Statutory Interpretation 2nd Edition Ruth Sullivan
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- 5. Statutory Interpretation 2nd Edition Ruth Sullivan Digital Instant Download Author(s): Ruth Sullivan ISBN(s): 9781552211380, 155221138X Edition: 2nd File Details: PDF, 2.04 MB Year: 2007 Language: english
- 7. STATUTORY INTERPRETATION S E C O N D E D I T I O N
- 8. Other books in the Essentials of Canadian Law Series Intellectual Property Law Income Tax Law Immigration Law International Trade Law Family Law Copyright Law Remedies: The Law of Damages Individual Employment Law The Law of Equitable Remedies Administrative Law Ethics and Canadian Criminal Law Public International Law Environmental Law 2/e Securities Law Youth Criminal Justice Law Computer Law 2/e The Law of Partnerships and Corporations 2/e The Law of Torts 2/e Media Law 2/e Maritime Law Criminal Law 3/e Insurance Law International Human Rights Law Legal Research and Writing 2/e The Law of Evidence 4/e The Law of Trusts 2/e Franchise Law The Charter of Rights and Freedoms 3/e Personal Property Security Law The Law of Contracts Pension Law Constitutional Law 3/e Legal Ethics and Professional Responsibility 2/e Refugee Law Mergers, Acquisitions, and Other Changes of Corporate Control Bank and Customer Law in Canada
- 9. E S S E N T I A L S O F C A N A D I A N L A W STATUTORY INTERPRETATION RUTH SULLIVAN Faculty of Law, University of Ottawa S E C O N D E D I T I O N
- 10. Statutory Interpretation, second edition © Irwin Law Inc., 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior written permission of the publisher or, in the case of photocopying or other reprographic copying, a licence from Access Copyright (Canadian Copyright Licensing Agency), 1 Yonge Street, Suite 800, Toronto, ON, M5E 1E5. Published in 2007 by Irwin Law Inc. 14 Duncan Street Suite 206 Toronto, ON M5H 3G8 www.irwinlaw.com ISBN-13: 978-1-55221-138-0 Library and Archives Canada Cataloguing in Publication Sullivan, Ruth, 1946– Statutory interpretation / Ruth Sullivan.—2nd ed. (Essentials of Canadian law) Includes bibliographical references and index. ISBN 978-1-55221-138-0 1. Law—Canada—Interpretation and construction—Textbooks. I. Title. II. Series. KE482.S84S94 2007 349.71 C2007-902911-6 KF425.S94 2007 The publisher acknowledges the financial support of the Government of Canada through the Book Publishing Industry Development Program (BPIDP) for its publishing activities. We acknowledge the assistance of the OMDC Book Fund, an initiative of Ontario Media Development Corporation. Printed and bound in Canada. 1 2 3 4 5 11 10 09 08 07
- 11. v SUMMARY TABLE OF CONTENTS FOREWORD TO THE FIRST EDITION xv OVERVIEW: STATUTORY INTERPRETATION 1 CHAPTER 1: Introduction to Statute Law 5 CHAPTER 2: Introduction to Statutory Interpretation 29 CHAPTER 3: Ordinary Meaning 49 CHAPTER 4: Technical Meaning and Meanings Fixed by Law 62 CHAPTER 5: Bilingual and Bijural Legislation 83 CHAPTER 6: Original Meaning 100 CHAPTER 7: Plausible interpretation, Gaps, and Mistakes 112 CHAPTER 8: The Entire Context 128 CHAPTER 9: Textual Analysis 164 CHAPTER 10: Purposive Analysis 194 CHAPTER 11: Consequential Analysis 209 CHAPTER 12: Policy Analysis 218 CHAPTER 13: The Presumed Application of Legislation 247 CHAPTER 14: Extrinsic Aids 279 CHAPTER 15: Overlap and Conflict 303 TABLE OF CASES 321 INDEX 335 ABOUT THE AUTHOR 347
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- 13. vii DETAILED TABLE OF CONTENTS FOREWORD TO THE FIRST EDITION xv OVERVIEW: STATUTORY INTERPRETATION 1 CHAPTER 1: INTRODUCTION TO STATUTE LAW 5 A. Types of Legislation 5 1) Statutes 5 2) Public, Local, and Private Acts 7 3) Permanent and Amending Acts 8 4) Enabling and Delegated Legislation 10 5) Reform and Program Legislation 11 6) Guidelines and Other Forms of Quasi-Legislation 13 B. Drafting Conventions 14 C. Elements of Legislation 15 1) Provisions 15 2) Components 15 3) The Legislative Sentence 15 4) Sections, Subsections, and Paragraphing 18 5) Legislative Structure 19 D. Temporal Operation of Legislation 20 1) Enactment 21 2) Commencement or Coming into Force 21 3) Expiry or Repeal 22 4) Inoperability 22
- 14. STATUTORY INTERPRETATION viii 5) Re-enactment 23 6) Amendment 24 7) Codes and Codification 26 8) Consolidation 26 9) Statute Revision 27 10) General Statute Revision 27 CHAPTER 2: INTRODUCTION TO STATUTORY INTERPRETATION 29 A. What is Involved in Interpretation 29 B. Sources of Statutory Interpretation Rules 31 C. Important Concepts 32 1) Legislative Intent 32 2) Parliamentary Sovereignty 33 3) Rule of Law 34 4) Separation of Law and Politics 35 5) Common Sense 36 D. The Judicial Task 37 E. Overview of Interpretation Rules 40 1) Driedger’s Modern Principle 40 2) A Survey of the Rules 42 a) Rules About Meaning 42 b) Rules About Application 43 c) Types of Analysis 44 d) Rules Based on Drafting Conventions 44 e) Rules That Introduce Values into Interpretation 45 f) Rules That Permit Judges to Change the Text 46 g) Rules Governing the Use of Extrinsic Aids 47 h) Rules Dealing with Overlap and Conflict 47 CHAPTER 3: ORDINARY MEANING 49 A. Ordinary Meaning Is Presumed 49 B. What Is Meant by Ordinary Meaning 50 C. How Ordinary Meaning Is Established 51 D. The Role of Textual Analysis 52 E. The Role of Dictionaries 53 F. How the Ordinary Meaning Presumption Is Applied 55
- 15. Detailed Table of Contents ix G. The Limits of Ordinary Meaning 56 H. The Plain Meaning Rule 57 CHAPTER 4: TECHNICAL MEANING AND MEANINGS FIXED BY LAW 62 A. Presumptions Applicable to Technical Meaning 62 B. Legal Terminology 65 C. Meanings Fixed by Law 67 1) Statutory Definitions 68 a) Exhaustive versus Non-Exhaustive Definitions 68 b) Uses of Statutory Definitions 69 2) Interpretation Acts 71 3) Legislative Interpretation 72 D. Drafting Conventions 72 1) “May” and “Shall” 73 a) “May” Confers Powers: Discretionary versus Obligatory 73 b) “Shall” Imposes Duties: Mandatory versus Directory 78 2) “And” and “Or” 81 a) Joint or Joint and Several “and” 81 b) Exclusive or Inclusive “or” 81 CHAPTER 5: BILINGUAL AND BIJURAL LEGISLATION 83 A. Bilingual Legislation 84 1) Shared Meaning Rule 85 2) Limits of Shared Meaning 86 3) Absence of Shared Meaning 88 4) Methodology 89 B. Bijural Legislation 91 1) Recent Reforms 92 2) Drafting Conventions 93 3) Interpretation Rules 96 CHAPTER 6: ORIGINAL MEANING 100 A. The Original Meaning Rule 100
