Part 17 (1/2)
[Footnote 1: Census Reports, 1909, ”Marriage and Divorce,” part I, p.
15.]
Only j.a.pan shows a number of divorces approaching these figures.
She has two hundred and fifteen per one hundred thousand of general population,--about the same as Indiana, which stands eighth in the order of States. But with the exception of j.a.pan no civilized country shows anything like the proportion of divorces that the American States do. Thus, in Great Britain and Ireland there are but two per hundred thousand of population; in Scotland, four; in the German Empire, fifteen; in France, twenty-three, and in the highest country of all, Switzerland, thirty-two, while the average of the entire United States is seventy-three.
The census figures as to the trades or professions in which divorce is most prevalent are amusing, but probably not very significant. It appears, as might be expected, that actors and actresses stand at the head, and next musicians or teachers of music; while clergymen stand very near the bottom of the list, only excelled in this good record by bar-tenders (in Rhode Island) and, throughout the country, by agricultural laborers.
But after all, more important, perhaps, than even marriage and divorce, are the great social changes which arise from the general engaging of women in industrial occupation. In matters of property right we have found they are substantially already on an equality with men, if not in a position of special privilege. Yet, as Herbert Spencer remarked, ”When an abuse which has existed for many centuries is at last on the point of disappearing, the most violent outcry is made against it.” During the century when women were really oppressed,[1] under the power of the husband, given no rights as to their property, their children, or hardly even as to their person, no complaint was heard. Whereas to-day the cry of unjust legislation almost rises to a shriek. The movement for the emanc.i.p.ation of women originated, of course, with Mary Wolstonecraft, about 1812. Her book, which was the first, is certainly one of the longest that have yet been written on the subject. It remained at the time unanswered, and when its author married G.o.dwin she herself seems to have lost interest in the controversy. Nevertheless, little has been added since to the ideas there put forward, save, indeed, for the vote. It is a somewhat curious fact that in all Miss Wolstonecraft's great magazine of grievances and demands for remedying legislation, there is not a single word said about votes by women, or there being such a thing as the right to the ballot.
[Footnote 1: In the trial of Mary Heelers for bigamy (2 State Trials, 498) as late as 1663 the chief justice said, 'If guilty, she must die; a woman hath no clergy.' Yet Mary wrote to her husband, in court, ”Nay, my lord, 'tis not amiss, before we part, to have a kiss!” She was acquitted.]
The industrial condition of the s.e.x in American cities may be summed up with the general phrase ”absolute equality of opportunity,” with a certain amount of special protection. Women are nearly universally required to be given seats in factories and stores, and the laws specially protecting their periods of employment have just been sustained as const.i.tutional in the States of Illinois and Oregon and the Supreme Court of the United States. On the other hand, we are far behind European countries in legislation to protect their health or sanitary conditions. The most radical effort at legislation ever made was undoubtedly that Connecticut bill forbidding employment of married women in factories, which, however, did not become a law. The recent reports of Laura Scott to the American a.s.sociation for Labor Legislation, on Child Labor, 1910, and the Employment of Women, 1909, have already been referred to. From the former, which appeared as we are going to press, we learn that there are prohibited occupations to children in all the States without exception--a statement which certainly would not have been true some years since. These prohibited groups of employment are generally, to male and female, dangerous machinery and mines, and to females also saloons; and there is nearly universally a limitation of all labor to above the age of twelve or fourteen for all purposes, and to above fourteen or sixteen for educational purposes, besides which there is a very general prohibition of acrobatic or theatrical performances. Girls are sometimes forbidden to sell newspapers or deliver messages for telegraph companies or others. Compulsory education is, of course, universal, and the machinery to bring it about is generally based upon a system of certificates or cards, with truant officers and factory inspectors.
According to the encyclopaedias, some five hundred thousand women were employed in England about twenty years ago, of whom about three hundred thousand were in the textile mills. In Ma.s.sachusetts alone there were two hundred and eight thousand women employed, according to the last State census. Neither of these figures include the vast cla.s.s of domestic service and farm labor. The inclusion of this would swell the proportion of adult women employed in gainful occupations to at least one in four, if not one in three. Congress itself has recently been investigating the question whether ”home life has been threatened, marriage decreased, divorce increased out of all proportion, and the birth rate now barely exceeds the death rate, so that the economic and social welfare of the country is menaced by this army of female wage earners” (see _Boston Herald_, April 2, 1908). It appeared that in 1900 one million seven hundred and fifty thousand children were at work between the ages of ten and fifteen, of whom five hundred thousand were girls. This and other considerations have led to the movement for national child-labor laws already discussed.
