alty, with a lecture from the judge to the effect that there was no place for labor unions in any work that might interfere with the performance of public functions.

I have now exhibited some of the ways in which our courts lawlessly invade freedom of speech and press when prompted by a desire to suppress an agitator. The penalties are not so severe as formerly, but the jail hazard of the occupation of being an agitator is much greater than ever. Our courts have held that the old intellectual crimes existing at the time of the American Revolution are still in force in spite of our guaranties of freedom of speech and of the press.

In addition to this, the judges have drawn upon their imagination to assert the existence at common law of the intellectual crime of "obscene libel." (See Obscene Literature and Constitutional Law, chap. 3.) In addition, there is an abundance of legislation in vast extensions of the common-law intellectual crimes. Besides all this, the uncertainty in the criteria of guilt has also been much increased by permitting unlimited speculations about psychologic tendencies.

Quite beyond all this we have the lawless police force, making unlimited arrests of agitators without even the pretense of an unconstitutional statute to support the act. In this wise, Emma Goldman has been arrested and had her meetings stopped about 100 times without pretense of having violated a law. The courts justify such interference solely upon the sensitiveness of a policeman's feverish imagination. (See Goldman, Reyborn, et al., 28 Penn. Dist. Repts., p. 883, and numerous other instances shown before U. S. Commission on Industrial Relations.) Sometimes this police and judicial lawlessness has almost assumed the proportions of an insurrection, when resistance has been offered by the friends of the agitator. Here I refer to the freespeech fights in Spokane and San Diego. The latter I have described with considerable detail in the New York Call, for March 15, 20, 29, and April 5, 1914. This was sent to a former secretary of this commission. Slightly corrected, another copy will shortly be furnished from an enlarged edition of Free Speech for Radicals.

The Spokane free-speech fight assumed even greater proportions and greater violence than that at San Diego. Less important disturbances of similar character have taken place in Missoula, Duluth, Fresno, Aberdeen (Wash.), Kansas City, Los Angeles, Salt Lake City, Palisade (Colo.), Grand Junction, Philadelphia, Minneapolis, Minot (N. Dak.), Tarrytown, New York City, and doubtless other places. In all these cases lawless violence was committed on the pretense of supporting law and order. In every case the police authorities more or less openly aided the lawless element in supporting "law and order" by physical violence directed against the agitator with unwelcome ideas.

In all such cases the courts have been either helplessly inactive or they have given the sanction of legal forms and judgment to the lawless proceedings. Of thousands of men who have thus been wrongfully deprived of their constitutional liberties I do not know of one who has ever secured any redress through the courts. Had there been one I believe I would have heard of it, because I have been watching many, if not most, of the sources of such information.

The official and judicial predisposition is always the same and always favors the suppression of new ideals and unpopular allegations of truth. First, it is falsely assumed that streets and parks can not be used so as to permit both public speaking and commercial traffic. Secondly, in the constructive conflict between the transmission of merchandise and the transmission of ideas, the latter always get the worst of it.

It has never yet occurred to a policeman or judge that the transporter of merchandise should be compelled to go around the block in order that public speaking might be uninterrupted. Complaining ideas must always be suppressed rather than have commerce even slightly inconvenienced. No official ever shows any respect for the constitutional guaranty for free speech. The complaining poor have no such right to voice their complaint, that a policeman must respect or which the courts will protect.

The poor are not even allowed to do their own begging. If they ignore the charity-organization monopoly, they are arrested. So sacred is business that even the business of the professional philanthropist must be protected for the sake of his rake-off, even though the hungry suffer while they wait. I am infor.ned that some charitable organizations even insist that a striker's chil

dren shall starve unless the striker is willing to submit to the demands of his exploiter.

There is still another way in which this persistent and pernicious official and judicial bias always manifests itself in favor of the privleged ones.

In every incitation to a breach of the peace there are two parties, the person who, intentionally or otherwise, actually or constructively, incites another to a breach of the peace. In this situation if we ignore the guaranties of freedom of speech, the judge, under uncertain laws, may arbitrarily determine whether he will impose the criminal responsibility upon the agitator or upon the person who in consequence actually resorts to a breach of the peace.

