to    10 

years. 

7  days  per  mo. 

1 

if    sentence    be 

from     10    to    15 

years. 

8  days  per  mo. 

if     sentence    be 

from    15    to    20 

years. 

10    days     per 

mo.  for  any  other 

time  but  life  im- 

prisonment. 

New  Jersey       2  days  for  each 

R.  S. 

New  Jersey       For      flagrant 

R.  S. 

mo.  of  faithfully 

1910, 

misconduct.    In- 

1910, 

performed  labor. 

Page 

spectors  may  de- 

Page 

2  days  for  each 

4916, 

clare  a  forfeiture 

4916, 

mo.    of    orderly 

Art.  10. 

of  the  whole  or 

Sec.  10 

deportment. 

part  of  time  pre- 

2 days  for  each 

viously  gained. 

mo.  of  manifest 

effort  at  intellect- 

ual improvement 

to  be  certified  by 

moral  instructor. 

Add  i  t  lonal 

R.  S. 

good    time   of   i 

1891, 

day  per  mo.  for 

Page 

1st  year  of  good 

498, 

conduct. 

Art.  2. 

For  each  suc- 

ceeding  year   of 

good     conduct 

commutation    to 

increase  progres- 

sively   one     day 

per  mo. 

New  Mexico     i  mo.  from  ist 

R.  S. 

New  Mexico     Good  time  de- 

R. S. 

year. 

1897, 

pendent  on  good 

1897, 

2    mos.    from 

Sec. 

conduct  through 

Sec. 

2nd  year. 

3536. 

whole    time     of 

3536- 

3    mos.    from 

sentence  and 

3rd  year. 

final    pardon   by 
governor. 

(324) 


No.  4] 


HO  IV  IS  HE  CARED  FOR 


73 


(A)   When  permitted : 

4  mos.  from 
4th  year. 

5  mos.  from 
5th  year. 

6  mos.  from 
succeeding  years. 

Similar  provis- 
ions in  Colorado 
and  Idaho. 
New  York         5  days  per  mo.      Laws  of 
if     sentence     be  191 2, 

less  than  i  year.       Cha.  79. 

2  mos.  from 
island  2nd  years. 

4  mos.  from 
3d  and  4th  years. 

5  mos.  from 
each  subsequent 
year. 

Applicable   to 

convicts  confined 

under  d  eti  nite 

sentences,   when 

term     equals     6 

mos.;   not  appli- 
cable to  life  sen- 
tences. 
North  5  days  for  each 

Carolina   mo.;     for    every 

10    days    thus 

earned      further 

reward  of  Si-oo; 

for    every    $5.00 

thus   earned 

further  d  e  d  u  c  - 

tion  of  5  days. 
North  2    mos.    from 

Dakota      ist  to  3rd  years. 
75   days    from 

3rd  to  5th  year. 

3  mos.  from 
5th  to  7th  year. 

105  days  from 
7th  to  nth  year. 

4  mos.  each 
year  during  re 
mainder  of  sen- 
tence. 

Further  com- 
mutation, at  dis- 
cretion of  Gov- 
ernor, upon 
recommendation 
in  writing  by 
board  of  trustees, 
may  be  allowed 
to  convict  who 
surpasses  the 
average  inmates 
in  diligence  1  n 
study  or  labor  or 
in  good  behavior 
or  otherwise. 


(B)   When  forfeited : 


R.  S. 
1908, 
C.  116, 
Sec. 
5402. 


R.  S. 

1905, 
C.  17, 
Art.  6. 


R.  S. 

1905, 
C.  17, 
Art.  6. 


North 
Carolina 


North 
Dakota 


Convict  as- 
saulting prison 
officer  or  taking 
part  in  msurrec- 
tion  or  attempt- 
ing escape  for- 
feits all  good 
time. 

For  infraction 
of  rules  convict 
may  be  deprived 
of  gain  time. 


R.  S. 

1908, 

C.  1x6, 

Sec. 
5402. 


R.  S. 

1905, 
Art.  6, 
C.  17. 


(325) 


74 


THE  CAGED  MAN 


[Vol.  Ill 


of 

from 
of      2 

from 
of     3 

from 
of     4 


(A)   When  permitted : 
Ohio  5    days    from        R.  S. 

sentence     of     i         1910, 
year.  C.  2, 

6    days    from  Sec. 

sentence     of     2         2163. 
years. 

8  days 
sentence 
years. 

9  days 
sentence 
years. 

10  days  from 
sentence  of  5 
years. 

11  days  from 
sentence  of  6  or 
more  years. 

If  sentence  be 
mos.  or  fraction 
of  a  year  the  de- 
duction as  pro- 
vided for  year 
next  higher  than 
maximum  sen- 
tence. 
Oregon  2    mos.    from 

each    of     1st    2 
years. 

4  mos.  from 
each  of  next  2 
years. 

5  mos.  from 
remaining  years. 

Similar  provi- 
sions in  Arizona 
and    California. 

Life  prisoners 
who  have  earned 
73  of  time  during 
first  5  years,  ^ 
of  time  during 
second  5  years, 
%  of  time  during 
third  5  years  may 
be  pardoned  by 
the  Governor  at 
the  end  of  15 
years. 
Pennsyl-  I  day  from  ist         R.  S. 

VAMA  month;    2    addi-  1907, 

tional  days  from         Page 
2nd  mo.;  3  addi-  3496, 

tional  days  from  Sec.  54. 
each  succeeding 
month  of  first 
year.  4  days  per 
mo.  from  2nd  to 
I  o  t  h  years ;  2 
days  per  mo. 
from  succeeding 
years. 


(B) 


R.  S. 
1910, 
C.  13, 
Sec. 
4510. 


R.  S. 
1910, 
C.  13, 

Sec. 

4514- 


Ohio 


Oregon 


Pennsyl- 
vania 


When  forfeited : 
Commutati  o  n 
dependent  on  en- 
tire time  being 
passed  without 
violation  of  rules. 


For  infraction 
of  rules  inspect- 
ors may  strike  off 
who'e  or  part  of 
gain  time. 


R.  S. 

1 9  ID, 
C.  2, 

Sec. 
2163. 


All  credits  may 

R.  S. 

be    forfeited    in 

1910 

case  of  failure  to 

Sec. 

work. 

4516 

M  i  s  c  0  n  duct 

R.  S 

forfeits  all  good 

1910 

time  earned  pre- 

Sec. 

viously. 

4512 

R.  S. 
1907, 
Page 
3486, 
Sec.  54. 


(325) 


No- 4] 


HOW  IS  HE  CARED  FOR 


75 


(A)   When  permitted 

(B 

Rhode 

For   I    mo.   of 

R.  s.     ! 

Rhode 

Island 

good      behavior 

1909.   ; 

Island 

Governor,    upon 

C.  360,     1 

recommendation 

Sec.  31. 

of    Board,    may 

deduct     number 

of  days  there  are 

years      in     sen- 

tence,   provided 

that  if   sentence 

be  over  5  years, 

only  5  days  shall 

be     deducted 

from  the  month. 

South 

2    mos.    from 

R.  S. 

South 

Dakota 

1st  to  3rd  years. 

1910, 

Dakota 

3rd  yr.  3  mos. 

Sec. 

4th  to  loth  yrs. 

686. 

4  mos.;   loth  to 

20th  yrs.  5  mos.; 

succeeding  years 

6  mos. 

Tennessee 

I  mo.  from  1st 

R.  S. 

Tennessee 

year. 

1896, 

2    mos.    from 

Title  7, 

2nd  year. 

Art.  2, 

3    mos.    from 

Sec. 

each  subsequent 

7482. 

year     until     the 

loth. 

4    mos.    from 

each    remaining 

year. 

County      con- 

R. S. 

victs —  Deduc- 

1896, 

tion  at  discretion 

Sec. 

of     Board     of 

7423- 

County  Commis- 

sioners. 

! 

Utah 

15    days  from 

R.  S. 

Utah 

sentence     of     3 

1907. 

mos. 

Sec. 

! 

30    days   from 

1686,      ' 

' 

sentence     of     6 

X.  14. 

mos. 

1 

2  mos.  from  i 

year. 

3  mos.  from  2 

years. 

4  mos.  from  3 

years. 

5  mos.  from  4 

years. 

6  mos.  from  5 

years. 

From  all  time 

in    excess    of    5 

years     half-time 

shall    be    de- 

ducted. 

When  forfeited : 
Every  day  con- 
vict is  shut  up  or 
punished  one 
day  is  deducted 
from  good  time. 


For  infraction 
of  rules  good 
tune  is  forfeited. 


For  any  infrac- 
tion of  rules  con- 
vict may  be  de- 
prived of  all  or 
any  portion  of 
good  time. 


R.  S. 

1909, 
C.  360, 
Sec.  31. 


S. 


R 

1910, 
Sec. 
686. 


Good  time  de- 

R.  S. 

pendent       on 
proper  demeanor. 

1896, 
Title  7, 
Art.  2, 

Sec. 

If  prisoner 

7482. 
R.  S. 

escapes    he    for- 
feits   all    good 

1896, 
Title  7, 

fime. 

Art.  2, 

Sec. 

7423- 

R.  S. 

1907, 

Title  57, 

Sec. 

1686, 

X.  16. 


(327) 


7^ 


THE  CAGED  MAN 


[Vol.  Ill 


Vermont 


Virginia 


(A)   When  permitted 
5    days    from 
each  mo.  of  good 
conduct. 


4  days  from 
each  mo.  of  good 
conduct,  with  ap- 
proval of  Gov- 
ernor. 

County  con- 
victs 4  days  al 
lowed  for  each 
mo.  of  good  con- 
duct on  road  or 
quarry  force. 
Washington  2  mos.  from 
1st  2  years. 

4  mos.  from 
next  to  2  years. 

5  mos.  from 
succeeding  years. 

Wisconsin         i  mo.  from  1st 
year. 

2  mos.  from 
2nd  year. 

3  mos.  from 
3rd  year. 

4  mos.  from 
4th  year. 

5  mos.  from 
5th  year. 

6  mos.  from 
6th  to  25th  year. 

Similar  provis- 
ions    in      Iowa, 
Montana      and 
W'yoming. 
Wyoming  i  mo.  from  ist 

year. 

2  mos.  from 
2nd  year. 

3  mos.  from 
3rd  year. 

4  mos.  from 
4th  year. 

5  mos.  from 
5th  year. 

6  mos.  from 
6th  to  25th  year. 

Similar  provis- 
ions in  Iowa, 
Montana,  Wis- 
consin. 

Pro  rata  for 
part  of  a  year. 


R.  S. 

1906, 
C.  261, 

Sec. 

6088, 

R.  S. 

1904, 
Title  55, 

Sec. 

4144. 
Laws  of 

1910, 
C.  217. 


R.  S. 
191Q, 
Sec. 
8521. 


R.  S. 
1889, 
Sec. 
4928. 


R.  S. 

1910, 

C.  41, 

Sec. 
522. 


(B)   When  forfeited : 
Vermont  Good  time  re- 

duced five  days 
for  each  mo.  in 
which  convict 
misbehaves. 


Washington     For    violation 
of  rules. 


Wisconsin 


Forfeiture  of 
5  days  for  ist  of- 
fense; 10  days 
for  2nd  offense; 
20  days  for  sub- 
sequent offenses. 


Wyoming 


For    violation 
of  rules. 


R.  S. 
1906, 
C.  261, 
Sec. 
6088. 


R.  S. 
1904, 
Sec. 
8521. 


R.  S. 

1889, 
Sec. 
4928. 


R.  S. 
1910, 

C.  41. 

Sees. 

523-4- 


(32^) 


No.  4l 


HO  W  IS  HE  CARED  FOR 


77 


(^)  Good  conduct  is  rewarded  by  special  favor. 


Arkansas 


Maryland 


(A)  When  permitted 
Tobacco      not 
exceeding      one 
pound       per 
month. 

Good  conduct 
to  be  reporterl 
officially  to  the 
Board.  Not  to 
include  hope  of 
pardon. 


New  Hamp- 
shire 


Ohio 


Pennsyl- 
vania 


South 
Dakota 

Tennessee 


Warden,  with 
consent  of  gover- 
nor and  council, 
may  offer  suit- 
able encourage- 
ment and  indul- 
gences to  con- 
victs distinguish- 
ing themselves 
by  obedience,  in- 
dustry and  faith- 
fulness. 

Board  of  Man- 
agers of  Reform- 
atory to  arrange  a 
system  of  marks 
or  otherwise  to 
determine  credit 
earned  by  pris- 
oner, as  to  in- 
creased p  r  i  V  i- 
leges  or  release 
from  control. 
Prisoner  to  learn 
standing  once  a 
month. 

Tobacco  to  a 
limited  extent. 


Moderate  al- 
lowance of  tea 
or  tobacco. 

Moderate 
amount  of  chew- 
ing tobacco  to 
convicts  accus- 
tomed to  use  of 
same. 


R.  S. 
1904, 
Sec. 
5920. 

R.  S. 

1904, 
Art.  27, 
Sec.  593. 


R.  S. 

1901, 
C.  285. 
Sec.  15. 


R.  S. 
1 9 10, 
Sec. 
2159. 


R.  S. 
1907, 
Page 

3494. 
Sec.  45. 

R.  S. 
1910, 

Sec.  676. 

R.  S. 

1896, 

Title  7, 

Art.  4, 

Sec. 


7534- 


(B)  When  forfeited ; 


Nevada 


Loss  of  out- 
door privilege  is 
the  maximum 
punishment  for 
prisoners  em- 
ployed on  road 
work 


Laws  of 
1911, 
C.  71. 


(329) 


7S 


THE  CAGED  MAN 


[Vol.  Ill 


(A)   When  permitted : 
Wisconsin         Moderate    al-        R.  S. 
lowance    of    to-         1898, 
bacco  or  tea  as  a  Sec. 

reward     for    in-         4902. 
dustry    oi 
behavior. 


(B)   When  forfeited: 


(^)  Prisoner's  grading  is  the  outward  expression  of  his  reported  rating. 


Alabama 


California 


Idaho 


Illinois 


Louisiana 


(A)  WTien  allowed ; 
Convicts  grad- 
ed when  hired 
for  mine  work; 
grading  permis- 
sible for  other 
work. 

Warden  to 
grade  and  class- 
ify convicts  and 
clothe  them  so 
grades  may  be 
distinguishable. 

Prisoners  to  be 
divided  into 
three  grades.  No 
one  to  be  pa- 
roled until  he  has 
served  6  mos.  in 
first  grade.  Pris- 
oners in  second 
and  third  grades 
to  be  deprived  of 
such  privileges  as 
Board  directs. 

First  class,  cor- 
rigible, likely  to 
observe  the  laws, 
and  maintain 
them  selves  by 
honest  industry 
after  discharge; 
second  class  in- 
corrigible but 
competent  to 
labor;  third  class 
incorrigible  and 
so  incompetent 
as  to  seriously  in- 
terfere with  the 
work  and  disci- 
pline of  the  pen- 
itentiary. 

Board  to  make 
rules  for  grading 
and  classifying 
the  prisoners  ac- 
cording to  most 
modern  and  en- 
lightened system 
of  reformation. 


(B)   When  forfeited; 


R.  S. 
1907, 
Sec. 
6530. 


Penal 
Code, 
1909, 
Sec. 

1578, 
P.  5. 
R.  S. 
1908, 
Part  2, 
Title  10, 
Sec. 
8264. 


R.  S. 

1909, 
C.  108, 
Sec.  78. 


Laws  of 
1900, 

No.  70, 
Sec.  6. 


(330) 


Ko.  4j 


HOW  IS  HE  CARED  FOR 


79 


(A)  When  permitted ; 


(B)  When  forfeited ; 


Massachu- 

According    to 

R.  S. 

setts 

conduct,  industry 
and  diligence  in 
study. 

1902, 
C.  225, 
Sec.  15. 

Michigan 

First  class  cor- 

R. S. 

Michigan          Reduction    to 

R.  S. 

rigible;     second 

1897, 

lower  grade   for 

1897. 

class  incorrigible 

Sec. 

misconduct. 

C.75. 

but  competent  to 

2103. 

Sec.  24 

labor;   third 

grade    incorrigi- 

ble  and    incom- 

petent. 

Mississippi 

First  class  con- 
victs,   male    and 
female,   over    i8 
and  under  55. 

R.  S. 

1906, 

C.  22, 

Sec.  844. 

Nevada 

First    grade, 
those    appearing 
corrigible.     Sec- 
ond grade,  those 
appearing  incor- 
rigible but  com- 
petent   to  work. 
Third     grade, 
those    appearing 
incompetent  and 
incorrigible. 
Garb     of    first 
grade,  one  color 
throughout. 
Garb    of   second 
grade,    prison 
stripes.     Garb  of 
third   grade, 
trousers  of  prison 
stripes   and    red 
shirts. 

R.  S. 
1912, 
Sec. 
7583- 

New  York 
Ohio 

First  grade, 
corrigible     and 
likely  to  observe 
laws.      Second 
grade,   incorrigi- 
ble, but  compe- 
tent    and    not 
likely  to  interfere 
seriously    with 
prison  discipline. 
Third  grade,  in- 
corrigible    and 
in  com  pe  tent. 
Superintendent 
of   state   prisons 
to  make  promo- 
tions and  reduc- 
tions   from    one 
grade  to  another. 

Grading     for 
employment,  etc. 

Prison 
Law, 
1909, 

c.  47, 

Sec. 
148-9. 

R.  S. 
1910, 
Div.  4, 

C.2, 

Sec. 
2159. 

(331) 


8o 


THE  CAGED  MAN 


[Vol.  Ill 


(B)   When  forfeited : 


(A)   When  permitted : 

Texas  Prison   Com-        R.  S. 

mission  to  class-        191 1, 
ify  all  prisoners.        C.  28, 
First   class — first         .Sec. 
offenders;    sec-         1609. 
ond    class  —  less 
corrigible      but 
content  to  work; 
third    class — ap- 
pearing   incorri- 
gible.    Prisoners 
to  be   promoted 
and     reduced 
from   one   grade 
to  another.   Uni- 
forms of  first  two 
grades      not 
stripes.      Special 
privileges  to  dif- 
ferent grades. 

Utah  Board  to  class-        R.  S. 

ify    prisoners.         IQO?) 
First    grade —     Title  74, 
those    appearing        C.  10, 
corrigible;      sec-  Sec. 

ond  grade  —  in-  2242. 
corrigibles  who 
are  competent 
and  not  likely  to 
interfere  with 
productiveness  of 
labor.  Third 
grade  —  incorri- 
gibles  and  in- 
competents who 
will  interfere 
with  labor.  Pro- 
motion and  re- 
duction from  one 
grade  to  another. 

Qc/)  Reward  of  money  wa'^e,  the  use  of  which  is  regulated  so  as  to  increase  moral  incentive. 


(A)  When  permitted: 
California       County    court      Laws  of 
may  decree  that         191 1, 
prisoners     work       C.  379. 
on  roads;  Board 
to  allow  wife  or 
children     or 
guardians   of 
latter  not  exceed- 
ing    $1.50     for 
each  day's  labor. 
Colorado^  ''    Earnings,  after        R.  S. 
cost  of  mamten-  1908, 

ance  and  reten-  .Sec. 

tion  is  deducted,  4882. 
to  be  given  to 
familyordepend- 
ents,  or  if  there 
be  nonesuch,  ac- 
cumulated until 
time  of  discharge. 


(I)   When  forfeited; 


(332) 


No.  4] 


HOW  IS  HE  CARED  FOR 


Illinois 


Kansas 


Kentucky 


(A)  When  permitted 

(B)   When  forfeited : 

County     pris- 

Laws of 

oners,     one-half 

1911, 

net  earnings  after 

C.  130. 

the  deduction  of 

expenses    for 

guarding,   to    be 

paid  dependents 

likely  to  become 

a  public  charge. 

In     no     case 

R.  S. 

Illinois             Violation      of 

R.  S. 

shall       earnings 

1909, 

rules  causes  for- 

1909, 

exceed     lo     per 

C.  108, 

f  e  i  t  u  r  e    of  50 

C.  108, 

cent,  of  the  earn- 

Sec. 91. 

cents    for     each 

Sec.  91. 

ings  of  the  peni- 

day of  good  time 

tentiary    or     re- 

lost. 

formatory. 

Earnings  may  be 

used    for    family 

or    to    purchase 

books,  etc.,  and 

may     be     b  e- 

queathed  by  will. 

Five  per  cent. 

R.  S. 

Kansas               For    violation 

R.  S. 

of     each     day's 

1909, 

of  rules  warden 

1909, 

earnings — earn- 

Sec. 

or  directors  may 

C.  108, 

ings  being  com- 

8588. 

forfeit  the  whole 

Art.  30, 

puted  at  75  cents. 

or   any    part   of 

Sec. 

R  e  f  0  rmatory 

R.  S. 

convict's      earn- 

8588. 

prisoners,       first 

1909, 

ings. 

grade  3  cents  per 

Sec. 

day ;     second 

8643. 

grade  2  cents  per 

day.     Earnings 

funded  until  re- 

lease. 

Convict      may 

R.  S. 

cause     earnings, 

1909, 

in  excess  of  earn- 

Sec. 

ings  for  one  year. 

8589. 

to    be   sent   to 

family  or  ex- 

pended  in   such 

way   as    warden 

approves. 

Board  to  place 

Laws  of 

Kentucky         Warden  by 

Laws  ot 

to  credit  of  pris- 

1910, 

!                            way    of    punish- 

1910, 

oner  such  amount 

c.  15. 

ment    with     ap- 

c. 15. 

of    average    per 

proval  of  Board, 

capita     earnings 

may    cancel    or 

as  Board  deems 

distribute  to 

just — e  a  r  n  i  n  gs 

family  such  por- 

not to  exceed  20 

tion  of  earnings 

per  cent,  of  aver- 

as he  deems  best. 

age    per    capita 

earnings.    Earn  ■ 

ings  may  go   to 

family  or  be  paid 

prisoner,  but   25 

per    cent,    must 

be   funded   until 

release. 

(^zzz) 


82 


Louisiana 


Maine 


THE  CAGED  MAN 


[Vol.  Ill 


(A)  When  permitted : 

Convicts     on  R.  S. 

roads  or  farms;  1904, 

first   class  $5    to  Page 

$15  per  month;  I3'3' 

second    class   $2  Sec.  8. 
to  $10  per  month. 

County     pris-      Laws  o 
oners — Commis-         191 1) 
sioners       send       C.  144. 
order    weekly 
upon  treasury  for 
number  of  days' 
work     done     by 
prisoner  —  earn- 
ings for  family. 

Any  person        R.  S. 
awaitmg     sen-         I903> 
tence    in    jail         C.  82 
where    labor    is      Sec.  4: 
provided  shall  re- 
ceive such  sum  as 
in  the  judgment 
of     the     county 
c  o  m  m  i  ssioners 
he  has  earned. 


(B)  When  forfeited; 


Maryland 


Massachu- 
setts 


Mississippi 


Earnings     of  R.  S. 

prisoner  in  1904, 

House    of    Cor-  Art.  27, 

rection    may   be  Sec.  473. 
sent  to  family. 

In  cases  of  de-      Laws  of 
sertion  and  non-         191 1, 
support,the  court       C.  456, 
imposing    sen-       Sec.  8. 
tence  may  if  he 
finds   destitution 
amongst  the  de- 
pendents    order 
that  50  cents  for 
each  day's  hard 
labor   performed 
by   the   prisoner 
be  paid  for  their 
relief. 

