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Las diagrammet suivants illustrant la mithoda. 1 2 3 1 2 3 4 5 6 V ij*'*- .»"".>•; MICROCOPY iiSOlUTION TEST CHART (ANSI ond ISO TEST CHART No. 2) 1.0 1.1 y; 1^ ■ 40 2.2 ZO 1.8 A APPLIED I IVHGE Inc SS' 1653 East MQ;n Slref' —J Rochester, New rork '4609 uSA ■.^S (716) 482 ' 0300 - Phone SaS (716) 288 - 5989 - Fa» THE GOVERNMENT OF THE UNITED STATES THE GOVERNMENT 09 THE UNITED STATES NATIONAL, STATE, AND LOCAL BY WILLIAM BENNETT MUNBO, Ph.D^ LL.B. FROVMWB or WDXICIPAL OOTSBWIBIIT III BABVASO ninVKMIXT NetB gotk THE MACMILLAN COMPANY 1919 COPYBIOHT, 1919, bt the macmillan company. Set up »nd electrotyped. Publislwd February, 191}. XoiiBoali ^tttt J. S. Cuahing Co. — Berwick A Smith Co. Norwood, Mbm., U.S \. Zo Samuel TKlalitet AcCall in tohen of my bonufle ano flcatituOe PREFACE My aim in the preparation of this book 1 . been to provide a general survey of the principles and practice of American government as exemplified in the nation, in the states, and in the several areas of local administration. I have en- deavored, so far as ^ . limits of a single volume would per- mit, not only to exp'? n the form and functions of the Ameri- can political system, but to indicate the origin and purpose of the various institutions, to show how they ha' been de- veloped by law or by usage, to discuss their present-day workings, merits, and defects, and to contrast the political institutions of the United States with analogous institutions in other lands. Surprisingly little has been written on the history of American political institutions, and not much more on the principles which these institutions are assumed to exemplify. Text-books, in the main, have emp' isized the practical workings of governmental agencies to ' neglect of these other things. The plan, scope, content, and temper ot tliis book are in large measure the outgrowth of my expevi»^nce as a teacher. My students, by the drift of t^ . i quostioL ^ ; ad discussions, have moulded my ideas of what <-xt-book ought to contain. This book is theirs as much as it is mine. Tliat fact may help to explain why some features of American government are dilated upon at considerable length, while others are left as self-evident propositions to the perception of the reader. It explains, moreover, why the same problem is occasionally discussed from different angles, even though this has in- volved some degree of repetition. And if the general tone of the book betrays an optimist, my sufficient answer is that no man can be for many years associated with the American undergraduate and remain anjrthing else I am under obligations to Professor John A. Fairlie of the University of Illinois, to Professor A. N. Holcombe of Har- vtt VUl PREFACE vard University, and to Congressman F. W. Dallinger of Cambridge for many helpful suggestions. Miss Alice Holden of Wellesloy College has given me much-appreciated assist- ance in reading the proofs and in preparing the index. William Bennett Munro. January 5, 1919. CONTENTS I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIII. XXIV. XXV. XXVI. XXVII. XXVIII. rkam English and Colonial Origins .... 1 Preliminaries of National Government . . 14 The Constitution and Its Makers ... 26 "The Supreme Law or the Land" ... 44- How the Constitution Has Developed . .57 The Citizen and His Rights 71 The President 88 Presidential Powers and Functions . . . 105 The Cabinet and National Administration . 126 The Senate: Its Organization .... 146 The Senate : Its Functions 162 The House or Representatives : Its Composition 176 The House of Representatives: Organization AND Procedure 191 The General Powers or Congress . . . 208 The Taxing Power 219 The Borrowing Power, the National Debt, and the National Banking System . . 233 The Power to Regulate Commerce . . 246 The War Powers 265 Miscellaneous Powers op Congress . . . 277 Constitutional Limitations on the Powers of Congress 288 The Workings of Congressional Government . 299 Political Parties in National Government: Their History and Functions . . 312 Political Parties in National Government: Their Organization and Methods . . . 330 The Judicial Power of the United States . 342 The Supreme Court and the Subordinate Coi rts 357 The Government of Territories .... 372 The Place of thb Statbb in thi Nation . . SSB Th» State Cokbtitutxonb 404 X CONTENTS CBAPTIB XXIX. The State Legislature 41 the whole fabric of the Common Law were the patrimony of the American colonists from the outset. Bv migrating to America they lost none of the rights and liberties which they had possessed at home. They did not therefore create anew but nought with them , the political traditions upon which a free government could be set up The right to a share in the making of laws, the ri.'ht of self-taxation, the right to trial by jury, the right of petition, the right of all men to be dealt with equally before the law — these rights did not orig'nate in America, lliey are the heritage of the whole Anglo-Saxon race. The American Revolution preserved them at a time when they were in Hanger of being trodden under foot and the Ameri- can constitutions, both state and national, merely asserted them anew. , The thirteen colonies which formed the nucleus of the United States were the outgrowth of small communities planted along the Atlantic seaboard during the course of the seventeenth century.^ WTien the first settlers came, it was not with the idea of founding new states ; hence they were organized as trading companies with charters similar to those given to such corporations in other parts of the world But the colonists soon found that something more than this was nc•ecssar^^ Hence the company charters . For a narrative of this political development see Pf°Jf/_8°rE^''ard Channing, History of the United Stales, Vols, i-u (N. Y., 190&-1908). ENGLISH AND COLONIAL ORIGINS 3 save way in some cases to colony charters ; or where no such charters were forthcoming, the people went ahead without the formal r.uthority, establishing their own local and general governments. But the lines of this political development were not everywhere parallel. Differences in the occupations of the people and to some extent in the temper of the colonists themselves led to a departure from uniformity throughout the various communities. These pohtical differences were not, however, of great importance. If the general and local governments of Virginia and Massa- chusetts, for example, appear in colonial days to huve been quite dissimilar, that is only because contrasts always appear more sharply than similarities when one takes only a superficial view of two governments. '^ In their political ideals and institutions all the colonies were fundamentally alike; the differences among them are of slight account when weighed in the balance with the broad and deep resemblances. All the colonies had been founded by Eng- lishmen or had passed under English control. The popula- tion everywhere was overwhelmingly of one religious faith and nearly all claimed the English langi'.age as their mother tongue. The commcn law of England formed the basis of the legal system everywhere. There was a substantial unity in language, in religion, and in law, and these in all ages are the great bonds which have drawn neighboring communities together. It was because of this unity in race, language, religion. The bcMb and law that there was a substantial similarity in political ofc"'oniai- ..... imi • •! 1 • ,. I'l govemnent mstitutions.* lo begm with, the basis of colonial govern- —royal ment was in each colony the same. Alike in all of them it supf^mac/. was the supremacy of the crown. Explorers went out under royal auspices ; they took possession of new lands in the sovereign's name ; the territories which they gained became royal property. The crc wn gave the first company charters ; it also gave the colonial charters which replaced these earlier grants. When a colony had no charter, its ' The best general outlines of political ori^nization in the colonies aa .1 whole are those given in O. M. Andrews, Cnl^nid. '.Gnvrrnmeni , IfiHS- 1689 (N. Y., 1904), and in Evarts B. Greene, Provincial America, 1690- 1740 (N. Y., 1905). Decay of this basis iD England. The forms of colonial government — charter, royal, and proprietary. 4 THE GOVERNMENT OF THE UNITED STATES government existed only by royal recognition. In theory, therefore, the crown was supreme as respects the colonies, and in America this doctrine Uved on and was recogmzed until the Revolution. Not until the closmg years of the colonial period did parliament ever assume to interfere with the forms of colonial government, and at no time did the colonists concede its claim to do so. But in England the doctrine of royal supremacy lost cround. ParUament was able to bring the crown under its influence, and though it left the royal prerogative in outer form unimpaired, parUament steadily arrogated the real power to itself. At the middle of the eighteenth cen- tury, accordingly, Englishmen on both sides of the Atlantic were living under the same sovereign but under different notions as to the true role of the crown in matters of govern- ment In England the virtual supremacy of parhament was established and recognized; in America the colonists knew and admitted no sovereignty but that of the crown. This point should be made clear, otherwise the attitude of the colonists in the days before the Revolution is not easy to understand. The thirteen colonies were alike in their subjection to the crown ; they were also alike m their disregard of the fact that in the home land the old royal powers had passed under the sway of parliament. It has '.een customary to divide the thirteen colonies into three groups, namely, charter, royal, and proprietary. Connecticut and Rhode Island had charters and elected their own governors. Massachusetts after 1691 had a charter with an appointive governor.^ Pennsylvania, Dela- ware and Maryland belonged to proprietors, and tnese proprietors appointed the governors; the remaining seven colonies had neither charters nor proprietors, hence they were directly under the control of the crown, and by the crown their governors were appointed. But this differentia- tion in colonial status is not of any great importance, for all of the colonies were under relatively the same degree of control by the crown and its officers, and all of them, whether with charters or without, had much the same degree . These various charters are printed j^ Wim.«i M^DonaM. Select CharUTS Illustrative of American History, 1606-1776 (N. Y., 1899). W3b. ENGLISH AND COLONIAL ORIGINS of freedom in managing their own affairs. For the present- (hiy student of colonial institutions it would have greatly simplified matters if the English crown, in early days, had made all these things outwardly uniform, — if it had given all the colonies the same charter or given them all no char- ters at all. But that has never been the English way of doing things. The fact is that at no time was there any serious effort to make clear, beyond any chance of future Jispute, just what autonomy a colony was to have and what final powers it was not to have. The general attitude oil botli sides, until just before the Revolution, was to refrain from any quarrel over theories or fundamentals of govern- ment, to deal with each problem as it arose, one or other side giving way as the circumstances seemed to dictate. This, indeed, has been a characteristic of English colonial policy at all stages of its development and in all parts of the world. Through what channels did the crown exercise its super- How vision over the American colonies? The agencies of con- ^omro'iitd trol were not the same at all periods, but broadly speaking the colonies. it was the practice to leavo to the Board of Trade in England all matters relating to trade with the colonics, while politi- cal questions, including the making of appointments, were placed in the hands of the Privy Council. This latter body acted, as a rule, on the advice of a standing committee known as the Committee for Plantation Affairs. But the jurisdiction of the Board of Tnide was never strictly defined, and the royal ministers, either directly or through the board, frequently interfered. All instructions went directly to the colonial governors in the name of the crown. As for parliament, it had no way of controlling colonial affairs except in so far as it could influence the Lords of Trade or the Privy Council. Acts of parliament did not apply to the colonies unless they made express stipulation to that effect, and in very few was such provision made until after 1760. Then, when parliament began its practice of enact- inir special revenue laws for the colonies, the question of it- right to do so was openly denied by the colonists. On the whole the system of home control was not well organized or efficient. ITiere was always room for divided counsels, inaction, and delay. Hence the colonies, often at variance 6 THE GOVERNMENT OF TEIE UNITED STATES Framework of colonial govern- ment: the governor. ^^H ^H The colo- ^^1 ll- nial legisla ^^^1 H^ ture. ^^^H H^ H ■' H m ^1 1 with one another, were let alone when a strongly centraUzed colonial office in London might have interfered to good advantage. When tho home authorities did finally show vigor and determination, it was in behalf of a cause which united the colonies in their opposition. Each of the thirteen colonies had a governor as its chief executive ; in eight of them this oHicial was appointed by the crown, in the others he was either elected by the people or named (as in Pennsylvania) by the proprietor of the colony.* The position of the colonial governor was some- thing hke that of the king at home; he summoned the colonial parliament or assembly and could dissolve it when he willed. In some respects his authority was far more extensive than that of the crown, for he had the right to veto the assembly's acts, while in England the crown had lost this power in relation to acts of parliament. The ap- pointing authority of the colonial f>;overnor was also extensive, and he was the head of the militia in each of the colonies. The governors were of various types, but occasionally of high caliber. Their work was not easy ; on the one hand they were supposed to carry out instructions from London issued by men who frequently kiiew next to nothing about colonial conditions ; on the other hand they were the pivots of local administrr n, responsible for the efficient manage- ment of affairs yet dependent upon the colonial legislatures for money and support. The colonial governor had to servo two masters, one who gave him his appointment and the other who gave him his pay. From the nature of things he could rarely serve both well. In each colony there was also a legislature, usually com- posed of two branches. The lower chamber was in all cases elec+ed by the people, but each colony had its own quali- fications for voting and in most of them these requirements were strict. The ownership of property was usually required as a prerequisite for voting, and often reUgious tests were imposed as well.^ The members of this elective chamber ' A discussion of his powers may be found in E. B. Greene, Provcncial Governor in the Ent/liuli CulimUs of Surih America (\. i ., lojo). » For a full survey see A. E. McKinley, The Suffrage Franchite in the Thirteen English Colonics (Philadc.phia, 1905). ENGLISH AND COLONIAL ORIGINS were ''hosen by towns in Now England or by the counties in the aouthern colonies, usually for short terms. The upper chambers were primarily executive bodies ; in most cases th( members were named cither by the royal governor or by the proprietor. In addition to being the upper house of the colonial legi.slature, this body was also, in a few colonies, the governor's council, advising him and sometimes con- trolling his appointments. These colonial legislatures passed laws and claimed the sole right to legislate on any matter which concerned the colony's internal affairs. They alone could authorize the levy of taxes, and this control of the purse gave the colonial legislatures an indirect but never- theless a strong hold upon the course of executive policy. In most of the colonies, however, all legislation was subject to the governor's veto and subject also to disallowance by the English authorities if they saw fit. The powers of these colonial legislatures wore growing steadily when the eve of the Revolution approached.* In all the colonies the groundwork of jurisprudence was Laws the common law. It was not established in the colonies ^"^ji*,^* by any definite enactment, but like other Anglo-Saxon anceof institutions it migrated with the flag. In addition, the '**'• colonial legislatures (subject to the governor's veto and to the power of disallowance by the home authorities) had the right to make laws so far as these were not repugnant to the laws of England. In recognition of the ^act that new countries present new legislative requiremi nts, the colonial assemblies were given a fair degree of freedom in law-making ; but governor's vetoes were not rare, and colonial law^s were occasionally disallowed when copies reached the law ofFccrs of the crown of England. The colonists thus became familiar with two political ideas which have continued orthodox in America to the present day, first, the idea of an executive veto and, second, the idea that a law may be invalid because of its repugnance to usages or statutes more fundamental than the law itself ; in other words the conception of unconstitutionahty. In one great field the colonial legislatures were virtually • E. B. Russell. The Review of American Colonial Legislation by the King in Council (N. Y., 1915). I The coi irol of taxation. Tho jucli- ciary. Local (tnvcrn- mcnt. 8 THE GOVERNMENT OF THE UNITED STATES supreme, namely, iu the matter of raising revenue. From time to time they formally declared their exclusive right to determine what taxes should be levied, and on the whole they managed to make good their claims in this domain of government . The legislatures also controlled the appropria- tions but there wore numerous disputes as to whether this control ga"" *he legislatures full power to fix all executive and judicial .^ ries, including the salary of the governor himself. As a rt'le, however, the colonial legislatures had their way on this point as well. As for the judicial organization some differences existed among tho several colonies, but here again the general lines were uniform. All of the colonies had local courts, usually presided over by justices of the peace who were appointed by tho governor. Above these came, in most cases, tho courts of quarter sessions made up of the justices in each county. And finally, each colony had a higher court which in some cases consisted of the governor and his council but which in others was a separate body made up of ro-ularly appointed judges. From these highest colonial courts appeals might be carried to England where they were decided by the Privy Council. Tlie Privy Council was not a court in the ordinary sense ; its right to confirm or quash the judgments of the colonial courts was me-ly one phase of its authority to advise the king, who in turn was the final arbiter in all matters affecting the colonies. Until the years procedins the Revolution appeals to the Privy Council wore not frequent, but they steadily became more common after 1750. All of the colonial courts followed English judicial procedure; the right of triil by jury and the other privileges which Blackstone calls "the liberties of En'^lishmon" were everywhere given full recognition Tho colonists were thus by actual experience well schooled in the doctrine that men had inalienable rights. Tt wis in the field of local government that the greatest differences in the form if not in the spirit of colonial govern- ment appeared.^ In all the New England colonies the unit of local administration was the town, with its town 1 A further '" -oussion of local government in colonial times is included below, ch. xxxvii. EXGLISH AND COLONIAL ORIGINS 9 meeting of all the citizens and its elective local officers. The town raised its own taxes and spent them, made its , wn by-laws, and sent its representative each year to the lonial legislature. It was a miniature republic, rarely iiuorfcrcd with from above. This splendid and enduring type of local government was the joint product of racial temperament and geographical environment, and great importance should be attached to the training in self-gov- ernment which the men of colonial New England secured through a simple and democratic plan of handling their niighborhood affairs. It had a considerable part in deter- mining the common attitude on public questions in later days. Tlic southern colonies, on the other hand, established the county as their chief unit of local administration. County officers were appointed by the governor, and there wa.? no general meeting of all the inhabitants to vote the taxes or to determine matters of local policy. Finally, in tlic middle colonies, particularly in New York ana Penn- sylvania, there was a mixed type of local government, a combination of the town and county systems, which bridged the gap between the extremes of New England and the South. Yet the differences in the frame of local govern- ment throughout the thirteen colonies were not greater than those which one can find among the severo states to-day. They did n-t impair the political homogeneity of the people. The pu^ciple of local autonomy was every- where strongly upheld and asserted. With such general approach to uniformity in race, reli- Early gion, language, and law, with o.jh marked similarities in »^7X^^., political orsranization and development, with common tiw colonies, problems arising from the pressure of outside enemies, it might be expected that the various colonies would steadily draw more closely together and develop in time some form of federal union. There were some steps in that direction. As early as 1643 the four New England colonies of Plym- outh, Massachusetts Bay, Connectic..% and New Haven united in a league of friendship, particularly for mutual support against Indian attacks. It was arrp- ^ed that each of these colonies should send two delegates to a joint conference each year. For many years this New England ^sr^.v 10 THE GOVERNMENT OF THE UNITED STATES (1) The New England ConfoUcra- tiun of 1043. (2) Penn'3 sugtsestiun 169& (3) The Albany Congress, 1754. confederation proved a useful agent of inter-colonial ac- tion, but it was at best a weak and incomplete arrange- ment. There was, moreover, a great deal of jealousy among its four members, and its existence ceased after the Indian dangers, against which it had been organized, had passed away. From time to time during the next hundred years other proposals for confederation were made. William Penn made such a suggestion in 1696, and at various dates confer- ences representing several colonies were called to discuss the possibilities. But the clash of diverse local interest!', always proved to be a stumbling-block, and it required a serious common danger to impress on all the colonies their essential unity and th(>ir need of cooperation. Something of this sort came into view when the French wars demon- strated to all the New England and middle colonies their weakness as isolated units in the face of an aggressive and united enemy. At the suggestion of the Lords of Trade a congress was called at Albany in 1754 with a view to forming a ct)iifedera- tion for mutual defence, and especially to devise a plan for keeping the Iroquois from joining with the French. Seven colonies were represented ; the southern ones did not send delegates, as the immediate danger seemed to be far from tlieir own doors. Benjamin Franklin brought forward a plan of union, and the congress, after making some changes, adopted it unanimously. Franklin's plan, commonly known as the Albany Plan ot Union, contemplated a conference or congress made up of one delegate from each colony, this conference to determine the means of common defence, the number of troops to be supplied l^y each colony, and the amount of money to be contributed by each. The crown was to appoint a president-general, who should com- mand the united forces and have the spending of the money so raised. But although the delegates at Albany approved this plan, it was rejected by the several colonies when it went before them for approval. The Albany Plan, accord- ingly, came to naught. But it did have its influence in paving the way for the first Continental Congress of the Revolutionary War. ENOUSH AND COLONIAL ORIGINS 11 One further meeting of colonial delegates before the actual outbreak deserves a word, namely, the so-called Stamp-Act Congress. In 1765 the representatives of nine colonies met at New York to draw up petitions to the home government on colonial grievances, particularly with refer- ence to the Stamp Act. No project of union was at this time broached, but the incident showed that when any matter clearly affected their interests, most of the colonies could readily get together and take a common action. Why was it, in view of the manifest advantages of cooperation, that tlie thirteen colonics did not come into some sort of working federation long before the actual outbreak of troubles with England ? Local jealousies afford one reason. A failure to realize that, in a broad sense, all their chief interests were alike, is another. The home government, moreover, was never favorable to any scheme of union such as would give the colonies a solidarity of action in all matters. It was ready to have them join for the common dofoncc, provided the carrying out of such plan were intrusted to officers sent out from England. In a word, the colonies never realized their essential unity until the acute contro- versy with the mother country made it clear to them. Then, and then only, did any real union become practicable. This ia not the place to narrate the events which led to the breach with England. It should be pointed out, how- ever, that there was no general dissatisfaction with the type of existing government in the various colonies. The revolution did not come because all the colonies wanted cliarters or elective governors or manhood suffrage. Its underlying causes were economic ; they concerned ques- tions of trade and taxation. But once the spirit of resistance was aroused, it found, as it always does, new and broader grievances. The colonists soon came to a reaUzation of the fact that democracy, especially in New England, had been forging ahead more rapidly than at home, and in the Declaration of Independence new ideals of democracy, un- known at this period in England, found vigorous expression. It was the events of 1773-1774, including the imposition oi the new taxes and the four repressive acts of parlia- ment suspending the charter of Massachusetts and institut- (4) The Stamp-Aot Congress* 1766. (5) The first Conti- nental Congress, 1774. 12 THE GOVERNMENT OF THE UNITED STATES (6) The second Ci)ntinental Congress, 1775. ing other drastic measures of coercion, which supplied the inspiration to union hitherto lacking among the colonies. One of their number was nov,' in danger of having its liber- ties curtailed : what of the others, each in turn ? Singly the thirteen colonies might easily be brought one after another to comply with the demands of parhament. The danger was not now confined to north or south; it was common to all. Hence t\e calling of the first Continental Congress, which met at Pniladelphia in the autumn of 1774 with delegates present from all the colonies except Georgia. These representative' were chosen in a variety of ways, some by the colonial legislatures, some by conventions, and some by the committees of correspondence or informal committees of townsmen such as had been established in Massachusetts to unify popular action in case the legislature should be dissolved. The object of this Congress was to ward off an impending common peril by showing a united front. Its members adopted various addresses to the honie authorities ; pledged the cooperation of all the colonies in resistance to oppressive demands, and, finally, agreed that a similar congress should be called in the following year. Before the early summer of 1775, when this second Con- tinental 'Congress assembled, once again at Philadelphia, the situation had rapidly gone from bad to worse. The open clash of arms had come at Lexington and Concord, and the fate of Massachusetts seemed to be sealed unless the other colonies should quickly and loyally come to her aid. There was now no hanging back. All the colonies without exception sent their delegates to the Continental Congress of 1775, and this body at once assumed general direction of the whole colonial cause. Without any quibbles as to the source or scope of its powers the Congress appointed Washington to the chief command, called upon all the colonies for assignments of troops and supplies, and took upon itself the right to issue paper money on the joint credit. Its powers were usurped out of the necessities of the situa- tion ; the legal questions were left to be discussed and settled later. The only sanction of its acts was the acquies- cence of the people, but in the last analysis is not this the only effective sanction that any public authority can have ? ^^ ENGLISH AND COLONIAL ORIGINS 13 It was not possible, however, that a situation so anomalous should long be maintained. The colonies were still subject to the king although in active resistance to the royal author- ity. They had tacitly assumed the attributes of sovereignty without declaring themselves sovereign states. This situa- tion, however, came to an end with the Declaration of Independence in 1776. On July fourth of that year the colonies became states, each independent of the crown and independent of each other. This action made it even more imperative that the Continental Congress should rest on a firmer and more stable basis than that of a body b: ,)ught into being by Revolution with no clear definition of its powers or duties. Accordingly, on November 15, 1777, the Continental Congress sought to gain for itself the forms of legality by adopting the "Articles of Confederation and Perpetual Union," which had been in process of preparation by one of its committees for some months previously. This step was the culmination of the long process by which the thirteen communities had been brought to a full realization of their political kinship ; it was at the same time the start- ing point from which, ten years later, a far stronger and more lasting union was evolved. (7) The Declara- tion of Independ- ence, 1776, and the Articles of Confedera- tion, 1777. CHAPTER II ConstitU' tional importance of the Articles. PRELIMINARIES OF NATIONAL GOVERNRIENT The action of the Continental Congress in preparing and adopting the Articles of Confederation represented a step of profound importance in the evolution of the Amerit .-, political system. Now, for the first time, a group of delu- gates representing all the colonies were ready to set up a union which would be something more than a mere aUiance for the common defence, which would be "perpetual" in character and thus endure in peace as well as in war. That, of itself, is enougli to designate the adoption of the Articles as a milestone in the march towards a real federation. But even more deserving of attention is the fact that the various provisions of tlie Articles had a dominant influence upon the minds and actions of those who formed the national constitution ten years later. Some of these provisions worked out well, and they were perpetuated in the new constitution; others worked so badly that they were dis- carded without much regret or liesitation ; while still a few otliers, not having clearly demonstrated their full possibilities for eitlier good or ill, were either dropped altogether or retained in modified form. Tlie experience of the states under tlie Articles of Confederation was of the greatest value in this way, subjecting various political theories, as it did, to the test of actual operation under difficult conditions. The student of political institutions should not pass lightly over the ten critical years in which the Articles of Confederation embodied, somewhat crudely perhaps, the principles and practice of New World federal- ism. These were formative years of the greatest impor- tance, aiid ♦he American people probably learned more 14 PRELIMINARIES OF NATIONAL GOVERNMENT 15 about the science of government in this decade, 1777-1787, than in any other.* The Articles of Confederation and Perpetual Union were adopted by the Continental Congress after a good deal of discussion, which served to show that no one among the delegates had much enthusiasm for the system of joint government which they establislied. They were then sent to the legii^laturcs of the thirteen states for ratification. By the provi.«ioiis of the Articles the several states entered into a firm league of amity; but each state retained its sovereignt}', freedom, and independence. Everj' right not expressly delegated to the confederation remained with the states. The organ of the confederation, as provided by the Articles, was to be a Congress made up of delegates from all the states, each state to send not fewer than two nor more than seven. But whether a state sent the mini- mum or the maximum number of delegates, it was in any case to have one vote only. The legal equality of all the states was thus recognized, although there were already great differences among them in area and in population. Virginia and Massachusetts each had, at this time, eight or ten times the population of either Georgia or Delaware or Rhode Island. The union was thus a loose confedera- tion, as distinguished from a close or organic federation of states.^ As for powers, the Congress of the new confederation was given relatively few. It was to manage the war and to handle foreign relations. It might call upon the several states for contributions of money or men, but it had no way of compelling them to respond. It had various internal powers such as those of establishing a postal service and managing Indian affairs. With nine of the states assenting, it could make treaties, borrow on the joint credit, coin money or issue })ills of credit, and it did issue paper money ' A. O. McLaughlin, The Coyifcdcraliou and the ConslUtiHon (\. Y., 1905). is the most useful single volume on this period. John Piske's Critical Period of American History (13th ed., Boston, 1898), is an extremely interesting hook, but not always accurate. Por the exact text of the Articles .ee William MaoDonald, Select ■ • llhtstrative of th History of the United Sfa'm, 1776-1861 (N. Y., )■ Their general provisions. Powers of Congress under the Articles of Confed- eration. 16 THE GOVERNMENT OF THE UNITED STATES Ratifica- tion of the Articles in large quantities to pay the expenses of the war. But it had no power to tax, no power to regulate trade, and no effective authority to settle disputes among the various states themselves. The powers lodged in the Congress by the Articles were not extensive when judged in the light of lattr events, nevertheless they represented subst, itial concessions on the part of the states. PubUc opinion was not at the time prepared to go much further. National self-consciousness, even under the stress of a war for exist- ence, had not yet developed to the point of rendering a stronger union possible. Little attention was bestowed upon the executive branch of the government. It was apparently assumed that the Congress, while in session, would itself perform all necessary executive functions, but provision was made for a committee of the states to sit and act when the Congress was not in session. No mention was made of executive officers, but it was taken for granted that the Congress might appoint such as were needed, and it did so appoint a super- intendent of finance, a secretary of war, a foreign secretary, and other officials. In this action is foreshadowed the "heads of ('epartments" who later became an integral ptirt of the federal executive under the constitution of 1787. . . Even as it was, the various states were sk *v in ratifymg the Articles of Confederation, and it was not until 1781 that all had given their assent. Consequently the main dangers of the war were over before the confederation com- pleted all its legal formalities. So long as the issue of the war hung in the balance the instinct of self-preservation moved all the states to give the Congress of the Confedera- tion a varying degree of support. Some responded to every call for men, supplies, and money ; others lagged behind. Each state's compliance depended partly upon its own native spirit of loyalty and partly upon whether the state lay within the zone of immediate war dangers. The Con- gress had no coercive power ; it had no means of compelling any state to bear its due share of the war burden. During the years 1782-1786 it called upon the several states for contributions amounting to six million dollars but received PRELIMINARIES OF NATIONAL GOVERNMENT 17 only one million in all. The wonder is that it did so well, in view of its limited resources. The problems with which it had to deal, moreover, were extremely difficult, for the train of the war bore heavily upon all the states. Each was incUned to magnify its own sacrifices. The common peril did not suffice to extingiiish all interstate jealousies. These things as well as the inherent defects of the articles {iceount for the unsatisfactory workings of central govern- ment under the confederatioi. . At the best, the whole arrangement was a makeshift, and after the conclusion of poace in 1783 none of the states appeared to have any inter- est in it. Hard times came with the close of the war ; the cou.itry was deluged with paper money, and in several of the states there was much economic confusion. This kept them from giving serious attention to the workings of cen- tral government. Each state was too intent upon the solu- tion of its own problems. Turn for a moment from the affairs of the confederation The first and see what the states themselves had been doing during "^^9^'^ the war and after. As the hostilities spread from one colony to another in the early months of the war, the various royal governors and officials left the country, thus breaking (1 iwn, in part, the existing governments. In consequence of this the Continental Congress, even before it adopted the Declaration of Independence, advised that each colony should reconstruct its government to suit its own needs. S)nio of them lost no time in following this advice. Vir- ginia at once elected a 'ionvention which, under Jefferson's leadership, adopted a constitution with a bill of rights and provision for a new frame of state government. One after another the remaining states followed, until Massachusetts, the last of the thirteen, adopted its first state constitution in 1780. While these constitutions differed considerably in their Their detailed arrangements they all present a marked similarity.^ •=•*'"'. . T., • • 1 /. ... provisioM. in every case provision was made for a governor, to be chosen by the legislature or by the voters ; in nearly every instance ' A conspectus, showing the main features of these several stat« consti- tutions, may \k found in Edward Channing, History oj the United Statet, Vol. iii, pp. 45&-462. c u i.;i^, si^*Wi'^.' The princi- ple of sepa- ration of powers. Emphasis upon secur- ities for individual liberty. 