ual experience of nineteen centuries. That Christ lives in the fulness of His personal life, and that He is King of humanity, as well as Head of the Church, is Dr. Crapsey's joyful conviction. Why do not his opponents see that this is the core of the Christian message, and that they are endangering the very religion they profess to serve by binding it up with traditional ideas of the circumstances of its origin?

Within the Episcopal Church as within other churches the battle is really between the theologians and the ecclesiastics. The ecclesiastics are those who may claim spiritual descent from him of the seventeenth century who charged the men of his day with "the impious and profane audacity of changing a single vowel-point in the Word of God, or of substituting a smooth breathing for a rough, or a rough for a smooth," and whose daily prayer was, "Imple me, Deus, odio hereticorum." The theologians on the contrary, know that their science deals with the great Insolubles of God, Life, Sin, Salvation, Destiny, and that these cannot be adequately conceived in thought or set forth completely in human speech. They have learned to be modest, to confess their ignorance and limitation on many subjects which at one time were thought to be fully explored and known. They have also learned to distinguish between the realms of History and Faith, and are convinced that while History is the realm of the relative and the temporal, Faith is the realm of the absolute and the eternal. The ecclesiastics may beat their drum

and make much noise, but as history shows, when the Church is in real danger, it is the theologians that save her.

Of the outcome of the conflict on which, as it seems, the Church has entered, there can be no reasonable doubt. A few years ago the struggle was waged round the Old Testament. The critical school has won all along the line. The worst thing you can say to-day of a man's views of the Old Testament is that they are "pre-critical." The principles of criticism are now being applied to the literature of the New Testament, the historical origins of Christianity. Just as in the former battle, so in this, criticism will win the day. It will pass through three stages: first the new views will be hated and their upholders, if possible, thrust out of the Church with contumely and reproach. Then will come a suspicion that after all the heretics may be right or at least not fatally wrong. And finally, a new conception will arise in which all that is vital in heresy will be incorporated, and we will burn what we have adored and proceed to adore what we have burned. If Dr. Crapsey should eventually suffer in an ecclesiastical sense, let him take comfort from the thought that he will do so in company with the prophets, with Maurice, with Jowett, with Macleod Campbell, with Robertson Smith and with his own great master, Count Leo Tolstoi, and that as in the case of these men, after he has been stoned, he will receive a monument.

Boston, Mass.

KATHERINE KILGORE.

HE DISTINCTIVELY Anglo-Saxon crime is "contempt of court." Not only is it of peculiarly Anglo-Saxon origin, but it is the one anomaly in the jurisprudence of the United States and of the Anglo-Saxon countries.

The distinguishing peculiarities of the crime are these: (1) No man may certainly know when he commits it; (2) there is no right of trial by jury to determine the guilt or innocence of the person charged; (3) the offender is arraigned before his accuser alone, who is prosecutor, judge and jury in the cause; (4) there is no limitation upon the amount of the fine or the extent of the imprisonment imposed; and (5) no power on earth can pardon one convicted of the crime.

Thus, if one say of a judge that he reaches his decisions through bias and prejudice, this is a grievous contempt, and there is no way to escape whatsoever penalty the judge may see fit to impose. Even the truth of the charge can be no defense, because the offended judge himself is the trier of the facts, and to attempt a defense by justification would be simply to ask the judge to convict himself of incompetency in the administration of his office. Such a state of facts may well suggest the facetious couplet attributed to Robert Burns:

"For you know that old Mansfield, who writes like the Bible,

Says, the more 't is the truth, sir, the more 't is a libel."

As illustrating the extent to which the doctrine of contempt of court is sometimes carried, a Southern lawyer tells of a modern Dogberry who was the judge of a county court, and as such had some duties besides legal ones to perform, but who never for a moment forgot that he

was at all times the "embodiment of the law." Among his extra-judicial functions this county judge sometimes performed the duties of an auctioneer. As such, on one occasion, he was employed to dispose of the stock of a retailer who had died a short time before. While the auction was in progress one of the bidders became so boisterous that the auctioneer was finally exasperated to the point of suddenly assuming his character as judge, and as such he fined the offender the sum of $25 for contempt of court. An attorney on the ground immediately made application for remission of the fine, maintaining that the judge, when acting as an auctioneer was not sitting in his capacity as a court, and that therefore the crime of contempt of court could not be committed. The judge heard the argument with increasing wrath, rising to the height of his dignity when the attorney closed, and then, glaring fiercely at the presumptuous lawyer, pronounced the following solemn judgment: "Sir, I would invite your attention to the fact that I am the judge of this county under any and all circumstances; I am, sir, the judge, from the rising of the sun to the setting of the same! And as such, sir, let me tell you that I am always and everywhere an object of contempt!"