County      con-        R.  S. 
victs;   first   class         1906, 
from  S5   to   S15      ,  C.  22, 
per  month;    sec-     Sec.  845. 
ond    class    from 
$2    to    $10    per 
month.       Board 
may     designate 
higher  wages  on 
account    of    the 
skill   in  individ- 
ual cases. 


(334) 


HOW  IS  HE  CARED  FOR 


83 


(A)  When  permitted 
Five  per  cent 
of  daily  earnings 
to  be  set  aside  at 
end  of  quarter; 
warden  to  keep 
accurate  account 
of  number  o  f 
days'  work  done 
by  prisoner ;  sum 
of  $15  must  ac- 
cumulate for 
each  prisoner 
after  release 
from  penitentiary 
unless  the  5  per 
cent  amount  to 
less;  balance  may 
be  used  for  family, 
provided  warden 
ascertains  it  is 
destitute,  or  for 
personal  necessi- 
ties not  provided 
by  the  institu- 
tion. All  earn- 
ings of  life  pris- 
oners go  to  fam- 
ily ;  gross  earn- 
ings of  life  pris- 
oner without 
family  go  to  in- 
stitution. 

Twenty-five 
cents  a  day  to 
convicts  engaged 
in  road  work. 

County  c  o  n- 
victs  at  end  of 
sentence  receive 
25  per  cent  of 
amount  of  their 
labor;  sheriff  to 
keep  itemized 
account  showing 
earnings  and  ex- 
penses. 

Compensation 
not  to  exceed  10 
per  cent  of  the 
earnings  of  the 
prison  to  be  dis- 
tributed among 
the  prisoners; 
agent  and  war- 
d  e  n  to  grade 
c  o  m  p  e  n  sation, 
basing  it  on  pe- 
cuniary value  of 
work  and  on 
willingness,  in- 
dustry and  good 
conduct. 


(B)  When  forfeited ; 


R.  S. 

1909, 
Art.  19, 

Sees. 

1618-19- 

20. 


Laws  of 
1911, 
C.71. 

R.  S. 

1901, 
C.  283. 
Sec.  17. 


Prison 
Law 
1909, 
C.47. 
Art,  6, 
Sec.  185. 


Nevada 


Laws  of 
1911, 
C.  71. 


New  York 


When  prisoner 
forfeits  good 
time  he  forfeits 
50  cents  per  day. 


R.  S. 
1909, 

C.43- 

Art.  9, 

Sec.  185. 


(335) 


84 


THE  CAGED  MAN 


[Vol.  Ill 


North 
Carolina 


North  ' 
Dakota 


Ohio 


(A)  When  permitted 

Earnings  may 
be  used  for  family 
or  to  buy  books, 
instruments  and 
instruction  not 
supplied  by  insti- 
tution; they  may 
not  be  used  for 
food,  clothing  or 
ornament. 

One  dollar  al- 
lowed for  every 
ten  days  of  good 
time  earned. 
Money  may  be 
sent  to  family  if 
prisoner  desires. 
Directors  to 
make  regulations 
for  reasonable 
amount  of  money 
to  be  given  con- 
vict as  reward  for 
good  conduct. 

Money  reward 
may  be  given 
convict  who  sur- 
passes the  aver- 
age inmates  in 
good  behavior, 
diligence,  in 
study,  labor  or 
otherwise,  at  dis- 
cretion of  gover- 
nor, upon  recom- 
mendation  of 
Board  of  Trus- 
tees. 

Board  may 
credit  prisoners 
with  such  part  of 
earnings,  not  ex- 
ceeding 20  per 
cent  of  receipts, 
as  seems  equit- 
able and  just, 
taking  into  con- 
sideration char- 
acter and  nature 
of  crime  and  de- 
portment. Funds 
may  be  paid  pris- 
oner or  family, 
according  to 
judgment  of 
Board.  At  least 
25  per  cent  must 
be  kept  for  pris- 
oner on  release. 
Life  prisoners  re- 
ceive at  most  5 
cents     per    day. 


(B)  When  forfeited: 


Prison 
Law 
1909, 

C.  47. 
Sec.  187. 


R.  S. 

1908, 

C.  1x6, 

Sees. 
5402-3. 


R.  S. 

190S. 
Sec. 
10358. 


R.  S. 
1910, 
C.  2, 
Sec. 
2208. 


Ohio 


Board  may  use 
judgment  as  to 
cancelling  earn- 
ings. 


R.  S. 
1910, 
Sec. 
2164. 


(336) 


No.  4] 


HO  W  IS  HE  CARED  FOR 


85 


Oregon 


(A)   When  permitted: 

Board  of  Man-      Laws  of 
agers  of  peniten-         191 1, 
tiary    to     which  Sec. 

prisoner  is  sen-  13019. 
t  e  n  c  e  d  under 
Employers'  Lia- 
bility Law  to  pay 
hmi  40  cents  per 
working  day  dur- 
i  n  g  period  of 
confinement. 

Fifty  cents  per        R.  S. 
merit    mark    al-         19 10, 
lowed     to     each      C.  4516. 
convict    on    dis- 
charge. 


(B)   When  forfeited ; 


Pennsyl- 
vania 


Rhode 

Island 


South 
Dakota 


Quarterly 
wages  equal  to 
amount  of  earn- 
ings, fixed  from 
time  to  time  by 
authorities,  from 
which  board, 
lodging  and  cost 
of  trial  shall  be 
deducted.  .Bal- 
ance paid  depen- 
dents or  funded 
until  release. 

Board  may,  on 
discharge,  pay 
convtct  sum  of 
money  not  ex- 
c  e  e  d  i  n  g  one- 
tenth  of  his 
actual  earnings; 
in  case  of  sick- 
ness Board  may 
also  pay  one- 
tenth  average 
earnings  of  con- 
vict labor.  In  no 
case  is  sum  to  be 
less  than  $5.00. 

Money  reward 
may  be  given 
convict  who  sur- 
passes the  aver- 
age inmates  in 
good  behavior, 
diligence,  in 
study,  labor  or 
otherwise,  at  dis- 
cretion of  gover- 
nor, upon  recom- 
mendation of 
Board  of  Trus- 
tees. 


R.  S. 
1907, 
Page 

3487, 
Sec.  4. 


R.  S. 

1909, 
C.  360, 
Sec.  42. 


R.  S., 

1905, 

C.  17 

Sec.  699. 


Oregon 


Money  credits 
subjected  to  for- 
feiture of  the 
cost  price  of  tools 
and  materials 
which  have  been 
injured  or  wasted 
through  careless- 
ness or  neglect 
of  convict. 


R.  S. 
1910, 
Sec. 
4516. 


(337) 


86 


THE  CAGED  MAN 


[Vol.  Ill 


(A)  When  permitted : 


(B)   When  forfeited : 


Utah                  Unmarried 

R.  S. 

prisoners  not  ex- 

1907, 

ceeding    lo   per 

Title  57, 

cent  of  earnings 

Sec. 

on  discharge. 

2260. 

Married    prison- 

ers  not    exceed- 

ing 25   per  cent 

to  go  to  families. 

If  they  have  no 

dependents  they 

are    credited    as 

unmarried. 

Vermont           If  poor  and 

R.  S. 

Vermont           Loss  of  $1.00 

R.  S. 

needy,     prisoner 

1906, 

for  each  mo.  in 

1906, 

to    be    paid    on 

C.  261, 

which       convict 

C.  261. 

discharge,  $1  for 

Sec. 

commits    misde- 

Sec. 

each  day's  work 

6088. 

meanor. 

60S8. 

during  sentence. 

Payment  not   to 

exceed  ^100. 

Wisconsin         For  extra  good 

R.  S. 

conduct      Board 

1889, 

may  allow  money 

Sec. 

compensation. 

4942. 

Wyoming           Prisoners      in 

Laws  of 

Wyoming           Fines  as  a  sub- 

Laws of 

the  discretion  of 

1911, 

stitute   for   pun- 

1911, 

the   Commission 

C.  61. 

ishment,  not   to 

C.  61. 

receive  a  graded 

exceed  50  cents 

compensation,  in 

a  day. 

no     case     more 

than  10  per  cent 

of  earnings  of  in- 

stitution.      Sur- 

plus earnings  go 

to     family,     are 

never  to  be  used 

in    buying   com- 

missary, but  the 

balance  paid  on 

release  subject  to 

draft. 

Alabama 


{e')  Reward  of  ivagt  for  overtime  loork. 
(A)  When  permitted  :  (B)  When  forfeited: 

After  perform- 


Delaware 


a  n  c  e  of  daily 
task;  manner 
p  r  e  s  c  ribed  by 
Board;  proceeds 
disposed  of  as 
Board  shall  pro- 
vide by  rule. 

Earnings  may 
go  to  family,  be 
used  to  purchase 
articles  permitted 
in  the  prison,  or 
be  funded  until 
discharge. 


Laws  of 
1907, 
Sec. 
6531- 


Laws  of 
1898, 

C.  247. 
Sec.  5. 


(338) 


No.  4] 


HOW  IS  HE  CARED  FOR 


87 


(A)    When  permitted  : 
Michigan  Prisoners      Laws  of 

-working  on  pub-  1907, 
lie  account  may  No.  291. 
receive  wages  not 
to  exceed  10  per 
cent  of  the  pro- 
fits realized  upon 
actual  collections 
from  the  sale  of 
the  product  of 
the  plant. 

Wages     are      Laws  of 
paid  convicts   in         191 1, 
the    wisdom     of     No.  239. 
the    Board;      a 
limit  of  15  cents 
a  day  is  set. 
Missouri  Convict    is        R.  S. 

tasked  for  rea-  1909, 
sonable  amount  Sec. 
and  allowed  1623. 
wage  for  over- 
time at  rate  al- 
lowed state.  If 
on  any  day  con- 
vict cannot  ac- 
complish full  task 
no  deduct  ion 
shall  be  made 
from  any  over 
work  performed 
on  any  other 
day.  Overtime 
pay  may  be 
drawn  for  pur- 
chase of  books, 
etc.,  to  be  pur- 
chased by  war- 
den or  chaplain 
at  lowest  cash 
price  without 
commission.  In- 
spectors may 
upon  r  e  c  o  m- 
mendation  of 
warden  at  end  of 
each  month  place 
to  credit  of  con- 
vict not  guilty  of 
m  isd  em  eanor 
and  who  has  lost 
no  time  during 
month  such  lim- 
ited amount  as 
will  encourage  a 
more  cheerful 
performance  of 
work,  subject  to 
same  rules  as 
applied  to  over 
work. 


(B)   When  forfeited ; 


(339) 


88 


THE  CAGED  MAN 


[Vol.  Ill 


(A)  When  permitted : 
Virginia  Convicts  to  be       R.  S. 

tasked;  a  reason-         1904, 
able  amount,  de-      Title  55, 
termined    by  su-         Sec. 
perintendent,   to        4173. 
be  paid  on  dis- 
charge,  or   to 
family,  or  to  be 
used   for  provis- 
ions   and    other 
articles    selected 
from  a  standing 
list  and  charged 
to    convict  at 
cost. 


(B)  When  forfeited : 


(^)  Rezuard  of  assistance  to  prisoner'' s  family. 


(A)  When  permitted 

Michigan  Managers     of 

Detroit  House  of 
Correction  arid 
State  Prisons  to 
pay  over  to  su- 
perintendents of 
poor  of  city  or 
county  in  which 
wife  and  chil- 
dren of  prisoners 
live,  $1.50  per 
week  for  each 
child  under  15. 

Minnesota  R  e  f  o  rmatory 
Board  may  make 
provision  for 
moderate  assist- 
ance to  families 
of  convicts  to  be 
paid  from  cur- 
rent expense  fund 
of  institution. 

Missouri  County    court 

t  o  appropriate 
from  county 
treasury  amount 
not  exceeding 
$12,000  per  year 
for  the  partial 
support  of  wid- 
ows or  wives  of 
prisoners  w  h  o 
are  poor  and 
have  children 
under  14;  such 
allowance  not  to 
exceed  $ic  per 
month  if  there 
be  one  child; 
S15  per  month  if 
more;     children 


Acts  of 

1907, 

No.  144. 


R.  S. 

1905. 

C.  105, 

Sec. 

5459. 


Acts  of 
1 9 10, 
H.  B. 
626. 


(B)  When  forfeited; 


(340) 


No.  4] 


HOW  IS  HE  CARED  FOR 


89 


New  Jersey 


(A)  When  permitted : 
to  live  with 
mother  who 
would  otherwise 
be  obliged  to 
live  away  from 
them.  Woman 
must  be  m  e  n- 
tally,  morally 
and  physically 
able  to  bring  up 
her  children. 

Prisoners'  fam-      Laws  of 
ilies     dependent         191 1, 
on     charity     re-         S.  B. 
lieved   by   Com-  1150. 

missioner  of 
Charities  at  the 
rate  of  50  cents 
for  every  day  the 
prisoner  works. 
The  relief  fund 
limited  to  5  per 
cent  of  the  value 
of  all  goods  pro- 
duced. 


(B)  When  forfeited : 


4.  General   Education. 
(a)   Prison  schools  are  provided: 

Arkansas  Chaplain  to  establish  a  night  school  R.     S.     1904,     C. 

for   young   convicts   and   instruct   them  123,  Sec.   5893. 

in  studies  arranged  by  board. 
Georgia  Reformatory  prisoners  to  receive  in-  R.    S.    191 1,    Sec. 

struction    in    elementary    branches    and  1243. 

manual  training. 
Illinois  Chaplain  to  give  instruction  in  such  R.  S.   1909,  Page 

English  branches  as  warden   feels  will  1670,  Sec.  23. 

be   of  benefit  between   6   and   9   P.    M. 

daily. 
Indiana  Instruction    of    an    educational    and  R.    S.    1908,    Sec. 

technical  nature  as  shall  be  to  the  best  9844. 

interest  of  the  inmates. 

Trade  schools  at  the  reformatory.  R.    S.    1908,    Sec. 

9905- 
Iowa  Chaplain  to  give  instruction  in  ordi-  R.   S.   1897,  Title 

nary   branches   of   English    to   illiterate  26,    C.    2,    Sec. 

convicts.  5671. 

Reformatory     prisoners     to     be     em-  R.    S.    1897,    Sec. 

ployed    in    trades    conducive    to    Intel-  2706. 

lectual   and   moral   development. 
Kansas  Chaplain   to   teach   convalescents   and  R.     S.     1909,     C. 

others  whose   task   is  performed   within  108,    Sec.    8577. 

less   than    required   hours   of   labor   and 

who  wish  to  avail  themselves  of  his  as- 
sistance    in     acquiring     an     elementary 

education. 
Kentucky  Convicts    to    be    trained    in    common  Laws  of  1910,  C. 

branches  of  English  and  in  some  trade,  15. 

industry  or  handicraft ;  common  schools 

and  trade  schools  to  be  maintained  for 

the  purpose. 

(341) 


90 

Maine 

Massachusetts 
Michigan 
New  Jersey 


New  York 
Tennessee 

Texas 
Vermont 

Utah 
Wisconsin 

Alabama 

Arkansas 

Connecticut 

Colorado 

Idaho 

Illinois 
Maine 
Michigan 
Texas 

Utah 
Vermont 


THE  CAGED  MAN 

Inspectors  to  establish  rules  for  the 
instruction  of  convicts. 

$2,000.00  appropriation  annually  for 
prison  schools. 

A  school  to  be  maintained  in  each 
prison. 

Board  of  inspectors  to  equip  school 
and  have  control  and  supervision 
thereof,  to  appoint  teachers  who  must 
have  certificate  prescribed  by  State 
Board  of  Education,  and  must  not  be 
inmates  of  the  prison.  Studies  to  be 
the  same  as  those  in  public  schools. 

Moral  instructors  to  devote  their 
entire  time  to  work. 

Under  supervision  of  the  chaplain. 

Chaplain  to  instruct  those  under  16 
and  older  if  they  desire  2  hours  per 
week. 

Prisoners  to  be  taught  elementary 
branches  of  English. 

Educational  instruction  to  be  given. 


Schools  to  be  conducted  in  the  prison. 

Chaplain  to  conduct  school  for  three 
hours  one  day  per  week. 

(b)   Prison  Libraries   are  provided: 
Appropriation    of    $500.00    per    year 
for  books. 

Chaplain  in  charge  of  library. 

Appropriation  of  $500  annually  for 
library  purposes. 

Warden  to  act  as  librarian. 

Appropriation  of  $75  per  annum ; 
warden  to  purchase  books  and  report 
to  Governor  annually  the  effect  upon 
conduct,  mental  and  moral  improve- 
ment of  the  prisoners. 

Chaplain  to  take  charge  of  library. 

Appropriation  of  $50  annually;  war- 
den to  take  charge  of  library. 

Library  subject  to  instruction  of 
board. 

Chaplain  to  act  as  librarian. 


As  board  directs. 

Board  of  Library  Commissioners  to 
have  care  and  supervision  of  suitable 
libraries  in  penal  and  charitable  insti- 
tutions; they  may  expend  $500  for  this 
purpose  in  191 1,  and  $200  a  year  there- 
after. 

(342) 


[Vol.  Ill 

R.  S.   1903,  Title 

12,  C.  141,  Sec. 

II. 
R.     S.     1902,    C. 

224,   Sec.   73. 
R.    S.    1897,    Sec. 

2134. 
R.  S.  1910,  Page 

4927,   Sees.  69- 

76. 


R.  S.   1910,  Page 

4914,  Sec.   7. 
R.  S.  1909,  C.  47, 

Sec.  139. 
R.  S.    1896,  Title 

7,     C.     2,     Sec. 

7509. 
R.    S.    191 1,    Sec. 

6203. 
R.  S.   1906,  Title 

33.       C.       261, 

Sees.  6072-73. 
R.  S.  1907,  C.  10, 

Sec.    2279. 
R.     S.     1898,     C. 

201,   Sec.   4905. 


R.     S.     1907,     C. 

191,  Sec.  6539. 
R.     S.     1904,     C. 

123,  Sec.  5893. 
R.     S.     1902,     C. 

176,  Sec.  2922. 
R.     S.     1908,     C. 

108.  Sec.  4847. 
R.   S.    1908,   Part 

3,  Title  2,  Sec. 

8510- 


R.  S.   1909,  Page 

1670,   Sec.   23. 
R.     S.     1903.     C. 

141,    Sec.    51. 
R.    S.    1897,    Sec. 

2135. 
R.   S.   191 1,  Title 

104,   C.   2,   Sec. 

6203. 
R.  S.  1907,  C.  10, 

Sec.    2280. 
Laws     of      1910, 

No.  235. 


No.  4]  HOW  IS  HE  CARED  FOR 

Wisconsin'  Chaplain  in  charge  of  library. 

(c)    Industrial    Training   provided: 

Georgia  Reformatory     prisoners     to     receive 

instruction  in  elementary  branches  and 

manual  training. 
Indiana  Instruction    of    an    educational    and 

technical  nature  as  shall  be  to  the  best 

interest  of  the  inmates. 

Trade   schools    at  the    Reformatory. 

Iowa  Reformatory     prisoners     to     be     em- 

ployed in  trades  conducive  to  intel- 
lectual and  moral  development. 

Kansas  Trades    which    will    enable    prisoners 

to  earn  a  living  on  release. 

E^ENTUCKY  Convicts    to    be    trained    in    common 

branches  of  English  and  in  some  trade, 
industry  or  handicraft ;  common  schools 
and  trade  schools  to  be  maintained  for 
the  purpose. 

Minnesota  Trades  for  which  prisoner  seems  best 

suited. 

Ohio  Superintendent    of    reformatory    au- 

thorized to  expend  not  more  than  5  per 
cent  of  gross  earnings  of  inmates  for 
equipment  of  industrial  training  schools 
which  will  fit  for  self-support  upon 
release. 


91 

R.    S.     1898,    C. 
201,   Sec.   4905. 


R.    S.    191 1,    Sec. 
1243- 

R.    S.    1908,    Sec. 
9844. 

R.    S.    1908,    Sec. 

9905- 
R.    S.    1897,   Sec. 

2706. 

R.    S.    1909,    Sec. 

8595- 
Laws  of  1 9 10,  C. 

15- 


R.     S.     1905,     C. 

105,   Sec.   5458. 
R.    S\    1 9 10,   Div. 

4,    C.     I,     Sec. 

2137- 


(343) 


VII. 


Who  can  set  him  free? 

As  the  result  of  good  conduct  prisoners  may  be  allowed 
limited  freedom  or  parole  through  action  taken  by  : 

1.   The  Governor. 

Alabama  Governor  may,  when  he  thinks  best,     Crim.   Code,  1907, 

authorize  the   discharge  of  any  convict         C.     265,     Sees, 
from  custody  and  suspend  the  sentence  7515-16. 

of  such  convict  without  granting  a  par- 
don, and  prescribe  the  terms  upon 
which  a  convict  so  paroled  shall  have 
his  sentence  suspended.  Upon  the 
failure  of  any  con\T[ct  to  observe  the 
conditions  of  his  parole,  to  be  deter- 
mined by  the  governor,  the  governor 
shall  have  authority  to  direct  the  re- 
arrest and  return  of  such  convict  to 
custody  and  thereupon  convict  shall  be 
required  to  carry  out  sentence  of  court 
as  though  no  parole  had  been  granted 
him. 

Missouri  The    Governor    shall    have    power    to     Const.   1875,  Art. 

grant  reprieves,  commutations  and  par-  5,  Sec.  8. 

dons  after  conviction,  for  all  offenses 
except  treason  and  cases  of  impeach- 
ment ;  upon  such  conditions  and  with 
such  restrictions  and  limitations  as  he 
may  think  proper,  subject  to  such  regu- 
lations as  may  be  provided  by  law 
relative  to  the  manner  of  applying  for 
pardons. 1 

Oklahoma  The    Governor    has    power    to    grant     Const.    1907,  Art. 

paroles  and  reprieves.  6,   Sec.    10. 

2.  The  Parole   Board. 

Arizona  The  parole  board  is  composed  of  the      Laws  1912,  C.  46. 

governor,  warden  of  state  prison, 
state  auditor,  attorney  general,  and  the 
physician  of  the  prison.  The  warden 
is  president  and  a  parole  clerk  is  ap- 
pointed by  the  governor.  Any  pris- 
oner who  has  served  his  minimum 
sentence,  and  any  prisoner  serving  a 
fixed  term  who  has  a  clean  record  for 
the  time  served,  is  eligible  for  parole. 
Where  a  paroled  prisoner  has  reverted 
or  is  about  to  revert  to  criminal  habits, 
any  member  of  the  board  may  issue  a 

1  Under  this  constitutional  pro\'ision  Governor  Hadley  has  established  _a 
parole  system,  which  has  been  extended  to  j-oung  and  first  offenders,  and  is 
entirely  within  the  discretion  of  the  Governor  assisted  by  the  Pardon  Attorney. 

(344) 


No.  4] 


WHO  CAN  SET  HIM  FREE 


93 


California 


Colorado 


Connecticut 


Idaho 


Indiana 


Illinois 


Iowa 


Title 


warrant  for  him.  He  may  be  finally 
discharged  whenever  the  board  decides 
he  is  worthy  of  discharge. 

The  parole  board  is  appointed  by  Laws  1901,  P.  82. 
the  Governor  and  includes  the  war- 
dens of  the  two  state  prisons.  Gov- 
ernor can  revoke  parole.  Prisoners 
who  have  a  clear  record  for  six  months 
and  against  whom  there  are  no  charges 
pending  and  life  termers  after  seven 
years  are  eligible  for  parole.  Prison- 
ers are  finally  discharged  at  expira- 
tion of  maximum  parole  or  may  be 
discharged  sooner  by  board. 

