$d&. 73

VV7 VV4S

TRANSACTIONS

OF THE

WISCONSIN ACADEMY

OF

SCIENCES, ARTS, AND LETTERS

VOL. XII, &ss?m

WITH ONE PLATE

EDITED BY THE SECRETARY

Published by Authority of Law.

MADISON, WIS.:

Democrat Printing Compa^v State pRINTER

TABLE OF CONTENTS.

VOL. XII, PART J.

PAGE.

The meaning and function of thought connectives,

Edward T. Owen, 1

The fee system in the United States, Thomas K. Urdahl ,

Part I — Historical review of fee systems . . 49

Part II — The present fee system in the United States, 154

Analytical table of contents ..... 243

The duration of school attendance in Chicago and Milwaukee,

Daniel Folkmar , 257

Plate I — Diagram A — Showing what per cent, of the

population leave school at each grade . . 262

Railroad land grants . . . John Bell Sanborn , 306

An historical note on early American railways,

Charles H. Chandler, 317

On some differences between private and public business,

Ernest Bruncken, 325

Early general railway legislation in Wisconsin, 1853-1874,

Balthasar R. Meyer, 337

The relation of motives to freedom, Edward H. Merrell, 389

ERRATA.

Page.

49.

51.

67.

69.

71.

77.

78.

121.

130.

174.

179.

195.

Insert “Part I. — Historical Survey of Fee Systems.”

Footnote 1. Transfer the second quotation marks to the

preceding line, following “ from them. ”

Insert “A” before “Greece.”

Insert “ B ” before “Rome.”

Line 9 from foot. For “ ripiticus ” read “repaticus. ”

Line 12. For “counties” read “countries.”

Line 6. After “ 1815 ” read “ it.”

Line 9. Transfer “ more or less ” to line 10 following

“ were. ”

Line 17. Strike out “and other improvements.”

Line 30. Following charter, for “ of ” read “ or. ”

Line 6. Following “ official ” insert a comma.

Footnote 1. Com’r of Ins. For “$33,683.40 ” read

“$13,683.40. Com’r of Agr. For “3.20” read “5.20.”

THE MEANING AND FUNCTION OF THOUGHT-

CONNECTIVES.

The present investigation would naturally cover all species of

that grammatical genus known as conjunctions. For the pres¬

ent, however, the writer is prepared to treat those words only

which smooth the passage from one statement to its successor.

Even this limited effort, further confined to the English lan¬

guage, seems to require a quasi-apology.

Thought-connectives are presented in some detail by grammar.

They form a considerable part of the arsenal of rhetoric. They

are in logic the back-bone of syllogistic reasoning. Psychology

notes them as the expression of perhaps the highest states of

consciousness. There will surely rise the question : “Why thrash

old straw?”

It may be answered in general that this straw has indeed been

forked over and pitched about a great deal, but has been put

to very little genuine thrashing. Some grain has been knocked

out and a great deal of chaff; but the most and the best of the

kernels remain.

It is claimed in particular that the thought-sciences have, so far

as might be, ignored language, neglecting the vast repertory

of thought-methods, true and false, of which language is the

register. On the other hand the most successful later effort of

linguistic science has confined itself to verbal form. The bril¬

liant achievements in this field have blinded the workers and

their watchers to the existence of other fields. It is charged

indeed, with more or less plainness, that language-study has

well-nigh forgotten that language is after all but the expression

of thought.

To a limited extent it is rational to insist on the analogy be¬

tween the special language of mathematics and the general

2 Owen — Meaning and Function of Thought- Connectives.

language of daily life. And what, it may be asked, would be

said of mathematicians, if they neglected quantity and number —

if they confined themselves to the history of plus and minus or

to the comparative study of these symbols in their use by

different peoples?

The importance of such investigation is, doubtless, in general

language greatly increased. But that which general language

stands for is also greater than that which mathematical symbols

stand for. If then the special language of mathematics must

not eclipse the special thought expressed, so also the student

of general language should keep in view the general thought

of humanity. Thought-study and word-study are two treat¬

ments of the same problem. It is in these days required that

each shall use the aid of the other.

Judged by this commandment of the new linguistics, philol¬

ogy has left undone some things which, as linguistic leader, it

ought to have done. Grammar has done much that it ought not

to have done. Its blind have followed its blind with unfaltering

constancy. The pitiful confusion of this pseudo-science offers a

convenient introduction to the present subject in the following

quoted definitions: “ To be is the copula;” “To seem is a

copulative verb; ” “ And is a copulative conjunction; ” “ Or is a

disjunctive conjunction.” Of this absurd crescendo the last

term, “the disjunctive conjunction,” is specially noteworthy.

This no doubt is that long-mourned offspring of classic imagi¬

nation, the “ lucus a non lucendo. ” “ Or ” is ranked as a joiner

because it disjoins. Again the meaning of a copulative con¬

junction depends upon the meaning of a copula. But upon the

latter there is, in grammar, no consensus ; on the contrary there

is conspicuous disagreement.

A single case of such confusion on the part of those in lin¬

guistic authority might warrant a break for liberty. Nor is

precedent wanting. Chemistry and astronomy broke loose from

alchemy and astrology. Even during the present generation

almost every science has changed its data, its methods and its

terminology. With such tendencies it would be surprising, if

the spirit of the time endured much longer the absurdities per¬

petrated centuries since by men of scholastic bias, often backed

Expression of Thought.

3

by no proper knowledge of more than a single language. In

fact a new linguistic effort has begun. Warned by the failures

of grammar, it strives to be intelligible. Taught by the over¬

sight of philology, it aims at greater completeness.

PART I. DEVELOPMENT OF THEORY.

The following discussion is largely put in the first and second

person, for the sake of a little gain in objectivity. It takes up

in turn the judgment, the nature of its elements and their bear¬

ing one upon another. It shows how language on the one hand

names these parts and on the other indicates their mutual bear¬

ing. Alongside of this naming and this indicating it admits

the occurrence of irrelevant elements. Having thus mapped out

the lingustic field, it seeks to find in it the proper place for the

connective.

I. EXPRESSION OF THOUGHT.

LANGUAGE SYMBOLIZES JUDGMENTS.

I begin with the judgment, because the aim of language is

obviously to express a mental total of no less completeness. I

may indeed, by uttering a single word, arouse in your mind

the idea which it names. Also you may infer, unless I falsify,

that the idea is in my own mind. I may for instance rouse you to

think of a chimney and to the opinion that I am thinking of

the same. But this involves some effort on your part as well

as my own ; and plainly the game is not worth the candle.

Nor is it enough for you to know that two or more ideas are

together in my mind. Every such combination is in a way a

mental experiment, a sort of mental tasting of a mental mix¬

ture. To carry out the suggested comparison, suppose you

taste in my presence an unfamiliar fruit. It is of no great in¬

terest to me to know that you have it in your mouth. What

might be useful to me is to know whether you like it; and this I

might learn from the expression of your face. So too,

when you taste a mental combination, my gain for the most

part lies in knowing how the combination affects you. In my

4 Owen — Meaning and Function of Thought- Connectives.

knowledge of such affects lies also your own greatest gain.

Your ability to inform me of your personal attitude toward

your own ideas and combinations is the basis of my ability to

serve you. I must know not merely that you are thinking of

something; I must also know that something as liked or dis¬

liked, feared, hoped or desired, believed, doubted or disbelieved.

In the linguistic beginning was, likely enough, the desire.

It is at least quite in the line of evolutionary principles to con¬

ceive the development of language as aided by the survival of

the fittest. And he no doubt was linguistically fittest who

could tell what he wanted. To this primitive power time has

added the ability to express the other personal attitudes; and

now it may be said that the purpose of language is in general

to express the speaker’s personal attitude toward an idea or

combination.

Something of this personal attitude all agree to find in the

judgment. To form a generally acceptable definition of this

thought-form is however hardly practicable — still less so to reach

an agreement as to how far the sentence is confined to judg¬

ment-expression. It is however unnecessary to do either. Some

forms of thought are recognized by all as judgments; and some

sentences are universally felt to be their expression.1

To such judgments and such sentences I will, so far as may

be, confine myself. The principles developed in their discussion

will, I think, be found to apply to other thought-forms and

other word-combinations, by whatever name it may seem best

to call them.

ANALYSIS OF THE JUDGMENT.

The judgment may be analyzed in several ways. So, for that

matter, may an insect. I may regard the creature as made up

1 To my own mind a judgment is always the belief in the reality (or

unreality) of a relation between two ideas. Even in its imperative form

it vouches for the relation of wisher to what is wished. In the dubitativo

aspect it assures uncertainty. Even interrogatively formed it asserts the

desire for information.

On the other hand what a sentence aims to express is always a judgment

as above conceived, though plainly the sentence often leaves a gap to be

filled by inference or external suggestion and often admits irrelevant

elements.

Expression of Thought.

5

of head and residuum — or of tail and what is left. For sev¬

eral reasons I elect the analysis into head, thorax and abdo¬

men. I prefer something analogous with judgments, reaching

results as follows. Let “6 exceeds 4” serve as illustration.

The mental process registered is this: I have passed in mind

from 6 to 4. In so doing I have become aware of something

foreign to 6 and foreign to 4, namely superiority. The judg¬

ment expressed consists then of three terms: a first term (6), a

last term (4) and the relation between them, which may also be

known as mid-term.1

It should be noted that the relation may take on either of two

aspects according to the direction of the thought-transit. Thus,

if I think from 6 to 4, I obtain superiority. But, if I think

from 4 to 6, I obtain inferiority. Viewed from the stand-point

of superiority, inferiority is in this case a reverse relation.

Conversely, superiority may be known as proverse. The names

progressive and regressive are also in use.

When now the judgment consists of merely a relation and the

terms between which the relation obtains, I call the judgment

elementary, minimal or essential.

The judgment may, of course, be amplified. All admit that

amplification must follow the method of the original structure.

That is, if I add to my essential judgment, the new must be in

relation with the old or with one of its parts. Were the new

not so in relation, it would be out of relation or irrelevant. That

is, the new would, so to speak, have nothing to do with the old.

In practice the relation of old and new is often unexpressed.

When I amplify “man” into “white man,” you do not require

me to say that the relation between “ man ” and “ whiteness ”

is that of object to its quality.

1 However any of these elements be emphasized or overlooked, it is hard

to believe that any one can ever be absent from a thought deemed worthy of

expression. I have elected the names applied to them, because “first term ”

and “ last term ” are broader and also less confused with other names than

subject and predicate (also object) and because the name of “ mid-term ”

is a constant reminder to keep track of the often neglected relation.

It is easy to show further that this relation is in my example conceived

as real (not this time unreal) and that this reality I believe. But these

matters being unnecessary to the present investigation, I neglect them.

6 Owen — Meaning and Function of Thought- Connectives.

The new ideas are related sometimes with one old one and

sometimes with another. It is convenient to use with all alike

the name of adjunct, meaning thereby an added idea plus its re¬

lation expressed or understood.

In illustration let an essential judgment be expressed by the

sentence: “ the priest employed a lawyer.” Suppose now that

I wish to amplify this judgment by an idea of priority. This

idea must appear as last term in a new thought, whose first term

may be either of the original three terms. It is accordingly

possible to construct three amplified judgments, respectively ex¬

pressible by three amplified sentences. (1) “ The prior or former

priest employed a lawyer. ” (2) “ The priest employed a former

lawyer. ” (3) “ The priest formerly employed a lawyer. ” In the

last case that which is conceived as prior is the “ employment, ”

the relation of employer to employee. In the other cases it is

respectively the “ priest ” and the “ lawyer. ”

Illustrating again, I might use the phrase “ a feeble old

priest. " My first term in this case has two adjuncts of equally

direct bearing upon itself. A sufficient number of examples

would justify the proposition that the same term may have co¬

ordinate adjuncts to the number of n.

Again I might speak of a “remarkably old priest.” In this

case primarily the “ priest " is conceived as “ old ” and second¬

arily this “age” is thought of as “remarkable.” Generalizing

again, I make the further proposition that each adjunct may

have a sub-adjunct and this last another and so on to the nth

degree of subordination.

Terms, then, and adjuncts are the elements for which the sen¬

tence properly stands. But other elements sometimes intrude.

For instance, “All men (shut the door, please) are animals.”

Of such elements it is enough to say that, although they are in

the thought, they are not of it.

THE SYMBOLIZING PROCESS.

It is the peculiar office of language to establish in the hearer’s

(or reader’s) mind the thought of the speaker. This process is

commonly called conveyance. The figure is somewhat unfortun¬

ate, as it is obviously impossible to convey any act or product

Expression of Thought.

7

of the mind. Strictly speaking, language is a process by which

the hearer is induced to erect in his own mind a thought-struc¬

ture like that of the speaker. This result is effected by stimuli

known as words.1 Its first stage is accomplished when the

hearer’s mind contains the elements of the speaker’s thought.

Let it be supposed that this stage has been reached. Much

still remains to be done. For instance, both speaker and hearer

may be thinking of a missionary, a cannibal and the relation of

eater to food; but one may have it that the cannibal eats the

missionary, while the other supposes that the missionary de¬

vours the cannibal. In the expression of more complex thought

such possibilities become probabilities of the greatest import¬

ance. It appears then plainly that speaker and hearer must not

only have in mind the same ideas; they must also build them

together by the same plan.

Of the several ways of meeting this need I will mention only

the strictly linguistic. These are two in number, often con¬

fused, but radically different. Using an objective illustration,

suppose I give you the pieces of a dissected map — that of the

United States — and invite you to put them rightly together. You

have the elements of a structure, but not its plan. If now I

give you the latitude and longitude of each state-capital, they

constitute a sort of plan. The instructions furnished for each

state are moreover independent of all other states. They may

in that sense be called absolute.

Precisely analogous instructions are given by language,

though confined for the most part to word-endings. In the

sentence “ They hear us ” the ending of the word "they” is an

order to use the word as first term. Instruction of this kind I

call functional.

Suppose now that, in giving you the pieces of the map, I

name no latitude or longitude; yoii are still amply provided with

instructions, but of another sort. Examine for instance the

Indiana section. On its southern edge you note a particular

curve. This detail you may take as an order to put Indiana

next to some other state with a similar curve, namely Kentucky.

1 Other stimuli, gesture etc., are in this investigation neglected.

8 Owen — Meaning and Function of Thought- Connectives.

But the order is this time relative, not absolute. It is not

hinted where on the globe each state or either belongs. It

is however distinctly declared that they belong together.

Instruction of this relative type is also offered by words.

Given the Latin “ bonarum, ” its termination constitutes an order

to put the idea of goodness with some idea conceived as plural,

feminine and genitive. This sort of instruction I call associa-

tional. An idea with the function-label may be conceived as

saying to any other idea: “ No matter where you go, I go here."

An idea with the association-label says rather to one other idea:

“ No matter where you go, I go with you. ”

These distinctions, guiding as they do the course of my in¬

vestigation, seem to me worthy of emphasis, and again because

they are generally neglected. For instance, in the case of the

verb, forms which stand for meanings (e. g. tense-signs), others

which name function (e. g. the ending of the adjunctively em¬

ployed participle) and still others which show association (or

agreement, e. g. personal endings) are made to ride together in

one categorical omnibus called a conjugation. As well bring to

a mason, in one hod, bricks and plans, mortar and specifications

and claim to ease his task by collective presentation.

MULTIPLE SYMBOLIZATION.

In the study of language it is helpful to bear in mind that

the same word is often charged with several duties. The power

to perform them is a mere survival or revival from a time in

which, it is believed, the judgment itself was expressed by a

single word. Of this method even historic examples are not

wanting. Thus the Latin “ pluit ” has no less expressive power

than the English “ it is raining. ” Again, in the sentence “ the

birds sing ” it is plain that, while one term only is expressed

by “ birds, ” the other term and the relation are necessarily ex¬

pressed by “ sing. ” That is, the word “ sing ” in some way

stands for two ideas, which on other occasions maybe expressed

by a word for each (e. g. “ the birds are singing ”). The action

of the word in such cases may be known as multiple symboliza¬

tion. This name may be applied also to the action of the word

Expression of Thought.

9

when, instead of standing for more than one idea, it stands

for an idea and also for that idea’s function or association.1

REINSTATIYE SYMBOLIZATION.

In developing my theory it is further convenient to make use

of what may be called the doctrine of reinstcitive symbolization.

Of this let the sentence “I met Brown to-day ” serve as intro¬

duction. In this sentence the word “ Brown ” excites in the

hearer’s mind an idea of which, it will be assumed, he would not

otherwise be conscious. The symbolizing act may in this case

be called introductory or initial.

The idea excited by the word “ Brown ” must plainly remain

in consciousness till all the elements of thought to be expressed

1 When a word expresses more than one idea, the naming of one

of the ideas may or may not be effected by the termination (prefix, in¬

fix or other variation). When, in addition to an idea, its association or

function is to be indicated, the aid of a termination is usually invoked.

In the highly inflected languages almost every word is in some of these ways

a multiple symbol.

Historically the instructional elements (functional and associational) are

always original idea-namers. It is accordingly not surprising that a

given termination should exhibit on different occasions the different pow¬

ers which it has successively acquired. Thus the Latin “ cognovit” on one

occasion contains in itself its subject (he); on another the personal ending

merely shows association with a subject expressed by another word; at the

same time this ending, being used with no other kind of thought-element,

has functional value, being evidence that the idea expressed is the mid¬

term (principal verb).

The same word-ending may then express a thought-element, its associa¬

tion or its function — sometimes one and sometimes another — sometimes

one only, sometimes two, sometimes all three. The distinction made is

therefore useless for the purpose of ending-classification. As well endeavor

to classify the cattle in the field by their momentary place or doings.

But, apart from the possible interest to the zoologist, the where-abouts

and the what-abouts of each animal may have an immediate interest to

its owner. He can hardly afford to ignore differences between here and

there or between doing this and doing that. So too with these termina¬

tions; though I cannot classify them by the differences in their values,

I must not forget that these values are different. I must also recognize

the particular value of each on each particular occasion. Fortunately

such recognition is rarely difficult.

10 Owen — Meaning and Function of Thought ■ Connectives.

are in the hearer’s mind. Otherwise it would be impossible for

the hearer to make a thought-structure identical with that of

the speaker. He would simply be unable to build completely

without complete materials.

On the other hand, at the end of the sentence, when the

thought-structure has been completed, it and its elements are al¬

lowed to disappear from immediate attention. This disappear¬

ance is indeed necessary to the reception of another thought.

That such is the fact may be shown by any somewhat complex

example; e. g. 348-^-6 = 58. The elements of this judgment

or equivalents thereof are held by the hearer till the total judg¬

ment is received. Suppose, now, that this first statement is

succeeded by the following: 32X 17 = 544. It is plainly im¬

practicable to form the second thought-structure, so long as any

elements of the former are still in immediate attention.

Applying these principles to a verbal statement, let the for¬

mer example serve. “ I met Brown to-day. ” When the hearer

has formed the thought-structure expressed by these words, all

the ideas therein contained are allowed to disappear from imme¬

diate attention. But they do not disappear beyond recall. This

may be shown by an extension of the above example. “ I met

Brown to-day. He was in excellent health. ” In the second

sentence it is very evident that the word “ he ” recalls to the

hearer’s mind the idea which had been initially presented by the

word “ Brown. ” This action of the word “ he ” is what is meant

by reinstative symbolization.

Recalling now what was said of the symbolizing process, and

bearing in mind not only words but also word-endings (etc.), I

offer, as at least intelligible, the following list of

POSSIBLE WORD-VALUES.

I. Structural. — Words stand for the ideas or materials of which

a thought is constructed. These are

a. First, last, and mid-term.

b. Adjuncts (direct or indirect) of any of these.

IT. Non- Structural. — Word-values in this case are

a. Instructional (helps to put materials rightly together)

further distinguishable as

Expression of Thought Connection.

11

(1) Functional; these show as what thought-element an idea

is to be used; they declare absolute position;

(2) Associational; these show that a particular idea can be

used only with another particular idea; they declare relative

position.

b. Independent.

Supposing this list to be complete, the question rises: what is

the value of the thought-connective ? Before seeking an answer,

let the connective first be isolated from its sister species in the

grammatical classification. All these species are ranged under

the genus conjunction. One species is conceived to join separ¬

ate sentences; thus: “Roses are red but lilies are white.”

Another is said to join single words; thus: “He and I were

there. ” Another still is thought to unite larger portions of the

sentence; thus: “He stood up, that all might see him.” The

present investigation will be extended to conjunctions of the

first kind only; that is, to words which are said to join sentences.

From the view-point of syntax or sentence-study these words

are sentence-conjunctions. From the view-point of thought-

study they would properly be known as judgment-conjunctions.

In semi-popular parlance they are called thought-connectives.

This phrase is not absolutely definite; but, being enough so for

practical purposes, it will henceforth be employed. To reach a

perfectly distinct, though somewhat arbitrary line of demarca¬

tion, only those sentences between which a period is allowed to

stand will be ranked as separate.

II. EXPRESSION OF THOUGHT CONNECTION.

The connecting or joining of thoughts is obviously a mere

figure of speech and cannot be expected to present with exact¬

ness any process of the mind. Yet a little examination of the

figuratively taken physical process is helpful in studying the

mental process which it pictures.

MEANING OP CONNECTON.

Viewed in its simpler aspects, what is known as connection or

junction supposes unbroken continuity in the unit which it pro-

12 Owen — Meaning and Function of Thought- Connectives.

duces. Mere contact is not sufficient. Two balls are not con¬

ceived as joined by the mere contact of their surfaces. Indeed in

one view contact is needless. The two balls of a dumb-bell are

conceived as joined by the handle, though they themselves are

each at some distance from the other. Yet the molecular con¬

tinuity is maintained throughout the total mass.

This illustration may be viewed in another way, which will,

I believe, be found more helpful. The handle and one ball may

conveniently be taken as forming one total. The handle and the

other ball form another total. The handle is then a common

factor of both totals. As it is obviously possible to take the

same view of all joined bodies, the condition of junction may

be defined as the possession of a common factor.

The common factor may vary in size from that of either body

(or both) down to nothing. The cases which develop from such

variation have been carefully distinguished and are well known as

Inclusion: the common factor is the greatest possible part

(i. e. all) of one body; or, the common factor is the greatest

possible part (i. e. all) of the other body;

Coincidence: the common factor is the greatest possible part

(i. e. all) of both bodies ;

Exclusion : the common factor is the smallest possible part of

one body or of the other body or of both.1

1 These cases may be conveniently developed as follows: Let two areas

overlap each other thus:

C being the common factor, A + C one area and C -f B the other.

(1) Let C be increased to the value of A + C; or, what is more conven¬

ient, let A + C be diminished to C. The right hand area now includes

all of the left.

(2) Conversely, let C + B be diminished to C. The left hand area now

includes all of the right.

(3) Let C be increased to the value of A -f- C and of C + B. The

possibility of this presupposes the equality of the two areas. For con-

Expression of Thought Connection.

13

VARIETIES OF THOUGHT CONNECTION.

Passing now from the objective to the ideal, I shall endeavor

to show that, in all cases in which thoughts are conceived to be

joined, one of them is either wholly or partially included in the

other. I do not therefore need to consider the case in which

two thoughts are mutually exclusive. The same is true with

the case of thoughts conceived as coincident. Moreover this in¬

teresting case, however occurring, would naturally be expressed

by a plural and not by the help of anything called a conjunction.

There remain to be considered then three cases only.* 1 A.

Two thoughts have a part only of each in common. B. The

first contains the whole of the second. C. The second contains

the whole of the first.

A. Two thoughts contain each a part of the other.

This case may be illustrated most clearly by a form of sentence

which, though little used, has appeared in widely different

languages. Thus: (from old German) "Up from his seat arose

Herr Hagen spoke as follows. ” There are here two complete

sentences, presenting two complete judgments. One is: "Hagen

rose from his seat. ” The other is : " Hagen spoke as follows. "

The two have a common factor, namely the first term "Hagen."

This term is only once named and only once thought.2

venience, instead of increasing, let A -j- C and C + B be each diminished

to C. C then stands for two areas; and these are coterminal or coincident.

(4) Let now C be diminished as much as possible, namely to zero. Ac¬

cording to the view-point one may say with equal truth that 0, as part of

A -f- C, is the smallest possible part of C -f- B; the left area is excluded

from the right. Again C as part of C + B is the smallest possible part

of A -f- C; the right area is excluded from the left. And still again C as

part of both A -J- C and C + B is the smallest possible part of both; the

two areas are mutually exclusive.

1 1 necessarily omit thoughts occurring in different minds; for obviously

the thoughts of one mind have no existence for another until they become

also the thoughts of that other. Simultaneous thoughts in the same mind

I also omit, because in linguistic presentation they are perforce expressed

in succession or as a plural.

2 In such cases the common factor is usually symbolized a second time

by “ who,” the second symbol allowing a second inflection expressing as-

14 Owen — Meaning and Function of Thought - Connectives.

The same principle is very extensively employed with other

terms and with adjuncts; but I believe grammarians have not

called the process conjunctive except in some uses of the adverb;

e. g. “He departed as I arrived.” In this example the word

“as ” is plainly an indefinite time-namer. That the idea of time

belongs with “ arrived ” has never been questioned. That this

idea also belongs with “departed” cannot be questioned; for

the whole purpose of time-naming is to show when “he de¬

parted. ” This time-idea is then first and foremost an element of

the first thought. As such it is indefinite. This indefiniteness

is removed by its association with “my arrival.” The very aim

and purpose then of the time-idea fails, unless it be taken as

a factor of both thoughts.

From the above and other examples it would be easy to show

that when two thoughts have a part only of each in common,

they are not expressed by what are usually ranked as separate

sentences. This case does not then lie within the limited

field of this investigation.

B. The first thought contains the whole of the second.

The simplest cases show the second thought as last term of the

first thought, e. g. “I believe his being honest.” “I believe him

to be honest. ” I believe that he is honest. ” These three forms,

so far as function of the second thought in the first is concerned,

are identical. The notion of conjunction does not, however, oc¬

cur to the grammarian till he reaches the form: “I believe that he

is honest. ” And even with this form the notion seems to be losing

ground. It is now quite generally believed that the word ” that ”

is a substantive of indefinite meaning, that this meaning is

symbolized a second time and definitely in what follows.

From the above and other examples it would be easy to show

that when the first of two thoughts contains the whole of the

second, the two are ordinarily not expressed by separate sen¬

tences. Such expression does, however, sometimes occur; e. g.

“What I believe is this. A is honest.” Clearly enough the

sociation and function of the common factor in the second thought. But

the two symbols stand for a single idea and this idea makes but one ap¬

pearance, a continued appearance, in the mind.

Expression of Thought Connection.

15

word " this ” presents indefinitely that which is believed; and

that which is believed is again symbolized by the second sen¬

tence. The indefinite prefigures the definite and may be said

to be the definite in a germinal stage of development. But as

such cases are comparatively rare and obviously different from

those to follow, they may be excluded from this investigation.

C. The second thought contains the whole of the first.

The two may be expressed by a single sentence, e. g. “ That A is

honest I do not doubt. ” But more commonly two independent

sentences are employed, e. g. “ A is honest. That I do not doubt. ”

Cases in which the first sentence is so obviously repeated as a

main term of the second may be neglected on account of their

simplicity.

In the cases to be considered neither sentence is usually con¬

ceived to be repeated in the other, but a word of the second

is believed to join the two. This word is classed as a con¬

junction and is known by the special name of a thought-con¬

nective.

It is my object in this investigation to demonstrate that, in

these cases also, what the thought-connective names is part and

parcel of the second thought. In so doing, 1 will first endeavor

to show that such a theory must be true by establishing the

untruth of all other possible theories.

In choosing examples it would be strictly proper to use only

sentences of some length, because the accepted sign of separate¬

ness, the period, is usual only between such sentences. But,

as a matter of convenience, short examples are chosen, it being

always easy to conceive them as sufficiently amplified.

WHAT VALUES THE THOUGHT-CONNECTIVE CANNOT HAVE.

Using my list of possible word-values (see p. 10) and follow¬

ing the order of convenience, it is plain that

First , the thought-connective might be functional. That is,

it might show as what thought-element some idea is to be used.

But this it does not; e. g. “And George the dragon slew”.

The poetic arrangement is chosen for the purpose of leaving, to

order no power to settle the choice of subject. It is accordingly

16 Owen — Meaning and Function of Thought- Connectives.

uncertain whether George slew the dragon or the dragon slew

George. That is, the function of either noun, its choice of

position as first or last term, is uncertain. This uncertainty

is in no degree relieved by the presence of the word “ and. ”

Also “and” has no influence in fixing “slew” as mid-term.

That is, the conjunction is not to be classified as functional.1

Second , the thought-connective might be associational ; e. g.

“ And large exceedingly fierce men dragons slew. ” The func¬

tion of the idea named by “ exceedingly” is clear. It must be

taken as an adjunct of one of the first term’s adjuncts, either

with “ large ” or with “ fierce. ” But its choice between these

two, that is to say its association, is uncertain. This uncer¬

tainty is in no degree relieved by the presence of the word

“and.” That is, this conjunction is not to be classified as as¬

sociational.2

Third , the thought-connective might be independent of the

rest of the sentence — a foreign substance in the verbal organ¬

ism; e. g. “And George the dragon slew.” The word “and,”

if irrelevant, is required to join what follows to what has pre¬

ceded, while itself completely disconnected from what follows.

It seems unnecessary to argue that this is impossible. The

moment that union ceases between “ and ” and what follows, the

union between what follows and what precedes must also cease,

unless maintained by some other means than any afforded by

“ and. ” That is, the conjunction cannot be classified as inde¬

pendent.3

1 The conjunction obviously gives no instruction as to its own function.

2 The conjunction obviously gives no instruction as to its own associa¬

tion.

3 It might be claimed that, even though the word “ and ” be not itself a

joiner, it shows that thoughts are to be joined by the hearer or have been

joined by the speaker; that is, “ and ” might be either an order to join or

a statement of junction. While this view contains much truth and the

appearance of more, it shrinks in value when we find no indication whether

a statement or an order be designed. The absence of such indication sug¬

gests at least the sub-importance to the speaker of what he omits to name.

In illustration let the thought expressed by our example be fully devel¬

oped. Using first the the mandatory value of “ and,” the sentence “ And

George the dragon slew ” does not mean “ Join George the dragon slew to

Expression of Thought Connection.

17

The above examination of the thought-connective in so small

a number of examples cannot be regarded as proving that it

never has the values successively tested. It shows, however,

that the possession of such values, if it ever occurs, cannot be

regarded as essential — cannot, therefore, be properly made the

basis of classification. It seems, accordingly, evident that the

thought-connective must be classed as the only other element

possible, namely a structural element. The doctrine of the

growth of instructional sentence-elements from so-called empty

words favors the expectation that the thought-connective, at

least in primary usage, will be found to be fully structural.

Fourth , then, and last, the thought-connective may be struct¬

ural. If such, it might be a term of the essential judgment.

But this, to the most superficial observation, it is not. Recall¬

ing the example: “And George the dragon slew,” it is plain

that “and” is not the first term, otherwise known as subject.

It is not the last term, otherwise known as -sometimes object and

sometimes predicate. It is not the mid-term or relation, other¬

wise known as verb or copula.

WHAT VALUE THE THOUGHT-CONNECTIVE MUST HAVE.

Turning from the discussion of what the thought-connective

is not, it remains to show if possible what the thought-connec¬

tive is. There remains one class only of ideas from which, by

the preceding argument, it has not been excluded, namely the

class of adjuncts. It is therefore provisorily assumed that the

thought-connective enters thought-structure as an adjunct. An

a preceding statement.” It means rather “George slew the dragon — a

statement to be joined by you to its predecessor.” That is, the order to

join the statement is of less importance than the statement itself. Or,

using the explanatory value of “ and,” the meaning is not “ I have joined

George the dragon slew to a preceding statement,” but rather “ George slew

the dragon — a statement joined by me to its predecessor.” That is, the

explanation is much less important than the statement. Indeed, for my

own part, I can not, in the given example, say either that I am telling

you to do the joining or stating that I have done it myself. All that I feel

sure of is that I do conceive a junction. Its particular form and method

will be developed in another place.

2

18 Owen — Meaning and Function of Thought- Connectives.

attempt will now be made by the study of a single thought-con¬

nective to develop a more detailed theory. The whole body of

thought-connectives will next be classified. The theory will

then be tested by successive applications to all classes.

For preliminary examination of thought-connectives let the

word “ therefore ” serve as a type ; e. g. “ He invited me.

Therefore I came. ” The meaning of the word " therefore ” is es¬

sentially “on account of that ” or, more briefly, “from that.” Not

only is this evident to ordinary observation, but etymology, his¬

torical and comparative, declares it. It is accordingly clear at

the outset that the present case is one of multiple symboliza¬

tion. That is, the single word “ therefore ” stands for ideas

which are often represented separately.

The exact value of each of these ideas merits careful observa¬

tion. And plainly the usual demonstrative value of “ that ” is

not sufficient. Its present value is reinstative. That is, it brings

back to attention something which has preceded. In the present

case, moreover, it brings back not a mere thought-element but

a whole thought. The proper test of this opinion is to put the

whole preceding thought in place of the word “ that. ” Accord¬

ingly “He invited me. On account of his inviting me I came.”

Plainly this substitution neither adds to nor subtracts from the

speaker’s meaning. “ His inviting me ” may be accepted, there¬

fore, as the true value of “ that. ” 1 This element of the connec¬

tive is, then, reinstative or anaphoric, not initial, not deiktic.

1 The propriety of thus defining “that” may be further developed as

follows. It is evident that the same mind-stuff can be regarded as one or

as composed of parts, according to the speaker’s choice. To illustrate ob¬

jectively, a horse, buggy and connecting harness may be regarded as either

one or three at convenience. Indeed the language of the people supplies

in the word “rig” a name for the unanalyzed combination. But as

rule such names do not exist for thoughts. Names for the most part are

symbols merely of thought-elements or ideas. Even when conceived as a

unit, the thought as a rule can be distinctly presented only by combining

the names of its parts, one part appearing as nucleus and the others being

clustered about it. The question rises then: which part shall be put as

nucleus? In answering, we must avoid a common but erroneous valua¬

tion of thought-elements.

The phraseology of grammar presents relations as of subordinate value.

Expression of Thought Connection.

19

The remaining element, the phrase “ on account of ” or its

equivalent "from,” can best be appreciated after some exam¬

ination of the preposition. This thought-element, like the verb,

is a relation-namer. But it differs from the verb in being em¬

ployed in the special case in which a relation and a last term

are combined as an adjunct of what stands thereto as a first

term j1 e. g. “ The book on the table. ” In this phrase “ book ” and

“ table “ are plainly a first and a last term and the relation be¬

tween them is expressed by “ on. ” This relation and the last

term are taken together as an attribute or accident of the first.

That is, the book is characterized by “ on-the-tableness. ” In

Subject and predicate (first and last terms) are conceived as of primary

importance; other elements are noted as “ mere relations.” In opposition

to such valuation it may be observed that the habitual effort of the mind

is to find relations. In an advanced stage of mental development we may

indeed start with a relation and institute a search for terms to fit it. This

process is, however, unusual. As a rule we are not finders of terms for

relations. We are finders of relations for terms. Man might indeed be

distinguished as the relation-finding animal. So far then as results are

more important than data, so far in the thinker’s mind the relation out¬

values the other terms.

Suppose now that a thought conceived as a unit is to be presented by

the names for its parts. It is plainly possible to use as nucleus either first

or last term, distinguishing it by its relation to the other term. But such

a method violates the thinker’s estimate of values. The proper method is

rather to use as nucleus the relation and to distinguish this relation by

the terms between which it holds. Having said for instance that 6 ex¬

ceeds 4, if I wish to distinctly present this thought as a unit, I use the

phrase “ the superiority of 6 to 4,” not “the 4-exceeding 6,” not “the

by-6-exceeded 4.”

So also in the present case, having stated analytically that “ He invited

me;” having obviously expressed by “ invited ” a relation (that of inviter to

invited) between him and me, which can be learned from no other source; if

now I wish to distinctly present my thought again as a unit, but by means

of its part-namers, my descriptive phrase will be of some such form as

“ his inviting me,” “ his invitation of me,” or, “ my invitation by him.”

1 1 believe that sufficient testing will show an opportunity to apply here

Morgan’s excellent distinction between focal and marginal consciousness;

that, when several relations enter into one thought-structure, that which is

dominant (or centrally, focally conscious) will be found to be always ex¬

pressed by the principal verb; that the preposition will be found to name

in all cases a relation of a subordinate, eccentric or marginal character.

20 Owen — Meaning and Function of Thought- Connectives.

other words, the prepositional phrase is an adjunct. This ad¬

junct is in the present case used as an adjective. Such an ad¬

junct in other cases may be used like an adverb; e. g. “ He

sank with great rapidity. ” Accompaniment (figuratively put

for characterization) by rapidity is treated as an adverbial ad¬

junct of “ sank. ”

It should further be noted that, in the above examples, the

relation named by the preposition is obtained by thinking from

the first-mentioned term to the last. Thus, in the phrase “ the

book on the table ” the speaker plainly obtained the relation by

what may be called a thought-transit from the “ book ” to the

“ table. ” For, if he had thought from the table fco the book,

he would have developed the relation named by “ under. ” For the

relation expressed by “ on ” I have chosen, as above noted, the

name of proverse or forward, giving to that expressed by “ un¬

der ” the name of reverse or backward. And it should also be

observed that between any two terms either relation may be de¬

veloped; for it is obviously possible to make the thought-tran¬

sit from either one to the other.

It should further be noted that the order of ideas in thinking

is not necessarily that of the words employed to express them.

For instance, using an order allowed in poetry, “ The earth

above the sky is blue. ” Now there is no earth above the sky.

Accordingly it must be that, in spite of the order of words,

the order of ideas is that expressible by “ the sky above the

earth.” So far as observed, such violations of order in the

prepositional phrase are quite rare. It may then, within the

bounds of safety, be said that the preposition usually names

a relation obtained by a thought-transit from its first-named

term to its last-named term.

With thought-connectives the opposite is the case. Given

again the example : “He invited me. Therefore I came. ” “ His

invitation ” is the first-mentioned term. “ My coming ” is the

last-mentioned term. “ Therefore ” contains a relation between

the two. This relation is not developed by a thought-transit

from the invitation to the coming. Were such the case, the

developed relation would be named by “ toward ” or an expres¬

sion of causation, e. g. “ His invitation was toward my com-

Expression of Thought Connection.

21

ing, favored my coming, caused my coming. ” The actual rela¬

tion, expressed by “from,” is plainly developed by passing in

mind from “ my coming ” back to “ his invitation. ” This rela¬

tion would be asserted by saying: “My coming was from the

invitation, on account of it, caused by it. ” In short, “ I came

from or for that. ”

It appears then that the word “ therefore ” has two simultan¬

eous meanings. It names a reverse relation between two

thoughts. Of these two thoughts it reinstates the former.

In remains now to be seen in what way these two meanings

are structurally employed. To determine this it should be noted

that the structure of the second thought is the outcome of a

compromise between two conflicting desires. The speaker

wishes, on one hand, to assert “ his coming. ” On the other

hand, he wishes to assert that “ this coming was the result of

an invitation. ” Both these wishes he might easily realize by

using two separate sentences as follows. (1) “ I came. ” (2)

“ That was from his invitation. ” But linguistic economy urges

the reduction of these two structures to one. This result can be

obtained only by making one of them some element of the other.1

On the one hand, the assertion that “ I came ” might be sac¬

rificed, (1) becoming an element of (2). This would lead to such

a sentence as “ My coming was from his invitation ” or “ My com¬

ing was from that, (therefore). ” On the other hand the assertion

that “ the coming was from the invitation ” may be sacrificed,

(2) becoming an element of (1). The election of this alterna¬

tive leads to such a sentence as “ I came from his invitation —

from that — therefore. ”

It needs no demonstration to show that in the elected form¬

ula the two words, “ I” and “ came,” express by some means

three terms. The word “ I ” names an actor. The word

“ came ” names an action. These two have something to do

with each other, are in some relation; otherwise they could

not constitute a thought. That the relation is that of actor

to his own action and that it is, by multiple symbolization,

expressed in the word “ came, ” along with the speaker’s belief

Unification by common factor has been eliminated from the present

field.

22 Given — Meaning and Function of Thought- Connectives .

in its reality, does not need to be proven. For, without such

proof, it is plain that in some way all essential elements of

thought are presented by the sentence ” I came. “ That is, the

places for terms are all preempted. If therefore a new element

is to be added, it must take its place as an adjunct.

The connective is then adjunctive, but, as the sequel will

show, of a somewhat peculiar type. The adjunct as a rule is

coupled in the mind with a single term, as shown by previous

examples. But in the case before us the adjunct is coupled

with a whole thought. It does not really belong with “ com¬

ing, ” except so far as the coming is my own, as distinguished

from the coming of any other person.

The adjunct of this sort may be known as a thought-adjunct

in distinction from the ordinary or term-adjunct. With special

forms for term-adjuncts languages are generally well-provided,

even differentiating sometimes the adjunct of one term (e. g.

adjective as adjunct of first or last term) from that of another

(e. g. adverb as mid-term-adjunct). But in special forms for

thought-adjuncts language seems to be quite deficient. When

therefore it is necessary to express the adjunct of a whole

thought, that variety of term-adjunct is used as a make-shift,

which seems most nearly to meet requirements. The variety

elected is the adjunct of the mid-term, the term, that is, which

expresses relation. In other words the chosen expression of

thought-adjunct is the adverb, in its stricter sense of verb-lim¬

iter.1 The reason for this choice is in part the fact that the

relation, as indicated above, is by far the most important

thought-element.

1 The use of make-shifts is one of the most common linguistic phenom¬

ena, is indeed one of the most important agents of linguistic progress. As

the boy makes use of his jack-knife now as screw-driver, now as gimlet

and again as hammer, so a word designed for a particular purpose is forced

to serve, in the lack of a better word, the different purpose of the moment.

To illustrate for the special case in hand, suppose I wish to characterize

a thought as not my own, but that of another — a zoologist, the thought

being that mastodons are pachyderms. I do not say that the mastodons

of his mind are pachyderms; for this is telling you my own opinion of

what he ranks as mastodons. Nor do I say that mastodons are pachyderms

of his mind; for this is telling you my opinion of mastodons in terms of

Expression of Thought Connection .

23

From the preceding reasoning, if correct, it follows that in

some way the ideas expressed by “ therefore ” must form a

thought-adjunct and that this thought-adjunct will choose the

same linguistic expression as that employed for the adjunct of

the mid-term or verb. It remains only to note the details of

this arrangement. And in so doing it should be observed that

the use of adjuncts is based upon this principle: that the use

of an idea as a term of one thought does not disqualify it from

serving at the same time as term in some other thought.1 Ac¬

cordingly in the thought expressed by the sentence “I came,”

let the structural value of the idea expressed by " came ” be

whatever it will; it is still true that this idea may serve again

as first term to a new relation and a new last term. This now

is exactly what happens. The coming serves again as the first

term of a new thought. The last term of this new thought is

the reinstated invitation. The relational element of the new

thought is most conveniently expressed by “ from. ”

At this point occurs a slight readjustment of structure. The

causal relation and the last term taken together are regarded as

in the attributive relation to the first term. That such read¬

justments do often occur may be shown by a few examples. In

the sentence “ dogs eat meat ” it is certainly possible, and

indeed highly convenient, to regard the word “ eat ” as naming

the relation of eater to food. But this relation and the last

term, “meat,” may be combined in the word "carnivorous;”

and the ideal total presented by "carnivorous” may be con¬

ceived anew in the attributive or object-to-quality relation with

the first term. This readjusted structure is expressed by the

sentence, " dogs are carnivorous. ” Again, " a cave under the

what he ranks as pachyderms. I say rather that mastodons are, in his

mind, pachyderms. That is, the relation between the two groups is de¬

clared as obtaining in his mind, not my own. To obtain in his mind, this

relation must be accompanied in his mind by its terms. The idea of pres¬

ence in his mind accordingly diffuses from the relation over the other

thought-elements. That is: the adjunct which, in form, belongs to the

mid-term only, is conceived as, in value, the adjunct of the whole

thought.

