and crowning disgrace, and jurors would be as reluctant to inflict it as they now are to inflict hanging.

IV.

Testators should not, from the snug security of the grave, utter a perpetual threat of disinheritance or any other uncomfortable fate to deter an American citizen, even one of his own legatees, from applying to the courts of his country for redress of any wrong from which he might consider himself as suffering. The courts of law ought to be open to any one conceiving himself a victim of injustice, and it should be unlawful to abridge the right of complaint by making its exercise more hazardous than it naturally is. Doubtless the contesting of wills is a nuisance, generally speaking, the contestant conspicuously devoid of moral worth and the verdict singularly unrighteous; but as long as some testators really _are_ daft, or subject to interested suasion, or wantonly sinful, they should be denied the power to stifle dissent by fining the luckless dissenter. The dead have too much to say in this world at the best, and it is monstrous and intolerable tyranny for them to stand at the door of the Temple of Justice to drive away the suitors that themselves have made.

Obedience to the commands of the dead should be conditional upon their good behavior, and it is not good behavior to set up a censure of actions at law among the living. If our courts are not competent to say what actions are proper to be brought and what are unfit to be entertained let us improve them until they are competent, or abolish them altogether and resort to the mild and humane arbitrament of the dice. But while courts have the civility to exist they should refuse to surrender any part of their duties and responsibilities to such exceedingly private persons as those under six feet of earth, or sealed up in habitations of hewn stone. Persons no longer affectible by human events should be denied a voice in determining the character and trend of them. Respect for the wishes of the dead is a tender and beautiful sentiment, certainly. Unfortunately, it can not be ascertained that they have any wishes. What commonly go by that name are wishes once entertained by living persons who are now dead, and who in dying renounced them, along with everything else. Like those who entertained them, the wishes are no longer in existence. "The wishes of the dead,"

therefore, are not wishes, and are not of the dead. Why they should have anything more than a sentimental influence upon those still in the flesh, and be a factor to be reckoned with in the practical affairs of the super-graminous world, is a question to which the merely human understanding can find no answer, and it must be referred to the lawyers. When "from the tombs a doleful sound" is vented, and "thine ear"

is invited to "attend the cry," an intelligent forethought will suggest that you inquire if it is anything about property. If so pa.s.s on--that is no sacred spot.

V.

Much of the testimony in French courts, civil and martial, appears to consist of personal impressions and opinions of the witnesses. All very improper and mischievous, no doubt, if--if what? Why, obviously, if the judges are unfit to sit in judgment By designating them to sit the designating power a.s.sumes their fitness--a.s.sumes that they know enough to take such things for what they are worth, to make the necessary allowances; if needful, to disregard a witness's opinion altogether. I do not know if they are fit. I do not know that they do make the needful allowances. It is by no means clear to me that any judge or juror, French, American or Patagonian, is competent to ascertain the truth when lying witnesses are trying to conceal it under the direction of skilled and conscientiousless attorneys licensed to deceive. But his competence is a basic a.s.sumption of the law vesting him with the duty of deciding.

Having chosen him for that duty the French law very logically lets him alone to decide for himself what is evidence and what is not. It does not trust him a little but altogether. It puts him under conditions familiar to him--makes him accessible to just such influences and suasions as he is accustomed to when making conscious and unconscious decisions in his personal affairs.

There may be a distinct gain to justice in permitting a witness to say whatever he wants to say. If he is telling the truth he will not contradict himself; if he is lying the more rope he is given the more surely he will entangle himself. To the service of that end defendants and prisoners should, I think, be compelled to testify and denied the advantage of declining to answer, for silence is the refuge of guilt In endeavoring by austere means to make an accused person incriminate himself the French judge logically applies the same principle that a parent uses with a suspected child. When the Grandfather of His Country arraigned the wee George Washington for arboricide the accused was not carefully instructed that he need not answer if a truthful answer would tend to convict him. If he had refused to answer he would indubitably have been lambasted until he did answer, as right richly he would have deserved to be.