Parole    board    is    composed    of    Gov-     R.  S.  1908,  C.  35, 
ernor   and    four   members   appointed   by  Sees.    2039-42. 

him.  Prisoners  are  eligible  for  parole 
at  the  expiration  of  minimum  sen- 
tence. They  are  finally  discharged 
after  service  of  maximum  sentence, 
either  in  prison  or  on  parole. 

The    parole    board    consists    of    the      R.   S.    1902, 
board   of    directors,    the    superintendent  7,     Sees.     1535- 

and  warden.  Prisoners  who  have  41. 
served  a  minimum  term  of  at  least 
twelve  months  are  eligible  for  parole. 
They  are  finally  discharged  by  expira- 
tion of  maximum  sentence  or  unani- 
mous vote  of  all  members  of  board  at 
any  stated  meeting. 

The    parole    board    consists     of    the      R.   S.    1908,   Part 
board     of    pardons     and    the     warden.  2,  Title  10,  Sec. 

Prisoners  are  eligible  for  parole  who  8259. 
have  not  previously  been  sentenced  for 
a  felony  and  who  have  served  Yz  of 
full  term,  not  reckoning  good  time.  All 
persons  to  be  graded  and  none  paroled 
until  they  have  served  6  months  in 
highest  grade.  Life  prisoners  may  not 
be  paroled. 

Parole  board  consists  of  warden, 
three  directors,  chaplain  and  physician. 
Prisoners  who  have  served  minimum 
sentence  are  eligible  for  parole.  They 
are  finally  discharged  when  board  is 
satisfied  they  will  live  orderly  if  freed 
from  parole  restrictions. 

The  parole  board  is  the  same  as  the 
board  of  pardons  with  the  warden  as 
an  advisory  member.  Prisoners  are 
eligible  for  parole  when  they  have 
served  at  least  11  months  unless  old 
offenders,  when  21  months  must  be 
served.  When  prisoner  has  served 
parole  of  12  months  board  makes  order 
for  final  discharge,  which  when  ap- 
proved by  Governor  is  final. 

Parole    board    consists    of    three    citi-     R.   S.    1907-  Title 
zens,  not  more  than  two  of  one  political  26,    C.    2,    Sec. 

party    and    one    a    duly   licensed    attor-  S7i8,  a  18,   19, 

ney  at  law,  appointed  by  Governor  with         20. 

(345) 


R.    S.    1908,    Sec. 
9870. 


R.  S.  1909.  C.  38, 
Sec.  501. 


94 


THE  CAGED  MAN 


[Vol.  Ill 


Kansas 


Kentucky 


Massachusetts 


Michigan 


Minnesota 


Montana 


ad\-ice  of  Senate.  Prisoners  are  eligi- 
ble for  parole  when  thej'  have  served 
II  months,  except  when  maximum  is  2 
3-ears  or  less,  then  6  months.  They 
are  finally  discharged  when  they  have 
served  12  months  parole  acceptably  and 
if  likely  to  be  reliable  and  trustworthy 
in  future. 

Parole  board  is  composed  of  prison 
board  with  warden  as  member  and 
secretary.  Prisoners  are  eligible  for 
parole  when  they  have  served  minimum 
with  6  months  of  clear  prison  record 
except  when  committed  for  murder  in 
the  first  or  second  degree,  or  serving 
third  term. 

Parole  board  consists  of  board  of 
four  penitentiary  commissioners.  Pris- 
oners are  eligible  for  parole  who  have 
served  minimum  sentence  and  life  pris- 
oners who  have  served  5  3'ears.  All 
must  have  good  beha\'ior  record  for 
9  months. 

Parole  board  consists  of  five  prison 
commissioners  appointed  bj'  Governor 
with  consent  of  council.  Prisoner  must 
be  paroled  at  expiration  of  minimum 
sentence  if  record  has  been  perfect ; 
otherwise,  date  is  set  \iy  commissioners. 
Prisoners  are  finally  discharged  auto- 
matically at  expiration  of  maximum. 

Parole  board  consists  of  Governor 
and  advisory  board  of  four.  In  some 
instances  of  Governor  alone.  Warden 
makes  recommendation.  Convicts  are 
eligible  for  parole  at  expiration  of 
minimum  sentence,  except  third  termers 
whose  period  of  parole  must  not  ex- 
ceed four  years.  Final  discharge  comes 
at  expiration  of  parole  if  there  has 
been  faithful  observance  of  require- 
ments. The  period  is  fixed  at  time  of 
parole. 

The  board  of  parole  consists  of  three 
members — the  president  of  the  board 
of  control,  the  warden  of  the  prison 
and  a  citizen  appointed  by  the  gover- 
nor w-ith  consent  of  senate.  All  pris- 
oners are  eligible  for  parole  at  discre- 
tion of  board,  except  life  prisoners ; 
life  prisoners  may  be  paroled  after 
thirty-five  j^ears  less  commutation  for 
good  beha\"ior.  Prisoners  are  finally 
discharged  by  Governor  upon  recom- 
mendation by  board. 

The  state  board  of  prison  commis- 
sioners acts  as  board  of  parole,  upon 
recommendation  of  Governor.  First 
offenders  for  felony  are  eligible  for 
parole  after  they  have  served  one-half 
of    term,    not    reckoning    good    time. 

f346) 


R.  S.  1909,  C.  97, 
Sec.  6841. 


Laws  1910,  C.  16. 


1911,  C.  451. 


Laws      1905,     C. 
184. 


Laws      1911,      C. 
298. 


R.  S.  1907,  Part 
2,  Title  12,  C 
13.  Sees.  9573- 
9575- 


No.  4] 


WHO  CAN  SET  HIM  FREE 


95 


1911, 


Convicts  serving  time  sentence  may  be 
paroled  after  they  have  served  twelve 
and  one-half  years  where  term  was 
more  than  25  years,  and  life  prisoners 
having  served  25  years,  less  commu- 
tation for  good  behavior.  The  gov- 
ernor, upon  recommendation  of  board, 
finally  discharges  convicts  who  have 
fulfilled  requirements. 

Nebraska  The    parole    board    consists    of    the      Laws 

state    prison    board    appointed    by    the  184. 

Governor — one  member  to  be  a  prac- 
ticing physician  and  one  a  practicing 
attorney.  Prisoners  are  eligible  for 
parole  when  they  have  served  their 
minimum  sentence.  Six  months  faith- 
ful observance  of  parole  requirements 
is  reported  by  secretary  of  board  which 
issues  certificate  which  is  sent  to  Gov- 
ernor. Upon  recommendation  of  board 
Governor  finally  discharges  prisoner. 

Ne\t  Hampshire         Governor   and   council    act    as   parole      Laws      1909,     C. 
board.      Prisoner    is    paroled    automati-  120. 

cally  at  end  of  minimum  sentence  if 
obedient  to  rules ;  otherwise  governor 
and  council  determine.  Prisoner  is 
finally  discharged  by  Governor  at  ex- 
piration  of  maximum   sentence. 

New  Jersey  Board  of  inspectors  of  prison  act  as      Laws      191 1,     C. 

parole    board    with    approval    of    gover-  igi. 

nor.  Prisoners  whose  minimum  sen- 
tence is  about  to  expire  are  eligible  for 
parole.  Final  discharge  comes  after 
faithful  observance  of  conditions  of 
parole  until  maximum  has  expired. 
Prisoners  on  parole  can  earn  commu- 
tation and  thus  have  maximum  expire 
sooner. 

New    Mexico  The  board  of  parole  is  composed  of     Laws  1909,  C.  32. 

the  prison  board  and  the  superin- 
tendent of  the  penitentiary.  The  Gov- 
ernor must  approve  recommendations. 
All  prisoners  who  have  served  mini- 
mum except  those  having  served  two 
previous  terms  in  any  penitentiary. 
Superintendent,  after  prisoner  has 
served  not  less  than  six  months  of  his 
parole  acceptably,  reports  to  board  to 
recommend  to  trial  judge  who  certifies 
to  Governor,  who  finally  discharges 
him. 

New   York  Board   of   control    consists    of   super-     Laws  1909,  C.  47, 

intendent  of  prisons   and   two  members  Art.  8,  Sec.   10. 

appointed  by  the  Governor  with  con- 
sent of  Senate.  Board  to  devise  sys- 
tem of  marking  persons,  a  certain  num- 
ber of  marks  to  be  necessary  before  re- 
lease on  parole.  Prisoners  never  before 
convicted  and  who  have  served  mini- 
mum sentence  eligible  for  parole.  Final 
discharge  when  board  deems  it  not  in- 
compatible with  the  welfare  of  society. 

(S47) 


96 


THE  CAGED  MAN 


[Vol.  Ill 


North  Dakota  The   parole   board  is  a  board  of  ex-     R.    S.     1909,     C. 

perts   consisting   of   the   warden,   prison  173. 

physician,  a  prison  chaplain  and  one 
other  person  designated  by  the  board 
of  control.  Prisoners  are  eligible  for 
parole  when  they  have  served  their 
minimum  term ;  employment  must  be 
secured  and  employer  recommended  by 
judge  of  county  court.  Final  dis- 
charge comes  on  expiration  of  maxi- 
mum sentence.  Warden  gn^ves  dis- 
charge. 

Ohio  Parole  board  composed  of  eight  mem-     R.   S.   1910,  Sees, 

bers — a    president    and    two    other    lay         2141-44,     2167- 
members,    a    physician,-  a    fiscal    super-  75. 

visor,  a  mechanical  engineer, .  a  secre- 
tary and  a  parole  secretary.  Prisoners 
are  eligible  for  parole  when  they  are 
recommended  by  the  warden  and  chap- 
lain, have  served  a  minimum  of  not 
less  than  one  3'ear,  if  their  conduct  in 
prison  has  been  of  the  first  grade  for 
six  months  prior  to  application  and  if 
they  have  never  been  convicted  of  fel- 
on}' before.  In  case  of  life  prisoners  they 
must  have  served  twenty-five  j'ears. 
An  agreement,  from  a  reliable  prop- 
erty owner  certified  from  the  auditor  of 
the  county  that  he  is  a  property  owTier 
and  that  he  will  give  prisoner  employ- 
ment on  release,  is  necessary.  Final 
discharge  is  given  by  board  of  admin- 
istration and  the  warden  to  convict  who 
has  certificate  showing  faithful  com- 
pliance with  parole  agreement. 

Pennsylvania  Board    of    parole    consists    of   board     R.    S.    1909,    pp. 

of   5   prison  inspectors  from  each  peni-  5329-31. 

tentiary,  who  report  to  the  board  of 
pardons — consisting  of  lieutenant-gov- 
ernor, secretary  of  the  commonwealth, 
attorney-general  and  secretary  of  inter- 
nal affairs,  three  of  whom  must  recom- 
mend to  the  governor  for  final  action. 
Prisoners  are  eligible  for  parole  when 
they  have  served  a  minimum  sentence 
and  are  in  good  standing.  Application 
can  be  filed  any  time  within  three 
months  of  the  expiration  of  minimum 
term.  Final  discharge  comes  at  ex- 
piration of  maximum  sentence  or  the 
board  of  inspectors  may  sooner  recom- 
mend absolute  pardon  to  the  board  of 
pardons  which  recommends  to  gov- 
ernor. 

South   Dakota  The  parole  board  is  composed  of  the     Laws      191 1,     C. 

board  of  charities   and  corrections   and  198. 

one  parole  officer.  Prisoner  may  peti- 
tion for  parole  after  expiration  of 
minimum  sentence.  Final  discharge  is 
b}'  order  of  warden  and  board  of  char- 
ities ,at  expiration  of  parole. 
(348) 


No.  4]  WHO  CAN  SET  HIM  FREE  97 

Texas  Board    of    parole    consists    of    three     Laws  1911,  C.  43. 

prison  commissioners  requiring  the  ap- 
proval of  the  governor.  Prisoners  are 
eligible  for  parole  when  they  have 
served  twelve  months  with  good  con- 
duct and  have  completed  minimum 
sentence.  Final  discharge  comes  auto- 
matically at  the  expiration  of  time 
originally  given  in  sentence  but  com- 
mission has  power  to  grant  absolute 
discharge  in  deserving  cases  before  the 
expiration   thereof. 

Wisconsin  The    state   board   of   control    acts   as     Laws      1907,     C. 

parole  board.     Prisoners  in  state  prison  no. 

are  eligible  for  parole  when  they  have 
served  one  half  of  sentence.  Life  term- 
ers can  only  be  considered  when  they 
have  served  30  years  less  commutation 
which  is  16  years  and  3  months.  No 
convict  previously  CG^ivicted  of  felonj' 
is  eligible.  Final  discharge  comes  auto- 
matically at  the  expiration  of  sen- 
tence, less  commutation  for  good  be- 
havior. 

Wyoming  The   pardon  board  acts  as  board  of     R.  S.  1910,  C.  42, 

parole.  The  governor  issues  parole  Sees.  530-531. 
upon  its  recommendation.  No  parole 
can  be  granted  to  any  prisoner  who  has 
returned  from  parole  as  a  delinquent ; 
who  has  served  a  previous  term  in  any 
penitentiary,  who  has  not  served  the 
minimum  term  fixed  by  law,  or  the 
minimum  term  fixed  at  time  of  sen- 
tence by  the  trial  judge;  who  has  vio- 
lated any  of  the  rules  of  the  peniten- 
tiary within  six  months  prior  to  his 
application,  or  who  has  committed  an 
assault  with  a  deadly  weapon  upon 
any  officer,  employee  or  other  convict 
in  the  state  penitentiary.  Final  dis- 
charge comes  automatically  at  expira- 
tion of  maximum  sentence,  or  sooner 
if  commutation  for  good  behavior  re- 
duces maximum. 

Manumission  from  penal  servitude  is  at  the  hand  of  the 
state  executive,  assisted  in  a  number  of  states  by  the  advice  of 
a  special  board  designated  for  that  purpose  though  the  council 
and  senate  participate  in  certain  states  while  in  still  others 
the  responsibility  has  been  taken  from  the  governor  and  in- 
vested in  the  legislature,  or  in  Pardon  Boards. 


I.   The  Pardoning  Power  exercised  by  the  Governor  {except  in  cases  of  treason 
and   impeachment)    in: 

Arizona  Const.   1910,  Art. 

5.  Sec.  S. 

(349) 


98 


THE  CAGED  MAN 


[Vol.  Ill 


Arkansas 

California 

Colorado 

Delaware 

Illinois 

Iowa 

Kansas 

Kentucky 

Maryland 

Michigan 

Missouri 

New  Hampshire 

New    Mexico 

New  York 

North    Carolina 

Ohio 

Oregon 

Tennessee 

Texas 

Virginia 

Vermont 
Washington 
West   Virginia 

Wisconsin 
Wyoming 


No  pardon  to  convicts  who  have  been 
twice  convicted  except  upon  written 
recommendation  of  a  majority  of  judges 
of  the  supreme  court. 


Governor  must  file  statement  of  rea- 
sons for  pardon  which  shall  be  open  to 
public  inspection. 

Before  granting  pardon  Governor 
must  publish  a  notice  in  one  or  more 
newspapers  of  the  application  and  the 
date  on  or  after  which  the  decision 
will  be  given. 


Except  for  offenses  for  which  a  per- 
son is  convicted  before  the  senate. 


Except  in  cases  where  the  prosecu- 
tion has  been  carried  on  by  the  House 
of  Delegates. 


Excent  in  cases  where  prosecution 
has  been  carried  on  by  House  of  Dele- 
gates. 


(350) 


Const.    1874,  Art. 

6,  Sec.  18. 
R.  S.  1904,  C.  49, 

Sees.  2565-75. 
Const.    1879,  Art. 


Const.    1876,  Art. 

4,  Sec.   7. 
Const.    1831,  Art. 

3.  Sec.  9. 
Const.    1870,  Art. 

5,  Sec.    13. 
Const.    1857,  Art. 

4,  Sec.  16. 
Const.    1859,  Art. 

1,  Sec.   7. 
Const.    1891,   Sec. 

77,  R.  S.   1909, 
Sec.    3836. 
Const.    1867,  Art. 

2,  Sec.   20. 


Const.    1850,  Art. 

5,   Sec.    II. 
Const.    187s,  Art. 

S,  Sec.  8. 
Const.    1902,  Art. 

51- 
Const,   igio,  Art. 

5,  Sec.  6. 
Const.    1894,  Art. 

4,  Sec.  5. 
Const.    1876,   Art. 

3,  Sec.  6. 
Const.    1851,  Art. 

3,   Sec.    II. 
Const.    1857,  Art. 

5,  Sec.  14. 
Const.    1870,   Art. 

3,  Sec.  6. 
Const.    1876,  Art. 

4,  Sec.  II. 
Const.    1902,  Art. 

5,  Sec.   73. 

Const.   1793,  C.  2, 

Sec.    II. 
Const.    1889,  Art. 

3,  Sees.  9,  II. 
Const.    1872.  Art. 

7,   Sec.   II. 

Const.    1848,  Art. 

<;,   Sec.  6. 
R.'  S.    1898,    Sec. 

4861. 
Const.    1889,  Art. 

4.  Sec.  5. 


No.  4] 


WHO  CAN  SET  HIM  FREE 


99 


2.    The   Pardoning  Power  exercised   by   the   Governor  and 
(^except  in  cases  of  treason  or  impeachment) 

Alabama  Board    consists    of    attorney-general, 

secretary  of  state  and  state  auditor. 
Board  hears  all  cases  in  open  session 
and  gives   opinion   thereon  in   writing. 

Florida  Board  consists  of  justices  of  supreme 

court  and  attorney-general. 

GEORGL-i  Prison   commission    constitutes   board 

and  investigates  every  case  deserving 
clemency. 


Idaho 

Indiana 

Louisiana 

Minnesota 
Montana 

Nebraska 

Nevada 

New  Jersey 
North   Dakota 
Oklahoma 

Pennsylvania 


South  Carolina 
South    Dakota 


Board  consists  of  governor,  secretary 
of  state  and  attorney-general.  Open 
hearings  on  all  cases  and  public  notice 
in  newspapers. 

Board  to  be  constituted  by  general 
assembly  and  to  be  composed  of  officers 
of  the  law. 

Board  of  control.  Not  more  than 
one  out  of  five  life  convicts  to  be  par- 
doned in  one  year. 

Board  consists  of  attorney-general 
and  chief  justice  of  the  supreme  court. 

Board  consists  of  secretary  of  state, 
attorney-general  and  state  auditor. 
Publication  at  least  twice  before  par- 
don is  granted  of  reasons  therefor. 

State  prison  board  advisory  board 
of  Pardons. 


Governor,  justices  of  supreme  court 
and  attorney-general  constitute  the 
board  of  pardons. 

Governor,  chancellor  and  the  six 
judges  of  the  court  of  appeals  form 
board  of  pardons. 

The  attorney-general,  chief  justice  of 
supreme  court  and  two  qualified  elec- 
tors.    Pardons  must  be  unanimous. 

State  superintendent  of  public  in- 
struction, president  of  board  of  agri- 
culture and  state  auditor.  Board 
holds  hearing  and  within  20  days  files 
with  secretary  of  state  its  decision  in 
writing. 

Lieutenant-governor,  secretary  of  the 
commonwealth,  attorney-general  and 
secretary  of  internal  affairs.  Board 
makes  recommendations  in  writing 
after  full  hearing  and  due  public 
notice. 

Board  to  be  chosen  by  general  as- 
sembly. 

Board  consists  of  presiding  judge, 
secretary  of  state  and  attorney-general. 
Pardons  not  permitted  in  cases  of  capi- 
tal punishment,  imprisonment  for  life 
or  for  a  longer  term  than  two  years  or 
a  fine  exceeding  $200. 

(351) 


Board  of  Pardons 

in  : 

Const.  1901,  Sec. 
124. 


Const.  1885,  Art. 

4,  Sec.  12. 
Const.  1877,  Art. 

5,  P.  12. 

R.  S.  1911,  Sec. 

1222. 
Const.  1889,  Art. 

4,  Sec.  17. 

R.  S.  1908,  C.  13, 

Sec.  8251. 
Const.  1851,  Art. 

5,  Sec.  143. 

Acts  of  1890,  No. 
112. 

Const.  1857,  Art. 

5>  Sec.  4. 
R.  S.  1907,  Sec. 

9556- 


Const.  187s,  Art 

5,  Sec.  13. 
R.  S.  1911,  Sec. 

2743- 
Const.    1864,  Art. 

5,  Sec.  14. 
R.    S.    1912,    Sec. 

7623. 
Const.   1844,  Art. 

5,  Sec.    10. 

R.   S.   1906,  Sees. 
10240- 10243. 

Laws  of  1908,  C. 
62. 


Const.   1873,  Art. 
4,  Sec.  9. 


Const.   1895,  Art. 

4,  Sec.  II. 
Const.    1889,   Art. 

4.  Sec.  5. 


lOO  THE  CAGED  MAN 

3.  The  Pardoning  Power   exercised   by   the   Governor   and  Board  of  Pardons 

{except  in  cases  of  treason  and  impeachment)   in: 

Utah  Governor,    justices    of    the    supreme     Const.    1896,  Art 

court,    and    attorney-general.      No    par-  7,  Sec.  12. 

don  except  after  full  public  hearing 
of  which  public  notice  has  been  given. 

4.  The  Pardoning  Power   exercised   by   the   Governor  and  council    {except   in 

cases  of  treason  and  impeachment')  in: 

Maine  Const.   1820,  Art. 

5,  Sec.  II. 
Massachusetts  Const.  1780,  C.  2, 

Sec.  8. 

5.  The  Pardoning  Power  exercised   by   the   Governor  and  Senate    {except   in 

cases  of  treason  and  impeachment)   in: 

Iowa  In  cases  of  murder  of  first  degree.  R.  S.  1897,  C.  49, 

Sec.  5626. 

Mississippi  No  pardon  until  applicant  shall  have     Const.   1910,  Art- 

published   for  30  days  in  a  newspaper  5,  Sec.   124. 

or  elsewhere  in  county  where  crime  was 
committed  his  petition  and  reasons  for 
pardon. 

6.   The  Pardoning  Po7i>er   exercised   by  the   Legislature  in: 

Connecticut  Governor    may    only    grant    reprieves     Const.   1882,  Art. 

until   end   of  next   session   of  the   legis-  4,  Sec.  10. 

lature. 
Rhode   Island  Governor    maj^    only    grant   reprieves     Const.    1842,  Art. 

until  end  of  next  session  of  the  legis-  7,  Sec.  4. 

lature. 

(352) 


VIII 


SPECIFIC    DISABILITIES    CAUSED    BY   PRISON    SENTENCE 

-  A  prison  sentence  usually  involves  certain  specific  disabilities, 
such  as  (i)  Loss  of  citizenship,  (2)  Loss  of  power  of  procreation 
through  vasectomy,  (3)  Loss  of  marital  rights,  (4)  Loss  of  pre- 
sumption of  innocence  in  subsequent  prosecutions  for  crime,  (5) 
Loss  of  rights  to  ordinary  burial  of  corpse. 


I.  Loss  of  Citizenship.* 


(A)  How  rights  are  lost; 


Alabama 


Arkansas 


California 


Colorado 


Const. 

igor, 

Sec.  182. 

R.  S. 

1904, 

C.57. 

Sec. 

2768. 
Const. 

1879, 
Art.  2, 
Sec.  I. 


R.  S. 
1908, 

C.43. 
Sec. 
2148. 


(B)  How  rights  may  be  regained: 
Alabama  Specifically  ex-       Const. 

pressed    in   par^ 

don. 
Arkansas  When     par 

doned. 


California 


Colorado 


A  special  exec- 
utive act  may  re- 
store a  convict 
to  c  i  t  izenship 
but  does  not  re- 
move the  infamy 
and  disability. 