1 So a northeast corner-stone serves at the same time as part of a north

wall and part of an east wall.

24 Owen — Meaning and Function of Thought - Connectives.

sea ” is paraphrased by the words, “ a submarine cave. ” In

both examples the very word- and sentence-structure shows that

relation and last term are combined, and that the combination

is conceived in the new attributive relation to the first term.

Analogously, the relation named in the word “ therefore ” (by

the element “for” or “from”) and the reinstated thought

(expressed in substantive value by the element “there”) com¬

bine into a total, which is conceived anew as in the attributive

relation with “ came. " This attributive relation, being easily

inferred, is not expressed. In other words, the elements com¬

bined under the word “ therefore ” constitute an adjunct in the

last thought. Or, in grammatical parlance, “ therefore, ” with

the value of “ from that, ” is construed like a prepositional

phrase; it is adverbially used; it limits “came. 1,1

The argument for the adverb-theory, thus far general and

largely of an a-priori character will be followed by a process of

testing. Meantime observe that the word “ therefore ” and many

other thought-connectives contain an etymological element of

so-called demonstrative character, which has been accounted for

by giving it reinstative value. But in still other connectives,

e. g. “consequently,” no such element appears. Yet the mental

total is the same, whichever connective be employed. By the

use of the word “consequently” precisely the same result is

reached as by the use of the phrase “ in consequence of that. ”

That is, in either case a preceding thought is reinstated. Two

explanations of the word “consequently ” are, therefore, possi¬

ble. It may be claimed that by multiple symbolization it actu¬

ally expresses both relation and reinstated thought. Or it may

be claimed that “ consequently ” names only relation and that, a

first term being thereto necessary, the hearer’s mind must sup¬

ply such first term for itself. For plainly the relation between

two thoughts cannot be felt with one thought in the mind and

1 It may add clearness to this opinion to cite one of the distincter formu¬

lations of antagonistic opinion. And none seems more distinct than that

set forth by Girault-Duvivier, on page 895 of his “ Grammaire des Gram-

maires.” “ The conjunction differs from the adverb. It does not modify

a verb (nor an adjective, nor an adverb).” “ It differs from the preposi¬

tion. It does not express the relation of one thing with another.”

Single Relations Between Thoughts.

25

the other out. In both cases, then, the thought-result is the

same. The terminology of the first view being simpler, that

view will be used in this investigation, as a working hypothesis.

That is, every thought-connective will be treated as not merely

necessitating, but as accomplishing of itself the reinstatement

of a former thought.

PART II. APPLICATION OP THEORY.

The remainder of this investigation endeavors (I) to general¬

ize, for the single thought-relations expressed by the English

language, the opinion derived from the examination of the word

“ therefore; ” (II) to exhibit the use of the connective in the expres¬

sion of multiple relations; (III) to apply the present view to

the serial relations which occur in what is known as continued

reasoning. It takes into consideration the connectives listed on

page 178 of Prof. E. H. Lewis’ “History of the English Para¬

graph. ” Prom this list, however, there have been omitted the

following as of doubtful connective value : yea , nay , first , add to ,

so far , hitherto , thus far, once more, it is true, at least, finally, at

last, at length, well. On the other hand, a few have been added

which seem not to have occurred in the texts examined by Prof.

Lewis.

I. SINGLE RELATIONS BETWEEN THOUGHTS.

It is preliminarily assumed that in all cases the function of

the thought-connective is to exhibit relation between the thought

of the moment and a preceding thought. This is but saying

that the connective aims to show what, in popular parlance, two

thoughts have to do with each other. This being admitted, it

is obvious that the study of connectives is first of all a study of

relations. To simplify this study it is desirable to classify such

relations as are presented by thought-connectives. The diffi¬

culty of such classification may be inferred from Lloyd Morgan’s

belief that the ability to fasten the attention directly upon rela¬

tions is the one power which distinguishes the minds of men

from the minds of other animals. With man himself the power

26 Owen — Meaning and Function of Thought- Connectives.

to focus attention upon relations comes late and the words which

distinctly express relations are late in linguistic development.

In fact the perfect differentiation of one relation from another

would be a maximum of intellectual attainment. It is, therefore,

readily conceded that the suggested lines of demarcation be¬

tween classes of relation are more or less arbitrary. Classifica¬

tion is accordingly made in the interest, mainly, of convenience.

It should further be noted that, on account of the general lack of

power to clearly discriminate between relations, there is much

inconsistency in the use of relation-naming words. The same

word stands for different relations and different words stand for

the same relation. There will then be no attempt to exhaust

the possibilities of relation-naming, the present aim being not

so much to establish meaning as to exhibit structure.

The relation most frequently expressed by thought-connectives

may be known as common group-membership. In treating this

relation it is important to distinguish at once the different

aspects in which a group may be considered.

In the first place the same group may be conceived as either

homogeneous or heterogeneous. For instance, the difference

between two objects being emphasized, they may be called

“ an apple and a pear. ” The group in this case is conceived as

heterogeneous. On the other hand, their differences being over¬

looked, they may be called “ two fruits. ” The same group is

now conceived as homogeneous. Omitting the interesting pos¬

sibilities of groups formable either in time or space from ob¬

jects, qualities, actions and relations, I merely draw from my

illustration the general principle that homogeneous idea- groups

may be expressed by plurals.

Homogeneous thought-groups are somewhat rare. As would

be expected from the expression of thought-adjuncts by mid- berm-

adjuncts (see p. 22), it appears that the indication of thought-

plurality may be accomplished by indicating plurality of mid¬

term or relation- word. To illustrate, suppose a homogeneous

series or group of visits on my part to my uncle; a single one

of these may be expressed by the sentence : “ I visited my uncle. u

If I wish to pluralize this in English, I do so by a pluralizing

Single Relations Betioeen Thoughts.

27-

adverb, obtaining the sentence: “I repeatedly (several times)

visited my uncle. ” In French I may use the form “ visitais, ”

the verb itself having in this case a genuinely plural (frequenta¬

tive) value, not at all to be confounded with that of the spurious

plural “ visitames. ”

I do not know any case in which thoughts consecutively ex¬

pressed (the only ones considered in this investigation) are char

acterized by the connective as homogeneous. For although

thoughts thus characterizable are often connected by “ and, ” it

will be seen that they are actually characterized somewhat differ¬

ently. I therefore neglect homogeneous thoughts, as not handled

by connectives, and pass to the examination of heterogeneous

groups. These will be found to be of three sorts: concordant,

discordant and neutral.

Of the members of a concordant group it is conceived that,

though they are different, they exist together naturally, with¬

out occasioning surprise. Thus, age and feebleness are obvi¬

ously heterogeneous qualities; yet they are grouped together in

the description of an individual, without occasioning surprise;

indeed, given the first, the second rather fulfills an expectation.

To illustrate the second group- variety, let the same individual

be characterized not only by age, but also by activity. The facts

of the case permit activity to group itself with age, the two

being qualities of the same person. But the presence of activity

with age is, to say the least, unexpected. This group may, then,

be characterized as discordant.

To illustrate the last kind of group let the same individual be

distinguished firstly, by honesty; secondly, by beauty. The

facts of the case permit honesty to group itself with beauty, the

two being qualities of the same person. But it should be noted

that personal beauty and honesty are not conceived as in the na¬

ture of things belonging together. That is, there is nothing

worthy of the name of concordance. Nor, on the other hand,

is there the slightest suggestion of discordance. This group,

then, being neither concordant nor discordant, may be called

neutral.

This distinction established, it is practicable to open the study

of the relations expressed by thought-connectives with

28 Owen — Meaning and Function of Thought- Connectives.

CLASS I. RELATIONS OF GROUP-MEMBER TO GROUP-MEMBER.

The group may be

(a) Concordant , employing the connectives and, and not, nor,

NEITHER.

Of these the last three merely combine “ and ” with a negative.

Attention may, therefore, be exclusively directed to “ and. ” The

historical value of this word is now given as “ in addition ” ; e. g.

“And he succeeded.” That is, “ additionally he succeeded.”

It is plainly his success that was additional. Accordingly

“ and,” though valued properly as a thought- adjunct, appears

in the form of a verb-adjunct or adverb. But such a sentence is

as incomplete as the algebraic form “ + B. ” B is here repre¬

sented, not as an isolated B, but as a B additional to some

other quantity. So, too, in the example given, his success is

not an isolated success, but a success conceived as added to

something else. Without this something else the thought and

sentence are both incomplete. There is present, so far, a

thought expressed by “ he succeeded”; also a relation ex¬

pressed by “ and. ” There is wanted another thought between

which and the thought expressed this relation may hold. Let

the example, then, be expanded into the following form; “ He

strove. And he succeeded.” It is now evident that the sec¬

ond thought reinstates the first thought as, with the relation,

an adjunct of itself. Accordingly, in full, “ he succeeded in

addition to his striving. ”

Reviewing and stating fully, “ He strove ” expresses a first

thought. “ He succeeded ” expresses a second thought. The

relation between them is that of member to member of a hetero¬

geneous group. The first thought and this relation combine as

adverbial adjunct in the second thought, and are expressed by

“ and. ” Again, the group is conceived as concordant. Other¬

wise the word “ but ” would have been chosen. Also, the relation

is obtained by thinking from his success to his striving, and is

accordingly reverse. That is, his success is additional to his

striving. The whole meaning may then be presented by the

sentences : “ He strove. In concordant addition thereto he

succeeded. ”

Single Relations Between Thoughts.

29

It is conceded that absolute proof of values can be reached

only by an exhaustive examination of examples. The one chosen

in this and following cases is to be taken as offered after the

Euclidean method, as if I had said : let the above be any

example of the use of “ and It should also be noted that

such cases as “ I will find him and he be there ” are explain-

ble by a totally different method and, indeed, have nothing to

do with the field under examination.

(b) Discordant , employing the connectives but, though, yet,

still.

For example : ” He is old. But he is active. ” In this exam¬

ple the value of “ but ” is plainly “ in discordant addition to

his being old. ” The two thoughts are conceived as a hetero¬

geneous group in the sense above established. They are also

further conceived as discordant. The relation is, then, that of

member to member of a heterogeneous and discordant group.

This relation, obtained by thought-transit from his activity

back to his age, is reverse. “ But, ” then, reinstates in substan¬

tive function the preceding thought. With this reinstated value

it combines the relation. The total thus obtained is used as ad¬

junct in the last sentence. This adjunct is put as adverb

with “ is. ”

The use of the word “ though ” is more peculiar. It should

be noted in the first place that this word is mainly used in

a strictly prepositional function ; e. g. “ Though he slay me,

yet will I trust him. ” The meaning here is plainly that the

trusting will hold in spite of the slaying. By its use in such

cases “ though ” acquires the habit of regarding the immed¬

iately following thought as the last term of the relation which

it expresses. Such being the use of the prepositional “ though, ”

the use of “ though ” as thought-connective offers some embar¬

rassment. For instance, let it first be stated that “ X did not

strive. ” Let it be added that " he succeeded. ” It is desired now

to express a discordant relation between his success and his lack

of effort. If “ though ” is put at the head of the second state¬

ment, the hearer may take it prepositionally, regard the immed¬

iately following thought as last term and conclude that “ in spite

of his success X did not strive. ” But it is desired that the hearer

30 Owen — Meaning and Function of Thought- Connectives.

should understand that “ X succeeded in spite of not striving. ”

To assure this understanding, the connective “ though, ” is sent

to the end of the sentence, giving in full the unequivocal form

“ He did not strive. He succeeded though. ” In this shape the

meaning of the last sentence is plainly that " he succeeded in

spite of his not striving. ”

The position of “ though ” is a marked exception to the gen¬

eral habit of connectives. That it has been occasioned by the co¬

existent prepositional function of the same word, is further

suggested by the German usage of its etymological equivalent

“ doch. ” This word is not embarrassed by co-existent prep¬

ositional function. It, accordingly, may take the usual place

at the sentence-head; e. g. " Er hat nicht gearbeitet. Doch ist

es ihm gelungen. ”

It may be added that, so far as the fully expressed thoughts are

concerned, it is also in the case of “ though ” from the last to

the first that the thought-transit is taken. In this aspect of

the case, the relation may be called, as usual, reverse. It com-

bines as usual with the reinstated first thought to form an ad¬

junct of the second, this adjunct being put as adverb of the

verb.

“Yet” and “still ” do not seem to require comment.

(c) Neutral , unqualified , employing the connectives also, be¬

sides, TOO, MOREOVER, FURTHER, FURTHERMORE, AGAIN.

For example, “ He is young. Also he is rich. ” As total

thought- value of these sentences we obtain “ He is young. In

addition (neither concordant nor discordant) thereto he is rich. ”

In the expression of this value there falls to “ also ” the duty

of reinstating the preceding thought and that of naming the re¬

lation between it and the following thought. The relation is, as

usual, reverse. The relation and the reinstated thought form

together an adjunct of the last thought, being put as adverb

with its verb.

“ Also ” is further sometimes used as an idea-connective,

falling as such without the field in discussion.

For example : “ It is remarkable how long he contrives to re¬

main young. He is also rich,” i. e. “rich in addition to young. ”

Bemaining thought-elements are not reinstated.

Single Relations Between Thoughts.

31

The connective “ too ” is, for the most part, also confined

to partial reinstatement of this sort. As full reins later, it

retires somewhat from the initial position ; e. g. “ He is

poor. His wife, too, is extravagant. ”

The other connectives of this class seem to require no com¬

ment.

CLASS II. RELATIONS OP SIMILARITY AND DISSIMILARITY.

(a) Similarity , employing the connectives likewise, in like

MANNER, SIMILARLY.

For example, "Fire melts lead. Similarly, the sun melts

snow. ” That is, the second phenomenon stands to the first in

the relation of like to like. Here occur again the reinstatement

of previous thought, and the naming of the reverse relation be¬

tween two thoughts. Reinstated thought and relation combine

to form an adjunct of the last thought, but are put as ad¬

junct to verb of last sentence, i. e., as adverb.

"Likewise” has for the most part almost, if not altogether,

lost this original power of naming the relation of similarity,

being almost synonymous with "and” or even "also.”

Of this class examples also occur in which reinstatement is

only partial, the reinstative word in such cases not being re¬

garded as a thought-connective; e. g. " He dined in full uni¬

form. In like manner ( i. e. in full uniform) he appeared at

the ball. ”

(b) Dissimilarity , employing the connectives contrariwise,

on the contrary, on the other hand. These are mere oppo¬

sites of the preceding, and require no discussion.

It may be noted that the relations of class II are much con¬

fused with those of class I, and for a very natural reason. Things

that are like are easily grouped. And things that are grouped

are apt to be conceived as more or less like. The difference be¬

tween the relations is then merely one of view-point; and pas

sage from one to the other is extremely easy. The relations o f

the first class emphasize group-existence, secondarily conceived

as concordant, discordant or neutral. The relations of the sec¬

ond class emphasize similarity or dissimilarity, which may be

further used in determining group-formation

32 Owen — Meaning and Function of Thought- Connectives.

CLASS III. RELATION OF EQUIVALENT TO EQUIVALENT.

This class employs the connectives in short, in a word, in other

WORDS, OR, RATHER.

The first three of these forms have, in the now-considered

usage, lost their original special meanings, and coalesced in

meaning and function with “ or, ” which will, accordingly, be

chosen as type; e. g. “A is the father of B’s father. Or A

is the grandfather of B. ” In exploiting this example it should

be noted first that, historically, “or” is the same as “other, ”

symbolizing then the relation of difference. But, in the now-

considered use of “or,” this difference has been restricted in

scope to difference in expression or form. At the same time it

has joined to itself the idea of substantial equivalence in mean¬

ing. In short, it is merely a relation of the type which I have

elsewhere described as composite.

Such being the relation-naming value of “or,” it remains to

note its reinstative value. This may be readily made to appear

by putting the relation only as attribute to the verb, and not¬

ing what further term it requires. Neglecting then the ele¬

ment of form-difference, as obvious and unimportant, let “ sub¬

stantial equivalence ” name the relation. This relation and some

last term are to be used as attributive or adjunct with the last

thought. As this adjunct in practice associates itself with the

verb, it should have the adverbial form, “ equivalently. ” This,

however, is not all. In the present case and many others (e.

g. concordance, similarity above), as soon as a relation with its

last term is treated as an attribute of its first term, it is need¬

lessly further conceived as itself in some relation with its last

term. Thus, the form “A equals B” plainly expresses two terms

and their relation. But, in the form “A is equal to B, ” the

speaker, having made equality an attribute of A, goes on to feign

a new relation, expressed by “to,” between. “ equality ” and “B. ”

That is, the equality which characterizes A belongs to B. Simi¬

larly, our typical example is readjusted as follows: “A is the

grandfather of B equivalently to something. ” Emphasizing now

the “something,” it is plain that a last term is required and is

to be supplied by the reinstatement of the preceding thought.

Single Relations Between Thoughts.

33

In full, then, “A is the grandfather of B equivalently to A’s

being the father of B’s father. ”

Accordingly “ or ” reinstates the preceding thought and also

names a reverse relation between it and the succeeding thought.

The relation and reinstatement combine as adjunct of the last

thought, being expressed by an adverb to the last verb.

Of the word “ rather ” it should be noted that it names a

relation of essential equivalence in meaning, but characterized

by a preference for the latter of two forms of expression. Thus :

“ A is the father of B’s father. Rather, A is B’s grandfather. ”

The latter, then, is to the former in the relation of preferred

equivalent to rejected equivalent.

CLASS IV. RELATIONS OP ALTERNATIVE TO ALTERNATIVE.

This class employs the connectives or, or else, otherwise,

RATHER.

For example: “A is the father of B. Or A is the uncle of B. ”

In the preceding case attention was concentrated upon form of

thought-expression. In the present case attention is with¬

drawn from form of expression and centered on the thoughts

themselves. The hearer is presented with two (or more) possi¬

bilities, of which it is believed that one only is true; but

which is true is not known. When strictly employed, as in the

logical dilemma, these possibilities are exhaustive, and hence

mutually exclusive. Accordingly, the truth of one involves the

untruth of the other, and vice versa. But the linguistic method

is commonly the following: the first thought is put as true;

the second thought is then put as true in case the first is, after

all, not true.

Recalling our illustration, “A is the father of B. Or A is the

uncle of B, ” let the relation of terms above described be known

as alternative. Plainly, this relation does hold between the

two propositions: first, that A is B’s father; second, that he is

his uncle. It is, further, from the word “ or ” that this rela¬

tion is learned. Again and obviously, this relation cannot be

perceived unless both its terms are in mind. The full meaning

of the second sentence is then: “alternatively to A’s being B’s

father, A is B’s uncle. ” The first thought having, as usual,

34 Owen — Meaning and Function of Thought - Connectives.

lapsed fi;om attention at the end of the first sentence, is rein¬

stated in the second sentence. And, plainly, no word in the sec¬

ond sentence has any approximation to such reinstative power,

except “ or. ” It, therefore, appears that “ or ” first reinstates

preceding thought; that “or” further names the alternative

relation between preceding and succeeding thought; that the

reinstatement and the relation combine, as usual, to form an

adverbial adjunct in the last sentence. Also the relation is

thought backward — is reverse. 1

“ Rather ” adds to the value expressed by “ or ” that of prefer¬

ence on the speaker’s part for the latter alternative. Thus

1 The above case of dual indecision naturally suggests the allied case of

plural or multiple indecision, which may be illustrated in the sentence,

“ A is a kinsman of B.” This statement plainly contemplates a multitude

of possible relations between the two. This multitude is capable of var¬

ious degrees of reduction, for which language does not usually take the

trouble to develop special forms of expression, until the number of possi¬

bilities becomes very small. For instance, it is hardly worth while to state

that A is related to B in some one of six specified varieties of kinship.

Indeed, the colloquial phrase “one of the six ” was, no doubt, invented

to ridicule such useless exactness. Even indecision between three possi¬

bilities is usually undistinguished from more general indecision. Lan¬

guages commonly have special expressions for indecision between two

possibilities, but none for indecision between three or more. It is accord¬

ing not surprising to learn that “or,” by derivation, means “ the remaining

one of two .” This meaning offers indeed a hint of the original thought-

structure, which was no doubt entirely different from that above suggested,

being appparently as follows: “ One (of two possibilities is:) A to be the

father of B.” “ The other (of two possibilities is:) A to be the uncle of B.”

That such was the original thought-structure is further suggested by the fre¬

quent introductory use, in its expression, of “ either ” (=one of two); thus,

“ Either A is the father of B or A is the uncle of B.” But in this expres¬

sion each possibility is asserted, under the restriction, however, of an ad¬

junct. If then linguistic form is to express actual thought, the idea of

possibleness must be found in this adjunct. Accordingly, “ either” must

suggest the idea of possibility. This possibility is of special kind, and, as

noted above, may be called alternativeness. Also, the first thought is re¬

garded as the first alternative and the second thought as the remaining

alternative. Putting all this into an adverbial phrase, the first part expands

into “As the first of two alternatives, A is the father of B, ” or “Firstly

of two alternatives, A is the father of B.” Correspondingly, the second

part becomes “ As the remaining alternative, A is the uncle of B,” or

“ Secondly of two alternatives, A is the uncle of B.”

I

Single Relations Between Thoughts.

35

"Rather A is the uncle of B” means in full "As preferred al¬

ternative to A’s being the father of B, A is the uncle of B. ”

The structure is otherwise obviously the same as in the case of

" or. ”

CLASS V. CONDITION RELATIONS.

(a) Relation of condition to conclusion , expressed by “ if ”

or an equivalent word or phrase.

This relation, so far as observed, is named in the first part

of a complex sentence; e. g. "If you had helped, I should

have succeeded.” This value of " if" is plainly the same

as that of a preposition, as appears in the equivalent " with

your helping. ” This value, in combination with the substantively

taken following thought, forms an adverbial adjunct of the last

thought. But the case falls without the present field.

(b) Relation of conclusion to condition , expressed by " then, "

" IN THAT CASE, ” " SO. ”

The condition is often independently formulated. It is rein¬

stated as part of the conclusion by the thought-connective;

e. g. " Suppose you had been there. Then you would have

helped. ” The word " then ” means " in that case ” or " as con¬

clusion to that condition. ” Accordingly " then ” (1) reinstates

your supposed presence; (2) names the relation of conclusion to

condition between your helping and your presence. Stated in

full, but with modified perspective, the value is accordingly:

" Suppose you had been there. Your helping would have been

in relation of conclusion to condition with your being there. ”

This relation, as usual, is reverse. It and reinstatement com¬

bine as adverb in the last sentence.

CLASS VI. CAUSAL RELATIONS.

(a) Relation of effect to cause , employing the connectives

HENCE, CONSEQUENTLY, ACCORDINGLY, SO, SO THAT,1 THEREFORE,

THUS.

1 Of these the form “ so that ” is strictly incorrect. Its proper function

is to introduce a result employed as a measure of the intensity of some

preceding element; e. g. “ The iron is so hot that I cannot hold it.” That

is, the iron is hot to the degree indicated by my inability to hold it. The

different use of “ so ” in the present class of cases appears in the example,

86 Owen — Meaning and Function of Thought- Connectives.

The original (?) value of “so ” is “ in that degree;” e. g. “The

boy is so tall” (accompanied by an explanatory gesture). From

this it has made the somewhat difficult transition to the value

of “ in that manner, ” e. g. “ He stood so” (accompanied by a de¬

scriptive attitude). Both these values, primarily deiktic or

demonstrative, easily become anaphoric or reins tative. Thus

“ The sun melts snow by its heat. So fire melts lead. ” That

is, “ Fire melts lead in a previously mentioned, reinstated

manner. ” Another easy transition develops the meaning “ by

the same agency ” or “ from the same cause. ” The final change

to the value of “ therefore ” is much more violent and invites a

passing observation.

Let X stand for a phenomenon which is neither distinctly nor

centrally in mind. Let A and B stand for two other phenomena

both distinct and central. Let both these last be somewhat

vaguely conceived as caused by X. If now A is described as occa¬

sioned by X, it is natural to say “So B is occasioned.” But the

case offers two possibilities. X may occasion both A and B.

Or X may occasion A, which in turn occasions B. That is, X

may occasion A directly and B indirectly. Now “ so ” (= from the

same cause) can properly be used of B only when B is, like A,

directly caused by X. But it is easy to make the slip of using

“so” with a B which is only indirectly caused by X — a B

which is directly the result of A instead of being, concomitantly

with A, a result of X. That is, what I have elsewhere de¬

scribed as the “ minor relation ” of co-effect to co-effect, is con¬

fused with the major relation of effect to cause and the same

word, namely “so," is used to name both relations; e. g. “He

invited me. So I came;” i. e. “I came (not as co-effect, with the

inviting, of the invitation’s cause, but) as effect of the invita¬

tion (itself). ”

In the preliminary study of connectives the present class was

“ The iron is too hot. So that I cannot hold it.” Either the word “ that ”

must be rejected as superfluous or a considerable ellipsis must be filled.

“ So ” alone, unencumbered by “ that,” will be covered by the explanation

which is to follow. If “ that ” is retained, it is necessary to fill the ellipsis

with some such result as “ So it is true that I cannot hold it,” “So you

see, etc.”, “ So it is plain, etc.” All these sentences may be treated like

those with “so ” alone; but presumably no one of them is really intended.

Single Relations Between Thoughts.

87

sufficiently treated in the typical “therefore.” It is enough, then,

to note again that in the present cases a preceding thought is

reinstated in substantive function. This reinstated thought,

combined with relation, is used as adverbial adjunct in the

second thought. The relation is reverse.

(b) Relation of effect to counter-cause , employing the connect¬

ives HOWEVER, NEVERTHELESS.

By this is meant the relation which exists between a second

phenomenon and a first, when the first does not cause the second,

but rather tends Jto cause the contrary, e. g. , “The cable was

severely strained. Nevertheless, it held firm. ” The strain is

plainly conceived as causative. Indeed, there is a vivid sugges¬

tion of its causing a rupture. Such is its tendency and such

would be the result, were it not for the intervention of oppositely

causative force or resistance. Such a force is found in the mole¬

cular attraction of the hempen fibres, and in the friction of fibre

on fibre, obtained by torsion. It is of these forces that the hold¬

ing firm must be regarded as the result. In the present case then

the related terms are, first, the cause of a result opposite to the

one mentioned; second, the result of a cause opposite to the one

mentioned. The relation is broadly one of antagonism. But this,

like every other, has its proverse and reverse aspects. To form

suitable names for these, it seems best to start with the names

of other causal relations. Beginning, as usual, with the last

phenomenon of the example, it is plain that it at least occupies

the place ordinarily occupied by a result or effect. Let the

holding firm of the cable be, then, conceived as an effect. The

relation of the strain to this effect is obviously not that of a

cause, but of the opposite of a cause. To name this relation,

such words as hindrance, prevention, deterrent, etc. are hardly

broad enough. There is need of a word expressing what tends

to produce an opposite effect, what tends to hinder actual effect

and what merely fails to occasion actual effect. It is to express

these meanings that the word “counter-cause” is employed.1

The word “nevertheless,” like “therefore,” contains an

etymological element, namely “ the, ” of reinstative and relation-

1 Plainly the relation might also be known as that of counter-effect to

cause; but this terminology has been found less convenient.

88 Owen — Meaning and Function of Thought- Connectives.

naming power. In the case of “ therefore ” this element was

seen to mean “ on account of that ” ; but in the present case it

means “in spite of that.” “Never” (= not) and “ less” con-

bine in the meaning “ to the same degree, ” which may be neg¬

lected as being a mere emphasizer.1 The relation expressed by

“in spite of” is reverse and the value of “that” reinstative.

Their combination, strictly adjunct of the last thought, is

taken as adverb to its verb.

1 This interpretation may be itemized as follows. Imprimis the facts re¬

quire us to introduce the second statement by some such formula as “ an¬

tagonistically thereto.’’ In developing this value from “nevertheless”

we must be careful both with meanings and with their combination. The

meanings are obviously “ from” (which usually means on account of),

“ that ” (reinstative), “never ’’(with the essential value of “not”) and

“less,” which defines itself. In the combination of these meanings the

important question is what to do with “not.” If put with “held,” the

meaning is that the cable did not hold, which meaning is untenable. If

“ not” be put with “firm,” the meaning is that the cable held not firm or

perhaps even weakly, which is untenable. If “ not” be put with “it,”

(the cable), the meaning is again useless. If “not ” be put with “on ac¬

count of,” a particular relation is excluded; but as the number of possible

relations is immense, the exclusion of a wrong one gives no practical

help in finding the right one. The result then of such exclusion would be

merely to leave the hearer in total ignorance of the relation between the

two thoughts contemplated. This also is presumably not intended. If

“not” be put with “that,” the preceding thought is excluded, which

exclusion again gives no aid in finding a substitute. It remains only to

put “ not ” with “ less, ” obtaining in full: “ The cable was strained. From

that not less it held firm.”

In testing this connective formula, let it be borne in mind that the coun¬

ter-cause is in the present case merely a cause that doesn’t work, an ineffec¬

tive cause. Now a moment’s reflection will convince one that, before the

mind begins to deal with ineffective causes, it must have become familiar

with causes through their effectivity. This is but another way of saying

that, in the order of acquisition or development, the effective cause precedes

the ineffective. Such being the case, with the well-known habits of lan¬

guage in mind, it is eminently probable that the connective mechanism of

the ineffective is a mere modification of that already in use with the effec¬

tive. Turning for a moment to the latter, suppose that as the result of strain

the cable breaks. I might prefer to say with some reserve, “From that less

(desto weniger) it held firm.” If now I wish to adjust this mechanism to

usage with an inefficient cause, I am likely enough, as countless examples

might show, to imagine that everything will be well, if I merely thrust in

Single Relations Between Thoughts.

39

As previously indicated, the boundary lines between relations

are frequently crossed, the speaker electing one class, even

when another is more conspicuous. Thus the speaker may choose

to regard cause and effect as concordant group-members; e. g.

“The cable was severely strained. And it broke.” Conversely,

counter-cause and effect may be ranked as discordant group-

members; e. g. “The cable was severely strained. But it held

firm. ”

Of the word “however” the first part, namely “how,” has the

value of “ in any case. ” This is merely emphasized in “ any¬

how. ” The second part, namely “ ever, ” is a mere broadener of

indefiniteness, as appears in the use of “ who ” and “ whoever, ”

a negative, to match the change from effectiveness to non-effectiveness*

Thus I reach, when dealing with an ineffective cause, the form “ The cable

was strained. From that not less it held.”

Now this “ not less ” might be taken as suggesting either “ as much ” or

“ more.” But this latter plainly violates the possibilities of the case. Even

“as much” is seen to be a mere emphasizer of what is, in its opposi¬

tion to what might have been. It is therefore comparatively neglected.

On the other hand the attention which has been directed to the possibili¬

ties of the case develops with ease the fact that the relation conceived can

be only that of effect to counter-cause; and the phrase “from that” is

henceforth in this formula associated with that relation.

This then is but one of the many cases in which a word’s particular re¬

lation-naming power is determined by its association with phenomena whose

relation is obvious; one also of those in which the same formula has on differ¬

ent occasions very different meanings. Thus “ while,” naming strictly time-

inclusion, acquires in English the meaning “ though ” (in spite of); but

in German it reaches that of “because.” “Pour” in French means

sometimes “ for the purpose of,” sometimes “because of ” and sometimes

again “in spite of.” So too the English “ for ” introduces purpose (e. g.

“a push for liberty”), reflects upon cause (e. g. “imprisonment for

theft ”), or names antagonism (e. g. “a man’s a man for a’ that ”). Further

cases offer later.

The word “ nevertheless” is employed in an interesting range of nega¬

tive sentences; e. g. “ The cable was severely strained. Nevertheless it did

not break.” And here it is worth while to note the absurdity of the often-

uttered doctrine that two negatives necessarily destroy each other, leaving

an affirmative. According to this doctrine “ not ” and “ never ” should

cancel each other, leaving: “ On that account the less did it break.”

The whole value then becomes: “ The cable was severely strained. It held

the more firmly on that account.”

40 Owen — Meaning and Function of Thought- Connectives.

etc. Using “ however” as connective in the former example, lob-

tain “ The cable was severely strained. However, it held firm. ”

Strictly interpreting, “ The cable held firm in any case what¬

ever. ” 1 “ In any case ” means here “in case of the occurrence

of any other phenomenon. ” This exceedingly broad reference to

other phenomena is restricted in usage to prior phenomena. Now

a prior or a previously mentioned phenomenon may be regarded as

(1) favorable to the occurrence of the last phenomenon, (2) unfav¬

orable to the occurrence of the last phenomenon. Usage has

elected2 the unfavorable aspect to the exclusion of the other, de¬

ciding that the relation between last phenomenon and first,

named by “ however, ” shall be that of effect to counter-cause.

In other words “ however ” means “ in spite of what precedes. ”

Accordingly, as usual, the thought-connective makes a reinstate¬

ment and names relation between last thought and reinstated

thought. This reverse relation and reinstatement combine as

adverbial adjunct in last thought.

(c) Relation of cause to effect , employing the connectives for,

BECAUSE.

Both these words have suffered change of value of a new sort.

Instead of naming as formerly and in other cases an effect-to-

cause relation, they have been forced to name a cause-to-

effect relation; that is, their relation-value has been reversed.3

The primary usage of “for ” is seen in the following quotation

from Richard II, 1.4. “ And, for our coffers . . are grown some¬

what light, we are enforced to farm our royal realm. ” Simpli¬

fying this for convenience, “We are enforced to farm, for our

coffers are light.” That is, “for,” as preposition, governs the

1 So, “ Two gentlemen of Verona” I. 1. “However, but a folly,” etc.

“ However ” is here defined by Knight as “in whatsoever way;” better,

“ in any case ” or “in either case.”

2 This election has presumably been influenced by the use of “ however”

to introduce concessions; e. g. “ However much the cable was strained it

did not break.”

3 Such reversal may seem at first thought difficult. It is however ac¬

complished by every passive verb; e. g. in the active voice the verb “ em¬

ploy ” names the relation of employer to employee; thus, “A employs

B.” In the passive, the same verb names the reversed relation of em¬

ployee to employer; thus, “ B is employed by A.”

Single Relations Between Thoughts.

41

following substantive clause as its direct object. The preposi¬

tion “ for ” names a relation of effect to cause. That is, the en¬

forcement to farm is “ for, ” or “ from, ” or “ on account of ” the

lightness of coffers. The relation-naming preposition and its

object form an adverbial limiter. Thus, the causal sentence is

an adjunct of the effect sentence. Such is the case, also, in the

example: “ I like him for he is kind.” That is, I like him on

account of his being kind.

But frequently this structure is replaced by another very dif¬

ferent. The effect, e. g. my liking him, is first stated alone;

thus, “ I like him. ” Then follows the cause stated alone, but re¬

garded as explanation of the preceding effect-sentence; thus,.

“For he is kind.” It is now no longer proper to regard the

last sentence as meaning “on ‘account of his kindness.”1 “ His

being kind ” is, rather, now the dominant thought. And any

relation between his kindness and my liking must be conceived

in such an aspect that it may stand naturally as an adjunct

to “ his being kind. ” That is, this relation must, according to

the chosen habit of language, be reached by a mental transit

which starts with his kindness and ends with my liking. The

relation thus established is that of cause to effect. In the pres¬

ent example, therefore, it is this relation which must be expressed

by “ for. ” Testing this statement by substitution, the follow¬

ing meaning results : “ I like him. Causatively or explanatorily

thereof he is kind. ” That is, his kindness is in the cause- to-

effect relation with my liking.

When “ because ” heads the second sentence, it has the same

value.

In connectives of this class it appears then that the relation

is, as usual, reverse. The connective makes, also, the usual re¬

instatement. This and relation, combined as adjunct, are treated

in the usual way.

(d) Relation of cowiter- cause to effect, employing the connec¬

tives NOTWITHSTANDING, NEVERTHELESS, HOWEVER.

For example: “I like him. Notwithstanding, he is unkind.”

1 Obviously, “ For he is kind ” might be taken as a mere supplement,

total value being the single thought: “ I like him for his kindness.” But

this meaning is not elected in the present case.

42 Owen — Meaning aud Function of Thought- Connectives.

The same reversal of values has occurred in this case as in the pre¬

ceding. Had the above been put as a single sentence, the value

would have been: “My liking is in spite of his unkindness.”

That is, my liking would be in the relation of effect to counter¬

cause with his unkindness. But in the actual form of the ex¬

ample there stands first an independent statement of my liking.

Then follows a statement of his unkindness. His unkindness

does not tend to produce my liking. Indeed, it tends either to

hinder this liking or to produce the opposite. The unkindness

therefore ranks properly, not as a cause, but as a counter-cause.

The value of the example then, taken in this sense, is as fol¬

lows: “ I like him. Counter-causatively thereof he is unkind. ”

Or “I like him. Unfavorably thereto, he is unkind.”1- That

is, unkindness is the starting-point in relation-formation; and

the relation is the opposite of that of cause to effect, i. e. coun¬

ter-cause to effect.

Relation then is of the usual type. It is combined with a rein¬

stated first thought as adjunct of a second thought. This adjunct,

as usual, appears as adverb to the verb of the second thought.

The word “ nevertheless” exhibits the present relation some¬

what more distinctly; e. g. “The wood burns badly. Neverthe¬

less it is dry.” Of this example I elect the following meaning:

“ The wood burns badly. Counter-causatively thereof it is dry. ”

The relation indicated is that of counter-cause to effect, the re¬

verse of the relation expressed by “ nevertheless ” on p. 37.

The present relation is as usual obtained by a transit from the

latter to the former thought and is combined with a reinstate¬

ment of the former thought. The combination, though adjunct

to the latter thought, is treated as an adverb of its verb.

“ However” agrees in meaning and function with “ neverthe¬

less. ”

It is evident that “ nevertheless ” in the last example may be

taken with an entirely different meaning, the total value in such

1 In another possible meaning of this example his unkindness is an effect

not overcome by my liking conceived as cause. This meaning may be ex¬

pressed by saying that “ I like him. In spite of my liking him he is un¬

kind to me.” This meaning which merely illustrates the relation of effect

to counter-cause is not elected in the present case.

Single Relations Between Thoughts.

48

case being “ The wood burns badly. In spite of that it is dry. ”

This interpretation brings us out of the field of external causa¬

tion into that of internal or mental causation. In this field the

ill-burning of the wood is a natural cause of the opinion that it

is wet. The opinion that it is dry subsists in spite of the rec¬

ognition that it burns badly. The example then illustrates the

counter-causative in the intellectual field of action.

I have not thought it necessary to discriminate between the

treatment, in causal relations, of the external and the internal;

for I see no cases in which treatment differs in principle. What

is known as the relation of “ G-rund und Folge ” or “ datum to

inference, ” I have then left undifferentiated from other causal re¬

lations. To one peculiar form of the mentally causal I however

invite passing attention, giving it the name, for lack of a bet¬

ter, of

CLASS VII. RELATION OF DECISION TO MUTUALLY CONFLICTING DATA.

This class employs the connective on the whole.

For example, “ X is polite, amusing, vain and fickle. On the

whole I like him. ” The connective is defined by Webster as mean¬

ing “ all things considered, ” “ in view of all the circumstances. ”

Or, more strictly, the final statement is in a relation of mental

attendance on all details of the preceding. That is, all are co¬

present in consciousness. This connective might be used when

all data favor the same decision. But as a matter of fact, and

indeed naturally enough, it appears to be employed only when

the data partly favor and partly oppose the decision. In such

case the speaker’s assurance that his decision is accompanied by

a consciousness of both favorable and unfavorable data is quite

in order. It is indeed natural to regard the following thought

as in relation, partly of effect to cause, and partly of effect to

counter-cause, with the preceding data. But it is more natural

to believe that the speaker’s opinion is in the single relation of

effect to cause with the resultant of the conflicting influences.

Or, letting the causes constitute a minuend and the counter-causes

a subtrahend, the remainder is cause, of which the decision is

effect. The thought-structure, in either view, is that employed

in the other cases considered. A full reinstatement, or a rein-

44 Owen — Meaning and Function of Thought- Connectives.

stated remainder, and a reverse relation combine as adverbial

adjunct in the last sentence.

I have not yet found any case in which the reverse of this re¬

lation is expressed by a thought-connective.

CLASS VIII. TIME RELATIONS.

(a) Precedence , employing the connectives previously, etc.

For example, “ He called on me. Previously he called on you. u

The idea of previousness has no practical value, unless accom¬

panied by that from which it is reckoned. The necessary sup¬

plement is obtained by reinstating the preceding thought. Ac¬

cordingly, in full: “Previously to” or, more simply, “before

his calling on me, he called on you. ” As usual, a reinstatement

and a reverse relation combine as the adverbial adjunct in the

last sentence.

(b) Contemporaneousness , employing the connectives at the

SAME TIME, SIMULTANEOUSLY, etc.

With these the linguistic method is the same, and does not

seem to require comment.

(c) Subsequence , employing the connectives subsequently,

LATER, THEREUPON, etc.

This case is the mere opposite of (a) and, as such, does not

appear to need examination.

CLASS IX. INDEFINITE RELATIONS.

This class employs the connectives now, then, etc.

These seem to be used, for the most part, to introduce a

thought conceived in a general way as in relation with the pre¬

ceding, yet without specification of a particular relation ; e. g.

“ Now Barabbas was a robber. ” So far as the unaided power of

“ now ” is concerned, it may mean “ explanatorily of the preced¬

ing, or antagonistically to the preceding.” Indeed, it is hardly

safe to say that the meaning is anything more than “ relevantly

to the preceding. ” That is, the last thought is, with the pre¬

ceding thought, in some relation. This relation is not partic¬

ularized and must be discovered by the hearer from the context.

The cause of such indefiniteness may often be found, no doubt,

in the mental status of the speaker. He has not himself estab¬

lished a particular, definite relation. He only perceives

Single Relations Between Thoughts .

45

that his exposition is incomplete without the introduction of

his last statement. That is, he perceives, merely, that there

is some sort of relation.1 Thought-structure is of the usual

type. What has preceded is reinstated. The reinstatement

and the general relation unite as adverbial adjunct in the last

sentence. The relation, as usual, is reverse.

CLASS X. FIGURATIVE RELATIONS.

This topic is suggested by the use of “ now ” in the preceding

example. “ Now ” strictly means “ at the present time. ” But

in common usage it has come to mean “ at the same time as some¬

thing else ” or “ immediately after something else.” That is, it

names a time relation. In the last example it evidently passes

from time relation to general relation.

Time relations are also notoriously prone to be misunderstood

as even causal, this fact giving rise to the dictum “Post hoc;

ergo propter hoc. ” In other words, the passage from time re¬

lations to other relations is so easy, that it is often made unin¬

tentionally. The frequent figurative use is, accordingly, not

surprising.

Space relations also have their figurative employment; e. g.

“ thereupon ” passes from space to time. Also “ further ”

passes from expression of increase in distance to that of augmen¬

tation in thought-total. Such change in value concerns rather

lexicology than thought-structure, and does not seem to require

investigation. For, though the meanings of connectives change,

their function appears to remain the same. That is, they are

found to combine, in both literal and figurative meanings, a

reinstatement and a reverse relation, as adverbial adjunct in the

last sentence.

1 There is a somewhat analogous tendency to use the forms of exact and

important relation even when the question may fairly rise whether any re¬

lation is conceived beyond that of mere co-presence in the speaker’s mind.

The abuse of “ thus ” and “therefore,” of “ hence ” and “ consequently ”

offers a notorious illustration. Similarly “ once upon a time ” goes through

the motions of naming a time. “ A certain man ” has the air of selecting

a particular person. Usage of this sort, the employment of definite names

for indefinite ideas or no ideas, I have elsewhere classed as counterfeit

symbolization.

