Waste of Man Power.

IT

now

T is the experience of every industry that an excessive proportion of waste exists until necessity compels its elimination. It has been said that the net profits of the packing business do not exceed the value of the byproducts of that which was formerly wasted. Government, which is the greatest of all industries, has been profligate of its human material, because it has never felt the effects of a scarcity. Now for the first time has come a war not of armies but of nations, when every national resource must be mobilized for national self-preservation. Every man who is physically or morally unfit for military or industrial service represents that much loss of national power. Every preventable accident, every preventable disease, every preventable crime, of the last decade has robbed the nation of a man whose services are needed. It is too late to cry about spilled milk, but it is not too late to resolve to spill no more. The festering slums of the great cities, the fact that thousands of mothers and children are condemned to overwork and under nourishment, has cost us many a division of soldiers who might have been available for the present crisis. Perhaps this practical fact will arouse a public sentiment which pity has failed to reach. The abstract fact that there are men in prison to-day whom a more enlightened administration of the law would have put into the world as law-abiding citizens has meant little. It may mean more that the place of every such man in the army or the workshop must be filled by someone else. Of course it is a question of finding a remedy rather than of adopting one already discovered. But if the conservation of national water power and timber lands is worthy of the attention of a cabinet officer, as it certainly is, the conservation of national man power should be of equal dignity. In the Canal Zone the question became of practical importance and in a few years a plague spot was turned into a place where living conditions are better than those enjoyed by the average American laborer. What was done there can be done at home once the importance of so doing is realized.

Congress and the President.

Α

LREADY we are becoming so accustomed to the supremacy of the executive over the legislative department which the grim business of war demands that it requires an effort to remember that any other condition ever existed. But while the United States has never experienced anything approaching the struggle which took place in some periods of English history between the King and Parliament, the balance of power has none the less swayed between the legislature and the executive. A relic of what was apparently an era of Congressional revolt is found in an act of August 26, 1842 (6 Fed. Stat. Ann. [2d Ed.] 1161), in which respecting some trifling matter of naval supplies it was enacted that "It shall be the duty of the President," etc. The conventional phrase seems to be "The President may" or "The President is authorized" and some little search reveals no parallel for the mandatory phrase. Of course Tyler then occupied the executive chair, and perhaps Congress did not think him entitled to the same deference as what Mr. Roosevelt once called a "full President." In the argument in the Senate on the impeachment of Andrew Johnson it was said that

"The President is merely the constable of Congress" but that of course was a flight of forensic fancy. The fact remains that within the limits of a supposedly inelastic constitution a President may be either a nonentity or a ruler possessing more power than the King of England. The Woman Judge.

pointment to the federal bench has fallen to Miss HE honor of being the first of her sex to receive apKathryn Sellers, who was on July 1st appointed by President Wilson to the position of Judge of the Juvenile Court of the District of Columbia. Her judicial record will be watched with peculiar interest, because public opinion will be perhaps too ready to believe to be characteristic of her sex any qualities which she may display. Most of the confused thought which the question of "woman's rights" has engendered has been the result of a tendency to hasty generalization; to assert that

There are men

"women" or "men" did or would do this or that. As a matter of fact women, like men, comprise a great number of very diverse individuals, one or more of whom is liable to do almost anything you may mention. and women patriots, so many that it were invidious to name one by way of illustration, and there are Emma Goldman and Alexander Berkman. Woman suffrage and the many things that follow in its trail have come to stay. No one thing will do more to make them a public benefit than for men and women alike to judge public officers by their individual merits and forget their sex. Returning to Miss Sellers, if sex enters at all into the judicial equation it should work in her favor. The judge of the juvenile court is a parent more than a judge, and if we accept the testimony of the thousands who have ascribed their success in life to the influence of their mothers the President has done well to provide a judicial mother for the delinquent children of Washington.

Liability of Judge for Negligence.