- 16. STATUTORY INTERPRETATION x B. Criticism of the Original Meaning Rule 101 C. Dynamic versus Static Approach 102 D. Factors Affecting Which Approach Is Adopted 104 1) Legislative Intent 104 2) Politics versus Law 105 3) The Type of Language to Be Interpreted 106 4) Functional Equivalence 107 E. How the Approaches are Applied 107 F. Obsolescence 110 CHAPTER 7: PLAUSIBLE INTERPRETATION, GAPS, AND MISTAKES 112 A. The Plausible Meaning Rule 112 B. Problems with the Plausible Meaning Rule 114 1) Unclear Concept of Plausibility 114 2) Misleading Rhetoric 115 3) Ill-Defined Exceptions 117 4) Varying Judicial Views 117 C. Implausible Interpretations 119 D. Gaps in the Legislative Scheme 120 E. Drafting Errors 124 CHAPTER 8: THE ENTIRE CONTEXT 128 A. Introduction 128 B. The Act as a Whole 131 1) Related Provisions Elsewhere in the Act 132 2) Internal Groupings 134 3) Components 135 a) Titles 137 b) Preambles 138 c) Purpose Statements 141 d) Headings 142 e) Marginal Notes 144 f) Schedules 145 4) The Legislative Scheme 147
- 17. Detailed Table of Contents xi C. Related Statutes (Statutes in pari materia) 149 D. The Statute Book as a Whole 151 E. The Law of Other Jurisdictions 153 1) Comparison of Legislative Texts 153 2) Case Law Interpreting the Legislation of Other Jurisdictions 155 F. The Legal Context 155 G. The External Context 159 1) Proof of External Context 159 2) Use of External Context 160 CHAPTER 9: TEXTUAL ANALYSIS 164 A. Assumptions Underlying Textual Analysis 164 1) Linguistic Competence 165 2) Drafting Competence 165 3) Encyclopedic Knowledge 166 4) Straightforward Expression 166 5) Orderly Arrangement 167 6) Coherence 167 7) No Tautology 167 8) Consistent Expression 167 B. Techniques Used in Textual Analysis 168 C. The Associated Words Rule (Noscitur a sociis) 175 D. The Limited Class Rule (Ejusdem generis) 178 E. Collocation 182 F. Every Word Must Be Given Meaning 184 G. Same Words, Same Meaning—Different Words, Different Meaning 185 H. Departure from a Pattern or Practice 187 I. Implied Exclusion (Expressio unius est exclusio alterius) 190 CHAPTER 10: PURPOSIVE ANALYSIS 194 A. Introduction 194 B. What Is Meant by Legislative Purpose 195 C. How Legislative Purpose Is Established 196
- 18. STATUTORY INTERPRETATION xii 1) Authoritative Descriptions of Purpose 196 2) Purpose Inferred from Text Alone 199 3) Purpose Inferred from Mischief to Be Cured 201 4) Purpose Inferred from Legislative Evolution 203 D. Uses of Purposive Analysis 205 CHAPTER 11: CONSEQUENTIAL ANALYSIS 209 A. Introduction 209 B. When May Consequences Be Labelled Absurd? 209 C. How Should Courts Respond to Absurdity? 212 D. Justification for Avoiding Absurd Consequences 215 CHAPTER 12 POLICY ANALYSIS 218 A. Justification for Policy Analysis 218 B. Strict and Liberal Construction 220 1) Penal Legislation 223 2) Interference with Rights 225 3) Exceptions to General Law 227 4) Fiscal Legislation 228 5) Remedial Legislation 232 6) Social Welfare Legislation 233 7) Legislation Relating to Aboriginal Rights 233 8) Legislation Relating to Human Rights 234 C. Presumptions of Legislative Intent 236 1) Presumed Compliance with Constitutional Law, Including Charter Norms 238 2) Presumed Compliance with International Law 241 3) Presumed Compliance with Common Law 244 D. Direct Appeal to Policy 245 CHAPTER 13: THE PRESUMED APPLICATION OF LEGISLATION 247 A. Introduction 247 B. The Temporal Application of Legislation 248 1) Overview 248
- 19. Detailed Table of Contents xiii 2) Definitions and Distinctions 250 a) The Difference between Temporal Operation and Temporal Application 250 b) The Unit of Analysis Used in Determining Temporal Application 251 c) Terminology 251 d) Summary 254 3) Underlying Values 254 4) Methodology 255 5) Examples 257 6) Presumption against Retroactive Application 259 a) The Drawbacks and Advantages of Retroactivity 259 b) How the Presumption Is Applied 260 7) Presumption against Retrospective Application 261 a) Overview 261 b) Exceptions 264 i) Beneficial Legislation 264 ii) Legislation Designed to Protect the Public 264 iii) Legislation That Is Purely Procedural 264 8) Immediate Application 265 9) Presumption against Interference with Vested Rights 266 a) Overview 266 b) Rebuttal 269 10) Transitional Provisions 271 C. Presumption against Extraterritorial Application 272 D. Presumption against Application to the Crown 275 1) Overview 275 2) Crown Agents 278 CHAPTER 14: EXTRINSIC AIDS 279 A. Introduction 279 B. Legislative History 280 1) Legislative History Defined 280 2) The Exclusionary Rule and Its Demise 282 a) Ways to Use Legislative History to Determine Legislative Intent 282 b) Direct versus Indirect Evidence of Legislative Intent 283 c) Constitutional Case Law 284 d) Current Position 285 C. Model Legislation 290
- 20. STATUTORY INTERPRETATION xiv D. Legislative Evolution 291 1) Steps to Follow in Tracing Evolution 291 2) Example of Formal Change 293 3) Example of Substantive Change 294 4) Combining Legislative Evolution and Legislative History 295 E. International Agreements 296 1) Implementing Legislation 297 2) Incorporation by Reference 298 F. Authoritative Opinion 299 1) Judicial Interpretation 299 2) Interpretation by Tribunals 300 3) Administrative Interpretation 300 4) Scholarly Interpretation 301 CHAPTER 15: OVERLAP AND CONFLICT 303 A. Overlap with Other Legislation 303 1) Overlap without Conflict 304 2) Conflict Avoidance 304 a) Legislative Fiat 304 b) Judicial Interpretation 305 3) One of the Provisions Is Meant to Be Exhaustive 307 4) Conflict Resolution 309 a) Federal Legislation 310 b) Human Rights Legislation 310 c) Implied Exception (Specialia Generalibus Non Derogant) 310 d) Implied Repeal 311 e) Delegated Legislation 311 f) How the Rules Are Applied 312 B. Overlap with Common Law 313 1) Legislation Incorporates or Codifies the Common Law 314 2) Legislation Supplements the Common Law 317 3) Legislation Is Meant to Be Exhaustive 318 4) Legislation Conflicts with Common Law 319 TABLE OF CASES 321 INDEX 335 ABOUT THE AUTHOR 347