18 THE GOVERNMENT OF THE UNITED STATES there was provision for a legislature of two chambers ; and in each for a judiciiirj-, appointed either by the governor or by the logisluturc or by a branch of the legislature. Tlie colonial governor's right to veto legislation was abolished in all but two states, and in every one of them the governor s appointing authority as it had existed in colonial times was taken away or curtailed. Oreatly increased powers w(>re evcrvwhere allotted to the state legislatures. The principle of the separation of powers, that is, of keeping the executive, legislative, and judicial powers separate, gained recognition in only a few of these state constitutions ; but in one of them it was stated plainly, namely, in the Massar chusotts constitution, which set forth the doctrine as fol- lows : " In the government of this commonwealth, the legis- lative department shall never exercise the executive and judicial powers, or either of them : the judicial shall never exercise the legislative and executive powers, or either of them : to the end that it may be a government of laws and not Gi men." From this unequivocal statement in one of the new state constitutions, however, it if not to be con- cluded that the doctrine of separation of powers was al- ready finding general favor. Most of the states did not at the outset seem afraid of making the state legislature supreme. Another cliaracteristic of the earliest state constitutions was the empha.'iis which most of them placed upon securities for individual libertv. Many of these guarantees already existed at common law, but the events which preceded and accompanied the Revolution convinced thie framers of the various state constitutions that it would be well to have them incorporated into these organic docunients. Freedom of speech and of assembly, the right of trial by jury, the privilege of the writ of habeas corpus, — these and many other so-termed inalienable rights now found th'^ir way to definite expression in terms of constitutional guarantees. Yet on the whole the new constitutions did not establish governments that were radically differeni, in form from those which existed in colonial days. Little or nothing was borrowed from outside. The new state constitutions embodied the results of a liberal overhauling PRELIMINARIES OF NATIONAL GOVERNMENT 19 of what had long existed in the eeveral colonies. Indeed the colonies which had possessed charters before the Revo- lution found very httle overhauling necessary. So far as the frame of government in each of these thirteen com- munities is concerned, the Revolution and the subsequent adoption of new state constitutions made no violent changes. There were, however, great changes in the spirit of govern- ment, in the responsiveness of officials to public opinion, in the attitude of the people towards those in authority, and in possibilities afforded for future political development. The framing of these state constitut-ons, moreover, had an important educative influence. Wl le they were in process men turned their thoughts to tin' fundamentals of government. They examined anew a multitude of ques- tions relating to the state and the social order. Tliey talked of Locke and Montesquieu, of social compacts, checks and balances, popular sovereignty and the natural rights of the citizen. Hence there were available in all the states, groups of men who, when the time arrived, could be c£^.lled upon to help in the larger work of framing a con- stitution for the nation as a whole. Without the preliminary work done in the endeavor to make federalism efficient under the Articles of Confederation and in the making of these state constitutions, the task set before the federal convention of IV 87 would have been infinitely harder to perform. The whole people, moreover, became familiar with the idea of a constitution or fundamental law as the basis of government, a written document emanating from the people, ordained into force by them either directly or through their representatives, and guaranteeing them against abuses of power. This was something that as Englishmen they had never learned. Such was the situation which existed in the years immedi- ately following 1783 when peace once more came upon the land. At Philadelphia there was a Congress made up of delegates from tlie several states as provided for by the Articles of Confederation. Its meetings were still held, aithnus^h rars'ly were all the states represented. Each of those states had adopted its own new constitution ; each was turning attentively to the settlement of its own problems. The revived interest ID political fundamen- tals. The critical period — drifting toward anarchy. Weaknesaea of the Confedera- tion: 1. Its lack of revenues 20 THE GOVERNMENT OF THE UNITED STATES Economic conditions everywhere were disorganized for busTners hud been neglected during the war and the mass of nr vate debts was very large. There was a great scarcity l?Z money although the land was flooded with paper notes some issued by the confederation and some by the states* Each state was seeking to relieve its own necessi- t es by pressing its own advantages, grasping at everythmg wIthJ? reach. So avaricious indeed were some in asserting Their claims that interstate iU-feeUng rapidly developed^ In some cases the boundaries between the colonies had never been authoritatively fixed ; now that the colonies had belome states they were coming close to blows over disputed S to border t'erritory. Likewise there were commercial iealousies Each state was hurrying to build up its own Trade at the expense of its neighbors. Those which had naturaf advantages tried to exclude others^om he use o them. The initial skirmishing m a war fj^^^^^^^ *^^^^^^ and trade discriminations began as early as 1/85, when I^ew York imposed fees upon all vessels entering its ports from Connecticut or New Jersey. Virgin a -^ ^ ajlj^d we e at swords' points over the navigatu^n of the Potom... Trouble was impending all along the hne. Why d^d not the Congress at Philadelphia intervene to prevent this drift towards federal anarchy? Its member, no loubt would glad' • have done so had they only possessed the power But tl ongress, no longer supported with any enth'usTasm by the .ates had become - almof -^^^^^^^^^^ factor in pubUc affairs. It had no rights of taxation and hence no ^revenues. Yet money was urgemly needed to pay interest on loans made in France and Holland as well LL America during the war; also to pay the ordinary ex- penses of government. To make matters worse, the officers and soldiers of the revolution had in many cases served wUhou pay other than certificates of indebtedness, and They were now clamoring for what they ^ad fully earned^ The eTormous quantities of paper money which had been Sued became so depreciated that notes Ana X ceased to pass as currency at all, although they were sometimes i L. C. Hatch. The AdminUtralion of the American RevoMionary Army (N.Y., 1904). PRELIMINARIES OF NATIONAL GOVERNMENT 21 bought and sotu in bundles by speculators who hoped that some day they might perhaps get one cent on the dollar for them. The Congress, it is true, still possessed its power to call on the several states for money contributions and did so frequently ; but it encountered evasion more often than response. Some states quietly ignored the requests ; others gave a small part of what was asked and grumbled loudly at that; only in rare instances were calls complied with promptly and in full. In the later years of the confedera- tion only two states. New York and Pennsylvania, were mp.king any serious attempt to fulfil their financial obliga- tions to congress. Without funds the confederation was impotent.' It could neither pay off the old army nor raise a new one. It could not meet the interest payments on the national debt. It could not provide ships to protect the commerce of the states against the Barbary pirates who were seizing American seamen in the Mediterranean and holding them for ransom. It could not provide for proper diplomatic representation of the United States abroad. The entire income of the confederation during its later days was less than two hundred thousand dollars a year. By the Articles of Confederation the Congress had author- 2. Lack of ity to borrow on the common credit (provided nine states ^|^*^g. assented), and some loans were secured under this authority. But with no regular revenues to insure prompt payment of interest or the repayment of principal at maturity it was not possible to obtain funds except on onerous rms either at home or abroad. John Adams in 1784 was sent to Europe on a borrowing expedition, but all he could obtain was about three hundred thousand dollars, and for even this relatively small sum it was necessary to promise an exorbitant rate of interest. The public credit was down to bed rock. Yet any new country, particularly after an exhausting struggle, needs large sums for upbuilding, and this was America's situation. The need, however, was not so much for larger borrowing powers as for a national credit supported by a national income as a basis for borrowing. Equally important among the specific weaknesses of the > C. J. Bullock, The Finances of the UnUed StcUe$, 1776-1789; trith Eapecicd Reference to the Budget (Madison, 1895). -r-^J 22 THE GOVERNMENT OF THE UNITED STATES 3. Its lack of power to rt'iju- late commerco. 4. Its mili- tary im- potence. Confederation was the lack of any power to rcjiulato trade, either witli foreign nations or among the several states or with the Indian tribes of the great liinterland. The regu- lation of trade involves, as a rule, the making of tariffs and the congress could impose no duties on imports or ex- ports. Each state was already making its own tariff, and each was doing its best to attract conuuerce to its own ports. The common good counted for next to nothing in their respective policies. Commercial rivalry among neighbor- ing states was rapidly engendering bad feeling, and a spirit of avarice and retail:^ ^ion was in the air. The central gov- ernment could do noti.ing but sit in silence while this in- terplay went on. Meanwhile, moreover, the opportunity to make favorable conimercial treaties with various Euro- pean nations was slipping rapidly away. It was obviously desirable that in such matters all thirteen states shoukl act together. Yet under the existing conditions no such common action could 1)0 hoped for. "We are one nation to-day and thirteen to-morrow," said Washington. "Who will treat with us on such terms?" Most ominous of all was the outlook iii '■nternational relations. England was still intrenclied in Canada to the north, while Spain possessed the southwest. The American colonies had won their independence with the aid of France, but who could tell how long the tottering Bourbon monarchy would stay friendly or continue in a po^^ition to render aid? Two powerful nations of Europe were on the confedera- tion's fl iks: what if they should some day join hands to raid the land and divide the spcils? Nor was such an eventualitv altogether beyond the range of possibilities, particularly if thw states should ?:all to quarrelling among themselves. Even if all should make common cause, stand united, and prepare for this danger, it would continue to present a serious aspect ; but without preparation or unity, with the states split into rival factions, one faction perhaps calling in outside assistance, the peril would be overwhelm- ing. Seventy-five years later, when a much larger group of ""American states engnged in civil strife over the issue yf slavery, the danger of foreign intervention, and with it the probable disruption of the Union for all time, was still seri- PllEUMINARIES OF NATIONAL GOVERNMENT 23 0U8. Yet by that time both F. ance and Spain had practi- cally withdrawn from the Western Hemisphere. How much more vividly the danger must have appeared to sagacious men in the last decades of the eighteenth cen- tury ! . ,, The shortcomings o' the confederation are well summa- rized ill what Washington culled "the absence of coercive power." "I do not conceive," he wrote, "that we can exist long as a nation without having lodged somewhere a power which will pervade the whole Union in as energetic a manner as the authority of the state governments extends over the soverp.l states." In other words the Congress of the Confederation could deal only with the states and not directlv with the people as the legislatures of the vanous states 'could do. Specifically it was impotent because it lacked four things which every strong national government must possess: ability to raise revenues by taxation, to borrow money, to regulate commerce, and to provide ade- ciuately for the common defence by raising and si'.pportmg armies. And these, rather significantly, were the four greatest powers given to the Congress of the United States by the con -tilution which in n87 replaced the old Articles of Confederation. Notwithstanding its meagre authority, however, the achievements of the old Congress were highly creditable. It kept the armies in the field until peace was assured, and in the face of stupendous difficulties furnished them with supplies. Despite its cumbrous and imperfect execu- tive machinery it negotiated the Peace of 1783 whereby the independence of the thirteen states was given full recognition by Great Britain. During these years the Congress was the sole embodiment of federal authority in America, the one centripetal force that held thirteen jealous communities to a policy of reasonably united effort. What it lacked in formal powers was counterbalanced m part by its patience and its patriotism. During these years there were thoughtful men both \n the Con.'^reKR .and outside of it who realized that things were heading in the wrong direction. The confederation, they urged, must be strengthened or it would go to pieces General defocta of iho oon- (ederstioa What the confederar tion accom- plished. Attempts to strenethen the con- federation. 24 THE GOVERNMENT OF THE UNITED STATES The Annapolia conven- tion, 1786. for lack of funds. As early as 1781 the Congress had made a request to the several states that it be allowed to lay a five per cent tax on certain imports. Nearly all the states were willing, but Rhode Island refused. Two years later a different proposition was put forth, namely, that the several states should collect certain import duties and api-ly all the proceeds to paying off the debt incurred by the confederation during the war. But this suggestion was declined by four states. In 1786 matters came to a crux when the Congress plainly put the whole matter before the nation. "A crisis has arrived," it declared, "when the people of the United States, by whose will and for whose benefit the federal government was instituted, must decide whether they will support their rank as a nation by main- taining the pubhc faith at home and abroad, or whether, for the want of a timely exertion in establishing a general revenue and thereby giving strength to the Confederacy, they will hazard not only the existence of the Union but of those great and invaluable privileges for which they have so arduously and so honorably contended." Now it happened about this time (1785) that Maryland and Virginia were endeavoring to reach an agreement concerning the navigation of the Potomac. Commissioners from these two states, having reached an understanding, proposed that Pennsylvania and Delaware be also asked to assent to the arrangement. Thus the project enlarged until in the end all the states were asked to send delegates to a convention to be held at Annapolis in 1786 to consider the trade interests of the confederation and "how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony." The response, however, was disappointing, for when the convention met, only five states were repre- sented.' The others did not seem to be sufficiently inter- ested. Consequently the Annapolis convention did not feel that it would h<» worth while to take up the task for which it had been called together. Alexander Hamilton of New York, however, suggested that another attempt ' The states represented were Virginia, New York, New Jersey, Pennsyl- vania, and Delaware. PRELIMINARIES OF NATIONAL GOVERNMENT 25 1)0 made and resolutions were adopted pointing out the critical condition of affairs ; .tI asking all the states to send representatives, not le' ; iaa./i tluo'^ or more than seven, to a convention to be h Id in Philrtdcip lia the next summer. The purpose of this or\cntion, ;..i stated in the resolu- tion, was "to take intc 'o> sifh>ratijn the situation of the United States, to devise such fuuher provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union and to report such an Act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislatures of every state, will effectually provide for the same." Copies of the reso- lution were sent to the Congress and to all the state legis- latures. Congress indorsed the idea and it found favor in most of the states, chiefly because Washington, Hamilton, Madison, Franklin, and others lent their personal influence ill support of it. Nu one openly proposed that the conven- tion should be authorized to draft a new constitution. The ostensible purpose was to supplement and strengthen the Articles of Confederation. All of the states except Rhode Island responded to this call and appointed their delegates. In some states the appointments were made directly by the state legislature; in others the legislature authorized the governor to appoint the delegates. All were summoned to meet at Philadelphia in May, 1787. The con- vention of 1787. CHAPTER III THE CONSTITITTION AND ITS MAKKRS The con- vention's allies. Obstacles to its suc- cess. Much has been written about the difficulties which had to be surmounted in getting the states to send delegates to Philadelphia in 1787, and even more, perhaps, about the obstacles which faced these delegates when they came to- gether. Yet the convention of 1787 met under fortunate ausjiices. It represented a people who iuid already shown their capacity for drawing together in the face of outside pressure and of staying united as long at least as danger threatened. All had passed through the trials of a long and bitter war; all loved tl, ;r new freedom because they had been through such sacrifices to make it their own. Practically all were behevers in the merits of republican government, for those who did not so believe, the Tories, had been harried out of the land. There were some mon- archists at heart, no doubt, but they were not proclaiming their sentiments aloud. The convention of 1787, moreover, represented a people who already had acquired a consider- able round of experience in the making of new governments, thirteen of them, and had seen these fruits of their own handiwork gain in power. The states themselves were forging ahead, even if the confederation was not. The public mind had bee?i tuned up by political discussion. And, most vital of all, every one now felt that something needed to be done. On the other hand, despite those various motives and forces which made for a closer union and a stronger central government, there were great and real obstacles in the con- vention's way. The northern and southern states were already brconiing quite unlike in their economic and social environment. In every state the local patriotism was in- 2(5 THE ONSTITUTION AND ITS MAKERS 27 tense. There was everywhere a dread of external authority, a conviction that all jrood government must come from within not without, from below not from above. The very distances which sepa I the states one from another, the absence of good roads, the infrequency with which men travelled from one part of the country to the other — all these things helped to accentuate provincialism. Liberty had been won ; equality there always had been ; but of fraternity there was as yet little or none at all. Georgia and Massachusetts, for example, had nmch in common, but among their people there was no ready realization of this identity in ideals or in interests. Taking it all in all, how- over, it was the fundamental sense of kindred that counted ; the minor elements of unlikeness among the states did not, in the end, prove to be as great obstacles as might have been expected. The convention was summoned to meet on the second Organiza- iVIondav in May, 1787, but when that date arrived many of "'""^' ^^' the delegates had not reached Philadelphia and more than a fortnight was lost in getting started. At length, a sufficient number being or hand, the convention unanimously chi Washington as its president , decided that its deliberatic. - sliould be secret, and plunged right into its work. The meetings were held in the old brick State House in Phila- delphia, the building in which the Declaration of Indepen- dence had been signed.' Who w(Te the men assembled here to wrestle with the Whooom- problem of welding thirteen restless and sensitive communi- p°**"^ "'^ ties into a strong nation? There is a popular notion that they embodied most of the wisdom and resourcefulness in the land, that the Fathers of the Republic formed a galaxy of New World Solons and Ciceros. In truth, however, and very fortunately, that was not the case. The conven- tion of 1787 was a gathering of very diverse types. It contained many men of great political wisdom. It also in- >Tlip lirrnrda nf the Fcihrnl Convention of 1TS7. by M:ix Farrand (3 vols., Xrw ITavon, 1011), afford the best source for a cartful study of the convention's work. The same author's Framing of the Constitution of the United Stales (New Haven. 1913) gives an excellent summary of the Inrgpr compilation. Mention should also be made of Edward Elliott, Biographi- cal Story of the Coristiiuiion (N. Y., 1910). 28 THE GOVERNMENT OF THE iJNITED STATES eluded in its membership some men whom nature had en- dowed with neither abiUty nor good temper, as the proceed- ings disclose. All that can truly be said of the convention's make-up is that it included men of widely different ability, temperament, and experience; and therein lay it al strength. It contained, as has 'l>een so often poi" d it, a few men of rare political genius, such :is George \v asning- ton, Alexander Hamilton, and James Madison; likewise some judicially-minded spirits, such as Benjamin Frank- lin James Wilson, John Dickinson, Robert Morris, and Roger Sherman ; some thoroughly well-meaning men uf mod- erate attainments, such as William Paterson, John Rut- ledge, and the two Pinckneys ; a few long-winded obstruc- tionists, like Luther Martin, who did little but clog the wheels ; and two score of others who i \rely had much to say but who listened attentively and voted right when important issues arose. The men in this last group were the ones whom William Pierce in his contemporary pen-picture of his fellow delegates termed the "respectable characters" of the convention, and they outnumbered all others.* There were fifty-five men in the constitutional convention, representing twelve states. Pennsylvania sent her full quota of seven ; while New York, on the other hand, sent only three, and these wt;e absent a large part of the time. More than half the delegates were college graduates; a majority of them had held public offices of one sort or Variety of another, some of them posts of high importance. Not a theopinioM f^^ ^^j.^ ^gjj ^f large business interests, while as many ests repre- othcrs wcrc In Very modest worldly circumstances. Every scnted. shade of opinion and political belief was represented : from Alexander Hamilton, who would have created a thoroughly centralized and aristocratic union, to Luther Martin of Maryland, who wanted the old confederation left as it was, weaknesses and all. Its variety of ideas and attitudes, not its omniscience, was the great asset of this convention. Many wiser groups of men at vari- ' William Pierce of the Georgia delegation diverted some of his time from the senous -work of the cotivcritioa to « file and leave for posterity an interesting though somewhat facetious sketch of his colleagues. It is printed in the American Hitlorical Review, iii, pp. 310-334. THE CONSTITUTION AND ITS MAKERS 29 ous times in human history have set their minds to the work of law-making, but never has t^^re been a body more evenly balanced, or more willing to compromise for the sake of progress, or more intent on creating a frame of government able to meet the strain that might be put upon it. Washington presided throughout the convention s delibcr- Jj^^ders^^J^^ ations. As presiding officer he felt himself debarred from ^i,f„." a prominent part in the debates and is only once on record wa^^ng- as a participant ; but he rendered great service in quieting ^"aiikiin. the occasional storms of personal animosity, and his com- ^^^^^^ manding influence was on many occasions unobtrusively exercised in the right direction. Benjamin Franklin, who headed the Pennsylvania group, was the greatest savarit of them all, but he was now eighty-one years old and his voice would no longer rise above a whisper. But his mature judgment and his quiet optimism were steadying factors of great value. Some of the wisest suggestions came from him. In point of political genius, imagination, and eloquence, none of the delegates equalled Alexander Hamilton of New York. He was still a young man, only thirty, well educated, and with intense poUtical convic- tions. He distrusted popular government and wanted the ship of state to be well ballasted. It is often said that he was at heart a monarchist, but he was hardly that. It is fairer to speak of him as a friend of centralized republi- canism such as exists to-day in France but for which there were no precedents in his time. Hamilton, vuifortunately, was absent from meetings a groat deal, owing to personal business of an urgent nature, but when present, he always had ideas to put forward. The convention did not often fall in with his views, and while the delegates applauded his oratory they regularly voted his proposals down. Then there was James Madison of Virginia. He is often James called the "father of the Constitution," and if the attribute *** "°°- of paternity must go to some one man, he is entitled to it. Less briUiam than Hamilton, he was far more widely read, more discriminating in his opinior 'ess aggressive and more patient iji the advocacy of his own views. Every 30 THE GOVERNMENT OF THE UNITED STATES The rank and file. one, in the words of the clironiclcr Pierce, acknowledged his proatnoss. Fmin early days an industrious student of past politics and present history, he knew what had Viroupht about the rise and fall of every federation from the Aclnean League to his own day. In preparation for the convention lie had prepared some elaborate "Notes on Ancient and Modern Confeck racies," and this manuscript furnislied him with ammunition for his part in the debates. He was no orator, but his sound and sure knowledge of his- torical precedents made him what Pierce termed "the best- informed man" in the convention. Madison was from first to last the most influential member of tiie convention, and ho owed tliis to his untiring industry as a student, his uufaiUnn; readiness to work in harmony with men whose opinions dilTered from his own, and his unquestioned per- sonal integrity. Much of what we now know about the proceedings of the convention is due to IVIadison's methodi- cal industry, for ilay l)y day he entered in his private journal a resume of what went on. The constitution as finally drafted was not a mirror of his own political ideas, but it included the things lie had most strongly con- tended for. There were others among the memb(>rs Avhose prominence almr=t g:ive them rank as leaders. Luther Martin of ^Lary- land was one of these, if the frequency and prolixity of his speeches in the convention n\ay be taken as indications of prominence. ,James Wilson and (jouverneur Morris of Pennsylvania, Roger Slierman and Oliver Ellsworth of Connecticut, Elliridge (ierry of ]\Lassachusetts, William Paterson of New .lersey, the two Pinckneys of South Caro- lina, were all active in the proceedings. It is hard to tell just how much real influence each exercised, for in the con- stitutional convention of 17S7, as in all other deliberative bodies, the men most frequently on their feet are not necessarily the ones whose opinions counted heavily with their colleagues. While the convent icm contained men of all ages, from Mercer of Virginia, who was only twenty-eight, to Franklin, who was almost eighty-two, one is impressed with the fact that much of the best work was done by the younger THE CONSTITUTION AND ITS MAKERS 31 mombers. James Madison, who contributed most to the dailv kibors, was thirty-six ; Aloxtinder Hamihon, wlio made the 'greatest single argument of the whole summer, was only thirty ; and Gouverneur M(jrri:s who put the fine finishing touches to the document, was just thirty-five. The constitution, acc-dingly, reflected the zeal and opti- mism of these voung men, chastened to moderation by the mature judgment of their older colleagues. Much youth- ful courtigc was gathered within these four walls during the suminer of 1787, but there was also enough conserva- tism to keep it in bounds. In organizing, the convention adopted its own rules. On all questions the vote was taken by states, each state having one vote. The delegates, as has been said, were pltHlgod to sccrecv, and this was a wise move, for if the sub- sequent bitter disagreements on many points among the members had been known to the world, the constitution would probably never have been ratified by the several states. Sessions were held almost every week-day from May to September. Matters were often referred to com- mittees, but all the vital questions were threshed out on the floor bv tlie whole convention. It did not take long to discover that among the dele- gates there were two diametrically opposite opinions as to what the convention ought to do. Some felt that the Arti- cles of Confederation should be used as a basis and that the convention had no authority to do more than supple- ment or strengthen this agreement. Otliers were of the ODinion that the articles were hopelessly inadeciuate, that revising them would be a waste of time, and th.at the con- vention should simply throw them aside and begin anew. Even before the meetings commenced, in fact, James M.idi- son, with the help of his Virginia colleagues, had prepared a new scheme which disregarded the Articles aUogether, and this was at once laid before the convention b- Edmund Randolph of Virginia. Known as the Randolph plan, it proposed a real federal union, wi.h a central executive, legislature, and judiciary, with independent taxing powers and with authority to make its mandates fall directly upon thi. individual citizen, not merely upon the states. The The procedure. Fundamen- tal questions : tlio nature of tlie union. The Randolph plan. 32 THE GOVERNMENT OF THE UNITED STATES The Pater- aon plan. Could these two plana be reconciled ? federal Coiifj;ress, uiuler this plan, was to be made up of representatives from the several states in proportion to their respective populations. Virginia would thus have fifteen or sixteen representatives, while Georgia, Delaware, or New Jersey would each have only one or two. As a counter proposition William Paterson of New Jersey brought forward a wholly different scheme. This plan contemplated tlie continuance of a Congress on substan- tially the same lines as that of the confederation — a single chamber with each state hav-ng a single vote but with the addition of an executive in the form of a council chosen by the Congress and with provision for a federal judiciary. The Paterson plan also provided for a federal revenue by proposing that Congress be given the power to levy duties and excise taxes. Each of these two plans obtained an almost equal numeri- cal support among the states represented in the convention, the larger states for obvious reasons siding with Virginia, while the smaller states, from equally plain motives of self- interest, ranged up with New Jersey. For days the con- vention debated the merits and faults of each proposal. One faction pointed out the unfairness of giving to the states which would pay most of the taxes no more repre- sentation than tliosc which would contribute little. The other stood firm on the point that to depart from the old doctrine of the equality of all the states, large and small, would be the first step toward the ultimate servitude of the small community. There was no more reason, said a dele- gate from one of the small states, for giving a large state more vot(\s than a small one than there was for giving a big man more votes than a little man. The appeals, after all, were not to reason but to self-interest. The funda- mental trouble was that some states were large and some small ; while all were alike sovereign and independent. They had adopted the doctrine of common equality as a makeshift at the outset of the war ; now the small states held to it as their inalienable right. For a time it seemed as though the convention would split its keel nn this rock. In the end a solution was found through the door of compromise. 't^, THE CONSTITUilON AND ITS MAKERS 33 This solution is commonly known as the Connecticut TheCon- compromise, because it was brought forth by the delegates "^^p^ of that middle-sized state, although it is believed to have mise. sprung from the fertile intellect of Benjamin Franklin. In brief, it provided that in the proposed federal Congress the upper House should be based on the equal representation of tlie states, ■ -hilo !he lower House should represent the several states in proportion to their respective populations, with the additional proviso that all bills for raising or appropriating money should originate in the lower House and should not be subject to amendment in the upper cham- ber. Before the convention finished its work , however, this latter proviso was somewhat modified. With great difficulty the delegates were induced to accept the Connecti- cut compromise, but it was finally adopted and its accept- ance removed the greatest ob.stacle that the delegates encountered. This fundamental question out of the way, the conven- The tion began to make better progress. But soon another ^f^^,. source of friction and disagreement was encountered, com- Thp Connecticut compromise had provided that represen- p'^'"'*'- tatives in the lower house of the new Congress should be apportioned among the several states on a basis of popu- lation. But in counting the population of a state, were the slaves to be nmted or left out? Nothing had been said about that point when the Connecticut compromise was under discussion. The delegates from South Carolina were particularly insistent that the term "population" should be taken to include all inhabitants whether bond or free, black or white. One of the Maiasachusetts delegates retorted angrily that if such chattels as slaves were counted in the South, other such chattels as horses and mules should be counted in the North. The states opposed to the count- ing of slaves were in the majority and could have had their way by boldly asserting it ; but, after a discussion which made the sparks of animosity fly in showers, they chose to meet tho others halfway or rather more than halfway. The outcome was the arraneement known as the three- fifths compromise, by which it was agreed that slaves should be counted in determining the quota of representation from 34 THE GOVERNMENT OF THE UNITED STATES Illogical nature of this arrariRe- ment. Other difficultiog. each state, but at tliroc-fifths of tlicir numerical strength only. In other words a hundred slavc^H were to be counted, for purposes of representation in Congress, as the equivalent of sixty free men. Direct taxes, if levied upon the several states, were to be apportioned on this same basis. There was no logic in this compromise except possibly the logic of an awkward situation. A convention of political philosophers would never have devised it or agreed to it. If slaves were deemed to be citizens, they should have been counted, head for head, at full value ; if they were deemed to be chattels, tliey should not have been counted at all. The three-fifths compromise could not be defended except on the hypotlu'sis that slaves were neither one thing nor the other.' Illogical as it was, however, this compromise is really a tribute to the sound political sense of the conven- tion. It showed that there were practical politicians at work :>. he new frame of governm(>nt, men who were ready to (. ./rce themselves from logic or theory if by so doing they could bring the states into working harmony and thus get a strong union established. But there were other questions connected with slavery. Every one agreed that the nc-w f(-deral government should be given some power to regulate commerce. The absence of such authority in central hands had been a glaring weak- ness under tlie Articles of Confederation. To what extent, however, anil sul)ject to what limitations, .should this power be given to +he new Congress? This was a perplexing question. If Congress should l)e given unrestricted power, it might levy duties not only on imports but upon the great exports of tobacco, cotton, rice, and indigo, which the southern states wore shipping to Europe. Quite possibly, indeed, the populous northern states, like Pennsylvania, New York, and Massachusetts, might, by their superior repre- sentation in the new Congress, try to make the duties on southern exports furnish the bulk of the national revenue. And what about the trade in slaves? Slaves were still being brought from the coasts of Africa in large numbers, and the southern states felt that the new Congress should not have power, under color of regulating trade, to shut down upon these importations ui slaves or to tax them too THE CON'STITUTION AND ITS MAKF.RS 35 heavily. On the other hand, tlicrc were delegates in the convention, even from the rioutli, who openly expressed their longing for the day >, hen this brutal and infernal traffic would come to an end. Must the new cdnstitution, then, to satisfy the southern planters, sanctify and fasten forever upon the l.-uid the curse of human servitude? Another compromise solved thes(< problems. It was Ti..- cm- agreed that Congress should have full liberty to tax imports "|'^'.