Of

PRESS report narrates the woes of a litigant who claims A to have a novel cause of action on which he cannot get an attorney to bring suit. According to the report, during the trial of a case the judge absented himself momentarily from the court room, being in ignorance of a recent decision that such an absence invalidated the trial. A new trial was granted on that ground and the plaintiff found that an essential witness had gone into the army and he can not prove his case. Now he wants to sue either the judge or the state for damages. course it is well settled that a state is not liable for the negligence of its officers except as it has assumed liability by express statute. Probably no action will lie against the judge, but, entirely on principle, why should it not? If the case was lost by the negligent failure of an attorney to know of a recent decision he would be liable to respond in damages. "An attorney has no right to be a clam and shut himself up in the seclusion of his own self-conceived knowledge of the law. He must keep pace, so far as reasonable diligence and a fair amount of common sense will enable him to do so with the literature of his profession and what the courts have decided." Hill v. Mynatt (Tenn.) 59 S. W. 163. Is a judge entitled to imitate the complacency of the bivalve any more than the attorney, and if he does so is he entitled to any

A Neat Rebuke.

TH HERE are a considerable number of reported cases wherein a brief has been stricken from the files because counsel indulged in abusive or intemperate language. Rarely indeed have counsel practising before the Supreme Court of the United States so far forgotten the respect due to that high tribunal though in Royal Arcanum v. Green, 237 U. S. 531, a brief was stricken because of "vituperative, unwarranted and impertinent expressions as to opposing counsel." But in Cox v. Wood, 38 S. Ct. 421, a case wherein it was sought to reargue some phases of the validity of the selective draft law, language reflecting on the Court itself was dealt with in a manner as scathing as it was novel, the Chief Justice saying: "We must notice a suggestion made by the government that because of impertinent and scandalous passages contained in the brief of the appellant the brief should be stricken from the files. Considering the passages referred to and making every allowance for intensity of zeal and an extreme of earnestness on the part of counsel, we are nevertheless constrained to the conclusion that the passages justify the terms of censure by which they are characterized in the suggestion made by the government. But despite this conclusion which we regretfully reach, we see no useful purpose to be subserved by granting the motion to strike. On the contrary we think the passages on their face are so obviously intemperate and so patently unwarranted that if as a result of permitting the passages to remain on the files they should come under future observation, they would but serve to indicate to what intemperance of statement an absence of self-restraint or forgetfulness of decorum will lead and therefore admonish of the duty to be sedulous to obey and respect the limita

tions which an adhesion to them must exact." Poetic justice is not often available in this prosaic world, but in this instance the Mikado himself could not have fitted the punishment to the crime more aptly.

Lawyers in the Legislature.

Ev

VEN the pressure of war news has not diverted the lay press from its tendency to carp at the predominance of lawyers in every legislative assembly. This disproportion is indeed striking. In the present United States Senate there are 76 lawyers and 20 of all other professions. In the House of Representatives there are 382 lawyers and 149 of other professions. Farmers and wage workers constitute two-thirds of the electorate of the nation, but in both houses of Congress there are only nine members who classify themselves as farmers, and four representatives of the labor element. But the same critics for some reason fail to "view with alarm" the like preponderance of doctors on boards of health though both result from precisely the same cause, the realization that the administration of technical professional affairs requires men of professional training. Only a few obscure sects put a laborer in the pulpit in order to get sermons based on a real understanding of the soul of a hod carrier. The argument in favor of the proposition that membership by legislative assemblies shall be based on the proportion of citizens in various occupations rests on the vi

of the Marx school of socialism. It proposes to array against each other the several "classes" each seeking its selfish class interest and leads of course to the conclusion that the mercantile and professional classes have no rights which the more numerous manual laborers are bound to respect. The freedom of the legal profession from this baleful tendency is shown by the fact that notwithstanding its continued control of legislation no undue favor to its professional interests can be pointed out. It will take some time to convince the American laborer that Congress should be replaced by an imitation of the Russian Soviet.

WORK OR FIGHT!

Idlenessia is invaded.
BABYLON the great is fallen. Sybaros is besieged.
Vagabondia is destroyed. The
Castles of Indolence are crumbling. The Arcadian high-
ways to the Land of Cockaigne are barred.
Man must work or fight!