If the agitator is a radical, then the police and courts always agree that the speaker is criminally liable for any speech which even, speculatively and prospectively, may irritate any hypothetical future person to a breach of the peace, even though no crime or overt act actually results. Such a constructive breach of the peace exists only in an hysterical apprehension in the mind of the policeman or of the magistrate.

In

If, however, the speaker or publisher is defending the legalized injustices and vested wrongs by which our privileged classes prosper, then no matter how violent the language used against the radicals, or how much it tends to incite them to disorder, the speaker or publisher is never arrested. such a situation if any radicals in the audience are provoked to a violent remonstrance, of course they will be arrested instead of the speaker. If the speaker is a radical and his conservative auditors are provoked to a violent resentment, then the speaker and not his excitable hearers are made the criminals.

Through personal observation and from the testimony of many others I have an extensive acquaintance with facts which justify this generalization. And so, in spite of our guaranties of liberty, a lawless police force, with the assistance of a lawless judiciary, succeeds quite thoroughly in making the criminal law a mere gambling device in which the other fellow can always say to the agitator with certainty, "Heads, I win; tails, you lose."

Whenever it can be made to appear that a choice exists between suppressing an agitator's freedom of speech and the suppression of a possible resultant disturbance of the peace, then it is always freedom of speech that is destroyed. It is as if peace of mind for the exploiting and privileged part of the community was the end and aim of government; peace of mind for them at any cost in empty stomachs for the exploited.

Again, when it is a conflict between the victims and beneficiaries of injustice, and it appears that the situation involves a choice between free speech for vigorous and protesting complaint against economic and industrial injustice on the one hand, and freedom from irritating acquaintance with unpleasant facts and disagreeable remedies, then the police and the courts quite uniformly decide against such freedom to demand justice for the afflicted, and act in favor of the emotionally undisturbed enjoyment of those who can indulge in ostentatious waste.

In the days of chattel slavery we made it a statutory crime to teach the negro to read or write, lest he should become discontented with his lot. Then, as always, the underlying unconscious assumption was that the exploiters of the poor have an inalienable property right in the slavish mental attitude of the exploited ones.

In our present wage slavery a lawless police force and a lawless judiciary accomplish approximately the same end by suppressing the agitator who is bent on intensifying or rationalizing the discontent with the view of promoting a better social order.

THE DISCUSSION OF REMEDIES.

The ordinary man of the street, if free from an obsessing reverence for the courts, will ascribe to graft nearly all judicial actions which he disapproves or fails to understand. Personally, I take no stock in such an explanation, but believe the situation even worse. In saying this I do not mean to pass a moral judgment on the judges. I am thinking only of the consequences. Even if our judges were inclined to be corrupt, the risks are such that the corrupt motive would be operative in only a very few cases. On the other hand, a persistent, conscientious bias will be unconsciously and automatically operative in every case.

The more intelligent workers explain the practical uniformity of judicial decisions in favor of the economically dominant class by attributing them to an unconscious economic determinism, controlling the judicial intelligence. This explanation also lacks adequate breadth. Those who are famiilar with recent developments in genetic psychology will be more inclined to explain the judicial prejudices on the basis of infantile intellectual methods. According to this view the prejudices of a judge are largely controlled by emotional associations established during youth and transferred to new situations in which they have little or no application. Here the economic factor becomes one of many determining influences. As to the mental mechanism of these emotional transferances the judges usually are as ignorant as they are of the scientific method. The check of these infantile processes is, therefore, almost impossible for the average judge. Unfortunately these missing factors of intellectual maturity are quite indispensable to an intelligent and impartial judgment and can not be supplied by legislation.

Another group of radical agitators who see the root of all evil in our economic system and the inefficiency of mere voting, have reached the conclusion that the remedy for all our industrial ills lies in organizing the economic might of the workers through one big union. Such persons are already discussing the question of a "law strike," by which they expect to bring such ecenomic pressure to bear upon the beneficiaries and masters of judicial action as will insure justice. Enough experience already exists to give apparent color to the claim that a lawless "judicial discretion" can be controlled through the purse strings of the employing class. In illustration of this "law strike I quote the following from Syndicalist paper of recent date:

66 THE LAW STRIKE.

"The law strike is crude, uncouth, and primitive. As a means to an end for stiffening the ranks of militant labor it has about run its course. What is the law strike? A law strike is a defense of labor in a capitalist court, a case wherein Labor has hired counsel to defend prisoners accused of labor 'crimes.' This is the labor strike in the law courts.