^!;r^aJ but should be forbidden to tax exports ; furthermore, that c<.mpro- it should not be allowed to prohibit the importation of ■""*■ slaves until the year 1808. Meanwhili', it might levy a lax, not exceeding ten dollars per head, on all slaves brought in. Under this arrangement slaves continued to come for twenty years after the constitution went into force, but when this time-limit expired, Congress promptly forbade further importations. Thereafter tlic South had to depend upon the natural incnase of its slave population. In the meantime, however, slavery gained an almost unshakable hold upon the economic system of these southern communi- ties. What the loosening of this iron grip would ultimately cost the nation the framers of tlie compromise could not have foreseen; but of all the compromises of the constitu- tion, this was the most heavily paid hir in tiie end. Various other questions had to be settled before the other convention's work was fiuishctl, and some of them made i'"'-^''°°^ heavy demands upon the time and patience of the members. The proper position and powers of the chief executive was one of these. The Articles of Confederation had provided for no separate executive ; the Congress possessed botii executive and l(>gislative powers and iiandled its executive functions through its own committers or through officers whom it appointed. This system of carrying on the execu- tive work of government proved, however, to be far from satisfactory. It was inefficient in war and cumbersome in peace. Hence arose the idea of making a place in the new constitution for a powerful and independent executive in the person of a President who would have dignity and authority in keeping with his position as the first citizen • of a great nation. Yet the convention feit thai there must be care lest the President's powers be made too broad, thus 36 THE GOVERNMENT OF THE UNITED STATES The final touches. The con- stitution signed anil transmitted to the several states for ratification. Riving liim at rtomc future time the opportunity to become a virtual dictator with a more agreeabh^ name. Accord- ingly, the framers of the constitution devised a curious methoil of choosing the President through the agency of an electoral college, so that he might be independent of Con- gress. As a weapon of self-defence, moreover, they gave him the power of veto. Likewise they placed in his hands great authority with respect to the making of appointments and the negotiating of treaties with foreign states. But, on the other hand, they hedged the presidential office with stern restrictions. A plan of removal by impeachment was provided to hold him in leash; his appointments were made subject to confirmation by the Senate, and a two-thirds vote of this body was made necessary to the ratification of treaties negotiated by him. The con- vention, in short, gave with one hand and took away with the other. Many other problems had to be worked over patiently. Time and again important matters were settled, only to be reopened and debated again. But m due course the various provisions were ready for a Commiiiee of Detail, which put them into logical form. Then they were gone over again, and, after more alterations, the document ;vas ready in September for a Committee of Revision. Gouver- neurMorris, as chairman of this committee, was charged with the function of putting the provisions into terse and forceful English. How admirably he performed this task even a rapid reading of the document will disclose. On September 17, 1787, the final draft of the constitu- tion was signed by thirty-nine members of the convention. Of the others, some were absent; some refused to sign. The constitution was then sent to the Congress of the Confederation with the request that copies be transmitted to the legislature? the several states, to be by them submitted to state conventions elected by the people, for ratification. This done, the convention dissolved. The members started for their own states to explain the ncw^ constitution, .and there was much explaining to do. By diligence and patience the constitution had been THE CONSTITUTION AND ITS MAKERS 37 framp'l, but a bipRor task was still ahead, that of getting the states to accept it. No one dared to hope that all the states would apiree, hence it was provided by the convention that if nine states gave their adhesion, the new central gov- ernment would be established. There were serious doubts, indeed, whether even nine states would concur. The fact is that the meinb. rs of the convention were themselves far from being enthusiastic over the product of their summer's labor. Scarcely one of th(; thirM-nine who signed the constitution regarded the document with whole-hearted approval. Alexander Hamilton, for example, gave his signature gladly, but in doing so took occasion to remmd the convention that no man'» opinions were more remote from the new const.', ion than his own. V^ was ready to accept it . cause in his opinion no plan of g'- \ ."nent could be mueii worse than that provided by the .^<' i^s of Con- federation. Benjamin Frankhn also had misgivings; but after reniurking that the experience of fourscore years had taught him to doubt the infallibility of his own judgment, lie placed his name at the head v.: the Pennsylvania delega- tion. So it was with Madison, the man who had done most to bring things to an auspicious end. The new constitu- tion as finally drafted w;*-^ a long way from being a true reflection of his clean-cut opinions, but he was ready to shoulder his share of responsibility for it before the people. Some mm of inflexible convictions, among them Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts, were so disappointed with the compromise character of the document that they w^ould not sign at all. As the convention had met behind closed doors no inkling of what the delegates were doing reached the people till everything was done. In lieu of actual information from within the brick walls, however, the newspapers circulated all sorts of gossip as to what was under consideration. Many of these rumors were wild, but even the wildest among them found some believers. Not a few honest men in all sections of the land were afraid that a monarchy was being hatched at Philadelphia. Wlien the constitution was finally made public, it contained, of course, many surprises. Some thought it made the central government too strong ; others Tb« Kreat question : Would the ■tatea acmpt it? How the new consti- tution waa received by public opinion. 38 THE GOVTERNMENT OF THE UNITED STATES The fault- findcra The stniRglp for ratifica- tion in the various states. that it did not make it strong enough.' From all quarters came the serious and well-founded criticism that the con- stitution contained no bill of rights or group of guarantees for freedom of the press, freedom of speech, rehgious liberty, and ho forth, such as had been incorporated in most of the state constitntions. Thomas Jefferson, for example, re- garded this omission as the chief defect in tlie convention's work. Some grumbled because the constitution gave the new federal government power to issue paper money; others because it took that right away from the states. Many good people stigmatized the document as sacrilegious because it contained no mention of the Deity and did not even reiiuire that office-holders should be Christians. In the North tliere was a feeling that the compromise with slavery went too far ; in the South it was regarded as not having gone far enough. The fault-finders were numerous, and among them were many influential men. The Congress of the Confederation, after some delay and hesitation, sent copies of the constitution td The legisla- tures of the several states for ratification. T'> no case did these legislatures submit the question to u direct popular vote. They followed the poUcy of aski ;i the people to elect delegates to state conventions which should by majority vote decide the matter. Conventions in Delaware, Pennsyl- vania, and New Jersey accepted tlie constitution almost at once ; Georgia followed after a few weeks. Then serious obstacles began to appear in some of the larger states: Massachusetts, New York, and Virginia. In these the campaign of opposition became very Ijitter; an avalanche of criticism was let loose in broadsides, pamphlets, and letters to the newspapers, PcM-sonal attacks were launched against the leading men of the convention, and even Wash- ington did not escape the flood of invective. The danger was not merely that fewer than nine states would accept the constitution, but that the refusal of one or two of the largest states might, by reason of tlieir geographical situa- tion and economic importance, practically nullify the whole " In Paul Leicestor Ford's Pamphlets on the ConstitiUinn of the United Sinif= (nrooklvii, iSiSS) win In- founsi ;i roUrrtion of ontici£m» iutiued by various contemporary opponents of the constitution. THE CONSTITUTION AND ITS MAKERS 3d plan. There was New York, for example, where popular feeling seemed to be running most strongly against the constitution. If New York should refuse its adhesion, the assent of all the others would not insure the success of the new federation. Geographically New York lay right athwart the country. Four states were to the north of her and eight to the south. No union could be solid without New York. Yet in the closing days of 1787 it was apparent that if the question of ratifying the constitution wore sub- mitted to the people of New York, it would be overwhelm- ingly rejected. The critical need, therefore, was for a campaign of education which would focus the attention of the people, both in New York and elsewhere, upon the merits of the constitution itself, not upon the foibles and failings of the men who had framed it. Such a campaign of education was accordingly planned The by Alexander Hamilton, who enlisted for the work the °{"^3 cooperation of James Madison and John Jay. During the tbn. winter and spring of 1787-1788, these three wrote a series of letters which wore printed, sometimes three or four let- ters a week, in various New York newspapers. The letters wore designed to show how necessary some plan of federal union had become to the several states and to demonstrate, point by point, that the now constitution offered the best practicable solution of all the difficult problems involved. Each letter dealt with some phase of the subject in logical order, explaining, defending, and appealing to the patriotism of the people. All the letters bore the common signature "Publius," and the individual authorship of several of them cannot be definitely determined, bat it is beyond doubt that the great majority were the work of Hamilton and Madison. Although these newspaper expositions of the new constitu- Value tion were written under pressure and as campaign polemics, °y„,^,i„g. they set a high standard both in substance and in style, letters. Brushing aside all personalities, all appeals to passion or to sectional prejudice, they went riglit to the heart of every constitutional question. They were the work of men \^ho were brimful of their subject and who knew, better than any others of their time, just what the provisions of the 40 THE GOVERNMENT OF THE UNITED STATES The Federalisl. A classic of political science. new constitution expressed or implied. Naturally these arguments exerted a great influence upon the public mind, and particularly upon the minds of those who came to the state conventions without any clear understanding of w^hat powers the new constitution conveyed to the central government ant, what limitations it imposed. Had it not been for this vigorous publicity campaign, there is every reason to believe that New York would have rejected the constitution. Even as it was, that state was one of the last to rat ify, and then this action was taken by the nar- row majority of three votes in the state convention. Even before all the letters had appeared in the newspapers they were collected and printed in book form under the title of The Federalist. In that shape they have come down to us, and remain to-day the best contemporary exposi- tion of what the constitution meant to the men who made it.^ For keenness of analysis, cogency in the statement of arguments, adroitnes; in reply to critics, and brilliancy of style this volume has stood unrivalled in the field of American political literature for one hundred and thirty years. Seldom is it given to any treatise in political science to hold its place of supremacy so long. True enough, the book is not a trustworthy guide for those who wuiit to know what the various provisions of the American constitution express cr imply to-day. In the years since these letters were written eighteen amendments have been added ; the courts have interpreted many clauses in a way which the framers of the constitution could never have foreseen, while a legion of political customs and usages, forming an unwritten constitution as it were, have grown up around the original frame of national government. Time in this as in all other things of human handiwork has wrought great changes. But as an elucidation of the basic principles of federal government and of what is compendiously called "the political ideals of the Fathers," there is nothing that approaches in value these campaign letters of Hamilton, Madison, and Jay. While it is impossible to tell with certainty what would • There are many editions of The Federalist, but the best for most pur- poses is Paul Leicester Ford's edition (N. Y., 1898). THE CONSTITUTION AND ITS MAKERS 41 htivc happened had the constitution been submitted for acceptance to the direct vote of the people in the vari- ous states, there is every reason to think that it would have been rejected. At the liands of conventions it had a far better chance of ratification because in none of the states save New York vcre the delegates to these conventions chosen on a basis of manhood suffrage. In all the remaining states there were property or other qualifications for voting, and the propertied classes were, on the whole, favorably dis- posed towards the constitution. It has been demonstrated, in fact, that most of the men who framed the constitution were themselves the owners of public bonds and other forms of property which were likely to gain in value if a strong federal government could be established. In the various stati! conventions, moreover, it was the delegates from the towns, the representatives of the mercantile an^ trading classes, who lined up most strongly in favor of ratification. The constitution drew its chief support from the well-to-do, the merchants and ship-owners, the men of education, — in a word from that part of the population which lived in the better-settled parts near the seacoasi. The people of the interior and sparsely settled areas, the struggling farmers and pioneers, were, on the whole, opposed to it. There were (exceptions, of course, but tt.is indicates the broad line of division.' The constitution was not carried into operation, there- for", on any tidal wave of popular enthusiasm. Its sup- ers did not make their chief appeal by extolling the :>■• jratic features of the document; on the contrary, placed their reliance upon arguments which could make \ : impression except upon the minds of thinking men. Tliey tried to show that its acceptance would establish a safe government, a well-balanced government, a govern- ment able to maintain order within and security without, a government which would insure economic prosperity. In our own time we are occasionally told that the na- ' For further information on this important point see O. G. Libby, The Geographical Disinhulion of the Vote . . . oh the Federal CunHlilulion (Madison, 1894) and C. A. Beard's Economic Interpretation of the Contti- tulion (N. Y., 1913). Other in- flqences responsible for the adoption of the consti- tution by the states. Attitude of the proper- tied classes. The argu- ments which pre- vailed. Why the cc istitu- tion waa not more radical. 42 THE GOVERNMENT OP THE UNITED STATES tional constitution is a reactionary document, framed in the first instance by men who liad no faith in popular gov- ernment, and tliat even in tlie days of its origin it did not reflect the political ideals of the people. That is in part true; in part false. The const itutionwa.? framed and adopted at a time when business conditions were bad and the national outlook un- promising. Men who had just won their independence were leehng the deep responsibility that went with nationhood. Quite naturally the constitution was not so completely im- bued with ultra-democratic principles as would have been a fundamental law framed ten years before, by the men who signed the Declaration of Independence, for example. Only SIX of the fifty-six who signed the Declaration had a hand m making tlie constitution. Moreover, the framcrs of the constitution liad V, keep constantly in mind the fact that their work must p'j before the representatives of the people, and that whatever theories of government individual mem- bcr» of the convention may have held, these could not safely be given unchastened play. Be it undemocratic or otherwise to the eyes of tlic twentieth, century radical, this constitu- tion was incomparably the most democratic achievement of all the centuries down to its day. No leading nation of Europe m 1787 had a written constitution of any sort* nor, with tlie single exception of England, did any havo even the form.s of popular government. The new Ameri- can constitution provided a scheme of government wliich was much more democratic than that which En<-iand passessed at the time and far more democratic than" that which any land had ever pos.- ,sed at any previous time. Ihe original constitution of the United States, like any other product of human hands, must bo judged in the light of Its own day, wliich was a day witli scarcely a glimmer to lighten the darkness of political despotism in nearly all parts of the world. Let it be remembered, again, that this document, as has been well said, was the expression not only of political faith but of political fears. Its framers desired to establish a government which would be a bulwark of popular liberty; but tlicy also wauiL-d one that would defend the nation's borders, keep peace within the land ad 1^ THE CONSTITUTION AND ITS MAKERS 43 pass its blessings on to posterity. Let the political annals of four generations testify whether or not they acted wisely and well. They established, in any event, the foundations of a nation wliich has shown itself able to prosoive democracy at home and to fight for it abroad. Tliey deserve the fame and gra. aide that history has given them. "Leaders of the people by their counsels, wise and eloquent in their instructions, all these were honored in their generations and were the glory of their times. . . . With their seed shall continually remain a good inheritance, and their children are within the covenant. . . . Their glory shall not be blottetl out. . . . Their bodies are buried in peace, but their iiamc liveth forevermorc. The people will tell of their wisdom and the congregation will show forth their " 1 praise. But to return to the final ratification. It will be re- The con- called that the constitution was to go into force whenever fi"a"iy°° nine states should have accepted it. By midsummer of ratified. 1788 the necessary nine had been secured; the others drifted in one by one. North Carolina did not give assent till the autumn of 1789, however, and Rhode Island delayed ratification until the spring of 1790. The Congress of the Confederation, which hatl prolonged The new its feeble existence during all these turmoils, now issued a ll'?f™L„„, — ^ government call to the various states to choose presidential electors, installed, senators, and congressmen ; likewise, it designated New York as the temporary seat of the new government, and then itself went out of existence. Ten states responded by choosing electors, and these electors in due course chose Washington as President and John Adams as Vice-President of the union. Likewise, they each chose their quota o( senators and representatives in the way prescribed. The new government took office on April 30, 1789. ' Ecde»iasUcu» (.Apocrypha) 44 : 4-13. CHAPTER IV "the supreme law of the land" The constitution of the United States, to use its own words, is the supreme law of the land." It is a short document, as constitutions go, and more concise than the constitution of any other nation or of any among the fortv- oight states of the union. Therein it satisfies the first though not the second of the requirements once stipulated by Napoleon Bonaparte, that a good constitution should be short and obscure." To read it through takes about twenty minutes. In arrangement it consists of a pre- amble and seven articles of unequal length, to which eight- een amendments have since been added. The three chief articles deal respectively with the legislative, the execu- tive and the judicial organs of government ; the others with miscellaneous matters, such as interstate relations, the admission of new states, the methods of amendment, and the arrangements for its own ratification. Viewin- the provisions of the constitution as a whole, certain fundam'ental considerations stand out prominently, and these will be briefly recapitulated.* oxno«nL!}'"p'!'"°*'"^,' P'T?^"' «f oko(l I ho most (lis- tinsuishing feature of Entslish (tovcrnmont — the cabinet. fomplcte reparation of powers neither iwrirlieahle nor desirable. rock i-. a v an- world of despotisms. Yet even James Madison, will, all lii.s polit ical erudition, did not really under- stand the true Hpirit of the Rovcrnment under whirh he was born. Neither lie nor Washinjrn,n, nor Hamilton, nor Franklin, nuuh les- the minor lights of the consti- itional conventioi,, ., ..< nny real anpret^ation of the grea- : iatus which aIrco;i • , xisN 1 between tlie theory and he practice of English ir- wnui;. t. To-day this gap has become .>= conspicuou thjl nu elementary student of the subject ever misse.! /. In I ir;,] fiction the crown rem; ^ the chief executive, nu i:^: ■ w.d.i't estate of the wi^Un," as the piinisc go( -1, with ;u! iti^ t-m.>-hall<)wed pren- -atives In actual fact, however, i ]<■■ crown is the mere creature of pu'-lia- meiit, (loing tis it is i<-l,i and -wses.sing, as was oi.ce said in another conneetion, 'neith.-r eye.s to see nor tongue to speak" save as parliament may commnnit. lu 1787 the supremacy r,f parUament. ithougu net ■■•> cle. ily marked as to-day, vas established Ijoyond any .|ti stion. but the men who 1 lade the constitution of the United States fr led to see it. They were misled by the hur:^ of legal fi< ion which obsi iired the kernels of actual fa. Hence it was that they ga\ • little attentu.M to what hr.d already become, without the < nactment of a single law, the most distinguisliiti-; feature of En- Uh government — the 1. sponsible cabinet. Wh-Mi they th. u^dit of the execu- tiv<- I. ranch of English government, they had their minds on the envvn, not t»n the cabi' .>t. They did not Toa\m> that even in their own day the pri ^ minister w; s the n tor of the crown and the servant oi p.iriiament, and hence hat all clean-cut reparation of powers between exceutiv anr! legislative organs of government had vanished. T ' i, why it may properly hr said that the system of ch( nd balances, as wi'ven into the American constitution -v itr< It* s at ept- framers, was tin -mtcome of a misconcepti.m ance sanctified a; error. In the form whicii Montesqui u gave it, moreo r, the theory is unworkable. The ii:-.olute independ-nct of t!.e three ?- .t ,!opartM->nt^^ of p ruin-nt would hnng administration to a standstill. T e nii.st be point- of contact. Even the framcrs of 'onsti'ution -: d ■w^ T!- "THE SUPREME I iW OF THE LAND 6' thi and so Junde no aiiompt to secure complete sepa- ni- A of povv^Tj. They gave to the Senate, >r example, tl right t.) with>H)iu it,- eonnrmuiion of ap point mrnts, thereby awarding ;t i share in the exercise i exef-uuve power. On tho ot .ir hand, thfy gave the PfOMtit-nt, tiirough his veto, thr power tf ext rciae a check m legislation. Madi- son, noroo\ -r was t o .>at pains point :t, hen the ■'^n-^titutior v s b' on the sMtfs for accipta. •, that -Vlontc luieii m.^eh hao not ■ ! complete scpai.ition ! ilo -pher's dogma, as ''Hus- =i- r\r .Jmcd merely to s. ure of po'= >rs. i ii. Frenr t'-atMl !)> the ex nple broa.i in ^..s of soj .uali' ov- liapp gs of j 'riptii son was .rht, althoii ^1 e, if !v -nd i r bru. furt! WJ on '! i.'ar: '■■ •: ere;. The ion Oi go i . and baianc s, favoi acenturj or ' ac<'r'ptaii er iroven > n >t seek to preclude is ir rpretation ^ ive en much br iC3 in convention -er, ad erp itua of Moi. juieu's doctnne -1, ero tail be no Hborty without a se' ara- ral powers, without a system of c clcs that might easily Ih> expected tf mi 2;o ; to-day it is far from comman -n -y students of politi 'al science. -s- of Canada and Australia, for ri ■ *■ powers, have demonstrated N. ' en ization to have been in large m*- is in, )ssible to say, of courbC, whet he w. .ul(i iiave fared better or worse under a -ntutioi iramed by men who knew not Monte-squieu ; here e many thouglitful Americans who nowadays Wi: 11(1 qiiieu's < imagina United bii b, \ e that the theory of checks and balances is a delusion atiu snare, that it has made for f»onfusion in the actual vork ' govi nment, that it diviu ^ responsibility, encour- rioii, and has balked constructive legislation on - easions. On the other hand, the doctrine lis stanch friends who point out that some i ; ed in another chapter ; they form, at any rate, a distinctive feature of the document. These are the fundamental doctrines of the national constitution. No one of them was wlioUy new even in 1787. The idea of a written constitution as a grant of powers is as old as the Lycian Confederacy; the theory of separa- tion of powers harks back to Polybius and Aristotle. The doctrine of judicial supremacy and the idea of constitutional limitations were both evolved out of hazy notions concern- ing the paramount cy of the common law in colonial times, a" id for the former there were well-defined precedent.'" before the Revolution. When, after the constitution had been some time in operation, the S' nreme Court announced its right to declare an act of Congress unconstitutional, it impressed the people as doing nothing revolutionary. At common law any act done by any official beyond the limits of his legal jurisdiction was void. The doctrine of judicial supremacy was merely the same general notion greatly enlarged and somewhat modified. And what has been said of fundamental doctrines is also true of the actual provisions of the constitution from preamble to conclusion. Few of them represent real innovations. Many go back to the great landmarks of civil liberty like Magna Carta and the Grand Remoa- "THE SUPREME LAW OF THE LAND" 65 strance. Nearly all have their roots deep down in the soil of English history. What did not come from England came chiefly from the rich granary of colonial experience. Let it not be forgotten tliat Englishmen had been adapting their ancient political institutions to the environment of the New World for over a hundred and fifty years — a longer period than that which has to-day elapsed since the American constitution went into force. They had tried many things, had succeeded in some and failed in others. They had a large fund of homeland data to draw upon. To foreign lands, accordingly, the framers of the constitu- tion went for very little.^ The experiences of ancient con- federacies, mediaeval republics, and eighteenth century absolutisms were instructive mainly in showing them what to avoid. They took comfort from one other dictum of Montesquieu, that the best government is " that which best agrees with the humor and disposition of the people in whose favor it is established." ^ Their minds were there- fore set upon the task of framing a constitution which would fit the "humor and disposition" of the three million souls who li\ed along the Atlantic seaboard. Scholars have wasted much energy in trying to find out-of-the-way origins for '■ome of the things which went into the constitution. For ae electoral college which was establislicd to choose the chief executive of the United States there is no need to seek precedents in the college of cardinals or the princely electors of the Holy Roman Empire. Even this strange institution was not improbably suggested by a somewhat analogous arrangemont whicli already existed in Maryland. The constitution, lu a word, contains very little that is ' "With the exception of the mothod of electing the president there is not a clause of the constitution which cannot be traced back to F)nglish statute'' r-f liberty, colonial cliarters, state constitutions, the articles of conf'f' , 1, votes of congress, or th<> unwritten practice of some of these ■ ■• if government." — A. B. Flart, National Ideals Historically TraseJ \ . ,, 1907), p. 139. For a further discussion of this point the followii.^ ooks may be indicated : J. H. Robinson, The Original and Derived Features of the Constitution (Philadelphia, 1890) ; C. E. Stevens, Sources of the Constitution of the United Stalea (2d ed., N. Y., 1894), and Sydney O. Fisher, The Evolution of the ConstitiUion of the United States (N. Y., 1897). • The Spirit of Laws, Book I, oh. 3. i 56 THE GOVERNMENT OF THE UNITED STATES nol indigenous. It is Anglo-American from start to finish. Its genesis is to be found at Runnymede and Westminster, not at Philadelphia ; it is the handiwork not alone of Madi- son and Wilson and Morris but of Simon de Montfort, Edward {\)ke, John Hampden, and Oliver Cromwell. ^Vhat its fr:imers did not get from England they took from the stock of past and present institutions in America. Dis- creet selection rather than random borrowing marked their work. The constitution, indeed, contains very few marks of creative genius; there is practically no provision of any importance for which some well-known Anglo-Saxon pre- cedent cannot readily be found. The most solid and excel- lent work done hy the convention was its enumeration of the eighteen powi-rs of Congress ^ and its definition of the judicial power of the United States.^ In both these cases the experience of the country during the critical years between 1781 and 1787 served the framers as virtually their sole guide. ' Article i, Section 8. • Article iii. I CHAPTER V HOW THE CONSTITUTION HAS DKVELOPED Professor Dicey, in his intorosting discussion of parlia- Flexible mentary sovereignty, divides all constitutions into two ^."ttlfu^ general classes, flexible and rigid. Tlic Englisli constitution, tions. he says, is flexible because its provisions may be clianged in the same way as any ordinary law, liy the regular law- making authority of the realm, which is parliament. The constitution of the United States, on the other hand, he calls rigid, because it cannot be so altered by the ren:ular law-making authorities, that is, by the President and Congress. Flexibility, he suggests, makes for constitutional progress and easy change; rigidity for conservatism. In illustration of this he as.serts that the constitution of the United States did not undergo a titlie of tlie changes which marked the constitutional development of England during the nineteenth century.^ This difference between flexil)le and rigid constitutions. The however, is easy to exaggerate, and Professor Dicey, in con- ^iatinetion trasting English with American constitutional development, over- has laid undue emphasis upon it. If the American con- emphasized, stitution could only be expanded or developed by actually amending it in the way nroscribed, there would be good reason for calling it rigid, because the method of amend- ment is tedious and difficult. But there are other ways, quite as effective and much simpler. The constitution of the United States has been enabled to keep pace with the economic and social needs of the country by various other agencies of development, and these processes of change move so insidiously that tliey do not seem to be fully appreciated by foreign students of American government. ' Law of the Constitution, p. 120. 67 58 THE GOVERNiMENT OF THE UNITED STATES niid American defiuitions of "consti- tutional develop- ment." The Kngli.sh constitu- tion is not really more flexible than the Ameri- can. SuffraKe widoninR as an example. The hazine.ss on thi.s point is in part due to the fact that, in contrasting Engli.sh with American constitutional evolu- tion, due care has not always been given to terminology. When we wijsh to compare the constitutions of different countrit , we should first reduce them to a common denomi- nator. It is misleauing to contrast the constitutiun of Eng- land, meaning thereby the whole body of fundamental laws, court decisions, and usages which determine the way in which Englishmen are governed, with the constitution of the United States, meaning by that term only the written document and taking no cognizance of the wliole body of interpreting laws, decisions, usages, and devices which supplement and determine the real application of those written provisions. Americans are governed by laws, judicial decisions, and usages quite as much as by the strict wording of their national constitution. If we look at matters in this hght, meaning by the Ameri- can constitution that whole body of organic jurisprudence which fundamentally determines the forms and facts of actual government, it is not true that the constitution of the United States lias shown itself to be far less flexible than the constitution of England. Let the following ex- ample illustrate this point. Among the great constitutional changes in England during the past hundred years not the least important are those embodied in the Reform Acts of 1832 and 1867 which greatly widened the suffrage. These reforms stirred pu1)lic discussion to its depths. The whole world realized at both these dates that England was undergoing a great constitutional transition. But sub- stantially the same widening of the suffrage, and indeed an even greater widening, took place in the United States during the first half of the nineteenth century without any actual amendment of the constitution, but merely through the enactment of new suffrage laws by the various states. When the national constitution went into force, manhood suffrage existed almost nowhere. To-day it is universal throughout the Union, and in a dozen or more states the .suffrage has bf^nn extended to include women as well. The national con- stitution did not lay down any definite rule as to who should vote at national elections. It left the matter to be deter- HOW THE CONSTITUTION HAS DEVELOPED 59 mined, under certain limitations, by the several states themselves. Then, one by one, all the states accepted the principle of manhood suffrage, and one by one they are now giving women the right to vote at national elections. In the course of a hundred years property qualifications fo'' voting have been everywhere abolished in this country The wording of the constitution remains absolutely un- changed on this point, yet the actual situation with refer- ence to suffrage (apart from negro suffr:li>.<<. 2. dovolop- ment by judicial intor- prctation. 60 THE GOVERNMENT OF THE UNITED STATES exactly uniform throughout the country except in matters which absolutely rotiuired uniformity. The makers c* tho constitution did not endeavor to settle every detail of national jrovornment. Knowing that they could not pro- vide for all continseneies, they did not try to do so but trusted to future Congresses, or to the various state legisla- tures, to provide whatever detailed arrangements might prove necessary. In this way great scope was left for the development of the constitution by merely changing the national or state aws. And in the last century and a quarter there has been a tremendous development through this channel. 1 he whole structure of the subordinate federal courts is pI•o^•lde(l for by federal statutes, since the constitution merely handed ov(>r to Congress the duty of making such provisions in whatever way it deemed best. The succession to the presidency, m the event of the Vice-President not being available, is similarly arranged by law. There is scarcely a word m the constitution relating either to the President's Cabinet or to the organization of the various executive de- jKirtmc.uts. All that is provided for by the federal laws. Ihc present method of governing territories and insular possessions again rests wholly upon law and not upon constitutional provision. So,, likewise, the methods by winch m(>mbers of Congress are nominated and elected, and even the determination of who shall vote at congressional elections IS left to be arranged by the laws of the several states. Uf the actual present-day workings of the federal government one cannot, indeed, get an adequate knowledge by merely studyi. - the words c' the constitution itself. ay tar the greater portion of wnat the student of actual government desires to know i.s not there but is set forth in the statute-books of the nation and the states. In the second pLce, the constitution has been deve! oed by judicial and administrative decisions. Montesq-j.eu ursed that tae judiciary should never be allowed to make or alter the constitution or the laws, and this doctrine IS aoreed to in all coMntrie^ to-day. The courts should merely interpret ta.. constitution and the laws. Jus diccre, non dare, the saying is. Ostensibly all they ever HOW THE CONSTITUTION HAS DEVELOPED 61 do is to interpret and apply; but the plain fact remains that to interpret a phrase often means to give it a new application, and the Supreme Court of the United States has read into the American constitution many things which are not there visible to the naked eye. For one hundred and thirty years question after question has come before it as to the meaning and scope of various provisions, phrases, and words in the organic law of the nation. "Congress," the constitution declares, "shall have power ... to regulate commerce. . . ." But what is included within the term "commerce " ? In matters of trade and industry the United States has been moving forward with phenomenal rapidity, each year bringing new problems concerning the relation of government to business. It has been the work of the Supreme Court, through its power of judicial interpretation, to "twist and torture" (as Lord Bryce puts it) the term "commerce" so that it will cover them all. What, again, does the constitution mean by the words "to regulate"? By its regulating power may it tax, may it even prohibit? The Supreme Court has answered that it may do either or both. It has held at various times that the commerce power of Congress extends not only to the transportation of freight and passengers, but to the trans- mission of telegrams, telephone messages, light and power, the sending of oil through pipe lines, to pilotage, maritime contracts, and many other things.^ Hero we have, therefore, a new element of flexibility, its scops. The student who wants to know what the actual powers of Congress are to-day will get a scant idea of their scope and ramifications by merely surveying the eighteen formal powers granted in the words of the constitution itself. Hundreds of Supreme Court decisions have widened these original powers beyond recognition, yet never in a single instance has the court asserted its power to make any change in the phraseology. The stretching of a phrase in one decision gives a foundation for some further elongation in the next ; the lines of development are pricked out by one decision after another until the last has carried matters a long way from the point at which the interpreting ' 8e« below, pp. 249-250. THE GOVERNMENT OF THE UNITED STATES The prorem of inter- preta ioii. Its effect in stroriKth- ening the national Kovern- ment. a process began. The framers of the constitution realized, of course, that differences of opinion would arise as to what vinous provisions expressed or implied, and they took it for granted that the Supreme Court would resolve those differences. But they could not have foreseen the stupen- dous amount of interpreting that would have to be done or the subtle way in which this process would in the end spell actual change. Provisions of the constitution are subjected to judicial in- terpretation only when actual disputes concerning them have arisen. Tlie procedure is usually as follows: Some power is claimed and exercised by a national or state legislature or official ; it is then challenged bv anv citizen as not war- ranted by the constitution and the issue goes to the courts Wot always directly to the Supremo Court of tlie United States, however, although if the issue be important, it event- ually comes to that tribunal ultimately for final decision In determining what any phrase in the constitution means, the Supreme Court has the last word. This, it need hardly be reiterated, is a tremendous power, and one which has never yet been assumed by the paramount judicial authority m any other land. Its exercise has greatly modified and expanded the provisions of the constitution; it is probably true that a greater development has taken place through this than through any other channel. The study of Ameri- can constitutional law to-day is chieflv the study of judicial decisions.* How has this method of development affected the rela- tive powers of the nation and the states as originally ad- justed by the constitution? On the whole the course of judicial interpretation has greatly widened the actual powers of the national government, carrying them far beyond what the framers of the constitution could ever have foreseen or intended. The Supreme Court at an early 'The most important of these decisions have been brought together in vanous eo,np,lations. of which the best is James Bradley Thay^frrL." La™ b""!'": ? "."'"• <>»^"''^«' 1895). A smaller'^oUectio" Lax^Tence B Evans, Leading Ca^f.i on American CMn^iiu^i^r.aJ Lail^ Mpril'^n"' l.iJ'r "" "i 'n ^""°*^ T'^ convenient for student use. Emlin ^STdfStTnle?" "" ^''-"'"'--' ^-- (2d ed.. Boston. 