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- 22. go further into details struck people, twenty years ago, as rather a disgusting proceeding. Now we have all, everywhere, grown out of this primitive innocence. We have been driven away from our old casual ways of reproducing ourselves, and are forced to think about what we are doing. There is nothing very interesting or curious about this. It is simply a rather unpleasant fact. What is interesting is that Chicago seems to be thinking more than the rest of us, is at all events more interested than the rest of us in the range of subjects which I have very roughly called eugenics. Chicago is, apparently, buying more books on these subjects, and presumably buys them in order to read them. Is this a symptom of the existence of a latent vein of weakness in Chicago? I am not a very good judge of a question of this sort. The whole subject of Eugenics and all the other subjects which are associated with it are extremely distasteful to me. I like to think of young men and young women falling in love with each other and getting married because they are in love without considering overmuch the almost inevitable consequences until these are forced upon them. I fancy that in an entirely healthy community things would be managed in this way, and that the result, generally speaking and taking a wide number of cases into consideration, would be a race of wholesome, sound children, fairly well endowed with natural powers and fitted to meet the struggle of life. But Chicago evidently thinks otherwise. The subject of Eugenics is studied there, and, as a consequence of the study, a number of clergy of various churches have declared that they will not marry people who are suffering from certain diseases. They have all reason on their side. I admit it. I have nothing to urge against them except an old-fashioned prejudice in favor of the fullest possible liberty to the individual. Yet I cannot help feeling that it is not a sign of strength in a community that it should think very much about these things. A man seldom worries about his digestion or reads books about his stomach until his stomach and his digestion have gone wrong and begun to worry him. A great interest in what is going on in our insides is either a sign that things are not going on properly or else a deliberate
- 23. invitation to our insides to give us trouble. It is the same with the community. But I should not like to think that anything either is or soon will be the matter with Chicago. It would be a lamentable loss to the world if Chicago's definite "I will" were to weaken, if the native hue of this magnificent, self-confident resolution were to be sicklied o'er with a pale cast of thought. At present, at all events, there is very little sign of any such disaster. It happened that while we were in Chicago there was some sort of Congress of literary men. They dined together, of course, as all civilized men do when they meet to take counsel together on any subject except the making of laws. In all probability laws would be better made if Parliaments were dining clubs; but this is too wide a subject for me to discuss. The literary men who met in Chicago had a dinner, and I was highly honored by receiving an invitation to it. I wish it had been possible for me to be there. I could not manage it, but I did the next best thing, I read the report of the proceedings in the papers on the following morning. One speaker said that he looked forward to the day when Chicago would be the world center of literature, music and art. He was not, of course, a stranger, one of the literary men who had gathered there from various parts of America. He was a citizen of Chicago. No stranger would have ventured to say so magnificent a thing. As long as Chicago says things like that, simply and unaffectedly, and believes them, Chicago can study eugenics as much as it likes, might even devote itself to Christian Science or take to Spiritualism. It would still remain strong and sane. For this was not a silly boast, made in the name of a community which knows nothing of literature, music or art. Chicago knows perfectly well what literature is and what art is. Chicago understands what England has done in literature and art, what France has done, what Germany has done. Chicago has even a very good idea of what Athens did. If I were to say that I looked forward to inventing a perfect flying machine I should be a fool, because I know nothing whatever about flying machines and have not the dimmest idea of what the difficulties of making them are. If Chicago were as ignorant about literature and art as I am about aeronautics, its hope of becoming the world center of these things would be fit
- 24. matter for a comic paper. What makes this boast so impressive is just the fact that Chicago knows quite well what it means. There are no bounds to what a man can do except his own self- distrust. There is nothing beyond the reach of a city which unfalteringly believes in itself. No other city believes in itself quite so whole-heartedly as Chicago does, and I expect Chicago will be the world center of literature, music and art. There is nothing to stop it, unless indeed Chicago itself gives up the idea and chooses to be something else instead. It may, I hope it will, decide to be the New Jerusalem, with gates of pearl and streets of gold and a tree of life growing in the midst of it. Then Chicago will be the New Jerusalem and I shall humbly sue to be admitted as a citizen. My petition will, I am sure, be granted, for the hospitality of the people of Chicago seems to me to exceed, if that be possible, the hospitality of other parts of America. I am not sure that I should be altogether happy there, even under the new, perfected conditions of life; but perhaps I may. I was indeed born in Belfast, and as a young man shared its spirit. That gives me hope. But I left Belfast early in life. I have dwelt much among other peoples, and learned self-distrust. It may be too late for me to go back to my youth and learn confidence again. If it is too late, I shall not be really happy in Chicago.
