Similar declarations are found in the Declaration of Independence the same year, and the Massachusetts Bill of Rights four years later; but the Virginia definition, being the work of Thomas Jefferson, is both the most compendious and the most concise, and is substantially copied in the Second and Third Amendments of the Federal Constitution. Modern legislation on the subject has found little to improve, although, with the ignorance of constitutional history too often found in modern statutes, we do find State laws which recognize martial law as a really existent domain of English and American jurisprudence. As our greatest jurists have often enough declared: "martial law" is nothing but the will of the commanding officer, the negation of all law, which exists when the courts do not sit and the writ of habeas corpus does not run. Even in these imperial days, I detect no tendency in the legislation of the States, or even of the Federal government in North America, to infringe upon these great principles of freedom. On the contrary, many State constitutions, as well as an act of Congress, declare that the writ of habeas corpus can never be suspended by the executive, but only by the people's representatives in the legislature. The prejudice against standing armies does not seem to be as strong, in that ours has recently been quadrupled in size; but this is probably no more than proportionate to our national expansion. Many of the States in this time of increasing civic disorder have had to give their attention to the suppression of mobs, and correspondingly we very generally find new complete codes governing the militia. Thus statutes are frequent exempting a private soldier from prosecution for murder when he fires under the orders of his commanding officer; and the honest judgment of the commanding officer is made a defence for all acts of his troops in attacking mobs, even to the point of fatalities resulting. Counties or cities are very generally made liable for damage to property done by mobs, and in some States for damage to life done by lynchers; the widow and children of the person lynched may recover damages. In Kansas, by a statute of 1900, it is made a misdemeanor for a bystander to refuse to assist a sheriff in quelling a riotous disorder. Most significant, perhaps, of this militia legislation is that concerning its relation to the labor unions, and more significant still, the too apparent desire of labor unions to prevent their members from serving in the militia. Thus, New York and other States have already found it necessary to enact statutes prohibiting any discrimination against persons because they serve in the militia; prohibiting their employers from discharging them by reason of their necessary absence on such service, and forbidding the labor unions from in any way preventing them, or passing by-laws against their serving in the militia. Such by-laws are, however, unlawful under the common law.
The law-making most in the popular mind on this whole question is that concerning pensions. As is well known, the Federal pension list has swollen to a sum far in excess of the total expense of the standing army of Germany. An enormous number of Spanish War veterans who never even left the country are being added to the list, and their widows will be after them; the last survivor of such may not die before A.D. 2140, and the States themselves have not lagged far behind, all to the enormous corruption of our citizenship; indeed, one or two more wars (which the very motive of such wholesale pensioning is the more likely to bring on) would bankrupt the nation more rapidly than even our battleships. Not only that, but there is a distinct tendency to make a privileged class of veterans, and the sons of veterans—and perhaps we shall find of the sons of sons of veterans—by giving them preference in civic employment and special education, support, or privileges at the State's expense. Sometimes they get pedlar's licenses for nothing; sometimes they are to be preferred in all civic employment; sometimes they have special schools or asylums as well as soldiers' homes; sometimes they are given free text-books in the public schools. The Confederate States have not been behindhand in enacting similar laws for their own soldiers, despite the implied prohibition of the Fourteenth Amendment; but Southern courts have held them void.
The general right to bear arms is frequently restricted by the prohibition of concealed weapons, or of the organization, drilling, and training of armed companies not under State or Federal control, both of which limitations have been held constitutional; and the legislation prohibiting the employment or importation of private armed guards, such as the Pinkerton men, has been already alluded to in our chapter on labor legislation. The precedent for the latter is to be found in the early English legislation against retainers; that is to say, the armed private guard, or "livery," of the great noblemen; whence is derived the custom of putting servants in livery. The legislation against private drill companies is closely allied, and had a somewhat amusing test in Chicago where, during a labor strike, a number of the strike sympathizers organized a so-called drill company and furnished themselves with guns, for the purpose really of intimidating the public and helping the law-breakers. Unfortunately it so happened, for this purpose, that the first time they sallied forth with sword and musket on warfare bent, they were stopped by one or two policemen on the nearest street corner, taken to the station-house, deprived of their arms, and locked up for the night. The next morning a fine was imposed upon their captain, who appealed to the United States Supreme Court without success.[1]
[Footnote 1: Presser v. Illinois, 116 U.S. 252.]