Perhaps the most dangerous tendency, at least to conservative ideas, is the increasing one to take the children away from the custody of the parents, or even of the mother, and place them in State inst.i.tutions. Indeed, in some Western States it would appear that the general disapproval of the neighbors of the method employed by parents in bringing up, nurturing, educating, or controlling their children, is sufficient cause for the State authorities to step in and disrupt the family by removing the children, even when themselves unwilling, from the home to some State or county inst.i.tution. Any one who has worked much in public charities and had experience with that woeful creature, the inst.i.tutionalized child, will realize the menace contained in such legislation.
Finally, it should be remembered that throughout the United States men are universally liable for their wives' debts, short of some quasi-legal separation; on the other hand, wives are never liable for the debts of their husbands.
XVIII
CRIMINAL LAW AND POLICE
There is no very general tendency toward new legislation in matters of felony, and many States are still content to remain with the common law. Such legislation as there is is mainly concerned with the protection of women and children, alluded to in the last chapter. In matters of less serious offences, of legislation creating misdemeanors or merely declaring certain acts unlawful, there are three main lines: First, legislation usually expressive of the common law against conspiracies of all sorts, combinations both of individuals and of capital, already fully discussed. Next, the general line of legislation in the interest of the health of the public, such as pure food and drug laws, and examination for trade or professional licenses; and finally laws protecting the individual against himself, such as liquor and anti-cigarette or anti-cocaine laws. It is hardly necessary to more than ill.u.s.trate some of these matters. Then there are the laws regulating punishment for crime, laws for probation or parole, indeterminate sentences, etc., all based on the modern theory that reform, not retribution or even prevention, is the basis of penology. Such laws have been held const.i.tutional, even when their result is to arbitrarily increase a man's sentence for crime on account of his past or subsequent conduct. Finally, and most important, there is the legislation regulating the actual trial of cases, indictments, juries, appeals,--the law of court procedure, civil as well as criminal, which for convenience we may consider in this chapter.
Of the first sort of legislation, we have noted that in many States adultery, in many States simple drunkenness, in other States mere single acts of immorality, are made felonies. In 1892 the State laws against food adulteration begin, which, by 1910, have covered milk, b.u.t.ter, maple sugar, and many other subjects. By the Federal pure-food law of 1906, applying to Interstate commerce in such articles, it became advisable for the States to adopt the Federal Act as a State law; also for the sake of uniformity a few States have had the intelligence to do so. The trades of fat-rendering and bone-boiling are made nuisances by statute.
In 1896 we note the first statutes against lynching. In 1897 local option prevails in Texas, and the blue laws of Connecticut are abolished to the extent that recreation on Sundays is no longer prohibited. Local option and anti-lynching laws continue during the next two or three years, and by 1900 twenty-four States have pure-food laws, which, however, are ineffective because they impose no sufficient penalty. In 1903, in consequence of the a.s.sa.s.sination of President McKinley, Was.h.i.+ngton and Wisconsin make the advocating anarchy a felony. Twenty-one more States pa.s.s pure-food laws, and nearly all the States have gone over to local option from State-wide prohibition, to which latter principle only three States now adhere.
In 1904 Mississippi and Virginia adopt more stringent laws against vagrancy, and 1905 is the year of active legislation on the indeterminate sentence, juvenile courts, parole and probation, with two more statutes against mobs and lynching. In 1907 the States are busied with the attempt to enforce their prohibition regulations against the interstate commerce jurisdiction of the Federal government. Solicitation of interstate orders for liquor is forbidden in Mississippi, and it is provided that s.h.i.+pments sent C.O.D. are not to be moved one hundred feet or given away; also, that the mere possession of an internal revenue receipt from the United States government is _prima facie_ evidence of an offence against the State law. Statutes of this kind led to renewed conflict between State and Federal authority. Virginia adopts the statute against giving tips or any commissions; see p. 244 above. In 1908 we find more parole and probation laws, two prohibition and three local-option laws, and four new pure-food statutes.