- 25. CHAPTER VII MEMPHIS AND THE NEGRO Chicago is generous as well as strong. There is no note of petty jealousy in its judgment of other cities. Memphis belongs to the South and is very different from the cities of the East and the middle West. It is easily conceivable that Chicago might be a little contemptuous of Memphis, just as Belfast is more than a little contemptuous of Dublin. But Chicago displays a fine spirit. I was assured, more than once, when I was in Chicago, that Memphis is a good business city, and I suppose that no higher praise could be given than that. I never met a Belfast man who would say as much for Dublin. But, of course, Chicago is not in this matter so highly tried as Belfast is. Memphis does not assume an air of social superiority to Chicago as Dublin does to Belfast. It is not therefore so very hard for Chicago to be generous in her judgment. Perhaps "generous" is the wrong word to use; "just" would be better. No generosity is required, because Memphis really is one of those places in which business is efficiently done. Timber, I understand, is one of the things in which Memphis deals. Cotton is another. I do not know which of the two is a greater source of trade, but cotton is the more impressive to the stranger. The place is full of cotton. Mule carts drag great bales of it to and from railway stations. Sternwheel steamers full of it ply up and down the Mississippi. I shall never again take out a pocket handkerchief—I use the cheaper, not the linen or silken handkerchief—without looking to see if there is a little piece of white fluff sticking on my sleeve. When I next visit one of the vast whirling mills of Lancashire I shall think of a large quiet room in Memphis full of tables on which are laid little bundles of cotton, each bearing a neat ticket with mysterious numbers and letters written on it. As I watch the operatives tending the huge machines which spin their endless threads, I shall think of the men who handle the samples of the cotton crop in that Memphis office. They take the stuff between their fingers and thumbs and slowly pull
- 26. it apart, looking attentively at the fine fibers which stretch and separate as the gentle pull is completed. By some exquisite sensitiveness of touch and some subtle skill of glance they can tell to within an eighth of an inch how long these fibers are. And on the length of the fiber depends to a great extent the value of the crop of the particular plantation from which that sample comes. Outside the windows of the room is the Mississippi,—a broad, sluggish, gray river when I saw it; where the deeply laden steamers splash their way from riverside plantations to Memphis and then down to New Orleans, where much of the cotton is shipped to Europe. Beyond the room where the cotton is graded is an office, a sunlit pleasant place with comfortable writing desks and a case full of various books. You might fancy yourself in the private room of some cultivated lawyer in an English country town, if it were not that in a corner of that office there stands one of those machines which, with an infinite amount of fussy ticking, disgorge a steady stream of ribbon stamped with figures. In New York and Liverpool men are shouting furiously at each other across the floors of Cotton Exchanges. Prices are made, raised, lowered by their shouts. Transactions involving huge sums of money are settled by a gesture or two and a shouted number. A hand thrust forward, palm outward, sells what twenty panting steamers carry to the Memphis quays. A nod and a swiftly penciled note buys on the assurance that the men with the sensitive fingers have rightly judged the exact length of a fiber, impalpable to most of us. All the time the shouting and the gestures are going on thousands of miles away this machine, with detached and unexcited indifference, is stamping a record of the frenzied bidding, there in the sunlit Memphis office. Chicago is no more than just when it says that Memphis is a city where business is done. Modern business seems to me the most wonderful and romantic thing that the world has ever seen. A doctor in London takes a knife and cuts a bit out of a man's side. By doing that he acquires, if he chooses to exercise it, the right to levy a perpetual tax on the earnings of a railway somewhere in the Argentine Republic. No traveler on that railway knows of his existence. None of the engine
- 27. drivers, porters, guards or clerks who work the railway have ever heard of that doctor or of the man whose side was cut. But of the fruit of their labors some portion will go to that doctor and to his children after him if he chooses, with the money his victim pays him, to buy part of the stock of that railway company. An obscure writer, living perhaps in some remote corner of Wales, tells a story which catches the fancy of the ladies who subscribe to Mudie's library. He is able, because he has written feelingly of Evangelina's first kiss, to take to himself and assure to his heirs some part of the steel which sweating toilers make in Pittsburgh, or, if that please him better, he can levy a toll upon the gold dug from a mine in South Africa. What do the Pittsburgh steel workers know or care about him or Evangelina or the ladies who thrill over her caress? Why should they give up part of the fruit of their toil because an imaginary man is said to have kissed a girl who never existed? It is very difficult to explain it, but all society, all nations, peoples and languages agree that they must. The whole force of humanity, combined for this purpose only, agrees that the doctor, because of his knife, which has very likely killed its victim, and the novelist because of his silly simpering heroine, shall have an indefeasible right to tax for their own private benefit almost any industry in the whole wide world. This is an unimaginable romance. So is all business; but Memphis brought home the strangeness of it to me most compellingly. Here is a dainty lady, furclad, scented, pacing with delicate steps across the floor of one of our huge shops. In front of her, not less exquisitely dressed, a handsome man bows low with the courtesy of a great lord of other days: "Lingerie, madam, this way if you please. The second turning to the left. This way, madam. Miss Jones, if you please. Madam wishes to see——" And madam, with her insolent eyes, deigns to survey some frothy piles of frilly garments, touches, appraises the material, peers at the stitches of the hems, plucks at inserted strips of lace. Here are broad acres of black, caked earth and all across them are rows and rows of stunted bushes, like gooseberry bushes, but thinner and much darker. On all their prickly branches hang little
- 28. tufts of white fluff—cotton. Among the bushes go men, women and children, black, negroes every one of them, dressed in bright yellow, bright blue and flaming red. From their shoulders hang long sacks which trail on the ground behind them. They steadily pick, pick, pick the fluffs of cotton out of the opened pods, and push each little bit into a sack. There you have the beginning of all, the ending of part of this wonderful substance which clothes, so they tell us, nine- tenths of the men and women in the world who wear clothes. What is in between the dainty English lady and the negro in Tennessee? The plantation owner drives his mule along winding tracks through the fields where the bushes are and watches. He is a man harassed by the unsolvable negro problem, in constant dread of insect pests, oppressed by economic difficulties. Men in mills nearby comb the thick seeds from the raw cotton, press it tight and bind it into huge bales. Men grade and sort the samples of it. Men shout at each other in great marts, buy and sell cotton yet unsorted, unpicked, ungrown; and the record of their doings is flashed across continents and oceans. Ships laden down to the limit of safety plunge through great seas with tired men on their bridges guiding them. In Lancashire, in Russia, in Austria, huge factories set their engines working and their wheels go whirling round. Men and women sweat at the machines. In Derry and a thousand other places women in gaunt bare rooms with sewing machines, or in quiet chambers of French convents with needles in their hands, are working at long strips of cotton fabric. In shops women again, officered by men, are selling countless different stuffs made out of this same cotton fluff. And the whole complex organization, the last achieved result of man's age-long struggle for civilization, works on the perilous verge of breaking down. The fine lady at the one end of it may buy what she cannot pay for and disturb the delicately balanced calculations of the shopkeeper. Some well-intentioned Government somewhere may insist that the women who sew shall have fire and a share of the sunlight, things which cost money. Inspectors come, with pains and penalties ready in their pockets, and it seems possible that they will dislocate the whole machine. Labor, painfully organized, suddenly