"We have been watching for several years a cool, calculating systematic plan of action on the part of Capital to drag Labor to death through Labor's pocketbook. The amount of money that Labor is enabled to accumulate is pathetically small compared to the enormous sums showered upon judiciary and jury by Capital. Though a case reach national importance, and whole industries and a swarm of friends contribute each according to the limit of its means, a mere handful of capitalists stack mountains of gold by the side of molehills of silver contributed by Labor. This merry game has been going on so long that Labor has become desperately tired with the cards stacked against him.

"The working class has been so thoroughly saturated with bourgeois conceptions of morality, theological conceptions of justice, legalisms, and veneration for law and order,' it believes that a question of mythical rights and wrongs can be thrashed out by the keenest and highest-priced lawyers. Each workingman who contributes his little piece of silver thrills with the joy of adding one more stone to batter the hide of Capital.

"So many labor cases have been dragged into the courts, so many calls have been made upon the pocketbooks of the proletaire, that the supply has begun to drip like the running stream drying up in the heat of the sun. Of late years Labor has supplemented the law strike by purely economic tactics. Later we shall see economic pressure also applied. As the law strike wages we shall hear Labor saying, 'Yes; I did it. To hell with justice! No longer, then, shall the militant man become suddenly nonresistant in the presence of the court.

"The law strike, like unto a craft-union strike, shall merge in an economic solidarity. Sabotage shall be applied on the industries, and pressure brought to bear upon fat pocketbooks of plutocracy. Labor shall but need to say, 'Come out of your cell, fellow worker. Not one of ours shall needlessly suffer.' When Labor shall have strongly organized on an industrial basis, free from parliamentary law, legal claptrap, judicial fakery, and capitalistic confidence methods there will be no need of hiring lawyers. That sort of tomfoolery and bourgeois luxury shall be consigned to limbo."

STATEMENT OF MRS. JOHN JEROME ROONEY.

[The Guidon Club, opposed to woman suffrage; founder and honorary president, Mrs. Rossiter Johnson. 45 East Thirty-fourth Street.]

Hon. FRANK P. WALSH,

NEW YORK, May 19, 1915.

Chairman Industrial Commission, Washington, D. C.

DEAR SIR: There are two objections to the suggestion of Mrs. Benedict, representing the Congressional Union, made to the Industrial Commission on Monday, May 17, that you make recommendation to Congress in favor of woman suffrage. The first is that this matter is not properly a national, congressional question; it belongs to the States.

Second. We hold that the argument is against woman suffrage on the merits. These merits should be thrashed out between the citizens, men and women, favorable to and opposed to woman suffrage.

The only forum in which this can be done practically and thoroughly is the States. Why should citizens of the States have woman suffrage forced upon them by Congress if a majority of the citizens in these States are opposed? Again, the way to settle that point is by election in the States.

The law, as a general rule, is the expression of the social consciousness at any given time. It may not be a perfect expression, but that means that it is only a human expression; a change of social conscience or sense inevitably works a change in the law, or, to the same effect, the law becomes obsolete and unenforceable.

Women are more effective as nonpartisans in forming this social sense, and also are more powerful as nonpartisans in framing it into law. Partisanship will weaken and divide this great social force of women. Instead of being divided into antagonistic politic classes women should guard their nonpartisan attitude and work together on necessary social reform.

This is woman's best and most influential public function because it is the one in which all her forces are at the maximum. Fighting with man and her fellow woman in political division and recrimination places woman at the minimum of her strength for social betterment; at the worst, for her personal happiness and elevation of character. At the last it becomes a question of the conservation and direction of energy, the adoption of the best means to the highest ends.

Yours, sincerely,

MARIE COLLINS ROONEY,

[Law offices of Alger & Simpson, Lord's Court, 27 William Street.]

NEW YORK, May 26, 1915.

UNITED STATES COMMISSION ON INDUSTRIAL RELATIONS,

Transportation Building, Chicago.

GENTLEMEN: I inclose herewith my answers to the questions which you submitted with yours of May 13. I am sorry I could not have attended to the matter sooner, but I was unable to do so.