Coming to matters of court procedure, in 1890 one State provides that there should never be called more than six witnesses for each side in any criminal case, which oddly reminds one of early English trials by compurgation; but is, of course, quite unconst.i.tutional in this country. In 1893 Connecticut adopts a statute that honorably discharged soldiers and sailors addicted to drink are to be ”treated”
free at the State hospital. The definition of the word ”treated”
seems ambiguous, but in any event it is a pleasing reminder of Bishop Berkeley's remark that he would ”rather see England free than England sober.” Some States provide for a jury of eight in criminal cases and for a verdict of three-quarters in civil cases--a statute of questionable const.i.tutionality. Very generally throughout the twenty years studied by us, the States have adopted stricter rules for the admission of attorneys at law to practise at the bar.
In 1895 Pennsylvania yields to the physicians and pa.s.ses a statute forbidding them to disclose communications of patients, but the statute only applies to civil cases. More States provide for verdicts by a majority of the jury. Maryland goes Pennsylvania one better in extending the professional privilege to newspaper reporters; that is to say, we find a statute that they may not be compelled to disclose their sources of information, an excellent statute for the yellow journal. In 1897 California abolishes capital punishment; there has been a general tendency in this direction, of recent years, although some States, having tried the experiment, have returned to it again, as has the Republic of France. In 1899 the privilege from testifying is extended in one State also to trained nurses, and in others to physicians, even in criminal cases, although they may testify with the patient's consent. The same law was adopted in Iowa in 1900, Ohio does away with the common law of libel, except the plaintiff can prove actual malice. By this year, seventeen States expressly allow women to practise law, and twenty-eight do so by implication. The Colorado statute for a three-fourths verdict is held unconst.i.tutional.
The regulation of the liquor traffic is, perhaps, after the labor question, the most universal subject of legislation in occidental nations. Experts on the matter tell us (E.L. Fanshawe, ”Liquor Legislation in the United States and Canada,” Report to Parliament, 1892) that there have hitherto been but three, or possibly four, inventions--universal or State-wide prohibition, local option, license, high or low, and State administration. The last was recently tried in South Carolina with more or less success. Prohibition by a general law does not seem to be effective; local option, on the contrary, does seem to be so. But the general consensus of opinion, to which Mr. Fanshawe comes, and which seems still to be held by most intelligent American publicists, is that on the whole high license works best, and this the women themselves have just voted in Denver; not only because it actually prohibits to a certain extent, but it regulates and polices the traffic, prevents the sale of adulterated liquor, and to a considerable extent the grosser disorders and political dangers that attend the bar-room. On the other hand, the power of licensing should never be granted to any political body, but should be granted under fixed rules (determined by geographical position and the local opposition or desire) by the local government.
These rules should not be arbitrary, and the person applying for license should have the right to appeal to some court.
Matters of bribery and political corruption have been somewhat antic.i.p.ated under Chapter 14. Suffice it here to say that the States very generally have been adopting statutes making bribery criminal and a cause of permanent disqualification from all political right, either voting or holding office, and this applies both to the person bribing and the person receiving the bribe. Bribery by offers or promise of employment is a far more difficult matter, but this matter also certain States have sought to regulate.
There are, of course, thousands and thousands of city ordinances relating to the criminal law, but usually to minor offences or matters of police regulation. Undoubtedly the duplication of them tends to make us not a law-abiding community. It was the present Boston police commissioner who complained that there were more than eleven thousand ordinances in Boston, which everybody was supposed to know. We must let the whole matter go by saying that there is a general attempt at universal police regulation of all the actions of life, at least such as are conducted outside of a man's own house. Sunday laws, Sabbatarian legislation, have, of course, very largely been abandoned, except when restored in the interest, or supposed interest, of labor.
In the State of New York, for instance, barbers could only shave on Sunday in the city of New York and the town of Saratoga; the reasons for the exception are obvious.
Coming to general principles of penology, there is no doubt that of the three possible theories, revenge, prevention, and reform of the criminal, it is the latter that in the main prevails throughout the United States. An investigation was conducted some years since by correspondence with a vast number of judges throughout the world, and it proved that this was also their principle of imposing sentences, in the majority of cases. More radical change is found in that legislation freeing prisoners on parole, providing indeterminate sentences, and in the creation of special courts for boys and young women, with special gaols and reformatories. Jury trial, of course, remains substantially unchanged from the earlier times, only that the jurors are now in most States permitted to read or to have read the newspapers, and that the government has a right of appeal when the verdict has gone for the prisoner on a point of law. This matter, upon President Roosevelt's recommendation, was embodied in an act of Congress.