1900). HOW THE CONSTITUTION K\S DEVELOPED 63 date accepted the doctrine of "implied powers "; in other words the idea that whenever the constitution gives to Congress a general power in express terms, it conveys by implication all the collateral authority that may be necessary or proper for carrying such general power into effective operation. The constitution, for instance, gives Congress no express power to charter banks, but it docs give a gen- eral power to borrow money. Hence the Supreme Court long ago decided t! ;it if Congress regards the establishment of banking institutions a; a necessary or proper aid to the exercise of its borrowing power, it may establish banks.' Within the general power to t:ix, to borrow, to regulate commerce, to establish post-oiHces and post-roads, one action after another on the part of Congress has been up- lield. The distance between some action of Congress and the literal words of the constitution which authorize such action oftenseems verj- great, but a chain of decisions bridges the gap between. Every general power of Congress has been as a sun, developing its group of planets or subsidiary powers, while around these in turn have grown up a girdle of satellites. But it is not the courts alr)ne that interpret the constitu- tion, although in the main this function is assumed by them. Administrative officers from the President down are often confronted with the necessity of acting promptly when their constitutional powi rs are not clear. Tlieir actions may in most cases be challenged and subjected to judicial review, but usually they are nccepted without any such protest. In that event the action stands and forms a prec- edent for the future. It does not form a binding precedent, of course, for no admin, 'rative ruhng, however long ac- quiesced in, is certain to be upheld by the courts. Never- theless, when any legislative or administrative construc- tion of a constitutional provision has been allowed to |\iss for a long time unchallenged, and particularly when impor- tant public or private rights have been based upon it , such construction is altogether likely to be accepted. In recent years there have been many administrative rulings which virtually operate as agencies of constitutional development. The opinions of the Attorney-General, given for the guid- • See below, p. 237. The con- struinK of constitu- tional pro- visions by adminis- trative rulings. W 11! 1. COVKKNWfENT OF THE UNITED STATES ^Pf^i ■(. enatr. Hut hy image the ."^-nute s advur is iH>ver as fd d^ntiBl ap- and by usasje also its consent is in some vn^'^ never .efusf-d. P"'n»n>t>nti. The Senate never declines it» consetst, for ("xampic, to tliose whom the President may select for C'abinei otfii-cs. The Cabinet ii^elf, indef^d, represents a developmeiu based partly on law and pari ipon custom. The various exerutivo depar-ments are organized by law, but usage aionc has determined what heads of departments sliall be , ailed to Cabinet meetinjts. Mention might also i)e made of the principle known for so many years as "senatorial courtesy," by virtue of which presidential appointments were under certain cirrumstanres not confirmed by the Senate unless they were first approved by the s(>nators from the state directly concerned. This somewhat pernicious practice had no warrant in either the constitution or the laws, l)ut merely grew up and became strong enough, at one period, to be rightly regarded as an important feature of actual government In ino matter of removals, too, the rules have been established -v ■ 'i«e and not by constitutional l-'-ovision. As to how ? ' . ' should be made, other than by impeachment fo i. ".-ii .-..iies and misdemeanors, the constitution is silent, ?»' i '.>■ ly.estion early arose as t t whether the "advice and "• '. ' ,; ■)'' the Senate" were m "Ued for removals in the same manner as for appoiiVfXMrii- . The President, however, assumed the responsibi.,, :jt removing officials without seeking the Soiiatr's concurrence, and usage, now supported by judicial decision.-?, has estab- lished his right in the matter. The most important developm ■ t which lias come about (e) the in the whole field of American government as the result of '"'"•h'nory both extra-legal and extra-judicial foices, however, has ofpo^"ticai been that complicated political fabric which wo call the p*"'**- party system. The framers of the co.i itntion regarded the rivalry of political parties — the viol- .e of faction, they termed it — as a thoroughly vicious ; ature, inimical to the best interests of free government. It was their hope and expectation that there would be no political parties in America, h«nf e the constitution contains no men- 86 THE GOVERNMENT OF THE UNITED STATES bills. ('•) other examples. tion of them. Its provisions, indeed, were framed on the assumption that there would be no party organizations. Yet political parties sprang into being almost at the outset of the Union and they soon became dominating factors in the work of the new federal government. The whole mechanism of the political party, its caucuses, primaries, and conventions its platforms and pledges, its campaigns anJ. committees, its manipulations both in Congress and outside — all this has been developed for the most part in the realm of unwritten law. Yet who will say that party organizations do not profoundly affect the pohtical life of the American people? Custom has here revolu- tionized in its spirit, if not in its form, the whole govern- mental structure and made it, whether for good or ill, far different from what its architects designed it to be. Occasionally it happens that the usage proves even stronger than the literal wording of a constitutional pro- vision. The constitution, for instance, stipulates that all bills "for raising revenue" shall originate in the House of Representatives. Nevertheless, as a matter of actual practice, some bills for raising revenue do originate in the Senate. On the other hand, the constitution makes no stipu- lation as to where bills for spending money shall originate. By usage, however, all such bills originate in the House. It will be easily seen, therefore, that the words of the con- stitution furnish no guidance whatever on matters of finan- cial procedure. Various other examples of institutions and practices which owe their existence to usage and not to enactment might easily be given. The Speaker of the House has developed most of his powers by custom. The caucus system in Congress is the child of custom alone ; no provision for it exists in the constitution or in the laws. So is the committee system, including the pohcy of appointing a committee of conference whenever the two chambers fail to agree. The principle that no President should hold office for more than two terms has become a .'trong tradition, although tliis was far from boing the intention of those who framed the constitution.' ' The Federalist, No. 68. HOW niE CONSTITUTION HAS DEVELOPED 67 4. develop- Even usages, however, may change. For a full century no President ever read his messages to Congress. The custom was to send them in writing by messenger. But President Wilson changed this custom, setting aside the precedents of a hundred years, and it is quite possible that the new practice may be continued by his successors. Usage has profoundly influenced the actual workings of national government in America, building up an elaborate unwritten constitution and thus giving to the written document a much greater resiliency. Finally, the constitution has been developed by amending it. Its framers foresaw that the need for amendments " ntof'th* would arise, but it was not their opinion that the need tioTby"" would be frequent nor was it their desire that the process "a^'^'i- of amendment should be easy. Hence they provided a '°^'' ' rather cumbrous amending machinery which ordinarily involves action not only by Congress but by three-fourths of the states. There are two alternative methods of amend- ing the constitution of the United States and they cannot be more clearly or concisely described than by using the exact phraseology of the document itself. "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and pur- poses as parts of this constitution, when ratified by the legislatures of three-fourths of the several states, or by con- ventions in three-fourths thereof, as the one or the other moue of ratification may be proposed by the Congress." * Only eighteen amendments have been made to the national constitution in one hundred and thirty-one years. The number is really n.uch smaller, for the first ten amend- The first ments, all made at the same time, might easily have been *^" amend combined into a single one. Taken as a whole the eighteen ""^"'' fall into four groups. First there are these initial ten amend- ments which are commonly called the Bil' of Rights. They should have been put in the original document, and the cam- paign for the ratification of the constitution would have ' Article v. 68 THE GOVERNMENT OF THE UNITED STATES Later araeud- uients. bocri less arduous if that had been done. Much of the opposition to the acceptance of the constitution was based upon Its failure to provide any of the safeguards for indnulual liberty which had been incorporated into the constitutions of the various states. Immediately after the constitution had gone into force, therefore, a series of amendments covering these matters was submitted to the states and ratified. These ten amendments, indeed, ought not to be regarded as amendments rt all, but as forming, to all intents and purposes, an integral part of the original constitution. The next two amendments, the eleventh and twelfth, were designed to remedy what appeared to be ambiguities and defects in the original provisions — perfecting amend- ments, they might be called. The former was a direct result of a Supreme Court decision which held that a citizen could sue a state in tlio federal courts. This interpretation of the judicial power conferred by the constitution aroused the more ardent champions of state rights, who bestirred themselves to have the judicial sovereignty of the states made dear/ The other amendment, the twelfth, was proposed and adopted because the presidential election of 1800 (hniunstrated the need of changing that section of the ongiiial constitution wliich dealt with the choice of a Presi- dent and Vice-Pre;ddent. In the third group come the post- bellum aineiidrnenta thirteenth, fourteenth, and fifteenth, embodying the principles which the victorious northern states insisted upon after the Civil War, and forming, as It were, the terms ^i peace. Lastly, there are the sixteenth, sr-ventecntli and eighteenth amendments dealing rer.pectively wuli income taxes, the method of electing senators, and national prohibition. All of these amendments have been adopt ovl in our own day and all of them may be regarded as (lie product of the changed political and social ideas which marked the incoming of the twentieth century. A proposed nineteenth amendment, on woman suffrage, is now before the states. After all, the constitution has not been greatlv changed by actual amendment This is partly because the process of amendment, with forty-eight btates now concerned, is ' See below p. 347. HOW THE CONSTITUTION HAS DEVELOPED 69 much more difficult than its framers expected or intended, but it is also because there are easier ways of gaining the some end. By means of their senatorial primaries, for example, many of the states, long before the adoption of the seventeenth amendment, had virtually acquired the system of choosing senators by popular vote.* The election of the President by what is virtually a direct popular vote has been secured oy the pliancy of the state legislatures, no formal amendment being necessary. If the various state legisla- tures, however, had persisted in naming the presidential .lectors themselves and had not turned this function over to the people, there is little question that a constitutional amendment would have been used to accompUsh the change. The amendment of the constitution is the last resort of those who desire new political institutions. It is a method of obtaining what cannot be had by statute, by usage, or by judicial interpretation. The relative infrequency with which amendments have actually been made is a tribute to the foresight of those who couched the provisions of the constitution in broad language and gave it thereby an inherent quality of suppleness.' Great changes may take place in the spirit of a govern- ment r-^ithout much alteration in the phraseology of its organic law. That is what has happened in the United States. The federal government has become far stronger than a literal reading of the constitution would indicate. It has stciu'^y gained power, chiefly through channels of judicial interpretation, and the end is not yet. And this is despite the provision that all powers not given to the federal governnu.rit nJiall revert to the stat<*H. As for the distribution of powers between the three organs of sovrrnment, --executive, Miplati-.^, and judicial,— the balance as orisrinally adjusted in 1787 han remained with- out rude disturbunr*-. Tho "xecutive, in relation to Con- gress, may appear to have grown stronger during the last half-cent ury, and its authority m war-time is assuredly ' Rpiow u 151 » While ..'ily cMffct****!! »irt«ii)(iin#-ntii bavn been ud'.i»t«d, a gre^t manv tnore hav.> ho<-n proposed, tier H V. Aea*... "Prop-^wl Amendments to tlu> Constitution of the United Hiates," in Amerioaft i^wtoriial -Associa- tion's Annua? fteport (ISQfV). Hcsults of conaiilu- tiotml de- velopment: (a) in- creased strcnifth of national govern- ment. (h) divigiua (if i.iwcrs not dis- turbed. 70 THE GOVERNMENT OF THE UNITED STATES j I fl (c) govern- ment has become more democratic, impressive, but Congress is still all that it was designed to be. The judiciary is the organ that has developed the largest measure of unexpected strength. It is well, however that this has been the case ; for, lo be successful, a federalism must have a tribunal strong enough to act as an impartial arbiter between contending states, to protect ^he constitu- tional rights of minorities, and to safeguard the liberty of the individual. It is not in the general organization but in the practical workings of American government, in the things which the laws and usages determine, that most of the development has taken place. The people of the Unl ^ States live under afar more democratic government to-day than in the clos- ing years of the eighteenth century. This is not because they have had a revolution, bloodless or otherwise. It is merely because a steady popularization in the spirit, usages, and methods of government has been entirely pj>-.:i- ble within the original framework. If the national consti- tution, as some now profess to believe, is a mere travesty upon the principles of popular government, enshrining the ideas of eighteenth-century reactionaries who had no confidence in democracy, it has at any rate afforded scope for the development of democratic institutions on a scale such as the constitutions and laws of no other country have ever permitted. The constitution of the United States, whatever one may think of its underlying philosophy, has served the cause of human freedom and world democracy as no other document has ever done. The form of a government, after all, reaches only a little way. "Constitute government how you plea.se." Edmund Burke once wrote, "the greater part of it must depend upon the e.xercise of powers which are left at large to the prudence and uprightness of ministers of state. Without them your commonwealth is no lietter than a scheme on paper, and not a living, active, effective organiza- tion." » CHAPTER VI THE CITIZEN AND HIS RIGHTS The framers of the constitution, notwithstanding their The aversion to the extremes of democracy, had implicit faith «?Y''™'«° in the principle of government "by the consent of the ""'^"' governed." They began with the humanistic postulate that man is a superior creature, wholly competent to determine his own poUtical destinies. Accordingly they accepted the people as the source of all political power and :.greed without reservation upon the principle of ultimate popular sovereignty. What they limited was not the sovereignty of the people, but the way in which this sovereignty might be exercised. Sovereignty in the United States rests, therefore, in the hands of the citi- zens, acting through their representatives in the manner prescribed by the constitution. There is nothing in the form or mechanism t t American government which the citizens of the United States cannot change, provided they go about it in the proper way. It is important, therefore, that we should have some definition of the citizen, his status, his rights, and his duties. The constitution of the United States at the time of iU who are adoption made use of the term "citizen," but did not define "t^ena? the term. It was taken for granted, no doubt, that the rule of English law, as laid down in Calvin's Case, would be followed, namely, that allegiance would be the test of citizenship, that all persons owing allegiance to the United States or to a state of the Union would be ac- counted citizens. The wording of the constitution seems to recognize this double citizenship, state and national, for it speaks of "citizens of different states" and also of "citi- zens of the United States." But no hint is given as to 71 The old controversy over dual citizenship. The Dred Scott decision. Reversed by the Ff)ur- tceiith .\iiiond- mcnt. li^ 72 THE GOVERNMENT OF THE UNITED STATES what difference, if any, was assumed to exist between the two. Until the adoption of the Fourteenth Amendment there was a great deal of controversy as to the interrelation of these two lines of allegiance. Those who upheld the doc- tnne of states' rights incHned to the view that citizenship of the United States was merely the consequence of citizen- ship in some state of the Union, and that not every citizen of a state became ipso facto a citizen of the United States. In the Dred Scott case (iS.'Se), the Supreme Court took the same attitude. "It does not by any means follow," de- clared the court in this decision, that "because he [a negro] has all the rights and privileges of a citizen of a state, he must be a citizen of the United States. He may have all the rights and privileges of the citizen of a state and yet not be entitled to the rights and privileges of a citizen in any other state. For, previous to the adoption of the con- stitution of the United States, every state had the undoubted ight to confer on whomsoever ii pleased the character of citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the state, and gave him no rights or privileges in other states beyond those secured to him by the laws of nations and the comity of states. Nor have the several states surrendered the power of conferring these rights and privileges by adopt- ing the constitution of the United States. Each state may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons , yet he would not be a citizen in the sense in which that word is used in the constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and imuiuni- ties of a citizen in the other states." ' But the Fourteenth Amendment, adopted in 1868, re- versed tliis doctrine, asserting that "all persons born or naturalized in the United States, and subject to the juris- diction thereof, are citizens of the United States and of the states wherein they reside." Tlii.. amendment declared citizenship to be primarily of the United States and only consequentially of the several states. Citizenship of the ' lired ScoU v. Satui/ord. 19 Howard, 393. B- THE CITIZEN AND HIS RIGHTS 73 United States was made fundamental. Since 1868 any citizen of the United States by birth or naturalization be- comes a citizen of a state by merely taking up his residence there. No state can either bestow American citizenship or withhold it. So far as the rules of international law are concerned, only one citizenship is recognized, namely, citizenship of the United States. In relations with foreign powers all citizens of the United States, wherever resident, are alike ; they are equally entitled to the protection of the national government ; they carry the same sort of passport ; they have the same privileges and immunities abroad. But constitutional law, the supreme law of the United States, still recognizes the dual nature of American citizenship, the Fourteenth Amendment being explicit on that point when it uses the words "citizens of the United States and of the states wherein they reside," although no one can now possess one form of citizenship without the other. Apart from the question of determining the courts in which -uits shall be brought, however, the duality is not of any practice' importance because citizens of the United States have the same privileges and immunities in all the states.^ Who are citizens ? The Fourteenth Amendment authori- tatively defined the term for the first time in American constitutional jurisprudence as "all persons born or natural- ized in the United States and subject to the jurisdiction thereof." Citizenship may thus be acquired either by birth or naturalization. But as a matter of fact not all persons who are actually born in American territory are citizens of the United States. The words "subject to the juris- diction thereof" introduce a qualification. Children born to foreign ambassadors at Washington are not citizens of the United States, for example, because even though born on American soil they are not subject to the jurisdiction of the United States. On the other hand, the children of Ameri- can ambassadors, when born abroad, or children born of American parents on American vessels at sea are deemed to have been born in the United States and to be "natural- ' Arnold J. Lien, Privileges and Immunitiea of Citizens of the United States (N. Y., 1913). The dual- ity, how- ever, still exists, although it is uf no general im- portance. Citisenship by birth. n Citiien- ghip by naturaliza- tion. 1. Natural- ization by statute or by treaty. 74 THE GOVERNMENT OF THE UNITED STATES born citizens," eligible as such for election to the presi- dency. But apart from various exceptions of this sort which are not of great practical importance, all persons born m the United States, of whatever parentage, are citi- zens The old common law doctrine of tlieyus soli, embody- ing the principle that allegiance and citizenship are in the first^ instance governed not by parentage out by place of birth, is the pivot of all American rules regarding citizen- ship.^^ In addition to this, however, the federal laws provide that all chddren born out of the limits and jurisdiction of the United htates, whose fathers were or may be at the time of their birth citizens tliereof, are declared to be citizens of the United States; but the rights of citizens shall not descend to children whose fatliors never resided in the United States." » In otlier woi-ds tlie principle of the jus sangmms or doctrine of citizenship bv reason of parentage IS also recognized.* Citizenship may also be acquired by naturalization The constitution confers on Congress the right "to establish an uniform rule of naturalization," therebv giving it com- plete power over the admission of aliens to citizenship Conf;ress accordingly determines the conditions and pro- cedure in naturalization. Naturalization may be either collective or individual In the former case whole bodies of persons may be admit^f" to citizenship at one stroke, as when new territon' is annexed to the Umted States and the inhabitants of such territory taken withm the fold of American citizenship bv treaty «ru^ m* "^ Congress. Tliis was done in the case of Texas When Texas joined the United States in 1845 after a success- ful revolt from Mexioo, all citizens of Texas were made citizens of the United States by resolution of Congress bo the act of Congress which provided a civil government for Hawaii (April 20, 1900) conferred American citizenship on all those who had been citizens of the Hawaiian Republic. ' RevisFd Statnlff, Section 1993. nJr?yr?''"'T^^^'' T'""f ^ '^''*' •'"">' ^^^ ♦^•'^ ««"«"•«' su^'i^ct aro P. Vai. Dyne, CxHzemhtp of the United Slates (Rochester, 1004', and J 8 Wise' on ru-'"' Z ^"J'-;?''"" «'«''«-^'"> 'N. Y.. V.m). An infori,inff " Rrpon rm^^ ^^QH^r?' '''^ ^^""i^ ^**^^" ^*^ '"""''d as an offlcal publ cation in 1907 (59tli Conjrr.ss, 2ad Session, House Document. No 326; Hi I.; i THE CITIZEN AND mS RIGHTS 75 On several occasions, when the United States has acquired new territories by treaty, the inhabitants of these territories liuve been made American citizens en bloc by the terms of tiie treaty.' But the more acquisition of new territory by the United Mereoon- States does not admit to American citizenship the inhabit- 2"^*' ''T ants of such territory. There must be a specific provision coiipctive to that effect either in a trc^'ty or in aii act or joint resolu- ''.»»>"■''''*»- tion of Congresb. Tlic treaty with Spain in 1898 by which the United States nrquircd Porto Kico and the Philippines did not contain any such provision, nor were the inhabit- ants of either at once admitted to the full status of Ameri- can citizenship by any act of Congress. Congress in 1917 granted to the Porto Ricans full status as citizens of the United States and to the Filipinos it has given some of the pri ileges and immunities of citizens ; but the Filipinos are not yet American citizens in the strictly legal sense of that term. In the phraseology of international law they are called "nationals" of the United States, which means that they are entitled to the protection of the American govern- ment, to have American passports when they go abroad; and in general to enjoy all the rights of an American citizeii when outside American territory. They have, moreover, the pro-.ise of eventually mdependent citizenship. ^ Collective naturalization by treaty or by action of Con- gress is not common. When one speaks of naturalization, it is ordinarily of the other form, namely, the naturaliza- tion of individuals. This is a judicial process the nature of 2. Naturai- which •:. prescribed, even to its smallest details, by the •ujf°j''^ federal laws. There are two chief steps in the procedure, {woceas. both of which must be taken before a duly authorized fed- eral or state court. The first step is a formal "declara- tion of intention " to become a citizen. This formal declara- tion may be made by any alien who is "a white person, or of African nativity or of African descent," ' before any federal court or any stale court of record having jurisdiction over the place in which he lives. Such declaration may not be ■ For example the Louisiana treaty of 1803 ; the Florida treaty of 1819: the Alaska treaty of 1867. and others. ' It will be noted that this wording excludes most Asiatics. 76 THt GOVERNMENT OF THE UNITED STATES 5f (a) the dec laration of intention ("first papers"). (6) the let- tors of citi- lenship ("final papen"). filed, however, until the alien has reached the age of eighteen Viars. The (loclaration must contain inforn)"'on as to the applicant's name, ago, parentage, occupatiun, country of origin, and time and pla, • of arrival in the United biatcs ; and it must further announce his intention to become a citizen, and thereby to divest himself of all allegiance to any foreign sovenign.^ A copy of this document, under the seal of the court, is given to the alien, and must be pre- sented by him wlicn he applies for final naturalization. After not loss tlum five years' continuous residence in the United States and not less than two years after an alien has filed his declaration of intention, he may file a petition for letters of full citizenship in any one of the various courts designated by law as having authority over naturalization matters, provided that he has lived within the jurisdiction of this court at least one year immediately preceding the filing of his petition.* The petition must be sign- I by the applicant himself, and must give full answers to a set of prescribed questions. If the alien has arrived in the United States since June 29, 1906, his petition must be accompanied by a document from the United States immigration authori- ties certifying the timt and place of his arrival. In addition, he must, when he files his application, bring forward the sworn statements of two witnesses (both of whom must be citizens of the United States) in personal testimony to his fi>^e years' continuous residence and his moral character, and in substantiation of the othe." claims made in his peti- tion. After this paper has been left with the clerk of the court it must lie on file for at least ninety days, during which notice of its filing is posted. In this interval, also, an investigation of the petitioner's claims is undertaken by one of the federal agents employed for the purpose. All these formalities having been attended to, the court sets a date for a hearing upon the petition. This hearing must be public, and cannot take place within thirty days l)receding any regular federal or state election. Both ' Citizenship may be acquired, however, without formal declaration of intention by aliens who have served a certHi' tirm in the United States army or navy and have been honorably dischnrffc-l therefrom. ' These requirements are waived in the oases of persons who, in tin^o of war, art! members of the armed forces of the UnitLKi States. THE CITIZEN AND HIS RIGHTS 77 witnesses must attend the hearing with the applicant, and must ar!-;wer such questions as may be put to them by the providing judge, who may also demand from the appli- cant assurance that he is not affiliated with any organiza- tion teaching disbelief in organized government, and that he is attached to the principles embodied in the constitution of the United States. If the court is satisfied upon these various points, the clerk will issue letters of citizenship, or final papers, us they are more commonly called, and the alien is thereafter a full-fledged citizen. These strict rules concerning naturalization procedure Reason for arc the outcome of an attempt to put an end to various tJ^^'tnot- abuses that existed under the provisions of previous naturali- p^«'** zation laws. Prior to 1906, when the process of naturaliza- 'V*'"''"*- tion was simpler and easier, fraudulent admission to citizen- **"'' '*"'■ ship was not uncommon. Sometimes an alien got himself enrolled as a citizen upon the voters' list by means of forged papers ; and, since there were so many courts with authority to grant these papers, the detection of forgeries was rot easy. More often, crowds of aliens were admitted to citi- zenship during the days preceding an election, when no careful investigation of their statements was possible. Paid witnesses were sometimes provided by the party managers to take oath as to matters which they knew noth- ing about. In fact, the naturalization of foreigners became one of the regular undertakings of the ward organization : the applicant's petition was made out for him, his witnesses were supplied, the foreigner beinp; notliing more than a participant in formalities which he did not even understand. The handling of fifty or sixty naturalizations per hour was not a rare achievement in N^^w York courts before the stricter rules went into force. Under .^lui-h pressure during the days preceding the registration of voters, all careful scrutiny of petitions was out of the question ; and the voters' lists of the larger cities were regularly padded with the names of persons who had not fulfilled the stated qualifica- tions at all. Since 1906 these abuses have been almost wholly eliminated. But however their citizenship may have been acquired, whether by birth or naturalization, all citizens of the United MICROCOPY RESOLUTION TEST CHART (ANSI and ISO TEST CHART No. 2) 1.0 I.I 1.25 !S Jf IIIIIM i «^ IIIIIM 1.4 1.8 1.6 A "APPLIED IIVV1GE Inc ^^ 16^5 Lost Moi" Streel r.^ Rochester, Ne* fork '4609 USA ■a^ 1^16) 482 - 03G0 - Phone ^= (716) 288 - 5989 - "a* The status of natur;il- iied citi- zens at home and abroad. The "privi- leges and imniimi- tios" of citizens in i;encral. Theso do not include political privileges. 78 THE GOVERNMENT OF THE UNITFD STATES States are on a plane of legal equality. They have the same rights under the conslitution save in one respect, namely, that only -itizens by birth are eligible to the office of President or Vice-President. One other difference, the outgrowth of international < omity, should also be men- tioned because it is in some cases of great importance. Several European states, Italy and Germany for example, do not recognize tlic right of persons born in those countries to become naturalized citizens of the United States and then, on returning to the land of their birth or parentage, to set up this American citizenship as a means of evading com- pulsory military service or other such obligations. Hence it has been generally conceded by the United States that if a natunilizod American citizen chooses to return to his native countrv, he will not be protected there against the exaction of any obligations which accrued by its laws before he left his native land. A naturalized citizen has the same right of protection as a native-born citizen so long as he remains in the United States or if he goes to any country other than his own native land ; but if he returns to the land of his original citizenship, he does so at his own risk. Citizens of the United States, whether natural-born or naturalized, are not only entitled to protection in foreign countries but they are safeguarded against adverse dis- crimination in any state of the Union. The Fourteenth Amendment provides that "no state shall make or enforce any law which shall abridge the privileges or mimunitics of citizens of the United States." What are the privileges and immunities of citizenship? Political privileges, for example, are not necessarily an accompaniment of citizen- ship American citizenship does not necessarily imply the right to vote or to hold office. Women are citizens as well as men, yet in the majority of the states they are with- out political privileges. On the other hand, the right to vote, even at presidential and congressional elections, has been given in various states to persons who are not citizens. The relation between citizenship and the right to vxrte is at best an incidental and not a necessary relation. The Supreme Court has made it clear on more than one occasion %wi^m^. THE CITIZEN AND HIS RIGHTS 79 "that the constitution of the United States does not confer tlie right of suffrage upon any one, and that the United States have no voters of their own creation." ^ The attempt was made, by the adoption of the Fifteen h Amendment, to enforce the granting of voting rights to negroes in the southern states. This amendment does not specifically mention negroes ; it merely forbids the denial of voting rights by any state on the ground u; "race, color, or pre- vious condition of servitude" ; but the purpose of this pro- vision is unambiguous. This purpose, however, has not been fulfilled. The southern states have been ablo. in a roundabout way, to shut out negroes from voting. This is usually done by requiring that no one may vote unless he can read and write. Inasmuch as the percentage of illiterate's among negroes is very large, the requirement that voters saall be able to read or write is one which, when strictly administered, shuts out a large proportion of them. But there are also many ill' 'rate white citizens who would be excluded by the test ; and for their benefit Alabama, Louisiana, Mississippi, North and South Carolina, and Virginia have provided means where- by the requirement can be easily circumvented by the white element of the population. Various devices are employed to this end. In one case the provision is that the voter must either read the constitution or "give a reasonable interpretation thereof," the question whether the interpre- tation is reasonable or not resting with the white officials in charge of the registration.^ In another state the so-termed " grandfather clause " exempted from the necessity of passing the educational test all those who enjoyed voting rights before 1867 and all descendants of such voters, which is a way of giving complete exemption to all native-born white citizens.' Still another of the southern states exempts all ow^ners of property who have paid the taxes assessed for the year preceding enrolment. As the percentage of prop- erty-owning negroes is srtiall in the southern cities, and the proportion of those who promptly pay their taxes even • Minor v. Happrmett, 21 Wallace, 162. ' Constitution of Mississippi, iS90. Article xii, Section 244. ' This was held unoon8tituti(jnal. Myera v. Anderson, 238 U. 8. 368. The Fifteenth Amendment and its attempt to .secure polit- ical privi- leges for the negroes. How this constitu- tional guar- antee is circum- vonted: 1. the literary- tost. 2. the "grand- father clause." 3. the tax require- ■^v. 4. exclu- sion from the primaries. The letter and the spirit of the law. 11 The Woman Suffrage Movement. Its progress and the reasons therefor. 80 THE GOVERNMENT OF THE UNITED STATES s- iJler, it follows that not many illiterates get their names upon the rolls by the use of this exemption.* Finally, there is a way of permitting the negroes to vote but depriving them of all real share in the selection of representa- tives. Practically all the southern states are overwhelmingly Democratic. The candidates who receive the nomination of that poUtical party are certain to win at the polls, hence the real fight is for the nomination. The plan pursued in some of these states, therefore, is to exclude negroes from voting at the primaries where the real contest takes place. Each state has full power to determine who shall be enrolled as mem- bers of any political pr.rty and hence entitled to a share in the selection of the party candidates. The Fifteenth Amendment does not forbid the exclusion of any one from membership in a political party by reason of race or color. All of these provisions keep within the letter of the Fif- teenth Amendment, even if they disregard its spirit. They illustrate how easy it is, after all, to find ways of evading a constitutional provision when Congress docs not provide adequate machinery for enforcing it, and, indeed, when public opinion throughout the country does not feel suffi- ciently interested to demand its enforcement. These various devices have been established for the sole purpose of disfranchising the negroes. That they have done this effectively is proved by the estimate, based upon careful study, that in some of the southern states not more than one adult male negro out of every hundred is allowed to vote at presidential elections.^ The question of granting complete voting rights to women has been much discussed for many years in the United States. The first grant of full suffrage to women was made by the territory of Wyoming in 1869. This privilege was continued when the territory became a state in 1890, ' Constitution of South Carolina, 1895. Article ii, Section 4. For a further discussion of these matter'- see J. B. Phillips, Educational Qualifica- tions of Voters (University of C( rado Studii-s, III, No. 2) ; and, for a defence of the policy pursued by the southern states, see F. O. Gaffey's article on "Suffrage Limitations at the South," in Polilical Science Quar- terly, XX. 53-67 (March, 1905). ' J. C. Rose, "Negro Suffrage," in American, Political Science Review, T. 20 (November. 