On  presenting 
to  the  Governor 
a  certificate  from 
the  warden  that 
the  entire  time  of 
sentence  has  been 
passed  without 
violation  of  rules. 


1901, 

Sec.  124. 

R.  S. 

1904, 

C.57. 

Sec. 

2768. 
Const. 

1849. 
Art.  7. 


R.  S. 

1908, 

C.  108, 

Sec. 

4876. 


Loss  of  citizenship  does  not  take  place: 


Arizona 


Michigan 

New  Hampshire 

Pennsylvania 

Vermont 


For  the  purpose  of  voting,  no  per- 
son shall  be  deemed  to  have  gained  or 
lost  a  residence  by  reason  of  his  pres- 
ence or  absence  while  employed  in  the 
service  of  the  United  States,  or  while 
a  student  at  any  institution  of  learning, 
or  while  kept  at  any  almshouse  or 
other  asylum  at  public  expense,  or  while 
confined  in   any  public  jail   or  prison. 


Const.    1910,  Art. 
7,  Sec.  3. 


(353) 


Const.    1850,  Art. 

7,  Sec.   5. 

R.  S.  1901,  C.  31, 

Sec.   9. 
Const.    1873.  Art. 

8,  Sec.  13,  Par. 
148. 

R.  S.   1906,  Title 
3,  C.  7,  Sec.  73. 


I02 


THE  CAGED  31  AN 


[Vol.  Ill 


TA)   How  rights  are  lost ; 


Connecticut 


Delaware 


District  of 
Columbia 


Florida 


Georgia 


Idaho 


Illinois 


Indiana 


General  A  s- 
sembly  has 
power  to  deprive 
any  one  con- 
victed of  crime 
of  right  of  suf- 
rage. 


Iowa 


Kansas 


Kentucky 


Const. 

1818, 
Art.  6, 
Sec.  3. 

R.  S. 
1898-99, 

C.  36, 
Sec.  9. 

R.  S. 

1911, 
Sees.  215 
and  261. 

R.  S. 

1906, 

P.I, 

Title  4, 

Art.  I, 

Sec.  170. 

R.  S. 
1911, 
Sec. 
1077. 

R.  S. 
1908, 
P.  I, 

Title  15, 
Sec. 
7239- 
R.  S. 
1909, 
Page 

967, 
Sec.  70. 

Const. 

1851, 

Sec.  89. 


Const. 

1857. 
Art.  2. 

R.  S. 
1909, 
Sec. 
2803. 


R.  S. 
1908, 

C.41, 
Sec. 

1439- 


(B)   How  rights  may  be  regained : 


Delaware  Laws  of 

1898, 
C.  247, 
Sec.  5. 


Florida  When     par-        R.  S, 

doned.  1906, 

Div.  5. 

Title  2, 

C.  I, 

Sec. 

4077. 

Georgia  When     par-        R.  S. 

doned.  191 !» 

Sec. 


Idaho 


Illinois 


Iowa 


Kansas 


By  governor. 


par- 
after 


When 
doned  01 
expiration  of 
term  of  disfran- 
chisement. 


1077. 

R.  S. 

1908, 
Part  2, 
Title  10, 

Sec. 

8257. 

R.  S. 

1909, 

Page 

1676, 
Sec.  49. 


By  governor. 

R.  S. 
1897, 
Sec. 

R  e  f  0  rmatory 

5706. 
R.  S. 

prisoners. 

1909, 
Sec. 

First  offenders. 

8636. 
R.  S. 

1909, 

Sec. 

2805. 

(354) 


No.  4] 


SPECIFIC  DISABILITIES 


103 


(A) 

How  rights  are  lost : 

(B)   How 

rights  may  be  regained  : 

Louisiana 

Const. 

Louisiana 

Only    if     par- 

Const. 

1898, 

doned   with    ex- 

1898, 

Art.  202. 

pressed    restora- 
tion of  franchise. 

Art.  202. 

Maine 

Const. 
1819, 
Art.  2, 
Sec.  I. 

Maryland 

Const. 

1867, 

Art.  I, 

Sec.  2. 

Massachu- 

Const. 

setts 

1779, 
Amdt.  3. 

Minnesota 

Const. 

1858, 

Art.  4, 

Sec.  15. 

Mississippi 

R.  S. 

1906, 

C.  119, 

Sec. 
4121. 

Missouri 

Const. 

Missouri 

In  cases  of  first 

R.  S. 

1875, 

conviction     civil 

1909, 

Art.  8. 

disabilities      are 
removed  at  end 
of  five  years  and 
convict    restored 
to  full  rights. 

Art.  19 
Sec. 
1656. 

Montana 

Const. 

Montana 

Governor    has 

R.  S. 

1889, 

power  to  restore 

1907, 

Art.  9, 

civil  rights  after 

Sec. 

Sec.  2. 

due    cause    is 

shown. 

9572. 

Nebraska 

Const. 

1875, 
Art.  7, 
Sec.  2. 

Nebraska 

By  governor. 

R.  S. 

1911, 
Part  2, 
C.  24, 

Sec. 

2414. 

Nevada 

Const. 

Nevada 

If  so  stated  in 

R.  S. 

1910, 

the  instrument  of 

1912, 

Art.  2, 

pardon. 

Sec. 

Sec.  I. 

7625. 

New  Jersey 

Const. 

1897, 
Art.  2. 

New  Jersey 

If  pardoned. 

R.  S. 
1910, 
Page 

2  ICO. 

New  Mexico 

R.  S. 

New  Mexico      Convict     who 

Laws  of 

1897, 

passes    entire 

1899, 

Sec. 

period      of      his 

C.  I, 

1672. 

sentence  without 
any  violation    of 
rules  entitled  to 
certificate     from 
Board   of    Peni- 
tentiary Commis- 
sioners  on    pre- 
sentation  of 
which    Governor 
may  restore  citi- 
zenship. 

Sec.  2. 

(355) 


I04 


THE  CAGED  MAN 


[Vol.  Ill 


(A)   H 

ovv  rights  are  lost : 

(B)   How 

rights  may  be  regained  : 

New  York 

R.  S.       1 
1909, 
Art.  46, 
Sec.  510. 

North 

r:s. 

North 

Petition     may 

R.  S. 

Carolina 

1908, 

Carolina 

be  filed  with  su- 

1908, 

C.  90, 

perior  court  any 

Sees. 

Sec. 

time    four    years 

2675, 

4315- 

after  date  of  con- 
viction.     Appli- 
cant must  prove 
by  five  respecta- 
ble citizens  that 
h  i  s     reputation 
for    truth     and 
honesty  has  been 
good   during  in- 
tervening years. 

2680. 

North 

Const. 

North 

If  pardoned. 

R.  S. 

Dakota 

1889, 
Amdts,     i 
Art.  2. 

Dakota 

1905, 

Sec. 

10251. 

Ohio 

R.  S. 

Ohio 

Convict   w  h  0 

R.  S. 

1910, 

serves  his  entire 

1910, 

Sec. 

time  without  vio- 

Title 4, 

12390. 

lation    of    rules, 
on    presentation 
to    Governor    of 
certificate  of 
good    conduct 
furnished  by  war- 
den. 

C.  2, 
Sec. 
2161. 

Oklahoma 

Const. 

1907, 

Art.  3, 

Sec.  I. 

Oregon 

Const. 
1859, 
Art.  2. 

Oregon 

If  pardoned. 

Const. 

1859, 
Art.  2, 
Sec.  3. 

R.  S. 

1910, 

Sec. 

2380. 

Rhode 

R.  S. 

1  Rhode 

Only     by    act 

R.  S. 

Island. 

1909, 

'       Island. 

of     the    general 

1909, 

Title  37, 

assembly. 

Title  37 

C.  354, 

C.  354, 

Sec.  62. 

1 

Sec.  62. 

South 

Const. 

1  South 

If  pardoned. 

Const. 

Carolina 

1S95, 
Art.  2, 
Sec.  6. 

Carolina 

1895. 
Art.  2, 

Sec.  6. 

South 

R.  S. 

South 

Convict     with 

R.  S. 

Dakota 

1907, 

Dakota 

clean  record  for 

1910, 

C.  142, 

good  conduct. 

Sec.  686 

Sec.  74. 

Tennessee 

R.  S. 

1896, 

Title  6, 

C.  2,  Sec. 

II 70. 

Tennessee 

If  pardoned. 

R.  S. 
1896, 
Title  4, 
C.  18, 
Sec. 
7235- 

(356) 


No.  4] 


SPECIFIC  DISABILITIES 


105 


(A)    How  rights  are  lost : 
Texas  Const. 

1876, 
Art.  6, 
Sec.  I. 


Utah  Const. 

1896, 
Art.  4, 
Sec.  6. 

Virginia  Const. 

1902, 
Art.  2, 
Sec.  23. 

Const. 
1889, 
Art.  6, 
Sec.  3. 

Const. 
1872, 
Art.  4, 
Sec.  I. 

I  Const. 

1848, 
Art.  3, 
Sec.  2. 

Const, 
1889, 
Art.  6, 
Sec.  6. 


Washington 


West 
Virginia 


Wisconsin 


Wyoming 


(B)   How  rights  may  be  regained  : 
Texas  If  pardoned.  R,  S. 

1911, 

Title  36, 

C.  3,  Sec. 

2938. 


Wisconsin         If  pardoned. 


Wyoming  If  pardoned. 


Const. 
1848, 
Art.  3, 
Sec.  2. 

R.  S. 
1910, 

c.  395. 

Sec. 
6030. 


2.  Loss  of  pozver  of  procreation   {Vasectomy  authorized)  : 


Connecticut  When  convict  is  determined  to  be  in-  Laws  of  1909,  C. 

capable    of    producing    offspring    men-  209. 

tally,  morally  and  physically  sound. 

Indiana  Skilled  surgeons,  in  conjunction  with  Laws  of  1907,  C. 

chief  physician,   to  examine   the  mental  2x5. 

and  physical  condition  of  such  inmates 
as  are  recommended  by  the  institution 
physician  and  board  of  managers ;  and 
if  this  committee  of  experts  deem  pro- 
creation inadvisable  and  there  is  no 
probability  of  improvement  in  the  men- 
tal condition  it  shall  be  lawful  for  the 
surgeons  to  perform  the  operation. 

New  Jersey  Governor   appoints    one   surgeon   and  Acts   of    1911,   C. 

one    neurologist    to    act    in    conjunction  190. 

with  the  commissioner  of  charities 
and  corrections  and  to  be  known  as 
"  Board  of  Examiners  of  Feeble- 
minded." This  board  determines 
whether  or  not  operation  shall  be  per- 
formed on  feeble-minded,  epileptics, 
rr.pists,  certain  criminals  and  other  de- 
fectives. 

(357) 


io6 

New  York 


Washington 

Alabama 
Arizona 

Arkansas 

California 

Colorado 
Connecticut 

Delaware 
Georgia 

Idaho 

Illinois 
Indiana 
Iowa 

Kansas 
Kentucky 

Louisiana 
Maine 


THE  CAGED  31  AN 

Governor  appoints  one  surgeon,  one 
neurologist  and  one  practitioner  of 
medicine,  each  with  at  least  lo  years' 
experience,  to  be  known  as  the  "  Board 
of  Examiners  of  Feeble-minded,  crim- 
inal and  other  defectives."  To  ex- 
amine into  the  mental  and  physical  con- 
dition, and  the  record  and  family  his- 
tory of  the  feeble-minded,  etc.,  and 
to  prevent  procreation  if  in  their  judg- 
ment defective  children  would  be  pro- 
duced. 

When  adjudged  guilty  of  carnal 
abuse  of  female  under  lo  years  or  of 
rape. 

3.  Loss  of  Marital  Rights: 

Imprisonment  for  two  years,  the  sen- 
tence being  for  seven  years  or  longer,  a 
ground  for  divorce. 

No  suit  sustained  until  one  year  after 
conviction.  Husband  must  not  be  con- 
victed on  testimony  of  wife  or  wife  on 
that  of  husband. 

Conviction  of  either  party  of  felony 
or  other  infamous  crime,  a  ground  for 
divorce. 

Conviction  for  felony  a  ground  for 
divorce. 

Conviction  for  felony  a  ground  for 
divorce. 

Imprisonment  for  life.  Imprison- 
ment in  the  state  prison  for  crime  in- 
volving a  violation  of  conjugal  duty,  a 
ground  for  divorce. 

Conviction  after  marriage,  whether 
crime  was  committed  before  or  after 
marriage,  a  ground  for  divorce. 

Imprisonment  for  two  years  or 
longer,  a  ground  for  divorce. 

Conviction  of  felony,  a  ground  for 
divorce. 

Conviction  for  felony  or  other  in- 
famous crime,  a  ground  for  divorce. 

Conviction  after  marriage,  a  ground 
for  divorce. 

Conviction  after  marriage,  a  ground 
for  divorce. 


[Vol.  Ill 

Laws      of      1912. 
Art.  19. 


Conviction   after   marriage, 
for  divorce. 

Conviction    for    felony    in 
state,  a  ground  for  divorce. 


a  ground 
out    of 


or 


Conviction     for     infamous     cr: 
ground  for  divorce. 

Life     imprisonment    dissolves 
of  marriage  without  action. 

(358) 


bonds 


Acts  of   1909,   C. 
249. 


R.  S.  1907,  C.  76, 
Sec.  3793. 

R.  S.  1901,  Title 
45,  C.  4,  Sec. 
3113. 

R.  S.  1904.  C.  54, 

Sec.  2672. 

Civil   Code,   1909, 

C.     2,     Art.     2, 

Sec.    92. 
R.  S.  1908,  C.  41, 

Sec.  2112. 
R.  S.  1902,  Title 

43,  C.  254,  Sec. 

4551- 

R.  S.  1893,  C.  75, 
Sec.  I. 

R.  S.  1911,  Title 

3,  C.  I,  Art.  I, 

Sec.  2945. 
R.  S.  1902,  Title 

2,  C.  2,  Art.  2, 

Sec.  2647. 
R.  S.  1909,  C.  40, 

Sec.  I. 
R.  S.  1908,  Art. 

37,  Sec.  1067. 
R.  S.  1897.  Title 

16,  C.  3,  Sec. 

3174- 
R.  S.  1909.  C.  95, 

Sec.  6258. 
R.  S.  1909,  C.  66, 

Art.   2,   Sec. 

2117. 
R.  S.  1904,  Sec. 

II 90. 
R.  S.  1903,  C.  62, 

Sec.  I. 


No.  4] 


SPECIFIC  DISABILITIES 


107 


Massachusetts  Imprisonment   for  life   or   five   years 

or  longer  is  ground  for  divorce.  Par- 
don does  not  restore  conjugal  rights. 

Michigan  Imprisonment  for  life  dissolves  mar- 

riage or  is  ground  for  divorce.  Pardon 
does  not  restore  conjugal  rights. 

Minnesota  Conviction  after  marriage  is  ground 

for  divorce.  Pardon  does  not  restore 
conjugal  rights. 

Mississippi  Sentence  to  penitentiary  without  par- 

don before  being  confined  is  ground 
for  divorce. 

Missouri  Conviction  after  marriage,  or  before 

marriage  and  ignorance  of  other  party, 
is  ground  for  divorce. 

Montana  Conviction   for   felony  is  ground   for 

divorce. 

Nebraska  Imprisonment     for     three     years     or 

more  is  ground  for  divorce.  Pardon 
does  not  restore  conjugal  rights. 

Nevada  Conviction    for    felony    or    infamous 

crime  is  ground  for  divorce. 

New  Hampshire  Conviction  for  crime  punishable  in 
the  state  by  imprisonment  for  one  year 
or  more ;  actual  imprisonment  under 
these  conditions  is  ground  for  divorce. 

New  Jersey  Imprisonment   after   abandonment    to 

be  regarded  as  continued  desertion  and 
ground  for  divorce. 

New   York  Imprisonment   for  life   a  ground   for 

divorce. 

North    Dakota  Conviction    for   felony   a   ground   for 

divorce. 

Ohio  Petition    for    divorce    must    be    filed 

during  the  imprisonment  of  the  adverse 
party. 

Oklahoma  Imprisonment  subsequent  to  marriage 

a  ground  for  divorce. 

Oregon  Conviction    for    felony   a   ground    for 

divorce. 

Pennsylvania  Provided  application  be  made  for  di- 

vorce by  the  husband  or  wife  of  party 
convicted,  conviction  for  felony  is 
ground  for  divorce. 

Rhode  Island  In    case    either    party    is    for    crime 

deemed  to  be,  or  treated  as  if,  civilly 
dead,  it  is  a  ground  for  divorce. 

South    Dakota  Conviction  for  felony  is  a  ground  for 

divorce. 

Tennessee  Conviction    for    felony    and    sentence 

to  confinem.ent  in  the  penitentiary  is  a 
ground  for  divorce. 

Texas  Conviction  after  marriage  is   ground 

for  divorce ;  no  suit  to  be  sustained 
until  12  months  after  final  judgment 
and  provided  the  governor  has  not  par- 

(339) 


R.  S.  1902,  C. 
152,  Sec.  2. 

R.  S.  1897,  C. 
232,   Sec.   8620. 

R.  S.  1905,  C.  71, 
Sec.  3574. 

R.  S.  1906,  C.  37, 
Sec.   1669. 

R.  S.  1909,  C.  22, 
Art.  3,  Sec. 
2370. 

R.    S.    1907,    Scc. 

3643- 

R.  S.  191 1,  Crim- 
inal Code,  P.  I, 
C.  14,  Sec. 
5328. 

R.  S.  1912,  Sec. 
5838. 

R.  S.  1901,  C. 
175,    Sec.    5. 


R.   S.   1 9 10,  Page 
2041,   Sec.   31. 

R.  S.  T909,  C.  19. 

Art.    2,    Sec.   6. 
R.  S.   1905,  Civil 

Code,  C.  5,  Sec. 

4049. 
R.    S.    1910,   Div. 

7.     C.     3.     Sec. 

1 1979- 
R.  S.  1903.  C.  66, 

Art.     28,     Sec. 

4832. 
R.   S.   1910,  Title 

6,     C.     8,     Sec. 

507- 
R.  S.   1903-  Page 

1235,      Sec.      7, 

Par.  2. 

R.     S.     1909,     C. 
247,   Sec.   I. 

R.  S.   1910,  P.  3. 

Title    I.    C.    I, 

Art.  2,  Sec.  67. 
R.   S.    i8q6.  Title 

4,  C.  I,  Art.  2, 

Sec.  4201. 
R.   S.    iqii.  Title 

68.    C.    4,    Sec. 

4631. 


io8 


THE  CAGED  MAN 


[Vol.  Ill 


doned    the    convict;    or    the    wife    been 
convicted  sya.  the   testimony  of  the  hus- 
band   or    the   husband    on    that    of   the 
wife. 
Utah  Conviction   for   felony   is   ground   for 

divorce. 

Vermont  Imprisonment    for    life    or    for    three 

years  or  more  and  actual  confinement 
at  the  time  is  ground  for  divorce. 

Virginia  Conviction   for   felony  is   ground  for 

divorce.  Pardon  does  not  restore  con- 
jugal rights. 

Washington  If  complaint  be  filed  during  term  of 

imprisonment,  conviction  for  felony  is 
ground  for  divorce. 

West    Virginia  Conviction   for   felony  is   ground    for 

divorce.  Pardon  does  not  restore  con- 
jugal rights. 

Wisconsin  Imprisonment  for  three  years  or  more 

is  ground  for  divorce.  Pardon  granted 
after  divorce  does  not  restore  conjugal 
rights. 

Imprisonment  for  life  dissolves  mar- 
riage without  judgment  of  divorce. 
Pardon  does  not  restore  conjugal  rights. 

Wyoming  Conviction   for   felony  is  ground   for 

divorce.  Pardon  does  not  restore  con- 
jugal rights. 


R.  S.  1907,  Title 
35,  C.  3,  Sec. 
1208. 

R.  S.  1906,  Title 
17,  C.  148,  Sec. 


R.  S.  1904,  Title 
28,  C.  10 1,  Sec. 

2257- 

R.  S.  1910.  Title 
6.  C.  12,  Sec. 
982. 

R.  S.  1906,  C.  64, 
Sec.  2921. 

R.  S.  1898,  C. 
109,    Sec.   2356. 


R.    S.    iJ 

2355- 


Sec. 


R.     S.     1910,    C. 
266,   Sec.   3924. 


3.    The  assumption  of  innocence  is  destroyed   by  means  of  a  criminal  record.' 


Alabama 


Arizona 


Arkansas 


California 


Colorado 


Superintendent    to    keep    records    of      R.     S.     1907,     C. 
convicts,  including  name,   age,   place  of  191,    Sec.    6517- 

navitity,  county  wherein  convicted, 
nature  of  crime  and  period  of  impris- 
onment, together  with  height,  com- 
plexion and  color  of  hair  and  eyes,  etc. 

The    secretary   of   the   board   of   con-     R.  S.    1901,  Title 
trol  to  keep  records  of  all  convicts,  in-  56,   Sec.   3575- 

eluding  name,  nature  of  crime,  county 
and  court  wherein  sentenced,  nativity, 
degree  of  education,  with  an  accurate 
description  of  person  and  whether 
previously  confined  or  not. 

Superintendent  to  keep  records  of  all      R.     S.     1904,     C. 
convicts,    including    names     (aliases    as  123,    Sec.    5872. 

well),  crime,  age,  color,  height,  com- 
plexion, color  of  hair  and  eyes,  marks 
on  person,  nativity  and  number  of  pre- 
vious convictions. 

Warden    to   keep   records   of   all   con-      R.  S.  1909.  Penal 
victs,  including  name,  crime,  period  of  Code,    Title     I, 

sentence,  nativity,  degree  of  education,  Sec.    1578. 

an  accurate  description  of  person,  and 
v\^hether  previously  confined  or  not. 

P>oard  to  keep  records  of  all  con\'icts,      R.     S.     1908,     C. 
including    age,    term    of    imprisonment,  loS,    Sec.   4839* 

offense,  place  of  conviction,  and  pur- 
suits and  habits  of  life. 

(360) 


No.  4] 
Florida 

Georgia 
Illinois 


Iowa 

Kansas 

Kentucky 
Louisiana 
Maine 


Maryland 
Massachusetts 

Michigan 


Mississippi 


SPECIFIC  DISABILITIES 

Superintendent  and  physician  to  keep 
records  of  convacts,  including  name, 
height,  age,  place  of  nativity,  color, 
color  of  hair  and  eyes,  crime  for  which 
convicted   and  length  of  sentence. 

Prison  commissioners  to  keep  records 
of  name,  crime,  sentence,  age,  sex, 
height,  weight  and  apparent  ph)-sical 
condition  of  each  convict. 

Warden  to  keep  records  of  all  con- 
victs, including  counties  wherein  con- 
victed, crime,  nature  and  duration  of 
sentence,  former  trade,  employment  or 
occupation,  habits,  color,  age,  place  of 
nativity,  degree  of  education  and 
description  of  person. 

Board  of  control  to  keep  records  of 
all  convicts. 

Warden  to  keep  records  as  to  name, 
age,  nativity,  nationality  and  such 
other  facts  ^"  can  be  obtained  as  to 
parentage,  education,  occupation,  and 
earlj-  social  influences ;  also  weight,  sta- 
ture and  health  record. 

Prison  clerk  to  keep  records  of  con- 
victs, including  name,  crime,  period  of 
sentence,  nativity,  an  accurate  descrip- 
tion of  person  and  record  of  former 
sentences. 