No more shall he eat the bread of idleness. No longer, prodigal of ease but bankrupt of life, shall he burn daylight, while idly busy rolls his world away.

This is one of the greatest and most permanent victories of the war for civilization, because of its social, its moral and its spiritual gains.

igencies of war, affords an interesting legal and political War legislation, and legislation growing out of the exstudy. Much of it marks a startling change in the attitude of the Government toward its citizens, a change which would have been regarded as utterly impossible a few years ago. Beginning with the Conscription Act and the Questionnaire we note a gradual and cumulative expansion and extension of power in the Government, not assumed indeed, but conferred, until we have direct interference with private life; interference with individual production and sale for private profit and now the Government and the State place their hands on the ultimate individual citizen and demand, "What are you doing here? Fares, please! Work or fight!"

Already the universal air is vocal with the vociferations of the self-appointed prophets of individual liberty denouncing a despotic state, crying, "What! May man not dispose of his time as he will?"-with large appeals to the natural rights of man, to the Constitution and to the Bill of Rights. Ignorantly or maliciously they disregard the true relationship of the individual to a democratic state. They forget or ignore the fact that they owe their very civil existence to the state, and that this alone, if there were no other reasons, gives the state a power and authority beyond all individuals, to which each owes submission and obedience, including, in times of crises, if need be, the sacrifice of life. "All for each and each for all." Subordination is the common weal. The welfare of the whole state, which in a republic simply means all of us, must determine our measure of individual liberty. In other words, individual liberty must yield to the public necessity or public good. As national and state legislation has not yet exhausted itself in strengthening its power, the end is not yet, so the vociferous apostles of "liberty" and of the "natural rights" of man will not, like Othello, be without an occupation. Delirious of

"rights" but blind to "duties," they may perchance find their justification in the reply of Falstaff, that prince of vagabonds, to Prince Hal, when commended on a good amendment of life from praying to purse taking. "Why, Hal, 'tis my vocation, Hal. "Tis no sin for a man to labour in his vocation."

Meanwhile Duty, like a Bellman of old, calls throughout the land.

The anti-loafing laws and compulsory labor legislation on the statute books of several of our states, regardless of their expediency in a time of war, are founded in reason and based on a true philosophy of the relation of the individual to the state. "For none of us liveth to himself and none dieth to himself." These laws reflect, in a measure, the nature and extent of our obligations to our fellow-men, a matter which has never been sufficiently considered. Everything that we have, everything that we are, we owe to the social order which gives us civil life. No man, even in times of peace, has a moral right to say, "I will do as I please with my time and my abilities and my powers.' No man has a moral right even in times of peace, to stand aside in selfish isolation and say, "I will do as I please, I will live as I please, let the old world wag as it will." Such is not the attitude of the real man, of the good citizen. Whole libraries have been written on good citizenship but it all comes down to this,-good citizenship is the doing of our duty to the country which gives us a civil existence, it is the doing of our share in the work that must be done.

But in a time of war, when we are placed in a cataclysmic world, with ultimate victory tasking every power, these laws take on a new meaning, a higher significance. They become a transcript of the common conscience. They discover a field af action, dignify effort with a nation-wide, yea, a world-wide importance, impress men with the value of their relations to each other and to the state, and, delivering them from a selfish consciousness of self-indulgence and ease, fix their attention on the higher duties to which they are called in the affairs of life. Take away now, in this war, the productiveness of personal effort, and we would ground on the shoals of futility.

The anti-loafing law of New York had an interesting origin. As war has its mediate causes and its immediate occasion, so legislation has its wide purposes and its particular raison d'être. New York's anti-loafing law, in its narrowest sense, is self-defensive, illustrating anew the age-long conflict of society with the idler. From the earliest times we find statutes authorizing summary proceedings against this genus homo. Instance that picturesque tatterdemalion, euphemistically dubbed the "tramp." No man knew whence he came or whither he went. Legislation fairly exhausted itself in ingeniously compelling him to emigrate and so one state simply relieved itself at the expense of another. The police magistrates, fresh from the classics, echoed Agamemnon's command to Agisthes: "Go, let not the next sun find thee in Argo." One of the most melancholy things in the law reports is the evidence of the constant struggle of one community to shift the burden of its idlers on another. And this again was the experience of New York.