- 29. claims a larger share of the profits which are flowing in. The wheels of all the factories stop whirling. Their stopping affects every one through the whole length of the tremendous chain, alters the manner of life in the tiniest of the negroes' huts. A sanguine broker may speculate disastrously and the long chain of the organization quivers through its entire length and threatens breaking. A ship owner raises rates, the servants of a railway company go on strike. Some one makes a blunder in estimating the size of a future crop. Negroes prove less satisfactory than usual as workers. The possibilities of a breakdown somewhere are almost uncountable. Yet somehow the thing works. It is a wonderful accomplishment of man that it should work and break down as seldom as it does; but the dread of breakdown is present everywhere. Everyone, the whole way from the lady who wants lingerie to the negro who picks at the bushes, is beset with anxiety. But fortunately no one ever really feels more than his own immediate share of it. The cotton planter will indeed be affected seriously by an epidemic of speculation in New York, or a strike in Lancashire or the legislation of some well-meaning government. He knows all this, but it does not actually trouble him much. He has his own particular worry and it is at him so constantly that it leaves all the other worries no time to get at him at all. His worry is the negro. According to the theory of the American constitution the negro is a free man, a brother, as responsible as anyone else for the due ordering of the state. In actual practice the negro is either slowly emerging from the slave status or slowly sinking back to it again. It does not matter which way you look at it, the essential thing is, whichever way he is going, he is not yet settled down in either position. It is impossible—on account of the law—to treat him as a slave. It is impossible—on account of his nature, so I am told—to treat him as a free man. He is somewhere in between the two. He is economically difficult and socially undesirable. But he is the only means yet discovered of getting cotton picked. If anyone would invent a machine for picking cotton he would benefit the world at large immensely and make the cotton planter, save for the fear of certain insects, a happy man. But the shape of the cotton bush
- 30. renders it very difficult to get the cotton off it except by the use of the human finger and thumb. We are not nearly so clever at inventing things as we think we are. The cotton bush has so far defeated us. The negro, who supplies the finger and thumb, has very nearly defeated us too. It is hard to get him to work at all and still harder to keep him at it. He does not seem to be responsive to the ordinary rules of political economy. If he can earn enough in one day to keep him for three days he sees no sense in working during the other two. The southern American does not seem to be trying to solve this negro problem. He makes all sorts of makeshift arrangements, tries plans which may work this year and next year but which plainly will not work for very many years. These seem the best he can do. Perhaps they are the best anyone could do. Perhaps it is always wisest to be content to keep things going and to let the remoter future take care of itself. The cotton crop has to be picked somehow this year, and it may have to be picked next year too. After that— well nobody speculates in futures as far ahead as 1916. The problem of the social position of the negro seems to be quite as difficult to solve as that created by his indifference to the laws of political economy. The "man and brother" theory has broken down hopelessly and the line drawn between the white and colored parts of the population in the South is as well defined and distinct as any line can be. The stranger is told horrible tales of negro doings and is convinced that the white men believe them by the precautions they take for the protection of women. There may be a good deal of exaggeration about these stories, and in any case the morality or immorality of the negro is not the most difficult element in the problem. Education, the steady enforcement of law, and the gradual pressure of civilization will no doubt in time render outrages rarer. It is at all events possible to look forward hopefully. The real difficulty seems to me to lie in the strong, contemptuous dislike which white people who are brought into close contact with negroes almost invariably seem to feel for them. In the northern parts of America where negroes form a very small part of the population, this feeling does not exist. A northern American or an Englishman would not feel
- 31. that he were insulted if he were asked to sit next a negro at a public banquet. A southern American would decline an invitation if he thought it likely that he would be called upon to do such a thing. A southern lady, who happened to be in New York, was offered by a polite stranger a seat in a street car next a negro. She indignantly refused to occupy it. The very offer was an outrage. The feeling would be intelligible if it were the outcome of instinctive physical prejudice. An Englishwoman, who had hardly ever come into contact with a negro, once found herself seated at tea in the saloon of a steamer opposite a negress who was in charge of some white children. She found it impossible to help herself to cake from the dish from which the negress had helped herself. The idea of doing so filled her with a sense of sickness. Yet she did not feel herself insulted or outraged at being placed where she was. A southern American woman would have felt outraged. But the southern American woman has no instinctive shrinking from physical contact with black people. She is accustomed to it. She has at home a black cook who handles the food of the household, a black nurse who minds the children, perhaps a black maid who performs for her all sorts of intimate acts of service. As servants she has no objection to negroes. There is in her nothing corresponding to the Englishwoman's instinctive shrinking from the touch of a black hand. Nor is the southern American's contempt for the negroes anything at all analogous to the contempt which most people feel for those who are plainly their inferiors. A brave man has a thoroughly intelligible contempt for one who has shown himself to be a coward. But this is an entirely different thing, different in kind, not merely in degree, from a southern white man's contempt for a negro. It is the existence of this feeling, intensely strong and very difficult to explain, which makes the problem of the negro's social future seem hopeless of solution. No moral or intellectual advance which the negro can make affects this feeling in the slightest. It is not the brutalized negro or the ignorant negro, but the negro, whom the white man refuses to recognize as a possible equal. Memphis, in spite of its negro problem, seems to me to be rapidly emerging from the ruins of one civilization and to be pressing
- 32. forward to take a foremost place in another. I do not suppose that Memphis now regrets the past very much or even thinks often of the terrible humiliation of the Civil War and the years of blank hopeless ruin which followed it. There was that indeed in the past which must have left indelible marks behind it. It was not easy for a proud people, essentially aristocratic in their outlook upon life, to accept defeat at the hands of men whom they looked down upon. It is not easy to forget the intolerable injustice which, inevitably, I suppose, followed the defeat. But Memphis is looking forward and not back, is grasping at the possibilities of the future rather than brooding over the past. But if Memphis and the South generally are content to forget the past, it does not follow that the past has forgotten them. The spirit of the older civilization abides. It haunts the new life like some pathetic ghost, doomed to wander helplessly among people who no longer want to see it. There is a certain suavity about Memphis which the stranger feels directly he touches the life of the place. It is a lingering perfume, delicate, faint but appreciable. I am told that it is to be traced to Europe, that the business men in Memphis have closer relations with England, Austria and Russia than with the northern states of their own country. I am also told that we must look to the origin of it to the Cavalier settlers of the southern states from whom the people who live there now claim descent. I do not like either explanation. A man does not catch suavity by doing business with Lancashire. The quality is not one on which the northern Englishman prides himself, or indeed which is very obvious in his way of living. The blood of those original cavaliers, gentlemen all of them I am sure, must have got a good deal mixed in the course of the last two hundred years, especially as strangers are always pouring into the South. It must be an attenuated fluid now, scarcely capable of flavoring perceptibly a new and vigorous life. I prefer my own hypothesis of a ghost. Some of these creatures smell of sulphur and leave a reek of it behind them when they pay visits to their old homes on earth. Others betray their presence by the damp, cold earthy air they bring with them from the tombs in which their bodies were laid. This Memphis ghost, which no one in Memphis