Clerk  of  the  penitentiary  to  keep 
register  of  names  of  convicts,  crime, 
height,  age,  sex,  color  of  hair  and  eyes, 
and  date  of  discharge.  Records  to  be 
open  to  public  inspection. 

Prisoners  who  have  been  convicted  of 
a  felony,  if  it  be  deemed  advisable  for 
the  purpose  of  subsequent  identifica- 
tion, may  be  measured  and  described 
in  accordance  with  the  Bertillon 
method  and  their  photographs  and 
finger-prints   taken. 

Record  of  every  convict  to  be  kept, 
including  description  of  person  and 
criminal  history  and  photographs. 

Convicts  convicted  of  felony  shall  be 
measured  and  described  with  the  Ber- 
tillon methods  for  the  identification  of 
criminals. 

Warden  to  cause  record  of  all  pris- 
oners to  be  kept,  including  a  descrip- 
tion and  measurement  by  the  Bertillon 
system,  or  such  other  system  as  may  be 
deemed  desirable  for  the  identification 
of  criminals ;  also  criminal  history  and 
photograph  to  be  kept.  Records  not  to 
be  available  to  the  public. 

Clerk  to  keep  register  of  all  convicts, 
including  name  (aliases),  sex,  race,  na- 
tionality, place  of  birth,  age,  color  of 
hair,    complexion,    height,    weight,    dis- 

(361) 


109 

R.  S.  1906,  Art. 
6,  Title  4,  Sec. 
4137- 


R.    S.    191 1,    Sec. 
1219. 


R.    S.     1909,     C. 
108,  Sec.   18. 


R.  S.  1907,  Title 
26,  C.  2,  Sec. 
5718  a  12. 

R.  S.  1909,  C.  97, 
Sec.  6840. 


R.  S.  1909,  C.  97, 
Sec.  .^801. 


R.  S.  1904,  Sec. 

2854. 


Laws  191 1,  C.  5. 


R.  S.  1904,  Art. 
27,  Sec.  584. 

R.  S.  1902,  C. 
225,  Sec.  18. 


R.  S.  1897,  Sec. 
2147. 


R.  S.  1906,  C. 
107,  Sec.  3628. 


no 


THE  CAGED  31  AN 


[Vol.  Ill 


tinguishing  marks,  if  any,  crime,  term 
of  sentence  and  whether  or  not  a  dan- 
gerous criminal. 

Missouri  Convicts  to  be  examined  in  the  pres- 

ence of  as  many  overseers  as  possible 
in  order  that  thej'  may  become  ac- 
quainted M'ith  person  and  countenance. 
Records  to  be  kept  of  name,  height,  ap- 
parent or  alleged  age,  place  of  nativity, 
trade,  complexion,  color  of  hair  and 
eyes  and  length  of  foot,  together  with 
any  natural  or  accidental  marks  which 
may  serve  to  identify  a  convict.  If  a 
convict  can  write,  his  signature  shall 
be  written  under  the  description  of  his 
person. 

Montana  Warden   to  keep   record   of   name,   age, 

sex,  occupation,  place  of  birth,  crime 
and  date  of  incarceration  and  expira- 
tion of  sentence  of  all  convicts. 

Nebrasic^  Warden   to   keep   records   of  all   con- 

victs, including  name,  age,  nativity,  na- 
tionality, with  such  other  facts  as  can 
be  ascertained  of  parentage,  education, 
occupation,  and  earlj'  social  influences. 
Physician  to  keep  records  of  name, 
height,  stature,  family  history,  together 
with  health  record. 

Nevada  Warden  shall  keep  records  of  name, 

age,  sex,  occupation,  place  of  birth, 
crime,  date  of  incarceration  and  expira- 
tion of  sentence. 

New  Hampshire  Prisoners  may,  if  it  be  deemed  ad- 
visable, be  measured  and  described  in 
accordance  with  the  Bertillon  method 
for  the  identification  of  criminals,  and 
may  have  their  photographs  and  finger- 
prints taken. 

New   Jersey  Prisoners  to  be   examined  by  princi- 

pal keeper,  clerk  and  as  many  deputy- 
keepers  as  can  conveniently  attend  in 
order  that  they  may  become  acquainted 
with  countenance.  Record  to  be  kept 
of  name,  height,  apparent  or  alleged 
age,  place  of  nativity,  trade,  complex- 
ion, color  of  hair  and  eyes,  length  of 
feet,  together  with  such  natural  and 
other  marks  and  peculiarities  of  feature 
as  will  serve  to  identify  him.  If  con- 
vict can  write  he  shall  sign  his  name 
under  such  description. 

New   York  Superintendent    of    state    prisons    to 

cause  all  prisoners  to  be  measured  by 
the  Bertillon  system  for  identification 
of  criminals. 

North    Dakot.\  Warden   to  keep   records  of  all   con- 

victs, including  name,  age,  sex,  color, 
height,  nationality  and  each  and  every 
other  fact,  characteristic  and  condition, 
natural  or  artificial,  that  may  in  any 
way  tend  to  aid  in  identification  of 
prisoner. 

(362) 


R.  S.  1909,  C.  19, 
Art.  19,  Sec. 
1631. 


R.  S.  1907,  Part 
3,  Title  I,  Sec. 
9722. 

Laws  of  1911,  C. 
184. 


R.    S.    1912,    Sec, 
7565. 


Laws  1907,  C.  24. 


R.  S.  19 10,  Page 
4912,  Art.   7. 


Prison  Laws, 

1909,   Sec.   21. 


R.  S.  1905.  C.  17. 
Sec.  10354- 


No.  4] 


SPECIFIC  DISABILITIES 


III 


Ohio 


Oregon 


PEXXS'i'LVAXIA 


Rhode  Island 


Tennessee 


Utah 

Virginia 

Washington 

West   Virginia 
Wisconsin 

Wyoming 


Arkansas 


Physician  to  keep  record  of  convicts,  R.  S.  1910,  Div. 
including  nationality  or  race,  weight,  3,  C.  2,  Sec. 
stature,    former    occupation    and    family  2194. 

history,  together  with  health  record. 

Superintendent  to  establish  a  rogues'  R.  S.  19 10,  Title 
gallery,  in  which  shall  be  placed  the  2,Z^  C.  14,  Sec. 
pictures  of  all   persons   confined   in   the  4522. 

penitentiary. 

Warden  shall  keep  records  of  all  con-  R.  S.  1907,  Page 
victs,  including  name,  height,  apparent  3494,  Sec.  43. 
or  alleged  age,  place  of  nativity,  trade, 
complexion,  color  of  hair  and  eyes, 
length  of  feet,  and  accurate  measure- 
ments, together  with  natural  or  acci- 
dental marks  which  may  serve  to  iden- 
tify. If  convict  can  write  his  signa- 
ture shall  be  written  under  description. 

Prisoners  may  in  discretion  of  iDoard  R.  S.  1909,  Title 
be  measured  and  described  in  accordance  38,  C.  360,  Sec. 
with    Bertillon    system.      Board    to    see  18. 

record  of  measurements,  etc.,  is  kept 
and  to  keep  duplicate  record  in  its  own 
office. 

Warden  to  keep  records  of  all  convicts,      R.    S.    1903,    Sec. 
including    name,    nativit}-,    nationality,  7517- 

all  facts  that  can  be  obtained  about 
parentage  and  early  social  influences 
which  may  tend  to  indicate  constitu- 
tional and  acquired  criminal  defects 
and  tendencies  of  prisoner. 

Board  to  have  records  of  all  convicts  R.  S.  1907,  Title 
kept,     including     parentage     and     early  72,   C.    10,   Sec. 

social  influences,   and   to  base   on   these  2245. 

an  estimate  of  character  and  probable 
plan  of  treatment. 

Clerk  to  keep  a  register  describing  R.  S.  1904,  Title 
all  prisoners.  55-  C.  202,  Sec. 

4114. 

Names  of  prisoners  and  crimes  to  be  R.  S.  1910,  Title 
recorded.  State  auditor  to  keep  a  78,  C.  2,  Sees, 
public  record  of  all  convictions.  8542-4. 

Clerk  to  keep  record  describing  all  R.  S.  1906,  C. 
prisoners.  4657- 

Clerk  shall  keep  record  of  all  convicts  R.  S.  1898,  C. 
received,   discharged,  pardoned  or  dead  201,    Sec.   4902. 

and  such  other  matters  as  may  be  nec- 
essary in  statistics  of  this  kind. 

State   board    of  charities    and   reform      R.     S.     1910,     C. 
to  keep  records  of  all  prisoners,  includ-         41,   Sec.   520. 
ing    name,    date    of    sentence,    age,    sex, 
color,   religion   and   nativity,   nature   of 
crime  and  ability  to  read  or  write. 


Use  of  dead  body  for  scientific  purposes:  ^ 

The  body  of  a  convict  who  has  suf-     R, 
fered  the  death  penalty  may  be  buried 
in  the  penitentiary  burial  ground,  or  on 
application  of  any  respectable  surgeons. 


S.  1908,  C.  35, 
Sec.  2668. 


^  This  is  not  permitted  in  Wyoming. 

(363) 


I  12 


THE  CAGED  MAN 


[Vol.  Ill 


CALIFORNIA 


Colorado 


Connecticut 


Illinois 


Indiana 


it  may  be  delivered  to  them  for  dissec- 
tion, unless  claimed  bj-  some  relative 
or  friend  desiring  to  give  it  Christian 
burial. 

An  J'  sheriff  or  keeper  of  a  county  jail     Political        Code, 
or  state  prison  must  surrender  the  dead  1909,    Title     7, 

bodies  of  such  persons   as  are   required  C.  4,  Sec.  3094. 

to  be  buried  at  public  expense,  to  any 
physician  or  surgeon,  to  be  used  by  him 
for  the  advancement  of  science.  If  such 
person  during  his  last  illness  request 
to  be  buried,  or  if  within  24  hours 
some  person  claiming  to  be  of  kindred 
require  the  body  to  be  buried,  such 
body  shall  be  buried. 

The    officers    having    control    of    any      R.     S.     1908,     C. 
almshouse,   prison,   etc.,  may   surrender  127,  Sees.  6072- 

the  dead  bodies  of  such  persons  as  must  75- 
be  buried  at  public  expense  to  any 
licensed  phj'sician  of  the  state  to  be  by 
him  used  for  the  advancement  of  sci- 
ence. If  the  deceased  during  his  last 
illness  requested  to  be  buried,  or  if 
within  24  hours  after  his  or  her  death 
any  relative  or  friend  require  body  for 
burial,  body  shall  be  buried.  After 
having  been  used  for  scientific  purposes 
body  must  be  buried. 

The  body  of  any  convict  who  has 
been  executed  shall  be  buried  in  the  or- 
dinary manner  at  expense  of  state,  un- 
less claimed  by  relative  or  friend,  de- 
siring to  give  it  Christian  burial. 

The  bodies  of  convicts  who  die  in  the 
state  prison  shall,  if  unclaimed  for  a 
period  of  24  hours,  be  at  the  disposal 
of  the  professors  of  anatomy  and  sur- 
gery in  the  medical  institution  of  Yale 
University,  to  be  used  for  the  purpose 
of  advancing  medical  science  in  this 
state  and  shall  be  subject  to  their 
order. 

Superintendent  of  penitentiary  in 
whose  custody  is  the  body  of  any  de- 
ceased person  required  to  be  buried  at 
public  expense  shall  give  permission  to 
remove  body  to  any  physician  or  sur- 
geon or  to  any  medical  college  or  school 
upon  offer  to  remove  free  of  charge, 
after  notice  has  been  given  to  rela- 
tives who  may  wish  to  bury  body,  and 
pro\'ided  further  that  any  medical  col- 
lege that  shall  receive  the  bodies  of  de- 
ceased persons  for  purposes  of  scien- 
tific study,  shall  furnish  the  same  to 
students  of  medicine  and  surgery  at  a 
price  not  exceeding  $5.00  for  each  and 
every  deceased  body  so  furnished. 

It  shall  be  the  duty  of  any  officer  in     R.  S.  1908,  C.  55, 
charge    of    a    prison,    etc.,    having    in  Sec.  6131. 

charge   the   dead   bodies   of   any   person 

(364) 


R.  S.  1908,  C.  35, 
Sec.  2036. 


R.  S.  1902,  Title 
36,  C.  243,  Sec. 
4432. 


R.  S.  1909,  C.  91, 
Sec.  I. 


No.  4j  SPECIFIC  DISABILITIES 


113 


not  claimed  by  relatives  or  legal  repre- 
sentatives, and  which  may  be  required 
to  be  buried  at  public  expense,  unless 
the  person  has  died  of  a  contagious 
disease,  to  deliver  body  to  anatomical 
board,  unless  body  shall  be  claimed 
within  24  hours  after  death. 

Iowa  Superintendent    of    any    penitentiary      R.   S.    1907,  Title 

may,     with     consent     of     relatives     or  24,    C.    9,    Sec. 

friends,  if  any  are  known  and  without  4946. 

such  consent  if  not  known,  deliver  to 
any  medical  college  or  school,  or  any 
physician  in  the  state  for  purposes  of 
scientific  study,  the  remains  of  any  de- 
ceased person  in  his  charge,  unless 
such  deceased  person  during  his  last 
illness  expressed  a  desire  that  his  body 
be  buried.  If  such  a  body  so  delivered 
over  is  subsequently  claimed  bj'  any 
friend  or  relative,  the  same  shall  be  at 
once  delivered  to  such  party.  The  per- 
son receiving  the  body  shall  decently 
bury  the  remains  after  they  hav^e  been 
used  for  scientific  purposes,  and  failure 
to  do  so  shall  be  a  misdemeanor. 

Kansas  It  shall  be  lawful  for  the  faculty  of     R.  S.  1909,  C.  75, 

any     regularly-organized     medical     col-  Sees.  4878-9-80. 

lege  in  the  state  authorized  to  confer 
the  degree  of  doctor  of  medicine,  to 
claim  and  receiv^e  the  dead  body  of  any 
criminal  which  would  otherwise  be 
buried  in  the  potter's  field ;  such  body 
to  be  used  within  the  state  for  the  ad- 
vancement of  medical  science  and  in- 
struction of  students.  The  president 
and  secretary  of  the  college  must  give 
bond  that  body  is  only  required  for 
scientific  purposes  within  the  State  of 
Kansas.  The  remains  after  serving 
such  purpose  must  receive  decent  burial. 

Kentucky  It  shall  be  lawful  for  the  professor     R.    S.    1909,    Sec. 

of  any  medical  college  or  school  which  2645. 

is  incorporated  under  the  laws  of  the 
state  to  secure  from  the  superintendent 
or  warden,  any  unclaimed  bod}^,  after 
relatives  and  friends  have  been  noti- 
fied, and  three  days  have  elapsed  with- 
out action  on  their  part.  The  professor 
is  to  have  body  embalmed  and  preserve 
the  same  for  30  days  without  dissect- 
ing it.  During  the  30  days  body  shall 
be  delivered  to  friends  on  request. 
After  such  body  has  been  examined  as 
herein  provided  it  shall  be  buried  at 
expense  of  college. 

Maine  Officers  of  any  prison  having  charge     R.  S.  1903,  C.  17, 

over  dead  bodies  required  to  be  buried         Sees.  3-6. 
at    public    expense,    shall    deliver    same 
to    board    composed    of    professors    of 
anatomy  and  surgery  in  medical  schools 
of  state,  who  shall  remove  such  bodies 

(365) 


114 


THE  CAGED  MAN 


[Vol.  Ill 


to  be  used  within  the  state  for  the  ad- 
vancement of  medical  education.  If 
family  or  friends  claim  body  it  shall 
be  decently  buried  when  no  longer 
needed  for  scientific  purposes. 

Maryland  The  bodies  of  deceased  convicts  may 

be  claimed  by  their  friends  or  devoted 
to  scientific  examination  at  the  medical 
schools  or  buried  in  the  potter's  field. 

Michigan  Officer  in  charge  of  any  prison  hav- 

ing in  charge  the  dead  body  of  any 
convict,  not  claimed  and  which  must 
be  buried  at  public  expense,  shall  de- 
liver such  body  within  36  hours  after 
death  to  the  demonstrator  of  anatomy 
of  a  college  of  medicine.  After  bodies 
have  been  used  for  scientific  purposes 
they  shall  be  decently  buried. 

Missouri  Officer  in  charge  of  any  prison  shall 

give  over  the  bodies  of  any  convicts 
which  are  unclaimed  by  relatives  and 
would  otherwise  have  to  be  buried  at 
public  expense,  to  the  state  board  for 
the  disposition  of  human  bodies,  which 
is  composed  of  the  professors  of  anat- 
omy of  all  incorporated  schools. 

Nebraska  Warden  of  state  prisons,  etc.,  to  de- 

liver the  bodies  of  convicts,  with  con- 
sent of  relatives,  if  they  are  known 
and  without  if  not  known,  to  medical 
colleges  for  purposes  of  scientific  study. 

New  Hampshire  It  shall  be  the  duty  of  the  keeper  of 
an}'  state  prison  or  jail,  to  notify  phy- 
sicians or  surgeons  who  have  previously 
made  request  in  writing,  whenever  the 
body  of  any  person  would  have  to  be 
buried  at  public  expense.  The  person 
recei\"ing  such  a  body  must  give  bond 
that  it  will  only  be  used  in  the  pursuit 
of  science,  and  after  the  use  allowed  by 
law  will  be  decently  buried.  If  body 
is  claimed  by  relatives  or  friends 
within  36  hours  after  death  it  shall  be 
given  them. 

New  Jersey  Officers   of  prison,   etc.,   shall   deliver 

to  duly  incorporated  pathological  as- 
sociation bodies  of  dead  convicts  which 
require  to  be  buried  at  public  expense, 
imless  claimed  by  relatives. 

North  Carolina  Bodies  of  all  persons  imprisoned  at 
hard  labor  for  violation  of  criminal 
laws  of  state,  shall  be  delivered  to  the 
professors  of  anatomy  of  the  medical 
schools  of  the  state,  provided  bodies 
are  not  claimed  by  relatives  and  that 
convict  was  serving  a  sentence  for 
felony. 

North  Dakota  Superintendent  shall  give  over  to  any 
duly  licensed  physician  the  bodies  of 
convicts,  after  notice  has  been  given  to 
relatives,  and  36  hours  allowed  for  them 

(366) 


R.    S.    1904,    Art. 
27,   Sec.   633. 


R.    S.    1897,    Sec. 
5897. 


R.  S.  1909,  C.  78, 
Art.  3,  Sees. 
8324-30. 


R.    S.    191 1,    Sec. 
9899. 


R.     S.     1901,     C. 
136,  Sees.   1-4. 


R.  S.   iqio,   Page 
3325,  Sec.  12. 


R.  S.  1908,  C.  89, 
Sec.  4288. 


R.  S.  1905,  C.  24, 
Sees.    2079-81. 


No,:4] 


SPECIFIC  DISABILITIES 


115 


Ohio 


Orzgon 


Pennsylvania 


South  Carolina 


South   Dakota 


Tennessee 


to  remove  bodies  in.  All  bodies  so 
used  are  to  be  decently  buried  or  cre- 
mated. 

Warden  of  penitentiary  in  whose  R.  S.  1910,  Sees, 
charge  are  unclaimed  bodies  which  9984-6. 
must  otherwise  be  buried  at  public  ex- 
pense shall  hold  such  bodies  not  less 
than  36  hours  and  notify  a  professor 
of  a  college  which  by  its  charter  is 
empowered  to  teach  anatomy.  After 
bodies  have  been  subjected  to  examina- 
tion they  shall  be  decently  buried. 

It  shall  be  lawful  for  professors  and  R.  S.  1910,  C.  6, 
teachers  in  medical  colleges  and  schools  Sees.  4747-9. 
in  this  state,  or  for  any  medical  and 
surgical  association,  or  regular  physi- 
cian or  surgeon,  to  claim  and  receive 
the  body  of  any  person  executed  pur- 
suant to  sentence  of  law,  and  of  all 
persons  dying  in  the  penitentiary  while 
under  sentence  of  law  for  crime,  to  be 
used  for  the  purpose  of  medical  and 
surgical  studj',  provided  said  body  shall 
not  have  been  interred  or  claimed  by 
relatives  within  24  hours  after  death, 
and  that  person  has  not  expressed  a 
distinct  wish  for  burial.  Bodies  must 
be  decently  buried  after  ha\-ing  been 
used  for  scientific  purposes. 

Officer  of  any  prison,  etc.,  in  charge 
of  dead  body  of  a  convict  which  must 
otherwise  be  buried  at  public  expense, 
is  requested  to  notify  state  board  of 
anatomy  and  permit  it  to  use  body  for 
scientific  purposes. 

Officers  of  any  prison,  jail,  etc.,  hav- 
ing control  of  a  human  body  which  is 
required  to  be  buried  at  public  ex- 
pense, and  that  of  any  person  upon 
whom  the  sentence  of  death  has  been 
executed  under  the  law,  shall  notify 
the  board  for  distribution  of  human 
bodies  for  scientific  purposes.  No 
notice  shall  be  given  of  bodies  claimed 
by  relatives.  After  bodies  have  been 
used  for  scientific  purposes  they  shall 
be  decently  buried. 

Persons  in  charge  of  unclaimed  dead  Code  of  Crimi- 
body  of  a  convict  to  give  notice  to  de-  nal  Procedure, 
partment  of  medicine  of  the  state  uni-  igio.    Sec.   682. 

versity,  within  24  hours  after  receipt 
of  body,  specifying  in  such  notice  the 
probable  cause  of  death.  Such  bodies 
shall  be  embalmed  and  held  at  univer- 
sity for  60  days  during  which  time  any 
friend  of  deceased  requesting  body  for 
burial  shall  receive  it.  Bodies  must  be 
decently  buried  after  having  been  used 
for  scientific  purposes. 

The  bodies  of  dead  criminals  are  de-  R.  S.  1896,  Part 
livered  to  physicians  pursuant  to  the  4,  C.  8,  Art.  3, 
law.  5ec.  6775. 

(367) 


R.   S.   1903,   Page 
320,    Sees.    1-7. 


Civil  Code,  1912, 
C.  19,  Art.  18, 
Sees.   929-34. 


ii6 
Texas 


Utah 


Vermont 


Virginia 


Washington 


THE  CAGED  MAN 

Officers  in  charge  of  prisons,  jails, 
etc.,  to  deliver  to  anatomical  board  of 
Texas  dead  human  bodies  required  to 
be  buried  at  public  expense,  unless 
claimed  by  relatives  or  friends  or  if 
deceased  died  of  contagious  disease, 
except  tuberculosis  or  syphilis.  Effort 
must  be  made  to  find  relatives  who 
must  claim  body  within  24  hours.  In 
case  a  body  is  claimed  by  relatives 
within  10  days  after  being  delivered  to 
an  institution  it  shall  be  delivered  to 
them  for  burial  without  cost. 

It  shall  be  the  duty  of  any  person 
into  whose  charge  may  come  the  un- 
claimed dead  body  of  a  convict,  which 
would  otherwise  have  to  be  buried  at 
public  expense,  to  give  notice  to  the 
dean  of  the  university  within  24  hours 
after  the  receipt  of  the  body,  specifj^- 
ing  probable  cause  of  death.  All  bodies 
received  at  the  university  shall  be 
promptly  embalmed,  and  shall  be  pre- 
served for  not  less  than  60  daj's  dur- 
ing which  time  any  relative  or  friend 
of  deceased  making  request  for  body 
for  burial  shall  receive  it.  After  the 
60  days  bodies  may  be  used  for  scien- 
tific purposes  and  must  then  be  de- 
cently buried  or  cremated. 