46 Owen — Meaning and Function of Thought- Connectives.

II. MULTIPLE RELATIONS BETWEEN THOUGHTS.

Several relations obtain between a latter thought and one for¬

mer thought .

It is evident that more than one mental transit may be made

between the same two thoughts; that each transit may develop

a relation more or less different from that obtained by the others ;

that the speaker may elect to express more than one of these

relations ; e. g, “ A = B X C. Now therefore also C = A B. ”

“ Now ” indicates relation generally and serves as a note of warn¬

ing to watch for relation of a more definite character. “ There¬

fore ” names the effect-to-cause relation, which is obviously of

prime importance. “ Also ” ranks the following statement as

one of a group of truths — • puts it on a footing of parity with

its predecessor.1

To such heaping-up of connectives English is not particularly

prone. It is much more affected by Greek and German. Its

investigation promises much psychological interest, but is hardly

necessary to the present discussion; for the method pursued is

apparently the same, whether one or many connectives be em¬

ployed.

Several relations obtain , each between a latter thought and one

of two or more former thoughts.

It has already been noted that the connective may reinstate

part only of a preceding thought. Such use of the connective

lies without the present field. But it is interesting to observe

that this usage may coexist with that which has been specially

considered ; e. g. “ My brother being invited, declined. My

sister was most strongly urged. Nevertheless she also de¬

clined.” “Nevertheless” puts her declining as opposed to her

1 It is pertinent to ask, at this point, what, to the current understanding

of connectives, may be the motive for their simultaneous use. Is it doubt¬

ful whether the joining process will work? Is it sought to insure results

by a multiplicity of conjunctive efforts? Is language at the stage of develop¬

ment characterized in medicine by the use of the shot-gun prescription ?

Or is a single bond of union too feeble? Must it be supplemented by other

bonds of possibly equal weakness? Has conjunctive prudence learned of

the spider to strengthen its bond by multiplying cooperative filaments?

Serial Relations Between Thoughts.

47

being urged, reinstates the whole preceding thought. “ Also ”

can be taken only as reinstating a part of the first statement.

Accordingly one connective reinstates the preceding thought,

while the other reinstates a part of the thought before the pre¬

ceding.

Reference to different thoughts is also at least possible with

full connectives ; e. g. , “ My brother accepted. My mother greatly

needed help. But my sister also came.” That is, her coming

is put by "but ” as in spite of her mother’s need. “But” then,

reinstates the preceding thought in one relation. On the other

hand “also” groups her coming with my brother’s acceptance.

“ Also ” accordingly reinstates the thought before the preceding

in another relation. At least the sentence may be so inter¬

preted, which is all that the example is asked to show.

One relation obtains between a latter thought and each of two

or more preceding thoughts.

That is, the same connective may simultaneously reinstate two

different thoughts; e. g. , “He is old. He is also feeble.

Nevertheless he is active. ” The last statement may be taken

as meaning that he is active in spite of both his being old and

his being feeble.

One relation obtains between a latter thought and the total of

two or more former thoughts.

Thus, “ A is the father of X. X is the father of B. Or A is B’s

grandfather. ” The last statement means that “ A’s being B’s

grandfather is equivalent to the two preceding statements com¬

bined ” — but not to either alone.

So again “John is a man. All men are animals. Therefore,

John is an animal.” The syllogistic cogency lies in the rein¬

statement of both premises in the statement of the conclusion.

III. SERIAL RELATIONS BETWEEN THOUGHTS.

If now the preceding reasoning be correct, the connection

of thoughts appears in emphasized effectiveness, especially

in the expression of what is called connected reasoning. To

illustrate, let A, B, C etc. stand for a series of thoughts, say

n in number. The process of their expression is as follows.

48 Owen — Meaning and Function of Thought- Connectives.

First comes a sentence declaring A. Then follows a sentence

declaring B and, further, the relation between B and reinstated

A. Next appears a sentence declaring C and, further, the rela¬

tion between C and reinstated B. But the B which is on this

occasion reinstated, is a B which contained A by a previous

reinstatement. That is, C, in a way, contains both A and B.

And so also N, when reached, will be found to contain all the

thoughts from A to M inclusive. That is, by a series of rein¬

statements, the last statement of the series is made to contain the

last thought plus all preceding thoughts and their relations to

each other. And such, no doubt, is the thought actually pres¬

ent, at the end of an extended reasoning process, in the mind

of an intelligent reasoner.

The succession of thoughts is often called a chain. It were

better to compare it to the sphere-in-sphere of the Chinese carver.

The smallest sphere is contained in a larger, and that again in

one still larger, the outer sphere containing all the others by

successive inclusion.

Like this final sphere is the final thought in continued reason¬

ing. I do not mean that, as the complexity of the total

thought increases, each particular member preserves its original

distinctness of parts. Rather each thought, presented first

as a combination of elements, enters its successor as a unit, used

with other units to form a second combination. And this new

combination fading in turn upon the thinker’s consciousness,

its elements blend together till they also lose their discreteness,

appear as one, and as one form part of still another combina¬

tion.

But the last thought of the series contains some representa¬

tion of every preceding thought. In other words, successive

thought -connection is successive incorporation.

Madispn , Wis ., February , 1898.

Though attention has been confined to English, it may be added that the

connectives of other languages, so far as examined, seem without excep¬

tion to confirm the opinions advanced. Those of German in particular

(e. g. dagegen, dessenungeachtet) are conspicuously rich in elements of

unmistakably reinstative and relation-naming value.

THE FEE SYSTEM IN THE UNITED STATES.

BY

THOMAS K. URDAHL, Ph. D.

Part I. — Historical Review 0/ Fee Systems.

Part II. — The Present Fee System in the United States.

READ BEFORE THE WISCONSIN ACADEMY OF SCIENCES,

DECEMBER 28, 1897.

THE FEE-SYSTEM IN THE UNITED STATES.1

THOMAS K. URDAHL.

CHAPTER I.

THEORY OF FEES.

Adam Smith, in a chapter entitled “ The Revenue of the Sov¬

ereign or Commonwealth ”,2 takes up in order the various insti¬

tutions on which the state revenue should be expended, and ex¬

plains how some of them can be made partially or wholly self-

supporting. "As an example,” he says, "highways, bridges,

and canals can be kept in repair by tolls paid by the users.

Courts of justice and institutions of learning can defray at

least part of their expenses by fees.” In his conclusion he says:

" The expense of defending society, and supporting the dignity

of the chief magistrate, are both laid out for the general benefit

of the whole society. It is reasonable, therefore, that they

should be defrayed by the general contribution of the whole so¬

ciety, all the different members contributing, as nearly as

possible, in proportion to their respective abilities. .

The administration of justice may no doubt be considered

as laid out for the benefit of the whole society.

The persons, however, who give occasion to this expense and

* . . who are immediately benefited by this expense” may

properly be called upon to defray it by particular contribution,

that is, fees of court.

Again, the expense of maintaining good roads "is most im¬

mediately and directly beneficial to those who travel or carry

1 A thesis submitted for the degree of Doctor of Philosophy, University

of Wisconsin, 1897.

2 Wealth of Nations, Book V, Chap. I, Part 4.

4

50

TJrdahl — Historical Survey of Fee Systems.

goods. ” The expense of these, as well as that of “ institutions

for education and religious instruction, may without injustice and

with some advantage be defrayed by such particular members of

society as are most benefited by them. ”

It is, therefore, clear that Adam Smith saw at the very out¬

set a plain distinction between taxes in the narrower sense, and

payments such as fees, tolls, court costs, and charges, which

may be called by the general term “fees.”

But this distinction between taxes and fees recognized by Adam

Smith, was entirely unnoticed by Ricardo, Mill, and the other

English economists succeeding him. Not until the doctrine of

Smith had reached the Continent and been elaborated by the

great German representative of his views, do we find the slight¬

est trace of the difference which he himself but faintly outlined.

A German writer, Rau,1 is the first to really put fees into a

category distinct from taxes. The cameralist Justi, 2 who

wrote at about the same time as Adam Smith, classified public

revenues into (1) Domain, (2) Regalia, (3) Taxes, (4) Casual rev¬

enues. The latter included prices and payments for special

privileges. Rau also divided the public revenues into four

classes; domains, regalia, taxes, and fees: and defines fees (Ge-

buhreri) in such a way, as to include many of the payments

classed by Justi in the fourth category.

Since the time of these authors no two economists have suc¬

ceeded in agreeing as to definition or content of this subject.

The existence of such a category seems with one or two excep¬

tions to be generally accepted by economic authorities. The

earlier writers generally treated fees partly as miscellaneous

or casual revenues and partly, also, as direct taxes. Although

Rau does not have the honor of being the first to recognize the

separate category, as has been asserted by some writers, he

was the first to apply the name Gebuhren to this category.

He defined Gebuhren , that is, “fees,” as “payments made on

occasions when the individual citizen comes in a special manner

into contact with a state institution or state court.”3 Stein, in

1 Allgemeine Steuerlehre , I, §§ 86, 227.

2 Finanzwissenschaft.

3 Rau, Finanzwissenschaft , I, 312.

Theory of Fees.

51

his first edition, defines fees as “receipts of the state for ac¬

tivity in the special interest of individuals. ” Both Rau and

Stein, as is evident from their definitions, did not consider re¬

galia, (payments for lucrative prerogatives), as fees, but placed

them in a distinct category. Stein, however, in his last edi¬

tion concedes that the regalia are a part of the fee system, but

holds that they form a class of fees by themselves, entirely

distinct.1

Roscher2 defines fees as “payments for individual govern¬

mental acts by the individuals who were indirectly the cause of

the act. ” And he limits this definition by holding that only

such acts are governmental as are done for essential state pur¬

poses ■, that is, in the interest of law and sovereignty; and, fur¬

thermore, only such payments are fees as do not exceed, at least

not greatly, the cost to the government of the services

rendered.

Schall3 asserts that the distinguishing feature of fees is that

they are connected only with those official acts which are per¬

formed for the realization of the essential state purposes, and

that the payments by the fee-payers must be gauged by the

value of the services of the public courts or officials. There is

thus a new element introduced, that of making the size of the

fee proportional to the service rendered by the government.

Stein, Rau, and Roscher asserted that the fees should be meas¬

ured by the cost , or expense , which the official act, in the inter¬

est of the individual, caused the government; and that the

payment became a tax in so far as it exceeded this cost.

Another element in Schall’s conception is that the quality of the

official act determines whether the payment is a fee or not.

Wagner4 says a fee is a “charge arbitrarily fixed in amount

Pfeiffer, I, 295, Staatseinnahmen , says that “fees are collected

from individuals for special benefits from those state institutions which

the state would be obliged to maintain even if no revenue were derived

from them, thus excluding all industries managed or established by the

government for the sake of industrial profit.”

2 Roscher, Finanzwissenschaft. Third ed., 98.

3 Schonberg, Handbuch , III, 105.

4 Finanzwissenschaft, II, 35.

52

TJrdahl — Historical Survey of Fee Systems.

and method of payment by the state, and collected from indi¬

viduals or groups of individuals for a special service rendered

them by a public body, designed to cover the outlay of the

government in the exercise of its functions in the public inter¬

est.” He draws a sharp line between fees and taxes, holding

that every payment which exceeds the cost of the service to the

state, is in so far a tax. But he says, the idea of service to

the individual must also be taken into consideration, although

he does not explain just what bearing it has on the question.1

Max von Heckel2 defines fees as " payments collected as a spe¬

cial remuneration for the official activity of public institutions,

which are carried on or performed at the request of individuals,

and limited by the state in degree and extent in accordance

with the service granted. ” And he explains that fees may be

fixed by two standards: first, the payment of the cost which

the services cause the government, and second, the worth or

value of the service to the individual. He even goes so far as

to hold that payments do not necessarily lose the character of

fees by exceeding the value of the service conferred.

Neumann3 takes a still broader view of the subject and holds

that “fees are payments which the state sovereignty exacts

from individuals for services rendered in their interest. ” : and

explains that they not only may exceed the value of the service

to the individual but in fact should often do so; that the ability

of the fee-payer and other considerations should be the controll¬

ing factor in levying them.

Schaffle4 recognizes a general category which he calls tax-

fees. These may be collected by the state from individuals on

occasions when they make use of governmental agencies or insti-

1 Finanzwissenschaft, II, 40-41.

Von Mayer defines fees as special duties to be paid on occasions when

public organs or institutions are specially called upon or made use of.

He agrees with Wagner in the main, and holds that the fee should as a

rule be fixed a little less than the average cost of the service and should

only partially cover the expense. — Worterbuch des deutsches Verwalt-

ungsrechts , I, 462, 466.

2 Handwbrterbuch der Staatswissenschaften, V, 703.

3 Jahrbueher fur National Oekonomie, 36, 494.

4 Orundsatze der Steuer-politik , pp. 51, 454.

Theory of Fees.

53

tutions which are of service to them. As a sub-class1 under the

fees he recognizes what he calls “fees in a more limited sense,”

which he characterizes as compensation for the expense of ad¬

ministration. ( Verwaltungs-fcosten-vergutungen .)

None of the French writers seem to have recognized fees as

any distinct category. Not even Beaulieu2 in his Science de

Finance considers them as a separate class, but treats of these

charges under other headings.3

The Italian economist Cossa4 gives some attention to them

and defines fees, costs, and Charges, as “ the remuneration for

special public services which are rendered to the private indi¬

viduals at their request. ”

We thus have all shades of opinion, from Professor Bastable,

who denies the existence of fees as a separate category, to

Schaeffie, who would include all the taxes on contracts and trans¬

fers, inheritance taxes, and so forth, under that heading. We

have assertions that fees should be levied according to the ser¬

vice rendered, or according to the expense to the government,

or according to the pecuniary ability of the fee-payers, or ac¬

cording to the principle of highest monopoly profit.

All prominent writers on finance seem to recognize, first, the

fact that the official activity may often further special individ¬

ual interests. But the concensus of opinion seems to be that

public activity should not be carried on purely for the sake of

such individual interests. All recognize further, that some

payment should be made to the state when it incidentally con¬

fers special benefits upon certain individuals. How such pay¬

ments shall be determined, how their amount shall be gauged,

and under what category in a classification of state revenues

such payments shall be placed, are questions which are still open.

1 Ibid., p. 496.

2 LeRoy Beaulieu . The early writer Parieu, III, 165, puts fees among in¬

direct taxes .

3 M. Besobrasof, in two articles entitled fhtudes sur les Revenus publics,

seems to recognize the essential difference between fees and taxes. See

page 44 of article published in 1866: Imp4riale Acad^mie de Sciences,

St. Petersbourg.

4 Taxation: its Methods and Principles, p. 36.

54

UrdaM — Historical Survey of Fee Systems.

A. BENEFIT, OR SERVICE, AS A FACTOR IN PUBLIC PAYMENTS.

“ In the first stages of development of the state,” says Vocke,1

” the possessors of power and the people stood opposed to each

other, but were still held together by certain common interests.

Agreements had therefore to be made from time to time, and

whatever lay beyond the lines of common interest, had to be

secured by certain counter-services.” Thus benefit came to be

the controlling factor in the imposition of all charges. The

state idea appears for the first time in the organized constitu¬

tional state. This recognized that the state does not exist for

its own sake, but for that of the governed, and hence that all

state services could not and should not be paid for by special

contributions. This paved the way for general taxes.

But long after the system of levying taxes according to

” benefits received ” had been abandoned in practice, it was

still clung to as a theory. And even to-day people can be

found who assert that taxes are or should be levied according to

the doctrine of equivalents. But theory has now progressed so

far that it is really in advance of practice.2 The old idea of

service and counter-service has been replaced by the modern

theory of “ equality of sacrifice ” and “ taxation according to

ability to pay.” Benefit, however, is still an important factor

in a large number of charges known by various names in dif¬

ferent countries. In the United States this element enters into

two distinct classes of revenues, designated by the headings,

special assessments and fees.

In order to ascertain the scope and characteristics of these

categories, we must compare them with other classes of reve¬

nue which they resemble, and with each other.

B. FEES DISTINGUISHED FROM TAXES.

Fees and taxes are alike in that they are both compulsory

payments made to the state in order to enable it to carry on its

functions. They are furthermore alike in that the amount of

each is fixed by state authority. Both may be manifestations

1 Die Abgaben, Auflagen , unddie Steuer, p. 365.

2 Rosewater, Monograph on Special Assessments, Columbia College

Studies, II, No. 3.

Theory of Fees.

55

of the taxing power, because they are compulsory contributions

arbitrarily levied by the sovereign. But a tax is a “one-sided

transfer of goods or services” ;* a fee is not. The latter is in

the nature of an exchange or sale, in that there is special bene¬

fit to the individual, for which the fee is paid.

The idea of benefit is of course present in a tax, but it is al¬

most wholly public benefit. The benefit to the individual may

be great or small without changing the amount of the tax which

he pays. In other words, the benefit accruing to the individual

from a tax cannot be measured, and if it could, no system of

taxation could be based upon it. Taxes are based on the indi¬

vidual ability of the tax-payer. It is no objection to a tax,

that the payer receives no benefit from the burden, nor does it

change the nature of the payment if such is the case. While

a payment ceases to be a fee the moment the special services

cease.

Particular advantage to an individual may exist in a tax, but

that does not increase or diminish the share of the tax-payer;

while, in the case of a fee, the particular advantage is the very

reason and justification of the payment. Many writers lay em¬

phasis on the fact that the fee should not exceed the cost to the

government of the particular services rendered to the individ¬

ual. Wagner and others maintain with very plausible argu¬

ments, that, as soon as a payment exceeds the cost of the serv¬

ice, just so soon does it cease to be a fee and becomes a tax.

In some cases this is true; but cost is not always the stan¬

dard according to which fees may be gauged. It is applicable

only where the government exhibits some positive activity for

which the payment is made. In other words, it can be applied

in those cases only where the value of the services resolves

itself into, or is measured by, its cost.

Value, as we know, is fixed by marginal utility. The utility

of a commodity to an individual is measured by its uses, that

is, by the amount of benefit which he thinks he is about to ob¬

tain from it. In all competitive enterprises in which the com¬

modity is reproducible at will, it is generally agreed that the

1 Ely, Taxation in American States and Cities , p. 6.

56 Urdahl — Historical Survey of Fee Systems.

marginal utility is fixed ultimately by the cost of production.

But we have seen that the utility of an article is equal to the

benefit which the individual obtains from the commodity. If

this is so, then benefits to the individual and cost are identical.

This must be equally true of service, whether the government or

private individuals be the producers. But it may be held, that

when the government produces a commodity or performs a serv¬

ice, it must necessarily be in the nature of a monopoly, unless

the competition is free. To be sure, this is in some cases true;

but the government does not necessarily charge a monopoly

price for its services, and in so far as it does, to that extent is

the individual paying a special tax instead of a fee. It is not

said, therefore, that the charge is illegitimate or unjust simply

because it has lost the character of a fee. Suffice it here to say

that, in all cases where the government furnishes a service or

commodity which it can reproduce indefinitely, the payment

loses its character as a fee and cannot be justified as such the

moment it exceeds the cost to the government. An illustration

will explain this more fully: —

It is not necessarily warmer in a room because the mercury

rises in the thermometer, yet we regulate the furnace according

to the height of the column. In the same way, the charge does

not become a tax because it exceeds the cost of the service, but

because the cost, like the thermometer, is an index of the amount

of benefit or value which the public service yields to the indi¬

vidual.

Experience has shown that there is a large number of enter¬

prises which may be termed natural or economic monopolies.

In these the public has usually a deep interest, from the fact

that the commodities or services supplied by them are, as a rule,

public necessities. Public policy or public interest therefore

requires that the enterprises be regulated by the government,

or taken entirely out of private hands and managed as public

concerns under government ownership. If this is the case, it

is understood that the principal reason for undertaking the en¬

terprise is the general public policy or public welfare.

But the individual citizen has an individual, private interest

which is either promoted or not. Public welfare may demand

Theory of Fees.

57

that the service should be furnished for exactly what it costs,,

that is, that each individual pay for the special benefit he re¬

ceives, and no more, as in the case of our Post Office. The pay¬

ment then is a fee. The same public welfare may demand that

the government derive as much revenue from an enterprise as

possible. As an example may be mentioned the tobacco monop¬

oly in France, where the special tax is as easily justified as the

sale of two cent postage stamps by our own government. We

can therefore find all kinds of charges ; from the pure taxes of

monopoly, to the free goods furnished to the individual at state

expense.

C. LICENSE FEES.

Fees are not only paid for benefit actually received, but are

often paid in anticipation of a benefit which is expected in the

future. The latter is generally in the nature of a privilege.

As Professor Seligman puts it:1 “The particular thing done

by the government in return for a fee may be either the dis¬

play of some positive energy, as in furnishing a water-supply,

or it may be simply permission to do some thing. The govern¬

ment may create direct utilities, or it may permit the individ¬

ual to create utilities; but in each case it demands a return for

the privilege. ”

Fees are therefore not limited to charges which are fixed by

the government according to the cost or expense involved, but

they include a number of payments in which the cost is of minor

or no importance. Such charges are popularly known as licen¬

ses, or license-fees. It is obvious that these cannot be measured

by the cost to the state, because the privileges, immunities, or

exemptions granted, cost, as a rule, almost nothing. The rea¬

son why cost cannot be made a standard of measurement in

these cases, is because cost here does not correspond to the

special benefit to the individual. The costs often amount only

to the expense of making out the written instrument and con¬

veying the license; and this fact is often recognized by charging

an extra fee for it and another fee for the license proper. In

1 Essays in Taxation, p. 278.

58

Urdahl — Historical Survey of Fee Systems.

all such cases the fee cannot exceed the value of the privilege

or exemption granted by the public body. The payment, there¬

fore, is based on the theory of equivalents.

But what is the equivalent which the liquor-dealer gets in

return for the $200 or $500 license fee which he pays? Judge

Cooley 1 and others say it is the expense which the state must

undergo in order to regulate his business, and to estimate this

expense “ it is reasonable to take into account all the incidental

consequences that may be likely to subject the public to cost ”

(such as prevention of resulting crime and disorder). Professor

Seligman 2 does not go so far; but thinks that high liquor li¬

censes undoubtedly must be considered as taxes, because there

is no way of finding out how much pauperism and crime is due

to the liquor traffic, and how much to other things. With

slight modifications this view has apparently been accepted by

many of the modern writers on Finance.

But is this view correct, if we accept presence or absence of

benefit as the feature which distinguishes fees from taxes?

Does the licensee get more benefit from the fact that the govern¬

ment spends more money to regulate his trade? It seems per¬

fectly evident that such is not the case. But the real benefit

which a licensee gets from a license, may be ascertained in an¬

other way.

Suppose a license charge is so small that it does not drive

any competitors out of the business, and, on the other hand, does

not result in an increase in the retail price of the commodity

sold. It is then perfectly clear that the burden of the charge

must fall on those engaged in the business. But suppose that

the charge is so high that one half of those engaged in the busi¬

ness are compelled to abandon it. Assuming that the retail

price remains unchanged, the first thought would be that those

paying the license charge would still be the bearers of the bur¬

den. But a more careful consideration will show that such is

not the case. On the contrary, it may often happen that those

paying the license charge gain more than the amount paid, in

1 Taxation, p. 598.

2 Essays in Taxation , p. 281.

Theory of Fees .

59

increased business; because the customers of all those who were

compelled to close their doors, will virtually be transferred by the

high license to the surviving retailers. Under this assumption,

it may thus happen that many of the high liquor licenses are

not taxes at all, but fees; because they are payments for what

may be termed partial monopoly privileges. This conclusion is

amply illustrated by the fact that many of the owners of the

large saloons in some of the great cities openly favor high li¬

censes in preference to low charges. This conclusion cannot be

carried too far, however; other elements must be taken into

consideration. If the charge is made high enough, it is very

likely to result in an increased price and, in that way, to be

shifted to the consumer. It then has all the characteristics of

an indirect tax. But this throws no light on the question as to

whether the charge is a fee or a tax. It may be a tax on the

dealer, even if the consumer goes free. If the charge is in¬

creased indefinitely, it will ultimately become a tax either on

the one or the other. When, then, the increase in the amount

of the charge fails to drive any dealers out of the business; in

other words, when it ceases to turn over to those paying the

charge enough customers to counter-balance the payment, then

the point is reached where the payment ceases to be a fee. The

transition, therefore, of fees into taxes is brought about by the

loss of the idea of service, or by the charge being made so

great as to exceed the benefit conferred.

D. LICENSE FEES DISTINGUISHED FROM SPECIAL TAXES.

In special taxes the government attempts to do some special

thing for the community, but the individual bearing the tax is

not necessarily guaranteed a share in it. A property owner

pays a special school tax, whether he makes use of the schools

or not. Although there is some benefit derived from the special

tax, provided he makes use of the schools, still that is not the

reason or justification for its collection; while in license fees

there is always a special benefit, the value of which the fee

does not exceed. If the charge is greater than the benefit, then

it becomes to that extent a license tax. When a charge is im-

60

Urdahl — Historical Survey of Fee Systems.

posed to carry on a business which before was open to anyone with¬

out a license, and it is not imposed to cover cost of regulation

or other governmental expenses which are of real benefit to the-

licensee, then the charge is a license tax; and not a fee in the

true sense of the word.

E. FEES DISTINGUISHED FROM SPECIAL ASSESSMENTS.

Fees and special assessments have so many points of similar¬

ity that most of the German writers have made assessments a

subclass under fees. Only one German writer 1 has placed them

in any distinct category. Both fees and special assessments

are based on the doctrine of special benefits. In both cases the

payer receives an equivalent for his payment. Furthermore,,

both are payments which in no way displace taxes or exempt

from taxation. The direct tax will be exactly the same,,

whether an individual pays a heavy special assessment or num¬

erous and large fees during the year. Neither fees nor assess¬

ments are levied according to the ability of the payers. The

objective features of the service rather than the subjective

ability of the payer, must be taken into consideration.

Due attention must, no doubt, be given in all fee and special

assessment legislation to the considerations emphasized by Neu¬

mann 2 in his article entitled “Taxation according to ability to

pay, ” namely, the effect of a high or low fee on the demand

for the service; the relation of demand for the service to the

supply of the same ; the relation of increased demand for a serv¬

ice to public health or general welfare; the relation of cost of

a service to an increasing demand and so on. But none of

these can be taken as a general guide, by which to regulate the

amount which should be charged for a public service. None of

them can hold the same place in fee-legislation that “ ability to

pay ’’ does in tax-legislation ; nor can any characteristic or con¬

dition of the payer be made the criterion by which the size of

fees in general can be fixed.

1 Neumann; Die Steuer und das offentliche Interesse , pp. 327, 334.

2 Die Steuer nach der Steuer fdhigkeit. (Jahrbticher fiir national

Oekonomie, 36, p. 499.

Theory of Fees.

61

la both fees and assessments the element of public purpose

may be present in the consideration rendered as an equivalent.

Neither is collected primarily to procure revenue to defray ex¬

pense of government, but both are levied normally to pay for

the cost of services or improvements given by the government.

But the differences are just as striking. Special assessments

are levied on the owners of property in fixed local territorial

districts for benefits accruing to the property as a result of pub¬

lic improvements; while fees are levied on no class in particu¬

lar, but on individuals, and are returns for any public benefits

or services to the individual, whether it affect his personal prop¬

erty, real estate, or anything esteemed of value. In special as¬

sessments the total sum to be collected is absolutely fixed and

determined upon beforehand; while the revenue from fees de¬

pends on various circumstances, such as general prosperity,

condition of markets, and so on.

We have thus briefly summarized the distinctions between

fees, taxes, and special assessments. It must be remembered,

however, that in a large number of fees there is no practical

method of measuring accurately the special benefit; hence the

government is forced to fix the fees arbitrarily. The practical

distinction will therefore be the intention or the motive of the gov¬

ernment.1 If it levies merely a counter payment for its estimate

of the roughly measurable special benefit, then the payment is

a fee; while, in case of a tax, it arbitrarily decides to use the

opportunity of exacting some revenue without reference to the

special benefit to the tax-paying individual.

In drawing the line of demarcation between fees and taxes, it

is not said that the charges should never be so high as to be¬

come a tax. In fact it is sometimes desirable and proper that

such taxes should be levied. Take a high liquor license as an

example. There is no doubt that, if it be made high enough, it

become a special tax; but it may be the very best kind of a tax,

in that it is easily collected and discourages the consumption of

spirituous beverages. Still, the distinction between fees and

1 So held in the case of Harmon v. City of Chicago {Sup. Court Bep .,

XIII, p. 306).

62

Urdahl — Historical Survey of Fee Systems.

taxes is of vital importance, inasmuch as each must be levied

according to an entirely distinct set of economic and financial

principles. A fee should be judged distinctly as a fee; a tax

should be levied according to the principles of taxation.1

F. PUBLIC PURPOSE IN FEES.

Professor Patten 2 says : “ The test of a good tax is that it

creates more wealth than it destroys. If the courts, post office,

parks, gas and waterworks, street, river and harbor improve¬

ments and the public works do not increase the prosperity of

society, they should not be conducted by the state. ” So the es¬

sential justification of fees must be found in the existence of

many public activities and their effect upon individuals.

The tendency of public activity in modern times is in two di¬

rections: (1), limitation; (2), extension. It is toward limita¬

tion in that all those public activities which are not actuated

by the motive of public purpose, are gradually abandoned to

private initiative; for example, the manufacture of gunpowder.

The tendency is toward extension in that activities and institu¬

tions which at first were left entirely to private enterprise, are

changed into public institutions or industries. The reason for

the change is that the public has gradually acquired a greater

interest in the institution, until finally it is deemed advisable

1 These distinctions between fees, special assessments, and taxes are

essentially the same as those outlined by Professor Seligman in his

Essay on the Classification of Public Revenues. But the general

application of the theory of special benefit, especially in its relation to li¬

cense fees, is radically different from the view taken by Professor Selig¬

man; because he seems to forget that cost here cannot represent the meas¬

ure of the special benefit to the licensee. (Ibid., p. 281.) In the same way

his contention, so frequently emphasized, that special benefit to the indi¬

vidual tends to disappear wherever the payment made therefor exceeds or

falls short of the cost of the service, is, when analysed, simply a return to

the old theory that costs determine the existence and size of fees. By re¬

fusing to recognize the existence of a special benefit where the charge does

not equal the cost, Professor Seligman really makes cost the criterion;

though he claims throughout that special benefit is the controlling consid¬

eration .

2 Dynamic Economics, p. 104.

Theory of Fees.

63

to take it entirely out of private hands. An invention of great

social importance, a change in the habits and standard of life

of a class of people, or the rapid growth of a city, are all

factors which may necessitate the peformance of certain duties

by the state, in which, but a short time before, the element of

public purpose was of little importance or almost wholly lack¬

ing.

We may therefore have public institutions with all the vary¬

ing degrees of public purpose present, and the charges should

then be diminished as the latter increases.1 The greater the

measurable differential gains to the individual and the more the-

costs of these activities are increased, the higher ought the

charge to be.

On the other hand, the more the object of public interest2 en¬

ters and the more the differential gains to the individual disap¬

pear, the lower the fees ought to be.

In a progressive nation, that is, one whose economy is dy¬

namic, the tendency is to extend the fee system so that competi¬

tion prices will gradually be displaced by fees. Within the bound¬

ary which separates fees from taxes, there is a large field within

which the size of the individual fees must be fixed. The power

to do this must be left to the discretion and judgment of the

legislator and the administrative official. By these the welfare

and interest of the general public must always be kept in mind.

Though complete remuneration may be justified as far as the in¬

dividual is concerned, yet the public welfare may demand that

it be less. The Post Office does not exist only for the benefit

of those who use it. Its influence goes farther. Its greatest

service is perhaps the commerce it creates, “by bringing differ¬

ent sections into closer contact.’’ Street car service is of im¬

portance, not only to those who make direct use of it, but to

1 Seligman, Essays in Taxation , pp. 296-7.

2 “Public interest,” or “ public purpose,” here means that public wel¬

fare demands that the services furnished by the institution in question be

as generally utilized as possible. In granting the privileges for which

license fees are paid, the public purpose is therefore less, because the ex¬

press purpose of the license charge is usually to restrict the number exer¬

cising the privilege.

64 Urdahl— Historical Survey of Fee Systems.

the entire city when the public welfare is considered; since

rents are reduced, better sanitary conditions are obtained by the

opening of suburbs, and so on. Finally, perhaps the most im¬

portant of all, the public schools are of value, not only to the

pupils who gain instruction, but the welfare of the whole nation

depends upon their activity. It is therefore justifiable to charge

no fee for their use. In the same wav the low postal charge on

printed matter may perhaps be justified in the interest of edu¬

cation.

The tendency in modern times is to increase the importance

•of public purpose and therefore to decrease the fees; in many

cases to such an extent that charges entirely disappear. The

sphere of public goods, or free goods, as they have been termed,

is gradually widening. Free public schools, free public libra¬

ries, public parks, free concerts are, all of them, public institu¬

tions which but a short time ago were not free, but were gov¬

erned on the principle of service and counter-service; in other

words, were fee-collecting institutions. Many others are chang¬

ing in the same direction. Already, strong pleas have been

made for free public water-works, and lower fees in the admin¬

istration of justice, and even for free transportation.

It is therefore plain that the principles and rules which must

govern a system of fees are not absolute, but may and must change

from time to time or place to place. In other words, they are

historically relative to circumstances. They must be modified

in each country so as to keep pace and be in harmony with the

general development, with the legal and economic progress of

the nation. A system of fees applicable to one nation may not

be so to another.

The foregoing throws some light on one phase of the theory

of fees on which great emphasis has been laid by many of the

German economists, namely: that the term fees ” should be

restricted to such payments as are made for the services of in¬

stitutions which are absolutely necessary to the realization of

essential state purposes. It is contended that only those insti¬

tutions are essential which tend to preserve or further the ex¬

istence of purely state functions. In this way payments made

lor such services as are furnished by the Post Office, the gov-

Theory of Fees.

65

ernment telegraph, or railroads are supposed to be excluded

from the category called fees. From what has already been

said, it is perfectly evident that no hard and fast line can be

drawn between essential state institutions and others. The in¬

stitutions which may be regarded as absolutely essential at one

time, may not be so regarded at another; because the public in¬

terest or public purpose in the institution may be strong at one

time and then gradually disappear.

Thus Wagner has formulated his theory in such a way as to

include under this heading, not only payments for services of

institutions which are maintained for the realization of essen¬

tial state purposes, but also of institutions for the promotion of

civilization and general public welfare. He sees fit, however,

to exclude state railroads and other similar activities from this

class; and designates the government receipts from these sources

as income from industrial pursuits.1 He thus tries to find a line

of cleavage between public business and industrial undertakings,

a line which it is impossible to draw; because the relation of

the state to the various institutions is constantly changing.

“ The real consideration in the classification of public revenues,

is not so much conditions affecting the action of the government

or the kinds of business conducted by the government, as the

economic relations existing between the individual and the gov¬

ernment. ” 2 It is the relation of the special benefit which the

public service yields, to the price paid for such benefit, which

determines whether the amount paid is a fee, a price, or a tax.

G. METHOD OF COLLECTING FEES.

Fees may be collected either directly or indirectly. They are

collected directly by officials appointed for the purpose. Very

often the officials receive the fees as salary or remuneration of

office, after the manner of most of the court fees in the United

States. On other occasions they are collected directly by offi¬

cials and turned into the treasury from which again they draw

a fixed salary. In some European countries the official is al-

1 Finanzwissenschaft , II, 41.

2 Seligman, Essays in Taxation , p. 293.

5

I

66 Urdahl — Historical Survey of Fee Systems.

lowed to retain a certain per centum of all fees collected by him,

so as to insure the rigid enforcement of the law.1 There are a

large number of services which are of so heterogeneous a char¬

acter that it is impossible to classify them definitely. In such

cases direct collection is absolutely necessary.

The indirect method of collection has become extremely im¬

portant in most civilized countries of to-day. This is by means

of stamps. It must be evident at the very outset that all stamps

are not fees. The very term “ stamp-tax, ” with which we are

familiar, indicates that something more than fees has often been

collected. The collection of taxes and fees by means of stamps

is said to have originated in Holland, when that country was in

the midst of its war with Spain;2 and it was soon introduced into

nearly every country in Europe. At present nearly every civi¬

lized country obtains considerable revenue in this way. These

receipts include both fees and taxes which have the common

property, that they can be conveniently collected by means of

stamps. The advantages are, that elaborate computation by

the officials is done away with; and the complicated system of

book-keeping which this necessitated, is avoided. They are

economical both to the government and the public. To the lat¬

ter, they save all the trouble and the time which a visit to a

public official would involve. The computation and payment of

stamps must be done by the public, and is therefore, as Roscher

says, “ a kind of self-government ” ; but it is also accompanied

by the disadvantages of self-government, in that it requires an

1 The political corruption which this method of collecting fees has re¬

sulted in, will be treated of subsequently.

2 In 1624 the authorities of Holland offered a prize of a certain sum of

money to anyone who should provide a scheme for a new system of taxa¬

tion. The prize was awarded to the originator of stamps. Fouquet, dur¬

ing the Fronde troubles in 1651, introduced stamp- taxes in France, and the

system was still further extended by Colbert in 1693. Denmark levied a

stamp- tax in Schleswig-Holstein in 1657 and introduced it in the home

country in 1660. Prussia learned to make use of the new tax in 1686, and

England followed in 1694, with a general stamp act which took the place

of the law imposing court fees. Russia, in 1699, was the last to adopt it.

Roscher, System der Finanzwissenschaft, p. 110; Stengel, W6rter -

bueh der deutschen Verwaltungslehre, II, 544.

Ancient and Mediaeval Europe.

67

elaborate system of laws fixing penalties for a violation of stamp

acts, and providing nullifying acts in case documents are un¬

stamped.

When individuality in public acts begins, and classes which

may be represented by typical acts or measurements disappear,

then the stamp must give way to direct collection. Von Heckel 1

says : “Asa system of fees developes and differentiates, the fees

on documents, as such, will gradually change to fees on official

acts ; general fees will become special fees and the collection of

fees by stamps will tend to disappear or be displaced by lump-

payments. ” As an example may be mentioned the Bank of Eng¬

land, which pays £60,000 a year in lieu of fees.

CHAPTER II.

GENERAL SURVEY OF THE FEE SYSTEM IN EUROPE.

Attention has been called by various writers to the fact, that

taxation in the modern sense of the word, is almost entirely a

product or development of the last few centuries. Not so with

the fee system. Payments which resemble and possess the na¬

ture of fees, may be found in almost every government of which

we have any knowledge. Although, perhaps, no definite relation

can be traced between our fees of to-day and those of Greece

and Rome, still the close connection between our civilization

and the institutions of the past, makes it imperative, that some

attention be given to the history of the fee system in Europe.

GREECE.

Greece is clearly the first and foremost of the nations of anti¬

quity, not only in civilization but, in a certain sense, also in

political capacity. Her institutions and laws were studied and

utilized by the Romans and have even been imitated down to

1 Handworterbuch der Staatswissenschaften , V, 708.

68 Urdahl — Historical Survey of Fee Systems.

the present. Her system of courts and their administration

was at one time as efficient and elaborate as many in existence

to-day.

When the Athenian citizen brought his suit in a Greek court

of justice, he was first required to deposit the pryta?iia, a sum

of money corresponding to our docket fee, intended to cover the

cost of the trial. In amount they were roughly graduated ac¬

cording to the size of the sum at stake. These prytania were

originally intended as the compensation of the judges, but were

subsequently paid to the state, which in turn remunerated the

judges with salaries.1 If either party wished to appeal the suit

to a higher court, it was required to deposit the paracatabole ,

a fee similar to the prytania. Costs^ parastasia , were charged

to the losing party, at the conclusion of a trial, and paid over

to the winner. Besides this there were the epobelia , the nature

of which is little known. During the Athenian supremacy

court fees are reported to have been an important source of

revenue, because all the allies had to take their suits to Athens

for trial.

Harbor fees were no less developed than the Greek court fees.

As soon as a vessel entered one of the far famed harbors, on

which the Greeks had expended so much care and money, it was

met by the harbor master and required to pay its harbor fee. .

If it happened to be a merchant vessel, it was required to pay

another fee for permission to unload at the public wharves and

a ware-house fee for depositing goods in ware-houses.2.

Furthermore, we find a developed system of market fees

charged in Athens for permission to enter the public market,

for permit to occupy a stall, and for permits to foreigners to

sell. Here also were charged license fees for permits to quack

doctors, jugglers, performers of various kinds, and prostitutes.

The protection of the merchant-men of Greece required a large

fleet of warships, which were supported by Athens. For the

protection thus afforded, the allies were expected to pay an¬

nually a fixed tribute into the Athenian treasury.

The Athenian tributes had therefore, to some extent at least,

1 Meier SchOnmann, Der Attische Process , II, 948.

2Boekh, Saatshaushalt der Athener.

Ancient and Mediaeval Europe.

69

the nature of fees granted for services. Taken as a whole, the

Greek fee system was, like Greek civilization, far in advance of

any other produced by the nations of antiquity, and may even

be compared with those of the nineteenth century.

ROME.

The financial, problem which confronted Rome and her people,

after she had become mistress of the Mediterranean, was far

different from that which the Greeks had met and partially

solved. The coffers of Rome were filled to overflowing with the

tributes and plunder of conquered nations. She was not there¬

fore compelled to devise schemes for making her offices self-

supporting. Thousands of captives were each year brought

home to be used by the state as slaves, many of them as clerks,

recorders, and copyists in the public offices.1 The state was

thus enabled to furnish its services to its citizens for nothing,

and as a result the fee system was comparatively unknown un¬

til long after Rome had reached its zenith.2 A noteworthy ex¬

ception is in the Roman temples.3 Many of these required the

attendance of numerous priests and vestal virgins. The volun¬

tary contributions which were at first made by worshippers,

becoming gradually compulsory and fixed by custom, were at

last collected in the form of admission fees from all who wished

to enter. For permission to approach the altar, a special fee

was charged; and a permit to sacrifice required a third pay¬

ment into the temple-chest, or treasury. At the time of the

great festivals and religious ceremonies many of the temples

obtained large revenues from these sources.

In civil cases4 a fee corresponding to the Greek prytania

originated very early in the history of Rome, and was called sac -

ramentum 5 but later it was regularly known under its Greek desig¬

nation. The etymology of the word, sacr amentum, shows that it

was originally a pledge presented to the temple or, at least, en-

1 Mommsen, Romisches Staatsrecht, I, 239.

2Seyffert, Diet. Class. Ant ., p. 55.

3 Mommsen, II, 62-65.

4 Wagner, Finanzwissenschaft. II, 52.

6 Mommsen, II, 65.

70

Urdahl — Historical Survey of Fee Systems.

trusted to it for safe-keeping. At first it consisted in five sheep

or five oxen according to the value of the object in dispute. These

were commuted later on into money payments. If the sum in

litigation was less than 1,000 drachmae, about $300, the fee was

thirty drachmae, or I9.1

When the enormous revenues from conquered empires began to

flow into Rome, pressure was at once exerted to secure free serv¬

ices of various kinds. As a result, we see the citizens of Rome

furnished with almost every kind of public services at the ex¬

pense of the imperial treasury. Increasing density of popula¬

tion necessitated the employment of more public officers, some

of whom were paid out of the public purse, while others held

honorary offices, with public slaves to do the work. The public

Tabularius, corresponding to our Register of Deeds, or Recorder,

employed a whole army of clerks, excerptores , who were either

slaves or freedmen.2 3 Still the custom of paying sacramenta had

become so firmly fixed that it was continued even during the

period of Rome’s greatest prosperity. No other judicial fees

appear to have existed for any period of time. Any citizen

might prosecute a criminal trial at the expense of the state;

but in case he did not succeed in getting the verdict of at least

one-third of the judges, he was obliged to pay a fee in the na¬

ture of a fine.