The social statistics of New York City show that during the last winter, despite its unprecedented severity, its loafer population dwindled to the vanishing point. The cheap lodging houses were more than half empty. But

when came the halcyon days of Spring, Pan-handle Avenue was crowded and the lodging houses "crammed full." The answer of the social statistician was "Jersey legislation." Under the anti-loafing law of New Jersey, its denizens with a horror of work emigrated to New York, where like O. Henry's Soapy they might rely on the law to provide against the exigencies of work and hunger. Governor Whitman in signing the law said: "I am informed that if this bill is not signed, many undesirable persons will continue to come to this State from New Jersey in order to escape the operation of the law in that State."

The various state anti-loafing laws so far enacted are very similar in their provisions. Let us consider that of New York. In common with those in Maryland and New Jersey it applies to men between the ages of eighteen and fifty. The West Virginia law, more severe, extends the ages alliteratively, from sixteen to sixty. Under the provisions of the New York law, every man in New York State between the specified age limits must be able to prove that he is engaged "in some lawful, useful, and recognized business, trade, profession or employment." And be it noted, under the Act any male person found in the State is a resident. The exempt classes are students preparing themselves for a definite occupation and workmen out of employment because of temporary labor differences. No person is excused from accepting employment on the ground that the compensation is inadequate if the wage is that usually paid in the locality for that class of work. Persons of wealth are not excused from work and the State Industrial Commission may assign them to tasks if they plead ample income as a reason for nonemployment.

In particular, loitering in streets, saloons, depots, hotels, pool-rooms and other places of congregation will be considered prima facie evidence of violation. The penalties are a fine of $100 or three months in jail, or both.

The New York State Act, and kindred Acts, will be of a peculiarly personal interest to certain classes of persons. Who are they? It has been said that to have won material success early in life without having sacrificed the capacity to enjoy ease has been translated into a crime by act of legislature. But who between the designated ages, in these times of crisis, desires to enjoy ease? Where is the man who desires now to lose himself in indolent content and minister to his mere pleasures and indulgences? If such there be let him remember that the safety and security of his material success depends upon the boys under thirty who fight. And let him remember that as much depends upon whether he, and others too old to go to the front, will work to support with money and materials those who are doing the fighting. For every young man at the front five men are needed at home to keep them in munitions and supplies until they win. Is the flower of young American manhood to bare its breast to the blasts of war while he "who has not sacrificed the capacity to enjoy ease" is to luxuriate in idleness, to be groomed and fed by a band of valets and coddlers? That were a monstrous travesty. Idleness and ease, in these circumstances and conditions, could never be the natural choice of a real man.

But it requires no fine sociological abstractions to interpret this law. There can be no doubt of the class which comes within the scope of its intent. Anti-loafing law. The generic adjective is very specific and comprehensive. Names are conventional but identity is absolute. Loafers, bummers, sluggards, slackers, spongers, gangsters, gam

blers, confidence men, professors of occult black art, "cadets," gilded youths, tango pirates, lounge lizards, the cavalier servente, the chevalier d'industrie, social flunkeys, society-lapdogs and all the waiters on Providence. These and their congeners are the excrescences of which the state means to prune and purge itself. A Newton may yet sit idly in his garden awaiting the falling apple. A Buddha may dream reformations under his Bo Tree. A Lao-Tse may linger in his barnyard and listen to the cackling hen. A Swedenborg may live in beatific visions of heaven and horrific visions of hell. The poet may ride his Pegasus, scale Parnassus and drink of the Castalian font. Perchance even a Major Pendennis may linger at his club. The law has already justified itself. Multiplied instances in proof of this, taken from the records of magistrates' courts and the labor bureau, could be given did space permit. It is a club in the hands of fathers over lazy sons and of wives over good-for-nothing husbands, while in the hands of the police it is an effective weapon in enabling them to set to work loafers against whom crimes cannot be proved but who are believed to be a source of mischief and danger. Heretofore the police have had to wait to "get something on" such an idler before they could deal with him effectively. Under this law the mere fact of his idleness will be sufficient to force him to choose between real work and jail. Of course, this power must be exercised with tact, discretion and judgment, but there is slight danger of its abuse, since to avoid arrest it is only necessary to show that one is registered at the labor bureau or the sheriff's office.