I remain, yours, very truly,

GEO. W. ALGER.

1. Have you as an attorney, or as a student, devoted any considerable attention to the decisions of courts in what are commonly known as labor cases? Answer. Yes. I have for 20 years been interested in such matters, more especially, however, with decisions involving construction of industrial statutes and the general economic rights of employees other than questions of strikes and boycotts, to which I have paid comparatively little attention.

2. Will you please outline for the commission as definitely as possible your opinion regarding prevalent attitude of courts in labor cases and the social and legal aspects of this attitude?

Answer. It is very difficult to answer this question with any definite statement. We find in the courts of one State advanced views and in another entirely reactionary views. A general statement covering the courts of the

country as a whole would be necessarily inaccurate. I should state, however, generally, that the courts are slowly but surely for the most part accepting the necessity for greater legislative freedom to enable laws to be passed for the economic betterment of working people. The process is slow and uneven. Some States are still very primitive and follow precedents which, however applicable they may have been to an agricultural state of society, are largely out of date, due to changed conditions. We have numerous reactionary decisions, but I think the tendency on the whole is toward a more enlightened judicial opinion on (1) legislation on the hours of labor; (2) the physical condition of labor, sanitary requirements, etc.; (3) industrial accidents. This forward tendency seems greatest in States where economic pressure is greatest. In agricultural States, where economic and social legislation is less necessary, the courts seem more likely to follow old precedents instead of adapting themselves to changes going on in the courts in other States; in other words, not being conscious of changed conditions they keep to precedents of the past.

Fifteen or twenty years ago the courts were a dangerous handicap upon American industrial growth. They stood in the way of progress and of necessary legislation far more than at present. Public opinion and social necessity are both making themselves felt. The sharp criticism with which many decisions have been met which have hampered the development of industrial legislation has been felt keenly by the courts themselves. While the law is still behind our industrial evolution, it is not so far behind as it was only a few years ago.

Public investigating bodies like this commission, where they have in a scientific way investigated and assembled facts, have helped the enactment of social legislation, and still more have helped in the passage of these laws through the criticisms of the courts. An interesting example of this is two cases in the New York Court of Appeals involving the constitutionality of laws forbidding night work for women. The first case, People v. Williams (189 N. Y., 131), was couched in a somewhat supercilious tone, and, with even a show of indignation, declared such a law unconstitutional. The court says:

"When it is sought under the guise of a labor law arbitrarily, as here, to prevent an adult female citizen from working at any time of the day that suits her I think it is time to call a halt. It arbitrarily deprives citizens of their right to contract with each other. The tendency of legislation in the form of regulating measures to interfere with the lawful pursuits of citizens is becoming a marked one in this country, and it behooves the courts firmly and fearlessly to interpose barriers of their judgments when invoked to protect against legislative acts plainly transcending the powers conferred by the Constitution upon the legislative body."

66

It expressly declared that the statute could not be justified as police legislation for the health of women. Later on came the factory-investigation commission which collected facts. Then, with a very slight amendment, the condemned statute was reenacted, the amendment simply affirming that it was passed to protect the health and morals of females employed in factories by providing an adequate period of rest at night." This statute was declared constitutional without a dissenting vote a few months ago (People v. Charles Schweinler Press, 214 N. Y., 395), just as the former statute, without a dissenting vote, had been declared void seven years before. The report of the factory investigating commission was largely responsible for this changed view. My general impression, therefore, is this: Whenever legislation has been preceded by investigation by commissions or public bodies and the necessity or propriety for such legislation has been shown by facts collected thereby, the courts are inclined to accept the legislation. The much-criticized Ives case in New York is, I think, an exception to this general tendency. The best work done in the way of investigating industrial accidents was done by the New York commission, whose report preceded the quite mild compensation law, which the court of appeals declared violative of both State and National Constitution. If there was any objection to the old law under the Federal Constitution, it still remains as against the new law. It is a curious fact that so generally saisfatcory has been the much broader law passed in New York after her constitution was amended that no case has been made attacking its constitutionality until within the past two or three weeks. The law thus far has been a victor by default.

The general success of social legislation is largely due, I think, also to a new method of presentation of these cases in the courts. Mr. Brandeis and his very