- 33. sees, but which yet has its influence on Memphis life, is of quite a different kind. It is scented with pot-pourri, and the delicate rose water which great ladies of bygone generations made and used. It is the ghost of some grande dame like Madame Esmond, who owned slaves and used them with no misgiving about her right to do so, whose pride was very great, whose manners were dignified, whose ways among those of her own caste were exceedingly gracious. There is something, some lingering suggestion of great ladies about Memphis still, in spite of its new commercial prosperity. I think it must be because the spirits of them haunt the place. Someone must surely have written a book on the philosophy of American place names. The subject is an interesting one, and the world has a lot of authors in it. It cannot have escaped them all. But I have not seen the book. If I ever do see it I shall turn straight to the chapter which deals with Memphis and Cairo, for I very much want to know how those two places came to have Egypt for their godfather. Most American place names are easy enough to understand, and they seem to me to surpass, in their fascinating suggestion of romance, our older Irish and English names. It is, of course, interesting to know that all the chesters in England— Colchester, Dorchester, Manchester and Chester itself—were once Roman camps; and that most of the Irish kils—Kilkenny, Kildare, Killaloe, Kilrush—were the churches of once honored saints. But the Romans and the saints are very remote. They were important people in their day no doubt, but it is very hard to feel the personal touch of them now. American place names bring us closer to men with whom we feel that we can sympathize. There is a whole range of names taken straight from old homes, New York, for instance, Boston, New Orleans. We do not need to go back in search of emotions to the original meaning of York or to worry over the derivation of Orleans. It is enough for us that these names suggest all the pathetic nostalgia of exiles. The men who named these places must have been thinking of dearly loved cathedral towers, of the streets and market places of country towns whose every detail was well remembered and much regretted, of homes which they would scarcely hope to see again. It is not hard, either, to catch the spirit
- 34. of the Puritan settlers in theological and biblical names, in Philadelphia, Salem and so forth. The men who gave these names to their new homes must have felt that like Abraham they had gone forth from their kindred and their people, from the familiar Ur of the Chaldees, to seek a country, to find that better city whose builder and maker is God. Philadelphia is perhaps to-day no more remarkable for the prevalence of brotherly love among its people than any other city is. But there were great thoughts in the minds of the men who named it first; and reading the name to-day, even in a railway guide, our hearts are lifted up into some sort of communion with theirs. Then there are the Indian names, of lakes, mountains and rivers chiefly, but occasionally of cities too. Chicago is a city with an Indian name. Perhaps these are of all the most suggestive of romance. It must have been the hunters and explorers, pioneers of the pioneers, who fixed these names. One imagines these men, hardened with intolerable toil, skilled in all the lore of wild life, brave, adventurous, picking up here and there a word or two of Indian speech, adopting Indian names for places which they had no time to name themselves, handing on these strange syllables to those who came after them to settle and to build. Greater, so it seems, than the romance of the homesick exile, greater than the romance of the Puritan with his Bible in his hand, is the wild adventurousness which comes blown to us across the years in these Indian names. But there are names like Memphis which entirely baffle the imagination. It is almost impossible to think that the people who named that place were homesick for Egypt. What would Copts be doing on the shores of the Mississippi? How could they have got there? Nor is it easy to think of any emotion which the name Memphis would be likely to stir in the mind of a settler. Memphis means nothing to most men. It is easy to see why there should be an American Rome. A man might never have been in Rome, might have no more than the barest smattering of its history, yet the name would suggest to him thoughts of imperial greatness. Any one who admires imperial greatness would be inclined to call a new city Rome. But Memphis suggests nothing to most of us, and to the few is associated only with the worship of some long forsaken gods. I
- 35. can understand Indianapolis. There was Indiana to start with, a name which anyone with a taste for sonorous vowel sounds might easily make out of Indian. The Greek termination is natural enough. It gives a very desirable suggestion of classical culture to a scholar. But a scholar would be driven far afield indeed before he searched out Memphis for a name. I asked several learned and thoughtful people how Memphis came by its name. I got no answer which was really satisfactory. It was suggested to me that cotton grows in Egypt and also in the neighborhood of Memphis. But cotton does not immediately suggest Egypt to the mind. Mummies suggest Egypt. So, though less directly, does corn. If a caché of mummies had been discovered on the banks of the Mississippi it would be easy to account for Memphis. If Tennessee were a great wheat state one could imagine settlers saying "There is corn in Egypt, according to the Scriptures. Let us call our new city by an Egyptian name." But I doubt whether cotton suggested Memphis. It certainly did not suggest Cairo, for Cairo is not a cotton place. I was told,—though without any strong conviction—that the sight of the Mississippi reminded somebody once of the Nile. It would of course remind an Egyptian fellah of the Nile; but the original settlers in Memphis were almost certainly not Egyptian fellaheen. Why should it remind any one else of the Nile? It reminds me of the Shannon, and I should probably have wanted to call Memphis Athlone if I had had a voice in the naming of it. It would remind an Englishman of the Severn, a German of the Rhine, an Austrian of the Danube, a Spaniard—it was, I think, a Spaniard who went there first—of the Guadalquiver. I cannot believe that the sight of a very great river naturally suggests the Nile to anyone who is not familiar with Egypt beforehand. It is indeed true that both the Mississippi and the Nile have a way of overflowing their banks, but most large rivers do that from time to time. The habit is not so peculiar as to force the thought of the Nile on early observers of the Mississippi. Indeed there is a great difference between the overflowings of the Nile and those of the Mississippi. The Nile, so I have always understood, fertilizes the land round it when it overflows. The Mississippi destroys cotton crops
- 36. when it breaks loose. South of Memphis for very many miles the river is contained by large dykes, called levees, a word of French origin. These are built up far above the level of the land which they protect. It is a very strange thing to stand on one of these dykes and look down on one side at the roofs of the houses of the village, and on the other side at the river. When we were there the river was very low. Long banks of sand pushed their backs up everywhere in the main stream and there was half a mile of dry land between the river and the bank on which we stood. But at flood time the river comes right up to the dyke, rises along the slope of it, and the level of the water is far above that of the land which the dykes protect. Then the people in the villages near the dyke live in constant fear of inundation, and I saw, beside a house far inland, a boat moored— should I in such a case say tethered?—to a tree in a garden ready for use if the river swept away a dyke. I suppose the people get accustomed to living under such conditions. Men cultivate vines and make excellent wine on the slopes of Vesuvius though Pompeii lies, a bleached skeleton, at their feet. I should myself rather plant cotton behind a dyke, than do that. But I am not nearly so much afraid of water as I am of fire. I was told that at flood time men patrol the tops of the dykes with loaded rifles in their hands, ready to shoot at sight anyone who attempts to land from a boat. The idea is that unscrupulous people on the left bank, seeing that their own dyke is in danger of collapsing, might try to relieve the pressure on it by digging down a dyke on the right bank and inundating the country behind it. The people on the other side of course take similar precautions. Most men, such unfortunately is human nature, would undoubtedly prefer to see their neighbors' houses and fields flooded rather than their own. But I find it difficult to believe that anyone would be so entirely unscrupulous as to dig down a protecting dyke. The rifle men can scarcely be really necessary but their existence witnesses to the greatness of the peril. I saw, while I was in Memphis, a place where the river had torn a large piece of land out of the side of a public park. The park stood high above the river and I looked down over the edge of a
- 37. moderately lofty cliff at the marks of the river's violence. Some unexpected obstacle or some unforeseen alteration in the river bed had sent the mighty current in full force against the land in this particular place. The result was the disappearance of a tract of ground and a semicircle of clay cliff which looked as if it had been made with a gigantic cheese scoop. The river was placid enough when I saw it, a broad but lazy stream. But for the torn edge of the park I should have failed to realize how terrific its force can be. The dykes were convincing. So were the stories of the riflemen. But the other brought the reality home to me almost as well as if I had actually seen a flood.