The custom of permitting a witness to wander at will over the entire field of knowledge, hearsay, surmise and opinion has several distinct advantages over our practice. In giving hearsay evidence, for example, he may suggest a new and important witness of whom the counsel for the other side would not otherwise have heard, and who can then be brought into court. On some unguarded and apparently irrelevant statement he may open an entirely new line of inquiry, or throw upon the case a flood of light. Everyone knows what revelations are sometimes evoked by apparently the most insignificant remarks. Why should justice be denied a chance to profit that way?

There is a still greater advantage in the French "method." By giving a witness free rein in expression of his personal opinions and feelings we should be able to calculate his frame of mind, his good or ill will to the prosecution or defense and, therefore, to a certain extent his credibility. In our courts he is able by a little solemn perjury to conceal all this, even from himself, and pose as an impartial witness, when in truth, with regard to the accused, he is full of rancor or reeking with compa.s.sion.

In theory our system is perfect. The accused is prosecuted by a public officer, who having no interest in his conviction, will serve the State without mischievous zeal and perform his disagreeable task with fairness and consideration. He is permitted to entrust his defense to another officer, whose duty it is to make a rigidly truthful and candid presentation of his case in order to a.s.sist the court to a just decision. The jurors, if there are jurors, are neither friendly nor hostile, are open-minded, intelligent and conscientious. As to the witnesses, are they not sworn to tell the truth, the whole truth (in so far as they are permitted) and nothing but the truth? What could be finer and better than all this?--what could more certainly a.s.sure justice? How close the resemblance is between this ideal picture and what actually occurs all know, or should know. The judge is commonly an ignoramus incapable of logical thought and with little sense of the dread and awful nature of his responsibility. The prosecuting attorney thinks it due to his reputation to "make a record" and tries to convict by hook or crook, even when he is himself persuaded of the defendant's innocence. Counsel for the defense is equally unscrupulous for acquittal, and both, having industriously coached their witnesses, contend against each other in deceiving the court by every artifice of which they are masters. Witnesses on both sides perjure themselves freely and with almost perfect immunity if detected. At the close of it all the poor weary jurors, hopelessly bewildered and dumbly resentful of their duping, render a random or compromise verdict, or one which best expresses their secret animosity to the lawyer they like least or their faith in the newspapers which they have diligently and disobediently read every night Commenting upon Rabelais' old judge who, when impeached for an outrageous decision, pleaded his defective eye-sight which made him miscount the spots on the dice, the most distinguished lawyer of my acquaintance seriously a.s.sured me that if all the cases with which he had been connected had been decided with the dice substantial justice would have been done more frequently than it was done. If that is true, or nearly true, and I believe it, the American's right to sneer at the Frenchman's "judicial methods" is still an open question.

It is urged that the corrupt practices in our courts of law be uncovered to public view, whenever that is possible, by dial impeccable censor, the press. Exposure of rascality is very good--better, apparently for rascals than for anybody else, for it usually suggests something rascally which they had overlooked, and so familiarizes the public with crime that crime no longer begets loathing. If the newspapers of the country are really concerned about corrupter practices than their own and willing to bring our courts up to the English standard there is something better than exposure--which fatigues. Let the newspapers set about creating a public opinion favorable to non-elective judges, well paid, powerful to command respect and holding office for life or good behavior. That is the only way to get good men and great lawyers on the Bench. As matters are, we stand and cry for what the English have and rail at the way they get it. Our boss-made, press-ridden and mob-fearing paupers and ignoramuses of the Bench give us as good a quality of justice as we merit A better quality awaits us whenever the will to have it is attended by the sense to take it.

ARBITRATION

THE universal cry for arbitration is either dishonest or unwise. For every evil there are quack remedies galore--especially for every evil that is irremediable. Of this order of remedies is arbitration, for of this order of evils is the inadequate wage of manual labor. Since the beginning of authentic history everything has been tried in the hope of divorcing poverty and labor, but nothing has parted them. It is not conceivable that anything ever will; success of arbitration, antecedently improbable, is demonstrably impossible. Most of the work of the world is hard, disagreeable work, requiring little intelligence. Most of the people of the world are unintelligent--unfit to do any other work. If it were not done by them it would not be done, and it is the basic work.