Superintendents  of  public  institu- 
tions shall  deliver  over  to  a  practicing 
physician  who  has  applied  in  writing, 
bodies  which  must  otherwise  be  buried 
at  public  expense.  No  such  body  shall 
be  so  delivered  if  deceased  during  his 
last  sickness  make  request  for  burial, 
nor  if  relative,  within  48  hours,  require 
body  ta  be  buried. 

Officers  of  prisons,  jails,  etc.,  shall 
deliver  to  the  board  for  distribution  of 
dead  human  bodies,  bodies  of  convicts 
who  must  otherwise  be  buried  at  public 
expense,  also  bodies  of  convicts  who 
have  suffered  the  death  sentence,  un- 
less such  bodies  are  claimed  by  rela- 
tives for  burial.  After  having  been 
used  for  scientific  purposes  bodies 
must  be  decently  buried. 

Officer  in  charge  of  state  prison,  jail, 
etc.,  must  surrender  the  bodies  of  such 
persons  as  would  have  to  be  buried  at 
public  expense  to  any  physician  or  sur- 
geon, to  be  used  by  him  for  the  ad- 
vancement of  science.  If  deceased,  dur- 
ing his  last  sickness,  requests  to  be 
buried,  or  if,  within  48  hours  after 
death  relatives  or  friends  request  body 
for  burial,  body  must  be  buried  with- 
out dissection. 


[Vol.  Ill 

R.  S.  191 1,  Title 
90,  C.  3,  Sees. 
5756-63. 


R.  S.  1907,  Title 
74,  C.  II,  Sees. 
2320-4. 


R.  S.   1906,  Title 
31,   Sec.    5374. 


R.  S.  1904,  Title 
24,  Sees.  1776- 
81. 


R.  S.  1910,  C.  67, 
Sees.    8409-11. 


No.  4] 


SPECIFIC  DISABILITIES 


117 


West    Virginia  Officers    in    charge    of   prisons,    jails,     R.  S.  1906,  C.  45, 

etc.,  having  in   their   charge   bodies   of         Sees.    1725-30. 

convicts  v\'ho  must  otherwise  be  buried 

at  public  expense,  shall  surrender  them, 

on  requisition,  to  the  anatomical  board 

of    West    Virginia,    unless    friends    or 

relatives  claim  body  for  burial,  or  make 

affidavit    that    they    are    unable    to    bear 

expense  of  funeral  and  desire  body  to 

be  buried  at  public  expense. 
WiscoxsiN  Public  officials  having  charge  of  body     R.  S.  1898,  C.  58, 

of  deceased  prisoner,  which  must  other-  Sees.    1437-8. 

wise  be  buried  at  public  expense,  shall 

promptly  notify  relatives  or  friends  of 

deceased.       If     body     be    not     claimed 

within  48  hours  after  death,  it  shall  be 

placed    at   disposal   of   demonstrator   of 

anatomy   for   scientific   purposes,    unless 

in  his  last  sickness  convict  requested  to 

be    buried.      Bodies    used    for    scientific 

purposes   must    afterwards   be    decently 

buried. 

(369) 


INDEX 


24 


24 


ALABAMA. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state    ....      4 

Why  is  he  confined  ? 
Working  off  a  fine  and  costs  ...     11 

Serving  fixed  sentences 13 

Awaiting  capital  punishment      .    .     15 

How  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited     17 

Shackles  and  chains  permitted  .    .     19 
Corporal  punishment  permitted  .    .     21 

Ho'w  may  he  be  worked  ? 

Leasing  to  individuals  for  work  out- 
side mstitution  permitted  .... 

Leasing  to  individuals  for  work  out- 
side institution  prohibited    .    .    . 

Public  works     ...         29 

Public  works  prohibited    .  .    .    .    ,     29 

Hozu  is  he  maintained  ? 

Bunking 47 

Food 53 

Clothing 57 

How  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection       59 

Provision  for  religious  teaching  .    .  64 

Reduction  of  time  for  good  conduct.  66 

Time  for  good  conduct  forfeited  .  .  66 

Grading  of  prisoners 78 

Wage  for  overtime  permitted  ...  86 

Prison  libraries 90 

Who  can  set  him  free  ? 
The  Governor  may  parole  him  .    .    92 
The  Governor   and  Board   of  Par- 
dons may  pardon  him 99 

What  specific  disabilities  are  caused 

by  a  prison  sentence  ? 
Citizenship  lost     ....        ...  loi 

Citizenship  regained 10 1 

Marital  rights  lost 106 

A  criminal  record 108 

ARIZONA. 

Why  is  he  confined  ? 
Working  off  a  fine  and  costs  .    .  9 

Serving  an  indeterminate  sentence.    13 
Awaiting  capital  punishment  .    .    .     15 

(37 


Ho'tv  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited   .  17 

How  may  he  be  worked  ? 

Public  works 30 

Hours  of  labor 46 

How  is  he  maintained  ? 

Food   .  , 53 

How  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection      59 

Provision  for  religious  teaching    .  .     64 

Reduction  of  time  for  good  conduct.  66 

Time  for  good  conduct  forfeited     .    66 

Who  can  set  him  free  ? 

The  Parole  Board 92 

The  Governor  may  pardon  him  .  .    97 
What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  not  forfeited 105 

Marital  rights  lost ic6 

A  criminal  record 108 

ARKANSAS. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state    ....      4 
Why  is  he  co7 fined  ? 

Working  off  a  fine  and  costs  ...     11 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  .    .    .     15 
How  may  he  be  ptcnished  ? 

Cruel  and  unusual  punishments  pro- 
hibited      ...     17 

Greater  or  more  severe  punishment 
than  prescribed  by  board  pro- 
hibited ....         23 

How  may  he  be  worked  ? 

Leasing  to  individuals  for  work  out- 
side institution  permitted.    ...     24 

Public  works.        29 

Stale  farms;  community  consump- 
tion     37 

State  factories;  community  con- 
sumption     38 

Hours  of  labor 45 

How  is  he  maintained  ? 

Bunking 47 

Food 53 

Clothing 57 

I) 


120 


INDEX 


[Vol.  Ill 


How  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection. ...  •  •  59 
Provision  for  religious  teaching  .  .  64 
Reduction  of  time  for  good  conduct.  66 
Time  for  good  conduct  forfeited.  .  66 
Special    favors    for    good    conduct 

allowed 77 

Prison  schools .    ,    .     89 

Prison  libraries 90 

Who  can  set  him  free  ? 
The  Governor  may  pardon  him.    .    98 
What  specific  disabilities  are  caused 

by  a  prison  sentence  ? 

Citizenship  lost 10 1 

Citizenship  regained 10 1 

Marital  rights  lost 106 

A  criminal  record 108 

Use  of  dead  body  for  scientific  pur- 
poses   Ill 

CALIFORNIA. 

What  is  the  stattis  of  the  prisoner  ? 
The  property  of  the  state    ....  3-4 

Why  is  he  confined  ? 
Working  off  a  fine  and  costs   ...       6 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  ...     15 

H01V  may  he  be  'jjorked  ? 
Leasing  to  individuals  for  work  in- 
side institution  prohibited   ...     25 
State  industries;  state  consumption.  28 

Public  works 30 

State    factories ;     community    con- 
sumption     38 

Branding  of  convict-made  goods    .    41 

Hours  of  labor 46 

Hoiu  is  he  maintained  ? 

Bunking 47 

Food 53 

Clothing 57 

//o7v  is  he  cared  for  ? 
Provision  for   health   and   medical 

inspection 60 

Reduction  of  time  for  good  conduct.  67 
Time  for  good  conduct  forfeited  .  .     67 

Grading  of  prisoners 78 

Wage  permitted  , 80 

Who  can  set  him  free  ^ 

The  Parole  Board 93 

The  Governor  may  pardon  him  .       98 
What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost  .  10 1 

Citizenship  regained    ....  loi 

Marital  rights  lost 106 

A  criminal  record 108 

Use  of  dead  body  for  scientific  pur- 
poses     112 

(372) 


COLORADO. 

What  is  the  status  of  the  prisoner  ? 

The  property  of  the  state 4 

Why  is  he  cot  fined  ? 
Working  o0"  a  fine  and  costs  ...       9 
Serving  an  indeterminate  sentence.    13 
Awaiting  capital  punishment  ...     15 

How  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited   17 

Shackles  and  chains  permitted  .    .     20 
Leasing  to  individuals  for  work  in- 
side institution  permitted  ....     25 

Public  works  .  .         ......     30 

Competition    with    free    labor   pro- 
hibited    39 

Branding  of  convict -made  goods    .    41 

Hours  oi  labor 45 

Hov  is  he  maintained ? 

Bunking 47 

Ho%u  is  he  cared  for  ? 
Provision    for   health  and   medical 

inspection 60 

Provision  for  religious  teaching  .  .  64 
Reduction  of  time  for  good  conduct.  67 
Time  for  good  conduct  forfeited  .  .    67 

Wage  permitted So 

Prison  libraries 90 

Who  can  set  him  free  ? 

The  Parole  Board 93 

The  Governor  may  pardon  him  .  .    9S 

IVhat  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 10 1 

Citizenship  regained loi 

Marital  rights  lost 106 

A  criminal  record     .    .     .....  loS 

Use  of  dead  body  for  scientific  pur- 
poses   112 

CONNECTICUT. 

Why  is  he  confined? 
Working  off  fines  and  costs    .    5,  9,  12 
Serving  an  indeterminate  sentence.    13 
Awaiting  capital  punishment.  ...     15 

How  may  he  be  punished ? 
Shackles  and  chains  permitted   .    .     19 
Gag,  iron  mask,  etc.,  prohibited     .     21 
Corporal  punishment  permitted  .    .     21 

Ho'u)  may  he  be  worked  ? 
Leasing  to  individuals  for  work  in- 
side institution  permitted.    ...     25 

Public  works 30 

Manufacture  of  certain  articles  pro- 
hibited  .    .        44 

Hours  of  labor 46 


No.  4] 


INDEX 


121 


Ho'oj  is  he  maintained  / 

Bunking 47 

Food 53 

H01U  is  he  cared  for  ? 
Provision    for  health   and   medical 

inspection 60 

Provision  for  religious  teaching  .  .  64 
Reduction  of  time  for  good  conduct.  67 
Time  for  good  conduct  forfeited  .  67 
Prison  libraries 90 

Who  can  set  him  frez  ? 

The  Parole  Board 93 

The  Legislature  may  pardon  him  .  100 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 10 1 

Power  of  procreation  lost 105 

Marital  rights  lost 106 

Use  of  dead  body  for  scientific  pur- 
poses   112 

DELAWARE. 

Why  is  he  confined? 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  ...     15 

How  may  he  be  punished ? 

Solitary  confinement  permitted  .    .  18 

Corporal  punishment  permitted.    .  21 

Stocks  prohibited 23 

Hovj  may  he  be  -worked  ? 

Public  works 30 

State    factories ;     community    con- 
sumption      38 

Hours  of  labor 45 

How  is  he  cared  for  ? 

Bunking 47 

Food 53 

Reduction  of  time  for  good  conduct.  67 

Time  for  good  conduct  forfeited.    .  67 

Wage  for  overtime  permitted.    .    .  86 

Who  can  set  him  free  ? 
The  Governor  may  pardon  him.    .    98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost loi 

Citizenship  regained loi 

Marital  rights  lost 106 

DISTRICT  OF  COLUMBIA. 
Why  is  he  confined  ? 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  , 

Ho7v  may  he  be  worked  ? 
Hours  of  labor 


How  is  he  maintained ? 

Bunking 47 

Food 53 

How  is  he  cared  for  ? 
Provision    for    health    and    medical 
inspection 60 

What  specific  disabilities  are  caused 

by  a  prison  sentence  ? 

Citizenship  lost 10 1 

FLORIDA. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state    ....      4 

Why  is  he  confined  ? 
Working  off  a  fine  and  costs      ,    .     11 
Serving  a  fixed  sentence     ....     13 
Awaiting  capital  punishment  ...     15 

How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited     17 

Shackles  and  chains  permitted  .    .     20 
Reduction  of  food  prohibited  ,    .    .     21 
Punishment   injurious   to   mind    or 
body  prohibited 23 

How  may  he  be  worked  ? 

Leasing  to  individuals  for  work  out- 
side mstitution  permitted     ...     24 

Public  works 30 

State  farms  ;  community  consump- 
tion     37 

Hours  of  labor 45 

How  is  he  maintained  ? 

Bunking 47 

Food 53 

Clothing 57 

How  is  he  cared  for  ? 

Provision  for  health  and  medical  in- 
spection   60 

Reduction  of  time  for  good  conduct.  68 
Time  for  good  conduct  forfeited  .  .    68 

Who  can  set  him  free  ? 
The   Governor  and  Board  of  Par- 
dons may  pardon  him 99 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 10 1 

Citizenship  regained 10 1 

A  criminal  record 109 

\  GEORGIA. 

What  is  the  status  of  the  prisoner  ? 
I      The  property  of  the  state    ....      4 
73) 


122 


INDEX 


[Vol.  Ill 


Why  is  he  confined ? 
Serving  a  fixed  sentence     ....     13 
Awaiting  capital  punishment    ...     15 

How  may  he  be  pzmishea  ? 
Cruel  and  unusual  punishments  pro- 
hibited     17 

Shackles  and  chains  permitted  .    .    20 
Corporal  punishment  permitted  .    .     21 
Corporal  punishment  prohibited     .     21 

How  may  he  be  worked  ^ 
Leasing  to  individuals  for  work  in- 
side institution  prohibited    ...    25 
Public  works  .  ......     30 

State  farms;    community  consump- 
tion   37 

Competition   with    free    labor   pro- 
hibited     39 

Hours  of  labor 46 

How  is  he  maintained ? 

Bunking 47 

Food 53 

How  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 

spection 60 

Reduction  of  time  for  good  conduct.  68 
Tmie  for  good  conduct  forfeited     .    68 

Prison  schools 89 

Industrial  training 91 

Who  can  set  him  free  ? 
The  Governor   and  Board  of  Par- 
dons may  pardon  him 99 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 102 

Citizenship  regained    .....  102 

Marital  rights  lost 106 

A  criminal  record    .......  109 

IDAHO. 

Why  is  he  confined  ? 
Working  off  a  fine  and  costs   ...       6 
Serving  an  indeterminate  sentence.    13 
Awaiting  capital  punishment  ...     15 

How  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited ...  17 

Solitary  confinement  permitted  .    .     18 
Shackles  and  chains  permitted  .    .     20 

How  may  he  be  worked  ? 
Leasing  to  individuals  for  work  in- 
side institution  permitted     ...     25 
State  industries ;  state  consumption.   28 
Public  works  .....  ...     30 

Manufacture  of  goods  manufactured 
by   free   industries    in   the   state 

prohibited 41 

Hours  of  labor 45 

(3: 


How  is  he  maintained ? 

Bunking 48 

Food 53 

How  is  he  cared  for  ? 
Provision   for   health   and  medical 

inspection .60 

Reduction  of  time  for  good  conduct.  68 
Time  for  good  conduct  forfeited  .  .    68 

Grading  of  prisoners 78 

Prison  libraries 90 

Who  can  set  him  free  ? 

The  Parole  Board 93 

The  Governor  and  Board  of  Par- 
dons may  pardon  him 99 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost I02 

Citizenship  regained 102 

Marital  rights  lost 106 

ILLINOIS. 

Why  is  he  confi^ied  ? 
Working  off  a  fine  and  costs       .    .       8 
Serving  an  indeterminate  sentence  .    13 
Awaiting  capital  punishment  ...     15 

How  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited     17 

Corporal  punishment  prohibited  .  .     21 

How  may  he  be  worked  ? 

Leasing  to  individuals  for  work  in- 
side institution  prohibited    .    .    . 

Public  works 

State  factories ;  community  con- 
sumption   .  

Competition  with  free  labor  pro- 
hibited   

Use  of  machinery  prohibited  .    .    . 

How  is  he  maintained  ■' 

Bunking 

Food 

How  is  he  cared  for  / 
Provision  for  health  and  medical  in- 
spection   

Provision  for  religious  teachings  .  . 
Reduction  of  time  for  good  conduct. 
Time  for  good  conduct  forfeited  .  . 

Grading  of  prisoners 

Wage  permitted 


25 


39 
41 


48 
54 


Wage  forfeited 

Prison  schools 

Prison  libraries 

Who  can  set  him  free  ? 

The  Parole  Board 

The  Governor  may  pardon  him 


60 
64 
68 
68 
78 
81 
81 
89 
90 


93 
98 


4) 


No.  4] 


INDEX 


123 


What  specific  disabilities  are  caused 
by  a  prison  sentence  'f 

Citizenship  lost 102 

Citizenship  regained    .....  102 

Marital  rights  lost 106 

A  criminal  record 109 

Use  of  dead  body  for  scientific  pur- 
poses    112 

INDIANA. 

What  is  the  status  of  the  prisoner? 
The  property  of  the  state    ....      4 

Why  is  he  confined? 
Working  off  a  fine  and  costs  ...       7 
Serving  an  indeterminate  sentence.    13 
Awaiting  capital  punishment  .    .    .     15 
Cruel  and  unusual  punishments  pro- 
hibited   17 

Horu  may  he  be  ptmished ? 
Solitary  confinement  permitted  .    .     18 
Corporal  punishment  permitted  .    .     22 

How  may  he  be  worked ? 
Leasing  to  individuals  for  work  in- 
side institution  permitted.    .25 
Leasing  to  individuals  for  work  in- 
side institution  prohibited    .        .     25 
State  industries  :  state  consumption.   28 

Public  works. 30 

State    factories :     community    con- 
sumption     38 

Use  of  machinery  prohibited  ...     41 
Branding  of  convict-made  goods    .     42 
Manufacture  of  certain  articles  pro- 
hibited   44 

How  is  he  maintained ? 

Bunking 48 

Food ...  .    .     54 

How  is  he  cared  for  ? 
Provision    for  health   and    medical 

inspection  .        .......  61 

Reduction  of  time  for  good  conduct.  69 

Time  for  good  conduct  forfeited.    .  69 

Prison  schools 89 

Industrial  training 91 

Who  can  set  him  free  ? 

The  Parole  Board 93 

The  Governor  and  Board  of   Par- 
dons may  pardon  him 99 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 102 

Power  of  procreation  lost    .    .    .    .105 

Marital  rights  lost.        ......  106 

Use  of  dead  body  for  scientific  pur- 
poses   112 


IOWA. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state        ...      4 

Why  is  he  corifined  ? 
Working  off  a  fine  and  costs  ...      9 
Serving  an  indeterminate  sentence.   13 
Awaiting  capital  punishment  ...     16 

How  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited   .  17 

Solitary  confinement  permitted  .    .     18 

How  may  he  be  worked  ? 

Leasing  to  individuals  for  work  out- 
side institution  prohibited    ...     24 

Leasing  to  individuals  for  work  in- 
side institution  permitted     ...     26 

Public  works 30 

How  is  he  maintained  ? 

Bunkir.g 48 

Food 54 

Clothing 58 

Hozu  is  he  cared  for  ? 
Provision    for   health  and   medical 

inspection 61 

Provision  for  religious  teaching  .    .  64 

Reduction  of  time  for  good  conduct.  69 

Time  for  good  conduct  forfeited    .  69 

Prison  schools 89 

Industrial  training 91 

Who  can  set  him  free  ? 

The  Parole  Board    . 93 

The  Governor  may  pardon  him     .    98 
The    Governor    and    Senate    may 
pardon  him 100 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 102 

Citizenship  regained 102 

Marital  rights  lost 106 

A  criminal  record 109 

Use  of  dead  body  for  scientific  pur- 
poses   113 

KANSAS. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state    ....      4 

Why  is  he  confined  ? 
Working  off  a  fine  and  costs  ...      9 
Serving  an  indeterminate  sentence.    13 
Prohibition  of  capital  punishment.     15 

How  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited  ......  ...     17 

Solitary  confinement  permitted  .    .     18 


(375) 


124 


INDEX 


[Vol.  Ill 


Shackles  and  chains  permitted  .    .     2o 
Corporal  punishment  prohibited  .  .     21 
Punishment    injurious    to    mind    or 
body  prohibited 23 

How  may  he  be  -worked  ? 
Leasing  to  individuals  for  work  out- 
side institution  prohibited    ...     24 
Leasing  to  individuals  for  work  in- 
side institution  permitted     ...     26 
Leasing  to  individuals  for  work  in- 
side institution  prohibited    ...     25 
State  industries  ;  state  consumption.  28 

Public  works 31 

Work  injurious  to  health  prohibited.  44 
Hours  ot  labor 45 

Houu  is  he  maintained ? 

Bunking 48 

Food 54 

How  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection   61 

Provision  for  religious  teachings  .  .  64 
Reduction  of  time  for  good  conduct.  69 
Time  for  good  conduct  forfeited  .  .    69 

Wage  permitted 81 

Wage  forfeited 81 

Prison  schools 89 

Industrial  training 91 

Who  can  set  him  free  ? 

The  Parole  Board 94 

The  Governor  may  pardon  him  .  .    98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  / 

Citizenship  lost 102 

Citizenship  regained 102 

Marital  rights  lost 106 

A  criminal  record 109 

Use  of  dead  body  for  scientific  pur- 
poses   113 

KENTUCKY. 

What  is  the  status  of  the  prisoner? 
The  property  of  the  state 4 

Why  is  he  confined  ? 

Working  off  a  fine  and  costs  ...  10 

Serving  an  indeterminate  sentence.  14 

Awaiting  capital  punishment  ...  16 

How  may  he  be  published  ? 
Cruel  and  unusual  punishments  pro- 
hibited .        17 

Corporal  punishment  prohibited.    .     22 

How  may  he  be  worked  ? 

Leasing  to  individuals  for  work  in- 
side institution  permitted.    ...     26 

(376) 


Public  works 31 

Public  works  prohibited 29 

Branding  of  convict-made  goods    .  42 
Work  injurious  to  health  prohibited.  44 
Association  with  f.^ee  laborers  dur- 
ing work  hours  prohibited  ...  44 
Hours  of  labor 46 

How  is  he  maintained ? 

Bunking 48 

54 


Food 


How  is  he  cared  for  ? 

Provision    for  health    and   medical 

inspection 61 

Provision  for  religious  teaching  .    .  64 

Reduction  of  time  for  good  conduct.  69 

Wage  permitted 81 

Wage  forfeited 81 

Prison  schools 89 

Industrial  training gi 

Who  can  set  him  free  ? 

The  Parole  Board 94 

The  Governor  may  pardon  him  .    .    98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 102 

Marital  rights  lost 106 

A  criminal  record 109 

Use  of  dead  body  for  scientific  pur- 
poses      ....  113 

LOUISIANA. 

Why  is  he  confined  ? 
Working  off  a  fine  and  costs  .    .  10,  12 
Serving  a  fixed  sentence  ....     13 
Awaiting  capital  punishment  ...     16 

How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited     17 

Solitary  confinement  permitted  .  .  18 
Shackles  and  chains  prohibited  .  .  19 
Corporal  punishment  permitted  .    .    22 

Ho%v  may  he  be  worked  ? 

Leasing  to  individuals  for  work  out- 
side institution  permitted    ...     24 
Leasing  to  individuals  for  work  in- 
side institution  prohibited    ...     26 

Public  works 31 

State  farms  ;  community  consump- 
tion   38 

Branding  of  convict-made  goods  .  42 
Hours  of  labor 45 

How  is  he  maintained ? 