Although a knowledge of these facts is practically confined to the learned and limited coterie of bench and bar, yet they are as ancient as the common law of England.

Only the judges have the power to define contempt, and these definitions may narrow or broaden with judicial caprice. In England it has even been held a contempt to say that certain words did not constitute a contempt, and that decision has been cited with approval by American

courts, so that the more that one attempts to deny his guilt the deeper he is likely to become involved in it. No man can know of a certainty whether his words will be regarded as a contempt, until after he has uttered them and is advised by the court at whose bar he is arraigned. Nor can he imagine the extent of his punishment, until judgment shall have been pronounced.

This is the law throughout the British empire and in every state in the American union excepting two, viz., Georgia and Louisiana. In these two states the State constitutions authorize the State Legislatures to define contempt of court and say what the minimum and maximum punishment shall be. All the other American constitutions are silent upon the subject, and wherever statutes have been enacted seeking to abridge, impair, define, limit or regulate the supreme judicial power involved in the law of contempts, those statutes, wherever tested, have been declared and held to be unconstitutional and void as attempts to destroy the "inherent power" of the

courts.

These views are established in opinions rendered by the supreme courts of Alabama, Arkansas, California, Connecticut, Florida, Indiana, Illinois, Kansas, Kentucky, Massachusetts, Maine, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Tennessee, West Virginia, Colorado, Georgia, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Vermont, Virginia, by the United States courts, and by the supreme court of Missouri, the last-named court affording the most recent and exhaustive decision, which is found in the 177th volume of the Missouri Supreme Court Reports, at page 205, where all the decisions and authorities are collated.

The two great law-writers on the subject, Rapalje on Contempt and Paterson on Liberty of the Press, also support these views of the law, as does the American

and English Encyclopædia of Law (2d edition), Vol. VII.

What is now known as "constructive contempt" (i. e., contempts not committed by means of overt acts in the immediate presence of the court), was known under the old English common law as scandalum magnatum, and the offense consisted of "scandalizing the sovereign, the ministers, members of Parliament, the courts and the judges, and other persons of high rank."

Upon the authorities above cited it may be stated that in the United States the scandalum magnatum was never revised in its entirety but once since the Revolution, and that was in the old Alien and Sedition Law, under the elder Adams. Since the repeal of that statute scandalum magnatum has no application in this country excepting to courts and judges, and they have steadfastly overruled and set at naught all legislative attempts to get away from the common law of England on this subject.

The American Congress has never claimed the inherent powers exercised by the British Parliament in this regard, nor have the State legislatures, nor has any American executive ever sought to invoke the scandalum magnatum in defense of his reputation, but the judiciary has constantly and consistently claimed the power as one of its inherent and inseparable attributes as a separate and distinct branch of the government.

In singular contrast with this AngloSaxon peculiarity was the Latin view of the same subject. Although the Roman laws of libel and slander were the most stringent of the ancient world, they in all cases relegated the injured party, whether public official, court or executive, to his private remedy at law, and the summary procedure involved in the law of contempts was unknown to the Romans. While the Latins protected private character, they were not sensitive to the quasiseditious utterances characterized by the

common law of England as scandalum magnatum.

A learned writer says that the first case reported was that wherein the Emperor Augustus wished "to punish a historian who passed some stinging jests on him and his family, but Maecenas advised him that the best policy was to let such things pass and be forgotten." Cæsar said that to retaliate was only to contend with impudence and put one's self on the same level. Tiberius expressed a like opinion. The Theodosian Code expressly declared that slanderers of majesty should be unpunished, for if this proceeded from levity, it was to be despised; if from madness, it was to be pitied; and if from malice, it was to be forgiven; for all such sayings were to be regarded according to the weight they bore.