Withdraw them from it and the whole superstructure would topple and fall. Yet there is too little of the work, and there are so many incapable of doing anything else that adequate return is out of the question. For the laboring _cla.s.s_ there is no hope of an existence that is comfortable in comparison with that of the other cla.s.s; the hope of an individual laborer lies in the possibility of fitting himself for higher employment--employment of the head; not manual but cerebral labor. While selfishness remains the main ingredient of human nature (and a survey of the centuries accessible to examination shows but a slow and intermittent decrease) the cerebral workers, being the wiser and no better, will manage to take the greater profit. In justice it must be said of them that they extend a warm and sincere invitation to their ranks, and take "apprentices;" every chance of education that the other cla.s.s enjoys is proof of that.

All this is perhaps a trifle abstruse; let us, then, look at arbitration more nearly; in our time it is, in form at least something new. It began as "international arbitration," which already, in settling a few disputes of no great importance, has shown itself a dangerous remedy. In the necessary negotiation to determine exactly what points to submit to whom, and how, and where, and when to submit them, and how to carry out the arbitrator's decision, scores of questions are raised, upon each of which it is as easy to disagree and fight as upon the original issue.

International arbitration may be defined as the subst.i.tution of many burning questions for a smouldering one; for disputes that have reached a really acute stage are not submitted. The animosities that it has kindled have been hotter than those it has quenched.

Industrial arbitration is no better; it is manifestly worse, and any law enforcing it and enforcing compliance with its decisions, is absurd and mischievous. "Compulsory arbitration" is not arbitration, the essence whereof is voluntary submission of differences and voluntary submission to judgment. If either reference or obedience is enforced the arbitrators are simply a court with no powers to do anything but apply the law. Proponents of the fad would do well to consider this: If a party to a labor dispute is _compelled_ to invoke and obey a decision of arbitrators that decision must follow strictly the line of law; the smallest invasion of any const.i.tutional, statutory or common-law right will enable him to upset the whole judgment No legislative body can establish a tribunal empowered to make and enforce illegal or extra legal decisions; for making and enforcing legal ones the tribunals that we already have are sufficient This talk of "compulsory arbitration"

is the maddest nonsense that the industrial situation has yet evolved.

Doubtless it is sent upon us for our sins; but had we not already a plague of inveracity?

Arbitration of labor disputes means compromise with the unions. It can, in this country, mean nothing else, for the law would not survive a half-dozen failures to concede some part of their demands, however reasonless. By repeated strikes they would eventually get all their original demand and as much more as on second thought they might choose to ask for. Each concession would be, as it is now, followed by a new demand, and the first arbitrators might as well allow them all that they demand and all that they mean to demand hereafter.

Would not employers be equally unscrupulous. They would not. They could not afford the disturbance, the stoppage of the business, the risk of unfair decisions in a country where it is "popular" to favor and encourage, not the just, but the poor. The labor leaders have nothing to lose, not even their jobs, for their work is labor leading. Their dupes, by the way, would be dupes no longer, for with enforced arbitration the game of "follow my leader" would pay until there should be nothing to follow him to but empty treasuries of dead industries in an extinct civilization. If there must be enforced arbitration it should at least not apply to that sum of all impudent rascalities, the "sympathetic strike."