As soon as the streams of tribute ceased to flow into the

imperial city, financial troubles began. Attempts were made

to raise money in various ways. Vectigaliaf or taxes, and tolls

of various kinds were levied. Pees were charged for the use of

water- works, 4 when utilized for private purposes; although the

public fountains in the streets were free. Permits to use sew¬

ers were paid for. Various administrative fees developed, in the

form of charges for numerous services, real or imaginary, which

were performed by the government. Probate fees, which at

first were moderate, were exploited more and more, until it was

at last declared that no will could be legal and be executed in

1 Sevffert, Diet. Class. Ant. p. 551.

2 Mommsen, I, 251-259. Humbert, I, 230.

3 Humbert, Fssai, I, 407.

4 Mommsen, I, 416-478; II, 1006.

Ancient and Mediaeval Europe.

71

Roman courts which did not bequeath a legacy or percentage

to the emperor. The magnificent Roman highways, although

built at public expense, were to be repaired by the municipali¬

ties. To meet these expenses they levied road-tolls for their

use.

During the decline all fees were used as instruments of extor¬

tion and oppression. Accounts were rendered to the senate,

but these were such merely inform.1 Defalcations became uni¬

versal owing to the lack of administrative control; and, as one

writer puts it, “ Rome perished by reason of her finances. ”2

About the time of Trajan markets increased in importance from

a fiscal point of view. Fees were charged for admission, for per¬

mits to occupy stalls, and other market privileges. At the time

of Constantine we find fees paid for license to carry on certain

occupations. This system once established was extended until, at

last, fees were charged for the privilege of carrying on almost

every known art and trade.

C. PERIOD OF CHARLEMAGNE.

The tax system of the Romans tended to disappear among the

Franks, and was gradually replaced by the toll-system, which

is said to have existed in Gaul at the time of the conquest. A

manuscript of the year 681 names, among others, the following

tolls :3 pulveraticus, or road-toll ; rotaticus , wheel-toll ; ripiti-

cus , river-toll; saumaticus, toll for pack animals; and so on.4

The markets of the period, which were held at the great relig¬

ious or church gatherings under the supervision of the bishops,5

and at the royal courts, were regulated by the king, who col¬

lected market fees for various market privileges.6 The right to

coin money was early made the occasion for the exaction of seign¬

iorage. This was often collected by and for the benefit of indi¬

viduals to whom the king granted the privilege.7 The right to

^aboulaye, Essai sur les Finances des Romains , p. 62.

2G. Humbert, Essai sur les Finances des Romains , I, pp. 166-167.

3 Waitz, IV, 46.

4 Brunner, Deutsche Rechtsgeschichte, II, 239.

6 Waitz, IV, 46, 92. 6 Waitz, II, 47-58.

7 Waitz, IV, 80-82.

72 Urdahl — Historical Survey of Fee Systems.

fish and hunt were at first privileges attached to the ownership

or possession of the soil; still the king had often these rights

reserved to himself, and instances are not wanting where he

granted these rights away in certain localities for fixed pay¬

ments.1

When Charlemagne had consolidated his immense empire, he

turned his attention to internal improvements. Bridges were

built, roads laid out and improved, lighthouses established on

the Gallic coast, harbors and dikes were made and repaired,

and even a canal was planned and begun, from the Rhone to the

Danube. With his efficient centralization of political power, he

was able to levy and collect fees for the use of these improve¬

ments.2 In time the repairs were required to be made by the

localities while the fees still continued to be collected for the

king. Pirates were brought into subjection and protection

offered to merchants. For this they were required to pay fees

roughly proportioned to their profits. Jews were also granted

privileges and protection by a sort of license, Schutzbrief, for

which they were charged payments in the nature of fees.3 * * 6 The

well-known Wehrgeld of the middle ages was also of this charac¬

ter.* Fees for protection and privileges were also paid by mon¬

asteries and individuals, for whom the king appointed one of

his lieutenants to act as protector. In earlier times there were

even two protectors appointed, one against the Goths and the

other against the Romans. Each was supposed to be recom¬

pensed for their services by their proteges.*

In Charlemagne’s courts of justice, presided over by his missit

or local counts, the presence of a recording scribe or clerk was

required by law. He was appointed by the missi , and the court

fees collected by him were divided between the judge, the notary,

and the sheriff. In amount these fees varied according to local

conditions. The fine prescribed by the capitularies was divided

1 Waitz, IV, 115. 2Waitz, IV, 26.

3 Waitz, IV, 200-201; II, 55, 3-4. Payments called Friedensgeld, partly

in the nature of fees and partly in the nature of fines, were also collected.

Ibid., II, 535.

4 Waitz, IV, 275, 295.

6 Brunner, Deutsche Fechtsgeschichte, II, 51. Waitz, VI, 450-3.

Ancient and Mediaeval Europe. 731

when collected between the state, the missi , and the complain-

ing witness.1 The early law of the Franks required no official

recorder. His functions were performed by the servant or clerk

of the judge, and any one who was able to write might serve in

that capacity. As a result, there were no distinctively public

documents, as distinguished fronTprivate; and no fee or action of

a recorder could make a private doeument public.2 3 * * In Italy,

however, the clerk or recorder became early a part of the court, and

was just as necessary to its existence as the judge himself. The

signature of the clerk gave a legal sanction to every document.

D. THE TRANSITION FROM MEDIAEVAL TO MODERN EUROPEAN FEES.

After Charlemagne’s empire went to pieces, disintegration

set in and the royal prerogatives and other vestiges of central¬

ized power were swept away. When Europe emerged out of

the Dark Ages, entirely new conditions and customs had been

formed and crystallized, and scarcely any relics of the past could

be distinguished. The Feudal Lord who had absorbed many of

the powers of the earlier emperors collected all he could get for

the protection he afforded his dependents. The King, or sov¬

ereign, who was beginning to be recognized as the head of the-

state, became entitled to certain lucurative prerogatives which

were in the nature of payments for diverse privileges. The

treasures of the earth were his, and he might therefore charge

a sum or a fee for the privilege of mining. The game in the

forest and the fish in the sea were his property. Privileges to

hunt and fish were thus lucrative prerogatives. Similar pay¬

ments were made for using public harbors, for rights to trade,,

and numerous other privileges which belonged to the regalia of

the king. Fees were paid for a large number of permits, for

pass-ports,8 for permission to foreigners to work at trades, to

use the courts, and so on.

1 Altdeutsche JEteiehs und Gerichtsverfassung, 1, 170. Waitz, IV, 144.

2 Ibid, p. 527.

3 The modern passport fee was originally a payment for a personal escort

furnished by the lord, or the king, to merchants or travelers through a

country which was supposed to be unsafe . At first right to furnish such

74

Urdahl — Historical Survey of Fee Systems.

The state prescribed what weights and measures should be

used, and possessed the standard by which all others must be

gauged.* 1 Thus we find “ tronage ” collected in England at a

very early date from all foreigners who made use of the “Tron, ”

or great King’s beam.2 In the medieval law courts many fees

and charges were collected which have either disappeared alto¬

gether, or else been transformed into their modern equivalents.

An example of this is the fee long known as “ epices ” 3 which

originated in a voluntary contribution, made by the winning

party in a trial, to the judges. In course of time they became

so customary that the judges regularly demanded and collected

their epices before they would hear any case. Innumerable other

fees, or rather taxes, of this kind were everywhere collected un¬

der various pretences.

There is, however, one class of fees, the influence of which dur¬

ing the middle ages was so important that it requires special

mention. This class includes all the charges made by the var¬

ious trades and commercial guilds for privileges and preferments.

It was largely by means of these heavy fees and charges that

the great mediaeval corporations were able to maintain them¬

selves, and prevent the number of master workmen from becom¬

ing too large. Most of the workmen were kept as apprentices

in a subjection little better than slavery, because they were un¬

able to raise the money exacted by the guilds for promotion.

The expenses of passing from apprenticeship to comradeship,

and from comradeship to mastership, were enormous, especially

if the money value of commodities and labor is taken into con¬

sideration. The following are some of the fees collected on

such occasions:4 a royal fee, fee for registration, reception fee,

escorts belonged to the lord, as a territorial privilege belonging to the soil.

When the times became more peaceful, the written passport took the place

of the personal escort, and the gradually increasing power of the king led

to the transfer of this power to him. Handworterbuch der Staatswis -

senscahften , Supplement, 1897.

1 Waitz. IV, pp. 6,1-65.

2 Ashley, Eg. Hist. Eng., I, 21.

3Cheruel, Dictionnaire de V Institution, p. 359.

4Blanqui, Hist. Pol. Econ., p. 186.

Ancient and Mediaeval Europe.

75

police fee, fee for opening shops, honorary fees to the dean and

wardens, payment of the ushers and clerk of the corporation,

gratuities to the masters who were called to the ceremony, often

also fees in the nature of bribes to the judges.

These guilds, however, were not allowed to exercise this

power for nothing, but were often compelled to pay huge sums

to the King for their privileges. In the same way the great

colonial and commercial corporations of a later period paid large

amounts to the King for the privilege of governing and often¬

times plundering the colonies.1 The records of colonial misgov-

ernment show that these opportunities were not neglected.

The charges which indirectly proved perhaps the most burden¬

some of all, were the license fees which were paid for exclusive

rights of various kinds, usually monopolies. The sovereign,

always in need of money, would grant for a fixed sum the ex¬

clusive privilege to sell or manufacture, or trade in various

articles. Sometimes these privileges were granted to court

favorites, who farmed them out to others; and the latter then

extorted as much as possible from the people for their own bene¬

fit. Many of these licenses became of immense importance and

value. It is reported of Louis XIV that he granted a privil¬

ege of this kind to a courtier, supposing that it would amount

to a few thousand francs at most; which, when investigated,

was found to yield several hundred thousand francs. Numerous

mediaeval monopolies were a direct result of the road, bridge,

and river tolls levied on all goods transported from one locality

to another. These tolls were often so numerous and large as to

be prohibitory, and consequently an exemption from their pay¬

ment granted by the sovereign would lead to the establishment

of a burdensome monopoly.2

JThe “ joyeux avenement” collected at the coronation of each king of

France were regarded as payments for the continuance of the rights and

privileges held by the people under the former king. These charges origi¬

nated in the presents which in earlier times were given at the coronation

ceremonies.

2 The number of toll places on the Rhine increased from nineteen, at the

end of the 12th century, to sixty-four at the end of the fourteenth; on the

Elbe there were thirty-five and on the Danube, in Austria, there were

76 Urdahl — Historical Survey of Fee Systems.

Not only was a charge made for every service or activity of

the state or its servants on account of or in the interest of any

individual, but even the church had gradually come around to

the doctrine of equivalents; or, in other words, “No service

without a counter-service.

This condition, however, was not attained at a single bound.

Gradually the church had changed from the primitive simplicity

when it refused to accept any lands or other valuables, except

money, until the time when it would accept anything of value,,

from the last farthing of the starving beggar to the wealth and

lands of a dying king. Very little stress was laid at first upon

the doctrine of equivalents, but soon penances or pilgrimages

came to be prescribed for the atonement of sin. Little by little

these began to be commuted for money payments, from which

it is only a step to the absolute power of the church to absolve

from sin and its consequences. The sale of indulgences is nothing

but a payment in the nature of a fee for a privilege or service.

The old idea of voluntary contributions was almost entirely dis¬

placed by these counter-payments and taxes.* 1 2

The enormous revenues of the Holy See were largely pay¬

ments of this kind for real or imaginary privileges, exemptions,

and dispensations. State and church offices were secured only

through payment of huge sums of money, which were simply

fees collected for the privileges and honors conferred. Although

there was no fixed tariff of these charges in Germany during

the reign of Henry V still no political or ecclesiastical office

was granted without obtaining at least a gift from the individ¬

ual so honored.3 Although the local churches or their repre¬

sentatives were largely supported- by tithes and revenue from

seventy-seven toll places. In the middle of the 14th century the tolls

collected from Bingen to Coblenz amounted to 67 per cent, of the value of

the commodity transported. Handworterbuch der Staatswissenschaf-

ten, Supplement, 1897, p. 943.

1 For a short account of church revenues see Handworterbuch der

Staatswissenschaften , IV, 677. (Article by Edgar Loening.)

2 The hearth tax in England and the “Denarius St. Petri” in Scandina¬

via were originally in the nature of fees, but became burdensome taxes.

8 Waitz, VIII, p.409.

Fees in England.

77

■domains, fees or charges of this character still were not neg¬

lected. Charges graded sometimes according to the rank and

ability of the payer, sometimes fixed for each locality, were

paid for baptisms, marriages, burials, masses, and other church

rituals and ceremonies.

The last category of fees was retained even after the Refor¬

mation, and exists in most civilized countries at the present

time.1 As the division between the church and state becomes

more marked, the tendency has been for the latter to take over

a great part of these administrative functions, and collect the

fees for the same. This change is still going on, and though

gradual can be observed even now in most civilized counties.

CHAPTER III.

SOME TYPICAL ENGLISH FEES; THEIR ORIGIN AND DE¬

VELOPMENT.

A. LIQUOR LICENSE FEES.

I

At common law, permission to sell liquor was not a privi¬

lege, but a right which could be exercised by anyone, without

state interference; nor was drunkenness a punishable offense

until the time of James I. During the early reign of the Tudors,

there was a steady increase of tippling, accompanied by abuses

and disorders, due to the fact that the hostelries and ale¬

house were places of resort for playing dice, quoits, and other

forbidden games.2 The number of vagrants and idlers had in¬

creased enormously, owing to the disbanding of the army of

Henry VII, and the breaking up of monastic establishments.

It was found necessary to exercise some sort of control over

ale-houses; so in 1503 we find power given to two magis-

1 Handworterbuch der Staatswissenschaften , IV, 674.

2 Dowell, History of Taxation in England , IV, 90.

78

TJrdahl — Historical Survey of Fee Systems.

trates in each parish to suppress them or to grant licenses, on

receiving bond from the keeper for the maintenance of good

order. Stringent laws against tippling were also enacted. But

drunkenness continued to increase. So in 1710 a so-called stamp

duty of Is was imposed on each victualler’s license. Gradually

the license fee was increased, until in 1815 in amounted to 4£

4s. But it was found that this charge bore too heavily on the

lower class of houses ; therefore a change was made which grad¬

uated the license according to the rating or assessed valuation

of the house in which the liquor was sold. The charge ranged

from 2£ 2s for a house rated at less than 15£, to 4£ 4s for one

rated over 20£. None of these licenses permitted the sale of

wine, which in the sixteenth century was confined entirely to

the taverns as distinguished from the ale-houses. The regula¬

tion of these did not begin till 1553, when it was found neces¬

sary to demand a magisterial license, because of the increased

consumption of wine and “ the great numbers of taverns set up

in back lanes, corners, and suspicious places. ” The power to

license was given to local authorities, but the number of licenses

which might be issued in each town was limited by law. The

crown, however, continued to hold and exercise its prerogative

of licensing taverns, until after the restoration ; and, further¬

more, the two Universities and one or two corporate towns

possessed the right as one of their ancient privileges, the rev¬

enue from which went to the support of the schools.

In 1710 a fee was levied in the form of a stamp, costing 4s,

which was required to be affixed to all licenses, no matter by

whom granted. The charges or fees for licenses were increased

from time to time up to 1757, when the retail license was fixed

at 5£. From this time on, all liquor licenses became more and

more interrelated. The various kinds became differentiated,

and distinct, and the amounts paid are increased, so that in

1825 a dealer’s license would cost 10£, and a victualler’s 4£ 4s.

Uniformity was also attained between England, Ireland, and

Scotland. Regulation was no longer the only consideration.

Revenue, foreign policy, and commercial relations all influenced

the amount and character of the charges.

In 1840 the license charges were classified according to the

Fees in England.

79

size of the town, or population of the county; while in 1870 the

amount varied : first, according to the annual value of the house ;

second, according to the kind of liquor sold; third, according

to the quantity sold at the time; and fourth, according to the

place, whether a theater, steamboat, railroad, and so on. This

process went on until, in 1888, there were no less than twenty -

four distinct kinds of liquor licenses, many of them varying ac¬

cording to the rental value of the premises.1

The change in the period for which licenses were granted is.

just as marked. At first it was indeterminate, subject only to

the revocation by the licensing authority. Then they were

granted for not more than twenty-one years, and finally, in 1757,

were made annual. The qualification and requirements of the

licenses tended to become more and more stringent up to 1830,

when it was provided that no beer license should be granted ex¬

cept on certificate of good character, signed by six taxpayers

of the parish and certified by the overseer.

B. PEDDLERS.

Shortly after it had been found necessary to regulate the sale

of liquor by means of licenses, the same restrictions were ap¬

plied to peddlers. The same process of evolution took place in

the latter as in the former case. The first licenses were granted

free of charge, and needed only the signature of two justices of

the peace to make them valid. Soon, however, a fee was col¬

lected for the privilege by the state, which was increased until

in 1697 it amounted to 4£ for each peddler and 4£ extra for a

beast of burden. These charges with slight modifications con¬

tinued in force for nearly a century. When Pitt imposed his

shop tax in 1785, he also doubled the license charge for peddling.

This charge was so high as to materially reduce the number

of licenses; hence in 1789 the fee was lowered to the former

amount. At this time the hawkers seem to have acquired a bad

reputation for selling contraband goods and smuggling. Incon¬

sequence an act was passed which required from every applicant

for license a certificate of character, signed by the clergyman of

1 Dowell, II, 205.

80

TJrdahl — Historical Survey of Fee Systems.

his home parish and two reputable residents. As the peddler

became of less and less importance, the charge was reduced to

2>£ for license to peddle on foot, and 4£ to peddle with a beast

of burden.

C. ' HACKNEY-COACHES.

Another occupation which early came under the direct legis¬

lative control of parliament, was that of running hackney-

coaches. After the custom of standing them for hire had be¬

come firmly established, these vehicles became so numerous as

to seriously endanger the passenger and impede the cart-traffic

in the narrow streets of London.1 To remedy this an order was

issued by the council limiting the number which might be al¬

lowed, and in 1637 a license was required to be obtained from

the king’s master-of-horse. No toll was required until the act

of 1694 was passed, regulating the fees which might be collected,

and requiring the owner of each hackney-coach to pay 50£ for a

license for twenty-one years. The total number was limited to

seven hundred, which practically created a monopoly of the

business. Subsequently annual rentals were imposed and the

number increased until there were one thousand licenses in force

in 1777. This continued up to 1831, when free-trade in hack¬

ney-coaches was introduced. High licenses were however soon

re-introduced and remained in force until the act of 1869 was

passed, which charged 2£ 2s for four wheeled and 15s for two-

weeeled vehicles.2

D. OTHER LICENSES.

Most of the other English license charges are comparatively

modern,3 having been introduced either by Pitt or his success¬

ors. Many of them were imposed for the purpose of obtaining

revenue rather than for regulation. Of the latter may be men¬

tioned the dog-license, as distinguished from early dog-taxes.

This regulation was the result of the hydrophobia panic in Lon-

1 Dowell, III, 42.

2 Dowell, III, 45.

3 Some early licenses were granted by the crown, and fees collected there¬

for. Hall, History of Customs Revenue in England , pp. 25 and 26.

Fees in England.

81

don in the hot summers of 1864 and 1865. 1 At that time Lon¬

don was literally overrun with dogs, many of them ownerless,

running at large in the streets and public parks. People were

in mortal terror of being bitten, and feared to allow their chil¬

dren to go outside of the home inclosure. To give the police

power to kill these wild dogs and make the owners responsible

for the rest, a license fee of 5s was required to be paid by the

owner for each dog. When once introduced it continued in

force with slight changes down to the present time.

The game license, in the modern sense of the term, is another

of Pitt’s regulative measures. Although there had been game

laws as early as 1389, the object of which was “ to prevent arti¬

ficers, laborers, servants, and grooms ” from going hunting

while “ good Christian people were at church, ” these early acts

simply required property qualifications for obtaining a game li¬

cense; while Pitt’s act of 1784 imposed a fee of £2 2s for each

annual license issued. This was primarily intended to affect

only “gentlemen;”2 but these were able to evade it, making

good use, however, of the penalties imposed to punish poachers.

Licenses were also required of bankers, doctors, barristers, con¬

veyancers, proctors, auctioneers, pawnbrokers, jewellers, and

others. These were very largely, although not exclusively, im¬

posed for revenue.3 At present the most important sources of

fees in England, from a fiscal standpoint, are the following:

harbors, light-houses, bridges and ferries, turnpikes, trusts,

markets and fairs, and the Bank of England.4

E. ENGLISH COURT, OR ADMINISTRATION, FEES.

The most significant part of the English fee-system to the

student of American institutions, whether viewed from the his¬

torical, economic, or political point of view, is perhaps the court,

or more broadly speaking, the administrative fees. The origin

of these is doubtless identical with the origin of the English ju¬

dicial system. In the latter half of the seventeenth century

1 Buxton, II, 84.

2 Ibid., I, 284.

8 Statistical Abstract of United Kingdom, 1893.

4 Buxton, II, 205.

6

82

Urdahl — Historical Survey of Fee Systems.

the direct collection of court fees was displaced by the use of

stamps. At first they were confined to only a few instruments,

their cost depending upon the length of the document, as meas¬

ured by the number of skins required. In order to protect the

revenue, however, the number of words to the skin was limited

by law, and the prolix legal verbiage was not allowed to be cur¬

tailed. One of the consequences of this was the abominable

style of all early legal documents, and its effects may doubtless

be seen in the legal phraseology of to-day. During the next one

hundred years the stamp-fee system was extended, not only to all

official or judicial documents, but also to many semi-official in¬

struments, such as bills of exchange, promissory notes, leases,

mortgages, transfers, and so on.

The judicial fees made it in the interest of magistrates and

attorneys to delay and appeal and continue all cases as long as

possible; and it was thus largely through their influence, that

the law courts of England became a mere mockery of justice,

and remained such for centuries. It was on account of the Eng¬

lish legal fee-system, perverted by the courts into a system of

oppression, that Bentham directed his protest against law taxes.

It was against the iniquities and abuses of this system, that

Dickens wrote his Bleak House, which opened the eyes of the

public to the actual condition of the administration of justice.

F. CONCLUSION.

Taken as a whole, the evolution of the English license fee-

system may be said to be as follows : —

At first regulation was undertaken by the state without any

charge. Then a system of licenses was required, and a small

fee was charged for the clerical work of making them out and

recording. Gradually this fee was increased, sometimes to cor¬

respond to the value of the services granted; sometimes it be¬

came a tax levied purely for revenue, and, in the end, it

frequently became so high as to be evaded or even openly op¬

posed by the people. The fee was then reduced, either on ac¬

count of its unpopularity, or because the point of diminishing

returns had been reached. Either extreme usually leads to a

reduction in the size of the fees, and this usually fixes the

The French Fee System.

83

amount as it exists in the English legislation at present.

Changes are of course in progress even now, but they are so

slow as to be scarcely noticeable.

CHAPTER IV.

THE FRENCH FEE SYSTEM.

The origin and development of the fee system of France re¬

quires special attention and study. In no other place has this

source of public income been so much exploited and utilized as

here. In no other state does it play so important a role in the

system of finance, and in no other country has the “art of taxa¬

tion,” by means of numerous and heavy charges, originally in

the nature of fees, been so well developed.

A. DROITS D’ENREGISTREMENT.

The charges comprehended under the term registration fees,

are undoubtedly the most numerous and important category in

the French fee-system. In fact they may in a certain sense be

looked upon as a distinctive product of the French civilization.

Historically these charges are said to date back to the Greeks

and Romans, who required certain documents, official acts, and

the like to be filed with, or preserved by, some public officer.1

The book or place where these records were kept was called in

Latin “ Regesta, ” from which we have the word register. At

first these registration charges represented simply the expense

of maintaining the comptroller, or official, whose duty it was to

ascertain the date and nature of the document presented for

registration. The necessity for such control in France grew out

of the frequent deceptions and frauds which were practiced, es¬

pecially by means of ante-dating or otherwise changing the

dates of documents. It was therefore originally undertaken in

the interest of individuals or families, to secure the priority of

^arieu traces them back to the tenth century. — III, 105.

84

TJrdahl — Historical Survey of Fee Systems.

mortgages'and authenticity to these and other documents, espec¬

ially to their dates. Registration did rot, however, become a state

institution until 1539, 1 when Francis I required all sales and

transfers of real estate to be reported to an official, who was

empowered to collect and fix charges or fees for this service.2

But the original purpose of the charge was soon lost sight of,

and it became simply a means of deception, or subterfuge, for

the collection of heavy^and oftentimes, progressive taxes.3

Other charges, which apparently were of the same nature,

were collected under various names. Among others may be

mentioned the “Droits d’Ensaisinement”, “Droits de Reserve",

“Droits de Nouvel Acquit", “Droit d’lnsiuuation, ” all of which

were charged for the same ostensible purpose, and yielded con¬

siderable revenue, both to the royal exchequer and to the collec¬

tors. An act of 1722 fixed a new tariff of charges for these

services, which tariff remained in force down to the Revolu¬

tion. This law distinguished between fixed and proportionate

fees. The fixed charges varied in amount according to the rank

of the parties concerned, as in marriage contracts; often also

according to the nature and size of the document. Much injust¬

ice resulted from the fact that most of these fees were collected

under obscure, incomplete, and in many cases, arbitrary laws

and rules, which were interpreted by the collectors to suit their

own interests. The worst abuse, however, may perhaps be

ascribed to the vicious system of farming the offices out to

subordinates for fixed sums. But, aside from the illegal ex¬

tortions which this resulted in, the legitimate and regular

working of the law was such, that the fees — more especially

the proportionate fees — bore more heaviiy upon the poorer

classes than upon the nobles and the clergy.4

The modern French legislation on the subject of registration

may be said to date back to 1790, when all these heterogeneous

elements were united into one great category called “Enregist-

rement. " The same edict extended the scope of the subject, in

^lamageran, Histoire de VImpots , III, R.

2Cheruel, Dictionnaire , I, 353, 506.

3Parieu, II, 105-106; Vuitry, I, 462.

4Parieu, III, 108.

The French Fee System.

85

that it required all acts of notaries and other court officials to

be registered, and fees to be paid for the same. Furthermore,

the whole general subject was divided into three great classes.

The first class was made to include all acts or documents which

concerned or dealt with known values, and the fee for registra¬

tion was made proportional to the value. The second contained

all acts concerning objects or matters having no definitely

ascertained value, such as marriage contracts, wills, and the

like. The charge on these was graded in amount, according to

the income of the contracting parties, which in turn was esti¬

mated according to the value of their place of habitation. The

last class included all merely formal acts, on which fixed

charges were levied. This classification has remained essentially

the same down to the present day,1 but the administrative ma¬

chinery has been improved, especially during the revolutionary

period. A Director G-eneral was then for the first time placed

in charge of all verifiers, receivers, inspectors, directors, and

other officials scattered over the various localities.2 This

centralized control and direct responsibility of subordinates to

superiors has resulted in the efficient and economical adminis¬

tration of the entire system.

The edict of 1789 created greater regularity and uniformity

among the different charges than had ever existed before, but

was soon followed by a whole series of changes, among the most

important of which is the abolition of the antiquated and use¬

less feudal dues. The registration fees have been gradually in¬

creased, with the avowed purpose of increasing the receipts, un¬

til the enregistrement has become recognized in France as one of

the most important sources of revenue. The system has been

extended, until it includes almost every legal and extra-legal

document and contract. In fact every document is supposed to

be registered, unless it is expressly declared exempt in the law.

New objects of registration have gradually been added to the

list and new methods of measuring charges have been adopted.

As an example may be cited the fees for registration of articles

1 Block, Dictionnaire, p. 1013.

2 Parieu, III, 110-134.

86 Urdahl — Historical Survey of Fee Systems.

of incorporation, which, at first the same for all, were by the

act of 1872 made proportional to the amount of capital stock.

At the present time the fixed fees vary from one-half to one

hundred francs, according to the nature and importance of a

document. In this category may be mentioned powers of attor¬

ney, receipts, protests, marriage contracts, transfers of prop¬

erty, and so on. Preportional fees are usually based upon the

face value of the document, and vary from one-tenth of one per

cent, to ten and one half per cent.

Among other fees classed with the enregistrement are the

charges made for grants of nobility, naturalization decrees, per¬

mits to foreigners, for impressions of the state seal, and the like.

These “ Droits de Sceau, ” as they are called, have been in use

from very early times; and are based on the principle, that acts

emanating from a judicial authority should be provided with the

seal of that authority before they are executed. The following

acts, among others, require the state seal to make them valid:

letters of transmission or confirmation of title, certificates of

majority, acts concerning changes of name, naturalization, ad¬

mission to domicile, marriage dispensations, and the like.

The income to the state from registration charges has in¬

creased with marvelous rapidity. The total annual receipts be¬

fore the Revolution have been estimated at twenty million francs,

and the cost of collection averaged about thirteen per cent.

while in 1891 the revenue from this source reached the enor¬

mous sum of five hundred and forty-four million francs. The

significance of these figures lies mainly in the fact that almost

all of these charges originated as fees, but have gradually been

increased until many of them are pure taxes.

B. FRENCH LICENSE FEES.

Although some of the so-called registration fees are in reality

license fees, still there is another distinct class of charges which

may properly be placed in this category. The edict of 1577 1 2 is

the first law which required wholesale and retail dealers in in-

1 Handworterhuch der Staattswissenschaften , V, 378.

2 Parieu, II, 273-274. Block, Dictionnaire de V Administration, p. 1412.

The French Fee System.

87

toxicating liquors to obtain a license before they could carry

on their traffic. According to this law the fee or license charge

was paid once for all; and was not collected periodically, as is

usually the case at present. The transition to the system of

annual licenses, based upon the annual payment of the license

fee, took place about 1630 j1 when a law was passed which re¬

quired all brewers and dealers in wine, cider, perry, and other

drinks to pay a fee annually and obtain a license.

Before 1789 the fee collected from saloons and similar resorts

was very small, its principal object being to determine the ex¬

istence and location of the places which especially required po¬

lice supervision and surveillance. Many of the charges were

levied by local authorities and were therefore widely different,

being continually subject to change. But there were a great

many extra fees which had to be paid before the privilege sought

for could be obtained; among others may be mentioned the

gaugers’ fees, liquor inspection fees, and others of the same

nature. The revenues from these were generally farmed out,

and, as a result, these extras often amounted to more than the

license fee proper.2

All these charges were abolished during the Revolution, but

re-appeared soon after under their modern appellation, “ Droits

de license, - which were at first required only of distillers. The

law of 1814 placed brewers under the same requirement, and in

the following year saloon keepers 3 were also required to pay an

annual license fee for the privilege of selling liquors. The license

however soon lost the character of permission or authorization

which had at first been attributed to it. A law passed in 1851

made the grant of the license depend upon the assent of the pre¬

fect; but this provision was repealed in 1880. At present the

most important condition to be fulfilled is the payment of the

fee, which varies in amount according to the kind of business.

The brewer’s license fee depends upon the department in which

it is located, and runs from sixty to one hundred francs; while

the fee for liquor sellers’ licenses is graduated according to the

1 Say, Dictionnaire de Finances , II, 468.

2 Clamageran, Histoiri de VImpot en France , III, 75.

3 Ibid., I, 417.

88

Urdahl — Historical Survey of Fee Systems.

population of the commune in which the business is to be con¬

ducted. The minimum fee of twelve francs is charged in com¬

munes having a population of four thousand or less; and in com¬

munes whose population is less than six thousand, the fee is

sixteen francs. The fee gradually increases with the population

up to forty francs, which is charged in all places having a popu¬

lation of over fifty thousand. Wholesale liquor dealers pay a

fee of one hundred francs; and distillers’ license fees vary from

twenty to one hundred francs, according to the population of

the communes. The total receipts from all brewers’ and dealers’

licenses amounted in 1889 to 9,514,482 francs. One of the

peculiarities of the French liquor license legislation is that the

fee is charged for all restaurants, hotels, etc., whether intoxi¬

cating liquors are sold or not, hence is not confined to the liquor

traffic.

A law dated April 28, 1816, required all manufacturers of

playing cards to obtain a license and pay a fee, and three years

later an act was passed which granted the right to manufacture

sulphur on payment of a fee of twenty-five francs. Before that

time the state had a monopoly of the business of manufacturing

gunpowder. In 1837 another act was passed, which compelled

each refiner and manufacturer of sugar to obtain a license at a

cost of one hundred and twenty-five francs, and in 1873 the

same provision was extended to manufacturers of vinegar and

acetic acid, with the exception that the license fee was only

twelve and one half francs.

Another business which has long been subject to license regu¬

lations is the carrying trade, whether on the public highways or

on private railroads. The first act dates back to 1817, and con¬

tinued in force down to 1873; when an amendment was passed

which gauged the fee according to the number and kind of vehi¬

cles employed. Railroads were required to pay 6.25 francs per

car, as were other four-wheeled vehicles, while two- wheeled

carts pay only 2.25 francs each. These charges are very much

lower than those collected under the old law. Dray and freight

wagons are also required to obtain a license and pay two francs

each year for a plate, which must be nailed on a conspicuous

place on the wagon.

The French Fee System.

89

C. DROITS DE VISITE (DROGUE ET £PICE).

These fees are collected to cover the expenses of the annual

inspection of drug and spice stores, in order to test the quality

of goods offered for sale. This inspection has been required

from a very early period. A decree dated August, 1536, placed

this duty upon the doctors of the faculty of medicine in the

University of Paris, but no record can be found of any fees col¬

lected for this service. During the Revolution another act was

passed, which required all pharmacists and druggists to submit to

aperiodic inspection; and subsequent consular decree compelled

the payment of a fee for each visit of the inspector. The receipts

from this source went to the support of the inspectors in each de¬

partment. The result was, that the receipts exceeded the ex¬

penditures or cost of the service in some places, while in others

there were large deficits, which the consul general refused to

make up. It naturally followed that the law was badly executed

in many places. To remedy this state of affairs a new law was

enacted in 1866, which requires all the fees to be paid into the

state treasury, out of which all the expenditures under this head

for the entire country were taken.

At present each pharmacy is required to pay six francs per

visit and each druggist or dealer in spices pays four francs.

The inspection is undertaken in the interest of public health,

and is, therefore, in essence a sanitary measure.

D. DROITS DE INSPECTION DE FABRIQUES ET DEPOTS D’EAUX MINER-

ALES.

The inspection of mineral waters is another sanitary measure

which dates back to the old regime in France. In 1823 an ordi¬

nance was passed to the effect that all manufacturies and reposi¬

tories of mineral waters must be inspected at least once a year.

The fees collected for this were likewise a part of the revenues

of the departments at first, but were afterwards transferred to

the state treasury. After numerous laws and decrees regard¬

ing the amount which might be collected, the fees were finally

abolished and the office made unsalaried; as it was understood

that the reputation which appointment to this position con¬

ferred on a physician, was sufficient reward.

90

Urdahl — Historical Survey of Fee Systems.

E. VERIFICATION OF WEIGHTS AND MEASURES.

This service was of very great importance during the intro¬

duction of the metric system after the Revolution. In amount

the fees vary from five centimes to five francs, according to the

size or quality of the scale or measure to be inspected. The

system is centralized and uniform for the entire country. The

inspectors are paid salaries and the fees are turned over into

the treasury. The scales and measures are required to be

inspected each year, every commune or department having one

or more regular inspectors to perform this service.

F. DROITS DE GARANTIE. 1

These are assayers’ fees, or charges made for ascertaining the

amount and quality of metal contained in objects made of gold

or silver. The first edict, dated 1579, provided for this service

and established the fees, which were at that time termed “de

remede. ” The revenue from this source was farmed out, which

made the charges very obnoxious to the people, more especially

because the assayers had the right to enter and examine the

houses and factories of merchants and jewellers. In 1791 the

whole system was abolished and freedom of trade established in

gold and silver wares. But the numerous abuses which this

resulted in, and the important source of revenue which the

state found itself deprived of, soon led to the reintroduction of

the old system with its compulsion. The act of 1873 is the

basis of the present legislation on the subject. The fees vary ac¬

cording to the amount, quality, and kind of metal contained in

the object inspected, namely 37.50 francs per hectogramme of

gold and two francs per hectogramme of silver. The total

revenue derived from these fees in 1888 amounted to 4,611,531

francs.

G. FRENCH POSTAL FEES.2

It has been asserted that the French postal system took its

origin from the system of messengers which the University of

1 Parieu, III, 423. Say, Dictionnaire des Finances , p. 306.

2 Parieu, III, 281.

The French Fee System.

91

Paris established in the thirteenth century. These messengers

were primarity for the purpose of carrying the letters and

merchandise of the professors and the students at the Univer¬

sity of Paris. These messengers, however, soon carried mail

for others also, and, protected by royal favor, the system grew

into a great monopoly, from which the University derived con¬

siderable revenue. In 1546 Louis XI issued an edict, estab¬

lishing regular postal stations, with relays for messengers, thus

creating a state postal system, which competed to a certain ex¬

tent with the University messengers. This continued up to

1673, when the University was given an annual indemnity in

lieu of the revenues from this source. From this time on, the

state had a monopoly of the business, which was farmed out

to different parties up to 1791. The postal fees collected before

the Revolution were very complicated; because an attempt was

made to vary the charges not only according to the distance,

but also according to the weight and the number of sheets con¬

tained in the letter. A letter sent from Paris to Marseilles

cost at one time as much as two francs and two centimes in

postage. The last postal tariff which was made proportional

to distance was that of 1827, according to which France was

divided into nine zones and postal rates fixed for each zone.

This system remained in force up to 1848, when the National

Assembly adopted the uniform rate of twenty centimes for all

letters weighing seven and one-half grammes or less. Under

this system the amount of mail matter carried, increased enor¬

mously, but the immediate effect of the law was to decrease

the amount of revenue derived from the post office. After the

Franco-German war, France found it necessary to utilize the

post office as a means of raising revenue; and, to do this, the

postage on letters weighing ten grammes or less was increased,

by the law of August 24, 1871, from twenty centimes to twenty-

five. This tariff remained in force down to 1878, when a law

was passed reducing the charge to fifteen centimes for letters

weighing fifteen grammes.

92

JJrdahl — Historical Survey of Fee Systems.

H. SCHOOL FEES.

The University of Paris derived for a time considerable rev¬

enue from the postal system operated by it; still its income

was never so large, but that it was found necessary to collect

numerous fees of many kinds from its students. In the first place,

there is a quarterly matriculation fee of thirty francs collected

from students in all departments. Other fees vary according

to the nature of the studies pursued, or degree for which the

student is working. Furthermore, there are numerous examina¬

tion fees, varying in amount, besides heavy fees for certificates

of aptitudes. For the degree of LL. D., these fees aggregate

thirteen hundred francs. According to the law of 1844 the fees

for this degree were fixed at sixteen hundred and sixty francs;,

while the fees required for obtaining a simple license, amounted

to eleven hundred francs. With this schedule of charges the

University obtained two hundred and sixty thousand francs in

1862. There are many other examination and school fees levied

throughout France. As an example may be mentioned the fee

for a teacher’s examination, which is ten francs for a lower

grade, and twenty francs for a higher. 1

I. PEAGES.

These are pecuniary charges collected for the use of the means

of transportation and locomotion, such as canals, roads, rivers,

and bridges. They are said to date back to Charlemagne, who

attempted to prevent the imposition of new peages. They mul¬

tiplied very fast under feudalism, and soon lost their early

characteristic of being payments designed to cover the expense

of repair and maintenance of the roads and water courses. The

lords who collected these tolls were for a time supposed to be

personally responsible for the safety and condition of the high¬

ways.2 The nobles and clergy were exempt from paying these

fees, and, as early as 1353, the same exemption was extended to

JParieu, III, 415-417. Say, Dictionnaire, p. 222; and History of

French Universities.

2 An ordinance of 1561 imposed upon the collector the obligation of keep¬

ing his road in repair. Cheruel, II, 962.

The French Fee System.

93

members of Parliament.1 Complaints were repeatedly made

against the numerous exactions practiced as peages. As an ex¬

ample it is reported that thirty such tolls were collected on

thirty-six leagues of road outside of Paris.2

The peages were abolished by a law of March 15, 1790, but

were shortly afterward re-established under the name of “Oc¬

troi de Navigation. ” These, like their predecessors, were al¬

most all taxes, their original purpose having been entirely lost

sight of. The old idea still exists in the bridge and ferry tolls

which are collected throughout Prance. Bridges, ferries, and

similar means of transportation over navigable waters, were con¬

fiscated by the law of November 26, 1798; and fees were, for a

time, collected for the use of the state.3 Afterward it was de¬

cided to grant ferry privileges for limited terms of years to the

highest bidder, the fees or tolls having previously been fixed by

law. The grant was usually made for three, six, or nine years .

J. PATENT FEES.

The fees connected with the French Patent Office, are per¬

haps as modern as any in the French system. These origi¬

nated in a law passed by the National Assembly on January 7,

1791. The patent rights which have been granted by the last

kings under the old regime were in the nature of special mo¬

nopoly grants, rather than patent rights in the modern sense of

the word. The law of 1791 fixed the patent fees at

360 francs for five years, 862 francs for ten years

and 1,562 francs for fifteen years. An act of 1844

changed the charges to 500 francs for five years, 1,000 francs

for ten years, and 1,500 francs for fifteen years. The number

of patents issued has been growing, resulting in a correspond¬

ing increase in the amount collected as fees. In 1885 the re¬

ceipts from this source were no less than 2,045,000 francs. The

comparatively high patent fees of France are justified by French

1 Vuitry, I, 120.

2Chamageran, Histoire de Vimpot en France.

3 Hock, Finanzverwaltung Frankreichs, pp. 428-432; Say, Fic-

tionnaire de Finance, p. 466; Block, Fictionnaire; Pariu, III, 400.

94 Urdahl — Historical Survey of Fee Systems.

writers, for two reasons: first, in order to raise funds to de¬

fray the expense of maintaining the patent office; and, secondly,

to serve as a check against numerous and indiscriminate ap¬

plications for patent.

K. DROITS DE VOIRIE. 1

These are charges for permits to erect signs on public high¬

ways or streets, also for the privilege of erecting porticos, bal¬

conies, verandas, and similar structures on the streets. Charges

for permits to erect bath houses in rivers, for permits to have

news stands on streets, wharves, and other places, and many

other similar privileges belong to that class. Before the Rev¬

olution these fees formed part of the seigniorial dues, and were

often farmed out by the lord or the king. At present they are

of increasing importance, especially in the cities, as they can

be allowed or discontinued at any time, if the public welfare

seems to demand it.

L. PERMIS DE CHASSE.2

These are fees for license to hunt and to carry hunting arms,

and are of considerable importance. At one time they yielded

nearly two million francs of revenue into the treasury. Numer¬

ous laws have been enacted regulating this privilege, and for a

time, after the Revolution, the right to hunt was free to all; this

caused such destruction of game that the old regulations were

enacted. In 1871, the fee was fixed at thirty francs to the state

and ten francs to the commune; which was found to be so high

as to cause a diminution in the receipts, and, in 1875, the charge

was reduced to eighteen francs for the state and ten for the

commune.

The above-mentioned fees are simply a few of the most im¬

portant classes in the French fee system. There are of course

many others, of which no mention has been made; some of them,

like the court fees, of very great significance. Many others are

1 Say, Dictionnaire , p. 1532; Hock, p. 425.

3 Parieu, 111,408.

The French Fee System.

95

levied and collected by the municipalities or other public bodies,

while still others are semi-private in their character.

Enough evidence has been given on each of the classes out¬

lined, to show how the charges that originated as pure fees,

were invariably increased, especially under the old regime, until

they became extortionate taxes. The French Revolution, as

has been demonstrated, brought about the complete abolition of

the charges which had become so obnoxious. But later many of

the charges were re-enacted, and gradually increased. The only

difference between the earlier and later laws, so far as the

fees are concerned, is that the latter charges are designed to

produce the highest monopoly returns. As soon as the fees are

made so high as to result in a diminution of the revenues, there

follows very frequently a reduction. Tn other words, the prin¬

ciple of highest monopoly charges is better understood and ap¬

plied at present than was formerly the case. In a few instances

the charges have been reduced to less than the cost of the serv¬

ices to the government; but, in the majority of cases, the

French government obtains more or less revenue from fees.