But the modern nations of the continent of Europe have in their lèse majesté an offense perfectly analagous to the scandalum magnatum of the common law and the "constructive contempt" of the American law.

In applying the law of constructive

contempt to "seditious" newspaper men the American courts, however, have always taken pains to say that the press in this country has unlimited freedom, subject, of course, to the court's right to say whether or not it has abused that freedom; which is much like Oliver Cromwell's grant of religious freedom to the Irish, when he said: "Let them practise what religion they please, but if any man of them be caught saying mass, let him be hanged."

And yet, when one considers the tremendous and absolute power which the judiciary has taken to itself in the matter of constructive contempts, astonishment at the existence of that power in a free country is no greater than that which arises when we contemplate the singular wisdom and forbearance with which it has been usually exercised, the courts to this time having fairly lived up to the old maxim, that it is well to have a giant's power, but villainous to use it like a giant. But the germ of absolutism is there, and may yet bear fruit.

THOMAS SPEED MOSBY.

Jefferson, Mo.

The justification for state interference in fixing the hours of labor is thus stated by Sidney Webb and Harold Cox:†

"The state is compelled to interfere between machinery and man, because otherwise man would be crushed by the

demon of his own creation."

Economists generally deny that an eight-hour work-day would have the effect claimed for it by labor, of diminishing the output so materially that more workers would have to be employed to supply the deficiency. But it seems to be generally admitted that such was the effect of the adoption of the ten-hour day. Webb and Cox, Eight-Hour Day, p. 95. For us, who believe in the nobility of toil and in the right of the toiler to the full product of his toil, it is as little as we can do, while such product goes in large part into the hands of those who do not produce it, to treat at least sympathetically every struggle for a shorter working-day. Of course it is easy to point out the inevitableness of such a struggle under the existing economy, also its persistent re

*A six-hour work-day has already been proposed in New Zealand, and it is familiar knowledge that if we had no drones and all bees in the hive were workers, three hours or less of work per day would be sufficient to meet all the demands of production. Parson's Story of New Zealand, p. 585. But the report of the Industrial Commission says, "there is no proposition of any weight for a five or a six-hour day," and seems to conclude that an eight-hour day is about right, that it gives time to improve the home, to study the problems of citizenship and to better the character, and incidentally the whole community, Rep. Indus. Com., Vol. XIX., pp. 772-8. A six

currence, running the gamut from eighteen hours to sixteen, from sixteen hours to fourteen, from fourteen hours to twelve, from twelve hours to ten, from ten hours to nine or eight, from eight hours to seven or six, and so on down the weary scale, unless, meantime, the right remedy is applied and a right economy is adopted and labor is at last allowed to claim its

own.

LOOKING DOWN THE CENTURIES.

As to the present struggle throughout a large portion of the civilized world for an eight-hour day, it is not without profit to remember that, at least as to the build

ing trades, eight hours was the normal working-day in England even as long ago those particular crafts labor is now simply as the fifteenth century, and that as to trying to recover lost ground.

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The "guild" laws that existed prior to the coming of modern machinery and the factory system always provided: "no one shall work longer than from the beginning of the day until curfew," nor at night by candle-light." But at the particular period when modern machinery and manufactures overturned the then existing order, the working hours in the new employments were unlimited; and, as is always the case with task-drivers trying to stand solid with their employers by producing large results and profits, no mercy was shown to the toilers. Men, women and children, even boys and girls less than ten years old,—in the factories, and in the mines to furnish the factories with coal, were obliged to work each day from fourteen to sixteen hours! hour day is enough for the boot and shoe trade and would increase employment. Id., Vol. VII., pp. 38-9.

†The Eight-Hour Day, p. 248; Adams and Sumner, Labor Problems p. 261; Rep. Indus. Com., Vol. XIX., pp. 764–772; Id., Vol. VII., p. 38; Id., Vol. XII., pp. xiv., lxxii., cxxx.; Id., Vol. XIV., p. cix.; Id., Vol. XVII., p. xlv.

J. E. Thorold Rogers, Six Centuries of Work and Wages in England; Webb and Cox, EightHour Day, p. 14.

¿Brentano's History and Development of Guilds.