nature as to require exclusive legislation by congress. There should be no insuperable difficulty in draftNow, the power to regulate commerce, embraces a ing a constitutional act of congress to authorize the vast field, containing not only many, but exceedingly formation of corporations to carry on interstate and various subjects, quite unlike in their nature; some foreign commerce, including the power to produce, imperatively demanding a single uniform rule, oper- manufacture and sell the subjects of such interstate ating equally on the commerce of the United States commerce, and to confer jurisdiction upon the fedin every port; and some, like the subject now in eral courts to regulate such corporations according question, as imperatively demanding that diversity, to the principles of the common law as modified by which alone can meet the necessities of navigation. the Constitution and laws of the United States, toEither absolutely to affirm, or deny, that the nature gether with such other provisions for inspection, of this power requires exclusive legislation by con- regulation and remedies as may be needful. gress, is to lose sight of the nature of the subjects Whether or not such an act could now be passed of this power, and to assert concerning all of them, is doubtful for the States have large selfish interess what is really applicable but to a part. Whatever in favor of the present unjust, unwise and nonsubjects of this power are in their nature national, uniform and conflicting systems of corporation laws. or admit only of one uniform system, or plan of And if passed, it is doubtful if it could be upheld regulation, may justly be said to be of such a nature in respect to that part which would authorize corpoas to require exclusive legislation by congress." rations for manufacture, production and sale comConstitutions being declarations of basic principles bined, except by modifying or reversing certain intended to be operative for very long periods, and decisions. difficult of amendment, should be stated in broad and general terms, so as to avoid the rigidity of a "code." Thus is permitted that elasticity of judicial construction, which insures adaptability to changing conditions. Our people have shown their recognition of this principle by their reluctance to amend, and have rejected the vast majority of propositions for that purpose. Indeed a strong argument can be made to show that none of the fifteen amendments was neces sary, and that, under existing conditions a John Marshall could find all their beneficial powers and restrictions implied in the original Constitution except those of the thirteenth amendment. Recognizing the unwritten as well as the written Constitution he well might find that the series of amendments relating to the Bill of Rights were mere surplusage, and that the others were of no advantage. To make a sixteenth amendment extending the power of congress so as to deprive the States of the power to regulate domestic commerce," in the meaning I have ascribed to "commerce," would be a savage and unwise blow at the municipal and police powers of the State. It is inconceivable that such an amendment could be adopted. It would degrade the great States into pettiness. Under the views expressed, congress already has ample power over interstate commerce in the broadest sense, and the States over infra-state or domestic commerce. In Sherlock v. Alling (93 U. S.), Mr. Justice Field, speaking for the Supreme Court, said: "It is true that the commercial power conferred by the Constitution is one without limitation. It authorizes legislation with respect to all the subjects of foreign and interstate commerce, the persons engaged in it, and the instruments by which it is carried on." In United States v. Addystone Pipe Company (175 U. S.), the Sherman act was sustained, and an unlawful trust of manufacturing corporations was controlled as being an obnoxious monopoly. Two cases in the Supreme Court - Kidd v. Pearson (127 U. S.), and United States v. Knight (156 U. S.), appear adverse to federal regulation or formation of manufactures. But the question as to power of congress so to act did not directly arise. The opinion in the former case was by Mr. Justice Lamar, and his reasoning largely rested upon the tion between manufactures and commerce, and the argument of "inconvenience," the popular distincdesire to avoid restriction of the doctrine of States rights. Many jurists regard the dissenting opinion of Mr. Justice Harlan far stronger than that of the court that there was grave error which would be corrected in the Knight (Sugar Trust) case, and many think in a new case involving the same principles. Fortunate it is that no rash federal amendment or legislation can come suddenly to destroy the new force." Years were needed for the Constitution, and for every "force," machine or ship to "find itself." So it is with the "trust." Time, experience and public opinion will teach us how profitably to use it. Impetuous, vindictive or envious obstacles will do more ill than good. Among the "panaceas prescribed for the trust evils, is that of removing duties from articles sold by "trusts." If this removal be confined to "trusts," then it would be obnoxious as class legislation of the grossest kind. It is believed that if there were a suitable act of congress for the purpose herein indicated, there would be a class of corporations so much better adapted to the public needs, so much safer for investors and the public, that they would be as much preferred over State