One of the most important reasons for the success of the gov¬

ernment in extracting revenue from its fee system, is the excel¬

lent administrative machinery by which its fee-collecting offi¬

cials are governed. The accounts to be rendered are elaborate

in the extreme, and the personal responsibility of officials is

vigorously enforced; and the result is, that the frauds so often

-exposed by investigating committees in America, are almost

unknown.

96

Urdahl — Historical Survey of Fee Systems.

CHAPTER V.

FEES IN THE COLONIES.

A study of the fee-system of the colonies, as contrasted with

the English fees of the same period, reveals in a very striking

way the influence which economic conditions and environment

have upon the institutions, habits, and ideals of men. It is com¬

monly understood that the early American colonists carried with

them their English laws, church, and institutions ; and that they

were in all respects Englishmen who had merely changed their

abode. From one point of view this is not true. The moment

the first colonists set foot on the American soil with the inten¬

tion of permanent residence, at that very moment they became

Americans; in that the forces which have formed the American

institutions began to influence them. They did not carry with

them and apply to American conditions the whole English law

in its English form, as one might expect. Even the church

and social relations were profoundly modified in the process of

transplanting from English to American soil. It was the spirit

of the laws, and the ideas and ideals of the church which be¬

came the basis of the American structure. Some parts of the

law were, it is true, taken literally and enforced as American

law. But a greater portion of the English jurisprudence was

found inapplicable to the new conditions and rejected. The

English courts and judicial machinery were, however, extensively

used in all colonies in a somewhat simplified form.1

This accounts for the fact that the charges made for the services

of the courts of justice, represent almost the only system of fees

for which we are indebted to England. To this fact may also be at¬

tributed the large number of apparently useles and superfluous fees,

which have to be paid to officers connected with the courts in most

1 See Duke of York’s Laws of Pennsylvania, pp. 147-151, for a well de¬

veloped system of court fees charged in 1682.

Fees in the American Colonies.

97

of the Eastern states. Much of this machinery of the courts was at

first imposed upon the colonists by the governors, who had

charge of the admistration of justice, and oftentimes even acted

as judges.1 But so little use did the colonists make of the

courts, except to enforce criminal law, that no objection was

raised against the fees collected by the various court officials,

or at least inserted in the laws.

Another form of charges, which were collected from the very

beginning, were the perquisites and other fees which constitu¬

ted the compensation of the governors and inferior officers of the

colonies.2 The most important source of these fees were the

land patents and land grants. Payments were also made for a

variety of services performed by the governor, although no law

fixing their amounts can be found. These charges were re¬

peatedly made pretexts for numerous extortions of various kinds,

but there is ample evidence to show that they were not paid without

protests. Indeed, so far were these objections carried, as to re¬

sult in an open revolt against the New York governor by Ver¬

mont.3 The main objection they had to him was, that he charged

1 Gov. Hunter’s commission in New York in 1703 gave him power to ap¬

point judges, commissioners of oyer and terminer, justices of the peace,

and other officials. Civil List of New York, p. 163. The governors of

New York were chief justices or appointed deputies to serve in that capac¬

ity. The governor of South Carolina was given the following fees ( Stat¬

utes, , 1865, II, 3): Signing vessel dispatch, 5s; signing license to sell

wine, 5£; signing license to sell punch, 3£; signing letter testimonial, 10s;

signing writ in admiralty court, L£; signing marriage license, 10s; signing

warrant of contempt in admiralty, 1£; signing warrant of appraisement,

5s; signing letter of administration, 5s; signing probate of will, 5s. In 1686

the following fees were added: For grant of 500 acres of land, 1<£; injunc¬

tion in chancery, 10s; decree in chancery, 10s; ticket to leave, 2s 6d; grant

of less than 500 acres of land, 10s; prohibition in admiralty, 10s; warrant

for land, 2s 6d.

2 The attorney general of the colony of New York was charged with the

preparation of letters patent for corporations, grants of land, and so on;

the fees from which were highly lucrative. Civil List of New York ,

1887, p. 176.

3 The fees of the governor of New York for granting a township of land

in Vermont were from $2,000 to $2,600, while the governor of New Hamp¬

shire charged only $100. Rowland E. Robinson, History of Vermont ,

p. 62.

7

98

Urdahl — Historical Survey of Fee Systems.

higher land patent fees than Governor Wentworth of New Hamp¬

shire, from whom they had received their lands before the trans¬

fer of jurisdiction. Some of the early governors succeeded in

collecting goodly salaries from their perquisites.1 The grants

to the governor of New York yielded over $65,000, besides liberal

fees to the secretary of the province, clerks of council, receiver

general, attorney general, and surveyor general.2 The colonial

governors were not all models of puritan simplicity and honesty.3

Many of them did not scruple to avail themselves of their office

to exact various illegal fees, at times almost exorbitant in

amount. 4

These colonial governors, especially those of New York, were

many of them worthy examples of the notorious ring-leaders of

later generations. The crown itself was constantly defrauded

of numerous fees and perquisites, which they collected in its

name, but failed to turn over or account for in any way.

Considered from our point of view, it seems rather strange

that the colonists would pay these charges, when they must

have known that there was no law sanctioning them. But it

1 Governor Clarke is said to have amassed a fortune of $100,000 in seven

years; and Gov. Clinton obtained $80,000 in a short time (mainly from fees,

as salaries were less than 2,000£ per annum). Roberts, History of New

York’ p. 296.

2 During the thirteen months interregnum in New York in 1731, the

lieutenant governor collected over. 6,407£ in fees and other perquisites of

office. Ibid., p. 261.

3 Among the other glaring abuses charged against Governor Crosby of

New York was the extortion of 150£ for one trip to Albany, 750£ for serv¬

ices in London, etc., in the probate court. (Ibid., pp. 265-267.) See also

F. A. Wood’s History of Taxation in Vermont , Columbia College

Studies, IY, 322.

4 “ For the sake of acquiring fees as governor or proprietor he (Gov.

Sothel of North Carolina) disputed the best of titles, and vexed the fairest

traders.” History of North Carolina. Hugh Williamson, II, p. 140.)

The Ninth assembly of New York in 1703 adopted an address to the gover¬

nor concerning the exorbitant charges, fees, and other exactions, re¬

questing, among other things, the appointment of a treasurer who shall be

a resident and inhabitant of the colony. ( Civil List of New York , 1887,

p. 73.) See also W. S. Ripley, Financial History of Virginia , Columbia

College Studies, Vol. IV.

Fees in the American Colonies.

99

must not be forgotten that laws were not so explicit in the

early days as at present. General powers were given to gov¬

ernors in such a way as to leave details to the discretion of each

official. A page of colonial or provincial law would give all the

rules which would have required twenty pages of modern statutes.

The worst abuses which this state of affairs made possible were

more directly caused by the fact, that the governors looked upon

their positions as sources of revenue, and did not hesitate to

exploit the offices to which they had the appointing power.

Thus we find one of the grievances of the Massachusetts colonists

under Governor Andros’s administration1 to be, the extortionate

fees collected by the deputy to whom Secretary Randolph had

farmed the post of secretary. This practice was not confined to

Massachusetts alone, but was resorted to in several other col¬

onies both by the governor and by subordinate officials.

A. SURVIVAL OF THE IDEA OF REGALIA, OR ROYAL PREROGATIVES,

IN THE COLONIES.

In the earliest colonial period there were very few taxes

levied, for but little revenue was needed. All the officers were

supported more or less by the fees which they collected. No

expensive public works were undertaken by public authority;2

hence but little money was needed in the treasury. As a re¬

sult, the idea of paying money or fees into the public treasury

never seems to have occurred to the early colonists. In old

England they had paid everything into the King’s Exchequer

for the use of the King and the State. What could be more

natural than that similar payments should, in the New World,

be made to the highest representative of the sovereign power —

the governor! At any rate, such was the case. He granted the

marriage license and collected his perquisites3 for the grant,

1 Doyle, English Colonies in America , IV, 247. See also Colonial

Laws of Massachusetts , p. 242, for similar methods authorized by the

Massachusetts General Court .

2 The meeting houses and town halls were built by co-operation rather

than by means of taxes; no record of laws passed for this purpose, is found.

3 Maryland marriage license fee, 30s. Colonial laws , 1777, Ch. 12.

The governor of New York had power to grant marriage licenses and

100

Urdahl — Historical Survey of Fee Systems.

while the clerk wrote the bond which was required, the secre¬

tary recorded it, and the minister performed the ceremony, each

of whom must be given fees for their services.

But the colonial marriage license was, in its essence, radi¬

cally different from the modern marriage license. The license

which the governors granted, was at first regarded as a special

dispensation. Everybody was not required to obtain this

license; and the more usual way in many colonies, was to be

married in the churches, after the banns had been proclaimed,

and the other formalities complied with. The special dispensa¬

tion conferred by the marriage license from the governor, was

the privilege of being married at home, without going through

all the prescribed formalities. The new method obviated all

the publicity which the old customs required, and soon became

popular in many colonies. The governors were, as a rule, very

willing to grant these licenses, because of the fees which they

thereby obtained. The governor of Pennsylvania is reported

to have obtained considerable revenue from this source.* 1

But the governor’s prerogative extended to many other mat¬

ters with which our governors of the day have nothing to do.

In Massachusetts they granted licenses to Frenchmen to open

shop, or carry on trade in the province.2 A fee had to be paid

to obtain the governor’s signature to validate a deed from

Indians.3 Licenses to trade with the Indians were obtained in

the same way.4 A fee for each ordinary license was also a part

of the governor’s perquisite in many places,5 as were peddlers’

issue probates of wills, to license schoolmasters and printers, to erect

forts, and establish fairs and markets. Civil List of New York, 1887,

p. 163. Governor Andros, appointed Governor General in 1686, charged

60s for the probate of each will, besides expenses of journey to Boston;

and for confirming patents of lands granted under the old charter, he

charged 50£. Columbia College Studies , I, 300.

1 Mem. Pa. Hist. Soe., XI, 357.

3 Laws of Massachusetts, 1693, p. 90.

3 Ibid., 1701, I, 471.

*Ibid., 1713, p. 725.

5 The Duke of York’s laws, 1676, provided that licenses to sell liquor be

issued by the Governor to those recommended, “in order thereto by- two

justices in open court.”

Fees in the American Colonies.

101

licenses1 in some colonies. Fees for letters patent, for natur¬

alization privileges, for certificates of ability to contract debt,

and for many other real or imaginary privileges, were received

by many colonial governors. Most of these fees may, in one

sense, be considered as relics of the old system of royal prerog¬

atives, which survived for shorter or longer periods of time

under American conditions. Very often the fees of the gover¬

nor continued to be collected, long after the special dispensation

had ceased to exist. Many of these fees, especially for licenses,

did not remain very long a perquisite of the governor’s office.

Their abolition or gradual transference into the public treas¬

ury, is marked by frequent clashes between the representatives

of the people and the governors, the latter backed by the crown.

The licensing power was usually taken away from the governor

first, and transferred to some licensing body or to the legislature

afterwards; and the fee was either abolished altogether,2 or else

commuted for a fixed annual appropriation.3

B. COLONIAL LICENSE FEES.

It is not possible at present to state the exact cause of the

different kinds of license legislation which we find on the colonial

statute books; nor can we place our finger upon the original

acts, which may be called the prototypes of all the subsequent

laws on this subject. But sufficient data may be found in the

colonial records and laws of any colony, to establish, beyond all

reasonable doubt, the origin and development of the fees which

were and are at present paid for the licenses granted by public

authority. Many of these charges must, no doubt, as has al¬

ready been pointed out, be considered as survivals of the Eng¬

lish, or European, systems of government. But a very large

majority of our license regulations and license fees, have been

introduced and developed on American soil. To obtain a proper

Denning’s Statutes , III, 377-378.

2 Fees of the Governor of Massachusetts for ordinary and marriage

licenses were abolished in 1776. Laws , 1776, VIII, 225.

3 A law of South Carolina in 1711 provided that the license money be

paid into the treasury and that the Governor be granted 120<£ per annum

in lieu of all license money formerly collected by him. Statutes , p. 363.

102

Urdalil — Historical Survey of Fee Systems.

conception of this development, it is necessary to constantly bear

in mind the economic and political condition of the people and

governments of the colonies. The English, Dutch, and the

Swedes, who became the founders of the American colonies, came

directly from old countries, in which everything had so long

been firmly established by law and custom that the citizens had

not become conscious of their rights to make or change their

own laws at will.

It is conceivable that these borrowed institutions and laws

which the governors attempted to apply to the colonies, worked

very well at first. But a short period of time sufficed to prove

to these early pioneers, that the English law was not suitable

to all conditions. The problems which the English law attempted

to solve, were not the problems which confronted the colonist.

They did, no doubt, at the very outset, attempt to regulate the

marriage relation in the same way that they had been accus¬

tomed to in their home countries. They, or at least the gover¬

nors, did think it necessary to regulate the titles and rights to

land. But the lack of any provision regulating the Indian trade,

was not felt, until this trade with its abuses had assumed such

proportions as to threaten the safety of the colony. Here they

had no English precedent to fall back upon, and were therefore

forced to devise some new means of dealing with the subject as

it presented itself.

The people who carried on the Indian trade were, as a class,

disreputable and not to be trusted.1 The most natural solution

was, to allow only responsible and trustworthy people to engage

in this traffic, and, to secure this end, it was enacted that no

one should engage in the Indian trade without a license therefor

from the colonial governor. This is the first stage of the evo¬

lution of a license fee; regulation by the state without any

charge for the privilege, except perhaps a very small recorder’s

fee for the clerk. An examination of the laws of the various

colonies will reveal a large array of subjects which, to the mind

of the colonial legislator, seemed equally liable to abuse. As

examples the following might be cited: the occupations of tan-

Dinwiddie, Virginia Historical papers, II, 340.

Fees in the American Colonies.

103

ners,1 printers,2 lawyers,3 physicians,4 Indian traders,5 peddlers,6

tavern keepers,7 8 pilots,3 and many others. No one at that time

could foresee that the liquor regulation, which then seemed even

less necessary than some of the other license regulations, should

one day become so important as it has grown to be. The regula¬

tion of any one of the above mentioned subjects, might have de¬

veloped in the same way that the liquor licenses have, provided

the conditions had been suitable. All of them attained the first

stage of development, but many reached no farther. As exam¬

ples may be cited the printers’ and tanners’ licenses. Many

others have tended to disappear, or have been made conditional

upon certain qualifications, educational and otherwise, the fee

being often changed from a license fee to an examination fee.

On the other hand, many occupations which are now subject to

stringent license regulations, were forbidden in the colonial pe¬

riod. As examples may be mentioned peddlers in Connecticut,

Massachusetts,9 and New York,10 and theatres in Massachusetts 11

and Rhode Island.12

The second stage in the development of license regulations is

reached when a fee is collected for the privilege conferred by the

license. This stage was very often hastened by the fact, that

the colonial governors were eager for any opportunity or excuse

I Two early laws of Massachusetts and Connecticut, which read almost

like the ancient Guild regulations, provided that no one should engage in

the business of tanner until he had shown his ability and knowledge of

the mystery of tanning to the county court, and had paid a license fee.

(In force down to 1796.)

2 History of New York (Commonwealth series), I, 255.

* Laws, S. C., 1789, IV, 669.

4 Laws, N. H., 1789, p. 302.

6 Statutes, S. C., 1711, II, 359.

6 Peddling was forbidden in New York [Laws, Ninth Session, p. 201).

'Laws, S. C., 1711; Rev. Stat., 1801, V, 100.

8 Colonial Laws, S. C., 1690, pp. 51, 93.

9 Laws 1799, I, 213.

10 New York Statutes, Ninth session, Ch. XI, 201; Twenty-fourth ses¬

sion., p. 15.

II Up to 1806. First playhouse in Boston, 1794. Weeden, History of

Neiv England, II, 863.

12 Statutes 1825, p. 152, § 1.

104

Urdahl — Historical Survey of Fee Systems.

for exacting money from the people. A small charge once begun

was easily made a precedent or pretext for a higher exaction.

But even where the license fees were taken away from the gov¬

ernors, their tendency to increase in amount was manifest. As

an example may be cited the fees for Indian traders’ licenses in

South Carolina. At first there was no charge for the privilege;

then a small, almost nominal fee was charged, which was soon

increased to £3; in 1709 it became £5; and in 1711 it was in¬

creased to £8, then to £20; and finally in 1734, £50 were

charged for each license. This was the high water mark,

which was held for only a short time, after which the charge

was decreased again.1 In 1719 a commission was appointed to

manage the Indian trade for the benefit of the colony. This

commission was empowered to license traders, provided they

gave bond for £500 and paid ten per cent, of the proceeds into

the colonial treasury.2 The same is true of peddlers’ licenses

in South Carolina. The fee was gradually increased, until in

1738 we find £100 charged for a license to peddle by water, and

£50 by land when carried on with a horse.3

The evolution of the license fee as we know it to-day, can be

most easily traced through its early stages in the colonial liquor

regulation. The experience of Massachusetts may be considered

as typical ; for every other colony has, with more or less varia¬

tions, passed through the same process.4 The preamble of a

Massachusetts license law dated 1645, 5 reads as follows: “ For¬

asmuch as there is a necessary use of houses of common en¬

tertainment in every commonwealth, and of such as retail

wine, beer, and victuals, yet, because there are so many abuses

by persons entertaining and by person entertained, ” it is or¬

dered that, " no person . . . shall be a keeper of a cook-

1 Johns Hopkins University Studies, 13, 104; Financial History of

South Carolina, C. L. Whitley; also Laws, S. C.

* Laws, S. C., 1719, p. 93.

3 Laws , 1838, III, 487.

4F. A. Wood, History of Taxation in Vermont ; Columbia College

Studies, IV, 391. The earlier liquor licenses in Vermont were imposed for

regulation, not revenue. The fee charged was about equal to one dollar.

5 Colonial Laivs, Mass., p. 43, (1645-51, 1653, 1657-58); 1645, p. 164.

Fees in the American Colonies.

105

shop or house of common entertainment, tavern or a public

seller of wine, ale, beer, or strong waters by retail, without

the approbation of the selected townsmen, and a license by the

county court, upon pain of forfeiture of £5 for every offence. "

This did not apply to wholesalers selling wine in quantities of

not less than three gallons or strong waters less than a quart.

A little later another act was passed which read in part as fol¬

lows:1 “ And because it is difficult to keep order, and keep the

public houses of public entertainment in conformity to the

wholesome laws established, as is necessary for preventing

drunkenness, excessive drinking, vaine expenses of money, time,

and the abuse of the good creatures of God, it is ordered” that

the license shall be valid for only one year, but may be renewed

annually on application to the county court; for each renewal

the licensee was required to pay two shillings six pence to the

clerk of court. In 1661 it was deemed necessary to require

distillers and wholesale dealers to obtain a license, for the rea¬

sons set forth in the preamble, as follows: " Upon complaint of

the great abuses that are daily committed by retailers of strong

waters, rhum, . . . both by distillers thereof and by such

as have it from forraigne ports,2 it is ordered” that etc. . . .

Laws of this kind, designed to prevent drunkenness by re¬

stricting the sale of liquor to persons of good character who

could secure the approval of the selectmen of the town, and by

providing penalties against tippling and drunkenness, were re¬

peatedly passed by the colonial legislatures. As a sample of

the latter may be mentioned a provision in a law of 1787 :3 “ Nor

shall any person licensed to sell strong waters, or any house¬

keeper permit any person or persons to sit drinking or

tippling strong waters or wine or strong beer in their

houses. ” An act of the same purport was passed in

1798 in Massachusetts Bay Colony,4 which provided in addi¬

tion that no more houses of common entertainment should be

licensed than was necessary for the accommodation of the pub-

1 Ibid. , p. 166. 2Ibid., p. 84. 3Ibid.,p. 15.

*Acts and Resolves and Charters of Massachusetts Bay Colony ,

III.

106

Urdahl — Historical Survey of Fee Systems.

lie, and furthermore that all licensed houses shall be “on or near

the high roads, streets, and places of great resort. ” As early as

1712 we find a statute which attempted to accomplish the same

thing, by giving the licensing authorities power to suppress

unlicensed establishments and to decrease the number of licensed

ones. It was further provided in 1787 that all persons apply¬

ing for a license outside of the regular time, shall pay six shil¬

lings to the county, besides the usual fees; and the old pro¬

vision was continued in force, to the effect that all licensed

houses must keep on hand provisions for entertaining men and

beasts.

One of the most significant characteristics ol all the liquor li¬

cense legislation of the colonial period, is the fact, that it con¬

cerned taverns and ordinaries only. The taverns and inns

were very important factors in colonial life. Every crossroad

had its tavern or inn for accommodation of travelers and car¬

riers, which was an absolutely necessary part of the transporta¬

tion facilities of the time. The licenses were aimed, not so

much at the regulation of the liquor traffic, as at the regulation

of the taverns, so as to make them furnish suitable accommoda¬

tions at reasonable rates. In fact it was not unusual to regu¬

late the rates, prescribe what provisions must be kept on hand,

fix a minimum standard of quality of beer, and regulate the

maximum price per pint.1 The modern saloon or grog-shop did

not exist and was not recognized by law until 1816, when the

first act was passed authorizing the grant of licenses to persons

who did not maintain taverns. Two years later we find the li¬

cense fee raised from one to four dollars per annum,2 besides

the usual fees for registration and other services. From this

time on the liquor license fee has gradually increased until it

became what we have it today.

1 In Virginia the licensee bound himself to sell his liquor at the price set

by the commissioners.

Applicants for innholders’ licenses were required to take an oath not to

violate the law against monopolies, nor to sell liquor at higher prices than

was prescribed by law. Acts and Resolves of Province of Massachu¬

setts, V, 647.

2 Colonial Laws , Mass., from Boston Courier , p. 19.

Fees in the American Colonies.

107

It has seemed necessary to give this somewhat lengthy ac¬

count of the Massachusetts license legislation, because it ap¬

pears to show more accurately than that of any other colony,

the evolution of our liquor license fees under normal conditions.

It shows quite clearly the actual steps in the process by

which the modern fee has emerged out of a simple regulation.

It shows, furthermore, that modern liquor license is entirely

different from a colonial liquor license, the latter being in its

essence a tavern or hotel license, which was intended to regu¬

late, not only the sale of liquor, but the entire tavern business.

The transition from tavern to saloon licenses took place as soon

as the tavern ceased to be an economic problem, in other words,

when the canal, the steamboat, and the railroad began to dis¬

place the public highways in the business of transportation.

Most of the country taverns disappeared of themselves, while

others were changed into or displaced by the saloon and corner

grocery.

Many other expedients were resorted to at various times in

the other colonies. The size of the license charge, for example,

was graduated according to the place where the tavern was

situated, varying from l£ 10s to 1Q£ in the colony of Plymouth

in 1669 j1 while in Maryland the number of ordinaries was lim¬

ited by law, and the amount of the license charge varied ac¬

cording to the proximity of the tavern to large towns.2 In Con¬

necticut taverns were limited in number to two in each town,3

and a similar provision was required in South Carolina.

It is of interest to note that, as a rule, high license charges

were imposed much earlier in the south than in New England.

Thus Virginia at one time charged as much as 40£ for ordi¬

naries’ licenses,4 and South Carolina5 collected 6£ for each li¬

cense in 1701. Maryland also obtained considerable revenue

lLaws of Colony of Plymouth, p. 155.

2 2,000 lbs. of tobacco were charged for an ordinary license within two

miles of St. Mary’s and 1,2C0 lbs. for the same privilege within any county.

Johns Hopkins Univ. Studies , Vol. 10, p. 343.

3 Laws, 1797. Approval of selectmen required.

4 Statutes, Henning, I, 189.

5 Statutes, II, 363.

108

Urdahl— Historical Survey of Fee Systems.

from her license money. The high peddlers’ and Indian trad¬

ers’ license fees have already been mentioned. Billiard table li¬

censes in connection with ordinaries were also introduced very

early in the South.1 Ferries were licensed every where, but fees

were at first rarely charged for the privilege.2 Many other li¬

cense fees were imposed at different times, but none of them

seem of sufficient importance to deserve special consideration

here.

C. COLONIAL REGULATION OF FEES.

As the interior of the colonies developed, it is but natural

that means of transportation should become of increasing im¬

portance. The attention of the colonial legislative bodies came

to be directed more and more to ferries, toll-bridges, toll-roads,

and other transportation facilities.3 At first the permission

to build them and levy toll for their use, was granted by special

acts.4 In some colonies, however, these rights were granted by

the governors. The regulation of the amount of fees to be

charged was, as a rule, left to the legislative council, which ex¬

ercised this right very frequently. But in spite of the best

regulation, and in spite of the heavy penalties imposed for vio¬

lations, unjust and discriminating tolls continued to be col¬

lected by the various ferry-men and toll-gatherers. Complaints

were also made that the judges, sheriffs, clerks, and other fee

collecting officers, connected with the courts, charged illegal and

extortionate amounts for their services.

The legislative bodies made numerous attempts to prevent

these abuses. But with each new regulation which checked some

existing abuse of the fee-system, some other subterfuge 5 or way

of evading the law, so as to collect heavy fees, was often in-

1 South Carolina in 1741 charged 40s for billiard table licenses.

2 In Massachusetts in 1781 the clerk making out the ferry license was

allowed to charge 5s therefor. Laws, Dorsey, I, 176.

3 Ferry tolls regulated, Colonial Laws of Mass, (reprint), p. 151.

4 Mass. Law, Feb. 14, 1797; 1694; 1726, 1760, etc.

6 Separate fees were charged in Virginia for each of several small parcels

of land, when one fee would suffice. Bacon’s laws attempt to remedy

this. Statutes at Large, Henning, II, 355.

Fees in the American Colonies .

109

vented by the slippery collectors.1 In course of time the legis¬

lation seems to have accomplished at least one great reform in

most of the colonies. This reform consisted in securing pub¬

licity, as to the amount of fees which each public official could

legally charge for his services, by making provision to the effect,

that the fee bill should be posted up in a conspicuous place in the

office of each fee-taker.2 Colonial legislation consists largely of a

series of special laws. G-eneral laws came later on, after the

efficiency of each special law had been demonstrated. The above

mentioned reform was thus applied gradually.3 The offices in

which the abuses seemed most aggravating, were first brought

under this provision. In time others followed, until a complete

reform was accomplished, the importance of which can scarcely

be grasped by the student, who examines the subject from the

modern legal point of view. The colonial legislative bodies were

not the legal sovereigns which our legislatures are to-day. They

might make their regulations for the public official ; but so long

as the people did not know what these enactments were, the offi¬

cials might charge almost what they pleased, under cover of

law. The reform, therefore, which, though begun in the colon¬

ial period, has not been completely carried out in some of the

states even to this day, really took from the official the arbitrary

power which he often exercised, and made him directly amen¬

able to the will of the people, that is, to the law.

One of the most important colonial offices, outside of the

courts, was that of provincial surveyor, or surveyor-general, as

he was usually termed. Knowing, as we do, that the land

grants and land patents formed the chief source of the emoluments

1 Another way of evading the law was to require every fee payer to pay

heavy extras for copies of documents which he did not want or need. Ibid.,

Ill, 162.

2 A Virginia law of 1736 provided that a table of fees of each clerk and

secretary be set up in his office. Ibid., IV, 505; III, 164; IV, 59, 350, 490;

V, 341; VI, 98, etc.

3 In Penn’s charter, made in England, 1683, it was provided that all fees

be moderate and fixed by the provincial council and general assembly;

a table of fees to be hung up in each respective court. Colonial Charters

and Constitutions, by B. P. Poore.

110

Urdahl — Historical Survey of Fee Systems.

of the governors and other officers, it is perfectly natural that the

official who fixed the legal metes and bounds of their respective

lands, should increase in importance many fold. In that primi¬

tive state, his services became a necessity to everybody; as

everyone owned, or wished to own, land. In some colonies this

officer charged monopoly prices for his services. This led

to numerous acts regulating the fees which he might legally

charge.1 Still, the remuneratiou was usually sufficient to con¬

stitute a handsome salary.1 This is further evidenced by the

fact that enterprising young men, like Washington and Jeffer¬

son, made surveying their profession.

The quasi-public charges of attorneys at law caused so much

dissatisfaction, that in the end laws were enacted providing

maximum charges,2 and forbidding any attorney to refuse to

plead a case without just grounds. The large number of un¬

scrupulous and incompetent lawyers was perhaps responsible for

enactments, providing that attorneys should pass satisfactory

examinations before admission to the bar.3 The fees of numer¬

ous other public or quasi-public officials were from time to time

regulated or fixed in many of the colonies.

D. CHURCH AND SCHOOL FEES IN THE COLONIES.

It is perhaps well understood, that the colonial church and

state were not separate in the modern sense of the term. The

church still exercised many political or state functions, and was

supported, indirectly at least, by the state.4 It is true’that'at

1 The law of New York even went so far as to pay the surveyor a fixed

salary, and provided that all fees be paid into the treasury. Laws 1785,

XXXII. Surveyors’ fees fixed at 100 lbs. of tobacco for making a survey of

of 100 acres of land, in 1661. Statutes of Virginia, II, 99; III, 330.

2 Attorneys on admission to the bar were required to take oath that they

would not charge unreasonable fees. (1732.) Statutes at Large , Hen¬

ning, IV, 360. Attorneys fees regulated in Virginia. Laws, III, 162;

II, 479.

3 South Carolina license to practice law; fees 1£ 10s. Laws, 1791, V,

156; 1785, IV, 699, fees 1£ 10s; 1736, fee 4£.

* There was no distinction in Connecticut between the town, the church

and the school, as far as taxes were concerned. Every inhabitant was

compelled to help maintain each. History of Taxation in Connecticut.

Johns Hopkins University Studies, Vol. 14, No. 8, 62.

Fees in the American Colonies.

Ill

first the idea, that the minister should be supported by volun¬

tary contributions, was tried. But the force of custom was not

strong enough to make everyone pay these voluntary contri¬

butions, so legal compulsion was resorted to. In the South,

however, this method was not even tried. The laws1 here pro¬

vided, that the ministers should receive a twentieth of all the pro¬

duce, a charge corresponding to the old church tithes in England,

and the "centiemes” in France. These laws were, however, soon

repealed.

In almost all of the colonies, the ministers of the Gospel ob¬

tained a large portion of their remuneration from fees, collec¬

ted for both ecclesiastical and political services. They acted as

registers of births,2 marriages and deaths, and were given fees

for each registry; and, in so far as they acted in this capacity,

they were public officers. In some provinces they had power

to issue marriage licenses,3 and everywhere they were entitled

to the fees, fixed by law, for performing the marriage cere¬

mony4 and other purely ecclesiastical functions. One law even

went so far as to provide a fine, in case a larger fee was charged

than the law allowed.

The colonial schools, which existed only in the North, were

also largely supported by fees,5 6 paid by the pupils. It was at

times found necessary to appropriate money to make up the

1 “The minister shall have the twentieth calf, pigge, and kidd,” etc.

Statutes at Large , Virginia 1632, I.

2 Statutes at Large , Virginia, II, 54. Laws , New Hampshire, 1791, p.

297. Johns Hopkins University Studies, Vol. I, Parish Institutions in

Maryland.

In Massachusetts the clerk of court received 3 d. for each birth, death,

or marriage which he recorded. Colonial Laws , 1639, p. 188.

3 In North Carolina a fine of 5£ was imposed on any layman who per¬

formed the marriage ceremony in a parish where there was a clergyman,

one-half of which fine went to the clergy. Francis L. Hawks, History

of North Carolina , II, 170.

4 Fees fixed for performing a marriage ceremony, preaching a funeral

sermon, etc. Henning’s Statutes at Large , II, 55.

6 History of Taxation in Connecticut , Vol. 14, p. 66. Boone’s Edu¬

cation in the United States, p. 19. “They, (the schools) were not free,

tuition was paid for all.”

Wickhershain’s History of Education in Pennsylvania , p. 182.

112

Urdahl — Historical Survey of Fee Systems.

deficiency for those pupils whose parents were too poor to pay.

This led to regular appropriations. As the schoolmaster did

not receive enough fees for his pedagogic services to support

himself and family, he was compelled to supplement his income

from this source by serving in other capacities. In fact it was

quite customary to have him serve in an ecclesiastical, educa¬

tional, and public capacity1 at one and the same time, and for

each of these services he received fees. In this way, that is,

by holding several offices, the schoolmaster was able to obtain

a livelihood out of the few meager fees, which each position

yielded.

The relation of the fee system in colonial days to higher edu¬

cation, is an important subject which can only be touched upon.

Many license fees were early turned over to support colleges and

schools.2 In Virginia the charter of William and Mary College

provided that it should receive the fees and profits of the sur¬

veyor-general’s office, which at that time were not inconsider¬

able in amount.3 In the same spirit is an early law of Maryland

which provided that all sums received for marriage, ordinary,

hawkers’ and retailers’ licenses on the Eastern shore be applied

to the use of Washington College,4 and that all those collected

on the Western shore be applied to St. John’s College.5 6

Boone’s Education in the United States , p. 12, foot-note. The

duties of a New England schoolmaster were: (1) to act as a court

messenger, (2) to serve summons, (3) to conduct certain ceremonial services

of church, (4) to lead Sunday choir, (5) to ring bell for public worship, (6)

to dig graves, (7) to take charge of school, (8) to perform other occasional

duties.

2 Ferry between Boston and Charlestown licensed 1659. Revenues granted

to Harvard College. Colonial Laws , Mass., p. 139.

3 Virginia law of 1752 granted the receipts of peddlers’ licenses, at the

rate of 20£ for each license, to William and Mary College. Statutes, Hen¬

ning, VI, 245. Another law of 1759 reduced these fees to 3£ for each

license. Ibid., VII, 285.

ALaws, Md., 1784, Ch. 7, §§ 3, 5, 6, 8, 15.

6 Ibid., Ch. 37, §§ 22, 23, 32.

Fees in the American Colonies.

113

E. COLONIAL INSPECTION FEES.

Aside from ferry, bridge, and road-tolls, the inspection fees

were the ones which most directly touched the every-day life of

the colonist; even though they were by no means so numerous

or important as they became after the revolution. In the South

tobacco had already become the great staple, and it was early

found necessary to require all tobacco offered for sale to be in¬

spected. The first statute on this subject was passed in the

colony of Virginia in 1629. This provided that all tobacco ten¬

dered in payment of debts 1 should first be viewed and stamped

by a tobacco viewer or inspector. In other words, this law de¬

cided what kind of tobacco should be legal tender in payment

of debts. But there were other causes which led up to this leg¬

islation. Among these may be mentioned the fact that the

price of Virginia tobacco had been steadily declining in Eng¬

land, because of its inferiority to the Spanish tobacco.2 Fre¬

quent complaints were made by the merchants, who supposed that

this inferiority was largely due to the carelessness of the planters,

and as a result an attempt at tobacco inspection was made as

early as 1619. 3 Another law was passed in 1630, 4 the ostensible

purpose of which was to prevent the exportation of bad tobacco.

This was further amended in 1632, “ in order to raise the price

of exported tobacco, by improving its quality. ” 5

The same purpose is stated in the preamble of a provincial in¬

spection law of Massachusetts Bay Colony, in the following

words: “ to encourage the exportation and manufacture of the

best pot- and pearl-ashes, to secure credit abroad to our produce,

and thus displace those hitherto imported from Russia and other

foreign countries. ” 6 Provision is here made for the appoint-

1 Statutes , Henning, I, 152. Ibid., VIII, pp. 95, 223.

2 Virginia was forced to inspect tobacco because the price was continu¬

ally forced down by the poor quality. Dinwiddie, Papers , Va. Hist.

Colls., I, 38.

3 Statutes , Henning, I, 205.

4 All tobacco intended for export in Pennsylvania to be inspected (1656).-

Hazard, Annals of Pa ., p. 225.

5 Statutes , Henning, I, 190.

' Provincial Laws of Mass. Bay , III, 804-806. Similar provisions en¬

acted in New York. Laws , 1784, I, 100.

8

114

Urdahl — Historical Survey of Fee Systems.

ment of assayers of ashes, whose duty it should be to test the

quality of all ashes intended for export. Another law passed

by the same body in 1698, providing for the appointment of

searchers and sealers of leather was enacted, "for the better pre¬

venting of deceits and abuses by tanners, curriers and dressers,

or workers-up, of leather."1 A somewhat similar enactment

was enforced very early in the colony of New Plymouth.2 These

laws regarding the inspection of leathers were naturally made

necessary by the fact, that a large number of inexperienced

tanners attempted to work hides into leather, and thus flooded

the market with a worthless product. The object of this inspec¬

tion legislation was, therefore, to protect the consumers at home

against the frauds or inefficiency of the producers in this indus¬

try.3 The causes of later laws of the same character may be

gathered from the following preamble of a statute, passed by the

General Court of Massachusetts on June 21, 1710: 4 "Whereas

boards, plank, and timber are usually sold by the measure set

upon them at the mills where they are sawn, and bundles of

shingles are marked for a greater number than what they con¬

tain, wherein great fraud and deceit is too often practiced by

illminded persons, for prevention whereof . . . ” — meas¬

urers of boards and the like were to be annually elected in

maritime towns, who were required to view all lumber intended

for sale.

Many of these early inspection laws may be said to have orig¬

inated, indirectly at least, in the necessity of having official

gaugers of casks and other packages, in order to secure uni¬

formity and avoid fraud in the measurement of quantities bought

or sold. Thus we find an attempt on the part of Massachusetts,

to require the gaugers of casks and measures, not only to verify

the size of the cask or barrel of pork or beef, but also to inspect

1 Ibid., 313-314. An earlier statute dated 1641. Colonial Laws , Mass.,

p. 170.

2 Charter and Laws of New Plymouth , p. 189. Similar provision in

Mass, in 1641. Col. Laivs, p. 170.

3 Complaints were common about poorly tanned leather and shoes mad©

therefrom. Bruce, History of Virginia , II, 477, 481.

4 Provincial Laws, Mass., I, 656.

Fees in the American Colonies.

115

the contents. This new duty, placed upon the old gaugers of

casks, was not looked upon as anything new or novel, but was

designed to better carry out the purpose of the old statutes.1

In fact it was not even called inspection, in the earliest Mas¬

sachusetts laws, but seems to have been considered as a part of

the duties of sealers of weights and measures, and gaugers of

casks. But the element of inspection for some definite purpose,

soon becomes so prominent as to overshadow, to a certain ex¬

tent, the object of the old laws, resulting finally in special in¬

spection laws, entirely distinct from the enactments regulating

the sealers and gaugers of casks. As an example may be men¬

tioned the Massachusetts act of 1641, entitled “an act for the

preventing deceit of any person in the packing of fish, beef, or

pork to be put on sale in this or other jurisdictions.” 2

Numerous instances may be found in the colonial laws of any

one of the colonies, where attempts are made to insure integrity

both as to quantity and quality of goods put upon the market.

Some laws, however, are much more far-reaching, in that they

were intended to regulate the price as well.

The economic condition which must be regarded as the ulti¬

mate cause of much of this legislation, is the lack of a currency

or suitable medium of exchange. Most of the exchanges of this

period were barter, and were based on commodities rather than

money values. Tobacco especially was used as money, and was

recognized as such by law in Virginia, Maryland, and South

Carolina. Fines and penalties in many colonies were paid in

shingles, or other products; and taxes and fees were almost

everywhere levied and collected in kind. The need therefore

was soon felt, of having some public official to test and appraise

this heterogeneous currency. The attempts to regulate the

prices of certain commodities can be explained in the same way.

This was not sumptuary legislation, in the same sense that the

laws and regulations of the early Kings of France were. The

liberty-loving spirit of the colonists would tolerate no such

restraints. These laws, providing for measures of wood 3 and

1 Provincial Laws , Mass. Bay Colony, I, 50; II, 129-131.

2 Col. Laws , Mass., p. 130.

3 Provincial Laws, Mass., V, 1119.

116 Urdahl — Historical Survey of Fee Systems.

grain, gaugers of casks, inspectors of provisions of various

kinds, were intended to facilitate exchanges rather than to check

them, to stimulate and increase public and private credit, by-

furnishing greater stability to their standard of deferred pay¬

ments, and, finally, to insure certainty regarding quantity and

quality of the income of the public treasury.

It may perhaps not be evident at first sight, that there is a

vital relation between this inspection legislation and the fee

system. It was the fee system which made all this legislation

possible. These inspectors were invariable paid by means

of fees. According to some statutes half was collected from the

buyer, and half from the seller, while in other colonies the seller

was forced to bear the whole expense. This office became in

some places quite lucrative, especially in rapidly growing cen¬

ters of population. The number of commodities requiring inspec¬

tion were also multiplied, resulting very often in a proportional

increase in the number of inspectors, until at last we find every

town supplied with one or more officials of this kind.1 These

inspectors, as has already been intimated, were very often paid

by a certain allowance of the commodity inspected, and even

when the fee was reckoned in money, it was often commuted or

paid in produce. At first, therefore, it was quite customary for

the inspectors to carry on a trade in the product inspected.

This naturally opened the door for unscrupulous officials to en¬

rich themselves, by means of ail sorts of frauds and deceptions,

both in inspecting the commodities of others and in marking

their own produce. To prevent these evils laws soon appeared

forbidding, under heavy penalties, any inspector to trade in the

commodity which he inspected. Many other regulations were

also enacted to put an end to this prevalent malfeasance of office.

F. MISCELLANEOUS FEES.

Pilots were found to be necessary long before the colonies had

developed any commerce of their own; in fact, they were all the

more necessary in the early period, before the bays and channels

had been thoroughly sounded and the navigable waters explored.

1 Colonial Laws , Mass., p. 170.

Fees in the American Colonies.

117

The fees which they might be allowed to collect were therefore

early prescribed by law. But in this case the fees were regu¬

lated and fixed, not so much to prevent overcharges for pilotage,

as to provide sufficient remuneration in this occupation in or¬

der to enable trustworthy and efficient men to make it their pro¬

fession. The fees were therefore purposely made high, so as to

make them an incentive for efficient and reliable men to devote

themselves to this duty, in preference to the many other prom¬

ising fields of employment then open to them. Furthermore,

the fees had to be comparatively high, if the pilot should ob¬

tain a livelihood, because there were so few vessels to make use

of his service. But the growth of commerce resulted in an

enormous increase in the income of pilots. The old fees soon

began to appear burdensome, and finally resulted in an agita¬

tion for their reduction by law. Numerous laws followed which

attempted to establish the fees of pilots, and in various ways

to regulate the profession. South Carolina even went so far as

to pay her pilots salaries, and collect all pilot fees at the cus¬

tom house for the use of the state.1

Harbor fees 2 of various kinds were also charged at the most

important ports. At first, however, they were not collected with

any regularity. In the north these duties were usually collected

for some definite purpose, as the maintenance of fortifications

or the improvement of harbors,3 and consisted in a pound of

powder or more, according to the size of the vessel.4 In Mary¬

land the port duty was fixed at a pound and a half of powder

and three pounds of shot for each ton of burden. This was af¬

terwards commuted into a money charge of 14d. per ton. In

Connecticut5 they were collected during King George’s War for

1 Ibid., 1778, IV, 432, 184, IV, 598.

2 Statutes , S. C., 1690, pp. 51, 93; 1700, p. 173; 1702, p. 193.

3 Laics, S. C., 1785, IV, 656. Laws , Va., 1656, I, 176. Tonnage fees

levied in powder and shot according to the size of vessel.

4 Harbor fees for the maintenance of fortifications at Charlestown and

Boston were collected at the rate of 6d. per ton from all other than Eng¬

lish and Colonial vessels. The latter were required to pay only lOd. per

vessel. Col. Laws , Mass., 1645, pp. 159-160.