The legislation for giving damages for injuries to property done by mobs was tested after the Pittsburg riots of 1873, and that yellow metropolis was mulcted in heavy damages, which it took twenty-three years to pay off. But no damages in this country were ever given for criminal homicide directly, although there is an interesting case in the Federal Circuit Court of a gentleman in Georgia who was awaited by a party of neighboring gentlemen with the intention of shooting him up when he arrived. One of his friends secretly got to the railway station and sent a telegram to his wife, shortly to become his widow, not to come. The Western Union Telegraph Company delayed the message, its operator being in sympathy with the gentlemen of the neighboring town, and the widow failed to recover damages from the telegraph company. But these modern statutes in Ohio and the Southern States, making towns responsible in a definite sum to the kin of a murdered man, are the exact re-enactment of the early Anglo-Saxon law; except that the blood damages—the were gild—were in those days put upon the neighbors or the kin of the enemy.
"Organized labor" is hostile to the use of the militia, still more of the regular army, in any labor dispute or riot resulting therefrom. It is never justifiably hostile where actual offences are committed, but there is something to be said, at least there is some precedent for their hostility, in cases where by the accident of Federal jurisdiction the whole power of the United States army is called in to back up the injunction of a judge, perhaps improperly issued. That is to say, if the parties to the dispute are citizens of the same State the National government may not interfere except, of course, where the mails or inter-State commerce are obstructed; but, by the mere accident that plaintiff and defendant come from different States—and this may nearly always be made the case by the plaintiff corporation, if it be a citizen of another State than where it owns its mine or operates its mill—it may always pick out strike leaders, walking delegates, who are citizens of another State, so that the litigation may be brought in a United States court. If, then, the orders or processes of that Federal court be interfered with, under the law of our Constitution the entire Federal government, first the Federal marshals and then the Federal army, may be called into the fight.
CHAPTER XIV
OF POLITICAL RIGHTS
Most important of these are the right to assemble, and the right of free election. The right of political assembly and petition is another principle which has been much broadened by American constitutions. In England the right of public meeting undoubtedly existed from early times, but it was tied to the right of petitioning Parliament, which obviously limited its scope; and always strongly contested by the kings. Many riot acts were passed, both by the Tudors and by the Stuarts, which sought to limit and restrict it, and even to make any meeting of more than twelve men a riotous and criminal assembly. Indeed, the history of the attempt of the authorities to prevent riotous assemblies quasi-political runs all the way from Jack Cade's Rebellion in 1452 to the Philadelphia street railway strike in 1910. By an Act of 1549 unlawful assemblies of twelve "to alter laws or abate prices" were made unlawful—one of the reasons that gave rise to the English notion that a simple strike was criminal. This, however, has nothing to do with the political right of assembly which, fully recognized by the Massachusetts Body of Liberties in 1641, was not definitely established in England until the Bill of Rights of 1689. Now this principle is cardinal, and so far as I know none of the States have legislated upon the subject, unless the limitation of the injunction writ be such legislation. A statute of Henry VII gave special authority to the Court of Star Chamber over riots; which is precisely the power now objected to by labor leaders when exercised by courts of chancery. But it must be noted that this right of assembly only extends to matters political, and does not cover a meeting held for an end ordinarily unlawful, such as to bring about a riot or to work oppression to others or an injury to the public.
The right of election, however, is much older in England. We find statutes concerning the right of free election, that is, of allowing electors to vote without interference or control, as early as 1275. It is for this reason that almost from the origin of the House of Commons it has been unlawful, or at least uncustomary, for peers of the realm to even speak pending elections to the House of Commons. That House also vindicated its right to judge of elections against Elizabeth, and the principle that it alone shall be the judge remains in full force in the United States, though in modern times in England given to the courts. There is no constitutional principle in England as to the right of suffrage, which in early times was shared in by all free men, or at least landholders. It was in 1429 limited to the forty shillings freeholders, which law has been relaxed by degrees ever since. Our early constitutions recognized both property and educational limitations; these were all done away with at one time, except in Massachusetts and Rhode Island, the former retaining an educational, the latter a property, qualification. They have now been abolished in those States, but taken up in the South, for the purpose, of course, of disfranchising the negro vote.