corporations as the national banks of issue are over State banks. And it is not believed that any, except the slightest tax would be needful to secure that preference. Thus far I have heard of no "remedies" more likely to secure uniformity, inspection, publicity and wise regulation than those that might be secured by The law passed this year amending the Domestic Relations Law (chapter 289, Laws 1902), is a step in advance of any previous legislation on the subject of married women's earnings. It is a curious fact that while the married women's property acts have been most liberally construed in this State, and have effectually secured to the wife the benefit and control of her property, the kindred legislation for the protection of the wife's earnings, whether from defccts in the statute, or the strict and narrow construction adopted by the courts, has very generally failed in its purpose. The first valuable feature of the new act lies in the elimination of the qualifying clause "on her sole and separate account" which, under the act of 1860. was the basis for so many restrictions and exceptions as almost to nullify the enabling portion of that act. Singularly enough, while public sentiment has greatly advanced upon this subject since the passage of that act, the later decisions have been more illiberal than the earlier ones in the construction placed upon it. The earlier cases laid emphasis on the enabling portion of the statute, the later ones almost invariably on the restrictive clause; one by one the earlier decisions and dicta have been distinguished, disapproved or disregarded. This is strikingly illustrated by the contrast between the rule adopted in Brooks v. Schwerin (54 N. Y. 343), decided in 1873, and that applied in the case of Klapper v. Metropolitan Street Railway Co. (69 N. Y. Supp. 955), decided in 1901, the facts being almost precisely the same. In Brooks v. Schwerin, the plaintiff, a married woman, was injured by defendant's negligence; it appeared that the plaintiff worked out by the day, earning ten shillings a day. To this proof defendant objected on the ground that her services belonged to her husband, and later requested the court to charge, "That the plaintiff cannot recover for the value of her time and services while she was disabled; such time and services belong in law to the husband." This request was refused and Earl, J., writing the opinion of the Commission of Appeals, says: "So far as she is injured so as to be disabled to perform such service (domestic) for her husband, the loss is his and not hers, and for such loss of service he, and not she, can recover of the wrongdoer. But when she labors for another, her service no longer belongs to her husband, and whatever she earns in such ser vice belongs to her as if she were a feme sole, and so far as she is disabled to perform such service by any injury to her person, she can in her own name receive a compensation against the wrongdoer for such disability as one of the consequences of the injury." The Klapper case (supra), which is credited with causing the passage of the recent act, was also an action for personal injuries caused by the defendant's negligence, but in this case the judgment of the trial court was reversed because the wife had been permitted to recover, as an item of damages, her loss of earnings amounting to eight or ten dollars a week, which she made by doing washing for strangers. In Brooks v. Schwerin, the question of pleading loss of earnings as special damage does not seem to have been raised, indeed this point seems first to have been raised in Uransky v. Dry Dock, etc., R. R. Co. (118 N. Y. 304). In the Klapper case this point. while discussed, was held not controlling, so that both of these cases seem to have been decided upon the merits. The decision in the Klapper case, though extreme, finds support, by implication at least. in the recent decisions in the Court of Appeals. To illustrate the progressive restrictions which were engrafted upon the act of 1860, the following cases may be cited: In Brooks v. Schwerin (supra), it was held that labor performed for a third person was to be considered as performed by the wife on her sole and separate account, and that she was entitled to the avails thereof. In Reynolds v. Robinson (64 N. Y. 589), it was held that services performed by the wife in the household, though for a third person and of an extraordinary nature, being in this case the nursing and care of a person afflicted with cancer, were not services performed on her sole and separate account, but that such services and the earnings resulting therefrom belonged to the husband. Thus an arbitrary distinction was drawn, founded not on the nature of the services, but on the place where they were performed, a ruling which was especially mischievous in view of the well-recognized necessity and desirability, that mothers of young children should engage in work that can be done at home. Finally, in the case of Birkbeck v. Ackroyd (74 N. Y., 356), the doctrine was evolved that it was the presumption of law that all services of the wife belonged to the husband, and that this presumption could only be rebutted by evidence of an election on her part to labor upon her sole and separate account, and this rule has been quite uniformly followed in succeeding decisions. In a number of cases it has been stated that the wife had no separate business although she was working outside the home for a third person (Klapper v. Metropolitan St. Ry. Co., supra.) An examination of the decisions