Our Benevolent Feudalism

by William J. Ghent

CHAPTER V
Our Makers of Law

The dual responsibility which our lawmakers and judges bear, on the one hand to the people, and on the other to the Big Men, produces a chaos of conflicting laws and decisions. For the chartering of business corporations we have the “Delaware theory,” which seems to be to give the applicant whatever he asks for; the “New Jersey theory,” which is a slight modification of the former; and the “Massachusetts theory,” which reserves to the State a certain measure of supervision and control. For the fixing of employers’ liability for injuries to workmen we have a wide range of precedents, from States which hold to the common-law doctrine that practically frees the employer from blame, to those which fix a liability in somewhat definite terms. Factory legislation, regulations for the public health, the determination of a legal workday, the restraining of corporate aggressiveness—these and a score of like questions are variously passed upon or deliberately avoided in the several States. Judicial decisions, too, present a spectacle of the widest diversity.

Nevertheless this chaos shows signs of a gradual reduction to order. The insistent challenge, “Under which king, Bezonian, speak or die!” which perpetually assails all of our legislative and judicial functionaries, sooner or later forces a decision, and naturally it is the stronger rival that wins. How effective is this challenge, how strong is the pressure, Mr. John Jay Chapman has strikingly shown in his “Causes and Consequences,” and the instances that crop out from time to time, like that of the recent tampering with the Supreme Court of Missouri, reveal only a needless confirmation of a known truth. Legislation in behalf of the general welfare and of the industrially dependent classes becomes less frequent and more guarded; and judicial decisions in matters that involve class antagonisms are more frequently given to the dominant class.

I

A marked tendency of recent legislation is that toward giving increased powers to municipal officials. Another is that toward the creation of boards charged with administrative, executive, semi-judicial, and even police powers. The institution of these boards means simply a further removal from the people of the conduct of public affairs. Mr. Leonard A. Blue, in the Annals of the American Academy for November, 1901, gives an interesting view of the subject. “These boards,” he writes, “are practically irresponsible bodies. They are beyond the control of the people, or of any one who is responsible to the people for their actions. Appointed as they are for definite terms of office, they cannot be removed during that term except after an investigation which amounts to an impeachment. The Governor who appoints them in many cases can only appoint a single member, the terms of the others extending beyond his own, so that he can neither mould the policy of the board nor can he be held responsible for it.” And he quotes from one of the messages of the Hon. W. E. Russell, Governor of Massachusetts (1891-93), these words: “The people of the State might have a most decided opinion about the management and work of the departments, and give emphatic expression to that opinion, and yet be unable to control their action. The system gives great power without proper responsibility, and tends to remove the people’s government from the people’s control.” Irresponsible to both the people and the people’s officials as they are, these boards are yet not wholly unsusceptible to outside pressure; they are, as is well known, peculiarly liable to the influence of the Big Men.

II

While legislation moves rapidly enough in the direction of detaching political powers from the people, it shows a growing disinclination to meddle with affairs between magnate and minion. Twelve or fifteen years ago, in certain sections, “labor” legislation had a flourishing career. The number of laws so classified, passed in a single three-year period in New York State, made a record for all time. Labor was then rapidly combining, and its lusty organizations made emphatic demands for protective laws. A Democratic Governor, not wholly regardless of hopes of the Presidential succession, for the time allied himself with the movement and secured the passage of many of these measures. With an alacrity much greater than that with which the Constitution follows the flag, judicial decisions in those days tended to follow the general policy of the party in power, and thus but slight trouble was experienced in securing constitutional sanction.

Other States followed, and for several years the astonishment and indignation of the Big Men were intermittently roused by the spectacle of Jacobinical legislators meddling in affairs outside their province. Mr. F. J. Stimson, in the Atlantic Monthly for November, 1897, informs us that in the ten preceding years 1639 laws relating to labor had been passed in the various States and Territories. This is an average of 3.4 a year for each legislature, though the courts had modified the average somewhat by declaring 114 of these measures unconstitutional. Doubtless among those that escaped the “killing decree” of the courts were a number that benefited the worker, though it is doubtful if any of them served to modify his economic status.

However that may be, it is unquestioned that the tendency toward the enactment of this sort of legislation has suffered a decline. It is hard to fix the point of culmination, though probably it lies somewhere about the years 1896-97. In isolated instances, and under peculiar circumstances, it is conceded there is an occasional revival. The Pennsylvania legislature of 1897 showed a remarkable zeal, shortening the workday of women and minors, limiting child labor, establishing a bureau of mines, and making other regulations. Maryland, in 1898, imposed certain mining regulations and required seats in stores for women workers. Virginia and Massachusetts, in the same year, interfered slightly, the former with an arbitration act. In the spring of 1899, Kansas, Illinois, Colorado, Indiana, Michigan, Nebraska, Washington, and Wisconsin, all addressed themselves more or less earnestly to the redress of certain grievances; and they were followed by Iowa in 1900, by Massachusetts again in the same year, and by Alabama in 1901. In the present year New York, after five years of agitation, reluctantly granted a moderately expressed employers’ liability law.