1906). ii THE CITIZEN AND fflS RIGHTS 81 I Arguments in favor. and since that date about a dozen other states have given full voting rights at all elections,^ while many of the remain- ing states have granted them the right to vote at some elections but not at others. Considerations both of senti- ment and of expediency have led to this extension of suffrage. The doctrine of natural rights has been revived to do ser- vice. More influential, however, have been the distinctly pra^itical considerations ; for example, the fact that women !ire in many cases taxpayers and hence should have a direct share in their government, and that many are wage-earners and hence deserve a share in determining the relation of the laws to industry. The progress of the movement for woman suffrage is also in some measure the outcome of American social usoges which have placed the two sexes on a plane of equality in nearly all non-political fields of activity. Various arguments are advanced both for and against the policy of giving full voting rights to women. Women are citizens ; many of them own property ; and all are so affected by the workings of government as to be directly interested in its efficiency. In some fields of law and regulation, such as those relating to the care of the dependent and delin- quent classes, to hours and conditions of female and child labor, women have a particularly vital interest. It is claimed that the extension of the suffrage to women would iti some degree offset the political influence of the foreign- horn element in large communities since the figures show that far more male than female immigrants come to this country. It is said that women, if given the ballot, would constitute a powerful element in opposition to the vicious influences in American political and social life, the saloon, the gambling den, the brothel, and so on. And finally, it is urged that where women have been given the suffrage the result has been made manifest in the humanizing of tlie laws and in the improved tone of political life. In opposition to the policy it is argued that women would Arguments not use the ballot wisely, being actuated by their sympathies "nainst. » They are as follows : Colorado (1893) ; Utah (1896); Idaho (1896) Washington (1910): California (1911) : Arizona (1912) : Kansas (1912) Oregon (1912) ; Montana (litU); Nevada (1911;; New York (1917) Michigan, South Dakota, and Oklahoma, 1918. 82 THE GOVERNMENT OF THE UNITED STATES What experience proves. Other things which are not "riRhts" of a citiien. and eirotions rather than by their judgment ; that they would not develoiy an active interest in politics or come to the polls in reasonably large numbers ; that the extension of the suffrage to women would tend to weaken the family as a soci; 1 and economic unit; that it would greatly increase the ex] nse of elections without making government more truly representative ; and that it would merely widen the area of political activity at the expense of normal domestic life. The results of woman suffrage in the states which have had a sufficient experience with the institution seem to ,how that neither the merits nor defects of the policy have been as marked as its advocates or opponents respectively would have us believe. Women have used the suffrage much as men have used it, showing no more interest and no less, using the ballot with great intcUigence at some times and with little at others, even as men have done for many generations, influenced by their prejudices, whipped into fine by party bosses, all as men are, and apparently to the same degree. The granting of voting rights to women in a dozen states of the Union has not demoralized domestic life in any of them, nor, on the other hand, has it had noticeably effective results in the way of securing these states a priority over the others in the humanitarianism of their laws. The chief merit of woman suffrage in these communities has been that of rendering content a large group of citizens without in any perceptible measure im- pairing the economic, social, or political order. The privileges and immunities of a citizen of the United States, again, do not include the right to serve on a jury in any state court. A state may restrict that privilege or duty to its own citizens, or in other words to citizens of the United States who reside in the state concerned. So with many other privileges which do not appertain to a citizen as such. The right to practice law or medicine in one ttate, or to drive a motor car there, gives no privilege of doing the same iii any other state. These are on the same plane as the right to vote, save that the discretion of the state is even wider. A state may allow its own citizens and no others to be lawyers, physicians, druggists, school teachers, THE CITIZEN AND HIS RIGHTS 83 chauffeurs, or what not. Where a state grants to outsiders the same privileges as to its own citizens in any of these things it does so as a matter of comity or interstate courtesy, not because it is compelled so to do by any constitutional requirement. The right to vote, to hold office, to serve on a jury, or to practice a profession — these rights do not appertain to citizens as such. They are privileges granted or withheld by the several states as expediency may dictate. There are, however, other privileges which do appertain to Ameri- can citizenship, the "privileges and immunities of citizens," as the constitution terms tiiem. These words are compre- hensive, and the Supreme Court has wisely refrained from any attempt to make a complete list of the American citi- zen's privileges and immunities.* But in general tliey include the right to pass frooly from state to state, to reside in any one of the states, and to have all such privileges as are accorded to residents there ; to own property, whether real or personal, in any state ; to sue in the courts of the state in which a citizen resides ; to appeal, when necessary, to the federal courts, and to have wlien abroad the protec- tion of the federal government for his life, liberty, and prop- erty. Nor may a citizen of the United States be deprived by legislation of his life, liberty, or property without "due process of law," that is to say, except by the proper exercise of a state's police power ; in other words, its power to pro- tect the safety, health, and morals of its own people.^ These are the real "rights" of the citizen, his constitutional privi- leges, which no law of any state may abridge. ' The nearest approach to any full enumeration, perhaps, is that made in the Slaughter House Cases (10 Wallace, .SO), where the Supreme Court included anions the priNnlesres and immunities of citizens the right "to demand the care and protection of the led.ral government over his life, liberty and property when on the high seas, or within the jurisdiction of a foreign governmert; to peaceably assemble and petition for the redress of grievances, the irivilegc of haboas corpus ; to use th ^ navigable waters of the United Stat^^s however they may penetrate tue territory of the sev- eral states; all rights secured to citizens by treaties with foreign states . . . the right on his own volition to become a citizen of any state of the United States by a bona fide residence therein, with the same rights as other citizens of that state." * For an explanation of "due process of law" and its history see below, pp. 291-294. 84 THE GOVERNMENT OF THE UNITED STATES Is a cor- poration a citizen? The in- alieaable rights secured by constitu- tional limitations. f 'i For most judicial purpose a corporation is a citizen. It is deemed to be a citizen oi the state in which it has been organized. A corporat jn chartered in New Jersey, for example, is by legal assumption a citizen of that state and as such entitled to the equal protection of the laws in all other states.' In determining whether a suit to which a corporation is a party shall be brought in the federal cr rts (in accordance with the constitutional provi- sion wb' jives these courts jurisdiction ovei controversies "betw citizens of different states") the corporation is deemeu to be a citizen of the state in which it was chartered. But while it is regarded by the courts as having in many respects the same rights as a natural \ Tson, a corporation is not a citizen in the same sense as an individual and is not entitled to all the "privileges and immunities" which the constitution guarantees to the individual citizen. It is quite permissible, accordingly, to make reasonable discrim- inations by the laws of any state, between corporations chartered there and those chartered elsewhere, and to give to the former privileges which are denied to the latter. That policy, however, is not usual. The rights of the citizen, both in the states and in the United States, are formulated in a series of limitations which the constitution contains, some of th^ .; orig- inal document and some in the articles '~-! ' iient, particularly in the first ten amendments whic aKcn to- gether, are commonly called the Bill of ^'"ibtP. These rights, as there stated, include the right to be immune from punishment by any bill of attainder or ex post facto law, to have the privilege of the writ of habeas corpus except when the public safety may require its suspension, to enjoy freedom of worship, freedom of speech, freedom of the press, freedom to assemble peaceably, and freedom to petition the government for the redress of grievances. They include likewise the right to keep and bear arms when so authorized • The legal doctrine may be briefly stated as follows : The citizenship of a corporation is determined by the citizenship of the persons composing it ; but when the corporation receives its charter in a state, the presumption is that its members are citizens of that state, and this presumption may not be rebutted by any averment or evidence to the contrary. See Missiaaippi R. R. Co. v. Wheeler, 1 Black, 286. THE CITIZEN AND HIS RIGHTS 85 by the militia laws of any state, to be immune from the billeting of soldiers except in time of war and tiien only in a manner prescribed by law, to be secure in person and in home against unreasonable searches and seizures and from the issue of search-warrants without probable cause sup- ported by oath, to be given in the federal courts all manner of judicial protection including securities against trial for any serious crime except upon action of a grand jury, and against being twice placed in jeopardy for the same offence, to be assured a speedy and public trial by jury, to be informed of charges, confronted with witnesses, to have the assistance of counsel, to have jury trial also in important civil cases, to be free from the requirement of excessive bail and not to be subjected to any cruel or unusual punishment. Finally they comprise the right to be free from bondage or involun- tary servitude save as a punishment for crime ; the right to be protected in life, liberty, or property unless deprived thereof by due process of law, and to receive in all parts of the Union the equal protection of the laws. This long enumeration of the citizen's rights is not to be construed, the constitution expressly provides, to deny or disparage others retained by the people. It does not, accordingly, profess to be a complete catalogue of them all, but only of the fundamental ones. Taken together they form, nevertheless, a large portion of the general category known to students of American government as "constitu- tional limitations." The exact scope of these limitations, however, will be the theme of a later chapter.* In general, we hear far more about "natural rights" and the "rights of the citizen" than we do about natural and civic duties. Yet every right, of whatever sor* , carries a duty and a responsibility along with it. What, then, are the duties of the citizen ? They are not definitely set forth in the constitution, it is true, but they are implied by the very nature of free government. The citizens of a democ- racy who act upon the assumption that popular government prefigures rights alone will in time have no rights worthy of the name. Popular government implies not only govern- ment for the people but government by the people. The 1 See oh. xx. The fore- going list is not exhaustive. Correlation of rights and duties. ill m 86 THE GOVERNMENT OF THE UNITED STATES Proper per- formanco of civic duties is essential to good govern- ment. But in a true democ- racy the citizen will per- form his civic duties if given a fair chance. latter Uiakes large demands in the V'ay of patriotism, self- sacrifice, pul)lic spirit, intelligence, and activity. No one, therefore, should fix his eyes upon his civic rights to the exclusion or to the derogation of that equally important factor in free government, civic duties. The constitution of the United States guarant "s to every citizen that he shall have the privilege of living undfer a "republican form of government." But the literal terms of this guarantee do not mean much. A government may be republican in form and yet be a very had government, autocratic, inefficient, and corru|)t. All the govcfnments of Central and South America are republican in form, yet most of them have never been popular governments and some are nothing but guerilla dictatorships. A republican forn^ of government will provide and preserve the blessings of liJ^erty to such extent as its citizens may entitle them.^^elves by their intelligence, patriotism, initiative, and forbearance. "Every nation," somebody once wrote, "has as good or as bad government as it deserves." That "s sound, democratic doctrine. The excellences ( <" a constitution or of laws will avail little if the actual machinery of government be not kept to the proper pitch of efficiency and responsiveness. Political philosophers talk of a " government of laws, not of men," but the world has never seen :7uch a government. All laws outside of Holy Writ depend for their actual applica- tion, interpretation, and enforcement upon human agencies. It is the crowning glory of a democratic form of govern- ment, however, that the people can be counted upon to do their duty. vVhere they fail, it will usually be found that their democracy has been spurious. Democracy has often been badly alloyed with political autocracy by reason of party manipulations, cumbrous nominating machinery, the blanket ballot, lobbying in legislatures, and by the vari- ous other appurtenances of ramshack'e government. If the issues can be fairly sot before the citizens, however, they can invariably be depended apon to do their share. Genuine democracy spells patriotism. Were it not so, democracy would have a poor chance of survival, since autocracy is in many ways a more simple and less expensive form of rule. :MWr^^- THE CITIZEN AND fflS RIGHTS 87 The duties of the citizen in a free land are too numerous Some out- and too varied to be set down on tbo pages of any man's book. Tlicir name is leyjion. The duly to know his coun- try's history and to bo proud of it ; to understand his own fiovemmcnt and to honor it ; to know the laws and to obey them; to be respectful of all duly constituted authority; to be loyal in action, word, and thought ; to look upon the privilege of the suffrage as a sacred thing and to use it as b(>cometh a sovereign prerogative; to bear his portion of tlie common burdens cheerfully; to serve in public office at personal sacrifice and to regard it as a public trust; to fight and die if need be in the nation's cause — these are the first obligations which a free government imposes upon its citizens. The vision of duties as well as of rights must be always before the citizen's eyes, for where there is no vision the people perish. ntandintt duties of the citUen in a free land. CHAPTER VII THE PllESIDENT The n. ed of a cen- tralized executive. A single executive decided upon. In the Articles of Confederation there was no provision for a chief executive. The Congress of the Confederation chose its own presiding officer, but he had no executive powers, and such executive work as could not be performed by the Congress itself was deputed either to specially ap- pointed officials or to committees. This arrangement proved far from satisfactory as any one v/ho reads Washington's letters will learn, and the framers of the constitution agreed that in the new government :i strong and separate executive was necessary. Their experience during the years prior to 1787 had clearly taught this lesson, for the need of a su- preme guiding hand had been sorely felt on many occasions during the critical days of the Revolutionary War. But how the executive should be chosen, whether he should be independent of Congress or not, an I what powers he should have — these matters were not so easily decided. No part of the convention's work gave it more trouble, or caused so many change of front, or seemed less calculated to inspire a feeling of satisfaction when the task was done. As to the proper organization, powers, and functions of the executive there were, at the outset, nearly as many different opinions as there were delegates. Tiie examples of arbitrary power affonlcd by the reign of George III led some to favor the idea of a plural executive or group of persons no one of whom should be superior to the others, but all of whom should act by joint decision. This would provide security against executive despotism. It was realized, however, that whatever might thereby be gained in security would be more than offset i)y the ever present danger of friction and conflict of opinion in national emer- 88 THE PRKSIDENT 89 His position in relation to C'ongreis. gencies. So the convention finally committed itself to the single executive plan. This was an eminently wise decision, for history had not disclosed plural executives to be satisfactory either in peace or war. The Directory which handled the affairs of the new French republic during the years 179.")-!?''' < was soon to give a fresh demonstra- tion of that fact. Having decide ' o place the sipreme ex-" "vc authority in the hands of a single individual to be ca ' ' President, the next question concerned the metho- . electing this official. Many of the delegates favored .i proposal to let Congress choose the President, and that plan was provision- ally adopted. But later on, when the convention became convinced that this arrangement would virtually destroy the whole system of cher' s and balances, the question was reopened and finally settled in an entirely different way, namely, by the expedient of indirect election. There were a few who favored direct popular election, but the majority were unalterably opposed to that plan, regarding it as the open door to the choice of demagogues and perhaps, event- ually, to tht usurpation ti monarchical power. The fear that somehow or other -^ monarchy might grow out of the new national governm' haunted the delegates at every turn, and they were dt ous of guarding against such a possibility in every Practicable way. On the other hand, they were equal:,, di-inclined to set up a mere paper execu- tive y-'i'^ the fui. "'ons of a figurehead, the mere creature of Co ■•■ ss and i '.capable of effective leadership. What they did, accordiagly, was to give the President a position of circumscribed independence with powers which tjiey deemed to be adequate in normal times and which might be considerably expanded if emergencies should arise.^ What was the mechanism finally adopted by the con- vention for securing the choice of President? It was relatively simple and allowed a large degree of latitude to the the states. Briefly, the constitution provided that each P^'***"'- state should "appoint" in "such manner as the legislature thereof may di ;ct" a number of "electors" equal to the * The development of the presidential office is fuUy discussed in Edward Stanwood's History of the Presidency (2 vols., boaton, 1916). The original method of choosing 90 THE GOVERNMENT OF THE UNITED STATES Motives which rliptated the selec- tion of this luecbanism. State's combined quota of senators and representatives in Congress. A state having, for (\\ami>l(', two senators and five representatives was thus to choose seven electors. In due course these electors were to meet, each group in its own state, and were to give their votes in writing for two persons, of whom both should not be inhabitants of its own state. These ballots w(>re to be sealed and trans- mitted to the presidei" of the Senate, who was directed to count them in the presence of both Houses and to an- nounce the result. The person receiving the most votes was to be President and the one obtaining the next highest number was to be declared Vice-President. The ends which the makers of this plan had in mind were made quite clear during the debates in the constitutional convention. The delegates believed that the selection of the nation's chief executive officers should be made solemnly and with d(>liberation, by elect.. rs specially chosen for this task alone. It was their hope tliat the electors so gathered together would be men of high reputi; in their respective communities, and that the function of choosing tlie President would be completely left to them by the people. That, indeed, is what happened at the first two elections. Then a different course began to shape itself. At the third elec- tion (1796) it was well understood, even before the electors met, that most of the electors would vote for either John Adams or Thomas Jefferson, although in no case were any pledgees exacted. In 1800 things w(>re carried a stip further. Two well-defined political parties had now arisen, and at the election of tliat year both put forth their regular t andi- dates. Electors were chosen upon the undersumding that they would vote for one or the other of these candidates. The function of deliberation so far as the electors were concerned now became a mere fiction; henceforth the electors were to serve as mere automatons, selected because they would do what they were told to do. The heart of the original plan was thus cut out within ten years, and never since has there been any serious attempt to restore it. The mechanism of indirect election has been retained because no practical purpose would be served by abolishing it. The saving clause in the original provision, namely, "in THE PRESIDENT 91 A defect in the original such manner as the legislature thereof shall direct," has proved quite broad enough to permit the complete substitu- tion of direct for indirect election. The constitution in its original form provided that the electors should vote for "two persons" without designat- ing which was the elector's choice for President and which plan? for Vice-President. But this indcfiniteness led to serious trouble at the election of 1800 when two aspirants, Thomas Jefferson and Aaron Burr, each received an equal number of votes. Both candidates had been put forward by the same political part^^ with the intention that Jefferson should be chosen President and Burr Vice-President; and the electors, voting strictly on party lines, gave one as many votes as the other. Xow the constitution made provision that in case of a tic the House of Representatives should determine the choice, and the House did so, choosing Jeffer- son President after an exciting contest. The episode proved, however, that under the party system a tie vote might often occur and that a change in the method of voting would be advantageous. In 1804, therefore, the Twelfth Amendment was added to the constitution providing, among other things, that thereafter the electors in the several states should " name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President." For more tlian seventy years thereafter presidential elections were held without any trouble of a serious nature. In 1824, it is true, no candidate for President received a dear majority of tlie electoral votes, and the House of Repre- sentatives once again had to make a choice. There was some talk of changing the meclianism of election once more, but nothing was actually done. Through the political tumults of the Civil War period the system worked with- TheHayoa- ont mishap. It was not until the election of 1876 that a '^'''^,'"" ''""■ perplexing difficulty arose. From sevi ral states, on that °^*''"^' occasion, two different sets of electoral votes were received. Who should determine which of these sets should be counted and which rejected? The constitution had not anticipated any sucli eventuality ; there was nothing in the laws, either of the United States or of the states themselves, to provide a satisfactory answer. If the president of the Senate, whose u 92 THE GOVERNMENT OF THE UNITED STATES duty it was to open and count the votes, should accept one set of returns from the disputed states, the election of Rutherford B. Hayes, the RepubHcan candidate, would be assured ; if he should accept the other, the election would go to Samuel J. Tilden, his Democratic opponent. As a way out of tlie difficulty it was agreed to create a special electo -al commission of fifteen persons, five senators, five representatives, and five justices of the Supicme Court, with authority to decide which sets of votes should be counted. The decisions of this body determined the elec- tion of President Hayes.' While the matter was eventually settled in this way without disturbance, the situation was fraught with danger for a time and Congress sought to make sure that a contro- versy of the same sort should not occur again. How to do this, whether by an entire reconstruction of the plan of election (which would require an amendment to the con- stitution) or by men ly making clear the procedure in cases of doubt (which could be done by law), was much discussed itssoquoi— for some years. In 1887 Congress solved the problem by a iw.""' statute which deals with the subject of disputed votes. In general each state must now determine, in accordance with its own laws, any disputed questions concerning the choice of presidential electors from that state. If in New York, for example, two groups of electors claim to have been cJiosen at the polls, the laws and courts of New York must settle the dispute before the votes of either contest- ing group can be counted. From neither the constitution no-- the laws, however, can one get an adequate idea of the a\ in which the Presi- ' Of the ^m pleotors. 184 were pledged to Tilden (Democrat), 164 to Hayes (R<>pubUpan), and 21 votes were in dispute, namely, those of South Carolina, Florida, Louisiana, and Oregon. To the electoral commission the Senate appointed three Republicans and two Democrats, while the House of Representatives appointed three Democrats and two Republi- cans. Of the five Supreme Court justices, three were Republicans before their appointment to the bench and two were Democrats. Thus the electoral commission, as finally constructed, contained eight Republicans and seven Democrats. All, however, took an oath to decide the issue on its merits and iiupai lially. On every disputed question, however, the I'ommission divided on straight party lines and gave the entire twenty- one disputed vot*^s to Mr. I [ayes, this being necessary to secure his election. THE PRESIDENT 93 dent of the United States is actually chosen.' The constitu- tion provided three steps — the choice of electors, the voting liy eleccors, and the counting of the votes. By usage two other steps have developed, so that there are now five steps in all. The first throe are of great importance, while the last 4.W0, the voting by electors and the counting of the votes, have become mere formalities. First of all there is the nomination of candidates, a matter on which there is not a word in the constitution, for it was not intended that there should be any formal nominations. The initial step is taken with the calling of the national party conventions. Each of the great political parties maintains a general executive body known as its national committee, made up of one delegate from each state. Each national committee decides when and where the convention of its own party shall be held. Usually the calls are issued in January of a presidential year, and the conventions meet in June. Then in the following months the different political parties in each state select their own delegates to these conventions. Every state is entitled to twice as many delegates to each convention as it has senators and repre- sentatives combined.^ Massachusetts, for example, has two senators and sixteen representatives. It sends, there- fore, thirty-six delegates to each of t =e national conven- tions. Not so many, as a matter of fact, go to any except the Republican and Democratic conventions. National conventions of other parties, such as Prohibition and So- cialist parties, rarely or never draw their full quota from all the states. It is also usual in the case of the major parties to select an equal number of alternates, to serve in case regular delegates are absent, and these alternates, or most of them, go to tl;e place where the convention is being held. All delegates to national conventions are now chosen at the party primaries, that is, by the members of each party in the various states at ballotings held for the purpose or by ' A full account of both the law and the practice may be r.ud in J. H. Dougherty's Electoral System of the United States (N. Y., lb ,ii). ' In 1916, however, the Republicans provided that a oongresrional dis- trict should not elect two delegates to the Reprblican national conven- tion unless it contained at least 7500 Republican voters. The present method of election. First step ; nomination of candi- dates. Stages in nomination procedure : Co) the calls for the party con- ventions. (6) selec- tion of dele- gates to the party con- ventions. (c) the conven- tions. (d) ballot- ing on nomina- tions. 94 THE GOVERNMENT OF THE UNITED STATES conventions made up of party delegates. Until recent years the delegates have been chosen to use their own discretion at the national convention, but now the laws of some states permit the voters of each party to instruct or pledge their delegates, that is, to indicate on the ballot what presidential candidate the delegates are to support at the convention. Then comes the meeting of the convention, an unwieldy and often boisterous body of a thousand members or more. The Republican convention meets usually in one city, the Democratic convention m another, and the two do' not meet at the same time. The procedure in each, hov/ever IS much the same. In a great hall the delegates are seated by states. After the various formalities* of choosing i>, chairman and examining the credentials of delegates "are gone through, the convention proceeds to the adoption of the party platform. This platform has been framed in advance by a committee. Then nominations are called for. The roll of the states is called in alphabetical order Alabama first and Wyoming last. The cliairman of any state delegation, or any one deputed by him, may make a nomination. The nominations are usuallv supported by speeches. ^ After the nominations have been made the balloting begins. M Democratic conventions the "unit rule" is frequently applied, that is, the vote of the entire delegation from each state is given intact, whenever tlie state convention so directs and the state laws so permit, the majoritv in each delega- tion deciding how it shall be cast. At Republican conven- tions, on the other hand, the votes of a delegation may always Ije split if the delegates wish, although that does not usually happen. At any rate, the votes are given, counted, and announced. At Republican national conven- tions a candidate receives the nomination if he secures a clear majority of all the delegates ; at Democratic national conventions he must obtain a two-thirds vote. In either case, when several candidates have been placed in nomina- tion it is often necessary to take ballot after bnllot before a choice is decided upon. The weaker candidates drop out ; votes are shifted around on successive ballots, and the THE PRESIDENT 95 convontion keeps at work until a decision comes. Mr. (Jarfiuld, in 1880, was nominated on the thirty-sixth ballot. 1 H' selection of the party nominee for the vice-presidency irf made in the same w;iv, but usually with less difficulty. When the party couventious have finished their work, die next step is the nomination of electors in the several states. In each state the political parties put forth their slates of electors, nominated in whatev way the state laws prescribe. In some the electors are noi.iinated at primaries, in others by state party conventions. These electors are usually prominent party men but ir'-^t n )t be federal office- holders. Their names go on the ballot in parallel columns, and on the Tuesday after the first Monday in November the voters in each state decide which group of electors shall be chosen. When the voter marks his ballot fcr a certain Sroup of electors, however, he is in reality indicating his preference for one or other of the candidates already named by the national conventions. The ballots do not bear the names uf these nominated candidates, or, i*' they do, it is only to guide the voters in voting for the desired group of electors. To all intents and purposes, nevertheless, the balloting is just as direct as though there were no intervening electors at all. The real election tak(s place on this elec- tion day ; what occurs later, unless some unusual mishap occurs, is nothing but formality. Yet the constitution requires two further steps in the ek'Ciion of a President and Vice-President. In January following the elecii m the electors chosen in each state come to the state; capital and there go through the procedure of balloting for the candidates whom their pa'-+v nominated at the national convention six months be No con- stitutional provision or law prevents them im marking their ballots as they please, voting for some one other than the prescribed candidates, but they never do so unless, perhaps, a candidate chosen l)y a national party convention has died in the meantime. Then they vote as the national committee instructs them to vcle. The votes are iittested, sealed up, and sent to Washington. In February the president of the Senate supervises the counting of the votes in the presence of both Houses of Con- Scoc nd stoi): the nomination of electora. Third step : the election of electors. Fourth step: elec- tion of tho President by the electors. 96 THE GOVERNMENT OF THE UNITED STATES Final step: transmis- sion and counting of the votes. Lord Bryce on the presidency. The nation has not always utilized its greatest men. gress. As a rulo this is only .an unintprostinK coromonv nothing more. But it may h ,,pen that the result is a tie or that no candidate has received a clear majority of the total electoral vote. In either ca.se the House of Repre- sentatives proceeds to choose a President from among the three candidates who have stood highest. In making this choice, however, the representatives -^o not vote as indi- viduals; each state has one vote and the representatives from a state merely decide by majority action among them- selves ju.st how the vote of their .state shall be cast. In case the electoral college fails to elect a Vice-President by a clear majority, the Senate makes the choice from the two highest candidat(^, but the senators vote as individuals and not by states. On only two occasions, the last of them more than ninety years ago, has Congress been called upon to select a President.' The result having been announced, the inauguration of the President and Vice-Pre.sident takes place upon the following fourth of March In Lord Bryco's admirable analysis of the spirit and work- mgs of Americ; . government a chapter is devoted to the question. Why great men are not chosen Presidents." Jiuropeans often ask," wrote Bryce in 1884, "and Ameri- cans do not always explain, how it happens that this great office the greatest in the world, unless we except the Papacy fLT, !i "2^?/"'' "'" ^y ^^ «^ "^^"ts, is not mofe frequently filled by great and striking men." "Since the ?n Tm^^i Revolution died out with Jefferson and Adams and Madison, he continues, "no person except General Sn^' 71 'f. *^' '^''''' '^^''^^ "'•''"^ ^^«"W have been ex3 a7 .^'^ Y ""', ^'''' ^'■^^'^^"*' ^"^ "° I^'-^-^ident except Abraham Lincoln has displayed rare or striking qualities m the chair." » Miming These statements are scarcely as defensible to-day as rZ''T^ ^^r^^^ °^^ >:r'-« ^^o- Many Americans regard Grover Cleveland as a "great" President, ever, when meas- ured with John Adams or James Madison; and there are few who would deny to either Andrew Jackson or Theodore ^- "*« Amencan Commonwealth, I, oh. vii. THE PRESIDENT 97 Roosevelt the possession of "striking qualities." Survey- ing the history of the presidency as a whole, however, one may properly admit that the query propounded by Lord Bryce is a fair one and deserves discu.ision. The nation has failed to utihze in the presidential office a long line of notable statesmen : Hamilton, Marshall, Gallatin, Webster, Clay, Calhoun, Seward, Sumner, Hay, and others. On the other hand, it has bestowed its highest honor on men like Polk, Fillmore, Pierce, and Arthur, of whom no one now knows much except that they are on the roll of the Presi- dents. Certain it is, at any rate, that things have not turned out exactly as the Fathers of the Republic intended, for Hamilton in 1788 voiced the prediction that in view of the plan of indirect election provided by the constitution "the office of President will seldom fall to the lot of any one who is not in an eminent degree endowed with the requisite qualifications. ... It will not be too strong to say that there will be a constant prolmbility of seeing the station filled by characters preeminent for ability and virtue." In the United States sev( ral factors have contributed from time to tir i^ in placing at the head of the nation men who did not possess conspicuous qualifications for so great a responsibility. In the first place, the greatest asset of one who aspires to political office in any country having a free government is the general quality of being acceptable to a wide variety of political interests. A candidate is acceptable, if his temperament, his associations, and nis reputation seem to fit the political needs of the moment. These needs are sometimes easy to meet ; at other times very difficult. At the approach of one election campaign there may be many aspirants with the desired qualities ; at other times a party may be hard pressed to find any one who comes at all near the assumed requirements. It often happens, therefore, that one who is by common agreement the strongest possible candidate in one yea»" may be wholly out of the running a year or two later. The political stage shifts its background quickly. Long experienc" <'" political life is one of the things which ought to make one an acceptable candidate for high oflice ; but in practice it usually does not. The man who spends Factors which determino the choice of a President : 1. accept- ability to a wide variety of interests. -'. experi- ence, or the lack of it. 98 THE GOVERNMENT OF THE UNITED STATES .