shows that there was no harmony or agreement between them as to what constituted a separate business or employment; and separate business" and signify that election in in some cases it was made to depend upon the place a strictly legal manner before she was entitled to where the work was done, and a general presumption her day's earnings. arose against work performed at home. Yet, in principle, there is no valid distinction between nursing done at the home of the nurse, and nursing performed at a hospital, or in the home of the patient. Nor, on the other hand, is there any reason why the practice of medicine, literary work or dressmaking carried on at home should be considered a separate business, while nursing or the keeping of boarders is held to be service performed for the benefit of the husband. It is absurd to say that nursing strangers is a part of the wife's household duties. Another curious distinction, suggested in Birkbeck v. Ackroyd (supra), has been applied intermittently in subsequent decisions. This is, that where the wife contributes a part of her earnings to the support of her family, that is evidence that they belong to the husband. The practical effect of this ruling was that the married woman who worked for pin money or hoarded her earnings while supported by her husband, was protected, while the wife who supported herself and helped to educate her children lost thereby the ownership and control of the fruits of her own labor. On the other hand there is a line of cases that base the husband's right to his wife's earnings upon the alleged fact that he supports her. And most curious of all, it is not uncommon to find both of these arguments used to support the husband's claim in the same case. Of course the fallacy lies in saying that the husband supports his wife, when what is meant is that he maintains her out of her own earnings, and appropriates the surplus, if there be any. While it is impossible, with any certainty, to forecast judicial construction, it seems safe to assume that this new act will abolish the above anomalies and create a reasonable and consistent rule in their stead, namely, that for all services rendered to strangers, wheresoever performed, and for all services rendered to the husband, other than those naturally and ordinarily classified as household duties, the wife shall be entitled to compensation; scrvices rendered to the husband being subject, of course, to the usual presumption governing services performed by members of the same family for each other. In one negligence case, where plaintiff testified that at the time of the injury she was working in a mill, and always collected her wages, and testified to the rate of such wages, and that she had no property, cxcept what she earned, the court held that there was no evidence that she was carrying on any busincss, trade or labor on her sole and separate account, and that the fact that she collected her wages was quite consistent with her collecting them for her husband (Dawson v. City of Troy, 49 Hun, 322). In this case it will be noted the following circumstances appear: First, an employment by the wife, outside the home, under contract with a third person; second, collection of her own wages; third, her claim that such earnings were her property. It is difficult to conceive what more could be required to prove an election. It follows, logically, that by casting the presumption in favor of the wife, the present act should abrogate the rule requiring loss of earnings in an action by a married woman to be plead as special damages. That ruling was avowedly founded upon the presumption of law that the wife's earnings belonged to the husband. The maxim cessante ratione cessat lex" applies, the more clearly, as this rule of evidence was judicial, and not statutory in its origin (Uransky v. Dry Dock and East Broadway, etc., R. R. Co., 118 N. Y. 304). It may be said that knowledge of such an arrangement would be equivalent to consent, inasmuch as the wife can render the agreement nugatory by refusing to perform her part of it; but this assumption overlooks two considerations: First, the immense influence and authority of the husband among the ignorant and immigrant classes, and, second, the stern necessity that often gives the wife but the hard choice of working under what condition she may, or of going without bread for herself and her children. This farming out of the wife's services is a common custom among two classes of laborers, namely, farm workers and sweat-shop workers, the labor of the family being engaged by contract with the husband, to whom the aggregate wages are paid. Under this form of peonage women and children are working in the fields of this State and are receiving for their pay precisely what the negroes of the south received fifty years ago, food and shelter. The other great advantage of the new act is that it casts the presumption of law in favor of the wife's right to her own carnings, whereas judicial construction has formerly declared it to be in favor of the husband's claim. The difficulties of proof met by the wife under this rule, combined with the "election" theory adopted by the courts, were almost insurmountable. A woman needed to be a technical attorney to know how to protect her rights. The beneficent intent of the statute was rendered practically null as regarded the ignorant working woman | English; they are invariably ignorant of the law, and who most needed its protection. The woman of this class could hardly be expected to know that she must "elect" to make her washing or scrubbing a "sole Women of this class are commonly unable to speak hence of their rights under it. They are consequently quite helpless under any system that requires their active intervention to preserve their rights. The only law that will adequately protect the working woman is a law which shall give her unconditionally the sole and exclusive right to her own earnings, and which shall put the husband in the same position as a stranger, when he seeks to secure them, by requiring legal proof of an express contract or assignment from the wife, founded upon a valid consideration. Concerning the present statute, we can only hope that the exception will not eat up the rule, as in the former one the restriction strangled it. Loss of ownership and control of earnings is the distinguishing mark of all systems of servitude., Support and maintenance is no compensation for this loss. That also is a feature of slavery, but in no sense a justification of it. Buffalo, N. Y. HELEN Z. M. RODGERS. FRENCH TREATMENT OF JUVENILE good, and its vigilant work has saved thousands of boys from relapsing into careers of crime and shame. But how much better are juvenile delinquents treated in America. Here they have societies, schools and entertainments in every penal institution. But the safeguard of our nation lies in the preservation of the public school. May it stand a Gibraltar against ignorance, vice and crime until the end of recorded time. May it forever stand for freedom of conscience and tolerance, with its doors wide open for all, broad in its spirit as the horizon which encircles us. May we never have European demagogues in our midst to inflame and excite the weak-minded. May we never have French infidels in our midst to inculcate blasphemy, irreligious and loose morals. Oh, if men only knew what effect their bad behavior has upon the child who sees them! Oh, if men only knew how long a bad word is treasured up by the child-hearer! Why should saloons be placed right in the midst of the poor? The saloonkeeper, as he rolls by in his buck-board, never thinks of the sorrow and suffering his infernal traffic brings upon the poor. In the vulgarity of his riches, does he ever think that every dollar of his ill-gotten hoard is freighted with the tears of the widow and the orphan? Does he ever think of the little ones who suffer for bread on account of their father's unsatiable appetite for drink? Child criminals of our large cities are generally the offspring of drunken parents. Many of our wealthy citizens never think of the suffering of poor children who are left alone to battle with the world. The insatiable tyranny of greed seems to have destroyed in many of our natives that beautiful quality of true Christian charity. If the American reformers of the future will follow the example of the Nazarene, who said "Suffer little children to come unto me," the American gamin may be rescued from the perils and dangers that confront him. JOSEPH M. SULLIVAN. Of the Suffolk (Mass.) Bar. The child criminal has for years been a source of worriment to sociologists. Juvenile delinquents are differently treated in different countries. In the treatment of youthful offenders France stands in her classification and reformation of them. The institution of La Roquette is a penal institution in Paris for juvenile offenders. It has accommodation for about 500 boys, who are committed mostly for petty offenses. The system of solitary or cellular confinement is in vogue in this prison. This system has always been in vogue in Pennsylvania and is familiarly known as the Eastern Penitentiary System. It is a relic of barbarous times and should find no place in any civilized community. It has existed for years in Pennsylvania in defiance of public opinion and the laws of physiology and hygiene. It has accomplished the feat of filling the insane asylums with hundreds of unfortunate victims. But to return to my subject. The boys in La Roquette eat, play, go to school, work, attend mass, in fact, do everything in the solitude of their cells. Why children should be left alone by themselves to solitude at a time when they are weak and susceptible to evil is something I cannot account for. The results show what might justly be expected. reports published show an awful array of incorrigibles, idiots and relapses into crime. This system years ago was rejected by the entire civilized world as too severe, even for the hardened and incorrigible felons. Let us turn away from La Roquette and follow the course of a boy who has been released from La Roquette. A temporary home, called the Patronage, for juvenile delinquents affords an asylum for boys who have been discharged from La to orders he does not understand; while they let Roquette. Boys received at the Patronage are placed out wherever practicable to learn useful trades and a watchful eye is kept over them until they are set on the right path of industry and virtue. This institution has accomplished a great deal of The ONE REQUISITE OF FAIR COURTS- The existing treatises on military law might have been written by the Bourbons. Their authors learn nothing except to be as inconsistent as Louis XVI before he lost his head, and forget nothing. Their drill-sergeant minds appear buttoned up in uniform as stiffly as their mechanically obedient bodies. They march and wheei about some skeleton form with that unquestioning respect which a soldier pays pass by unheeded the departed souls of dead formulas. These celestial beings stir the writer to say that there