There has been not a little confusion in the public mind, and in the press as well, between the various state antiloafing laws and the work or fight order of Provost Marshal General Crowder. The work or fight order is merely a corollary of the selective service act, a purely military measure and regulations regarding employment or military service for unregistered men are not included in its functions. The only effect the order has upon persons not subject to the draft is that it offers them more opportunities of employment. Places vacated by men liable to draft necessarily are left open for men outside of the draft. The order is designed to compel men to give up nonessential pursuits and take up essential work. The army and the navy are taking the men best fitted physically to do the fighting, but that is only part of the national task imposed by the war. There is another part, not so spectacular, that falls on the other men and that is to liberate the men who are to do the fighting. Every man who liberates a fighting man is helping to fight and to win the

war.

Many men of draft age have been deferred on grounds of dependency but are not engaged in effective industries. It is not an edifying spectacle, nor a satisfying one, to see a regiment of drafted men marched down the street to camp, while other men of their own age, as physically fit, watch them from the curb and remain behind as attendants, doormen, footmen, butlers, floorwalkers, soda-fountain or bar-room mixologists. They serve no economic war purpose whatsoever. Of military age their primary duty is war work. If dependency gives them deferment from immediate military war work, they should be called upon to do something economically useful to maintain the nation's welfare while at war. And if they fail or refuse to transfer to some useful and effective occupation they

should forfeit their deferment from military service and be transferred to the army and sent out to fight. It is a righteous order.

The effect of the work or fight order was immediate. Confining our observation to the largest state in the Union we find that on the one hand there was a drive by thousands on the stations where applicants for work of the essential kinds are registered and directed to permitted work. On the other hand there was a greater drive out of the state by men to whom one alternative was as horrible as the other. To what shall we ascribe this latter phenomenon? How shall we catalogue these fugitives, whose hatred of work is as invincible as their fear of war? Whether they be criminals or defectives may be left to the psychologists. Meanwhile they are amongst us, a shame to their country and a hideous disgrace to manhood. Breathes there a man with soul so dead? Life has its infamies, but no infamy worse than this. But flight for men of draft age is a "mere expedient of panic" since the work or fight order blankets the nation. As for the others their craven respite will be brief if every state will translate them into criminals, prosecute them by district attorneys and sentence them by the courts.

Professor James, in discussing possible moral substitutes for war, said that men had not yet waked up to the fact that the more difficult and disagreeable tasks of life were confined too narrowly to a single class, that too many were shirking everything we thought of as work. Now the war has awakened us. When a nation is in arms

not only to save its liberties and its independence but to preserve civilization itself, no loyal citizen will shirk or fail to discharge a patriotic duty to his country. Patriotism is not a flower that blossoms only on the field of battle. It is not a bloom fertilized only by blood. It lives amid the pride, pomp and circumstance of war and it lives just as surely amid the silences of the vale, in every place where loyal citizenship performs its duty, however humble, to the country. If we are to achieve the moral and spiritual gains that must come with ultimate victory, we must pay the price of that high attainment and that price now is-work or fight.

Work or Fight! In these words lie the light of duty, the strength of obligation, and the progress of the America that is and the hope of the America that is to be. OTTO ERICKSON.

FEDERAL REGULATION OF CHILD LABOR.