- 38. CHAPTER VIII THE LAND OF THE FREE We should have been hard indeed to please if we had not enjoyed our visits to Chicago and Memphis. We should be ungrateful now if we confessed that there was any note of disappointment in the memory of the joyous time we had. Yet there is one thing we regret about that journey of ours to the Middle West and South. We should dearly have liked to see a dozen other places, smaller and less important, which lay along the railway line between Chicago and Memphis, and between Memphis and Indianapolis. We made the former of these journeys entirely, and the latter partly, by day. Some unimaginative friends warned us beforehand that these journeys were dull, that it would be better to sleep through them if possible, rather than spend hours looking out of railway carriage windows at uninteresting landscapes. These friends were entirely wrong. The journeys were anything but dull. The trains dragged us through a whole series of small towns, and, after the manner of many American trains, gave us ample opportunity of looking at the houses and the streets. In other countries trains are obliged to hide themselves as much as possible when they come to towns. They go into tunnels when they can or wander round the backs of mean houses so that the traveler sees nothing except patches of half bald earth sown with discarded tins and rows of shirts and stockings hanging out to dry. European peoples, it appears, do not welcome trains. In America the train seems to be an honored guest. It is allowed, perhaps invited, to wander along or across the chief streets. I have been told by a very angry critic that this way of stating the fact is wrong, misleading, and abominably unjust to the American people. The towns, he says, did not invite the train, but the train, being there first, so to speak, invited the towns to exist. Very likely this is so. But it seems to me to matter but little whether the train or the town came first. The noticeable thing is that the town evidently likes the
- 39. train. It is just as sure a mark of affection to lay out a main street alongside the railway line as it would be to invite the railway to run its line down the middle of the main street. An English town, if it found that a railway was established on its site before it got there would angrily turn its back to the line, would, even at the cost of great inconvenience, run its streets away from the railway. The American plan from the point of view of the passenger is far better. He gets the most delightful glances of human activity and is set wondering at ways of life that are strange to him. Our imagination would, I think, have in any case been equal to the task of conjuring up mental pictures of what life is like in these small isolated inland towns. We should, no doubt, have gone grievously wrong, but we should have enjoyed ourselves even without guidance. Fortunately we were not left to our own imaginative blunderings. We had with us a volume of Mr. Irvin Cobb's stories for the possession of which we selfishly disputed. It gave us just what we wanted, a sure groundwork for our imaginings. We peopled those little towns with the men and women whom Mr. Cobb revealed to us. His humor and his delightful tenderness gave us real glimpses of the lives, the hopes, the fears, the prejudices and memories of many people who otherwise would have been quite strange to us. Each little town as we came to it was inhabited by friendly men and women. Thanks to Mr. Cobb they were our friends. All that was wanted was that we should be theirs. Hence the bitter disappointment at not being able to stop at one after the other of the towns, at being denied the chance of completing a friendship with people whom we already liked. But it may well be that we should not really have got to know them any better. We have not, alas! Mr. Cobb's gift of gentle humor or his power of sympathetic understanding. Also it takes years to get to know anyone. We could not, in any case, have stayed for years in all these towns. Life has not years enough in it. Besides the towns there were the people we met on the trains. There was, for instance, a man who went up and down selling apples and grapes in little paper bags. We bought from him and while buying we heard him speak. There was no doubt about the
- 40. matter. He was an Irishman, and not merely an Irishman by descent, the son or grandson of an emigrant, but one who had quite recently left Ireland. His voice to our ears was like well-remembered music. I know the feeling of joy which comes with landing from an English- manned steamer on the quay in Dublin and hearing again the Irish intonation and the Irish turns of phrase. But that is an expected pleasure. It is nothing compared to the sudden delight of hearing an Irish voice in some place thousands of miles from Ireland where the last thing you expect to happen is a meeting with an Irishman. I remember being told of an Irishwoman who was traveling from Singapore to Ceylon in a steamer. She lay in her cabin, helplessly ill with some fever contracted during her stay in the Far East. She seemed incapable of taking an interest in anything until two men came to mend something in the corridor outside her cabin door. They talked together and at the sound of their voices the sick lady roused herself. She had found something in life which still interested her. She wanted very much to know whether the men came from County Antrim or County Down. She was sure their homes were in one or the other. The Irish voices had stirred her. We were neither sick nor apathetic, but we were roused to fresh vitality by the sound of our Irish apple seller's voice. He came from County Wicklow. He told us so, needlessly indeed, for we knew it by his talk. He had been in America for two years, had drifted westward from New York, was selling apples in a train. Did he like America? Was he happy? Was he doing well? and—crucial, test question— would he like to go back to Ireland? "I would so, if there was any way I could get my living there." I suppose that is the way it is with the most of us. We have it fixed somehow in our minds that a living is easier got anywhere than at home. Perhaps it is. Yet surely apples might be sold in Ireland with as good a hope of profit as in Illinois or Tennessee. Baskets are cheap at home, and a basket is the sole outfit required for that trade. The apples themselves are as easy to come by in the one place as in the other. But possibly there are better openings in America. The profession may be overcrowded at home. Many professions are, medicine, for instance, and the law. Apple selling
- 41. may be in the like case. At all events, here was an Irishman, doing fairly well by his own account in the middle west of America yet with a sincere desire to go back again to Ireland if only he could get a living there. There was another man whom we met and talked to with great pleasure. Our train lingered, as trains sometimes will, for an hour or more at a junction. It was waiting for another train which ought to have met ours, but did not. We sat on the platform of the observation car, and gazed at the blinking signal lights, for the darkness had come. Suddenly a man climbed over the rail of the car and sat down beside us. He had, as we could see, a very dirty face, and very dirty hands. He wore clothes like those of an engine stoker. He was, I think, employed in shunting trains. He apologized for startling us and expressed the hope that we had not mistaken him for a murderous red Indian. He was a humorist, and he had seen at a glance that we were innocent strangers, the sort of people who might expect an American train to be held up by red Indians with scalping knives. He told us a long story about a lady who was walking from coach to coach of a train while he was engaged in shunting it about and was detaching some coaches from it. She was crossing the bridge between two coaches at an unlucky moment and found herself suddenly on the line between two portions of the train. The expression of her face had greatly amused our friend. His account of the incident greatly amused us. But the most interesting thing about this man, the most interesting thing to us, was his unaffected friendliness. In England a signal man or a shunter would not climb into a train, sit down beside a passenger and chat to him. A miserable consciousness of class distinction would render this kind of intercourse as impossible on the one side as on the other. Neither the passenger nor the shunter would be comfortable, not even if the passenger were a Liberal politician, or a newly made Liberal peer. In America this sense of class distinction does not seem to exist. I have heard English people complain that Americans are disrespectful. I should rather use the word unrespectful, if such a word existed. For disrespectful seems to imply that respect is somehow due, and I do not see why it should be. I am quite prepared to sign my assent to