Bunking .    .    49 

Food 54 


No.  4] 


INDEX 


125 


How  is  he  cared  for  ? 
Provision    for    health   and    medical 

inspection 61 

Provision  for  religious  teaching  ,    .  64 

Reduction  of  time  for  good  conduct.  69 

Grading  of  prisoners 78 

Wage  permitted 82 

Who  can  set  him  free  ? 
The  Governor   and   Board  of  Par- 
dons may  pardon  him 99 

What  specific  disabilities  are  caused 
by  a  prison  senterce  ? 

Citizenship  lost 102 

Citizenship  regained 102 

Marital  rights  lost 106 

A  criminal  record 109 

MAINE. 

Why  IS  he  confined ? 

Serving  a  fixed  sentence 13 

Prohibition  of  capital  punishment  .     15 

How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited   17 

Solitary  confinement  permitted  .    .     18 
Corporal  punishment  prohibited.    .    21 

Hotv  may  he  be  worked ? 
Leasing  to  individuals  for  work  in- 
side institution  permitted.    ...     26 

Public  works 31 

Branding  of  convict-made  goods    .    42 
Manufacture  of  certain  articles  pro- 
hibited   44 

Hours  of  labor  46 

Hoiii  is  he  maintained ? 

Bunking 49 

Food 54 

Hozi'  is  he  cared  for  ? 
Provision    for  health    and    medical 

inspection 61 

Provision  for  religious  teaching  .    .  64 

Reduction  of  time  for  good  conduct.  70 

Wage  permitted 82 

Prison  schools 90 

Prison  libraries 90 

Who  can  set  him  free  ? 
The    Governor   and    Council    may 
pardon  him 100 

What  specific  disabilities  are  caused 
by  a  prison  sejitence  ? 

Citizenship  lost 102 

Marital  rights  lost 106 

A  criminal  record 109 

Use  of  dead  body  for  scientific  pur- 
poses   113 

(3 


MARYLAND. 

What  is  the  statu%  of  the  Prisoner  ? 

The  ward  of  the  state 4 

Why  is  he  confined  ? 
Serving  a  fixed  sentence  .  .        .    .     13 
Awaiting  capital  punishment  .    .    .     16 

How  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited .    .  .17 

Solitary  confinement  permitted  .    .     18 
Corporal  Punishment  permitted      .    22 

How  may  he  be  worked? 

Leasing  to  individuals  for  work  in- 
side institution  permitted  ....     26 

Public  works 31 

Manufacture  of  certain  articles  pro- 
hibited  . 44 

Hours  of  labor 45 

Hoiv  is  he  maintained  ? 

Bunking  49 

Food 54 

How  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection  61 

Provision  for  religious  teaching  .    .    64 
Reduction  of  time  for  good  conduct.   70 
Time  for  good  conduct  forfeited  .  .    70 
Special  favors  for  good  conduct  per- 
mitted     77 

Wage  permitted 82 

Who  can  set  him  Jree  ? 
The  Governor  may  pardon  him  .  .    98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 102 

A  criminal  record  .       109 

Use  of  dead  body  for  scientific  pur- 
poses   114 

MASSACHUSETTS. 

Why  is  he  confined  ? 
Serving  an  indeterminate  sentence.   14 
Awaiting  capital  punishment  ...     16 

How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited      17 

Solitary  confinement  permitted  .    .  18 

Shackles  and  chains  permitted  .    .  20 

Gag,  iron  mask,  etc.,  prohibited    .  21 

How  may  he  be  punished  ? 
Leasing  to  individuals  for  work  in- 
side institution  permitted         .    .     26 
State  industries ;  state  consumption.  28 

77) 


126 


INDEX 


[Vol.  Ill 


Public  works 32 

Limitation  of  number  of  convicts  in 
one  industry 40 

Manufacture  of  certain  articles  pro- 
hibited     44 

How  is  he  maintained  / 

Bunking 49 

Food 54 

Clothing 58 

How  is  he  cared  for  ? 
Provision    for   health  and    medical 

inspection 61 

Provision  for  religious  teaching  .    .  64 

Reduction  of  time  for  good  conduct.  70 

Time  for  good  conduct  forfeited    .  70 

Grading  of  prisoners 79 

Wage  permitted 82 

Prison  schools 90 

Who  can  set  him  free  ? 

The  Parole  Board    ......     94 

The  Governor  and  Council  may 
pardon  him 100 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 102 

Marital  rights  lost 107 

A  criminal  record 109 

MICHIGAN. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state 4 

Why  is  he  confined  ? 
Serving  an  indeterminate  sentence.   14 
Prohibition  of  capital  punishment  .     15 

How  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited   17 

Solitary  confinement  permitted  .    .     19 
Corporal  punishment  permitted  .    ,     22 
Corporal  punishment  prohibited  .  .     21 
Showering    with    cold    water    pro- 
hibited   23 

How  may  he  be  worked  ? 

Leasing  to  individuals  for  work  in- 
side institution  prohibited    ...     26 

Public  works .  32 

State  farms ;  community  consump- 
tion      38 

State  factories;  community  con- 
sumption     38 

Manufacture  of  goods  manufactured 
by  free  industries  in  the  state 
prohibited 41 

Hours  of  labor 45 


Plow  is  he  maintained  ? 

Bunking 49 

Food 54 

How  is  he  cared  for  ? 
Provision    for  health  and   medical 

inspection 61 

Provision  for  religious  teaching  .    .  64 

Reduction  of  time  for  good  conduct.  70 

Time  for  good  conduct  forfeited  .  .  70 

Grading  of  prisoner  permitted    .    .  79 

Grade  forfeited 79 

Wage  for  overtime  permitted  ...  87 

Assistance  to  prisoner's  family    .    .  88 

Prison  schools 90 

Prison  libraries 90 

Who  ca7t  set  him  free  ? 
The  Parole  Board    .......    94 

The  Governor  may  pardon  him  .    .    98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  not  forfeited 100 

Marital  rights  lost 107 

A  criminal  record 109 

Use  of  dead  body  for  scientific  pur- 
poses   1 14 

MINNESOTA. 

What  is  the  status  of  the  prisoner  ? 

The  property  of  the  state 4 

Why  is  he  confined  ? 
Working  off  a  fine  and  costs    ...       9- 
Serving  an  indeterminate  sentence.    13 
Prohibition  of  capital  punishment  .     15 

How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited   17 

How  may  he  be  worked  '/ 
Leasing  to  individuals  for  work  in- 

side  institution  permitted  ....     26 
Leasing  to  individuals  for  work  in. 
side  institution  prohibited    ...     26 

Public  works 32 

State    factories ;     community    con- 
sumption     38 

Limitations  of  number  of  convicts 

in  one  industry 40 

Hours  of  labor 45 

Hoxu  is  he  maintained  Z 

Bunking 49 

Food 54 

How  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection    ...     61 

Provision  for  religious  teaching  .    .     65 
Reduction  of  time  for  good  conduct.  70 


(378) 


No.  4] 


INDEX 


127 


Time  for  good  conduct  forfeited  .  70 
Assistance  to  prisoner's  family  .  .  88 
Industrial  training 91 

Who  can  set  hini  free  ? 

The  Parole  Board 94 

The  Governor  and  Board  of  Pardons 
may  pardon  him 99 

What  specific  disabilities  are  causeti 
by  a  prison  sentence? 

Citizenship  lost 102 

Marital  rights  lost 107 

MISSISSIPPI. 

What  is  the  stattti  of  the  prisoner  ? 

The  property  of  the  state 4 

Why  is  he  confined  ? 
Working  off  a  fine  and  costs   ...     12 
Serving  a  fixed  sentence    ....     13 
Awaitmg  capital  punishment  .    .    .     16 

H01V  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited    17 

Corporal  punishment  permitted  .    .     22 

Ho7v  may  he  be  luorked  ? 
Leasing  to  individuals  for  work  in- 
side institution  prohibited    ...     26 

Public  works.    .    .  32 

Public  works  prohibited 29 

State  farms :   community  consump- 
tion          38 

Hours  of  labor 46 

How  is  he  tnaintained ? 

Bunking 49 

Food 55 

Clothing 57 

How  is  he  cared  for  ? 
Provision    for    health   and  medical 

inspection 61 

Provision  for  religious  teaching  .  .  65 
Reduction  of  time  tor  good  conduct.  71 

Grading  of  prisoner 79 

Wage  permitted 82 

Who  can  set  him  free  ? 
The  Governor  and  .Senate  may  par- 
don him ICO 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 103 

Marital  rights  lost 107 

A  criminal  record 109 

MISSOURI. 

What  is  the  status  of  the  prisoner  ? 

The  property  of  the  state 4 

(37' 


Why  is  he  confined  ? 

Working  oft' a  hne  and  costs  .    .    .  lo 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  ...  16 

How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 


hibited 


17 


Hozo  may  he  be  worked  ? 
Leasing  to  individuals  for  work  in- 
side mstitution  prohibited    ...     26 
State  industries;  state  consumption.   28 

Public  works 33 

State    factories ;    community    con- 
sumption     38 

Hours  of  labor 45 

How  is  he  maintained ? 

Bunking 49 

Food 55 

Clothing 57 

How  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection .  .  61 

Provision  for  religious  teaching  .    .    65 
Reduction  of  time  for  good  conduct.  71 

Wage  permitted 83 

Wage  for  overtime  permitted  ...     87 
Assistance  to  prisoner's  family    .  88,  89 

Who  can  set  him  free  ? 
The  Governor  may  parole  him  .    .     92 
The  Governor  may  pardon  him  .       98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 103 

Citizenship  regained 103 

Marital  rights  lost 107 

A  criminal  record 1 10 

Use  of  dead  body  for  scientific  pur- 
poses   114 

MONTANA. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state    ....      4 

Why  is  he  confined  ? 
W^orking  off  a  fine  and  costs   . 
Serving  a  fixed  sentence     .    . 
Awaiting  capital  punishment  . 


6 

13 
16 


How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited     17 

Reduction  of  food  prohibited   ...     21 
Corporal  punishment  prohibited  .  .     21 
Showering    with    cold    water    pro- 
hibited      23 


9) 


128 


INDEX 


[Vol.  Ill 


Ho'ii)  may  he  be  zvorkid  ? 

Leasing  to  individuals  for  work  in- 
side institution  prohibited    ...     26 

Public  works 33 

State  factories;  community  con- 
sumption     39 

Hours  of  labor 46 

How  is  he  maintained  ? 

Bunking 50 

Food 55 

Hoio  is  he  cared  for  ? 
Provision   for  health   and   medical 

inspection 62 

Reduction  of  time  for  good  conduct.  7 1 
Time  for  good  conduct  forfeited     .    7 1 

IVko  can  set  him  free  ? 

The  Parole  Board 94 

The  Governor  and  Board  of  Par- 
dons may  pardon  him   ,       ...     99 

What  specif  c  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 103 

Citizenship  regained 105 

Marital  rights  lost 107 

A  criminal  record    .......  I  lo 

NEBRASKA. 

What  is  the  status  of  the  prisoner  ? 

The  property  of  the  state 4 

Why  is  he  confined  ? 
Working  off  a  fine  and  costs   ...      5 
Serving  an  indeterminate  sentence.    13 
Awaiting  capital  punishment  ...     1 6 

H010  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited     17 

How  may  he  be  worked  ? 
Leasing  to  individuals  for  work  in- 
side institution  permitted  ....     26 

Public  works 33 

Hours  of  labor 46 

How  is  he  maintained  ? 

Bunking 50 

Food 55 

Hoxu  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection   .62 

Reduction  of  tim.e  for  good  conduct.  7 1 
Time  for  good  conduct  forfeited  .  ,    71 

Who  can  set  him  free  ? 

The  Parole  Board 95 

The  Governor  and  Board  of  Pardons 
may  pardon  him 99 


What  specific  disabilities  are  caused 
by  a  prison  sentence:' 

Citizenship  lost 103 

Citizenship  regained 103 

Marital  rights  lost 107 

A  criminal  record i  lo 

Use  of  dead  body  for  scientific  pur- 
poses   114 

NEVADA. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state 4 

Why  is  he  confined  ? 

Working  off  a  fine  and  costs  ...  7 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  .    .    .  16 

Ho7o  may  he  be  pU7iished  ? 
Cruel  and  unusual  punishments  pro- 
hibited   17 

Reduction  of  food  prohibited  .    .    .     21 
Corporal  punishment  prohibited.    .    21 

How  may  he  be  worked  ? 
Leasing  to  individuals  for  work  in- 
side institution  permitted.    ...     27 

Public  works 33 

Hours  of  labor 46 

How  is  he  maintained ? 

Clothing 57 

Provision  for  religious  teaching  .    .  65 
Reduction  of  time  for  good  conduct.  7 1 
Special  favor  for  good  conduct  for- 
feited   77 

Grading  of  prisoner 79 

Wage  permitted 83 

Wage  forfeited S3 

Who  ca7t  set  him  free  ? 
The  Governor  and  Board  of  Par- 
dons may  pardon  him  .    .        .    .    99 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 103 

Citizenship  regained 103 

Marital  rights  lost .  107 

A  criminal  record IIO 

NEW  HAMPSHIRE. 

Why  is  he  confined? 
Working  off  a  fine  and  costs  ...     12 
Serving  an  indeterminate  sentence.   14 
Awaiting  capital  punishment  .    .    .     16 

How  may  he  he  punished ? 
Solitary  confinement  permitted  .    .     19 


(380) 


No.  4] 


INDEX 


129 


How  may  he  be  loorked ? 

Leasing  to  individuals  (or  work  in- 
side institution  permitted  .... 

Labor  which  can  be .  carried  on 
without  expense  to  county  and  is 
consistent  with  safe-keeping  of 
prisoners  permitted 

Hours  of  labor 

IIozv  is  he  maintained ? 

Bunking 

Food 

Clothing 

IIo7v  is  he  cared  for  ? 

Provision  for  health  and  medical 
inspection 

Provision  for  religious  teaching  .    . 

Reduction  of  time  for  good  conduct. 

Special  favor  for  good  conduct  .    . 

Wage  permitted        

Who  can  set  him  free  '/ 

The  Parole  Board 

The  Governor  may  pardon  him  .  . 

What  specific  disabilities  are  caused 

bv  a  prison  sentence  / 

Citizenship  not  forfeited  ....       i 

Marital  rights  lost i 

A  criminal  record I 

Use  of  dead  body  for  scientific  pur 
poses I 

NEW  MEXICO. 

Why  is  he  confined  f 
Working  off  a  fine  and  costs   .    .    . 
Serving  an  indeterminate  sentence. 
Awaiting  capital  punishment  .    .    . 

Hoiv  may  he  be  punished  ? 

Cruel  and  unusual  punishments  pro- 
hibited   

Dungeons  permitted 

Corporal  punishment  prohibited.    . 
How  may  he  be  worked? 

Leasing  to  individuals  for  work  in- 
side institution  prohibited    .    .    . 

Public  works 

State  factories :  community  con- 
sumption     

Hours  of  labor 

How  is  he  maintained ? 

Bunking 

Food 

How  is  he  cared  for  ? 
Provision    for   health   and   medical 

inspection 

Provision  for  religious  teaching  .  . 
Reduction  of  time  for  good  conduct. 
Time  for  good  conduct  forfeited.    . 


27 


Who  can  set  him  free? 

The  Parole  Board 95 

The  Governor  may  pardon  him  .    .    98 

What  specific  disabilities  are  caused 
by  a  prison  sentejtce  ? 

Citizenship  lost 103 

Citizenship  regained 103 


NEW  JERSEY. 

Why  is  he  confined? 

Working  off  a  fine  and  costs  .  .  . 
Serving  an  indeterminate  sentence. 
Awaiting  capital  punishment  .    .    , 


Hoiv  may  he  be  punished? 
Cruel  and  unusual  punishments  pro- 
hibited   

Dungeons  permitted 

Shackles  and  chains  permitted 
Shackles  and  chains  prohibited 
Corporal  punishment  prohibited 

Ho'w  may  he  be  worked? 
Leasing  to  individuals  for  work  in- 
side institution  prohibited    .    .    . 
State  industries :  state  consumption. 
State  farms :  state  consumption  .    . 

Public  works 

Branding  of  convict-made  goods.   . 
Hours  of  labor 


12 

16 


17 

19 
20 
20 

22 


26 
28 
29 

33 
42 

45 


62 

65 

72 

72 
(381) 


How  is  he  maintained ? 

Bunking 50 

Food 55 

Clothing 57 

How  is  he  cared  for  ? 
Provision   for   health   and    medical 

inspection 62 

Provision  for  religious  training    .    .  65 

Reduction  of  time  for  good  conduct.  72 

Time  for  good  conduct  forfeited.    .  72 

Assistance  to  prisoner's  family.    .    .  89 

Prison  schools 90 

Who  can  set  him  free  ? 

The  Parole  Board 95 

The  Governor  and  Board  of   Par- 
dons may  pardon  him 99 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 103 

Citizenship  regained 103 

Power  of  procreation  lost 105 

Marital  rights  lost 107 

A  criminal  record no 

Use  of  dead  body  for  scientific  pur- 
poses  1 14 


no 


INDEX 


[Vol.  Ill 


NEW  YORK. 

Why  is  he  confined  ? 
Serving  an  indeterminate  sentence  , 
Awaiting  capital  punishment  . 


How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited   ...        17 

Dungeons  permitted 19 

Corporal  punishment  prohibited         22 
Showering  with  cold  water  prohib- 
ited     23 

Crucifix,  yoke  and  buck  prohibited.  23 

How  may  he  be  worked  ? 

Leasing  to  individuals  for  work 
inside  institution  prohibited    .    . 

State  industries  ;  state  consumption. 

Public  works 

Branding  of  convict-made  goods    . 

Manufacture  of  certain  articles  pro- 
hibited     .        ... 

Hours  of  labor 


How  is  he  maintained  ? 

Bunking 

Food 


How  is  he  cared  for  ? 
Provision    for   health  and    medical 

inspection 

Provision  for  religious  teaching    .  . 
Reduction  of  time  for  good  conduct. 

Grading  of  prisoners 

Wage  permitted 

Wage  forfeited 

Prison  schools 


Who  can  set  him  free  ? 

The  Parole  Board 95 

The  Governor  may  pardon  him  .  .    98 

What  specific  disabilities  are  caused 
by  a  prison  sejitetice  ? 

Citizenship  lost 103 

Power  of  procreation  lost    ....  106 

Marital  rights  lost 107 

A  criminal  record no 

NORTH  CAROLINA. 

What  IS  the  status  of  the  prisoner  ? 
The  property  of  the  state    ....      4 

Why  is  he  coi^fined? 

Working  off  a  fine  and  costs   ...  12 

Serving  a  fixed  sentence  .....  13 

Awaiting  capital  punishment  .    .  16 

How  may  he  be  punished  ? 
Cruel  and  unusual  punishment  pro- 
hibited      17 

(382) 


How  viay  he  be  worked  ? 

Leasing  10  indivuiuals  tor  work  out- 
side institution  permitted  ....     25 

Leasing  to  individuals  for  work  in- 
side institution  permitted  ....     27 

Public  works .    .  ...        .    .    35 

State  farms;  community  consump- 
tion     38 

Hours  of  labor 46 

H010  is  he  maintained ? 

Bunking .    .     50 

Food 55 

Clothing 57,  58 

H01.V  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection      ....  62 

Provision  for  religious  teaching  .    .  65 

Reduction  of  time  for  good  conduct.  73 

Time  for  good  conduct  forfeited.    .  73 

Wage  permitted   ......  84 

Who  can  set  him  free  ? 
The  Governor  may  pardon  him.    .    98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost .103 

Citizenship  regained     .             .    .       103 
Use  of  dead  body  for  scientific  pur- 
poses   114 

NORTH  DAKOTA. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state  .  .  .4 

Why  is  he  confined? 

Working  off  a  fine  and  costs  8 

Serving  an  indeterminate  sentence.  14 

Awaiting  capital  punishment  ...  16 


How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited  


17 


How  may  he  be  worked  ? 
Leasing  to  individuals  for  work  in- 
side institution  prohibited    ...     26 
State  industries;  state  consumption.  29 

Public  works  permitted 35 

State  farms ;    community  consump- 
tion     38 

State    factories ,     community    con- 
sumption     39 

Hours  of  labor 45 

How  is  he  maintained  ? 

Bunking    ....            50 

Food 55 

Clothing 58 


No.  4] 


INDEX 


131 


How  is  he  cared  f 07-  ? 
Provision  for  health  and  medical  in- 
spection .  62 

Provision  for  religious  teaching  ,    .  65 

Reduction  of  time  tor  good  conduct.  73 

Time  for  good  conduct  forfeited  .  .  73 

Wage  permitted    .  .    .  84 

Who  can  set  him  free  ? 

The  Parole  Board 96 

The  Governor  and   Board  of  Par- 
dons may  pardon  him  ....     99 
What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost  .  104 

Citizenship  regained 104 

Marital  ris);hts  lost 107 

A  criminal  record no 

Use  of  dead  body  for  scientific  pur- 
poses    ....  1 14 


OHIO. 

What  is  the  status  of  the  prisoner  ? 

The  property  of  the  state 

Why  is  he  confined? 
Working  off  a  fine  ard  costs  .    .    . 
Serving  an  indeterminaie  sentence. 
Awaiting  capital  punishment  ,    .    . 

How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited   

How  may  he  be  worked? 
Leasing  to  individuals  for  work  in- 
side institution  prohibited    .    .    . 
Stale  industries  :  state  consumption. 
State  farms  :  state  consumption 

Public  works 

Limitation  of  number  of  convicts  i" 

one  industry 

Branding  of  convict-made  good.< 

Hours  of  labor 

How  is  he  i/iiiin/dined ? 
Bunking.    .    .  .... 

Food  .    .  .    . 

How  is  he  cared  for  ? 
Provision   for  health    and    medical 

inspection  . 

Provision  for  religious  teaching  .  . 
Reduction  of  time  for  good  conduct. 
Time  for  good  conduct  forfeited.  . 
Special  favors  for  good  conduct  per- 
mitted     

Grading  of  prisoner.    .  ... 

Wage  permitted 

Wage  forfeited 

Industrial  training 

Who  can  set  him  free? 

The  Parole  Board 

The  Governor  may  pardon  him.    . 


17 


46 


62 

65 
74 

74 

77 
79! 
84  I 
84; 
91  i 

961 

98 

(38.: 


What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 
Citizenship  lost .    .  .    .  104 

Citizenship  regained 104 

Marital  rights  lost 107 

A  criminal  record Ill 

Use  of  dead  body  for  scientific  pur- 
poses   115 

OKLAHOMA. 

Why  is  he  coiifined  ? 
Working  off  a  tine  and  costs   ...       8 
Awaiting  capital  punishment    ...     16 

How  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited  17 

Solitary  confinement  permitted  .  .  19 
Shackles  and  chains  permitted  ,    .     20 

How  may  he  be  worked? 
Leasing  to  individuals  for  work  in- 
side institution  prohibited    ...     26 

Public  works 35 

Branding  of  convict-made  goods  .  43 
Hours  of  labor  ...  .    .  46 

How  is  he  vunniaiiied? 

Bunking  ...  5^ 
Food  ...  .55 
Clothing 58 

How  is  he  cared  for  ? 
Provision   for   health   and    medical 

inspection 63 

Provision  for  religious  teaching  .    .     65 

Who  can  set  him  free  ? 
The  Governor  may  parole  him  .    .    92 
The   Governor  and  Board  of  Par- 
dons may  pardon  him 99 

What  specific  disabilities  are  eaused 
by  a  prison  sentence  ? 

Citizenship  lost 104 

Marital  rights  lost 107 

A  criminal  record  .111 

OREGOX. 