■?. tho in- fluencp of the "ijivotal" states. a long term in the public service has either proved himself a trimmer or else by standing up couragoously for his own opinions has made himself many t nemies. If he has served several terms in Congress, lie has necessarily sup- ported some measures and opposed others. He has probably offended some elements of his own party. He is indeed fortunate if he has not antagonized some economic interests and made himself unpopular in various sections of the country. In other words he has "made a recor .," and a public record, no matter how good it may be, usually pre- sents opportunities for partisan or sectional attack. The Blaine-Cleveland campaign of 1884 afforded a good illus- tration of this factor. Mr. Blaine had given the country twenty years of aggressive service in Congress. Mr. Cleve- land had all the advantage of being only three years in the public eye, and of never having held a national office at all. Mr. Blaine was beaten by the enemies he had made in his congressional career. A considerable section of his own party, although fully recognizing his personal ability and his qualifications for the presidential post by reason of long familiarity with national problems, had been antago- nized by his record in Congress. Of the five Presidents since the first election of Cleveland, only Harrison and Mc- Kinley served in Congress prior to assuming the presidential office. All the others had been in public life as governors of states or of insular possessions ; but they had not identified themselves too closely with matters of national legislation. It is strategically desirable, again, that presidential candidates shall be taken from what are called the pivotal states. This results from the fact that the outcome of the election is not determined by the plurality of the total votes cast by the people but by a majority of the electors chosen. The successful candidate must carry enough states to con- trol this majority, and he may do this (and sometimes has done it) without getting a popular majority. At the elec- tion of 1860 Lincoln's electors received a million *"ower votes than those of his opponents, yet he had a comfortable majority in the electoral college.' Harrison in ISSS and Wilson in 1912 received a minority of the popular ballots, but were elected nevertheless. A majority of many thou- THE PRESIDENT 99 sands in any state is no better for practical purposes than a majority of one. When Cleveland carried New York by less than twelve hundred, he captured that state's entire slate of presidential electors. A change of six hundred ballots would have given the electoral vote of the state, and with it the election, to his opponent. An aspirant from a small state is, therefore, at a disad- vantage as compared with one from a large state, for a presi- dential candidate should at least carry his own state and it ought to be a state worth carrying. The man who can deliver the twenty-four electoral votes of Ohio is, accord- ingly, a better candidate, if other things arc equal, than the one who could bring with him merely the three votes of Nevada. It is, moreover, not merely a question of carrj-- ing one state, sometimes, but a whole group of neighboring states, of swinging New England, or the Middle West, into line. Another consideration also comes in. Many states are sure states, that is, they can be carried, under normal conditions, by the regular candidate of one or other political party no matter who he is or where he comes from. Nearly all the southern states are in this class. They are solidly Democratic. Why then nominate a Southerner as the Democratic candidate? It is the big, doubtful states which count, that is, the states like New York and Ohio, which are not so strongly welded to the fortunes of either party. Every President since the Civil War has come from Ohio or New York, with the exception of Woodrow Wilson, whose state is New York's next-door neighbor. » Many other factors influence the choice of candidates. Religious affiliation, business association, party loyalty, the general impression which a candidate will make' upon the public imagination must all be taken into account. Yet none of these things is necessarily related to the possession of "great and striking qualities" in a man. The ablest statesman in the land may be inferior, in point of political availability, to some favorite son of a pivotal state. Great men do not always make strong candidates, and it is the business of the national conventions to select candidates, not Presidents. ' Harrison, though a resident of Indiana, was born in Ohio. ! i 4. pprsonaii factors. 100 THE GOVERNMENT OF THE UNITED STATES 5. the time of the election. Upa und downs of the presi- dency. ft The policy of fixing rigidly the date at which a presidential election shall take place has also had its effect. In England a general election rnu.st ordinarily occur at least once in every five years. But within this hmit an administration can "go to the country" whenever it pleases. It can avoid a time when public opinion seems to be running adversely and can choose a moment when some striking administra- tive success or some popular stroke may operate heavily in its favor. In America the party leaders cannot do this. They must take the times as they are. If the presidential election comes along during a year of business depression or of slender harvests, the party in power is likely to be at a disadvantage. Candidates are chosen to suit the times; there are fair-weather candidates and there are those to whom the parties are more apt to turn wlien the skies are darkening. Yet the presidency, when all is said, lias maintained a reasonably high level of ability and statesmanship, save for a lapse at one period. It has been "one tiling at one time, another at another, varying with the man who occupied the office and with the circumstances that surrounded him." ' During the first thirty-five years of its existence the standard was high. No wonder men felt that the arrangements devised by the constitution had proved a great success, /ashington, Adams, Jefferson, and Madison represented the best the country could give. All the Presidents prior to Andrew Jackson, indeed, were just about what the framers of the constitution expected the incumbents of t'le office to be. Jackson, first elected in 1828, was not a man of great intellectual quahties; but he was surely an aggressive and virile figure, the personification of a new era in the nation's politics. His successor. Van Buren, has been accurately characterized as a "first-rate second-class man," which is rather more than can be said of any among the seven presidents who intervened between him and Lin- coln.'' During this quarter of a century, the mediocrities had their day, varied on two occasions by the election of ' Woodrow Wilson, Constitutional Government in the United StcUea (N. Y., 1911), p. 57. » T. F. Moran, American PresideiUa (N. Y., 1917). THE PRESIDENT 101 soldiers who had made reputations in the War of i812 or in the Mexican war. The outstanding figures of American statesmanship during this period, Wei) r and Clay among them, wer<- either passed over by conventions or defeated at the polls. In the late fifties, accordingly, it might well have l)een said that the presidency was entirely failing to justify tlie high hopes placed upon it by the creators of the constitution. Then came the election of Lincoln and the Civil War, In Lincoln's day the prestige and powers of the presidency rose enormously. And after a lurid interval marked by unseemly quarrels between Congress and Andrew Johnson (who became" Pn-sident on Lincoln's death) General Grant was chosen as the nation's chief executive on his military reputation alone. It is yet too early to determine how posterity will regard the line of Presidents since Grant finisiied his second term. As for prior political experience, Hayes, Cleveland, McKinley, Koosevelt, and Wilson were governors of states before l)econiing candidates for the presi- dency, while Taft had served as gtjvernor-general of the Phil- ippines. During the last fifty years, in fact,, the governor- ship of any one of the great doubtful states has become a far more reliable stepping-stone for presidential aspir- ants than long or conspicuous service in Congress. This is natural enough. The man who can secure a large plurality as a candidate for governor in his own state is reasonably sure to carry it w ith him at the national elec- tion. He has shown his vote-getting power. Moreover, the experience which a governor gains in office is exactly in line with what he mo.st needs as President, and the governor's post always gives its occupant the chance to initiate striking reforms, to declare policies, to show just what he stands for. One may, from the nature of things, be a long time in the Senate or House without obtaining any such opportunity. There a member is bound by the trammels of party loyalty, and the stand he takes is often determined for him by the party caucus or by the force of circiim'5tnnco« beyond In? own control. The history of the presidency, therefore, falls into four periods : the first from Washington to Johu Quincy Adams, I Quo tadiaf 102 THE GOVERXMENT OF THE UNITED STATES inclusive (1789-1829), when the Rovernment was "getting a footing both at home and abroad, struggling for its place among the nations and its full credit among is own people ; when English precedenti and traditions w to strongest ; and when tho men chosen for the office wer men bred to leadership in a way that attracted to them the attention and confidence of the whole country." ^ The second period, from Jackson to Buchanan (1829-lSGl), was a day of cruder and more intense politics, with the influence of the frontier making itself dominant while sectionalism worked havoc with the soUdarity of political parties. The third era, from Lincoln to Arthur (18G1-1885), was dominated by the war and its legacies, including the question of green- backs, to the exclusion of most other things. Finally, in the epoch between the first election of Cleveland in 1884 and the opening of tlie Europcau War in 1914 questions of domestic policy were once more uppermost in the minds of the people, and the presidency neither rose to the heights of the first period nor descended to the depths of the second. As for the future, there is nothing to indicate the probabil- ity of any marked change from the course which has so long been run. The president? 1 primary system of select- ing delegates to the national conventions and of pledging these delegates in advance has already been adopted in many states and is not unlikely to gain acceptance in all the others. What effect its use would have upon the selec- tion of candidates, if adopted ])y them all, is hard to say. Delegates cannot well be sent to national conventions with definite instructions covering all event uilities. Situations w^ill at times arif,e in which a deleparioii must be free to act. The candidate to whom they were plcdtred may withdraw or his chances of nomination may altogether disappear. Then the delegation must have disciotion. The pledging process can hardly ever operate conclusively unless ""the nation-wide fight narrows down to two or three candidates, and this, if the future is anything Hke the past, it is not apt to do. Will the use of the presidential primary secure the nomi- ' Woodrow Wilson, Ibid., p. 58. THE PRESIDFNT 103 nation of better candidatos ? Probably not. State con- ventions, as nominating bodies, have been in many parts of the Union supplanted by state primaries. The results have not been up to expectations. CampaiRiis for the nomination have become far more expensive to candidates and their political friends ; the voters are called out to the polls on an additional occasion; the deliberations and com- promises which marked a convention are no longer possible ; and on the whole there has been no appreciable improve- ment in the types of men nominated. If any improvement in the great and striking qualities of American presi- dents is to be sought, therefore, it will probably have to be by some more comprehensive plan than the selection and pledging of delegates at presidential primaries. The remuneration of the President is fixed by Congress, but it may not be either increased or diminished during the term for which hv; was elected. At present it is $75,000 per annum. In addition, various appropriations for secre- taries, clerks, travelling expenses, the care and maintenance of the White Hou.se, and so on are annually made, amount- ing to more than a quarter of a million dollars. "In case of the removal of the President frop^. office, or of his death, resignation, or inability to discharge the powers and duties of the said ofl^ •, the same shall devolve upon the Vice-President." * On five occasions since 1789 the death of a President has devolved his duties upon the Vice- President in accordance with this provision of the constitu- tion. No President has resigned and in no case has the devolu*''^n come because of inability '^o discharge the presidential functions, although President Garfield during his last illness was for more than two months in 1881 physi- cally unable to perform any important official act. In case the Vice-President is for any reason not available to succeed the President, the constitution gives Congress the right to determine the order of succession, and Congress has so p'' - vided by la\,, naming the various cabinet officers accord ;i,a: to the seniority of their posts : the Secretary of State, Secretary jf the Treasur , and so on. But no one of tfc officials may in any event succeed to the presidency il ' Article ii, Section 1 . Will thp prosMeutinl primarictt secure better can- didatei? Salary and allowanceg. Surccssion to the presi- dency. le 104 THE GOVERNMENT OF THE UNITED STATES The vice- presidency. Constitu- tional qualifica- tions of the Presi- dent and the Vice- President bo constitutionally ineligible. Where a vacancy occurs in the office of Vice-President, it is not filled till the next election. A few words, but only a few, should be added with refer- ence to the vice-presidency. The framers of the constitu- tion intended the office to be a dignified and important one, its incumbent to be a man second only to the President in the favor of the electors. During the first few decades that idea persisted ; but with the practice of nominating the candidates at national conventions it was gradually lost to view. During the last fifty or sixty years the vice-presi- dential nomination has been used, for the most part, as a means of strengthening the party ticket. It has gone to some one who can placate a discontented faction of the partv, or bring some doubtful state into line, or secure large contributions to the party's campaign funds. The personal merit and capacity of the candidate usually count for very little. No one is eligible to the presidency or the vice-presi- dency, either by election or by succession, unless he be a natural-born citizen, thirty-five years of age or more, and unless he shall have been a resident of the United States for at least fourteen years. A special exemption was made in the constitution for tliose who were citizens at the time of its adoption, this being done as a matter of courtesy to Alexander Hamilton, James Wilson, and others who, although not born in the territory which formed the Union, had taken a considerable share in establishing the new government. CHAPTER VIII PRESIDENTIAL POWERS AND FUNCTIONS Free government has developed two different types of [^^^J'^"" executive power, which are commonly known as parlia- presidential mentary and presidential, or, as they are sometimes called, executives, responsible and independent, respectively. A parliamentary or responsible executive is one which derives its power from the legislature and is responsible to that body for all its official acts. Under this arrangement the legislature is the supreme organ of government, for it can change the executive at any time. England is the classic example of a country with a parliamentary executive, the prime minis- ter being directly responsible to the House of Commons. A presidential or independent executive, on the other hand, derives its powers not from the legislature, but from the people directly, and forms a coordinate branch of the govern- ment. Such an executive is not responsible to the legis- lature, which cannot alter its tenure or prerogatives. The United States affords the best example of this type. The powers of the President are on the same solid ground as are those of Congress. They are more varied, more compre- hensive, and more momentous than those possessed by the national executive of any other land.' The powers and functions of the President may be con- veniently grouped under the five main heads of strictly > For the ^^ews of recent Presi.lents concerning what the functions of the presidential office are. or ought to be. the reader may be referred to W H Taffs Our Chief Afagiatrate and his Powers (N. Y.. 1916) ; Orover Cleveiand's Presidential Problems (N. Y., 1904) ; Theodore Rooseyelt;9 A^dubiograpky (N. Y.. 1913!, eswcially ch. x, ; Benjamin Harrison 8 This Country of Ours (N. Y.. 1S9S). especially chs. iv-xix ■ and Woodrow Wilson's Constitutional Government in the United Slates (N. V., l»li;, ch. iii. 105 106 THE GOVERNMENT OF THE UNITED STATES Classifica- tion of the President's powers. 1. Strictly executive powers. (a) appoint- ments. Limitations upon the appointing power : SL'uaturiuI confirma- tion. executive, diplomatic, legislative, military, and political. The first four arc devolved upon him by the constitution and the laws ; the last is an outgrowth of the party system. The President is the nation's chief executive. The constitution enjoins him to "take care that all the laws be faithfully executed." While the government of the United States is designed to be "a government of laws, not of mc.," laws are not self-executing. They must have officials to apply them and courts to enforce them. As chief executive, accordingly, the President is authorized to appoint both the administrative officials of the federal government a- d the judges of the federal courts. This places in his hands one of the most important executive powers that he exercises. It gives him more political influence than he derives from any other function intrusted to him. The constitution divides all appointive offices into two classes, namely, those higher posts which must be filled by the President with the advice and consent of the Senate and those "inferior" offices which should be filled, if Congress should so provide, by the President alone, or by the heads of departments or by the courts. In the category of higher offices, appointed by the President with the concurrence of the Senate, are the mem- bers of the Cabinet, all ambassadors, ministers, and consuls, all judges and court officials, members of the various federal commissions such as the Interstate Commerce Commission, the Federal Trade Commission, and the TariiT Board, together with postmasters in the larger communities and officials who have to do with the collection of revenues. In all such cases the President sends his nomination to the Senate, and this body may confirm or reject it. If the Sen- ate be not in session when the nomination is made, the nominee takes office at once and holds what is termed a "recess appointment" until the Senate has had the oppor- tunity to take action. The Senate has an undoubted right to refuse assent to any nomination which the President may send. But in practice it allows the President to name the members of his own Cabinet, confirming these nominations as a matter of course. It has taken the proper ground that if the President is to be held responsible for the acts of those whom senatorial couri«sy. PRESIDENTIAL POWERS AND FUNCTIONS 107 he selects to be members of his Cabinet, he should bs given a free hand in choosing them. In all other cases, however, the Senate's power is one to be reckoned with. It has refused its assent to appointments in a great many cases. As a rule it docs not withhold its consent except for some good reason, but much depends upon whether the President and a majority of the senators are of the same political faith and are working in harmony. To confirm a nomma- tion sent to it by the President a bare majority of the senators present is required. It does not take a two-ihirds vote as in the case of confirming treaties. While the words "advice and consent" might seem to The™ieof indicate that the Senate was to have advisory as well as con- firming functions, it was not the intention of those who pro- vided the plan of senatorial confirmation that the constitu- tion should give the senators any actual initiative in the making of appointments. Nor has the Senate openly laid claim to such right. In due course there^ developed, however, the unwritten rule known as the "courtesy of the Senate." Stated briefly, this was the practice of r^ fusing to confirm the nomination of any local officer, such as a postmaster or collector of internal revenue, unless the nominee proved satisfactory to the senator or senators from the state concerned, pi; ded of course that these senators were of the same political party as the President himself. Or, to put it more concretely, a Republican President should not nominate any one as postmaster at Philadelphia with- out first consulting the RepubUcrn senators from that state. If he did so, the other senators, out of courtesy to their Penn- sylvania colleagues, were under obligation to refuse confirma- tion. Senatorial courtesy has had its ups and downs; it lias been strong enough at times to tie the President's hands considerably ; on the other hand, some Presidents have been able to disregard it with impunity. From the nature of things, however, a President usually finds that he can avoid endless trouble and can get much-needed support for more important things by consulting the two senators from the state concerned, if thny be of his own political party.* ' See also below, p. 164. "'?■ ■: .:A 108 THE GOVERNMENT OF THE UNITED STATES The civil service system. (h) re- movals. In the case of the "inferior" offices, such as postmasters in small communities, or clerkships, or the host of subordinate positions in the various departments, the whole list running up to several hundred thousand minor offices, the power of appointment is vested by law, for the most part, in the President alone. Some of these are still treated as "patron- age" and are filled at the suggestion of senators or repre- sentatives from the districts concerned ; but by far the greater portion of them are now dealt with in accordance with the civil service regulations.' The begiiniings of the civil service system go back to 1S83 when the United States Civil Service Commission was established and given authority to hoi ' examinations when- (n'er there were positions in the classificu service to be filled. Although at first rather limited, the ^.jope of the classified service has been gradually extended until to-day it includes nearly all the subordinate administrative positions. They number nearly a quarter of a million, including almost all the clerks and other civilian departmental employees in Washington, the postmasters in all but t\\i largest cities, the letter carriers, mail clerks on trains, employees in custom- houses, in the revenue service and in practically all the other governmental activities except, of course, the army, the navy, and the courts. The Civil Service Commission itself is made up of three members appointed by the Presi- dent with the confirmation of the Senate. This body has general supervision of the competitive examinations, in- cluding the selection of the examiners. As to the practical workings of the civil service system, whether in national, state, or local government, more will be said later. The merit system has, at any rate, greatly improved the efficiency ami the whole temper of the public service. The constitution says nothing about the power of removal, but at the first session of Congress in 1789 the question was deV)ated and settled by a tacit agreement that the President .sliould have power to remove without securing the consent of the Senate. On one or two subsequent occa- ' Many ftirthor details ponfcrninK tho methods of ajipoi'itir grounds upon wlu(!h he was impeached. The ■ -t was partly repealed in 1 StiO, and practically altogether repealed in 1887. ». is now generally conceded to have been an unconstitutional enactment. no THE GOVERNMENT OF THE UNITED STATES (e) the power of pardon. every President was forced to give a large part of his atten- tion to the pressure for partisan removals and appointments.* Not until Cleveland cuunciated the far more wholesome doctrine that "public office is a public trust," and laid thereon the foundations of the civil service system, did the burden of importunities appi> lably diminish. Even yet the President linds tlie d(>mands of patronage to be consider- able, for the more lucrative offices are still within liis dis- cretion to bestow. For these he is pressed from all sides by office-seekers and their friends ; he is held responsible for appointments which of necessity he must make with- out accurate personal knowh^dge, and there is the ever present temptation to use the appointing power in such a way as to insure his own renomination or to promote the interests of his own party. On the whole, however, this temptation has been well resisted. A strong-willed Presi- dent, if he chose to us(» without scruple liis powers of appoint- ment and removal, could in four years build up a personal and political machine of almost irresistible strength ; for with the enormous growth in the functions of national government the appointing power has extended over a tar wider range than could ever have been foreseen when the foundations of the Republic were laid. Another power, som(>times spoken of as quasi-judicial, but r(\illy executive bcih in its origin and in its nature, is the power to "grant reprieves and pardons." The Presi- dent may pardon L.ny offence against the federal laws, but he has, of course, no authority to grant pardons for offences against the laws of any state. The pardon may be cither partial or complete. One limitation is imposed upon the President l)y the coastitution, liowever, in that he can grant no pardon to any one convicted by the process of impeach- ment. This embodies a lesson which the framers of the constitution drew from the Stuart period of English history when the monarcli, on more than one occasion, relieved his advisers in this way from penalties imposed by parlia- ment. Another group of executive powers are those which ' For a full account of this development, see Carl Russell Fish, The CivU Sendee and the Patronage (N. Y., 1905). PRESIDENTIAL POWERS AND FUNCTIONS 111 relate to diplumacy, treaties, and the general handling of 2^,p°_^^8^ foreign affairs. Anioricau ambassadors and ministers to ^yio'^acy. foreign countries are appointed by the President (with the consent of the Senate), and their instructions in all impor- tant matters arc given by him through the Secretary of State. Ambassadors who come to Washington from foreign lands are accredited to the President. What the general course of foreign relations will be rests to a large extent in the President's hands.' In all iniportant negotiations he as- sumes personal supervisicm of the communications sent to foreign governments, even to the extent of frequently preparing them himself. The initiative in foreign affairs, which tiie President possesses without any restriction, is a very greac power and at times amounts to the absolute control of such matters. But there are limitations upon the President's powers Lim^taHoas in relation to foreign policy. He can authorize the making po^era.""* of a treaty with any foreign state, but no treaty can go into effect until it has been ratified by a two-thirds vote of the Senate. He can break o(Y diplomatic intercourse with any other nation, and may take various other steps which are tantamount to a declaration of war ; but a formal decla- ration of war can be made only by Congress. In practice the President does not usually venture to direct the foreign relations of the United States without relying on the advice of others. He depends for guidance to some extent upon his Cabinet, to some extent upon the leaders of his own party in both Houses of Congress, and he is always subject to th" \ ressure of public opinion. In speaking of this matter one 'must always afford considerable scope for the inter- play of men and circumstances. Some Presidents have made th(> handling of foreign affairs their special hobby, leaving but little to the discretion of the State Department and rarely deigning to consult the congressional leaders; others have shown far less inclination to deal personally with diplomatic negotiations. When matters of great im- portance are in controversy, however, the nation expects the President to take the reins of foreign policy into his own > Edward S. Corwin, The President's Control of Foreign Relationt (Princoton, 1917). 112 THE GOVERNMENT OF THE UNITED STATES 3. Powers in relation to legisla- tion. Restrictions upon the power to call, ad- journ, or dissolve Congress. The President's messages. hands. But under no circumstancos may the President finally commit the nation to an alliance or to any other obligation based upon a treaty. Tiiis power he must share with the Senate.* The framers of the constitution realized the dangers which might arise from clandestine alliances and secret diplomacy. They were determined that there should be no place for the.se things in the New World. On tht? whole they took a wise precaution. At times the Sen- ate, by withholding its assent, has prevented the conclusion of arbitration treaties and other agreements which would probably have benefited the nation, but on the other hand its insistence upon a full and frank discussion of every proposed international compact has saved tiie United States from being drawn into that maelstrom of duplicity and intrigue which has so long and so steadily cursed the diplo- macy of Europe. Ono might judge from the reverence with which the statesmen of 17S7 regarded Montesquieu's doctrine of checks and balances that the President would have been given no share in national legislation. But he was, in fact, endowed with some powers in relation to the making of the national laws, and by usage these powers have been greatly expanded. By the terms of the constitution he was intrusted with certain advisory or initiatory functions, on the one hand, and with the power of restricting legisla- tion or the veto power, on the other. Unlike the chief executive in most European states, the President does not call the national legislature together except in special session. The time for the beginning of regular sessions of Congress is fixed by law. Nor does he adjourn Congress unless the two Houses fail to agree between themselves as to the time of adjournment. The power of dissolution, so important in England, does not exist in the United States. Congress finishes out its two-year term, no more, no less. It cannot be dissolved by executive action. The constitution, again, requires the President to "give to the Congress from time to time information on the state of the Union, and recommend to their consideration ' See below, pp. 164-167. r^^^^SSB^^^W ^^r^^T3AT^"v=?rrTTT=^N^ PRESIDENTIAL POWERS AND FUNCTIONS 113 such measiiroa as ho shall judge necessary and expedient." This is the basis of the President's right to send messages to Congress, a right which has been freely used from the outset. Washington and Adams ilelivored their recom- mendations by addressing Congress in person ; but Jeffer- son began the practice of sending written me.ssages to be read in both Houses by the clerks, and tiiis plan was consistently followed until 19i:}, when President Wilson revorted to the earlier method. But whether read or sent in writing, the messages may come at any time and may deal with any subject. Usuall there is a long message prepared for the beginning of eaci congressional session ; then there are special messages dealing with particular subjects and sent as often as the President may see fit. But while the President may recommend many things, How far some of them with great earnestness, it does not follow that p°f^^^ Congress must act upon these recommendations. A Presi- reeuits? dent's annual message is not, like the speech from the throne in England, an outline of what will almost surely come to pass before .the session ends. What the speech from the throne recommends is almost certain to be fol- lowed by parliament because the men who really frame these recommendations, namely, the prime minister and his colleagues, have a majority in parliament ready to do their bidding. The President, on the contrary, may have no such congressional majority in sympathy with him. The other political party may control a majority in either or both Houses of Congress. That has frequently been the case. Or even if his own party does control both Houses, the President has no assurance that the senators and repre- sentatives will do what he advises. The result is that projects of legislation, however urgently recommended to Congress by the President, often fail to receive acceptance. On the other hand, presidential recommendations always Their carry weight, and there are many occasions upon which ^^^ they move Congress to action. When the President's own Ution. political party is in control of Congress ; when he has taken counsel with the party leaders and obtained their support — in such cases he can make recommendations with reason- able ground for expecting that they will be followed. He ^^^B^ ^VSTT' ■l..^:-"r>-^J..J.,-Jt,-:l-.* ! 114 THE GOVERNMENT OF THE UNITED STATES Another ph.iHc of the Presi- dent's legis- lative power:< : the system of "executive orders." may even go so far as to have bills prepared and presented by some senator or representative, he may send for influ- ential members of Congress and solicit their assistance, and in many other ways he may exert great influence from behind the scenes in getting thest^ bills enacted. In no field of actual government does more depentl upon the President's pohtical and personal relation to Congress than in this. Here, more than anywhere else, the function is the measure of the man. Andrew Johnson, opposed and disliked by a majority in both Houses, foimd his advice rebuffed and all manner of unfriendly legislation sent to him for his signature. Woodrow Wilson, on the other hand, has given in our own day an extraonlinary example of the way in whicii a President, when favorably placed in relation to Congress and when possessed of the requisite personal quahties, can make hiiiiself a parliamentary leader. The constitution, as Mr. Wilson once declared in the days before he became the nation's chief executive, does not forbid a President to back up his messages, as General Washington did, with such personal force and influence as he may possess. The constitution, indeed, failed to provide for Congress any definite leadership. Yet leadership of some sort there must be if work of legislation is to be carried through effectively. Hence the President is warranted in assuming the role of a prime minister so far as the consti- t' \ will permit him to do so. The people look to the Pii ident rather than to Congress for the redemption of pledges made in the platform of a victorious party. He must, therefore, be active in promoting legislation or he will be forced to bear the onus, under the party system, of failing to fulfil his preelection promises. This is an outgrowth of the President's status as a party leader, a matter to be discussed presently. Within the last few decades there has grown up in the United States, moreover, the practice of determining many matters by means of "executive orders," issued by the President and having \'irtually the force of law. These orders may almost be regarded as constituting what is known in France as ordinances, although the theory on which the ordinance power rests in the French Rt public ^^^3^^^^^^^^i PRESIDENTIAL POWERS AND FUNCTIONS 115 is commonly thought to bo foreign to the entire spirit of American institutions. In France it is customary to have parliament enact the laws in general terms, leaving the executive branch of the governu.ent to mak"* all the necessary detailed provisions by ordinance. In the United States the laws are avowedly framed to cover all contingencies and to leuve no considerable discretionary margin to the executive, yet executive orders are frequently issued pre- scribing various regulations concerning the postal and immigration service, the collection of internal revenue, the civil service system, the patent, pension, and land offices, and many other branches of public administration. In purport these "orders" do not make, amend, or repeal or even supplement any law ; they merely explain and apply the provisions of laws made by Congress. In effect, how- ever, they do far more than that : they actually modify the strict application of legal provisions with a great deal of freedom. For that reason they may be looked upon as eml. dying a form of executive legislation, strange as that term may sound to American ears, for while these or- ders are to some extent the result of discretionary authority conferred by general la'^s, they are in even 'arger measure issued without any such warrant ; in other words, they are the manifestations of inherent executive power. This development, as w'ill appear more clearly in connection with the work of the exd tive departments, is a tacit ad- mission that under the dunplex economic and social condi- tions of to-day a government cannot well remain strictly a "government of laws" in the narrow sense. The inflexi- bility of law must in some way be made capable of relaxa- tion. More important, however, than the function of recom- The veto mending legislation to Corigress or of prescribing rules by p*"*"- executive order, is that of vetoing any measure w^hich does not meet the President's approval. The scope and nature of this power cannot be more succinctly expressed than by quoting the exact words of the constitution on the point : "Every bill which shall have passed the House of Repre- sentatives and the Senate shall, before it becomes a law, be presented to the President of the United States; if he i^njFs^ IAH^W.-,r--iF* 116 THE GOVERNMENT OF THE UNITED STATES The (jiiali- fied veto is a com- promise. approve he shall sign it, but if not he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objection>, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the p(>rsons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had sijined it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law." ' On the question of the Prt'sident's relation to lawmaking the fram»'rs of the constitution tried to steer carefully be- tween two extremes. They were not prepared to give the President an absolnt* v(*^(> such is had been possessed by the governor in every one of the thirteen colonies or by the king in relation to colonial laws. They were mindful of the indictment of George III in the Declaration of Inde- pendence for having "refused his assent to laws the most wholesome and necessary for tiie pulilic good." It was not their desire to give any like weapon of despotism to the chief magistrate of the Republic, although Alexander Hamilton argued that it would never be abused in the fu- ture as it had V)een in the past. On the other hand, they were unwilling that laws should be made in entire disregard of the President's rights or wishes. Experience with parlia- ment in colonial days had shown that a legislature could be quite as tyrannical as a monarch, that it could usurp the prerogatives of the other departments of government, and that legislatures could not be kept withi*" their own sphere of action by any "mere parchment delineation of boun- daries." ' The executive must, therefore, have some sort of bludgeon to wield in its ow a defence. The qualified > Article i, Section 7. • The Federalitt, No. 73- fmm WTTT PRESIDENTUL POWERS AND FUNCTIONS 117 veto woj devised as a thrust-and-parry arrangement, estab- lishing what Hamilton was ready to defend as "a salutary check upon the legislative body" and at the same time a "shield to the executive." Apparently the veto was re- garded as a legislative rather than as an executive function, for provision was made for it in that part of the constitu- tion which relates to the organization and powers of Con- gress.' Was it intended that the veto should be used freely or only on rare occasions? Washington, Adams, Jefferson, and Madison, the Presidents of the constitutional group, used it with great restraint. During the first forty years of the Republic, only nine bills were vetoed, an average of less than one for each administration, .