- 42. the democratic creed that one man is as good as another. I even go further than most Democrats and say that one man is generally better than the other, whenever it happen that I am the other. I see no reason why a railway signal man should not talk to me or to anyone else in the friendly tones of an equal, provided of course that he does not turn out to be a bore. It is a glory and not a shame of American society that it refuses to recognize class distinction. My only complaint is that America has not gone far enough in the path of democratic equality. There are Americans who take tips. Now men neither take tips from nor give tips to their equals. If a friend were to slip sixpence into my hand when saying good-by I should resent it bitterly. Unless I were quite sure that he was either drunk or mad, I should feel that he was deliberately treating me as his inferior. I should admit that I was his inferior if I pocketed the tip. I should feel bound to touch my hat to him and say "Thank you, Sir," or "Much obliged to your honor." No man is in any way degraded by taking wages for the work he does, whatever that work may be, cleaning boots or lecturing in a University. But a man does lower himself when, in addition to his wages, he accepts gifts of money from strangers. He is being paid then not for courtesy or civility, which he ought to show in any case, but for servility; and that no one can render except to a recognized superior. The tip in a country where class distinctions are a regular part of the social order is right enough. It is at all events a natural outcome of the theory that some men by reason of their station in life are superior to others. In a social order which is based upon the principle of equality among men the tip has no proper place. The distinction between tips and wages is a real one, although it is sometimes obscured by the fact that the wages of some kinds of work are paid entirely or almost entirely in the form of tips. A waiter in a restaurant or an hotel lives, I believe, mainly on tips. Tips are his wages. Nevertheless he places himself in a position of inferiority by allowing himself to be paid in this way. It is plain that this is so. There is a sharp line which divides those who are tipped from those who are not. It may, for instance, be the misfortune of anyone to require the services of a hospital nurse; but we do not tip her
- 43. however kind and attentive she may be. She gets her wages, her salary, a fixed sum. It would be insulting to offer her, in addition, five shillings for herself. Hers is a profession which neither involves nor is supposed to involve any loss of self respect. On the other hand the chambermaid who makes the beds in an hotel is tipped. She expects it. And her profession, in the popular estimation at least, does involve a certain loss of self respect. The best class of young women are unwilling to be domestic servants, but are not unwilling to be hospital nurses. Yet the hospital nurse works as hard as, if not harder than, a housemaid. She does the same kind of work. There is no real difference between making the bed of a man who is sick and making the bed of a man who is well. In either case it is a matter of handling sheets and blankets. But a suggestion of inferiority clings to the profession of a housemaid and none to that of a hospital nurse. The reason is that the one woman belongs to the class which takes tips, while the other belongs to the class which does not. It is easy to see that in a country like America into which immigrants are continually flowing from Europe there is sure to be a large number of people—Italian waiters for instance, and Swedish and Irish domestic servants—who have not yet grasped the American theory of social equality. They have grown up in countries where the theory does not prevail. They naturally and inevitably expect and take tips, the largesse of their recognized superiors. No one accustomed to European life grudges them their tips. But there are, unfortunately, many American citizens, born and bred in America, with the American theory of equality in their minds, who also take tips and are very much aggrieved if they do not get them. Yet they, by word and manner, are continually asserting their position of equality with those who tip them. This is where the American theory of equality between man and man breaks down. The driver of a taxicab for instance can have it one way or the other. He cannot have it both. He may, like a doctor, a lawyer, or a plumber, take his regular fee, the sum marked down on the dial of his cab, and treat his passenger as an equal. Or he may take, as a tip, an extra twenty cents, in which case he sacrifices his equality and proclaims himself the inferior of the man who tips him, a member of
- 44. a tippable class. There ought to be no tippable class of American citizens. The English complaint of the disrespectfulness of Americans is, in my opinion, a foolish one, unless the American expects and takes tips. Then the complaint is well founded and just. The tipper pays for respectfulness when he gives a tip and what he pays for he ought to get. It is, I think, quite possible that the custom of tipping has something to do with the difficulty, so acute in America, of getting domestic servants. It is widely felt that domestic service in some way degrades the man or woman who engages in it. There is no real reason why it should. It is not in itself degrading to do things for other people, even to render intimate personal service to other people. The dentist who fills a tooth for me does something for me, renders me a special kind of personal service. He loses no self respect by supplying me with a sound instrument for chewing food. Why should the person who cooks the food which that tooth will chew lose self respect by doing so? There is no real distinction between these two kinds of service. Nor is there anything in the contention that the domestic servant is degraded by abrogating her own will and taking orders from someone else. Nine men out of ten take orders from somebody. From the soldier on the battlefield, the most honorable of men, to the clerk in a bank, we are almost all of us obeying orders, doing not what we ourselves think best or pleasantest but what someone in authority thinks right. What is the difference between obeying when you are told to clean a gun and obeying when you are told to wash a jug? The real reason why a suggestion of inferiority clings to the profession of domestic service is that domestic servants belong to the tippable class. Society can, if it likes, raise domestic service to a place among the honorable professions, by ceasing to tip and paying wages which do not require to be supplemented by tips. If this were done there would be far less difficulty in keeping up the supply of domestic servants. I find myself on much more difficult ground when I pass on to discuss the impression made on me by the claim of America to be, in some special way, a free country.
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