What  is  the  status  of  iJtc  prisoner  ? 
The  property  of  .4 

Why  is  he  coiijaiui  ? 
Working  off  a  fine  and  costs  .    .    -  7,  8 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  ...     16 


Hoiv  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited   17 

Dungeons  permitted 19 


132 


INDEX 


[\"OL.   Ill 


Iloii)  may  he  be  ivorked  ? 
Leasing  to  individuals  for  work  in- 
side institution  permitted  ....    27 
Leasing  to  individuals  for  work  in- 
side institution  prohibited    ...     27 

Public  works 35 

State   farms;  community  consump- 
tion     38 

Branding  of  convict-made  goods.  .  43 
Hours  of  labor  .    ,  45 

H(nu  is  he  viaintained ? 

Bunking    .        .    .        51 

Food  . .    56 

Ho'iv  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection   63 

Reduction  of  time  for  good  conduct 
permitted  ...  ....     74 

Time  for  good  conduct  forfeited  .  .    74 

Wage  permitted 85 

Wage  forfeited 85 

Who  can  set  him  free  ? 
The  Governor  may  pardon  him  .  .     9S 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost .  104 

Citizenship  regained 104 

Marital  rights  lost 107 

A  criminal  record     .         ill 

Use  of  dead  body  for  scientific  pur- 
poses      ....  115 

PENNSYLVANIA. 

Why  is  he  confined  ? 
Serving  an  indeterminate  sentence.    15 
Awaiting  capital  punishment  ...     16 

Hozi)  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited  ....        17 

Solitary  confinement  permitted  .  .  19 
Shackles  and  chains  permitted  .    .    20 

How  may  he  be  worked  ? 
Leasing  to  individuals  for  works  in- 
side institution  prohibited     ...     27 
State  industries  ;  state  consumption.  29 

Public  works 35 

State  farms;    community  consump- 
tion   38 

Limitation  of  number  of  convicts  in 
one  industry  ...  ...     40 

Use  of  machinery  prohibited  ...  41 
Branding  of  convict-made  goods.  .  43 
Hours  of  labor 45 

How  is  he  maijitaincd ? 

Bunking 51 

Food 56 


How  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection   63 

Provision  for  religious  teaching  .  .  65 
Reduction  of  time  for  good  conduct.  74 
Time  for  good  conduct  forfeited  .  74 
Special    favors    for    good    conduct 

permitted  ...        77 

Wage  permitted 85 

Who  can  set  hiju  free  ? 

The  Parole  Board 96 

The  Governor  and  Board  of  Pardons 
may  pardon  him  ......     99 

What  specific  disabilities  are  cazised 
by  a  prison  sentence  ? 

Citizenship  not  forfeited 105 

Marital  rights  lost 107 

A  criminal  record 1 1 1 

Use  of  dead  body  for  scientific  pur- 
poses    1 15 

RHODE  ISLAND. 

What  is  the  status  of  the  prisoner  ? 
The  ward  of  the  state 3 

Why  is  he  confined  ? 

Working  off  a  fine  and  costs   ...  10 

Serving  a  fixed  sentence     .    .        ■  ^Z 

Prohibition  of  capita)  punishment  .  15 

How  may  he  be  punished ? 
Cruel  and  unusual  punishments  pro- 
hibited     17 

Corporal  punishment  permitted  .    .     22 

How  may  he  be  worked  ? 
Leasing  to  individuals  for  work  in- 
side institution  permitted     ...     27 

Hours  of  labor 46 

Ho'lV  is  he  7naintained ? 
Bunking  .  .51 

Food 56 

Clothing 57,  58 

How  is  he  cared  for  ? 
Provision   for   health  and    medical 

inspection 63 

Provision  for  religious  teaching  .  .  65 
Reduction  of  time  for  good  conduct.  75 
Time  for  good  conduct  forfeited  .  75 
Wage  permitted 85 

Who  can  set  him  free  ? 
The  Legislature  may  pardon  him  .  100 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost .    .  104 

Citizenship  regained  ...  104 

Marital  rights  lost 107 

A  criminal  record 1 1 1 


(384) 


No.  4] 


INDEX 


I 


SOUTH  CAROLINA. 

Why  is  he  confined? 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  .    .    .     16 

How  may  he  be  punished? 
Cruel  and  unusual  punishments  pro- 
hibited     17 

Solitary  confinement  permitted  .    .  19 

Blood  hounds  permitted 19 

Shackles  and  chains  permitted  .    .  20 

Hotu  may  he  be  wo7-ked ? 
Leasing  to  individuals  for  work  out- 
side institution  permitted.    ...    25 
Public  viforks 35 

How  is  he  maintained? 

Bunking 51 

Food 65 


How  is  he  cared  for  ? 
Provision   for  health    and    medical 

inspection 63 

Provision  for  religious  teaching  .    .    65 

Who  can  set  him  free  ? 

'  The  Governor  and  Board  of   Par- 
dons may  pardon  him 99 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 104 

Citizenship  regained 104 

Use  of  dead  body  for  scientific  pur- 
poses .        115 

SOUTH  DAKOTA. 


Why  is  he  confined ? 
Working  off  a  fine  and  costs  .    .    . 
Serving  an  indeterminate  sentence. 
Awaiting  capital  punishment  ,    ,    . 

Plo'tu  may  he  be  punished  ? 
Cruel  and  unusual  punishment  pro- 
hibited    

Dungeons  permitted 

Shackles  and  chains  permitted  .    . 

How  may  he  be  worked  ? 

Leasing  to  individuals  for  work  in- 
side institution  permitted'.  .    .    , 

Public  works 

State  farms ;  community  consump- 
tion      

Work  injurious  to  health  prohibited. 

Hours  of  labor 

How  is  he  maintained  ? 

Bunking 

Food 

Clothing    ...        


52 

58 
(38 


How  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection   63 

Reduction  of  time  for  good  conduct.  75 
Time  for  good  conduct  forfeited  .  .    75 
Special  favor  for  good  conduct  per- 
mitted     77 

Wage  permitted    ....  85 

Who  can  set  him  free  ? 

The  Parole  Board  9^ 

The  Governor  and  Board  of  Par- 
dons may  pardon  him 99 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 104 

Citizenship  regained 104 

Marital  rights  lost 107 

Use  of  dead  body  for  scientific  pur- 
poses  115 

TENNESSEE. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state     ....      4 

Why  is  he  confined? 
Working  ofit  a  fine  and  costs   ...     11 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  ...     16 

Hozv  may  he  be  punished  ? 

Cruel  and  unusual  punishment  pro- 
hibited      17 

Punishment  exceeding  hard  labor 
prohibited  .  .         18 

Solitary  confinement  permitted  .    .     19 

Reduction  of  food  permitted    ...     21 

Hoii)  may  he  be  worked  ? 

Leasing  to  individuals  for  work  out- 
side institution  permitted     ...     25 

Leasing  to  individuals  for  work  out- 
side institution  prohibited    ...     24 

Leasing  to  individuals  lor  work  in- 
side institution  permitted  ....     27 

Public  works 36 

State  farms ;  community  consump- 
tion    . 38 

State  factories;  community  con- 
sumption   ....  39 

Competition  with  free  labor  prohib- 
ited   39 

Hours  of  labor 45 

How  is  he  maintained  ? 

Bunking 52 

Food 56 

Clothing 57,  58 

How  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 
spection   63 

5) 


134 


INDEX 


[Vol.  Ill 


Provision  for  religious  teaching  .    .  65 
Reduction  of  time  for  good  conduct.  75 
Time  for  good  conduct  forfeited  .  .  75 
Special  favor  for  good  conduct  per- 
mitted      77 

Prison  schools 90 

Who  can  set  him  free  ? 
The  Governor  may  pardon  him   .  .    98 

What  specific  disabilities  are  caused 
by  a  prison  setitence  ? 

Citizenship  lost 104 

Citizenshif)  regained 104 

Marital  rights  lost 107 

A  criminal  record iii 

Use  of  dead  body  for  scientific  pur- 
poses    115 

TEXAS. 

Why  is  he  confined? 

Working  off  a  fine  and  costs   ...      6 
Serving  a  fixed  sentence     .    .  13 

Awaiting  capital  punishment  ...     16 

IIoTv  7nay  he  be  punished  ? 

Cruel  and  unusual  punishments  pro- 
hibited     18 

Corporal  punishment  permitted  .    .     22 

Plow  may  he  be  worked  ? 

Public  works 36 

State   farms  ;    community  consump- 
tion      38 

JJow  is  he  maintained ? 

Bunking     .    .        c2 

Food .....  56 

Clothine    . c7 


lloxv  is  he  cared  for  ? 

Provision    for   health   and    medical 

inspection 

Provision  for  religious  teaching  ,    . 

Grading  of  prisoners 

Prison  schools 

Prison  libraries 


Who  can  set  him  free  ? 

The  Parole  Board 97 

The  Governor  may  pardon  him  .  .     98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 104 

Citizenship  regained 104 

Marital  rights  kst 107 

Use  of  dead  body  for  scientific  pur- 
poses     116 


UTAH. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state 4 

Why  is  he  confined? 

Working  off  a  fine  and  costs   ...  7 

Serving  a  fixed  sentence 15 

Awaiting  capital  punishment  ...  16 

Hozu  may  he  be  punished ? 

Cruel  and  unu-ual  punishments  pro- 
hibited     .  18 

Solitary  confinement  permitted,  .    .  19 

Corporal  punishment  permitted  .    .  23 

Corporal  punishment  prohibited.    .  22 
Showering  with    cold   water    pro- 

hibited 23 

IIcw  may  he  be  worked? 

Leasing  to  individuals  for  work  cut- 
side  institution  prohibited    ...     24 

Leasing  to  individuals  for  work  in- 
side institution  prohibited    ...     27 

State  industries  :  state  con.sumption.  29 

Public  works  permitted 36 

State  farms:  community  consump- 
tion.  .         .  38 

Competition  with  free  labor  pro- 
hibited      .        •    •     39 

Manufacture  of  goods  manufactured 
by  free  industries  in  the  state  pro- 
hibited   41 

Hours  of  labor  .    .  .45 

How  is  he  ?nai?itatntd .-' 
Bunking 52 


Food 


s6 


IJoto  is  he  cared  for  ? 
Provision    for    health    and    medical 

inspection 63 

Provision  for  religious  teaching  .    .  66 

Reduction  of  time  for  good  conduct.  75 

Time  for  good  conduct  forfeited.    .  75 

Grading  of  prisoners 80 

Wsge  permitted   .  86 

Prison  schools   .    .  90 

Prison  libraries .    .  90 

Who  can  set  him  free  ? 

The  Governor  and  Board  of   Par- 
dons may  pardon  him 100 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost .  104 

Marital  rights  lost io8 

A  criminal  record iii 

Use  of  dead  body  for  scientific  pur- 
poses   116 


(386) 


No.  4] 


INDEX 


135 


VERMONT. 

What  is  the  status  of  the  prisoner  ? 
The  ward  of  the  stale 4 

Why  is  he  confined? 

Working  off  a  hne  and  costs    ...  8 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  ...  16 

Ho'w  may  he  be  zvorked  ? 
Leasir.g  to  initividuals  for  work  in- 
side institution  permitted  ....     27 

Public  works 37 

Hours  of  labor 46 

Hozo  is  he  maintained  ? 

Bunking 52 

Food 56 

Hotu  is  he  cared  for  ? 

Provision  lor  rtjigious  teachui^  .    .  66 

Reduction  of  time  for  good  conduct.  76 

Time  for  good  conduct  forfeited  .  .  76 

Wage  permitted 86 

W'age  forfeited 86 

Prison  schools 90 

Prison  libraries 90 

Who  can  set  him  free  ? 
The  Governor  may  pardon  him 

What  specific  disabilities  are  cattsed 

by  a  prison  sentence  ? 
Citizenship  not  iorfeued  .  . 

Marital  rights  iosr  .           ... 
Use  of  dead  body  for  scientific  pur 
poses 

VIRGINIA. 

Why  is  he  confined  ? 
Working  oft  a  line  ana  costs    ...     1 1 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  ...     16 

How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pre- 

hibited    ....        18 

Dungeons  permitted     ...  19 

Bloodhounds  permitted 19 

Reduction  of  food  permitted  ...  21 

Gag,  iron  mask,  etc.,  permitted  .  .  21 

H01V  may  he  be  zvorked  ? 
Leasing  to  individuals  for  work  in- 
side institution  permitted  ....     27 
State  industries  ;  state  consumption.   29 

Public  works 3^ 

State   farms;    comniunily  consump- 
tion      .    .        •    38 

State     factories;     community    con- 
sumption     39 

(3 


98 


105 
iO(i 

116 


How  is  he  maintained  ? 

Bunking 5^ 

Food 56 

Clothing    .    .        57 

How  is  he  cared f 01  ? 
Provision    for   health  and    medical 

inspection 63 

Reduction  of  time  for  good  conduct.  76 
Wage  for  overtime  work  permitted.   88 

Who  can  set  him  free  ? 
The  Governor  may  pardon  him  .  .     98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 104 

Marital  rights  lost 108 

A  criminal  record .  1 1 1 

Use  of  dead  body  for  scientific  pur- 
poses          116 

WASHINGTON. 

Hozv  is  he  confined  ? 

Working  off  a  fine  and  costs    ...  6 

Serving  a  fixed  sentence  ...         .  13 

Awaiting  capital  punishment  ...  16 

How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited    18 

Shackles  and  chains  permitted    .    .     20 

How  may  he  be  worked  ? 

Leasing  to  indiviilua-ls  for  work  in- 
side institution  prohibited    ...     27 

Public  works     . 37 

State  factories;  community  con- 
sumption     39 

Hours  of  labor 46 

How  is  he  mainiaitied  ? 

Bunking    ...        52 

Food 56 

Clothing    ...        57 

Horv  is  he  cared  for  ? 
Provision  for  health  and  medical  in- 

specuon 64 

Provision  for  religious  teaching  .  .  66 
Reduction  of  time  for  good  conduct.  76 
Time  for  good  conduct  forfeited  .  .    76 

Who  can  set  him  free? 
The  Governor  may  pardon  him      .    98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 
Citizenship  lost  ........  104 

Power  of  procreation  lost  ...  106 

Marital  rights  lost 108 

A  criminal  record 1 1 1 

Use  of  dead  body  for  scientific  pur- 
poses    116 


s-) 


1^6 


INDEX 


WEST  VIRGINIA. 

Why  is  he  co7tfined? 

Working  off  a  fine  and  costs  .    .    .  lo 

Serving  a  fixed  sentence 13 

Awaiting  capital  punishment  ...  16 

How  may  he  be  punished? 
Cruel  and  unusual  punishments  pro- 
hibited   18 

Shackles  and  chains  permitted    .    .     20 

Hoio  may  he  be  worked? 
Leasmg  to  individuals  for  veork  in- 
side institution  permitted.    ...     28 
State  industries:   state  consumption.   29 
Hours  of  labor 45 

How  is  he  fnaiiitained ? 

Bunking 52 

Food  ...        57 

Hoio  is  he  cared  for  ? 
Provision    for    health    and    medical 
inspection 64 

Who  can  set  him  free  ? 
The  Governor  may  pardon  him  .    .    98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 105 

Marital  rights  lost 108 

A  criminal  record Ill 

Use  of  dead  body  for  scientific  pur- 
poses ...        117 

WISCONSIN. 

What  is  the  status  of  the  prisoner  ? 
The  property  of  the  state    ....      4 

Why  is  he  confined ? 

Working  ofT  a  fine  and  costs   ...  8 

Serving  a  fixed  sentence 13 

Prohibition  of  capital  punishment  .  1 5 

Hoio  may  he  be  punished  ? 
Cruel  and  unusual  punishment  pro- 
hibited   18 

Solitary  confinement  permitted  .    .     19 
Corporal  punishment  prohibited  .  .     22 

Hoxo  may  he  be  worked  ? 
Leasing  to  individuals  for  work  in- 
side institution  permitted  ....     28 

Public  works  prohibited 30 

State  farms  ;  community  consump- 
tion     38 

State    factories ;    community    con- 
sumption  39 

Branding  of  convict-made  goods    .    43 
Hours  of  labor 45 


Hotv  is  he  maintained  ? 

Bunking 53 

Food 57 

Clothing  .  .        ...  58 

Hi/to  is  he  cared  for  ? 
Provision    for   health    and  medical 

inspection ...  64 

Provision  for  religious  teaching  .    .  66 

Reduction  of  time  for  good  conduct.  76 

Time  for  good  conduct  forfeited  .  .  76 
Special    favors    for   good    conduct 

permitted .  78 

W;-ge  permitted 86 

Prison  schools  . 90 

Prison  libraries 91 

Who  can  set  him  free  ? 

The  Parole  Board 97 

The  Governor  may  pardon  him  .  .    98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 105 

Citizenship  regained 105 

Marital  rights  lost 108 

A  criminal  record m 

Use  of  dead  body  for  scientific  pur- 
poses   117 

WYOMING. 

Why  is  he  confined  ? 
Working  off  a  fine  and  costs     .    .  9,  lo 
Serving  an  indeterminate  sentence.    15 
Awaiting  capital  punishment  .        .     16 

How  may  he  be  punished  ? 
Cruel  and  unusual  punishments  pro- 
hibited   18 

Hoio  may  he  be  worked  ? 
Leasing  to  individuals  for  work  in- 
side institution  prohibited    ...     27 
State  industries ;  state  consumption,  29 

Public  works 37 

Provision    for   health   and   medical 

inspection 64 

Provision  for  religious  teaching  .  .  66 
Reduction  of  time  for  good  conduct.  76 
Time  for  good  conduct  forfeited     .     76 

Wage  permitted 86 

Wage  forfeited 86 

Who  can  set  him  free  ? 

The  Parole  Board 97 

The  Governor  may  pardon  him     .    98 

What  specific  disabilities  are  caused 
by  a  prison  sentence  ? 

Citizenship  lost 105 

Citizenship  regained 105 

Marital  rights  lost 108 

A  criminal  record ill 


(388) 


PROCEEDINGS 

OF  THE 

ACADEMY  OF  POLITICAL  SCIENCE 

IN  THE  CITY  OF  NEW  YORK 


Volume  III 

1912-1913 


EDITED   BY 

HENRY  RAYMOND  MUSSEY 


The  Academy  of  Political  Science 

Columbia  University,  New  York 

1913 


Copyright  by 
The  Academy  of  Political  Science 


CONTENTS 


I.     YEARBOOK  OF  THE  ACADEMY 

Constitution  and  By-Laws 3 

Officers  of  the  Academy 7 

List  of  Members 8-48 

IL     EFFICIENT  GOVERNMENT 

Goodno-jj,  Fratik  y.                  Judicial    Interpretation    of    Constitutional    Pro- 
visions        49 

Thompson,  J.  David  The  Amendment  of  the  Federal  Constitution  .    .       65 

Ford,  Henry  yones  The  Reorganization  of  State  Government    ...       78 

Lewis,  William  Draper  The  Recall  of  Judicial  Decisions 85 

Ashley,  Clarence  The  Recall  of  Judicial  Decisions 96 

Sinith,  Munroe  The    Development    of    American    Constitutional 

Law 100 

Discussion 118 — 120 — 121  — 123 

Henry  Rogers  Seager,  Miles  M.  Dawson 
Stone,  Harlan  F.                      The  Issues  Involved  in  the  Methods  of   Select- 
ing and  Removing  Judges 124 

Hand,  Learned                          The  Elective  and  Appointive  Methods  of  Selec- 
tion of  Judges 1 30 

Roe,  Gilbert  E,  The  Recall  of  Judges ...     141 

Dougherty,  y.  Hampden  Substitutes  for  the  Recall  of  Judges 147 

Discussion i57— 159 — 161 — 163 

Richard  S.    Childs,  Everett  P.   Wheeler,  Charles  H.  Hartshorne,  Edward 
D.  Page 

Cleveland,  Frederick  A.  The  Federal  Budget 165 

Willoughby,   W.  F.                   Efficient  Organization  of  the  Personnel  in  Admin- 
istration     180 

Parkinson,  Thomas  I.  Legislation  Drafting 190 

Reinsch,  Paul  S.  The  Initiative  and  Referendum 203 

Addresses  at  the  Anniversary  Dinner 210  228 

Albert  Bushtiell  Hart,  Edgar  T.  Brackett 

Statements  on  the  Direct  Primaries  by : 229-239 

yob  E.  Hedges,  Oscar  S.  Straus  and  William  Sulzer 
Report  of  the  Meeting  of  the  Academy  of  Political  Science 240 

III.     THe'bRYCE  MEETING 

Proceedings  of  the  Meeting  of  the  Board  of  Trustees  in  Conferring  Honorary 

Membership  upon  the  Right  Flonorable  James  Bryce 243 

Lindsay,  Samuel  McCune       Introductory  Remarks 244 

Butler,  Nicholas  Murray        Remarks 246 

Ambassador  Bryce  Reply .    .  248 


iv  CONTENTS 

PAGE 

lY.     THE  CAGED  MAN 

A  Summary  of  Existing  Legislation  in  the  United  States  on  the 
Treatment  ok  Prisoners 

BY 

E.  Siagg   W hi  till 

what  is  the  status  of  the  prisoner 

The  property  of  the  state — The  ward  of  the  state 255 

why  is  he  confined 

To  work  off  a  fine  and  costs.  To  satisfy  a  sentence — Fixed  or  indeter- 
minate.    Awaiting  capital  punishment. 257 

how  may  he  be  punished 

Cruel  and  unusual  punishments — Punishment  exceeding  hard  labor — Soli- 
tary confinement — Dungeons — Blood  hounds — Shackles  and  chains — 
Reduction  of  food — The  gag,  iron  mask,  etc. — Corporal  punishment. — 
Showering  with  cold  water  — Stocks — Crucifix,  yoke,  buck,  etc.  Punish- 
ment injurious  to  mind  or  body — Greater  or  more  severe  punishment 
than  prescribed  by  board.   .  269 

HOW  CAN  he  be  worked 

Leased  to  individuals  for  work  outside  the  institution — Leased  to  individ- 
uals for  work  inside  the  institution — The  state  may  work  him — State  indus- 
tries for  state  consumption — Farms  for  state  consumption — Public  works — 
State  farms  for  community  consumption — State  factories  for  community 
consumption — Under  specific  limitations — Competition  with  free  labor — 
Number  of  convicts  in  one  industry — Use  of  machinery — Manufacture  of 
goods  manufactured  by  free  industries — Branding  of  prison-made  goods — 
Manufacture  of  certain  articles — Work  injurious  to  health  or  dangerous  to 
person  of  convict — Association  with  free  laborers  during  work  hours — 
Labor  which  can  be  carried  on  without  expense  to  the  county  and  is  con- 
sistent with  safe-keeping  of  prisoners.     Hours  of  labor 276 

HOW  is  he  maintained 

Bunking — Food — Clothing 299 

how  is  he  cared  for 

Health  provisions — Religious  provisions — Educational  provisions — Moral 
education — Reduction  of  time  for  good  conduct — Special  indulgences  for 
good  conduct — Reporting  of  good  conduct  to  board — Merit  marks — 
Grading  of  prisoners — Wage  reward — General  education — Prison  schools — 
Prison  libraries — Industrial  education    ....^ 311 

who  can  set  him  free 

Parole — Pardon — The  Governor — The  Governor  and  Board  of  Pardons — 
Governor  and  Council — Governor  and  Senate — Legislature  .......    344 

what  specific  disabilities  are  caused  by  a  prison  sentence 

Loss  of  citizenship — Change  in  marital  relationship — Loss  of  power  of 
procreation  (vasectomy) — A  criminal  record — Use  of  dead  body  for  scien- 
tific purposes 353 


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