As to the men who have set up the monstrous claim a.s.serted by the "sympathetic strike," I shall refer to the affair of 1904. If it was creditable in them to feel so much concern about a few hundred aliens in Illinois, how about the grievances of the whole body of their countrymen in California? When their employers, who they confess were good to them, were plundering the Californians, they did not strike, sympathetically nor otherwise. Year after year the railway companies picked the pockets of the Californians; corrupted their courts and legislatures; laid its Briarean hands in exaction upon every industry and interest; filled the land with lies and false reasoning; threw honest men into prisons and locked the gates of them against thieves and a.s.sa.s.sins; by open defiance of the tax collector denied to children of the poor the advantages of education--did all this and more, and these honest working men stood loyally by it, sharing in wages its dishonest gains, receivers, in one sense, of stolen goods. The groans of their neighbors were nothing to them; even the wrongs of themselves, their wives and their children did not stir them to revolt. On every breeze that blew, this great chorus of cries and curses was borne past their ears unheeded. Why did they not strike then? Where then were their fiery altruists and storm-petrels of industrial disorder? No!--the ingenious G.o.ds who have invented the Debses and Gomperses, and humorously branded them with names that would make a cat laugh, have never put it into their cold selfish hearts to order out their misguided followers to redress a public wrong, but only to inflict one--to avenge a personal humiliation, gratify an appet.i.te for notoriety, slake a thirst for the intoxicating cup of power, or punish the crime of prosperity.

It is a practical, an illogical, a turbulent time, yes; it always is. The age of Jesus Christ was a practical age, yet Jesus Christ was sweetly impractical. In an illogical period Socrates reasoned clearly, and logically died for it. Nero's time was a time of turbulence, yet Seneca's mind was not disturbed, nor his conscience perverted. Compare their fame with the everlasting infamy that time has fixed upon the names of the Jack Cades, the Robespierres, the Tomaso Nielos--guides and G.o.ds of the "fierce democracies" which rise with a sickening periodicity to defile the page of history with a quickly fading mark of blood and fire, their own awful example their sole contribution to the good of mankind. To be a child of your time, imbued with its spirit and endowed with its aims--that is to pet.i.tion Posterity for a niche in the Temple of Shame.

No strike of any prominence ever takes place in this country without the concomitants of violence and destruction of property, and usually murder. These cheerful incidents one who does not personally suffer them can endure with considerable fort.i.tude, but the sniveling, hypocritical condemnation of them by the press that has instigated them and the strikers who have planned and executed them, and who invariably ascribe them to those whom they most injure; the solemn offers of the leaders to a.s.sist in protecting the imperiled property and avenging the dead, while openly employing counsel for every incendiary and a.s.sa.s.sin arrested in spite of them--these are pretty hard to bear. A strike means (for it includes as its main method) violence, lawlessness, destruction of the property of others than the strikers, riot and if necessary bloodshed.

Even when the strikers themselves have no hand in these crimes they are morally liable for the foreknown consequences of their act. Nay, they are morally liable for _all the_ consequences--all the inconveniences and losses to the community, all the sufferings of the poor entailed by interruptions of trade, all the privations of other workingmen whom a selfish attention to their own supposed advantage throws out of the closed industries. They are liable in morals and should be made so in law--only that strikes are needless. It is not worth while to create a mult.i.tude of complex criminal responsibilities for acts which can easily be prevented by a single and simple one. How?

First, I should like to point out that we are hearing a deal too much about a man's inalienable right to work or play, at his own sovereign will. In so far as that means--and it is always used to mean--his right to quit any kind of work at any moment, without notice and regardless of consequences to others, it is false; there is no such moral right, and the law should have at least a speaking acquaintance with morality. What is mischievous should be illegal. The various interests of civilization are so complex, delicate, intertangled and interdependent that no man, and no set of men, should have power to throw the entire scheme into confusion and disorder for pro-motion of a trumpery principle or a cla.s.s advantage. In dealing with corporations we recognize that. If for any selfish purpose the trade union of railway managers had done what their sacred brakemen and divine firemen did--had decreed that "no wheel should turn," until Mr. Pullman's men should return to work--they would have found themselves all in jail the second day. _Their_ right to quit work was not conceded: they lacked that authenticating credential of moral and legal irresponsibility, an indurated palm. In a small lockout affecting a mill or two the offender finds a half-hearted support in _the_ law if he is willing to pay enough deputy sheriffs; but even then he is mounted by the hobnailed populace, at its back the daily newspapers, clamoring and spitting like cats. But let the manager of a great railway discharge all its men without warning and "kill" its own engines! Then see what you will see. To commit a wrong so gigantic with impunity a man must wear overalls.