\ndrew Jackson, however, set a new record in this as in several other things by vetoing nearly as many as all his predecessors put to- gether. This was because Jackson interpreted the veto power in a way quite different from that of his six predeces- sors. Their attitude had been one of non-interference with the lawmaking authority of Congress except where intervention by means of the veto power was necessary to protect the executive department from legislative en- croaciiment. But Jackson took a more aggressive stand, using the veto to stay the hand of Congress whenever its action seemed to run counter to his own pohtical or personal aims. This interpretation was bitterly criticised in its day as revolutionary and a usurpation, but with the lapse of time it has gained general acceptance. From Jackson's time until after the Civil War, however, vetoes did not increase, and during his entire term of office Lincoln nega- tived only two general measures. President Johnson dur- ing his quarrel with Congress swung his battle-axe right and left, but not to mach avail because Congress regularly passed its measures over his veto. Since 1867 the only President to use the veto power unsparingly was Grover Cleveland, who applied it to a large number of private ' "It has been suggested by some that the veto power is executive. 1 do not quite see how. . . . The character of the veto power is purelv legislative." — W. H. Taft, Our Chief Magiatrate and Hi» Powert (S. Y.. 1916), p. 14. How the veto power is exercised. TIio "pocket vetD." 118 THE GOVERXMENT OF THE UNITED STATES pension bills, but all of the Presidents since his time have employed it more freely than it was used in the first quarter of the nineteenth ecniury. Tluy have not confined them- selves, moreover, to measures which by any stretch of the imagination could be regarded as encroachments upon their own constitutional prerogatives, but have assumed the duty of v<'t()in<:; any measure that seemed to be unwise or incxpetlient. What was intt^nded, therefore, to ])e a presi- dential weapon of self-defence has developed into an imple- ment which can be and is regularly used for guiding and directing the law-making authority of the nation. As now interpreted the veto power makes the executive a far more active factor in legislation than he w\as originally intended to ho} In vetoing a measure the Presichnit not only returns it witliout his signature, but he must also send to Congress his reasons for this action, although such reasons need niot be lengthy or definite. An\' general statement will serve. He may allege the bill to be unconstitutional, al- though it has sometimes been remonstrated that this is a matter wliicli he should leave to be settled by the courts. He may allege it to l)e unwis(>, untimely, extravagant, or may register any otlier objection to it. As a rule, a presi- d(>ntial veto is decisive, for a two-thirds vote to overcome it cannot usually bo had. There are exceptions, however, as for example in Andrew Johnso-i's time, when both Houses of Congress by large majorities were opposed to thePresident. A word should be added in explanation of what is called the " pocket veto." If the President n(>ither signs nor vetoes a bill, it becomes a law upon the expiration of ten days, unless Congress should adjourn in tlie meantime, in which case the bill exj)ir(>s without becoming a law. Xow t' re is usnally a great ccmgestion of bills passing throng. Jieir final stages in Congress near the close of a session and many of these come to the President during the last week before adjournment. Those which the President favors he may pick out and sign ; those which lie opposes he need merely I K. f. AfoRnr!. Thf Vffn Pnuvr CRnp.tnn. ISQOK srives a full account- of the use and abuse of the vt'to power during the first century of its Iiistory. ^vxr PRESIDENTIAL POWERS AND FUNCTIONS 119 ■^nore, and they will meet their fate by the "pocket veto." ; . ..- pL'.ts much less personal responsi])ihty on the Presi- 'Icnt tliaK 1 he process of vetoing bills in the ordinary way, and Xy-'i. if just as effective'. On the other hand, if a Pre.si- ('ent nei'.ner favors nor opposes a measure which comes to hini 1.1 good season before the adjournment of Congress, he may allow it to become a law without his signature, merely by inaction during the ten prescribed days. Some Presidents have taken this course as a means of indicating their indecisive attitude on certain measures, a notable example being the Income Tax Law of 1801, which became a law without the signature of Presitlent Chiveland and was later held by the Supreme Court to be unconstitutional in that it levied a direct tax without apportionment among the states, as the constitution required. It is asked whether the veto power has, on the whole, served a good purpose. Lord Bryce believes that it has, and most students of the sul)ject ari' inclined to agree. Apart from private pension bills and other measures of personal, political, or sectional favoritism, the vetoes have not averaged one per year. Ninety-nine per cent of all tlie measures passed by Congress regularly go upon the statute-book. The veto powcT, save in very exceptional instances, has not been abused. For the most part it has been exercised prudently and with good reason. Its ruth- less use by Jackson antl Tyler led to an agitation for its abolition or amendment, and Henry Clay in 1842 proposed that a mere majority instead of a two-thirds vote should be prescril)('(l as sufficient to pass any measure over the veto, but the plan never made much headway, and the agitation soon sulisided. There is at present no serious or wide- spread feeling that the veto power ought to be taken away or made less effective, and on the whole the system is now regarded as one of the excellences of the American political system, yet no European country or colony has seen fit to copy it. Other federations, particularly Canada and Australia, have borrowed considerably from the political institutions and experience of the L^nitcd States, but the qualified veto is not among the things to which they have accorded the flattery of imitation. Merits and defect a of the veto system. 120 THE GOVERNMENT OF THE UNITED STATES Votii powrr lioo.s not extend to items in :i measure. Ono improvement in tlio existing veto system has been ••-trongly urged, namely, that the President be allowed to strike out single items in an appropriation bill, a power which he does not now possess. At present he must eituer veto the bill as ;i whole or not veto it at all. In conse- quence the President must often give his cons(-nt to items which he does not approve ; otherwise the entire bill would fail. This is particularly true of appropriation bills which often include hundreds of items, all of which, save a very few, may he entirely proper ones. These few may be perni- cious and wasteful, j'et the President must take the chaff with the wheat. Many wasteful expenditures have gone past the most vigilant Presidents in this way. A con- stitutional amendment giving the President power to veto some items while accepting others might serve in some ways a good purpose ; on the other hand it would enormously increase the influence of the President in legis- lation, giving him a new form of patronage almost equal to that whicli he now has through the exercise of his appoint- ing power. All congressmen, both senators and represen- tatives, are greatly interested in securing appropriations for use in their own states or ilistricts. The partial veto, in the hands of a partisan or vindictive President, could easily be used to penalize those who oppose him and to advance the interests of those who support his policies. The remedy might readily prove worse than the exist- ing evils. With a proper budget system in operation, howev^er, the danger of discrimination would not be so great.' Proposals to amend the constitution, when passed by a two-thirds vote of Congress, do not require the President's .ignature and hence cannot lie vetoed by him. The same is true of the "concurrent resolutions" which both Houses lutinns. of Congress adopt from time to time and which are merely expressions of congressional opinions, not having the force of law. "Joint resolutions," however, do have the force of law, and being submitted for the President's signature, Nor to run stitutionul iinii'nd- mcnts nor t') eon- nirront ri's ' The ponstitution of the ("onfederate States, adopted in 1861, conferred upon the President of the Southern Confederaey the right to veto individual items. Presiilent may intervene without waiting for any invitation from the state authorities. President Cleveland, in 1891, sent federal troops into Illinois, despite the opposition of the authorities in that state, to secure the free passage of the mails and of interstate commerce during a railway strike. The Supreme Court upheld the exercise of this authority.^ 1 "Tlip ontiro strontrth of tho nation may he iwod to cnfon-e in any part of tho land the fnll ann of i\- sriai.-*- If tho omorKoncy arisos, tho army of tho nation, ami all its militia, are at the servioos of tho nation to comiHjl obedieueo to its laws." In re Debs, 158 U. S. 564. PRESIDENTIAL POWERS AND FUNCTIONS 123 All the ioro£;o;"T po\vfi.s arc vested in llie President by 5. Political the constitution and the laws of the United States as inter- p°'"'"- proted by the courts. There is a fifth class of powers, or to speak more accurately a form of official influence, which the Presid(>nt does not obtain from this source, but which ho possesses Ijy virtue of his position as leader-in-chief of his own political party. The President is a partisan, elected as such. The National Committee of his party is so or- .iranized as to be in sympathy with him. His party leaders in Conjiress must work in reasonable harmony with their chief, otherwise the party is likely to nt hims(>lf. As the consti- tution makes no provision for either parties or bosses, this attribute of the national executive is wholly extra-consti- tutional and the outc^ome of usage. Yet the President's functions as the dominating figure ThePresi- in the councils of his own political party cannot be ignored. J,"^^,„ ^^ His wishes are consulted in the framing of the party plat- his party, form because it is highly desirable that the platform and the candidate' should be articulated. If he is interested in any important legislative or administrative project, the party platform usually embodies his programme on that point. Just as the consitution enjoins upon the President the faithful execution of the laws, so the unwritten rules of party loyalty enjoin upon him the earnest endeavor to carry into legal effect, either by his own authority or by pressing action upon Congress, whatever promises have been incorporated in the platform of his party. The plat- form is a series of pledges, or is intended to be. Members of the party in both Houses of Congress, as well as the President, are br '' by it. The President can demand their support in many things, therefore, not merely as the first citizen of the nation but as the commander-in-chief ^fl^ •nrr ■*^ The Presi- dent and the courts. 124 THE GO\TRNMENT OF THE UNITED STATES of his party cohorts. His appeal, when put in this form, is usually influential, for legislators on the whole desire to be accounted "regular,"' and there are ways of penalizing them by withholding patronage if they are not. It happens at times that even in his capacity as party leader the Presi- dent fails to move his co-partisans in Congress, or, on the other hand, that he may feel constrained to veto laws which they have passed ; but that is not the usual course of events. Between his authority as chief executive and his influence as a party leader it is a weak or untactful President who cannot obtain from Congress, provided his party controls a majority in both Houses, the chief measures which he determines to secure. Party regularity in Congress is far from being as strict as it is in the British House of Com- mons, and tlie President's wishes are by no means so im- plicitly respected in the one as are the dictates of the prime minister in the otlier, yet the difference is not nearly so great as the disparity in the framework and theory of the two governments would imply. The unwritten constitu- tion of the United States is in this matter to be reckoned with, and by foreign students of American government it is too often overlooked. "The personal force of the Presi- dent," as the contemporary incumbent of the office has expressed it, "is perfectly constitutional to any extent to which he chooses to exercise it ; and it is by the clear logic of our constitutional practice that he has become aHke the leader of his party and the leader of the nation." ' The President of the United States, during his term of office, is immune from control by the courts. There is only one tribunal l^efore which he can be called to answer for any offence or dereliction of duty, and that is the Senate of the United States sitting a.-s a court of impeachment. There are two good reasons for this immunity. One is that the President, as commander-in-chief of the armed forces of the nation, controls the ultimate power which enforces any judicial decision. Against him the courts ivould be powerless unless he chose to accept their decisinns, and the Supreme Court long ago wisely decided that it would not ' Woodrow Wilson, Constitutional Government in the United State* (N. Y.. 1911), pp. 71-72. m PRESIDENTIAL POWERS AND FUNCTIONS 125 attempt what Chief Justice Marshall termed "an absurd and excessive extravagance" of jurisdiction. The other reason for the President's immunity from o/dinary judicial process is to be found in his unlimited power to grant par- dons ^ave upon conviction by impeachment. There is no disability or restraint that the courts might impose upon him but could be at once removed by one stroke of his own pardoning power. The one great safeguard which the constitution provides against the abuse of presidential powers or presidential malfeasance of any sort is the privilege of impeachment. CHAPTER IX THE CABINET AND NATIONAL ADMINISTRATION The genesis of the Cabinet. Its lack of legal basis both in EniJiluiK. and in the United States. The practice of surrounding tho chief executive with a circle of advisers, chosen by himself, is one of the oldest in the historj jf government. It appeannl in England under the Anglo-Saxon kings and became fully recognized as an integral feature in the government of the realm under the Normans. During the long period between the first of the Plantagenets and the last of the Stuarts the institution known as the Privy Council, composed of the royal ministers or advisers, assumed administrative functions of compre- hensive importance in England, and it was from this body that an inner circle, henceforth known as the Cabinet, developed under the Hanoverians to the position which it occupies at the pn'sent day. Origiiiall)'' made up of advisers selected bj' the crown and not accountable to parliament, tho English Cabinet has become, during the past two cen- turies, the creature of the majority party in the House of Commons, and responsible to the crown in legal fiction only. It is to-day the real executive organ of the United Kingdom, the great standing committee of parliament. In one sense the English and American Cabinets are alike. Neither has any constitutional foundation. In England the basis upon which the Cabinet stands is usage alone ; in tlie United States the constitution contains no provision for a Cabinet and makes only incidental references to "heads of departments," from whom the President may ask opinions and who may be authorized by law to appoint their own subordinates. Here, too, the Cabinet as a body rests upon usage. But aside from this similarity in the mutual lack of any legal basis the Cabinets of the two coun- tries are unlike in every important respect. Without the 120 THE CABINET AND NATIONAL ADMINISTRATION 127 Cabinet the whole scheme of English government would fail to function ; if the Cabinet were to be abolished, the entire frame of English administration would have to be remodeled, for it has become the pivot around which all else now revolves. But in the United States the Cabinet, as such, plays no sucli all-essential part. The wheels of ledorai government would run just about as smoothly if the heads of departments formed no organized group and if no Cabinet meetings were held from one end of the year to the other.^ The builders of the American federal system were indis- tinctly aware of the important rcMe which the Cabinet had assumed in the practical working of English government during the eighteenth century, nnd they were also well acquainted with the work of the executive councils which had existed in some of the colonies before the Revolution. That they did not make specific provision for any such body in the constitution of 1787 is presumptive evidence that they at least did not regard it as a necessity, and per- haps did not desire any body of the sort. They realized, however, that the President could not alone perform all the administrative functions that the Union would require, and indeed the experience of the nation under the Articles of Confederation had shown that executive officers, each ill charge of a department, were essential to the proper despatch of business. So the framers of the constitution merely assumed that the President would have subordinates in charge of the various departments, but specified neither what these departments should be, nor what authority they should exercise. They did not even indicate in the consti- tution whether these departments should be established by the President or by Congress. "The President . . . may require the opinion in writing of the principal officer in each of the executive departments. ..." That is all the constitution has to say about the President's relation ' John A. Fairlie's National Administralion of the United Stales of America (2d ed., N. Y., 1914) is the best book on the subject of cabinet organization and functions. On the development of the Cabinet, its per- sonnel at various periods, and its relations with the President, see H. B. Ijearned, The President's Cabinet (New Haven, 1912), and M. L. Hinsdale, Hialory of the President's Cabinet (N. Y., 1911). The framers of the con- Htitution did not rcKitrd a Cabinet as o:isential. But made provision in the con- stitution for heads of depart- ments. i^jr^ziiirrwiicn'^^ 128 THE ClOVERNMENT OF THE UNITED STATES Depart- whii'h have l«fii eatiil>- lished by CoimreMs. Status of tliost' de- pa -'ent he.' How selected. to liis chief oxocutive advisers. As a matter of fact, how- ever, the various departments one after another have been created by Congress. Three of them, indeed, were established at its first session in 1789. These were the Department of State, the Department of the Treasury, and the War Department. The offices of the Attorney-General and Postmaster-Cleneral, which were established in the same year, did not at first rank as regular departments. They became departments, however, in the course of time, and Congress has also added others: the Navy in 1798, the Interior in 1849, Agriculture in 1889, Commerce in 1903, and Labor in 19l;i. There are now, accordingly, ten administrative departments whose heads are by custom entitled to membership in the Cabinet. The head of each department (Secretary of State, Attor- ney-General, Postmaster-General, as the case may be) is appointed by the President with the consent of the Senate. But this consent, as has already been stated, is now never withheld. The President announces his selections immedi- ately after his inauguration, and the heads of departments, as a rule, hold their posts till the end of the President's term, although they may be removed by him at any time. Removals in the ordinary sense have not been common, but resignations because of failure to work in entire harmony with the President have been numerous. Only in rare cases can it ever become necessary for the President to dis- miss any member of his Cabinet. A hint that a resignation would be acceptable is ordinarily quite enough. Occa- sionally the head of a department may serve through the term of more than one President, particularly if the succeed- ing President be of the same political party. No head of a department may sit in either the Senate or the House of Representatives ; in this respect there is a marked contrast with the English system, which requires that every member of the Cabinet shall have a seat in parliament. Nor has. any member of the \merican Cabinet the right to be heard in either House of Congress, although he may and frequently does confer with congressional com.nittees. In selecting the ten heads of departments who form his Cabinet the President is not limited bv the constitution THE CABINKT AND NATIONAL ADMINISTivAl'lON 129 or laws as to tlir range of his choicr. He may select whom he phrases. But there are practical considerations which to some extent direct his actions. As a rule all are chosen from his own political party. Washington endeavored to select his Cabinet from among the men of different political inclinations, but the result proved embarrassing and the precedent has not been followed save in very exceptional cai-es. The selections are made, moreover, witli an eye to giving general representation to all sections of the country. A President does not take all his CaV)inet secretaries from the North or the South, or from the East or the West. Re- gard is also paid to the desirability of representing different factions in the party, if such there be, and some of those who have been the President's right-hand men during the campaign for his nomination and election are sure to expect, and usually receive, recognition. Frequently, in past years, the President's strongest competitor for the party nomination has been taken inside the breastworks after the battle and made Secretary of State. Now and then the selection is made solely because the appointee is pecul- iarly well fitted by administrative experience to be placed at the head of some department ; but in the main the choice is determined by personal or political reasons. In discussing the powers and functions of the Cabinet Powei^^and it is advisable to make a distinction between those functions „""he""" which are performed by the Cabinet as a whole, and those heads (,f wliich are exercised by the members of the Cabinet indi- vidually, as heads of their own departments. It has already been stated that the Cabinet, as a body, has no constitutional or statutory powers. There is noth- '^'^^■• ing which can be done with its consent which could not be done without its approval if the President should so decide. It is merely a group of high officials whom the President may or may not call together for consultation as he chooses. Yet its members meet in council once or twice each week and seem to find plenty to do at these meetings. What is there to do? Briefly the Cabinet discusses whatever the Presidi^nt may .see fit to lay before it and gives its advice to him when he asks for it. Some- times the President has already made up his mind and depart- nicDts : 1. as a 130 THE GOVERNMENT OF THE UNITED STATES merely brings a matter before the (Cabinet for suggestions as to details. Lincoln, for instane<>, did not consult his Cabinet on the ^^mancipation Proclamation until he had himself fully decided that it ought to be issued. In general, however, the President submits a great many matters to his Cabinet for discussion before a decision is reached. He is not bound to follow the Cabinet's advice, and in practice questions are rarely put to a vote, but from the n.iture of things the discussion which takes place at Cabinet meetings is likely to influence the President's attitude. This is because it is a discussion participated in by ten men, all of whom the President has himself chosen as sound and sensible advisers.' Yet every President realizes, or ought to realize, that the Cabinet has no collective responsibility and that the onus of every executive action must rest upon the shoulders of the President aloncv Meetings of the Cabinet arc secret, and no formal record of the discussions is ever kept or given to the public. Whether the President asks, receives, accepts, or disregards advice from his Ca'>inet is never known, save in rare in- stances, and then long after the event has passed. Out- wardly the Cabinet, as in England, must display the appear- ance of solidarity. If there are .mportant differences of opinion, they must be composed within the Cabinet itself by the President's friendly intermediation. No head of a de- partment can openly criticise either the President or his oa\ n colleagues and remain a member of the Cabinet. In esti- mating the influence of the Cabinet ^ great deal depends, of course, upon the temperament of the President himself, whether pliant or strong-willed, and much will also hinge upon the personality of the men who make up the Cabinet. The best service performed by the frequent Cabinet meet- ings, however, is tliat of avoiding conflicts or misunder- ' There has bejm a world of difference among Presidents in this re!«peet. Four or five members of his Cabinet virtually controlled President Bu- chanan during tlie latter p.irt of his term, and Franklin Pierce was com- monly spoken of durinc; his administration as a President who always sought Cabinet advice and followed it. Jackson and Grant, on the other h.T,nd, carrird thrir Tnilitr.ry iraditioni into ihei While Ilou-ie and UeaU. with members of the Cabinet as subordinates whose dtity it was to carry out the orders of the commander-in-chief, rather than as advisers whose func- tion it was to help reach a decision. 1 rue CABINET AND NATIONAL ADMINISTRATION 131 standing among the several departments, thus enabling the adininistrtition to put unity into its programme. More vital than tlio fum-tions of the Cabinet as a whole are those of its members as individuals, as heads of depart- ments. Every head of a depart m(>nt is responsible to the President and is under his din>etion at all times, but in praetioe each is allowed a considerable range of independence. This must necessarily be the ca.se, for if everything could he supervised directly by the President himself , there would he no need for departments at all. Even in a single depart- ment, indeed, there is always more to do than the official at its head can personally attend to, hence each department is divided into two or more bureaus under bureau chiefs r commissioners. Th' ■ internal organization of the depart- ments is in almost all '• > prescribed by law ; it is not left , as in most other cou. '— to be arranged by executive orders. The scope of work to be handled by these bureaus and divisions is very extensive. No head of a department, much less a President, can ever hope to keep the run of it. With the e.vpanding functions of federal government, more- over, it is growing by leaps and bounds. The adminis- trative machinery at Washington is now a dozen times more complex than it was a generation ago. Not only has the work of the various departments been divided, redivided, and suVxlivided among subordinate bureaus, but many new administrative boards and commissions, some of them exorcising functions of the highest importance, such as the Interstate Commerce Commission, the Federal Trade Commission, the Civil Service Commission, and the Tariff Board, liave been established altogether outside the purview of the ten regular departments. Of these, however, more will be said presently. l']ach department and each board or commission has its own special functions to perform, these functions being roughly indicated by their respective titles. The exact scope of their work is largely defined by law. Within the bounds thus set the head of the department has the right ^(^ ;>i!iUp romilatinns. .iffectins; tlio conduct of business within his own jurisdiction. Each has also been given by law, in many cases, the right to issue departmental orders, some of 2. as in- diWduols. Tho (lirtin- toxrntion o! (lepart- nicntal tna- chincry. General work of the depart- ments. 132 THE GOVERNMENT OF THE UNITED STATES The State Dfpart- riioiit : itji ftiiii'tioii.t: 1. diplo- matic. The diplomatic service. which may be of great importance. The amount of work to bo done by the different departments varies greatly — in ordinary times the Treasury Department has probably the largest amount of business to handle, while the Department of Labor has the smallest, although its functions are by no means inconsiderable. Let us examine, one by one, the organization and chief functions of these various executive agencies.' The State Department is the oldest, and the Secretary of State is for that reason the senior member of the cabinet. But he is not a prime minister in any sense of the term. His depart- ment deals chiefly with foreign and diplomatic affairs. Hv is the channel of intercourse between the government of the United States and all foreign governments ; likewise the medium of communication between the national and state governments in this country. The State Depart- ment does the actual work of negotiating treaties, sending and receiving diplomatic >orrespondence, giving instructions to American :unl)as ors abroad, issuing passports, com- municating wit^ the governors of the various states, and so on. The Secretary of State, therefore, is the American minister of both interstate and foreign affairs. This field, however, is one in which the President himself is likely to take a direct interest, and the foreign work of the State Department is usually performed under the President's close supervision. A word as to the diplomatic service. The United States sends to and receives from all the sovereign states of the world certain diplomatic officials known as ambassadors or ministers, according to their rank. Those who are sent from this country are appointed by the President with the con.sent of the Senate ; their function is to look after Ameri- can interests in the countries to which they go ; they report regularly to the Secretary of State and get their instructions from his office. At the more important foreign capitals the .\merican diplomatic representatives have the rank of ambassadors; at the less important capitals the rank of ' T!if In'st diac-ussion of the organization and work of the various execu- tive departments is that contained in John A. Fairlie's Salional Adminis- tration of the United States (2d ed., N. Y., 1914). THE CABINET AND NATIONAL ADMINISTRATION 133 ministers. la duties and authority, however, there is no important difference between the two. The United States iilso sends and receives other officials known as consuls, and the consular service is also in charge of the State Depart- ment, but consuls or consuls-general are not primarily diplomatic officials. They are concerned chiefly with the task of furthering the commercial interests of their own countries. The Secretary of State has functions also in relation to liome affairs. He promulgates the laws when they are 1)11 ssed by Congress ; he is the custodian of the national archives or original documents; he countersigns the Presi- dent's proclamations and he is the keeper of the great seal. To assist him in the performance of all his functions the Secretary of State has three assistant secretaries, also appointed by the President. The State Department is lii.ided into eight bureaus, each of which takes its own share . r ;1h> general work. Some notable figures have served nation as secretaries of state, among them John Quincy ■lus, William II. Seward, James G. Blaine, and John In the early days of the Union the post was utilized I \eral occasions as a stepping stone to the presidency, .;ii since the Civil War no one has moved from one office to ihe other.' Tlie Department of the Treasury is next in order of sen- iority. ^\'hile the name might give the impression that this lepartment corresponds to the Exchequer or Ministry of ■ laiice in other committees, its powers of financial leadership somewhat less extensive. In most other governments " chief financial minister possesses a well-defined initiative 111 matters relating to fiscal legislation; he introduces all sueli measures and defends them on the floor of parliament. In the United States the Secretary of the Treasury has no such formal authorty. Financial measures are brought befon^ Congress by its own committees. The Secretary may (Ivise or recommend ; but his counsel may be and too often 2. intcmnl. The Treasury Depart- ment. Unlike the English Ex- chequer or Erpni'h Ministry r i Finnn'-n ' Fi)r a fnrthor diseiission of the history and work of this department sec tiaillurd Hunt. The Department of State of the ( nited Slates, Its History and Functions (New Haven, 1914), and W. H. Michael, History of the De- j>artment of Stale of the Uni'rd St.-it's (Washington. 'OTl V rs^m^iryx. Otic result of this (lifferciice. Work of tho Treasury Depart - lupnt. 134 THE GOVERNMENT OF THE UNITED STATES is (lisregartlecl in matters a Rooting both revenue and ex- penditures. As Congress lias no regular budget system the Secretary of the Treasury lacks the outstanding func- tion of a European finance minister, namely, the prepara- tion and presentation of the budget. And it is right here that the doctrine of separation of powers has worked its greatest havoc in wastefulness and extravagance. The services of the one official who ought to know most about tho financial resources and needs of the government have been utilized to a surprisingly small extent in this country. Congress has guarded with extreme jealousy its control of the purse, even to the extent of frequently resenting advice from the administrative officials vvho are best equipped to tender it. If it be asked, Who, ihen, is responsible for the financial policy of the United States? the answer is, that real responsi- bility belongs to nobody. It is the waif of dark-lantern pohtics. For a few years in the early days of the Union, when Alexander Hamilton was Secretary of the Treasury, the United States had a definite financial policy and a statesman who was responsible for it; but tliat day has long gone by. The initiative, inriuence, and responsibility whi'ch Hamilton took into his own aggressive hands is now dissipated among various committees of both congressional chambers to an extent which only those well-versed in legis- lative procedure can possibly appreciate.' Tlie actual work of the Treasury Department, neverf less, is extensive and important. It may be grouped . • four divisions. First, there is the collection of reven . especially the supervision of work performed by custoi...-; officers and collcH-tors of internal revenue. This includes the duty of issuing all regulations relating to this revenue service and the deciding of appeals which come to the de- partirent from the ruhiigs of subordinate officers. Second, there is the custody of the public funds and the paying of all liills for expenditures which hav(> been properly authorized. Sub-treasuries have been established in va.ious large cities of the country (o sfive as depositories of public funds, and these are under the department's immediate direction. ' See below, pp. 302-307. WMiSi THE CABINET AND NATIONAL ADMINISTRATION 135 Cioverninent money may also be deposited in national and state banks at the discretion of the Secretary of the Treasury under restrictions provided by law. Third comes tlio entire supervision of the currency, including control ol the mints which coin the money. These functions are directly intrusted to the Comptroller of the Currency, the Director of the Mint, and other officials of the department. With this goes also the supervision of the Federal Reserve Bank system and the inspection of the national banks. The issue of bonds, hkewiso, when authorized by Congress, is in the department's charge. The accounts of every other executive department, moreover, are audited under the supervision of the Secretary of the Treasury. Finally, there are some miscellaneous powers relating to the life- saving service, the secret service, t.ie quarantine and public liealtli services, and the system of war risk insurance. This bare enumeration of important functions will at least suffice to show what a large and varied amount of work the Treasury Department lias to do. The lieadsliip of this department lias been held at various times by men of great financial ability, beginning with Alexander Hamilton and including among his successors Albert Gallatin, Salmon P. Chase, and John Shermaii. The War Departr "ut in the United States is chiefly The War concerned, of course, with the maintenance and adminis- iiipnt"^*' 1 ration of the army. It lias to do not only with the enlist- ment and equipment of men for all branches of the service, but witli contracts for supplies, with fortifications, and the transportation of troops. Even in time of peace these functions are of no inconsiderable importance, but in time of war, as recent years have shown, they become tasks of stupendous magnitude, involving millions of men and billions of dollars. Kven before the United States entered the (Ireat War the internal organization of this depart- ment, with its eieven difTerent bureaus, was complicated enough ; to-day it is so elaborate that ever the most ele- mentary description would fill many pages. In addition to these military functions, moreover, the Secretary of War has two important fields of civil authority. One is the supervision of certain public works undertaken by the m^.-mr. 136 THE GOVERNMENT OF THE UNITED STATES Its hoail is usually :i civilian. national government, such as the dredging of harbors or tlic improvement of waterways. All the navigable waters of the United States are under the final jurisdiction of the War Department. No obstructions to navigation (in the way of bridges or piers, for example) may be erected anywhere without this department's consent. The other function i.s that of supervising the administration of the insular possessions. The Philippines, Porto Rico, and the Panama Canal Zone are under the care of the War Department, the two former having been left there since they were occupied by the armed forces of the United States during the Spanish War. Unlike the chief European coun- tries, the United States has no department of colonies. Tlie War Department looks after the possessions just men- tion .'d, but Alaska and Hawaii, being ranked as territories, are under the supervision of the Interior Department. The head of the War Department has usually been a civilian, but men of large military experience, Grant and Sherman, for example, have held the post at times. This is quite in contrast with the practice in the countries of continental Europe, where high officers of the army are practically always selected for the post. Both methods have their respective advantages. An army officer is likely to have a better appreciation of the technical pha.ses of the work, while a civilian may be much better qualified to handle such matters as contracts, transportation, the construction of public works, and the administration of the insular pos- sessions. Tlie '.anger, of course, is always that of friction between a civilian secretary and the military heads of the various technical bureaus in his department. Tliis danger has from time to time been encountered both in the United States and in England where a similar system is in operation. In spite of this, however, the subordination of the military to the civil branch of the government is some- thing that should at all times be clearly provided for in a democr.'icy, even at the risk of some slight lapse in military efficiency. Tlie abhst and most successful Secretary of War anions the many who held that officp during the nine- toentli century was a civilian, Edwin M. rttanton. Th(> Department of the Interior has various functions m THE CABINET AND NATIONAL ADMINISTRATION 137 whicli, in the main, are not at all analogous to those pos- Department sossed by similar departments in other countries. It does i|,4*rior. not, as in PVance, for example, exercise a general super- vision over the government of cities and towns. It has nothing whatever to do with local government, police ad- ministration, and the other functions which Europeans associate with the "interior" work of national government. Its functions, in fact, are of such a miscellaneous character that it has been jocularly termed the " Department of Things in General." They can be enumerated, but not easily classified. The department has the control of all the public lands, including national parks, and the handUng of Indian affairs. It has direct supervision over the territorial affairs of Alaska and Hawaii. It has charge of patents, pensions, tli(> geological survey, and various other tilings which have no relation to one another. Finally, it distributes the gov- (^rnnient appropriations to various educational institutions and supervises certain hospitals in the District of Columbia. Tlio Postmaster-General is what his title implies. His department has the largest number of employees and hence the ?;reatost range of political patronage. He awards con- tracts for the transportation of the mails and for all other forms of service in his department. He assumes the over- sight of the entire postal business of the United States, which is the largest single business enterprise of any sort in the world if one includes the parcels post system, the handling of money orders, and the postal savings banks. An impor- tant autliority possessed by the Postmaster-General is that of denying tlie use of the mails to any concern which may come under the ban for using the service wrongfully. He may also debar any obnoxious publication from passage tlirough the mails. This latter power has been extensively used during recent years. The Attorney-General is the head of the Department The De- of Justice and the chief legal adviser of the national govern- j^^°* °' ment. He i. its representative in all legal proceedings to wliich the United States is a party. He conducts proceed- ings against corporations or individuals who violate the federal laws and supervises the work of the federal district attorneys throughout the country. He investigates and The Post- master General. 