5 Taxation in Connecticut, Johns Hopkins University Studies , XIV,

No. 8, p. 59.

118

TJrdahl — Historical Survey of Fee Systems.

the protection of New London, and again during the French

and Indian War for the maintenance of a war ship. These port

duties were also collected for the maintenance of lighthouses,

and other maritime improvements or equipments.

The positions of searchers, surveyors, collectors, and the like,

in the more important harbors, were early known to be very

lucrative. Under the government of the province of New Neth¬

erlands and the colony of New York, the collectors of the port

of New York received a salary of 55£, surveyors and searchers

60£, comptrollers 55£, land waiters 50£, tide waiters, 30£; in

addition to which each received a large amount of fees.1 In

many harbors wharfage fees were also collected. In Massachu¬

setts these were graded in amount according to the nature of

the commodity placed upon the wharf.2 In 1752 Virginia col¬

lected lighthouse fees at the rate of 2d. per ton from all vessels

entering the Chesapeake, for the maintainance of her light¬

houses.3

Many other kinds of fees were .from time to time collected,

but their importance lies mainly in the fact, that they are in

many instances the forerunners of later charges. As an ex¬

ample, may be mentioned the fees for assessing and collecting

taxes, which in the early period formed part of the perquisites

of the sheriff or other judicial officer.4

G. COLONIAL FEES AND POLITICAL LIBERTY.

The inhabitants of the English Colonies of America did not

suddenly become conscious of their political rights in 1766.

The doctrine that “ taxation without representation is tyranny”

had in its essence been discussed and asserted for nearly a cen¬

tury. The stand which was taken in 1765 was the result of nu-

1 Civil List , N. Y., 1887, p. 179. In 1679, Miller, the collector of customs

of North Carolina, is said to have collected $5,000 in cash and thirty-three

hogsheads of tobacco in six months. J. W. Moore, History of North

Carolina , p. 23.

2 Colonial Laws , Mass., 1647, p. 147.

3 Statutes , Henning, VI, 228.

4 The Attorney General of the province of New Netherlands acted in the

double capacity of attorney general and sheriff. Civil List , N. Y., 1887,

p. 176.

Fees in the American Colonies.

119

merous contentions with the various governors over the fees of

office which these could legally collect. The conclusion of each

of these disputes left the people more conscious of their politi¬

cal rights, and led to stronger demands for their recognition.

No one of the colonies has been entirely free from struggles of

this kind. Under proprietary governments the governor was

continually tormented by the proprietor to find lucrative places

for the latter’s friends and connections. The fees and perqui¬

sites which these favorites collected in North Carolina, became

in time so unbearable as to result in an open quarrel between

the two houses of the legislature. The lower house representing

the people finally won the day, and passed an act in 1762 regu¬

lating the fees of office which might be collected by the ap¬

pointees of the Governor. A similar struggle took place in

Maryland, over an act passed by the legislature providing that

the port duty, which up to that time had been collected by the

Governor, nominally for the support of the forts and fortifica¬

tions, should be granted him by law, but should not be levied as

his prerogative. The preamble of this act stated “ that it was

not their intention to deprive the governor of an honorable sup¬

port, but only to assert and maintain for themselves, their con¬

stituents and posterity, that principle and most essential

branch of liberty to which they conceive themselves entitled

as subjects of Great Britain, of not being liable to the payment

of money, tax, impost or duty, except such as shall be war¬

ranted, raised, and assessed by the laws of the province.”1 A

similar dispute arose in 1754 regarding the so-called duty

on ordinary licenses which the lower house claimed as public

revenue.2 The history of every other colony presents numerous

instances of this kind. The citizens of Massachusetts were re¬

peatedly opposed to their governors on the question of fees of

office or other prerogatives, while New York, after a long ser¬

ies of contests on just such questions, finally succeeded in mak¬

ing the governor amenable to the legislature, both in his ap¬

pointments and in the collection of fees of office. Liberty-loving

1 MacMahon, History of Maryland , p. 179-180.

2 Ibid., p. 298.

120

Urdahl — Historical Survey of Fee Systems.

Vermont rose in open revolt against the right claimed by her

governor to collect extortionate land patent fees.1

These objections were not made all at once, but were raised

against certain specific fees, which had become especially bur¬

densome. Being thus led, unconsciously almost, to discuss and

formulate their privileges as opposed to the prerogatives of

the crown and the governor, the colonists gradually evolved the

principles which were afterwards laid down in the Declaration

of Independence. Furthermore, these disputes tended to keep

alive the spirit of liberty, and kept the colonists alert to pre¬

vent infringement upon their rights, causing them at times even

to seize upon and overthrow old established prerogatives and

perquisites. It is for this reason that we see the colonial gov¬

ernors, in spite of their aggressiveness, constantly losing ground

to these persevering frontiersmen.

The final struggle, which resulted in the achievement of Ameri¬

can independence, was but a repetition of the protests which

had been made again and again, against the imposition of ex¬

tortionate and unauthorized taxes under the guise of fees. It

came about in this way: No direct taxes had been imposed on

the colonies by Great Britain up to 1765. Plantation dues

and duties had been levied, but these were merely for regula¬

tion of trade. Having learned from past experience that Eng¬

lishmen were likely to object to new direct taxes, the ministry

determined to use a method of obtaining revenue that had been

successfully employed in the home country, namely, by levying

the taxes under the guise of fees. They pretended that the new

stamp charges were of the same nature as the payments for

postal stamps.2 These stamp taxes were, as a matter of fact,

not very heavy; indeed, they were much less burdensome than

1 For an account of the struggle over the “ pistole ” fee for land patents

in Virginia, see Dinwiddie’s Papers , I, pp. 44-47, 363.

2 Dowell, Taxation in England , II, 147. “ Is not the Post Office, which

they have received, a tax as well as a regulation? ” was asked of Benjamin

Franklin. He replied: “No, the money paid for the postage of a letter,

is not in the nature of a tax. It is merely a quantum meruit for a serv¬

ice done. No person is obliged to pay money if he does not choose to re¬

ceive the service. He may employ a special messenger if he likes. . . .”

Fees in the American Colonies.

121

many of the so-called fees, which had repeatedly been submitted to

in England. But the colonists refused to concede that the stamp

charges were payments for regulation. The result of this was

the American Revolution, which terminated, as every one knows,

in American Independence.

H. GENERAL CHARACTERISTICS OF THE FEE SYSTEM IN THE

COLONIES.

The most striking features of the colonial financial system is

that the greatest part more or less of the revenue was derived from

fees, inasmuch as all offices were self-supporting. There was

scarcely an official who did not charge and collect for his own use

fees of one kind or another. The “ social contract ” theory of

the state, which was commonly accepted for a time, really had

some foundation in the actual colonial conditions. Service and

counter-service was the theory on which the entire method of

remunerating public officials was based. It worked very well

for a time, that is, during the primitive period; but as soon as

the population became dense, and the amount of business to be

performed by public officials increased, opportunities for fraud

set in, which lead to the substitution of the salary for the fee

system. Another characteristic of the colonial period, which

belongs to all truck economies, is the fact that fees were paid

in kind, that is, in cattle, tobacco,1 corn, powder, shot, and so

on. Furthermore, the undifferentiated state of the public serv¬

ice made it possible for one person to hold several offices at the

same time, and, by means of fees from each, to eke out enough

to make a fair compensation.

The early colonial fee-system contains the germ from which

the modern fee-system developed. Conditions were such that

but few license and inspection fees were necessary, and harbor2

and pilot fees were in their infancy ; while court fees were well

1 A law was passed in Virginia to allow those who did not raise tobacco

to pay their fees in money.

2 Fees of shipping officers in Mass, ports in 1663: For taking bond, 5s.;

receiving and entering certificate, 2s. 6d.; for giving and recording certifi¬

cate, 2s. 6d. Colonial Laws , p. 223.

122

Urdahl — Historical Survey of Fee Systems.

developed, owing to the fact that they were taken directly from

the English system of jurisprudence. Finally a ferment, in the

form of dissatisfaction, was present which was destined to lead

to the gradual abolition of the fee system, as a means of direct

remuneration of public officials.

CHAPTER VI.

FEES IN THE EARLY COMMONWEALTHS (1787-1830.)

A. GENERAL TENDENCIES.

The revolution does not represent any definite break or divid¬

ing line in the development of the fee system. The increased

industrial and political activity of the decades following the

war, forced to the front the necessity of state regulation of vari¬

ous matters, which necessity had not been felt during the colo¬

nial days. The political self-consciousness of the individual

commonwealths, which was particularly strong during this

youthful period, manifested itself in more direct state interfer¬

ence with the affairs of individuals than in any succeeding

epoch. In general the individual state (commonwealth) was the

important political unit, to which all eyes were turned. This

often exercised its authority directly, without the use of the in¬

termediate political units, in the form of the city, county, and

township organizations, so often employed at the present day.

The individual citizen was then likely to meet or violate a state

law or state regulation at every turn; while now it is the mu¬

nicipal ordinances with which men come in most direct contact.

Local and special laws therefore were the order of the day in

every legislature. State regulation and state activity in one

locality required one schedule of fees to pay all expenses, and

in another locality a different rate.

The Early Period in the United States. 123

There is perhaps no body of legislation which so regularly

affects the economic conditions of the time and locality as the

early laws prescribing regulations involving fee payments. Uni¬

formity in legislation was not aimed at in that day. The per¬

iod may most appropriately be called the “Era of special legis¬

lation. ” Each individual ferry and toll bridge had a separate

and distinct tariff of fees prescribed by the legislature. The

pilots in one port or river were granted one scale of fees, while

those in a different harbor were given another schedule. The in¬

spection fees were at times made high or low according to the

character and location of the inspection office. General laws, es¬

tablishing fees or charges of various kinds, came later. Even the

court fees were at times made higher in one district than in an¬

other. The fee-regulations of the Federal Government had the

same characteristics. One schedule was applied to one port, and a

different one to another. The marshals of some localities were

allowed to make certain charges, while in others different rates

were fixed, because of the differences in population and econo¬

mic conditions.

B. SOME NEW LICENSE I EES.

One state after another resorted to the licensing of lotteries

and sometimes even to state management of them.1 Fees were

also charged for permission to sell lottery tickets. In the same

way we find the New York legislature in 1802 making a pro¬

vision for licensing the occupation of peddlers,2 which up to

that time had been a forbidden pursuit; while the southern

states had, from the earliest colonial period, not only licensed

and regulated hawkers and peddlers, but even derived consid¬

erable revenue from this source. Also the licenses to maintain

billiard tables were required very early in the South, while in

several New England states that privilege was not granted till

the beginning of this century. In all the states, however, such

licenses were granted directly by some commonwealth official,

and the fee paid therefor was for the use of the state, and not

^cMaster, History of the American People , I, 588.

2 Same provision in Mass. Laws , 1799, 1, 243.

124

Urdahl — Historical Survey of Fee Systems.

to the municipalities, as is customary at present. In 1806 1 the

Massachusetts Court of General Sessions passed an act giving

power to certain state officials to grant theater licenses, which

had been forbidden up to that date.2 The voice of the munici¬

pality was moreover beginning to be recognized; as is seen in

the fact that the license should only be granted on the recom¬

mendation of the selectmen of the town.

The key to the whole situation lies in the fact, that the ob¬

ject of all legislation in this period was to make the fee-collect¬

ing offices self-supporting, and still not allow the officials to re¬

ceive more than a fair compensation for their services. This

almost impossible task necessitated frequent changes to corres¬

pond to the growth in population and industry in each locality.

In general it may be said, that the only common characteristic

of the fee legislation of the different states during this period, is

the tendency of the states to perform services directly in the

interest of the public, which are indirectly a benefit to individ¬

uals, and to collect fees for such services. This extension of state

activity manifests itself in one direction in one state, and in a

different one in another. No general category of the fee-system

can be said to have originated in the period, although every

state introduced new regulations and collected fees which were

new, as far as the individual commonwealth was concerned.

C. DIFFERENTIATION IN ADMINISTRATIVE MACHINERY.

Prior to the Revolution many of the states had no adminis¬

trative machinery for assessing and collecting taxes, or for per¬

forming many other public functions necessary to the existence

of the modern commonwealth. Some of them attempted to uti¬

lize the judicial machinery which they had, to carry on the new

adminstrative functions. The sheriff is thus the tax collector in

a few Eastern States even to this day. But as taxation became

more and more important, it was found necessary to make the

tax collector a distinct public official. In the same way the as-

1 Laws , Mass., II, 150.

2 Statutes, S. C., 1817, par. 9. p. 384. Charleston may charge not less

than $500 for theater licenses.

The Early Period in the United States.

125

r-essor often became an indispensable official in the apportion¬

ment and collection of local taxes. These, as well as the town

and county treasurers, became, as a rule, fee-paid officials.

Most of the new states in the West have made them part of

their political machinery from the very beginning, and have con¬

tinued to remunerate them by means of fees down to the present.

The only difference is, that the rates have been lowered as

the amounts to be collected have increased.1

A comparison of the fee-system of this period with that of a

later epoch, demonstrates very clearly, how “division of labor”

in public affairs has almost kept pace with that of industrial

undertakings; and, furthermore, brings to light the regular

differentiation which has been going on in all public offices.

The attorneys’ fees allowed by law in 1788 in New York, in¬

cluded many semi-official charges which now are paid to recorders,

clerks, sheriffs, newspapers, and the like. This shows that the

attorney at that time performed many of the functions of these

officials; in other words, the duties of the attorney have been

gradually more and more narrowed and limited in various

ways. As an example of this may be mentioned the fact that

the public official known as the “ Schout Fiscal ” was entrusted

with almost every conceivable duty except judicial decision in

the early colonial courts of New York. He combined in himself

the power of public prosecutor and the executive duties of

sheriff.2 The same will hold of almost every official of that day

when compared with his modern successors.3

1 An example: South Carolina paid her tax collectors 7 34 per cent, of

the amount collected in 1803, while in 1813 the rate was reduced to 334 per

cent. Laws, 1813, VI., 712.

2 History of the Court of Common Pleas in New York , J. W

Brooks. New York, 1896, p. 10.

3 The secretary of state of N. Y. was at first also commissioner of the

land office, of the canal board, clerk of the council by appointment, clerk

of the board of regents of the state university, etc. The speaker of the

House of Burgesses also held the position of treasurer of the colony.

Binwiddie Papers, Va. Hist. Col., I, 73.

126

TJrdahl — Historical Survey of Fee Systems.

D. RELATIVE IMPORTANCE OF SOME OF THE EARLY FEES.

The conditions existing in the earlier settlements made some

legislative enactments have greater significance than they have

at present. The modern method of building durable fences

so rapidly and cheaply, for example, had not been invented.

Large commons, where cattle were turned out to pasture, exist¬

ed in all the original states. The owners of cultivated fields

were therefore in some localities compelled by law to fence

them. This often meant an enormous amount of work, and

even after the fields had been fenced, cattle would at times

break through the inclosures; in such cases the question of

damages resolved itself into whether the fence was legal or not.

Fence-viewers were therefore appointed in almost every county

to inspect and pronounce upon the various fences in dispute.

These officers were usually paid by fees which were of no minor

importance in the estimation of the colonists. An examination

of any of the early statutes will show a large percentage of acts

which relate to the subject of preventing swine from running

at large. Now one township, now another is brought under

this interdiction. After such an act had been passed, all swine

found at large were liable to be impounded and held by the

pound master until his fees were paid. Poundage fees were

thus no insignificant item to the early farmers, for the same

reason that at present they are of considerable importance in

the more newly settled agricultural districts of the West.

E. INSPECTION FEES.

The legislation which most distinctly manifests the tendency

toward state intervention on the part of the early common¬

wealths, is the inspection laws of this period.1 These, many

of them, had their origin in the economic needs or necessities of

the colonial period. The people were living in a truck economy.

The scarcity of money made it necessary to pay debts in com¬

modities. Under such circumstances it was just as much to the

Maryland required the inspection of hides, leather, lime, lumber,

shingles, plaster of Paris, flour, salted fish, coal, etc. Laws , 1813-1832.

The Early Period in the United States.

127

advantage of the buyer as the seller to have the commodities in¬

spected. Tobacco 1 was therefore subject to the most rigorous

inspection law, and one state even attempted to regulate the

amount which should be grown in order to prevent fluctuations

in price. Without such inspection, a debtor might pay his

debt with a very inferior grade of tobacco, while on the other

hand the creditor might refuse to accept the best brand of to¬

bacco for any assignable reason. The same is true in regard to

the other commodities.2 Debts were paid in any one of the

many staples. The inspection of these may be compared to the

government assaying of the precious metals in the older coun¬

tries. The inspection of other articles originated in the exten¬

sive export trade of each state; especially in the north, where

the articles which came under the inspection laws were largely

those which constituted the exports. Thus we find pot and

pearl ashes3 subject to rigid inspection in many states; salted

fish, beef, pork, flour, and many other commodities were very

early made subject to compulsory inspection. The fact that peo¬

ple were accustomed to the inspection of some articles made it

easy to extend the system of compulsory inspection to other

commodities. Lumber, hoops, shingles, grain, bark, leather,

hides, and many others, were added to the list which required

the mark or brand of the public inspector before they could be

sold. In the south the inspection laws affected pitch, tar, tur¬

pentine, tobacco, flour, lumber, spirits; in short, all the chief

staples.

Not only the inspection but the gauging and measuring of

commodities was required to be done by a public official, who

received fees for his services. This brings up another subject

which was of fundamental importance to the early common¬

wealths, that is, the regulation of weights and measures. The

Federal Constitution 4 provides that Congress shall have power

1 Account of tobacco inspection. Bruce, Econ. Hist. Va., I, 304.

2 Shingles were used to pay fines . Ibid., II, 158.

3 Ashes was the most important form in which the American forests

were utilized for export. Laws. Mass., 1807, II, 901-928. Laws , New

Jersey, 1821, R. S., p. 1043. Laws, N. H., 1785, p. 389.

4 Federal Constitution , Art. I, Sec. 7.

128

Urdahl — Historical Survey of Fee Systems.

to fix the standards of weights and measures; but Congress has

never done so. The individual states therefore adopted and en¬

forced their own standards. Some of them made the sealer of

weights and measures a state officer, while others attached the

duties and emoluments of the office to some other state office.

Besides the state sealer, there were subordinate county sealers,

all of them paid by fees collected from those who had their

scales and measures tested. To provide further against the use

of fraudulent scales, it was enacted that dealers should have

their instruments of measurement sealed at stated intervals;

which resulted in considerable pecuniary gain to this office. )

It is noticeable that a large number of these and similar fees

were paid for services performed by the government to protect

the public, and more especially the consumers, against fraud on

the part of the seller. These regulations, which to us seem al¬

most superfluous, were at that time very necessary, because of

the imperfection of competition. The buyer was as a rule al¬

most helpless against the frauds of the seller. No way was

open to him to detect or avoid imperfection in the scales or

measures, unless the government gave him the means. Adultera¬

tions and goods of inferior grades might be imposed upon him

with impunity, unless there was an inspection law to which he

might appeal. Oppression, fraud, discrimination against the

weak, were the evils which were feared, and which many of

these laws attempted to guard against. The fees were payments

for real services to the seller as well as the buyer. The seal of

a public inspector added pecuniary value to the goods, while to

the buyer it was a valuable safe-guard against fraud and adul¬

terations.

F. REGULATION BY MEANS OF LICENSES.

Some states found it necessary to regulate the legal profes¬

sion, and at a very early date prescribed examinations and the

payment of license fees before admission to the bar was granted.1

Laws against over-charges by attorneys were not uncommon,

1 Laws Mass., 1803, II, 735. Admission to court of Common Pleas,

$20; admission to practice in Supreme Court, $30; degree of Barrister at

Law, $40.

The Early Period in the United States.

129

while one state required every attorney to pledge himself before

the license could be issued, not to charge illegal or extortionate

fees. Physicians1 became amenable to law, in that some states

required license fees, and prescribed examinations for all who

desired to practice medicine.

In short, license fees and regulation by means of license, be¬

came extremely common in the early part of the century.2

Auctioneers,3 pawnbrokers, retailers of various kinds,4 victual¬

lers, innkeepers, and others were placed under supervision, but

perhaps most important of all were the liquor licenses.5 These

were employed in all the states to regulate the establishments

in which liquor was sold. The charges vary from a merely

nominal fee to a considerable sum. Some commonwealths even

had a classified system of licenses ; among others may be men¬

tioned the beer license, wholesale liquor dealers’ license, retail

liquor license, for each of which a distinct fee was charged. In

the early history of the country it was customary for the

country grocer to sell liquor as well as provisions, which led to

the establishment of the license regulations for groceries in

general.

It should be borne in mind that liquor legislation and the

license system is a distinctively American development; al¬

though England has had almost the same experience, which has

resulted in similar regulations, still our system is not taken

1 In New Jersey, physicians for vaccination hospitals were required to

furnish bond for 1,000£ before they could obtain license. Act, 1789, Feb.

3, p. 302. The Massachusetts Medical Society was given power to exam¬

ine and license candidates, and to fix fees therefor. Laws, 1796,

par. 6, 42.

2 Broker’s license fee of $5, originated by an early Governor of Maryland.

Laws, 1818, Ch. 10, §1. Ibid., Lottery ticket broker’s fee, $500. Hawkers’

and peddlers’ license fee, $40. 1819, Ch. 184, §6.

3 South Carolina license fee, from $25 to $175. Statutes, XV, 797.

4 Pennsylvania venders of domestic merchandise, $20. Laws, Penn.,

1830, p. 387.

5 In Baltimore, liquor in quantities of 10 gal., fee $12; retailing generally,

fee $16. Laws , Md., 1827, Oh. 117, par. 2. New Hampshire beer-bottler’s

license, for first class fee, $75; second, $50. Laws, N. H ., 1814,

par. 148.

130

TJrdahl — Historical Survey of Fee Systems.

from England. Each of the original states, almost without

exception, passed through all the stages in the evolution, which

as has already been shown, may be roughly outlined as follows :

The bad effects of the unrestrained sale of liquor soon became

manifest; to remedy this, power was given to some public

officials to restrict the number of places where liquor might be

sold. From this it is but a step to a written license. Soon a

small fee is charged for the use of the licensing body. Little

by litle this fee is increased until it becomes the license charge

as we know it today. Before 1830 the liquor licenses were all

of them moderate, rarely exceeding $50 in amount, and usually

much less.

G. ROAD TOLLS, ETC.

After the colonies had recovered from the immediate effects

of the revolutionary war, a period of intense industrial activity

and prosperity set in, as is manifested by the enormous increase

in the number of internal improvements and other improve¬

ments and other enterprises. Pennsylvania was the leader in

road and bridge building. In this state 168 turnpike companies

and 61 bridge companies were incorporated1 between 1792 and

1828. The other states were progressing along the same lines.

Almost every legislature passed some special act incorporating

bridge and road companies, or granting ferry privileges. Many

of these undertakings were so large, that state aid was neces¬

sary if they should be successfully completed. Pennsylvania

alone subscribed over two million dollars to turnpike, bridge,

and canal companies in less than twenty years.2

Most of these improvements were not built by local political

bodies, for the free use of the people, but were speculative in¬

vestments for profit. The investors expected, in almost every case,

to recompense themselves, not only for the interest on the invest¬

ment, but also for the capital itself, out of the tolls to be col¬

lected for the use of the improvement. Some of the charters 3

1 Worthington, Finances of Pennsylvania, Amer. Econ. Assn. Publ.,

p. 20.

2 Ibid., 21.

3 1797, 20th session, p. 454. License granted to Anthony Dobbins to run

a stage from Goshen to New York.

The Early Period in the United States. 131

fixed a scale of maximum fees or tolls 1 which might be collected,

and in a few cases provided for a revision and reduction of the

same, after a certain number of years had elapsed. But the law

fixing the fees for each ferry, bridge, or toll-road, was not lived

up to in all cases, or was easily evaded, on account of the loose

wording of the special acts. The result was the continuation of

petty discriminations and annoyances of various kinds, due to

favoritism or antagonism of the toll collecting body to different

individuals. It was but natural that protests against these over¬

charges and frauds should begin to pour in upon the various

state legislatures; for protests of this kind were not uncommon,

even in the colonial period. In consequence, the legislatures usu¬

ally attempted to regulate the ferry and bridge companies, by fix¬

ing more detailed and elaborate schedules of rates and prescribing

penalties for their violation.2 But apparently the abuses con¬

tinued; for the laws of the period after the revolution fairly

bristle with special enactments regulating this, that, or the

other toll collecting company.

The problem which those early legislatures had to solve, was

exactly the same as the railroad problem of today, only on a

smaller scale. The abuses of that day, as shown by the com¬

plaints, were in miniature the very same as the complaints

against the railway companies at present. If history repeats

itself, the final solution of this early problem may point to a

similar treatment of the problem of today.

As has been stated, the early commonwealths tried regula¬

tion of various kinds.3 At first the right to establish ferry or

post roads was, as a rule, granted by the legislature for nothing;

soon, however, this power of issuing ferry licenses began to be

transferred to local authorities, the legislatures prescribing the

method and manner in which the grant should be made. Us¬

ually a bond for a certain amount was required for the enforce-

1 Act, Mass., passed in 1817, Rev. Stat. , 1836, p. 338.

2 These tolls collected by private companies were not fees. Their signifi¬

cance lies in the fact that they became fees when the state or municipality

took the roads out of private hands. Sometimes, also, they became license

fees, because the abuses practiced by the toll collecting companies led up

to regulative legislation of this kind.

3 Laws of New Hampshire , 1791.

132

Urdahl — Historical Survey of Fee Systems.

ment of the law regulating ferries. Thus we find in New York

laws, passed at the eighth session, a regulation to the effect

that “ each ferry license should be granted Jlor an annual rental, ”

which was in its essence a license fee. The law prescribed

what tolls should be collected besides numerous police regula¬

tions. Soon the power to make all these regulations was trans¬

ferred to the local authorities. Then comes the inauguration

of the great movement which has resulted in public ownership

of highways and bridges, but which is not yet completed as

regards ferries. The change from private ferries to free public

bridges has however been carried out wherever the cost has not

been too great.

H. TONNAGE DUTIES IN THE NATURE OP FEES.

It is the state tonnage duties of this period 1 that reveal most

clearly the dependence of the early commonwealth on colonial

institutions. These were duties, levied with the consent of

Congress, on vessels entering certain harbors or water-courses,

and were, originally at least, intended as payments for the use

of improvements made or to be made in such rivers or harbors.

They were, perhaps, only partially in the nature of fees, because

they were at times levied to pay for improvements which were

about to be made. The service would only be actual, in case

the vessel returned to the harbor, and in that way received

benefit from the improvements. The significance of these duties

lies in the fact that they illustrate how the states had been ac¬

customed, while they were colonies, to pay for their harbor im¬

provements in this way. So very naturally they resorted to

the same methods after the Union had been formed, although

the federal constitution expressly prohibited it.2 These charges

all disappeared, as soon as the federal customs and tonnage

duties became firmly established.

1 R. I., 1790, to deepen channel at Providence; Mass., 1798, to improve

the Kennebeck River; Pa., 1805, to improve the Delaware River; Va., 1804,

1826, to improve the James River; N. C., 1824, to improve Appatomax

River; Ga., 1787, to improve Savannah River; Md., 1783, to improve Balti¬

more Harbor; Md., 1793, to improve harbor and pay health officer of har¬

bor.

2 The constitutionality of these duties was not questioned because the

consent of congress was obtained in each case.

The Middle Period in the United States.

133

CHAPTER VII.

THE MIDDLE PERIOD. 1830 TO 1865.

A. GENERAL CONSIDERATIONS

Beginning with the administration of President Jackson the

United States entered upon a period in many respects the most

remarkable in the history of the country. In a certain sense it

may be called the beginning of the industrial development, or

the industrial revolution, of the New World. Mighty strides

were made in all branches of learning and especially in the in¬

dustrial arts. The most wonderful inventions 1 were applied,

and machine production on a large scale began. Towns in¬

creased enormously in size 2 and importance so that city ques¬

tions were forced to the front. Gradually one power after an¬

other was turned over to municipalities, until they held in many

respects almost the same position as fee-collecting institutions,

that the states held in the earlier epoch. The legislature, to be

sure, fixed the maximum and minimum amount which might be

charged; but the towns had the power to fix the charge, within

those limits, and to grant licenses or to refuse them. These

municipal privileges were granted much earlier in a few isolated

instances,3 but the movement did not become general.

B. LICENSE REGULATIONS AND FEES.

As a result of the rapid growth of the cities the liquor ques¬

tion came into prominence, and high licenses were introduced

1 Telegraph, 1837; cheap postage proposed by Hill; steam propulsion,

etc., etc.

2 The percentage of total population living in cities increased from 6.7

per cent, in 1830 to 20.9 per cent in 1870. U S. Census.

3 Mayor and Aldermen of Hudson granted power to license taverns. Fee

not to exceed 16s per year. Statutes, N. Y., 13th sess., p. 195-196. Annapo¬

lis, Md., given power to regulate ordinaries and retailers of liquor. Laws ,

1784, Ch. 49. City of Washington given the same power, also the power to

license and regulate wharfs. Laws , Md., 1784, Ch. 45, § 12. Georgetown

granted similar powers. Ibid., 1799, Ch. 85, § 2.

134

Urdahl — Historical Survey of Fee Systems.

not only to regulate the sale of liquor,1 but also for permission

to carry on various other occupations. Maryland required

licenses to be taken by keepers of cook-shops or taverns, peddlers,

and others. The fees were collected partly for regulation but

largely for revenue. An attempt to vary the size of the fee ac¬

cording to the amount of stock 2 was inaugurated as early as

1828. This same idea was applied roughly to the charges for

peddlers’ licenses in New Jersey, in that a peddler on foot was

required to pay only eight dollars, while one with a horse was

charged fifteen dollars.3 Pennsylvania was almost the first to

extend her license system so as to include a very large number

of industries. Brokers of all kinds, venders of foreign and do¬

mestic merchandise, sample agents, and many others were

brought under its requirements.4 Pursuits in which fraud was

most likely to be practiced, were charged a higher license fee

than others. But there is no uniformity in the different states

in this respect. Each law was passed usually under pressure of

circumstances.5 The conditions of one state brought the abuses

of one pursuit to light, while another at the same time felt the

need of regulating a different occupation.

Shows, theaters, and circuses had become of far greater im¬

portance than at any previous period. This is manifested by

the number of acts which regulate and license these amuse¬

ments,6 also by the fact that the license fee is slowly increasing

1 Liquor license in Maryland from twelve to fifty dollars. Laws , 1832,

Ch. 26.

2 Laws, Ind., 1828, Ch. 85.

3 Statutes, N. J., 1816.

4 Law, Penn., 1830, p. 387. Much of this later license legislation was

unquestionably directed toward raising revenue, and was in essence taxa¬

tion; but its importance in this connection lies in the fact that it originated

as pure license fees. During the period under consideration, many of the

license charges possessed all the characteristics of pure fees. The license

and business taxes which became very common in the South, were radi¬

cally different, although they too originated, indirectly at least, in license

fees.

6 In some states clock -peddlers were charged no license fee, while in Penn¬

sylvania thirty dollars was charged for each. Ibid., p. 39.

6 Statutes, N. H., 1850, Ch. 971; Md., 1841, Ch. 194; Penn., 1850, p. 147.

The Middle Period in the United States.

135

in amount.1 The importance of the large cities is here again

recognized by the fact, that a higher fee was collected for these

licenses in the great towns than in small ones.

C. THE DEVELOPMENT IN INSPECTION PEES.

The system of inspection continued to be elaborated and en¬

larged in such a way that new articles were continually added

to the list coming under this requirement. Furthermore, new

and more complex schedules were made of the old inspection

fees. Many of these early laws were designed to protect the

consumer, and forbade the sale of uninspected articles. This

provision was soon found to be too onerous to some producers,

and as a result inspection laws were made applicable largely

only to articles intended for export.2 Sometimes, however, a

few products, which were deemed especially liable to adultera¬

tion or deception as to quality, were in some states kept under

compulsory inspection; as, for example, in Pennsylvania, flour

intended for sale,3 in South Carolina, turpentine.

To understand fully the significance of these state export in¬

spection laws, it is necessary to bear in mind that the export

trade had not become centralized in a few great ports as it was

later on. Cheap transportation other than by water was not

even dreamed of. Every state which had any seaboard at all,

carried on its own export trade, instead of sending its products

to New York or other great ports, as is customary at present.

Each little harbor drained, as it were, the products of the ter¬

ritory surrounding it. It was not American pork and Ameri¬

can wheat that was quoted in European markets, but it was

New York flour, Virginia tobacco, Carolina pitch, and so on;

each state became in a sense responsible for the quality of its

own goods. It is then not difficult to understand why each

state laid so much stress on the inspection of its own products

1 Laws , Penn., 1845, p. 532.

2 Compulsory inspection, except of exports, was abolished in New York

in 1845. Laws , Ch. 202, Par. 1. In North Carolina provisions, cotton,

turpentine, tobacco, lumber, and the like, were required to be inspected

before exportation. Laws , 1856, Ch. 27.

3 All timber sold must be inspected. Laws , S. C., 1856, XII, 580.

136

Urdahl — Historical Survey of Fee Systems.

intended for export. The exporter was not only required to

pay a fixed fee for each quantity of goods inspected, but in some

cases was compelled to buy a certificate stating that the entire

cargo had been inspected, before the vessel could obtain its

clearance papers.1

Facilities for ascertaining the weight and measure of articles

bought or sold, were not as yet in the possession of the masses.

The increasing amount of buying and selling which was done

by means of comparatively few scales and instruments of meas¬

urement, presented a fine opportunity for large profits by means

of fraudulent instruments. A sealer of weights and measures to

test regularly the accuracy of all scales, was therefore an eco¬

nomic necessity. The services of this official were directly in the

interest of the owner of the scales, because his instrument re¬

ceived the official sanction and approval. It was therefore not

unjust to require him to pay the inspection fee. With the

growth in population the number of scales multiplied very rap¬

idly. As a result the number of sealers required was very much

greater, and the amount of fees paid to these became of more

importance.

D. NEW INSPECTION FEES.

The industrial progress of the community shows itself most

directly in the canal and railroad building, and the employment

of steam in navigation. As a result of the imperfections of the

earlier built engines, their use was not so safe as it has since

become. Railway, steamboat, and other accidents were very nu¬

merous, due to boiler explosions or fires caused by the applica¬

tion of steam as a means of propulsion. Lives were lost in

large numbers; steamboats went down with all on board; rail¬

road holocausts were frequent; all of which resulted in pressure

for legislation to protect the lives of the public against the sup¬

posed carelessness and greed of transportation companies. The

states2 therefore stepped in and passed acts making railroads

responsible for injuries received in railroad accidents.

1 Laws of New Hampshire, New York, and of other states.

2 Massachusetts took the lead, followed by the other NewEngland states,

and by New York and Pennsylvania before 1850; while the North-

The Middle Period in the United States.

137

But the states could not regulate steamboats engaged in inter¬

state or foreign commerce, because this power was given to

Congress by the Constitution. A bill was therefore introduced

in this body, and passed in 1850, providing for United States

steamboat inspectors, whose duties should be to test all boilers,

inspect the boats, and see that the required number of life-boats,

life-preservers, and the like were carried. As a compensation

they were allowed to collect fees from the boat owners for each

inspection.

E. LATER FEES AS COMPARED WITH EARLIER FEE SCHEDULES.

A comparison of the tables of fees of the middle period with

those in force in the colonies, shows not so much a reduction in

the size of the various fees as an attempt to put all charges in

round numbers, in other words, to charge such amounts as

would seem most convenient and customary for the public to

pay. A comparative study of the early schedules of fees seems

to show that there was an attempt to compute accurately, in

dollars and cents, the cost of the various services performed by

public officials; while the later fee-bills appear to be attempts

to approximate roughly the cost of the service, rather than to

really measure it. If we glance at the numbers in an early fee-

law, they run as follows:* 1 5, 17, 25, 34, 13, 19, 42, 67, 50, 85,

etc., while a later statute of the same kind would show the

following figures: 40, 25, 50 cents, $1, .50, .20, etc.

This would seem to indicate a regular increase in the amount

of the fees, but a general statement that such is the case can¬

not be made. There may be a very decided increase in one

state or in one part of a state, while in another there may be a

decided decrease. A further explanation of some of the odd

numbers in the earlier schedules is the fact, that the colonial

fees were expressed in pounds and pence and, in the earlier

laws, these were simply translated into their American money

equivalents.

western states all passed similar laws between 1850 and 1860. Rhodes,

History of the United States, II, 18.

1 Statutes, Conn., 1796.

138

Urdahl — Historical Survey of Fee Systems.

F. NEW STANDARDS OF MEASUREMENT.

In course of time new standards of measurement are intro¬

duced. Recorders’ fees were, as a rule, so much per folio.

“Folio,” however, is an ambiguous term, of which the recorders

were not slow to avail themselves; and, as a result the states

one by one passed acts defining its meaning.1 Peddlers’ license

fees soon become graded according to the amount of goods which

were carried, and also according to the nature of the goods

sold.2 Liquor licenses are made to vary in some states accord¬

ing to the number of kinds of liquor sold on the premises; in

others according to the quantity sold at the time; and in still

others according to the value of the stock,3 or the rental value

of the premises, and so on. In billiard table licenses there is

usually a smaller charge for the second table on the same prem¬

ises than for the first. In a few states the charge for inspec¬

tion is slightly lower if there is a large quantity of goods in¬

spected at one time, than for small quantities.

G. INCORPORATION FEES.

Another set of fees, which may be said to be a direct result

of economic conditions of the middle period, are the payments

which have been designated by the general term, “ incorpora¬

tion fees. ” These are, in a certain sense, one of the few sur¬

vivals of the ancient Regalia, or lucrative prerogatives, which

belonged to the sovereign. The right of incorporation was at

first simply one of a large number of franchises4 granted by the

King. In common law the words “franchise” and “liberty”

are synonymous. Blackstone defines a franchise as a “royal

privilege, or branch of the king’s privilege, subsisting in the

hands of a subject.”5 It may be “vested” he says “in natural

1 Some states fix 100 words to the folio; others 80, and so on.

2 First there is one charge for all peddlers’ licenses; then there is a

higher charge for a license to peddle with a horse; then the charge is

further increased for license to peddle with two horses, and so on.

3 Pennsylvania adopted the system as early as 1840.

4 Blackstone mentions as franchises the right to have a manor, to hold

court-leet, to have lordship, to hold estrays, to use royal fish, and so on.

5 Blackstone, II, 37.

The Middle Period in the United States.

189

persons or bodies politic.” The most common of all franchises

came to be the grant of corporate existence, with which were

coupled other rights, such as the right to take tolls on high¬

ways, and similar privileges. In the United States most of the

other franchises dropped out of sight, and to the popular mind

the word usually means a privilege to use highways, or streets

for some purpose or other. It is thus clear, that it is a last

remnant of a large number of grants which were formerly made

by sovereignty. The first American franchises were granted

to turnpike, bridge, and ferry companies, usually by special

charters. No charges or fees were collected for the earlier ones,

and even after the applications for charters became numerous,

charges or payments of any kind were rare.

But with the increasing value and earning capacity of these

corporations, whose activities the charters made possible, the

tendency becomes general to impose charges, which are virtually

payments for the right to exercise those privileges. A careful

study of conditions will show that the special benefit conferred

on individuals through these various charters, were at first so

small that the grant might well be made for nothing;1 especially

since the public was oftentimes largely benefited by the enter¬

prises which were thus put into operation. Later on, however,

the special benefits conferred by the charters were very valua¬

ble, and a moderate payment was simply a slight remuneration

for the privilege given.

There are a few general causes which may be said to have

led up to, and brought about the general incorporation laws of

this period as contrasted with the early special laws. In the

first place, the grant of charters and other corporation privi¬

leges degenerated into acts and laws which were passed by

means of political chicanery and intrigues. Indeed, to such an

extent was this carried that politicians made it a business to

obtain charters of such a general character, that they could be

1 The early charters for water companies in the state of Connecticut,

known as acqueduct companies, were in reality for co-operative corpora¬

tions of farmers secured for the purpose of supplying themselves with

water. No fees were paid for these charters. These are in one sense the

precursors of the modern water-supply companies.

140

Urdahl— Historical Survey of Fee Systems. .

used equally well for any kind of a corporation.1 When ob¬

tained, these franchises would be sold to anyone wishing to buy.

In this way a bill might be passed without debate or delibera¬

tion which would be instrumental in creating corporations with

powers and privileges dangerous to the general public.

In the second place, it was a period of intense industrial

activity. Corporations were needed everywhere to carry on the

railroad and canal-building, shipping and other industrial en

terprises. Finally, the decision of the Supreme Court in the

Dartmouth College case, holding that the privileges granted

away by means of these special charters could not be altered or

resumed by subsequent legislation, led up to constitutional

amendments reserving power to the state to alter and amend

all charters. All these things may be said to have been the

causes that brought about general incorporation laws prescrib¬

ing the method of procedure which a body of persons must follow

in order to become incorporated. Comparatively few states,

however, had reached this stage before the war.2

The significant part of most of these general incorporation

laws is the fact, that a regular incorporation fee is charged,

small in amount at first, but gradually increasing until it be¬

comes the fee which is at present known as franchise taxes,

charter fees, incorporation charges, and by many other desig¬

nations. A little thought will convince anyone that the char¬

ters were not obtained for nothing, even when they were

granted by special acts. Very often more than the amount at

present paid as fees, had to be expended in one way or another

to secure the passage of the special act. In one sense it may

therefore be said that the general law took the fees out of the

politician’s pocket, and turned them into those of some public

officer and sometimes into the public treasury.

1 The notorious Credit Mobilier owed its existence to a charter obtained

in this way.

2 Connecticut passed a general incorporation law in 1845. A New Jersey

incorporation law dates back to 1811.

The Federal System.

141

CHAPTER VIII.

THE FEDERAL FEE-SYSTEM.

A. PATENT AND COPYRIGHT PEES.

To the public generally the best known system of fees col¬

lected under the federal laws, is undoubtedly that connected

with the National Patent Office. This office is one of the insti¬

tutions which were conceived and established by Jefferson in

1790. Before that date some of the states had by legislative

acts granted patents and copyrights for short periods of years,

but none of them had any complete system.1 True to the ideas

then current, that fees should pay salaries directly, and should

only be sufficient to make the public institutions self-support¬

ing, Jefferson made the patent office fees very low, and al¬

lowed all of them to be collected as salaries by the patent office

officials.2 But the receipts were found to be inadequate to pay

expenses; so in 1793 a law was passed which increased the fees

to six times the former amount. This continued in force up to

1836, when a new act was passed which provided that patent

officials should be paid salaries, and that all the fees collected

should be paid into the treasury. The Patent Office fees re¬

mained about the same for United States citizens, but foreign

applicants were compelled to pay much larger sums for patent

rights.3 Provision was also made for the right to extend the

the life of a patent, and a fee of forty dollars was to be col-

1 Statutes , N. Y., p. 274; Copyright act, 1777. Massachusetts patents,

1639; Colonial Laws , p. 182.

Governor and council have power to encourage inventions in Pennsyl¬

vania. Laws , Duke of York, p. 251; charter of Province of Philadelphia.

2 Jefferson’s schedule was as follows: Filing petition, 50 cents; filing

specification, 50 cents; making out patent, $2; affixing seal, $1; endorsing

and delivering, 50 cents.

3 Statutes at Large, U. S., V, 513. Citizens of Great Britain, applica¬

tion fee, $500; any other country, $300; citizen U. S., $30; caveat, $20; ex¬

tension of patent, $40; appeal from examiner’s decision, $25.

142

Urdahl — Historical Survey of Fee Systems.

lected for each extension. This schedule remained in force up

to 1861. Congress then passed an act which reduced most of the

old fees by one-half, but enlarged the fee bill so as to require

payments for official acts which up to that time had been free.1

The discriminations against foreigners were also repealed.