How prevent anybody from committing it? How break up this _regime_ of strikes and boycotts and lockouts, more disastrous to others than to those at whom the blows are aimed--than to those, even, who deliver them. How make all those concerned in the management and operation of great industries, about which have grown up tangles of related and dependent interests, conduct them with some regard to the welfare of others? Before committing ourselves to the dubious and irretraceable course of "Government ownership," or to the infectious expedient of a "pension system," is there anything of promise yet untried?--anything of superior simplicity and easier application? I think so. Make a breach of labor contract by either parly to it a criminal offense punishable by imprisonment "Fine or imprisonment" will not do--the employee, unable to pay the fine, would commonly go to jail, the employer seldom. That would not be fair.

The purpose of such a law is apparent: Labor contracts would then be drawn for a certain time, securing both employer and employee and (which is more important) helpless persons in related and dependent industries--the whole public, in fact--against sudden and disastrous action by either "capital" or "labor" for accomplishment of a purely selfish or frankly impudent end. A strike or lockout compelled to announce itself thirty days in advance would be innocuous to the public, whilst securing to the party of initiation all the advantages that anybody professes to want--all but the advantage of ruining others and of successfully defying the laws.

Under the present _regime_ labor contracts are useless; either party can violate them with impunity. They offer redress only through a civil suit for damages, and the employee commonly has nothing with which to conduct an action or satisfy a judgment. The consequence is seen in the incessant and increasing industrial disturbances, with their ever-attendant crimes against property, life and liberty--disturbances which by driving capital to investments in which it needs employ no labor, do more than all the other causes so glibly enumerated by every newspaper and politician, though by no two alike, to bring about the "hard times"--which in their turn cause further and worse disturbances.

INDUSTRIAL DISCONTENT

I.

THE time seems to have come when the two antagonistic elements of American society should, and could afford to, throw off their disguise and frankly declare their principles and purposes. But what, it may be asked, are the two antagonistic elements? Dividing lines parting the population into two camps more or less hostile may be drawn variously; for example, one may be run between the law-abiding and the criminal cla.s.s. But the elements to which reference is here made are those immemorable and implacable foes which the slang of modern economics roughly and loosely distinguishes as "Capital" and "Labor." A more accurate cla.s.sification--as accurate a one as it is possible to make--would designate them as those who do muscular labor and those who do not. The distinction between rich and poor does not serve: to the laborer the rich man who works with his hands is not objectionable; the poor man who does not, is. Consciously or unconsciously, and alike by those whose necessities compel them to perform it and those whose better fortune enables them to avoid it, manual labor is considered the most insufferable of human pursuits. It is a pill that the Tolstois, the "communities" and the "Knights" of Labor can not sugarcoat. We may prate of the dignity of labor; emblazon its praise upon banners; set apart a day on which to stop work and celebrate it; shout our teeth loose in its glorification--and, G.o.d help our fool souls to better sense, we think we mean it all!

If labor is so good and great a thing let all be thankful, for all can have as much of it as may be desired. The eight-hour law is not mandatory to the laborer, nor does possession of leisure entail idleness. It is permitted to the clerk, the shopman, the street peddler--to all who live by the light employment of keeping the wolf from the door without eating him--to abandon their ign.o.ble callings, seize the shovel, the axe and the sledge-hammer and lay about them right st.u.r.dily, to the ample gratification of their desire. And those who are engaged in more profitable vocations will find that with a part of their incomes they can purchase from their employers the right to work as hard as they like in even the dullest times.