THE decision of the Supreme Court in the case of Hammer v. Dagenhost, 38 S. Ct. Rep. 529, marks another milestone in the determination of the meaning and extent of the right of local self-government as reserved to the states of the union by the tenth amendment to the Constitution. This right, dear to the hearts of all liberty-loving peoples, and in defense of which our fathers took up arms against and successfully defied the mother country, was jealously guarded by the founders of the republic in framing our system of government, and it was largely the fear that the powers conferred on the central government under the constitution as first adopted might prove to be too great a limitation on, if not destructive of, the right of the people to regulate and govern their local affairs that led to the

early adoption of the first ten amendments. An eminent New England historian (Fiske, Critical Period of American History, 237) records this fear as follows: "To the familiar State governments which had so long possessed their love and allegiance, it was superadding a new and untried government, which it was feared would swallow up the States and everywhere extinguish local independence. Nor can it be said that such fears were unreasonable. Our federal government had indeed shown a strong tendency to encroach upon the province of the State Governments, especially since the Civil War. Too much centralization is our danger to-day, as the weakness of the Federal tie was our danger a century ago. . . . If the If the day should ever arrive (which God forbid) when the people of the different parts of our country shall allow their local affairs to be administered by prefects sent from Washington and when the self-government of the States shall have been so far lost as that of the departments of France or even so far as that of the counties of England, on that day the progressive political career of the American people will have come to an end, and the hopes that have been built upon it for the future happiness and prosperity of mankind will be wrecked forever." Of these amendments, the tenth stands in the vanguard as the bulwark of states rights. It provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people," and it is around the construction or rather the application of this amendment that the legal storms have raged. All agree that under this provision matters of domestic policy, purely local affairs primarily affecting the people of the states, must be left to the states themselves to regulate as may best suit their condition and wishes, but there is a wide divergence of opinion as to what is a matter of purely local policy. To the prohibitionists the regulation or abolishment of the liquor traffic is pre-eminently a national question to be controlled by the central government without let or hindrance by the individual state provided it can be done through that means, and to the manufacturer in a state having a high scale of wages for labor, the regulation of labor conditions is unquestionably a federal question, though neither the prohibitionist nor the employer of highly paid labor may agree with the contention of the other. It all depends on "who the shoe pinches," and it is to be regretted that little thought is given by any would-be beneficiary to the constitutional rights involved provided the end in view can be obtained. That the powers reserved to the states by the constitution as designed by its framers and the powers now remaining after years of judicial and legislative inroads are vastly different is admitted by all, and that the changed conditions under which we now live justifies the extension of the federal powers in many instances cannot be denied. The greatest of all internecine wars was waged over a question of states rights, and while the result of that conflict was to deny once and for all the particular right asserted by the southern states it did not make any material change in the fundamental principles embodied in the constitution in so far as it affects the question under discussion here. It did, however, fix the fact that we are a nation first and state afterward and the theory has gradually been growing that instead of the national government having only the powers delegated to it and the states all the reserved powers, the national gov

Con

ernment has all the powers which Congress may deem usable for the national welfare, and should the use of such power conflict with the rights of the states the latter must give way. Mr. Justice Holmes expresses this idea in his dissenting opinion in the Hammer case when he says: "The statute confines itself to prohibiting the carriage of certain goods in interstate or foreign commerce. gress is given power to regulate such commerce in unqualified terms. It would not be argued to-day that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something, and when interstate commerce is the matter to be regulated I cannot doubt that the regulation may prohibit any part of such commerce that Congress sees fit to forbid. . . . The question. then is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the states in a matter upon which I have admitted that they are free from direct control. I should have thought that that matter had been disposed of so fully as to leave no room for doubt. I should have thought that the most conspicuous decisions of this court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any state." the domestic policy of any state." As an illustration of how far this view departs from that formerly entertained it is interesting to read the opinion of Justice Brewer in Kansas v. Colorado, 206 U. S. 89. He says: "The proposition that there are legislative powers affecting the Nation as a whole which belongs to although not expressed in the grant of powers is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment. This amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if in the future further powers seemed necessary they should be granted by the people in the manner they had provided for amending that act. It reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The argument of counsel ignores the principal factor in this article, to wit, 'the people.' Its principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all powers not granted. The preamble of the Constitution declares who framed it, 'we the people of the United States,' not the people of one State, but the people of all the States, and Article X reserves to the people of all the States the powers not delegated to the United States. The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the