With slight changes this schedule has remained in force up

to the present. New duties are gradually taken over by the

patent office, because the sphere of invention becomes broader

with every new discovery in science, and the technicalities of

patents and patent rights become more complicated. New fees

are therefore constantly being introduced to pay for the more

elaborate and thorough examination which must be taken in the

interests of the patentees.

The copyright law has been subject to less change than the

patent law, and the fees have remained uniform almost from the

beginning. The first act, passed in 1790, fixed the copyright

fee at fifty cents, and provided for a re-issue on payment of an¬

other fee of the same amount. These charges continued un¬

changed in all the subsequent acts, except that a recent law has

taken all the fees out of the Librarian’s salary2 and required

their payment into the treasury.3

B. CUSTOM HOUSE AND OTHER IMPORT FEES.

The very first law levying import and tonnage duties made

provision for the payment of all officers connected with the cus¬

tom house by means of fees. Surveyors, weighers, gaugers, in¬

spectors, and collectors, each had their own fees defined by this

early act of 1787. Clearance and entrance fees for ships were

1 Ibid., XII, 246, each caveat, $10; each original application, $15; issuing

each original patent, $20; each application for reissue, $30; each ap¬

plication for extension, $50; recording assignments, etc., extra.

2 Revised Statutes, U. S., 1891, p. 951.

3 The applicant for a copyright is required to deposit two copies of his

book with the librarian, the cost of which may in one sense be reckoned

as a part of the copyright fee. There are, however, other fees collected

by the librarian, which are not absolutely necessary to the validity of the

copyright. As such may be mentioned a fee of fifty cents for each copy of

the certificate; and one of a dollar for recording the assignment of a copy¬

right.

The Federal System.

143

varied according to the tonnage. For ships of less than one

hundred tons, the fee was one dollar and a half, while all ships

of over one hundred tons were required to pay two dollars.

Payments were also made for permits to land goods 1 2 and for

each bond procured. In 1789 the coasting and fishing trades

were put under special regulation ,J by means of licenses, for

each of which a fee of fifty cents was collected; and in addition

a fee of ten dollars was charged for each certificate of enroll¬

ment. Foreign vessels were placed under similar restrictions

and compelled to pay for any privileges granted them. This

schedule of fees continued in force for two decades,3 when it was

decided to vary the amount according to the importance of the

port of entry, and a salary was added to the fees of office in

some of the Northern and Northwestern ports. A decade later,

in 1831, an act was passed which required all the fees collected

in the Northern custom-houses to be paid into the treasury, and

placed the customs officials of that section on a salary. Up

to 1864 most custom house officials of the Atlantic sea-board

received as compensation all the fees collected at their respective

offices. The enormous sums which some of these positions

yielded finally became known, and as a result Congress passed

an act 4 making $9,500 the maximum amount which any collec¬

tor should be allowed to retain, and providing that any excess

above this amount should be paid into the treasury. These pro¬

visions, however, did not prove satisfactory. So in 1879 a new

law was enacted which provided a schedule of fees to be exacted

from all who had dealings with the customs service. These

multitudes of fees, consisting usually in small vexatious exac¬

tions, were in many cases inadequate to compensate the officers

concerned, except in the busy ports where they aggregated

enormous sums. One of the sections 5 of the last named act pro¬

vided fixed salaries for naval officers, collectors, and surveyors

of the chief ports. There was no reason why this provision

1 In 1887 the fee for each permit was twenty cents.

2 Revised Statutes , U. S., I, 704.

3 Ibid., Ch. 107, par. 7, 1822.

4 Ibid., XIII, 134.

5 Section 23.

144 Urdahl — Historical Survey of Fee Systems.

should not have been extended to all the other officers con¬

nected with the customs service, specially since action to this

effect had been repeatedly recommended by the secretaries of the

treasury. 1

The tariff law of 1890, known as the McKinley bill,2 abolished

ail fees exacted for oaths except so far as provided in the act

itself. It also placed all officers on salaries equal to the amount

of fees which each would have been entitled to receive for his

services during the year. This was a step in the right direc¬

tion, but only a very small one, as the salaries were left just as

indeterminate and unclassified as ever.

C. LICENSES TO VESSELS.

In 1864 a new standard was adopted for estimating the fee or

charge for each permit or license to vessels, in that the fee was

was made to vary from twenty-five cents to one dollar, accord¬

ing to the tonnage of the vessel. Fees for permits to vessels

belonging to foreigners were fixed higher than those of citizens

of the United States. Then came an act in 1871 fixing the li¬

cense fee at twenty-five dollars for a vessel of one hundred tons

burden, and charging five cents extra for each ton over that

limit. The same change is noticeable in the fees which were

allowed for measuring vessels.3 Similar standards are applied

to boat inspection fees. The first law4 on this subject was en¬

acted in 1838, and fixed a fee of five dollars for the inspection

of any vessel, and the same for each boiler inspection. In 1852

vessels were divided according to tonnage into four classes5

ranging from one thousand tons to less than one hundred and

twenty-five, the fees varying from thirty-five to twenty dollars.

This schedule remained in force up to 1884, when inspectors

were paid salaries ; and the fees, which were fixed at ten dollars

for a vessel of less than one hundred tons and fifteen cents extra

for each additional ton, were collected for the treasury.

1 Report on Collection of Duties, Secretary Manning, 1895.

2 Statutes , U. S., 131, sec. 22.

3 Acts , 1790, Ch. 34, sec. 44; and 1864, Ch. 83, sec. 45.

4 Statutes at Large , 1838, V, 304.

5 Statutes , U. S., 1852, V, 73.

The Federal System.

145

D. MISCELLANEOUS MARITIME FEES.

Numerous other fees were from time to time collected for li¬

censes to carry on maritime and other pursuits. Wreckers and

pilots were compelled to obtain licenses at a cost of five dollars

besides a fee of one dollar for each annual renewal of the same.1

In 1864 this charge was increased to ten dollars for each license.2

A few years later the captains, mates, and engineers were placed

under the same requirements.3 From 1872 shipping commis¬

sioners 4 were allowed a fee of two dollars for each man engaged

by them for a crew and fifty cents for each certified discharge.

This law was modified in 1884 in such a way that all the fees

of the shipping commissioners were required to be paid into the

treasury.5

E. COURT FEES.

Most of the inferior officers of the Federal courts were, until

quite recently, allowed to retain some or all of the fees con¬

nected with their respective offices ; nor had any serious attempt

been made to reduce the income derived from fees to any fixed

amount, until the act of 1853, by which the allowance of deputy

marshals was limited to seventy-five per cent, of the fees earned

by them.6 This was followed by an act requiring marshals to

give an account of all fees collected, which finally resulted in

the act of 1878 fixing the maximum compensation of United

States marshals at $6,000, to be paid out of the fees earned

after the office expenses had been deducted. The clerks of the

United States Courts have continued to receive fees as salary

down to the present; and only slight changes have been made

in the original bill regulating their fees, for the most part in

increasing the number of acts for which fees might be collected.

United States district attorneys7 have also received the fees col-

1 Revised Statutes , U. S., 1853, 73.

2 Statutes, U. S., 120.

3 16 Revised Statutes , U. S., 473.

4 17 Ibid., 278.

• 22 Ibid., 8. 23 Ibid., 59.

6 Ibid., 1853, X, 161.

1 1bid., 1789 and 1791; district attorney paid salary and fees.

146

TJrdahl — Historical Survey of Fee Systems.

lected for their services almost up to the present. It is only with¬

in the last year these positions have become salaried. The ter¬

ritorial court officials still receive many fees for numerous serv¬

ices which are usually performed by other officers in the states.1

For example, fees for marriage licenses, recorders’ fees, and the

like are still received by them.

F. LAND OFFICE FEES.

It is in the Land Office that we first see the government

change from a fee-system of compensation to a salary system.

The prospects of gradually increasing government land sales

made it evident, that the fees in many offices would greatly

exceed the legitimate compensation for the work performed;

and it was equally evident that no adjustment of the schedules

could bring an equilibrium between work and pay about. So,

as early as 1818, we find an act which gave the land office regis¬

ters and receivers an annual salary of $1,500, besides one per

cent, of the money collected by their respective offices; pro¬

vided, however, that no salary should exceed $3,000 per annum.

But even this provision made a position in the land office of a

rapidly growing state exceedingly desirable. Hence in 1859

another act2 was passed which limited the salary of registers

and receivers to $2,500 in Western, and $3,000 in the Pacific

states. The land office fees constituted a very large part of

the original price of the land.3 In the Pacific states the fees were

thirteen per cent, of the total price, in some of the others they

constituted eleven per cent., and in many cases even more.

When the surveyors’ fees are added to these, one can realize

what an important item in the cost of the public land these fees

were. It must be borne in mind also that the fees had to be

paid, even though the land was obtained by pre-emption, by

tree claim, or in any other manner. The land office fees have

at times been used by unscrupulous officials as instruments for

1 Ibid., p. 96.

2 Statutes at Large , XI, 378.

3 Schedule in 1869: 160 acres of land at $1.25 per acre, commission $18;

80 acres at $1.25, commission $9; 40 acres at $1.25, commission $7; 80 acres

at $2.50, commission $18.

The Federal System.

147

carrying on some of the most notorious and fraudulent land

swindles, to the injury of actual settlers.

G. MISCELLANEOUS FEES.

The consular and diplomatic offices collect each year certain

fees for passports, consular papers, and other services. Orig¬

inally these formed part of the salary1 of the consul or minister,

as did the fees collected in the consular courts; but in 1860

these officials were required to account2 for all fees received in

any way in the exercise of their judicial authority.3 Many of

the fees were diminished in amount and some of them entirely

abolished by the act of 1891. Postmasters were also paid orig¬

inally by means of fees; and a remnant of the old system exists

even today, in the fact that the salary of postmasters in the

small towns depends upon the average receipts of their respec¬

tive offices for the four years preceding. As far back as 1845

an attempt was made to limit the compensation of these officials

by an act which provided that none of them should retain more

than $5,000 per year including his salary. Any excess should

be accounted for and paid into the treasury. This act was soon

superseded by the present law. Other fees regulated from time

to. time by Congress are the municipal fees of all kinds in the

District of Columbia. Fees for liquor licenses and for licenses

to innkeepers, peddlers, and many other occupations have been

fixed and changed again and again by Congress. One act which

very well illustrates the tendency of changing from fees to reg¬

ular salaries, is that of 1842, which expressly prohibits any

police official in the District of Columbia from receiving any

gift, fee, or emolument other than his regular salary.

The spirituous liquor, or excise licenses, as they are called,

and the industrial licenses of the war-period were not fees, but

taxes pure and simple. They were levied mainly for revenue,

and were essentially the same as the other indirect taxes of

this period, because no real privileges or services of any kind

were granted in return for their payment.

1 Revised Statutes, I, 255.

2 12 Statutes at Large , p. 75.

3 Revised Statutes, U. S., XIV, 226.

148

Urdalil — Historical Survey of Fee Systems .

CHAPTER IX.

THE EVOLUTION OF THE FEE SYSTEM AS SHOWN BY THE

STATE AND FEDERAL STATUTES.

The foregoing treatment of the changes in the Federal fee

system, illustrates incidentally a tendency which manifests it¬

self in the development of almost every state or municipality in

the United States. This tendency is to pass from a primitive

fee-system to a salary system. The forces which make this

change necessary and desirable, lie in the economic conditions

of a rapidly growing and progressive community. In a static

society, a society in which neither wealth nor population are in¬

creasing, the fee-system of remunerating public servants may,

with effectual supervision and wise administration, continue for

any period of time without resulting in either needless expense

or fraud of any kind. But in a progressive community, like

any one of our large cities or even states, it has been impossi¬

ble so far to frame any system or schedule of fees which will be

economical and still not be unjust to the fee-paid officer. A

purely clerical office in a city may, with a certain schedule of

fees, yield $5,000 this year; and next year, on account of the

rapid growth of the city or a revival in business, it may yield

five times that amount, or because of business stagnation, pro¬

duce only a small fraction of it. If any schedule should be made

absolutely just, it would require that the fees be adjusted to eco¬

nomic conditions each year by men who could forecast accurately

the future and take into consideration all possible changes and

chances. Such conditions are Utopian. No legislature or

county board can foresee how much business a district court is

going to have in a certain year. Fees, especially those of local

officers, when once fixed are not likely to be changed very soon.

The inertia of such legislation is very great; all the political

forces are against it. The growth of population may cause a

certain position to yield fabulous sums within a very few years.

This continues until some scandal reveals the true condition of af-

Evolution of Fee Systems in the United States. 149

fairs to the public, and arouses it so that it overcomes the in¬

ertia and obtains a revision of the law. But it is almost im¬

possible to invent a fee bill for an office which has been yield¬

ing $50,000 a year so as to make it yield only $5,000.

The easiest way for legislation to accomplish its pur¬

pose is to place the office on a salary and require the old

fees of the office to be turned into the treasury. At any rate,

such has been the trend of fee-legislation. The Federal legisla¬

tion reflects the movement more decidedly than that of the

states; still a careful investigation of the laws of any state will

show the same tendency. The legislation of one state for a

short number of years may not reveal such a change; but

taken all together the laws of any state show a more decided

tendency away from the fee system of compensating officials

than would seem possible to a superficial observer. There is no

regularity in the movement among the different states. One

legislature passes an act requiring the fees of one office to be

turned into the treasury, and another legislature makes the same

law applicable to a different office. At long intervals we find

acts which are almost revolutionary in character, in that they

are made applicable to a large number of officials.1

The individual laws are not the result of a general theory or

force of any kind, but are as a rule passed under pressure of

actual local or special conditions. In some cases aggravating

frauds and over-charges, in others considerations of public

economy constitute the motive power; but, whatever be the

immediate causes, the results show by the very fact of their

generality, that the indirect cause lies in the fee system itself.

There is, however, another method by which this tendency and

its consequences may be easily brought to light. This is by a

comparison of the number of salaried officers or the common¬

wealth’s pay-roll, as it may be called, with the unsalaried or

fee-paid officials at different times. A comparative study of

this kind shows very clearly how one by one the fee-paid offi¬

cials are transferred to the salary list. Allowance must, how¬

ever, be made for those cases in which the office fees are

abolished entirely instead of being turned into the public

1 Statutes , N. Y., 1839, Ch. 338, sec. 3.

150

TJrdalil — Historical Survey of Fee Systems.

treasury. On the other hand, this comparison will not repre¬

sent adequately the change; because the number of fee-collecting

offices has increased, owing to the differentiation in public

functions which has already been explained.

Furthermore, the transference of political functions and con¬

sequently of fees, from state to municipal bodies, has been very

general in all parts of the country. But even after all due

allowances are made, the evidence is everywhere very strong to

show that the salary system is gradually gaining ground, and

that in time, if the movement continues, it will displace the

fee-system. This does not mean that the fee-system is likely to

disappear entirely. It simply means that more and more fees

are required to be turned into the treasury instead of being

absorbed by the officers collecting them. It is a movement

toward economy in the management of public affairs which is in

line with all the ideas of the age.

CHAPTER X.

THE EVOLUTION OF THE FEE-SYSTEM AS REFLECTED BY THE

AMERICAN CONSTITUTIONS.

No series of public documents can be found which can serve

as a better index of the sober, conservative public sentiment of

the United States taken as a community, than the national and

state constitutions. A study of the provisions which may be

found in the state charters and constitutions, and which relate

directly or indirectly to the fee-system, from the first settle¬

ment down to the present day, better than anything else shows

the questions which were most important in the minds of the

framers of the constitution. Besides, each state constitution would

naturally reflect that part of the fee-system which in that par¬

ticular locality demanded regulation.

Evolution of Fee Systems in the United States.

151

Taking up the constitutions and charters in this way, we find

in the early charters no reference to the fee-system whatever,

with the exception of provisions to the effect, that judges and

chancellors shall receive and collect no fees other than those

fixed by law. Such a provision was contained by six of the char¬

ters and constitutions of the last century, and by seven of the

constitutions framed after 1800. 1 This shows that the early

colonists attempted to guard against the extortions which they

had experienced in England, and that they feared the power of

unscrupulous judges. This provision was especially significant

in the Charters, because the judges were appointed by the

Crown. Other provisions in these early charters were to the effect,

that the fee-bill of judges should be posted in conspicuous

places;2 that the Justices of the Peace should charge no fees ex¬

cept those allowed by law;3 and that no clerks of court should

be allowed to colleet any fees except those fixed by law.4

As soon as the colonies had achieved their independence, new

questions began to show themselves in the constitutional pro¬

visions concerning fees. The people had come to the conclu¬

sion that the judges would perform their functions better, if

they were in no way interested financially in the cases to be ad¬

judicated; and so by special act the legislatures had already

in many cases placed the higher judges on salaries instead of

fees. To prevent any return to the old system, a provision was

inserted in most of the constitutions 5 adopted after the Revolu-

1 Va., 1776; Vt., 1777, Sec. 23; S. C., 1776, Art. 24; Penn, 1683, Art. 9, and

1776, Art. 2, Sec. 30; Md., 1776, Art. 52; Ohio, 1851, Art. 4, Sec. 14; N. C.,

1828, Art. 3, Sec. 15; Neb., 1866, Art. 4, Sec. 6; La., 1845, Art. 71; Ark.,

1836, Art. 6, Sec. 8; 1864, Art. 6, and 1865, Art. 7, Sec. 19.

2 Constitution , Pa., 1683, IX.

3 Pennsylvania, 1776, Art. II, Sec. 30.

4 Arkansas, 1836, Art VI, Sec. 8.

5 The following is the order in which this provision appears in the con¬

stitutions of the several states: Pa., 1776, Art. 2, Sec. 23; Tenn., 1796,

5, 3; Del., 1792, 6, 3; Ohio, 1802, 4, 14; Ala., 1819, 5, 11; Me., 1820, 5, 2;

Mich., 1835, 6, 2; Fla., 1836, 5, 5; N. Y., 1846, 6, 21; Ill., 1848, 6, 16; Cal.,

1848, 6, 11; Wis., 1848, 4, 10; Va., 1850, 6, 14; Kans., 1859, 3, 15; Ore., 1857,

13, 1; Nev.. 1864, 6, 10; La., 1846, 78; Ga., 1865, 4, 3; Md., 1862, 4, 37; S. C.,

1868, 4, 9; Neb., 1866, 4, 7; Tenn., 1870, 6, 7; Ark., 1874, 6, 8; Col., 1876,

0, 18; Mont., 1889, 8, 30; Id., 1889, 5, 15; S. D., 1891, 5, 30.

152

Urdahl — Historical Survey of Fee Systems.

tion to the effect that the judges of the Supreme and Superior

courts should not be allowed any fees or perquisites of any kind.

As time went on, judges of other, and lower, courts were placed

on salaries and forbidden by statute to collect fees; and the con¬

stitution makers enacted this provision into permanent law.

One state adds the judges of probate court to the list of salaried

magistrates, and another state some other class of judges, until

the transfer is complete. The later constitutions have a provi¬

sion to the effect that all judges shall pay into the treasury the

fees collected and receive salary as compensation.1

This movement which is almost completed as regards judges,

is only at its beginning with the court officers such as court

clerks, constables, and the like. But some constitutional con¬

ventions have already taken the bold step of providing that no

public court officer, with the exception of justices of the peace,

shall receive for his own use any fees or perquisites whatever,

but shall be paid a salary fixed within certain limits by the leg¬

islature. Other states will follow this example, and it is but a

matter of time until this reform is completed.

Other provisions in the state constitutions show another

movement, which is quite as striking as that just mentioned.

This is the movement which has resulted in placing most of the

state officers on salaries instead of fees. It originated in some

of the colonies, by requiring the governor to turn the license

fees into the treasury, and little by little the’other fees and per¬

quisites were taken away from him. This change, however, came

about a half a century later than that concerning the judges.

One or two constitutions provide that the governor shall

receive no fees for his own use,2 but they say nothing about the

other state officers. Georgia by a constitutional provision

placed her attorney-general on a salary in 1782, and in 1798

added her state-treasurer and surveyor-general to the list. No

other constitutions had any provisions concerning this subject

until that of California in 1848, which placed the governor,

lieutenant-governor, secretary of state, comptroller, attorney-

1 Kas., 1859, Art. 3, Sec. 15; Md., 1867, 4, 37; Pa., 1873, 5, 13; Col., 1879,

4, 19; Ala., 1875, 6, 10.

2 Md., 1867, Art. 2, Sec. 21; Me., 1863, Art. 5, Sec. 6.

Evolution of Fee Systems in the United States.

15 3

general, treasurer, and surveyor-general on salaries and forbade

them to receive fees.1 After 1863 a provision to the effect that

state officers shall turn the fees of office into the treasury becomes

quite general, especially in the West.2 A few other provisions

of diverse tendencies are to be found; but they are as a rule

isolated instances, and do not illustrate any general movement.

A few Western constitutions are of special significance, because

they have attempted to regulate the fees of all county officials. 3

1 A few constitutions take the fees away from only a few state officers,

viz. : La., 1879, Sec. 77; auditor, secretary, and treasurer. Ala., 1875,

Art. 5, Sec. 25, ditto.

2 Constitution , Ore., Art. 13, Sec. 1; S. D., 1891, 21, 2; N. D., 1891, 3,

84; Nev., 1864, 17, 14; Neb., 1875, 5, 24; Mont., 1889, 7, 4; Md., 1874, 5,

24; Mich., 1850, 9, 1; La., 1879, Sec. 77; Ill., 1870, 5, 23; Id., 1889, 4, 19;

Fla., 1885, 4, 21; Col., 1876, 4, 19; Cal., 1879, 4, 19; Ark., 1874, 19, 11.

3 See pp. 186-189, seq.

154 Urdahl — The Present Fee System in the United States .

PART II.

THE FEE SYSTEM AS IT EXISTS AT PRESENT.

To obtain an adequate conception of the present character of

the fee-system in the United States, it is necessary to keep con¬

stantly in mind the economic background, or setting, as it were,

of the legislation concerning those public functions and activi¬

ties which invoke fee-payments. Laws and regulations by them¬

selves mean almost nothing, unless they are supplemented by a

knowledge of the conditions under which they exist. The ab¬

sence of slavery is by no means the most important character¬

istic of the epoch which begins at the close of the war. The

great industrial forces, although many of them were in opera¬

tion before the war, had not become so powerful that their in¬

fluence could be felt and observed as easily as it could be after¬

wards. Production on a large scale did exist to some extent

during the “Fifties;” but concentration of production as we

know it to-day, was impossible until the modern transportation

facilities had been developed. The great trans-continental and

other railroad systems were all of them built immediately be¬

fore or after the war; and were, in one sense, the direct causes

of the expansion of markets from purely local to national limits.

This market expansion made the development of enormous in¬

dustrial centers possible. These two factors, namely, the ex¬

pansion of markets, and the growth of cities, form the key, or

rather the cause, of much of the fee legislation enacted dur¬

ing the last forty years. Another great factor to which may

be traced, either directly or indirectly, most of the remaining

fee-legislation, is the wonderful expansion and development of

the West.1 This expansion brings to the front new issues and

new subjects requiring regulation, many of which involve the

payment of fees of one kind or another.

1 The indirect causes and other elements of this expansion are of little

or no significance to the subject in hand.

Inspection Fees .

155

CHAPTER I.

MODERN INSPECTION FEES.

A. INSPECTION FOR PROTECTION TO THE CONSUMER.

It is, perhaps, obvious that under the designation “Modern

Inspection Fees ” are meant only those fees which are collected

in accordance with inspection laws passed in modern times.

An examination of the laws of any state, will reveal the exist¬

ence on the statute books of a large number of laws which were

enacted comparatively early in the history of the country. It

is also self-evident that these do not as a rule represent the

tendencies of the present ; on the contrary, they are often “ dead

letters,” which have not been repealed because no laws have

been needed to displace them. Taken as a whole, the post

helium inspection legislation may, with a few exceptions, be

said to represent an entirely new movement, or tendency. The

articles which the earlier laws required to be inspected, were

largely agricultural products in a more or less crude state;

while the articles for which the modern laws provide inspection,

are generally manufactured products. Of these, however, only

those which are most easily adulterated, and whose adultera¬

tions are most likely to result in injury to public health or

safety, are placed under any restriction whatever.

1. Oil Inspection: First and foremost in importance is the

inspection of oil or petroleum, if we may judge by the number

of states which have deemed it necessary to enact compulsory

oil-inspection laws. The oil-inspection legislation probably or¬

iginated in the frequent explosions and consequent fires due to

the inferior quality of the oil at first put upon the market.

The modern oil-inspection laws may roughly be said to begin

about 1880. A few instances1 may be found earlier, but the

subject did not become of much importance until the great

1 Inspection law , Ind., 1863, 3 Stat. 370, p. 27. Rev. StaL, Mo., 1879,

par. 5848.

156 Urdahl — The Present Fee System in the United States.

American oil fields had been discovered and exploited. Indeed,

it is the aggressiveness and power of the Standard Oil and

other companies, in keeping up the price and lowering the

quality of the oil, which may largely be considered the

cause of the later legislation on this subject. The consumption

of oil increased enormously, until it became a necessity to

everybody; and as the quality gradually deteriorated, popular

discontent made itself felt in the form of legislation prohibiting

the sale of any oil below a certain quality. Public oil-inspect¬

ors were provided, usually by appointment, whose compensa¬

tion consisted in fees fixed in amount by law. In general these

were determined by the quantity offered for inspection at the

time, usually a certain number of cents per barrel. Many states

make the fees regressive in amount, in that the charge per

barrel decreases as the number of barrels inspected at the time

increases, from forty cents for a single barrel to ten or fifteen

cents if over ten barrels are inspected at one time;1 while one

state provides that the inspector shall be paid by the hour.2

The other state laws on the subject fix the fee per barrel, rang¬

ing in amount all the way from ten to twenty-five cents, with

no reduction for large quantities.3 Nebraska pays its oil in¬

spectors fixed salaries. Minnesota requires all oil-inspection

fees to be paid into the treasury, and other states limit the

amount which an inspector can receive as his official income to

a certain maximum.

2. Commercial Fertilizers : Another instance of compulsory in¬

spection for the protection of buyers or consumers is that of

commercial fertilizers. The importance of these to agriculture

and the opportunity for fraud, by means of adulterations and

imitations, which their manufacture offers, has led many states

1 Laws , Kan., 1882, Ch. 180, par. 5; Minn., 3889, Ch. 246, Sec. 2; Ohio

66, Vol. 117, par. 4; N. D., 1890, 107, par. 4; N. M., 1893, p. 118; Md.

1881, p. 571; Fla., 1893, p. 88, one cent per gallon for less thanfive gallons,

one-fourth of a cent for more than 5,000 gallons.

2R. I., 1896, p. 449.

3 la., 1896, Ch. 195, par. 4, 10 cts. per bbl. ; Mich. 1881, p. 43, 16cts. per

bbl.; Ark., 1883, Sec. 6-10, 25 cts. per bbl.; Wis., 1883, Ch. 156, 10 cts. per

cask; N. D. 1890, p. 219, 10 cts. per bbl.; Ga., 1880, p. 153; S. D., 1890,

p. 219, 10 cts. per bbl.

Inspection Fees.

157

to require official inspection or analysis before they can be sold.1

This is another case where an attempt is made to protect the pub¬

lic, not against adulterations of farm products, but against

adulteration of manufactured articles. One state requires the

manufacturer to buy a certificate of analysis from the state

chemist, at a cost of fifteen dollars, and to purchase

official labels stating the results of the analysis, to be attached

to each package sold.

3. Lime , Baling Powder , Gas Meters , and other articles :

Almost in line with the foregoing, may be mentioned the state

inspection of lime, which is at present compulsory in a few

commonwealths.2 The same purpose is manifest in the inspec¬

tion of gas-meters, which is made compulsory in some states,3

while many cities also have the power to require, and provide

for, the inspection of this article. Inspection of saleratus and

baking powder is of the same character, and is already made

compulsory in several states.

All of the fees mentioned in the preceding, and many others,

demonstrate the fact that it is manufactured products, as a

rule, which are deemed most liable to adulterations and other

frauds. It is the products of urban or collective labor that

most require the intervention of the state for the protection of

the consumer. In earlier years it was flour, beef, pork, and the

like about which the legislator was most concerned. It is true

that a few inspection laws have been passed since 1865 which

affect provisions in general; but, with one exception,4 they can

be found only in the older states, which have simply revised

and elaborated their old laws. The Western states included in

the Mississippi valley, which represent the tendencies of pro¬

gressive America more accurately, perhaps, than any other sec-

1 Laws, Me., 1895, Ch. 91, fee $20; Mass., $15 per ingredient; Ga., 1869,

p. 6, 25 to 50 cents per ton; Tenn., 1889, Ch. 226, par. 3, 50 cents per ton;

Fla., 1889, Ch. 858, 25 cents per ton.

2 Me., 1875; R. I., 1869, p. 113; Del., 1861, 30 cts. per carload.

3 Cal., 1885, par. 582, fee $2.50 for each meter; Conn., 1886, Ch. 169, $1;

Ohio, do.; Nev., 1877, par. 202, $2.50, to be paid by the user.

4 Ohio has quite an elaborate inspection law, passed in 1876. See code

of 1887, p. 170.

158 Urdahl — The Present Fee System in the United States.

tion, have none of them, so far as can be discovered, passed

any general inspection law affecting provisions, cr agricultural

products in general.

B. INSPECTION FOR THE BENEFIT OF THE PRODUCER.

Such a statement as the above may seem erroneous to one

who knows that many Western states have compulsory grain-

inspection and similar laws; but the grain-inspection laws of

the West have an entirely different purpose from the old in¬

spection laws. Their purpose is to protect the seller and not

the buyer. They are aimed at frauds and discrimination prac¬

ticed by the great elevator companies against the producers

or farmers. These companies in purchasing would very often

represent first-class grain to be of the second or third class,

and pay only third-class prices. The farmers generally would

have no means of protecting their interest, because no other

buyers were within reach. Much of the ware-house legislation

which attempted to fix the ware-house fees, had the same

purpose, namely, to protect the interest of the farmer or

seller against the buyer, who was usually the ware-house man.

The oleomargarine legislation is very similar in its aims and ob¬

ject. It is enacted not so much to protect the consumer as to

protect the dairjunen against a certain kind of competition.

Most of the regulations mentioned originated in the West,

and are a result of the opening up of its great resources and

the expansion of its population, both of which were made pos¬

sible by the improved transportation facilities. The old prob¬

lem, which consisted iu preventing the sale of inferior or un¬

marketable goods, has almost disappeared, primarily because

competition has become so much more perfect. The question of

determining quality or value is no longer important, as buyers

and sellers are in general more nearly on an equality than was

the case earlier.

C. INSPECTION FOR POLICE REGULATION.

The character of frontier life, or rather the form of industry

which is best suited to some of the Western states, is responsi¬

ble for the change in the significance of another class of inspec-

Inspection Fees .

159

tion fees. In the early states hides were very often inspected

to ascertain whether they were marketable or not. Some of the

Southern and Western states have adopted laws almost exactly

similar to the early enactments. They provided for regular

inspectors, whose duty it was to inspect all hides before they

were sold or exported, and who were allowed to collect fees for

such inspection.1 Stringent provisions were made to prevent

ranch owners or other individuals from shipping any raw hides

before they had been inspected. But though the early and later

laws are much alike, still their purposes are widely different.

The inspections under the later laws are not so much to ex¬

amine and pronounce upon the quality of the hides, as to ascer¬

tain the brand or mark. In other words, they are police regu¬

lations to prevent concealment of the theft of cattle in shipping

the hides of slaughtered animals.

But there are a large number of other inspection fees which

are paid for purely police regulations. Of this character may

be mentioned those due for the inspection of steamboats 2 and

boilers;3 of vessels by health officers;4 of mines;5 of build¬

ings; of halls used for public purposes;6 of sheep and cattle7

brought into a state, and examined with the view to prevent the

introduction of contagious disease; and many other regulations

of this nature. It is worthy of notice that this kind of regula¬

tion is on the increase; but, as a rule, the public welfare is so

deeply involved, that it is often deemed advisable to pay the

inspector out of the public treasury. 8

^ev., 1871, par. 118; Tex., 1876,301, par. 25; Fla., 1889, Ch. 389, par. 1;

Col., etc.

2 Cal., 1885, I, Sec. 582; Me., 1876, Ch. 148, par. 4; and others.

8 Conn. 1886, Ch. 129, fee $5.

4 Louisiana, fee for vessel of 7, 000 tons, $30; for less tonnage, $20; for

brig, $15.

5 Mont., 1895, par. 56, fee $10; Id., 1895, fee $5; la., Ill., etc.

6 Connecticut, Maine, and others.

1 Arizona, 1885, p. 50, fee ten cts. per head.

8 As examples may be cited the inspection of bee-hives, for the preven¬

tion of diseases among bees, and of fruit trees brought into a state.

160 Urdahl — The Present Fee System in the United States.

D. INSPECTION OF WEIGHTS AND MEASURES.

The sealers of weights and measures as state and local officials,

have tended to disappear. The reason, which has been elabor¬

ated in preceding chapters, is the gradual cheapening and con¬

sequent diffusion of instruments of measurement among the

people, so that nearly every one possesses the means of testing

the accuracy of his dealer’s measurements. As a matter of

fact, town-weighers are still, as a rule, subject to some regula¬

tions. Some cities still have public measurers of wood, and

weighers of hay and grain ; 1 and others provide for a compul -

sory weighing and measuring of coal2 and other articles. But,

in general, the accuracy of weights and measures can be left to

the self-interest of buyers and sellers to secure. There are two

exceptions, however: first, in the case of imports and the pay¬

ment of customs duties; and second, in the gauging and measur¬

ing of liquors for the collection of the excise tax. In both

cases Congress has enacted stringent regulations, but in only

the first instance is a fee paid for the services performed. The

nationalizing tendencies which the railways exerted on exports,

led to the abolition of state export inspection laws; but inter¬

national commercial relations have necessitated federal export

regulations,3 which are in many respects similar to the old state

inspections, except that no fees are collected from the exporter

for the services of the inspector.

E. MISCELLANEOUS.

There are, furthermore, a large number of local or semi-local

regulations involving fee payments, which are not enacted for

protection either to consumer or producer ; nor for police regu¬

lation. Some of them may be said to resemble the early ex¬

port inspections, in that they tend to preserve and protect

some special local industry. Examples of this kind may be

mentioned : the produce inspection law in Ohio ; the law of Ore-

1 Minneapolis, Minn.

2 Philadelphia, Pa.

* The refusal of foreign countries to take our uninspected pork and meat

has forced Congress to require its inspection.

License Fees .

161

gon, requiring salmon to be inspected j1 the inspection of lumber;2

and that of tobacco, in the tobacco growing states;3 and so on.

Usually such inspections are confined to the important staple of

some locality, which it is imagined requires state intervention

or regulation.

A great many cities and municipalities have power to pass

ordinances for inspecting various articles; but, as a rule, these

are purely for police regulations, and fees are rarely collected

for the service of the official performing the inspection. The

most common example is the inspection of milk, which is re¬

quired in many of the most progressive municipalities. An¬

other example is the inspection of steamboats and steam boilers, 4

which has become largely a municipal regulation. The larger

the city, the more numerous do these activities become, and

the more marked is the tendency for municipalities to take over

gradually many of the old state functions.

CHAPTER II.

LICENSE REGULATIONS AND FEES.

A. MARRIAGE LICENSES.

The oldest and most common form of license regulations which

has existed, and which exists to-day in some form or other in

every state or territory in the Union, is that of the marriage

license. This is one of the first, and perhaps the most impor¬

tant, of the regulations affecting that fundamental institution of

human society — the family; and upon the character of this reg¬

ulation, depends the success or failure of the only direct interfer-

1 Regulation prescribed by the county boards.

2 Oregon, 1880, p. 17, par. 6.

3 Missouri, 1879, Rev. Stat., par. 5868; Maryland, 1872, Ch. 36, Sec. 21.

4 Philadelphia, Statutes , Pa., 1864, Sec. 880, p. 8.

162 Urdahl — The Present Fee System in the United States.

ence which the state exercises over the marriage relation. It is an

important function, which most states have neglected to exer¬

cise in the interest of society. Only twenty-one states require

any returns of marriages to be made to any state officer, and

but few commonwealths have compulsory registration of mar¬

riages. It would take too long to give even an outline of the

public services performed for which the license fee is charged,

much less to trace the causes which brought about the legisla¬

tion. Suffice it to say, that the number and nature of the re¬

quirements as outlined in the statutes of the different states,

varies very decidedly. One state requires a statement of the

age of the parties and proof of their competency to contract

marriage, before the license shall issue; another prescribes that

bonds be given as a guarantee that the parties are entitled to

marry; 1 another simply prescribes that the license, or the appli¬

cation for a license, be recorded in some office. Louisiana gives

the probate judge power to suspend marriage, if any objections

are raised, until a hearing has been had. Maine requires a

notice of intention to marry to be recorded with the town clerk

five days before the license is granted. Maryland requires an

examination of the applicant for license, under oath, to ascer¬

tain whether any legal impediment to his or her marriage ex¬

ists. Massachusetts requires notice of intent to marry.2 Penn¬

sylvania requires parental consent in certain cases. These and

many other requirements are deemed important enough to be

enacted into law, and for the exaction of fees for the services

performed by the officials in carrying them out. The enforce¬

ment of these laws, in thirty-five states, is left to a mere cleri¬

cal official, — the county clerk, county recorder, or some other

registering official. In the other states the licenses are dis¬

pensed by the county or probate judge. The fees for these serv¬

ices of the officials, and for the license proper, vary, as can be

seen from the table in the appendix, from fifty cents to three

dollars.3 Several states require the fee for the license proper

1 Kentucky, 1895, Ch. 7, p. 652.

2 New Hampshire requires certificates of intention; fee one dollar.

Statutes , 1884, 1518, par. 2.

3 One state has charged as much as four dollars. Laws, Md., 1853,

Ch. 86.

License Fees.

163

to be paid into the state treasury, and give the officials power

to collect extra fees for their services.1 Most states, however,

give the fees as perquisities of office to one or more of the offi¬

cials concerned.2 In many of these cases the marriage license

fee loses its most important function, namely, that of regula¬

tion. It was originally intended to be a payment for a privilege

granted only in cases where it appeared advisable. Under this

system, the pecuniary interest of the official is in many cases

diametrically opposed to his plain duty under the law. As a mat¬

ter of fact, it is notorious that marriage licenses are rarely re¬

fused in any state. It is largely to this system that we owe

the large number of wild and runaway marriages, oftentimes

contracted by mere children.

B. LIQUOR LICENSES.

To the great majority of the people, the word “ license ” will

call to mind, or will mean, simply the permit to sell liquor,

which is obtained in most states on payment of a certain sum

of money. The license legislation on this subject alone, when

taken together, shows a greater diversity in the different states

than would at first thought seem possible. In most of the orig¬

inal states the license charges as they exist to-day, are the re¬

sult of a gradual increase of the amount charged at the begin¬

ning of the century. For example, the license fee in Rhode

Island3 has increased from $4 in 1822 to $400 in 1896. Many

of the new Western states have of course adopted laws which

are taken directly from the statute books of Eastern states, and

some of them have attempted new experiments in license legis¬

lation. Scarcely two states have exactly the same system. One

state grants all the licenses directly through a state official, and

receives all the fees into the state treasury: another state leaves

both the power to grant the license and the revenue therefrom

to the local political units. One commonwealth 4 has a license

Delaware requires two dollars.

2 California gives half to the recorder and have to county clerk. Statutes ,

1870, p. 148.

a Laws , 1822, pp. 295, 349.

4 New York, “Raines law.”

164 Urdahl — The Present Fee System in the United States.

or excise commission, which grants all licenses and turns half

the proceeds into the state treasury and grants the other half

to the counties and municipalities. In some states the counties1

are the most important political units, and the county commis¬

sioners or county boards are given power to grant all licenses.

In others the cities,2 villages, and towns are given this power,

and are allowed to use some or all the revenue derived from this

source.3 But as a rule the state legislature gives the counties,

cities, or towns power to grant the license only under the con¬

ditions it prescribes. In some states these are allowed a great

deal of latitude in imposing restrictions on their grants, and

oftentimes, too, in prescribing the amount of the fee. In a few

states the localities are given “local option,” as it is called, or,

in other words, power to allow or entirely prohibit the sale of

liquor within their boundaries.

Pennsylvania 4 charges from $300 to $1,000 according as the

yearly sales vary from $500 to $10,000. California 5 graduates

the charge from $60 to $480 per annum according as the amount

of sales varies, from less than $5,000 to $120,000 per annum.

Arizona6 varies the wholesale license fee from $120 to $500, in

the same way, and charges $200 for each saloon license. But

this system has not given entire satisfaction, as it is almost im¬

possible to obtain reliable returns of the amount of sales.7

Still another system is that in use in the state of Washing¬

ton,8 which prescribes a minimum and maximum license fee for

counties and cities. Some commonwealths prescribe a certain

license fee to be collected for the state, and allow the counties

to charge a county license for their own use up to a certain

1 North Carolina, 1896, p. 123; Oregon, 1885; Texas allows counties one-

half again as much as the state fee, for their own treasuries.

2 Nebraska, 1889, Ch. 33; Ohio, 1883, Ch. 132.

3 Washington requires ten per cent, of all license money to be paid into

the state treasury. 1882, par. 2.

4 Laws , 1891, 248, par. 1.

6 California Code, of 1885, 3376, 3378.

6 Arizona, 1887, 2233-2243.

7 The fee is usually estimated on the basis of the sales of the year pre¬

ceding.

8 Washington, 1882, par. 2; Connecticut, 1883, Ch. 137, par. 5.

License Fees.

165

amount.1 There are a great variety of standards by which the

amounts of the fees are fixed. Perhaps the most important and

widely accepted method, is to gauge the fees according to the

population of the city or other political unit. More than half a

dozen states have adopted this system entire, or some modifica¬

tion of it. Montana2 divides her towns into five classes, with

population ranging from 300 up to 10,000, and charges license

fees varying from $100 for the lowest class to $600 for those

having over 10,000 inhabitants. Minnesota3 charges $1,000 in

cities of over 10,000 and $500 in all others. Rhode Island 4 var¬

ies the retail license fee from $200 to $400 according to popula¬

tion. Alabama, New Jersey,5 and Texas employ the same system

with slight modifications.

' Three states have made the amount of yearly sales a basis for

the amount of fees which shall be paid. Other individual states

have systems which vary in some particulars from all others.

In almost all states a different charge is made for a wholesale

dealer’s license than for a retailer’s.6 A few states have what is

called beer or malt-liquor license, which is cheaper than a regu¬

lar liquor license;7 8 while Kentucky has extended this method

still further, by granting a malt-liquor license for $50, spiritous-

liquor license for $100, and a license to sell both for $150. 8 Further¬

more, some states grant what is known as "quart licenses.”9

Resides these liquor licenses there are in many commonwealths

licenses to distilleries and breweries, with fees graduated accord¬

ing to the output in barrels 10 or according to the annual sales.11

1 Missouri, 1887, R. 178; Arkansas and Texas have similar regulations.

2 Montana, 1895, 4063.

3 Minnesota, 1893, Ch. 189, par 1. Nebraska, 1889, Ch. 33.

4 Rhode Island, 1896, p. 349.

6 New Jersey, 1895, p. 1810.

8 Arkansas charges $150 for a wholesale dealer’s and $800 for a retail

dealer’s license.

7 Michigan, 1881, p. 148. Illinois collects $300 for a dramshop license and

$150 for a malt liquor license.

8 Ky., Laws , 1890.

9 Ga., 1835, p. 185; N. J., 1888, p. 1810.

10 Mich., 1881, p. 148.

11 Ariz., 1887, Sec. 2232; Mont., 1894, Sec. 4063.

166 Urdahl — The Present Fee System in the United States .

Other licenses which are by no means rare, are druggists’ permits

to sell liquor ; likewise licenses to merchants engaged in mercan¬

tile business, licenses to grocers and others. Some states pre¬

scribe special licenses for taverns, for club houses, and many

other places where liquor is sold.