Manual labor has nothing of dignity, nothing of beauty. It is a hard, imperious and dispiriting necessity. He who is condemned to it feels that it sets upon his brow the brand of intellectual inferiority. And that brand of servitude never ceases to burn. In no country and at no time has the laborer had a kindly feeling for the rest of us, for everywhere and always has he heard in our patronising plat.i.tudes the note of contempt. In his repression, in the denying him the opportunity to avenge his real and imaginary wrongs, government finds its main usefulness, activity and justification. Jefferson's dictum that governments are inst.i.tuted among men in order to secure them in "life, liberty and the pursuit of happiness" is luminous nonsense. Governments are not inst.i.tuted; they grow. They are evolved out of the necessity of protecting from the handworker the life and property of the brain worker and the idler. The first is the most dangerous because the most numerous and the least content. Take from the science and the art of government, and from its methods, whatever has had its origin in the consciousness of his ill-will and the fear of his power and what have you left? A pure republic--that is to say, no government.

I should like it understood that, if not absolutely devoid of preferences and prejudices, I at least believe myself to be; that except as to result I think no more of one form of government than of another; and that with reference to results all forms seem to me bad, but bad in different degrees. If asked my opinion as to the results of our own, I should point to Homestead, to Wardner, to Buffalo, to Coal Creek, to the interminable tale of unpunished murders by individuals and by mobs, to legislatures and courts unspeakably corrupt and executives of criminal cowardice, to the prevalence and immunity of plundering trusts and corporations and the monstrous multiplication of millionaires. I should invite attention to the pension roll, to the similar and incredible extravagance of Republican and Democratic "Houses"--a plague o' them both! If addressing Democrats only, I should mention the protective tariff; if Republicans, the hill-tribe clamor for free coinage of silver. I should call to mind the existence of prosperous activity of a thousand lying secret societies having for their sole object mitigation of republican simplicity by means of pageantry and costumes grotesquely resembling those of kings and courtiers, and t.i.tles of address and courtesy exalted enough to draw laughter from an ox.

In contemplation of these and a hundred other "results," no less shameful in themselves than significant of the deeper shame beneath and prophetic of the blacker shame to come, I should say: "Behold the outcome of hardly more than a century of government by the people!

Behold the superstructure whose foundations our forefathers laid upon the unstable overgrowth of popular caprice surfacing the unplummeted abysm of human depravity! Behold the reality behind our dream of the efficacy of forms, the saving grace of principles, the magic of words!

We have believed in the wisdom of majorities and are fooled; trusted to the good honor of numbers, and are betrayed. Our touching faith in the liberty of the rascal, our strange conviction that anarchy making proselytes and bombs is less dangerous than anarchy with a shut mouth and a watched hand--lo, this is the beginning of the aid of the dream!"

Our Government has broken down at every point, and the two irreconcilable elements whose suspensions of hostilities are mistaken for peace are about to try their hands at each other's tempting display of throats. There is no longer so much as a pretense of amity; apparently there will not much longer be a pretense of regard for mercy and morals.

Already "industrial discontent" has attained to the magnitude of war.

It is important, then, that there be an understanding of principles and purposes. As the combatants will not define their positions truthfully by words, let us see if it can be inferred from the actions which are said to speak more plainly. If one of the really able men who now "direct the destinies" of the labor organizations in this country, could be enticed into the Palace of Truth and "examined" by a skilful catechist he would indubitably say something like this:

"Our ultimate purpose is abolition of the distinction between employer and employee, which is but a modification of that between master and slave.

"We propose that the laborer shall be chief owner of all the property and profits of the enterprise in which he is engaged, and have through his union a controlling voice in all its affairs.

"We propose to overthrow the system under which a man can grow richer by working with his head than with his hands, and prevent the man who works with neither from having anything at all.

"In the attainment of these ends any means is to be judged, as to its fitness for our use, with sole regard to its efficacy. We shall punish the innocent for the sins of the guilty. We shall destroy property and life under such circ.u.mstances and to such an extent as may seem to us expedient. Falsehood, treachery, arson, a.s.sa.s.sination, all these we look upon as legitimate if effective.

"The rules of 'civilized warfare' we shall not observe, but shall put prisoners to death or torture them, as we please.