should be a work on "Fair CourtsMartial," in which army, navy and militia statutes should be sent to the rear, so far as their accidents are concerned, for rest and hospital treatment; to recognize a claim by Mr. B. for pay to which he while the essentials, the statutory principles of jus- might have become entitled but for the omission since tice, should be given their long-deferred dress June 15, 1889, of his name from the rolls." P. 6. parade. The italics are the navy department's. Such array would be of inestimable value to the United States, enabling it to teach its soldiers and sailors and the people from which it hopes for recruits, that in entering its service they do not leave equity behind. To the official legal advisers of army and navy would this aid have an unconfessed value, for the rebukes administered by Washington courts lately (186 U. S.; 49; 36 C. Cl., 304) have a meaning not to be mistaken. On June 30, 1902, the navy department wrote to the assistant clerk of the Court of Claims, declining to furnish what it called a "confidential report made to a committee of Congress (the Senate naval) by the secretary of the navy upon legislation pending." The letter was countersigned "S. C. L.," the initials of the navy's judge-advocate-general, referred to herein by the convenient abbreviation of "J. A. G." Under date of May 29, 1902, it states that it contains his "views" on a report by the Senate committee on the judiciary relative to a bill condemning imprisonment in the navy by lettre de cachet, and adds: "The department (under the influence of its J. A. G.) recommends that the bill in question be not favorably reported." It is interesting to compare the ideas of military law held by the Senate judiciary committee (the report was drafted by a Confederate general, who won laurels at Vicksburg and on many another battlefield of military and civil warfare) and by those under which the nation's seamen are now striving. Paragraphs from judiciary report and the navy J. A. G.'s letter follow, marked J. and N., respectively: J. "The committee on the judiciary have considered this bill and have unanimously agreed that relief ought to be granted. Your committee received no oral testimony. Its findings are based entirely on the records. In July, 1882, Mr. B. was commissioned as ensign in the navy, and on the 1st of April, 1889, he was tried by a general courtmartial at the navy yard at Mare Island in California, and he was found guilty and sentenced to be dismissed. Your committee have examined the complete record of that trial and the laws applicable to such cases in such courts, and find that the trial and sentence of Mr. B. were illegal and void." N. "The attitude of the department is that the proceedings, findings and sentence of the courtmartial referred to were regular, legal and effective, and that Mr. B. has no more claim to pay, since June 15, 1889, than has any other former officer of the navy who has been likewise dismissed" [The judiciary report] "appears, indirectly if not directly, J. "In the first plea, it should be noticed that courts-martial are not courts of general jurisdiction, but are courts of special and limited jurisdiction, and, to sustain their judgments, everything necessary to get and retain jurisdiction must affirmatively appear on the record of every case. Nothing can be presumed to sustain jurisdiction. * "The Supreme Court said, in Runkle v. United States (122 U. S. R., 543, 555, 558) * *"" Here follows a quotation which, twelve days afterwards, was adopted in McClaughry v. Deming (186 U. S., 63). The judiciary report then cited Dynes v. Hoover (20 How., 65, 81), that when the "law directing court-martial proceedings for trial has been disregarded everything which may be done is void." This was also affirmed by the United States Supreme Court as being the true court-martial principle from time immemorial, in its latest courtmartial decision (186 U. S., 63). N. "I am informed by the judge-advocate-general that the jurisdictional features disclosed by the record in this case are in no particular unusual, and that if the proceedings of the court, by which Mr. B. was tried and sentenced to dismissal were, for the reasons stated by the judiciary committee, 'illegal and void,' the same is true, practically, of every naval general court-martial held during the past forty years." The argument here is that Congress should indorse a wrong because the wrong has been long continued and very great. But the necessary overturning is not so vast as the "Navy Department' says it believes. A review of other records, old regulations, etc., would show that illegal naval trials are contemporary only with the rise of the present naval judge-advocate-general. The condemnation which he opposes would be a condemnation, in effect, of him personally. See New York Maritime Register of Oct. 29 and Nov. 5, 1902. N. "The second point made in the report is that two of the offenses charged, i. e., the offenses of disrespect set forth in the second and third charges, were known to the secretary of the navy in October, 1888, but no notice was taken of them by way of arrest or charges until the 21st of March, 1889. This relates to a matter of administration. It rested in the discretion of the secretary of the navy to prefer those charges at such time as he deemed for the best interests of the service." J. "These are the charges of 'disrespect to the acting secretary of the navy' and 'disrespect to the secretary of the navy.'" This withholding was not in accordance even with |