The tendency of the license legislation since the war, has

been to gradually increase the fees. There is scarcely a state

which has remained unaffected by this movement, although

changes in legislation of this character are slow. The reform

movement has taken many directions in the different states, the

most striking of which may be mentioned: the constitutional

provision of North Dakota, prohibiting the passage of any

license law; the South Carolina dispensary act which attempts

to change from state regulation to state management ; the Maine

and Iowa prohibition laws; and others. In most states a small

fee, ranging in amount from fifty cents to several dollars, is

charged by the official granting the license, for the clerical

work of issuing or recording.1

c. peddlers’ licenses.

Most of the new states which have been formed since the war,

have found it necessary at the very first session of their law

making bodies, to pass some sort of regulations for peddlers;

and the old states have either continued the old laws or elabor¬

ated them further. The diversity of laws on this subject is

almost as great as that of liquor regulations. But few states

consider it sufficient regulation, to require simply a state li¬

cense2 with a small fee for the use of the state, as was the

nature of the earlier legislation. On the other hand, some

require no state license at all, but have turned the whole regu¬

lation over to the cities and counties,3 in some cases prescrib¬

ing only the minimum and maximum fees which may be charged.

In a large number of other instances the legislature prescribes

in detail how the license shall be granted and exactly what fees

shall be charged, but allows the counties to grant the license

and to put the money into their own treasuries. Others adopt

1 Arkansas clerk’s fee, two dollars.

2 Revised Statutes , Neb., 1895, p. 919, Sec. 251. Rhode Island.

3 Or., 1864, par. 14; Wy., 1864, Sec. 14; Ill.; etc.

License Fees.

167

a middle policy, by compelling the peddler to take out a state

license first and pay a sum into the state treasury for it, and

allowing each county to grant a second license for a fixed sum,

which license is good only within county limits. Some states

even allow townships to grant or refuse licenses.1

The most common method of fixing the amount of the fees, is

a result of an early attempt to make it conform roughly to the

amount of goods carried by the peddler. In the earlier days

the best customers of the peddler were the people who lived

away from the main roads of travel and distant from any

trading center. On account of the lack of good wagon roads,

it was customary for the peddler either to carry a pack him¬

self, or to have one or more pack animals for the purpose. The

number of horses, therefore, came to be a pretty good method

of estimating the amount of goods which he carried. This fact

was seized upon by the law makers as a standard for measuring

license charges.2 This system has been introduced in many

states and continued in use in its primitive form, even after

wagon roads became common everywhere so that vehicles could

take the place of pack animals. One or two states have, how¬

ever, recognized this, and put peddlers with one horse and

vehicle in a class by themselves. California has simplified it

still more by having only two classes, namely, peddler on foot,

and peddler with a wagon. Rhode Island3 has made the amount

of the fee depend upon the size and character of the territory

within which it is valid, and charges $60 for a license for the

entire state, $30 for the county of Providence, and $10 for any

other county. Some states have peddlers’ licenses for river

traders, the cost of which is gauged by the tonnage of the

water-craft which they use.4 A new departure, which is espe-

1 N. D., 1890, Ch. 142, par. 4; Me., 1895, Rev. Stat., p. 296; Wis., 1870,

Ch. 72, par. 3, and 1895, Ch. 81.

2 The old form of the law recognized three classes, as follows: (1) peddler

on foot, (2) peddler with one horse, (3) peddler with two horses. The later

laws often run as follows: (1) peddler on foot, (2) peddler with one horse

and vehicle, (3) peddler with two horses and vehicle.

3 Also New Hampshire, 1878, 27, 3; Ohio, 1882, 79, 80.

4 Florida: boats of 20 tons, $30; of less tonnage, $10. Arkansas, 1873,

par. 20.

168 Urdahl — The Present Fee System in the United States .

cially marked during the years since the war, is to vary the

license charge according to the character of the goods sold.

Thus we find a large number of states in which lightning-rod

agents are supposed to require special regulation1 and are

charged heavy licenses. Other states find it necessary to dis¬

courage the peddling of watches and jewelry.2 Another class

which is charged heavy fees, includes venders of patent med¬

icines. One state charges a certain sum per month, another so

much per day.3 Sewing-machine and insurance agents are

sometimes recognized in the same way.4 In short, the attempt

seems to be quite general to collect heavier fees for licenses to

peddle those goods which are most likely to be employed for

frauds by swindlers or sharpers.

D. SHOWS.

License regulations for traveling circuses have increased

greatly in importance, and although prescribed and executed at

present by a great many states directly, still in many others the

whole matter has been transferred either to the counties or to

the municipalities.5 In some states the movement has just be¬

gun, in that the state still receives a state fee for its license to

a company to exhibit within the state, and the municipalities

are given power to collect another fixed fee for each perform¬

ance within their respective limits.6

Another system gives the circus managers the option of ob¬

taining a license from the state authorities for the whole state,

or a license for only one county or city; in other words, grading

the licenses according to the population of each portion of

1 Statutes , Ky., 1894, c.6. Patent agents and lightning-rod peddlers

charged twice the regular license fee .

2 Vermont, 1886, Rev. Stat., par. 955. Delaware charges peddlers of

clocks $50 in addition to regular license charge. Iowa, 24 Gen. Stat., 83,

par. 3.

3 Wisconsin, 1883, p. 165, $100 per month.

4 Florida, $200 per annum.

5 Shows to be licensed by two judges of the court of common pleas. Fee

from $10 to $200 per day. Public Laws, N. J., 1895, p. 37.

6 Vermont, 1867, 56, par. 1; state license $1,000; each town license, $100

for each day. Wisconsin, 1890, Ch. 52, par. 5.

License Fees.

169

territory,1 and receiving all the license money into the state

treasury for the use of the state. The other extreme is to give

the county board, or city council, power to determine the

amount and collect it for local purposes, sometimes however

within some maximum limit.2 The same idea is carried out

where the legislature fixes the size of the fee, but allows it to

be paid into the county treasury.3

It is but natural that the license fee should vary greatly in

amount on account of the differences in the character of the

various states themselves;4 for example, a single license in

New York or Philadelphia would be much more valuable than a

state license for Delaware or for some of our Western states.

The state license charges are very often pure taxes, and not pay¬

ments for any actual privileges. Of the same nature as a circus

license is a theater license. The fees for these are still fixed for

many municipalities by the legislatures. Alabama varies them

according to the population, from $50 to $100. California

gauges them according to the seating capacity of the houses,

from $400 to $600. Other states attempt to vary them slightly

according to the length of time or the number of performances,

while still others charge a certain annual sum for the building,

and collect nothing from the theatrical companies. The regula¬

tion of these has already in very many states passed into munic¬

ipal control ; and indeed it is but natural that they should, as

all the extra police protection and all the services of other mu¬

nicipal activities required by theaters, are rendered directly

by the municipality and not by the state.

Pennsylvania charges $1,000 for the whole state, $500 for Philadelphia,

$200 for Alleghany county, and $50 for other counties.

2 Iowa: county board may determine the amount, not exceeding $1,000.

16 Gen. Laws , Ch. 131, par. 1.

3 South Carolina, 1875, XV, 845, par 1.

4 Kentucky (1890, par. 1049), has a peculiar method of gauging circus

licenses. The law provides a charge of $1 for each 100 voters in the county,

the total not to exceed $50. For theaters the same plan is used, but $20

is the maximum total. Incorporated cities have exclusive right to license

shows, etc.

170 TJrdaJil — The Present Fee System in the United States.

E. FERRIES.

Another early state function which has gradually been trans¬

ferred to the municipalities, is that of licensing and regulating

ferries. The old custom of granting ferry licenses by special,

acts of the legislatures, has gradually given way to the modern

system of general laws. These, as a rule, provide that the

license shall be granted by county boards or commissioners,,

and that the fees shall be paid into the county treasury. The

most common practice is to provide some maximum and mini¬

mum limit to the fees which may be collected by these author¬

ities. The most usual provision in this matter is, that the

charge shall be not more than $100 and not less than $1.*

Indiana1 2 puts the limits at $3 and $50, while Illinois3 charges

not less than five $5 nor more than $300.

Another system consists in gauging the license fee according

to the carrying capacity of the boats.4 Bond is quite often re¬

quired of the licensee, as a guaranty of the safety and efficiency

of the service, and the faithful performance of the business for

which the license is granted.

F. AUCTIONEERS.

The modern system of regulating auctioneers, is simply a

continuation of the method in vogue before the war. Some

legislatures still fix the fees which shall be collected, but the

standard of measurement has been changed somewhat in many

commonwealths. Idaho gauges the fee from $120 to $400 per

quarter according to the gross amount of business, and allows

the fee to go into the county treasury. Other states employ

the same system.5 6 Missouri, on the other hand, makes the fee-

vary according to the length of time for which the license is

1 Ark., Wash., Wy., Kan., — the same limits; Neb., — limits, $2 and

$500. Rev. Stat., 1895, p. 593.

2 Revised Statutes , 1876, par. 52, p. 356.

3 Statutes , 1845, p. 252, par. 2.

4 Idaho provides that the license fee shall not exceed ten per cent, of the

tolls collected.

6 Md., 1886, Ch. 507, Sec. 503. Mont., 1895, Sec. 4060.

License Fees.

171

issued — $50 for three months, and $75 for six months,1 and so

on; while Vermont and other states simply prescribe the maxi¬

mum and minimum fees, and allow the local political bodies to

determine the amount within these limits. In the great ma¬

jority of cases, this regulation is left entirely to the cities and

other municipal bodies.

G. MISCELLANEOUS LICENSE REGULATIONS.

Many license fees are paid for special regulations which have

become necessary only on account of the special economic and

social conditions of particular localities. Most noteworthy of

these may be mentioned the following: Delaware collects a fee

of $30 for each permit to open oysters for export; Maryland2

charges a fee of from $2 to $5 for each oyster boat, varying the

amount according to the length of the boat; Mississippi3 allows

the counties to charge a fee of $1 per ton for a license to each

oyster boat; and Delaware likewise varies the charge according

to the tonnage of the boat. Maryland 4 requires annual licenses

for permits to catch fish with a seine or gill-net, and gauges

the fee according to the size of the seine or net, at the rate of

three cents per square fathom. Kentucky licenses all her water

craft on the Ohio, Mississippi, and Kentucky rivers. South

Carolina5 and several other states find it necessary to regulate

by means of licenses all boarding houses for seamen. New

Hampshire and other states require all who sell commercial fer¬

tilizers to take out a license and pay a fee therefor.6

Vermont collects state dog license fees,7 and New Hampshire8

has state steamboat licenses. A few states have recently pre¬

scribed license charges for permits to sell cigarettes. Colorado

1 Revised Statutes , 1879, Sec. 4168.

2Md., 1886, Ch. 296, Sec. 18.

3 Statutes , Miss., 1892, ac. 3089.

4 Statutes, Ind., 1870, Ch. 204.

5 Statutes , 1866, XIII, Sec. 8, p. 472.

6 Vermont charges a fee of $100 for each. — 1888; No. 109, Sec. 3. New

Hampshire charges $50. — Statutes , 1891, p. 351.

7 Statutes , 1894, No. 119, Sec. 1.

8 Sec. 1, p. 100, 1881.

172 Urdahl — The Present Fee System in the United States.

collects $100 for each detective’s license, and charges $500 for

a permit to sell oleomargarine. Nevada requires grazing li¬

censes, varying the fee according to the number of sheep.1

Numerous other occupations are here and there required to be

licensed, before they can be carried on. The license taxes of

the Southern states, whose object is solely to raise revenue, can

not be counted as license charges, but may usually be classed

as occupation taxes.

The development of local self-government has brought about

the transfer of many of these powers from the states to the local

political units. As a result, there is already a large class of

regulations which are everywhere placed under municipal pow¬

ers. One legislature grants more power and another grants

less to the local bodies; but every where some license powers are

turned over to the latter. The fees for these are thus quite

regularly collected by municipal authorities for the use of the

city treasuries. Licenses to brokers, wharfingers, local auc¬

tioneers, commercial travelers, hucksters, pawnbrokers, places

of amusement, hotels, taverns, junk dealers, boarding houses,

boarding stables, billiard tables, hacks, slaughter-houses, wash¬

houses, bill-posters, dance-houses, scavengers, intelligence of¬

fices, dealers in explosives, bowling-alleys, shooting-galleries,

dogs, steamboats, and many others, have in some states become

municipal regulations. The number is gradually increasing; in

fact, some cities exercise more power in this way than many a

state did a few years ago.

The rapidity of growth of urban population and its great con¬

centration is one of the causes for the rapid increase in the

number of matters which require license regulation. Building

permits and sewer and water permits are of this character.

Furthermore, the peculiar conditions of each city present new

subjects which must be taken under police supervision and ulti¬

mately become subject to license regulations. Milk sellers are

in some localities required to be licensed, coal dealers in others.

The rapid growth of one section may require special sanitary

regulations; one quarter of a city may be of such a character

1 For 5, 000 sheep, $250; for 3, 000 sheep, $200; for 1, 500 sheep $75. — 1895,

Ch. 36, p. 53.

Incorporation Fees.

173

that a license for excavation must be obtained before a cellar

can be dug. A city like New York may become so overrun with

petty peddlers that a city license regulating them is an absolute-

necessity. Local meat-sellers become more and more of a nui¬

sance as population becomes dense, and concentration of the

business in one locality becomes a necessity. Market privileges

are then paid for by fees collected for the use of the city treas-

ur}^. The establishment of an oil refinery may be so dangerous

to the safety of a city that its regulation by means of license

becomes necessary. These are but a few examples of the thou¬

sand and one cases where public welfare requires that a city

shall have and exercise licensing power.

CHAPTER III.

INCORPORATION FEES.1

PRELIMINARY REQUIREMENTS.

The part of the fee-system which can be called, with most ac¬

curacy, a product of the last three decades, includes that class of

charges which is directly or indirectly connected with corpora¬

tions of various kinds. The present is truly an age of corpora¬

tions. The gigantic enterprises with which we are familiar,,

have been made possible only through the combination of capi¬

tal and ability which these corporations represent. It is per¬

haps not an exaggeration to say that four-fifths of the aggre¬

gate business of the nation is directly or indirectly carried on

by means of those artificial persons. The whole framework of-

our national existence is so closely interwoven with these insti¬

tutions, that it is almost impossible even to imagine American

1 Strictly speaking, many of the corporation fees might be considered as

a separate class of license fees; but their significance in the United States

is so great that, aside from other important reasons, they deserve a place in

a class by themselves.

174 Urdahl — The Present Fee System in the United States.

industry without them; and yet, they are all of them only the

creatures of the legislative will of the people. Their early char¬

acteristics — that they were at first only special privileges

granted for special public purposes and that they were only

granted by special acts — have all been gradually lost sight of,

more especially after the privileges of corporate existence began

to be granted according to general laws. When such a law had

been in force for some time, and it was found that everybody

could obtain corporation privileges by conforming to certain

requirements, it soon came to be looked upon as a right which

was almost as inalienable in its nature as any belonging to citi¬

zenship. When, therefore, some states began to charge fixed

sums for this grant, it was immediately designated by the peo¬

ple in general, and even by economists, as a tax on corpora¬

tions, or taxes on corporate charters.

The forces which led up to general corporation regulations,

have already been treated in a different connection. To put it

briefly, the result has been, that in most states laws have been

passed, requiring those applying for corporate privileges to

conform to certain rules, the most common being that the char¬

ter, or articles of incorporation, stating the object, purpose,

and so on, shall be filed with the secretary of state or some

other state officer. Sometimes the official approval of the char¬

ter and a certificate of incorporation, or certificate of authority

to do business, must be obtained. In some states they are also

required to file a statement preliminary to the grant of cor¬

porate privileges.

A. CHARGES FOR INCORPORATION PRIVILEGES.

An incorporation fee is in most cases collected for filing the

charter of articles of incorporation. A glance at the table in

the appendix will show that six states charge only five dollars

and two charge less than this amount, while all the rest charge

amounts varying from five to one hundred dollars for this serv¬

ice. It should be borne in mind, however, that the incorpora¬

tion fees include all the charges made by the state under various

heads, and that the total amount, instead of the individual fees,

is the important consideration. The most common and the

Incorporation Fees.

175

fairest method of gauging the incorporation fee, is to make

it proportional to the amount of capital stock.1 Five states

have adopted this method in full, and charge from ten cents to

one dollar per thousand dollars of authorized capital stock. Six

other states have a slight modification of this system, in that

they charge a certain minimum fee for any amount of capital

stock up to a certain limit, and then collect from fifty cents to

a dollar per thousand of capital stock over this amount. A very

large corporation would, under this latter system, yield some

revenue into the state treasury. These fees were originally

designed only to cover the expenses incurred by the state in

granting incorporation rights and regulating them when

granted.

The dangers which may come to the public from corporations

which at times may be organized for purposes that are not the

very best, has become quite apparent during recent years. The

harm which may be done by private individuals is great, but

that is insignificant when compared with the injuries which

may accrue to the public from incorporated companies. In the

latter the responsibility is divided, because one of the first

privileges which a corporation has, as against the individual, is

limited liability for debt. It was need of concentration of

capital which first gave rise to this provision in the incorpo¬

ration laws, and the enormous industrial enterprises which

have been made possible by it, have simply demonstrated its

wisdom. Limited liability for debt is, however, not the only

privilege which is granted by the state through its incorpora¬

tion laws. There are a great many other privileges obtained

now by one company, now by another, which are of just as

much, and oftentimes more, value than the above-mentioned.

The public purpose and interest in all these enactments has

hitherto been so great, that no state has attempted to charge

fees which are at all equivalent to the value conferred.

1 Illinois charges $30 for the first $2,500 of capital stock, $50 for $5,000,

and $1 per $1,000 for amounts over $5,000. — - P. L., 1895, p. 132.

North Dakota charges $50 for the first $50,000 of capital stock and $5

for each additional $10,000. — Laws , 1891, Ch. 105, Sec. 1.

176 Urdahl — The Present Fee System in the United States.

!

B. BANKING PRIVILEGES.

It required but a few years of actual experience to demon¬

strate the fact, that all kinds of corporations could not be regu¬

lated by the same kind of restrictions, nor could all be allowed

the same privileges. It was early discovered that a banking

corporation could not be given as much latitude as a manufac¬

turing concern. Re-acting against the abuse of the banking

privileges which were granted just before the war, many of

the Western states inserted a provision in their constitutions

forbidding the organization and incorporation of banks within

state limits.1 This prohibition was soon repealed, however,

because the need of banking institutions made itself felt too

strongly to be resisted. The new bank act did not, however,

provide sufficient safe-guards against frauds upon depositors

and investors by means of bank failures. As a result, many

states determined not only to regulate the incorporation2 of

banks, but to keep them under constant supervision by means

of state bank examiners, who were given power to wind up the

affairs of any bank which seemed unsound. In some states these

examiners are paid salaries out of the treasury, while in others

they are allowed to collect fees from each bank examined.3

A new departure in banking, in the form of building and loan

associations, trust companies,4 and the like, has grown up, and

is flourishing in many parts of the country. These associations

were supposed to be safer, in many ways better suited to the

needs of the laboring classes, than ordinary banks. Their spe¬

cial character has been recognized in state laws, by special regu¬

lations and special incorporation fees, usually lower in amount

than those collected from banks. Most commonwealths also

recognize the nature of charitable, educational, and religious

1 Constitution , la., 1846; First draft of the Constitution , Wis., 1848.

2 North Carolina charges one half mill on each dollar of capital stock of

banks, 1895, p. 122. Montana has divided banks into six classes, ac¬

cording as the aggregate business ranges from $5,000 to $250,000, with

fees for each ranging from $40 to $400 per annum.

3 The salary of Inspector of Finance in Vermont is apportioned among

the institutions examined in proportion to their taxes.

4 Laws, Ala., 1892, p. 665; annual fee, $200.

Incorporation Fees.

177

corporations, by making the incorporation fee very small, often

merely nominal in amount.1

C. INSURANCE COMPANIES.

In course of time, incorporation laws have gradually been

adjusted to new and ever changing conditions. A comparison

of the laws of the present with those of the “ Sixties, ” shows

that the latter have tended to differentiate. New classes of

corporations have sprung up which alone receive more legisla¬

tive attention at present, than the whole subject did a few years

ago. One of the most striking examples of this is the insurance

legislation which has been enacted during the last thirty years.

All who have been at all connected with insurance companies

for any length of time, will remember the lack of special regu-

tion and the enormous opportunities for fraud, which the early

insurance laws offered. That these opportunities were not neg¬

lected, is abundantly exemplified by the large number of insur¬

ance companies which obtained charters, solicited insurance as

_ong as possible, and then, after having pocketed the premiums,

became insolvent. Many of these were notorious as the most

gigantic swindles of the age. After a few experiences of this

sort, public opinion became aroused, and schemes were devised

to prevent their recurrence. Thus special insurance legislation

began, in which the legislators had few if any precedents to go

by. We therefore see the beginning of the tentative period in

insurance regulations, out of which but few states have as yet

emerged. One of the first attempts to accomplish this purpose

was by changing the method of formation or incorporation of

insurance companies. Special qualifications were required,

apart from the usual requirements of the general incorporation

laws, and a distinct category of fees was established for insur¬

ance corporations.2

For filing the charter or articles of incorporation, the fees

range from $6 to $50. Eight states charge $25 for this service;

1 North Carolina charges only one-fifth of one mill per dollar of stock of

loan associations, while banks have to pay one-half mill. Illinois charges

$30 for original application for charter for loan associations.

2 See table of incorporation fees in the appendix.

12

178 Urdahl — The Present Fee System in the United States.

two, $50 ; one, $55 ; two, $30 ; and the others, sums varying between

these mentioned. Very often the official granting the charter,

is required to examine into the solvency of the company, and

to ascertain whether it has sufficient assets to secure the policy¬

holders. Special fees are collected for such examinations, and

are usually given to the examining official as part of his salary.

Sometimes the law fixes a maximum fee 1 which may be collected,

but provides that the examiner or commissioner shall be paid

according to the amount of labor involved. Other laws provide

for the payment of the actual expenses of the examiner during

the time spent in making each examination.2

D. ANNUAL FEES FROM INSURANCE COMPANIES.

But an insurance company is radically different from other

corporations. It may be perfectly solvent this year and have

ample securities to meet all liabilities, while in less than a year

it may be on the verge of bankruptcy. To guard against the

possibility of an insolvent company continuing to sell policies,

most of the states have made provisions for an annual examina¬

tion of all companies doing business within a state, to facilitate

which each company is required to make an annual statement of

assets, liabilities, amounts of policies, and so on. As remun¬

eration for the expenses of this examination, an annual fee is

required, which ranges in different states from two to fifty dol¬

lars. This system is in its essence an annual grant of license.

Another peculiarity of insurance companies is the extent of

territory over which they can operate. But few of them are

limited to any one state. A company organized under the laws

of one state, must therefore obtain special permit to carry on its

business in another. There is thus a large number of regulations

which are only applicable to foreign insurance corporations,

that is, companies organized in another commonwealth. In gen¬

eral it may be said that the fees exacted from these, are higher

than those collected from domestic corporations. Some states

even make the fees so high that they are almost prohibi-

1 Laws , Texas, 1876, p. 223, Sec. 2: Fee not to exceed $250.

2 Minn., 1878, Ch. 34, par. 282; la., 12, Gen. Stat ., Ch. 138, par. 24;

Wash., 1890, par. 15, — charge $5 per day.

Incorporation Fees.

179

tory. 1 These high charges have led a few states to paass retali-

tory legislation,2 providing that foreign insurance companies

shall pay the same fees which their own state demands of com¬

panies from other states. For the security of policy holders in

foreign companies, these are required to deposit with some state

official securities sufficient to cover all risks. To ascertain the

amount required for this purpose, the policies must be assessed

by some competent state official, to pay for whose services fees

are usually collected3 from the companies concerned. In order to

carry out the laws regulating foreign companies, it has been

found necessary to require all insurance agents to obtain a

license or certificate of authority to do business, for which an¬

other and small fee is often collected. The most common charge

is two dollars, but some states charge less, while others collect

as much as ten dollars for these licenses.4 Some attempts have

been made in a few states to have insurance legislation keep

pace with the specialization in the business itself. The fees there¬

fore vary according to the kind of insurance, whether fire, life,

accident, tornado, boiler, live stock, and many others. As a

rule, the fees are fixed so as to discriminate in favor of mutual

and benevolent associations. In consequence of this we find

large organizations, fraternal in name, which are in reality

nothing but life and accident insurance companies. The ten¬

dency of the later legislation affecting insurance companies,

has been to increase the number of regulations, and at the same

time to increase both the number and the size of the fees which

are charged.5

1 Washington charges two per cent, of the total premiums collected

within the state. Connecticut charges three per cent.

2 New Jersey, 1872, p. 25. Ohio and Nebraska have similar laws.

3 Ohio charges one cent per one thousand for such valuation, Texas col¬

lects ten dollars per million assessed.

4 Ohio allows any company to pay a lump sum per year for permission to

have as many agents as it pleases, without further license charge.

5 The companies themselves have made frequent and decided objections

to the collection of these fees, especially when their amount was more than

enough to cover the expenses of the insurance commissioner’s office. It

has been argued by some of their representatives that a higher fee than

would be sufficient to cover actual cost, would simply be a tax on those

who made use of the insurance companies, because these would necessa-

180 Urdahl — The Present Fee System in the United States.

E. ABUSES CONNECTED WITH INSURANCE FEES.

The vicious practice of allowing insurance commissioners or

some other official to retain some or all of the insurance fees, is

still continued in some states.* 1 Another custom, in favor of

which no good reasons can be given, is the practice of allowing

the examining official to receive directly from the company for

his own use, the fees which are supposed to cover his actual

expenses2 during the time consumed in the examination. Very

often these are defined by law to be mileage, at ten cents per

mile, and a certain amount per day for the time spent in mak¬

ing the investigation. In the first place, this method may

yield a salary out of all proportion to the salaries of other state

officials.3 Then the examiner may grant or refuse a permit to

transact business. If he is at all corrupt, he may use this

power to extort huge bribes from those companies which are

doing business on an unsound basis. Furthermore, the fee

which he is allowed to receive directly from the company, may

easily be increased by the company into a direct bribe to cor¬

rupt and destroy the efficiency of a corruptible official. This

temptation might be partially removed, by requiring all fees to

be paid directly into the state treasury and by forbidding any

official to receive any gift or fee, under any pretense whatever,,

from an insurance company.

rily have to increase their premiums to cover the extra outlay. This would

be true if a fee of several thousand dollars were collected annually from

each company, but none of the fees are actually so high as to produce

any change in the price of policies.

1 Indiana allows the state auditor to retain twenty-five per cent, of the

fees collected, besides his office expenses.

2 Delaware, New York, Minnesota, and many other states have such pro¬

visions.

3 Suppose the examiner in one of the North Western states receives an

application for examination from a half dozen companies in New England,

and from several on the Pacific coast. As soon as it is convenient for him

he travels to Boston, and leisurely examines all the companies who apply

from that section of the country. The actual expenses which he collects

from each company will them include mileage, which alone may amount

in this way to several thousand dollars in the course of a year; while the

real expenses of the examiner will be but a small fraction of the amount

collected.

Examination Fees.

181

CHAPTER IV.

EXAMINATION FEES.

It has already been pointed out incidentally that some of the

commonwealths very early required those desiring to enter a

particular profession to have certain qualifications. One or two

states created medical boards, in the beginning of this century,

to examine all candidates and grant certificates; but the ex¬

tension of the state examination system to other professions is

a very late development. Many of the so-called license fees are

often partly in the nature of examination fees, and vice versa.

The early pilot licenses were of this nature. The applicant had

to furnish evidence that he had served the required number of

years as apprentice on a regular pilot boat, and was often also

required to pay a fee for a certificate. Experience brought to

light the dangers due to incompetent pilots much earlier than

those due to incompetency in other pursuits. The candidate

was often required to prove his ability to manage vessels of dif¬

ferent tonnage in the presence of the licensing body. As the

vessels have increased in size and carrying capacity, the diffi¬

culty of piloting them has increased proportionately, and the

risk which would be run by entrusting them to incompetent

men has increased to such an extent that state examination of

pilots has become almost a necessity.

It would be difficult to name the order in which the different

professions came under state supervision in this way. Some of

the colonies required lawyers to pass a sort of examination be¬

fore their admission to the bar. It has been customary in most

of the new states to allow anyone to practice lav/ who could

satisfy very slight educational qualifications. The growth of

the country has been so rapid, and the spread of population so

sudden, that legal and medical services by properly educated

and qualified lawyers and physicians were, in many localities,

out of the question. The pioneers, therefore, had to take what

182 Urdahl — The Present Fee System in the United States.

they could get. Furthermore, the Western spirit, which looked

with favor on the “self-made man’’ attempting to work up in

any profession, was opposed to stringent examinations as tend¬

ing to shut out all except those with means enough to attend

schools. The result is, that, even in the present age of pro¬

gress, the great majority of our states allow individuals to

practice law and medicine who have scarcely any qualifications

whatever. Another cause of this state of affairs is the fact,

that many states have turned over to medical and legal schools

and to colleges the power to grant degrees which have the force

of state examinations in giving iicense to practice. In many

of the commonwealths where state examinations are given, they

are usually made easy, with the express purpose of allowing

those who can study these branches privately to obtain license

or certificate. The examination fees in the states having this

system range from five to twenty-five dollars.

Much more general is the requirement that pharmacists shall

pass a satisfactory examination before they obtain a certificate.

Many commonwealths provide for examinations of assistant phar¬

macists, and have laws forbidding the sale of any drugs except

by a licensed pharmacist or assistant.1 But it is in the com¬

paratively modern profession of dentistry that the most strin¬

gent regulations are made, if one may judge by the number and

amount of the examination fees. A glance at the table will show

that that the fees range all the way from one to thirty dollars,

the most common charge being ten or fifteen dollars.

In all of the above-mentioned cases the examining board has the

power to designate the institutions whose diplomas shall ex¬

empt the candidate from state examination. It is, therefore,

quite customary to require the applicant to obtain a certificate

from the state board at a small cost, usually from one to two

dollars, even if he has an accredited diploma or has passed an

examination. In some states this certificate is required to be

recorded with a state or county official, which necessitates the

payment of another fee.

For the better regulation of some of these professions, espe-

1 Wisconsin and Minnesota have such laws.

Examination Fees.

183

cially that of pharmacist, annual licenses or certificates are re¬

quired to be obtained, or annual registrations to be made, at a

a cost of one or two dollars.1 Other pursuits for which some

states prescribe state examinations are: veterinary surgeons,

engineers,2 plumbers, and teachers.3 The lack of teachers in

many parts of the country, which is felt even at present, has

made any charges for teachers’ examinations inadvisable. There

is, however, a tendency in a few states to charge special fees

for life certificates; and, in some instances, an examination fee

of one or two dollars is charged by the county examiner for an¬

nual certificates.

The examinations in all these cases are usually conducted by

an examining board, and the fees are as a rule required to be

turned into a fund to be used for the maintenance of this board

and other purposes. In cases where the examination is con¬

ducted by a salaried officer, as, for example, the county school

superintendent, the fees are often used for a library, or institute

fund, or some other similar educational purpose.

The general drift of legislation seems to be to increase the

number of pursuits for which examinations are required and to

raise the standard of requirements. The civil service examina¬

tions bring up an entirely distinct category. No fees have as

yet, so far as can be ascertained, been charged for the privilege

of taking these examinations; but the probability is, that if

they go on increasing in importance, a small fee will ultimately

be collected from each candidate, as is the case in many Euro¬

pean countries at present.

1 Col., 1893, p. 368; Conn., 1893, Ch. 298; Ill., Minn., Neb., etc.

2 Ala., Id., Mich., Mont., etc.

3 Colorado even requires an examination of horseshoers.

Many cities have ordinances prescribing similar tests of different pro¬

fessions and pursuits.

184 Urdahl — The Present Fee System in the United States.

CHAPTER Y.

COURT PEES.*

Very little that is important can be said of this large cate

gory of fees as it exists today. It has undergone less change

than any other part of the fee system; hence is everywhere

more or less antiquated. The forces which have tended to pre¬

vent change will be discussed in another chapter. No compar¬

ative study of this subject can be undertaken, because the serv¬

ices furnished for each fee-payment rarely mean the same in

any two states; and the functions of the various judicial officers

are widely different in the several states.

* The classification given is neither strictly scientific nor absolutely com¬

plete. Some of the categories overlap; and the last class, especially, in¬

cludes a large numbers of distinct sub-classes, whose only common charac¬

teristic is, that they are collected by courts or semi-judicial officials. The

justification for the adoption of this classification lies in the fact, that the

statistical and other materials at hand lend themselves naturally to this

grouping. The more elaborate, and, in one sense, more scientific classifi¬

cations of Wagner, Schall, and other German writers, are very well adapted

to a purely theoretic study and discussion; but they were found, after re¬

peated trials, to be absolutely worthless when applied to actual conditions

such as exist in the United States. Authentication fees, for example, are

a very clear and easily defined group of fees, in theory; while, in practice,

it is impossible to distinguish between authentication and registration

fees, nor can a comparative study of such a class be successfully undertaken .

It has therefore seemed best to adopt a classification which appeared most

suited to an exposition of the conditions and relations of the fees in the

various states to each other. In order to make this classification complete,

it would be necessary to add two more classes, on which sufficient material

was not available for a more elaborate treatment. These two classes may

be designated as Educational Fees and Industrial Fees. Under the first

would be included all charges made by public educational institutions for

tuition and other general expenses. In the free public school systems

these are rarely collected, except from non-residents, while in the higher

institutions of learning they are quite general. The second class includes

Court Fees.

185

A. REGISTRATION FEES.

Not even the registration fees have enough elements in com

mon in a sufficient number of states to make any comparison give

significant results.* 1 Many attempts have been made to change

the system of registration of land titles;2 but the interests of

lawyers, and many other forces have, as a rule, been arrayed

against such reforms, and as a result they have been introduced

in but few localities. The Australian, or Torrens system, was

adopted in the city of Chicago a short time ago, but it was soon

carried into the courts and declared unconstitutional. It is

needless to state that enormous sums are each year paid out

in fees for registration, a great part of which, with a more

modern system, might be saved to the public. Too much empha¬

sis cannot be laid upon the necessity of adopting more simple

and modern methods of registering land titles. Most of the

Western and Middle states could as yet put into operation, with¬

out much difficulty, systems of registration which would be the

means of saving millions of dollars to future generations. In

the more densely populated Eastern states the necessity of a

new system is beginning to be felt; but the change can be ac¬

complished only with the greatest difficulty, because of the in¬

numerable vested interests based on the old systems of regis¬

tration. The older and more populous a country grows, the more

intricate and costly does the tracing of land-titles become, and

the more powerful are the forces arrayed against such reforms.

In New York the average cost of obtaining an abstract of title

of real estate is from seventy-five to one hundred dollars; while

all fees collected by public bodies for the services of institutions which are

industrial in their character. The post office, government telegraph, tele¬

phone, municipal waterworks, gas works, as well as toll roads and toll

bridges are institutions of this kind.

1 The registration fee in one state is part of a license fee or of some other

fee, while in a different state it is distinct.

2 The original fee for registration is often the smallest part of the fees

paid in securing title. There is, as a rule, an abstract-office fee, attorney’s

fee for examining title, a fee for certificate from register of deeds, and

often many others. There are thus many people whose livelihood depends

on the continuance of the old fee system.

186 Urdahl — The Present Fee System in the United States.

in the West the abstract costs comparatively little. These fees

may in the end become so burdensome as to be a serious impedi¬

ment to the purchase of land by the humbler classes of a com¬

munity.

Although the system of registration is slowly expanding,

comparatively few new classes of objects have been found, which

have been brought under this provision. In the ranching dis¬

tricts the recording of cattle-brands is of great importance,

while in a logging district the recording of log-marks seems the

most important from the recorder’s standpoint. The county

recorders and registers of deeds are at present paid by means

of fees in most of the states.

B. STATE AND COUNTY COURT FEES.

Sheriffs, constables, clerks of court, and other court officers

are, as a rule, remunerated in the same way. In the older states

scarcely any changes in this part of the fee-system have been

accomplished. The result is, that many,rof the court officials are

receiving fees which were designed for conditions existing from

fifty to one hundred years ago. Not only are the fees entirely

unsuited in amount to the modern conditions, but many of the

primitive forms and formulas are clung to with great tenacity.

The following example will illustrate this: in the early courts

the sheriff was usually the jailor, court messenger, and consta¬

ble; this custom, once established, has been continued in most

of the older states, and as a result the sheriffs pocket enormous

amounts of fees for services which they are supposed to perform

in these three distinct capacities.

In spite of the numerous and heavy fees the courts are no

where self-supporting. Not even those courts which deal ex¬

clusively with civil cases and have all their docket-fees and

other fees, are able to maintain themselves without heavy drafts

upon the state or local treasuries. Reforms to remedy this have

been proposed, now in one state, now in another, but the legis¬

latures of the older states have not been able to rectify even the

most glaring inconsistencies. The only states that have at¬

tempted any reform or solution of these problems, are a few

Western commonwealths, which are less hampered, and freer

Court Fees .

187

from the influence of old customs, traditions, and institutions.

These have succeeded apparently in taking some decided steps

in advance of any Eastern state.

Colorado, by an act passed in 1891, 1 divided the counties of

the state according to population into six classes, the first class

containing all counties having a population of over 50,000, and

the sixth class all those of less than 3,000. The fees of all

county or court officers were graded according to the class in

which the county happened to be. It was further provided that

all county officers should be paid salaries fixed by law, and that

all fees or emoluments of office of every kind should be accounted

for and paid into the treasury. Idaho passed an act in 1887

based on a somewhat similar scheme. Here the counties were

divided into five classes according to the assessed valuation of

property in each, the lowest being $500,000, and the highest

$3, 250, 000. 2 A maximum and minimum salary for the several

county officers of each class was fixed by law; and provision was

made that the fees collected by each, with the exception of

those of justices of the peace, should be accounted for and paid

into the county treasury. Montana has divided the counties

into eight classes, and adopted provisions similar to those al¬

ready mentioned. Nevada in 1885 fixed by law the salaries of

some of the county officers and provided that all fees should be

paid into the county treasury. Arizona3 has still another sys¬

tem. Here the counties are classified according to the number

of registered voters in each. Officers in those counties having

less than seven hundred and fifty voters, receive fees and salary

which together shall not 'amount to more than six hundred

dollars. Counties having less than fifteen hundred voters may

remunerate their officers by means of fees and salaries; while

officers of counties having more than fifteen hundred voters are,

within certain maximum limits, to be allowed the fees of office

only. California has a much more elaborate system. An act

passed in 1891 divided the counties of the state into fifty- three

classes based on population. In the first class were all counties

1 Laws , 1891, p. 314, par. 22.

2 Feb. 7, 1896, Utah provided a similar system.

3 1893, p. 142.

183 Urdahl — The Present Fee System in the United States.

of over four hundred thousand inhabitants, while the fifty-third

class contained all having less than two thousand. The salaries

for the county clerks, sheriffs, auditors, recorders, treasurers,

tax-collectors, assessors, and district attorneys were fixed for

each class, and provision made that the fees collected should be

paid into the county treasuries. The other officers, — coroners,

justices of the peace, constables, and so on, are allowed to re¬

ceive fees; but it is required that an account be kept, and any

■excess over the maximum allowed must be paid into the county

treasury.1

The only one of the older states 2 which has as yet attempted ■

to deal with this question in this way is Kentucky.3 A

law, passed in 1895, fixed certain maximum amounts which

might be retained as salaries by the county officers; and pro¬

vided that all sums received above such amounts should be

paid into the treasuries, and heavy penalties were prescribed

for false reports by any official. An attempt was made a year

earlier to limit the amount which might be retained by city

officials out of the fees received.4

It would appear as though some one of the above schemes, if

thoroughly carried out, would furnish an adequate solution of

this grave problem. One thing, however, seems certain; and

that is, that the experiments which these Western states are

carrying on, will be of interest and value to every state in the

Union, whatever their result may be. The problem is one which

confronts almost every locality, although the abuses are more

manifest in some states than in others. Thoughtful men and

wise legislators are beginning to take more and more interest

1 Supplement to the Code of 1893, p. 375, 806.

2 Pennyslvania made an attempt in 1810 to limit the amount which

might be retained as salaries by registers of wills, recorders of deeds, pro-

thonotaries of courts of oyer and terminer, courts of quartersessions, and

orphans’ courts, by providing that an account of all fees collected by each

officer should be given to the Auditor General; and that fifty per cent, of

all fees collected in excess over $15,000 should be paid into the state treas¬

ury. The attempt was a failure because of the inefficiency of the admin¬

istrative machinery. — Laws, 1810, §1.

3 1895, Ch. 47, par. 1776.

4 1895, p. 1046, par. 3065.

Court Fees.

189

in the legislative reforms which are attempted, not only within

the Union, but also in other countries. If the reforms outlined

above should at all meet the expectation of the reformers, it

will only be a question of time until the movement will spread

over the entire West and even overcome the inertia and conser¬

vatism of many Eastern commonwealths.1 But the reform is

bound to come in course of time, even if it is not accomplished

by such legislation at a single stroke. It requires no great

power of observation to see that a change is gradually going on

in everyone of the states in the Northwest. One official after

another is transferred from the fee to the salaried list. Scarcely

a session of a legislature closes without having accomplished,

one or more changes in this respect.

C. FEDERAL COURT FEES.

Scarcely any of the states employing the fee system have as

yet required the officers to give any strict account of the total

amounts received as fees. Even if the new system is introduced,

it becomes next to impossible to obtain any figures which will

show in dollars and cents the total gain or loss due to the one

system or the other. It is quite different with the Federal

officials, and more especialy those connected with the Federal

courts. These were required comparatively early to give a

complete account of every fee received. We have thus full and

reliable statistics of the amounts collected as fees in the various

courts for a long series of years. These figures show that the

cost of maintaining the United States courts has for a number

of years been increasing at the rate of over a million dollars a

year. On May 28, 1896, Congress passed an act which changed

most of the officials connected with the Federal courts from the

fee to the salary system of compensation. The result is, that

the total expenses under the new system for the current year

1897, according to the estimates made by the Attorney General,

1 It may be of interest to note that the original drafts of two of these

laws were not made in the West by any “ sage bush ” legislators, but are

the product of the best legal talent of the East. The statute of one state

is taken from a revised code which was laid before the New York legisla¬

ture; and after being rejected by that body, it was taken up and passed in

the West.

190 Urdahl — The Present Fee System in the United States.

based on the returns for the first six months, will be $4,861,465,

as compared with $6,675,239 for 1896, which was the cost un¬

der the fee-system. This shows a total saving of $1,813,774 in

spite of the fact that the volume of business is on the increase.

The specific items in which this reduction is made as given in

the report of the attorney general are as follows:

Salaries and expenses of marshals . $2,995,541 50

Expenses for bailiffs . . . 94, 920 40

Expenses for jurors . . 215,306 09

Expenses for district attorneys . 192, 042 81

In miscellaneous expenses there is an increase of $2,646 over

the preceding year. One item which most forcibly illustrates

the extravagance of the fee system, is the mileage of United

States attorneys and their assistants, which amounted to $93,908

for the fiscal year 1896, while according to the estimates the

maximum expense under the new system will not exceed $6,000.

These figures illustrate, better than volumes of discussion, the

economic advantages of the new system, and the wastefulness

of the old method of remuneration.

But the diminution of the sums paid to public officials as sal¬

aries and for other purposes, represents by no means all the gain

which accrues to the public from this change. The attorney

general puts this very admirably when he says: —

In districts where the “ abuses of the fee system have flour¬

ished without interruption for a generation, fewer persons are