138 THE GOVERNMENT OF TH^^ LNITFb STATES The N'avy Depart- ment. The De- partment of AKricultiiro. The Do- jiartnifMit - ("Dmniori'i reports to tho Piosidrnt upon all applications for reprieves or pardons. His department has general oversight of tho federal penitentiaries and other i istitutions of correction. The post is always hold by a lawyer of high standing. The functions of the Navy Department are for tho most part implied by its designation. The construction, arming, and distribution of the naval vessels, both regular and auxiliary, the establishment anil maintenance of navy yards, the enlistment of men, the making of contracts for suppHes, and the general administration of tbf country's armed forces afloat — all these branclu>s of work are in- cluded. The Secretary' of the Navy, like the Secretary of War, is practically always chosen from civil life, and the technical work of the department is performed by various subordinate bureaus, each of which is headed by a naval officer of high rank. Altliougli the chief insular possessions of the United States are administered under the supervision of the War Department, the Secretary of the Na\y has charge of the smaller islands, Tutuila (in tlie Samoan group), Guam in the Pacific, and the recently acquired Danish West Indies. The Secretary' of Agriculture has acquired many branches of jurisdiction, all of which have to do ^/ith agriculture either directly or intlirecth'. They include the maintenance of agricultural experiment stations, the distribution of seed, the establishment of cattle quarantines, the ins ction of meats and other food products, the making of scientific studies relating to agriculture and the issue of bulletins, the control of the weather bureau and the forest service, the management of the crusade against noxious insects, and many other things of an allied nature. The work of this department is .supplemented by the states, most of which maintain their own departments of agriculture. Two departments of relatively recent establishment are those of Commerce and of Tjabor. They were originally united but were divided in 1913. The Department of Commerce has to do with the- development of foreign and domestic trade, the control of corporations, the licensing and inspection of steamboats, the regulation of fisheries, the lighthouse service, the taking of the census, and some iHi Till': CABINET AND NATIONAL ADMINISTRATION 139 minor matters. The Department of Labor has direction of TheDepart- the immigration service, the administration of the naturali- Labl^r" zation hiws, and the adjustment of relations between labor and capital. It includes a children's bureau to which i.s intrusted the execution of the federal laws relating to the employment of child labor in industry. In a word it seeks to do lor the interests of labor what other departments iiave done for agriculture and commerce respectively. The heads of the ten departments, namely, the Secre- tary of State, Secretary of the Treasury, Secretary of War, Secretary of the Interior, Postmaster-General, Attorney- General, Secretary of the Navy, Secretary of Agriculture, Secretary of Commerce, and Secretary of Lal)or, make up the Cabinet. Subject to the general direction of the Presi- dent and within tlie range of the laws, each lias control of things in his own division of work. The degree of independ- (>uce possessed by each is nowhere exactly defined. One tiling is certain, however, and that is the absence of any jurisdiction on the part of the Cabinet over its individual members. The Cabinet as a whole cannot give any orders to its own members. That can be done only by the Presi- dent. Members of the Cabinet do, however, consult the President on all important problems within their depart- ments, and he may, of course, not only lay these before the whole Cabinet for discussion but may be governed thereby. In addition to tliese ten regular departments, there The de- are some other branches of national administration whoso 1'"'^^^, . /-I 1 • rn^ r bureaus and iieads are not members of the Cabinet. Ihese federal boards, agencies, which are not called departments but bureaus, commissions, or boards, have been established from time to time under thr authority of acts passed by Congress, but the chiefs of the bureaus and the members of the com- missions are appointed by the President with the consent of tlio Senate. For the policy of placing these bureaus and l)oards outside the purview of any of the regular depart- ments there have been various reasons, historical, political, and personal. In the main, however, these administra- tive agencies deal eitlicr with functions which are rather too important to be committed to subordinate officials ii n.'if of the regular departments and yet are not important ira 140 THE GOVERNMENT OF THE UNITED STA'^'^S The Inter- Btate Com merrp Com- mission The Federal Trade Coni- mission. The Tariff Com' mission. enough to warrant the c^eation of a new department, or they are functions which from their intrinsic nature can most appropriately be handled by a board of several officials responsible directly to the President. The most widely known among these bodies is the Inter- state Commerce Commission, established in 1887 to super- vise the execution of the national laws relating to foreign and interstate trade, with power to investigate complaints. The original powers of the commission have since, by suc- cessive acts of Congress, been greatly extended. It is now composed of nine members, each appointed for a seven-year term by the President with the consent of the Senate. The work of the commission is quasi-judicial in its nature, for it adjudicates controversies between interstate trans- portation companies and shippers relating to rates and conditions of service. From its rulings there is, however, an appeal on points of law to the Supreme Court of the United States. The commission has become the right hand of Congress in the exercise of its commerce power.^ Another board which exercises authority in the domain of commerce and industry is the Federal Trade Commission established in 1914. It is composed of five members, each appointed by the President with the concurrence of the Senate for a 'ven-year term. This commission took over the work formerly handled by the Bureau of Corporations in the Department of Commerce, but it has acquired from Congress other authority in addition. It is empowered in a broad way to investigate and to prevent all unfair competition in commerce and industry, save among trans- portation companies and banks, both of which are under the supervision of other federal authorities.^ Still more recently, in 1916, Congress authorized the establishment of a Tariff Commission with a membership of six, each appointed by the President with senatorial confirmation, for the unusually long term of twelve years.' ' So long as the railroads remain under government operation, how- ever, its influence is much diminished. ' See also below, p. 259. ' The initial appointments were in all oases except one made for shorter terms in order that the various members might end their terms periodically and not all together. THE CABINET AND NATIONAL ADMINISTRATION 141 It is intended that this board shall make a thorough study of all questions relating to the importation of merchandise and shall thus provide data upon which the tariff, in future years, can be framed with reference to the real economic noeus of the country rather than in obedience to sectional or class or political pressure. The commission has, of course, no powers except those of an advisory nature. Congress retains full authority over the traffic schedules. Another important federal board is the Civil Service The CivU Commission which helps to recruit the pubhc service. ^^^ Tlie Spoils System flourished in all its vigor from the first non. inauguration of President Jackson in 1829 until the assassi- nation of President Garfield in 1881, a period of more than half a century. During all of these years it was a persistent troublcr in Israel, giving successive Presidents no end of embarrassment and taking from them the time and strength which should have been given to things far more important. Public opin' tn, however, gradually soUdified against the system, and the tragic end of President Garfield at the hands of a disappointed office-seeker gave a new impetus to the movei nt for civil service reform. In 1883 Congress passoi. the act which laid the basis of the present civil service system and authorized the establishment of a com- mission to carry out its provisions. This commission is a body of three members, each appointed by the President with the Senate's approval, but not more than two of the members may belong to the same political party. It pre- pares the rules governing civil service competition, super- vises the work of examining candidates, and certifies the successful candidates for appointment. With more and more offices placed within the classified service, the func- tions of the commission have steadily become greater in scope. A few other executive agencies remain to be mentioned, other The Bureau of Efficiency, estabUshed in 1917, has for its ^^^^^ chief function to suggest improvements in the system and business methods of the various government offices in Wash- ington. The Library of Congress, the largest repository of books in the country and one of the largest in the world, is not included in any of the regular departments, its librarian 142 THE C10\1:RN>'ENT OF THE UNITED STATES Thp ilrocii- t"Mlizatioses. If, however, Congress should ever succeed in limit- ing the right of th(> President to remove members of his Cabinet and other executive officers, as it tried to do by the Tenure of Office Act in 1867, the system of centralized administrative responsil)ility would quickly break down. So long as the separation of powers remains a corner stone of American government the supremacy of the chief execu- tiv(> in all strictly administrative matters must l)e closely gu.inled or chaos in the business afTairs of the nation will inevitably ensue. While, however, the executive branch of the government i.^ not directly responsible to Congress in the sense that the Eiiglisli Cabinet is responsible to parliament, this does not mean that Ccmgress can in no way influence the course of national administration. On the contrary it is Congress that authorizes th.c establishment of each dep:ji'cl of course to the obvious condition that ts of procedure. For a lumdred years, moreover, delegates from the n>rritories liave been allowed to sit in the House of Representatives and to speak there, although liaving no right to vote. The constitution excludes any person "liolding any office under tlie United States" from })eing "a member of either House diT-Mg his continuance in office," but the head of a (lepartn... , by taking a part in the deliberations of either House, would not become a member of it any more than the chaplain or the clerk. He would have no official term, no privilege of immunity from arrest, no vote, none of the eoiistiiutional attributes of a member. Admittiivg, however, that Congress has the power to Merits and admit tlie members of the Cabinet to its sessions, would ',[''")'„'."' it be expedient to do so? That question has been many i>r,>p()wii. times discussed, and there are undoubtedly two sides to it. On the one hand, it has been urged that Congress could, 14' THE GOVERNMENT OF THE UNITLi > STATES English and Ameri' in Cabinets contrasted : 1. qualifi- cations of mem tiers. 2 powers of initiative in legisla- tion. in this way, obtain more useful and mori' oxacl formation thiin it now obtain.s through roundabout channels; that the chan^ ' would inspire the President to eliooi^e, as mem- l>e -• iif til!! Cabinet, men of greater pub! > experience, and Iha' It vould al.so compel these men to in mnv proficient in iiic itfl;H'-s of their several depHrtrnciits, for i - i;ic;ipable houJ of a ieparfment could hope to iufluence (uc uelibera- ti ins of ('oajrress day by Jay. On the other hand, it is rei.lu'd thit i'< pla e on the floor of e;: u chamber ten cnlnri't scerotar ■ oi national prestige and -ong public experiei ■ would gi^ f ;irative government has been the series of contrasts b( een cabinet system i F>! aland and that of tb Unit* -' The differeiues, of t ursr, are wide and fun iment: hardly wortii while to discuss them at let: h, fo' relatively easy to comprehend. Here are ^ c'ii ancies set d"wn under three main heads The memixTs of the English Cabinet .aist be m-u of nne or other branch of parliament ; in tr.e United ^s the m. mbers of the Cabinet cannot be m- nbcrs of vi Housi of Coiigress. In England the Cabin (t is the "great stan* ag conn of parliament," arrangi- dl important biisin. ss in ad^ .res in their wav thnii"' he function *" ]"r lativ - the Cabinet la with proDOset. (jn ti e ■ es er championing these mr chambers, and assumin shit) In the United ^ wa; i'ip the Presii, ttee 06, >th ler- . ormal . gisla- THE CABINET iND NATIONAL ADMINISTR-iTION 145 tior;. but If can assume no formal r pon.sibility and it can ♦ .ik no i»f 1 sh.'i «' in fjicilitating tiu- nrogrcs- of logishition. Tli.ni' portarit practical power ' thr En ijlish Cabinet, !iia»^ oi tfuidifi ' the busines- of national legi.--lation, does not l«olong to tie ■ 'abinot in . nerica. F"'ially, tin iunglish C. unet is r 3p( -ible to the House of ' nnn. ns. ".hile '' ■ Cabinet oi ti United States is m sponibietoC -. An adverse vnte in the House o! C< nuon- -s s fficunt to overthrci'v the < ibinct in E^ng- land , of Kc: the All the Pff )f ai the e ment vith: T ui eng el- lui io the other would be profitless. iing in a controversy upon the rel ant and a whale. Fach is fittef^ ould make a ludicrous showing ts. Both the English and Ami • s ha .served satisfactorily, each m ironn. it, and the adaptation of the ages ut i'^ a.- .ssential in the body politic as in uimr organisms. ; the American system show.-< its weakness in the defective oOperation which it provides between the two great arms of gov(>rnment, it has an offsetting merit in the protection which it affords against -"ny undue gravitation of power into a few hands. 3. rexixinni bility. 1 '; i idvc <. votes in the Sen- rest < '1 ot necc-sarily causi T' untabl<> to t' e people alone. ticmpt any demonstration that ( her system is or the House members of i: ibility is to -I outstanding In England \^ uld be like pri wess of an f^wn element to change binet sys- 1 political .s environ- CHAPTER X Why tl.c (ioulilp- chamber H.vstPin was first adopted. THK SENATK : ITS OIUJANIZATION DriaxG the Revolutionary War ami uiid(>r the Articles of Confederation, the common affairs of the thirteen states were managed by a Congress wiiich consisted of ;i single chainber. It was decided l)y tiie constitutional convention of 17S7 at an early stage in its deliberations, liowever, that tlie new government should provide a Congress of two chand)(>rs. This decision was reached with practical una- nimity, as it seemed unwise to give to a single chamber, par- ticularly to one chosen liy popular vote, the great legislative authority whici'. it was proposed to vest in the new govern- ment. Such a single chamber might enact laws hastih, niiglil l)e moved by gusts of prejudic(\ and might become in tlie end a legislative octopus. Most of the colonies, moreover, liad maintained two legislative chambers, likewise all of the new state constitutions except those of Pennsyl- vania, (uHjruia, and \'ermont made jirovisions for the double- ciiam])er system. The l)icameral system seemed to be indicated l)y the lessons of experience and by considerations of prudence, in view of tlu^ "propensity of all single and numerous ,-Minblies to yiehl to the impulse of sudden and violent pasMdus, and to be seduced by factious leaders into intemperate and |..Tiiicious resolutions." But there was another consideration, namely, the desirability of embody- ing, somewhere in the new government, the principle that .■dl the states were equal. Without provision for two houses, the terms of the first great compromise would not have been possible.' The adoption of the double-chamber system was settled before the dispute over the basis of representa- ' See ahov»', p. 33. 146 THE SENATE: ITS ORGAXIZATIOX 147 tion became acute, but the compromisp smlcd tlir mat lor beyond the possibility of reopening it. The basis of representation in Congress, therefore, is this: two interests arc to be represented, namely, the states ,nd the people of the states. The states as' such are equally represented, by each having two senators in the upper branch of Congress, the Senate. The people of the several states, on the other hand, are represented by a vary- uig number of representatives in the lower branch of Con- gress, the House of Representatives. In l)oth cases the unit of representation is the state. Congress, accordingly, is a bicameral convention of state envoys ; its members are othcers of the states from which they come and not officers of the national government. In the constitution, as originally adopted, it was pro- vicvH that the Senate of the United States should be made up of two senators from each state, chosen by the leo-isla- ture thereof for .six years. In making this provision^hat senators should be chosen by the various state legislatures two purposes were in view. Fust, it was the intentionthat the Senate should be a conservative bodv, made up of men who had gained political experience and distinction in their own states, — men who might not possess the attributes of popularity but who would command respect by their personal attainments. The fear of demagogism, of Vgisla- tion dictated by selfishness or ignorance, cropped out per- sistently in the deliberations of 1787. "A good govern- ment," wrote one of those who had much to do with the raming of the constitution, "implies two things: finst hdehty to the object of government, which is the happiness "t the people ; secondly, a knowledge of the means bv which that object can be best attained. Some governments are (<-hcient in both these qualities; most governments are OeofKe H. Hayiiea, The Election of Senators (N. Y., 1906). • The Federalist, No. 62. • Sn f.ir !i!» t.hp rppoTda nf the nonvenvion of 17S7 displosfl. Jamea Wilson of Pennsylvania was the only delegate whf^ urged the direct popular elec- tion of senators. ■^■<>.i*r: THE SENATE: ITS ORGANIZATION' 149 \ tion, who remarked that the Senate was to be a saucer into whicli the hot tea which came steaming from the House mifrht V)e poured to cool. The Senate, as originally designed and established, is a purely American product. Some antiquarians have un- earthed a precedent for it in the ancient confederation of Hellenic states "where each city, however different in wealth, strength, and other circumstances, had the same number of deputies and an equal voice in everything that related to the concerns of Greece." Others have found its prototype in both the United Netherlands and the Swiss Confederation. There is no need, however, to have gone seeking so far afield. The framers of the constitution were quite familiar with upper cliambers in colonial times, some of which, like the council in Massachusetts, were made up of members chosen to represent districts, and all of which were intended to serve as checks upon the popular assem- blies. Starting with this upper chamber of colonial days the organization of the new Senate was merely adapted to the political exigencies of the time. For more than a century senators were elected by the state legislatures as the constitution originally provided. Each legislature, in the first instance, was left to determine the procedure by which the choice should be made, whether by its two branches acting separately or in joint session. But in various states controversies arose between the two legislative chambers, and these controversies sometimes prevented any choice being made at all. In 1866, there- fore, Congress passed a law making the procedure uniform in all the states. In brief, the provision was that the two branches of a state legislature should first ballot separately, and if they could each elect the same candidate by a clear majority, well and good. But if the two chambers could not agree on the clioice of a senator in that way, they were then to meet in joint session and keep balloting day after day until some one obtained a majority. If a vacancy in the senatorial representation from any state occurred at a time when the state legislature was not in session, the gov- ernor of the state was empowered by the con.stitution to name some qualified person to serve until the legislature The Senate an inJiKe- nous insti- tution. Older plan of choosini! senators described. 150 THE GOVERNMENT OF THE UNITED STATES Objectiuiis to this plan. The movo- incnt for the diroi't popular election of senators. could meet and make a clioice, or should adjourn v^ithout making a choice. But as time went on there came a growing demand that senators should be chosen by direct popular election, and not by the state le;,nslaturcs. ^'arious factors contributed to this demand. Far from always choosing men of ripe political judgment vand stanch integrity, some of the state legislatures allowed their choice of senators to be dictated by ulterior motives. The choice was never determined, in fact, by the legislature but by a party caucus of the majority members. Partisan service, without any other qualifica- tion, on many occasions placed senators in their seats. The dictation of pohiical bosses counted for more with members of y. .te legislatures than the promptings of their own judg- ment or the trend of pubhc opinion. The influence of great corporations was able, time and again, to determine the election. Even outright bribery was not unknown. Not that all senators, of course, or even most of them, were chosen in obedience to reprehensible motives; the great majority of United States senators obtained their seats by methods which were perfectly proper and beyond criti- cism, being chos(>n because the several legislatures regardea them, sometimes in tlie narrow perspective of their political bias, as worthy representatives of their various states. But departures from the paths of legislative rectitude were all too frequent, and they stamped upon the public mind the impression that indirect election inevitably meant intrigue, that it gave an unfair advantage to the candidate with large funds at his disposal, and that it made of the Senate a reactionary body. There were fretpient deadlocks, too, ballot after ballot being taken daily for weeks and even for months without any one obtaining a clear majority. In this way a state was often deprived of its full representa- tion in the Senate over considerable periods of time. At any rate, the antipathy to the old plan grew apace, and projects for changing the constitution so as to permit direct election came to the front in the closing decades of the nineteenth century. Several times the House of Repre- sentatives passed by the requisite two-thirds vote a proposi- tion to submit such an amendment to the states for their THE SENATE: ITS ORGANIZATION 151 approval, but the instinct of self-preservation led the Sen- ate to refuse concurrence. Meanwhile, some of the states rvolved a plan by which they virtually secured the popular choice of their senators without waiting for a change in the constitutional machinery. The general features of this plan were as follows : whenever the term of a senator was about to expire a direct primary was held in which each political party chose its candidate for senator. Candidates for election to the state legislature were then asked by the voters to pledge their support to the people's choice at the primary. The legislators were, of course, under no legal obligation to keep such preelection pledges, but in the main they did so, and the choice of the majority party at the primary was regularly chosen for the Senate by the majority members of the same political party in the legis- lature. The whole proceeding was directly contrary to the spirit of the constitution but quite within the letter of its requirements. In 191.'} the Seventeenth Amendment to the national constitution was finally adopted. It provided that here- after senators should ])e chosen directly by the voter: of the several states, not l)y the legislatures. No longer was there any hesitation about snapping the ancient hnk between mcnt." tlie state and national governments ; the danger that federal usurpation would extinguish the state legislatures had long sinc(> passed away, if, indeed, it had ever had any real exist- ence. To-day, therefore, the post of United States senator is elective, but the term and the qualifications of senators remain as before. A senator must be not less than thirty years of age, a citizen of at least nine years' standing, and at the time of his election an inhabitant of the state which he is to represent. But while the term of senators, as has been said, is six years, one-third of the Senate's membership is renewed every two years. No state elects both its senators in the same year, unless some unexpected vacancy should occur in one of the senatorships. The choice is made by the voters at the regular state election, and the qualifications for voting are the same as those required at the election of representa- tives. When a vacancy occurs through the death, disquali- Culmina- tion of this movement in the Seventeenth Amend- Equality of represonfa- tion in the Sonatei remain. 152 THE GOVERNMENT OF THE UNITED STATES fication, or resignation of a senator from any state, the gov- ernor issues a writ for a special election, unless a regular polling day is near at hand ; and the state legislature may •npower the governor to appoint some qualified person as senator tern, orarily, to sit until this election is held. The Seventeenth Amendment made no change, more- - ^ ^^^^' Jn the equal representation of the states, although p-onatemust With the present great disparity of population among the various commonwealths, this feature has become a great anomaly. Nevada, wi.h about 100,000 population, has two senators, while New York, with over 10,000,000, has the same number. Proportionally, New York would have two hundred senators. But, anomalous or not, this equality of representation was an essential feature of a bargain made by the larger with the smaller states, and in the constitu- tion a pledge was given that no state without its consent should ever be deprived of its equal suffrage in the Senate. Ihat pledge will of course be respected. No matter how widely the states may vary in area, population, or resources, the principle of equality must remain so far as the upper branch of Congress is concerned. This is one respect m which the constitution is practically unamendable. btrictly speaking, of course, the sovereignty of a naiion cannot be restricted in this way; an unamendable con- stitution, or part of a constitution, is incompatible with the principle of ultimate popular sovereignty. But the pledge was made in good faith and it will be ko'pt. The Senate of the United States holds its regular sessions each year in its own chamber at the national capital It may also be called by the President in special session, even when the House of Representatives is not silting. This is because the Senate, as will be pointed out in the next chapter has some special functions which are not shared by the other branch of Congress, the trial of impeachments and the approval of treaties, for example. By the terms of the constitution the Vice-President of the United States is the benate s presiding officer, and he possesses the customary powers and duties of that post. But he has no vote except m the case of a tie. This restriction was thought prudent m order that the state from which the Vice-President Organiza- tion of the Senate. THE SENATE: ITS ORGANIZATION 153 happens to come would not regularly have three votes on all questions. In the earlier days of the Union, when the Senate was a small body of less than thirty memb(>rs, tie- votes were not uncommon ; but nowadays, with lem- bcrship increased to ninety-six, the Vicc-Presic' arely gets the opportunity to give a casting vote. In the sence of the Vice-President the Senate elects a president pro tem- pore. It also chooses its other officers, sergeant-at-arms, chaplain, and clerks. The Senate makes its own rules of procedure. On the its pro- whole its rules are simple, far more so than those of the '^^"^• House. They require that every bill or joint resolution shall receive three readings before being passed, but the first two readings are merely nominal and are given before the bill is referred to the appropriate committee. The real contest, if any, comes upon the occasion of the third read- ing, when amendments may be offered and voted upon. No general priority is given in the Senate, as in the House, to any class of measures, except that appropriation bills have a certain precedence. Debate in the Senate is not Hmited by the rules save in one particular, namely, that a senator may not speak more than twice upon the same ques- tion during the same day without permission of the Senate. This great freedom of debate has had an important influence upon the work of the chamber, as will bo indicated presently. While most of the daily meetings are public the Senate meets occasionally in "executive session" behind closed doors. This is usually the case when the confirmation of treaties is under discussion. Like all great legislative bodies, the Senate of the United its com- States does a large part of its work through standing com- "''*'*«■■ mittees, of which it has more than sixty. Some of them are important and have substantially the same designation and jurisdiction as the chief committees in the other chamber ; but most of them have only perfunctory work to do and scarcely ever meet at all. The most important committees of the Senate are those on finance, appropriations, foreign relations, the judiciary, and interstate commerce. The first two have the consideration of all measures affecting revenue and expenditures respectively ; the next two owe much of 154 THE GOVLRNMENT OF THE UNITED STATES How com- mittees are ohosen. Prepdom of debate in the Senate : its merits and defects. their importance to the fact that all the President's, lomina- tions to tlic diplomatic service and to the courts are referred to them. Likewise, the committee on foreign relations con- siders all treaties before they are di>-cussed by the Senate as a whole. The committee on interstate commerce has the preliminary consideration of all measures in the impor- tant field of administration which its title indicates. Senate committees contain from five to fifteen members, and every senator is likely to be assigned to one or more of them. The Senate also meets in committee of the whole for the detailed consideration of measures. The selection of the various committees is macte, at the beginning of each Congress, by special committees chosen for that purpose by the caucus of each party. These special "committees on committees" make up a slate or list of committee assignments, and this is ordinarily accepted by the Senate without change. The real selections are, ther(>- fore, made by the committee and not by the Senate itself. Invariably, of course, the majority party in the Senate is given a safe numerical margin on every committee of im- portance. Each committee has its chairman, who is named on the slate in the same way, but in tlie naming of these chairmen it is usual to respect the principle of seniority in servic(>. Senators of the majority party who have had long service, especially on particular committees, are usually given the important chairmanships. Every committee has its "ranking member," the one who stands next in order of seniority and who is in line for promotion to the chairman^ ip when a ' . eancy occurs, provided his own party retains a majority in the Senate. Mention has been made of the fact that in the Senate freedom of debate is unrestricted to an ext . unknown in any other legislative body tliroughout cho orld. There is : J closure system such as exists in England, and until recently no other means of shutting off discussion. This plan has, of course, some great advantages in that it encour- ages spirited and continued discussion ; it gives a minority a fair chance to fight matters to a finish and to let the country know the facts. But hke all such unwonted free- dom, this latitude in debate may be abused, and it some- THE SENATE: ITS ORGANIZATION 169 times has been abused. It affords obstructionist senators the opportunity tcj talk measures to death. It gives a fac- tiou.s minority the opportunity to use dilatory tactics and to wear out the patience of the majority by conducting a "filibuster," as it is called. When tlie Senate's session is drawing to its close, this freedom of debate sometimes per- mits a relatively small minority to defeat any measure by resort to filibustering tactics, and many measures have per- ished in this way. Indeed it can fairly be .said that legis- lation in the closing days of the Senate's session virtually reciuires unanimous consent. Everyone remembers, for example, the way in which "twelve wilful men" in a total membership of ninety-six endeavored to prevent the arming of .Vmerican merchant vessels for self-protection in the siiriiig of 1917. This action caused the Senate to alter its rules somewhat and the previous question may now be moved as a means of closing an unduly prolonged debate. Notwithstanding the incentive afforded for long and Quality of carefully prepared speeches, the Senate's debates do not the Senate's nowadays, in general, reach the high standards of seven or ''"'"'**"'■ ei-ht decades ago, the days of Webster, Clay, Calhoun, Hayne, and Sumner. Speeches of sterling quality in sub- stance and of rhetorical excellence are still dehvered on occasions when some matter of special importance or solem- nity gives the opportunity ; but a senator no longer hopes to convert his colleagues by eloquence. Speeches in the i^eiiate, in fact, are addressed to the country at large rather than to immediate hearers. By the way, it is not the practice of the Senate, as it is of the House, to give members leave to print" speeches which they have not delivered or "leave to extend" a few remarks into many pages of tlie printed record. Yet the standards of debate maintained by the United Compari«,r, ^tates tsenate to-day are not below those of the British '"th other House of Commons, and they are certainly above those of """'*"'''• legislative bodies in other lands. Legislative eloquence lias suffered an eclipse in our time, not merely in this country but everywhere. Party lines have tightened, so that only the authorized spokesmen of the party are now listened to 156 THE GOVERNMENT OF THE UNITED STATES Influence of the party spirit The caucus system in tb» Senate. Merita and defects of the caucus. With groat interest; the others merely repeat, expound, and amphfy. The senator who is merely a loyal supporter of his party programme cannot thrill the country with some- thing new and startling, the outcome of his own initiative and reflection. If he did, he would no longer be accounted a loyal party man, and under the party system which now rules the Senate there is no influential place for any one else. The party whip cracks frequently in the Senate as in . other legislative chambers. Its custodian is the caucus. H^ach party, majority and minority, has its own caucus niade up solely of its own members, and at these meetings the action of each group is decided upon. The majority senators, whether Republicans or Democrats, agree as to the measures which they will support ; the minoritv mem- bers, on the other hand, map nut their counter-operations deciding whether to oppose, or to offer amendments, or to filibuster, or to let measures go througli. Only the majority party, however, uses the caucus regularly. Every senator who attends his party caucus is bound to abide by any deci- sion which the caucus may make, bound by a merely moral obligation, to be sure, but that is enough for all practical purposes. Thus it comes to pass that when a majority caucus has pledged its members to support any measure, the u tirmvte issue is virtually sealed. The majority, being pledged by caucus resolution to stand together, can insure its enactment. In the Senate, as in the House, vigorous protests against the caucus system have been voiced from time to time, and there is throughout the country a good deal of prejudice against caucus legislation; but the system provides the only way in which responsibility for legislation, under a system of divided powers and partisan government, can be adequately centralized. When a majority caucus pledges its members, this means that the party is ready to take the entire responsibility for some action. The proposal then becomes what in England would be termed a "government measure." Reformers are con- tinu.-illv xiTsms th.at tho Senate should replace "irresponsible party ictioii in a secret conclave" by some form of "public, personal, and individual responsibility"; but the whole THE SENATE: ITS ORGANIZATION 157 history of representative law-making proves that no well- ordered legislative programme is ever carried through by placing undue emphasis upon the duty of every legislator to run off on his own tangent. The legislative caucus, or some- thing akin to it, is a fixture in all countries having systems of free government. It is not, as some imagine, a vicious instrumentality which the politicians of America have devised f. >r their own benefit. The Senate has the usual rights of a legislative body, and its members enjoy the customary immunities. They are privileged from arrest on civil process during their attendance, or in going to, or in returning from, the sessions. For what a senator may say in the course of a debate, more- over, the constitution provides that he "shall not be ques- tioned in any other place" ; in other words, he is not subject to the ordinary law of libel as administered by tlie courts. But the Senate itself can punish a member for disorderly conduct and by a two-thirds vote may even expel him. It may < ompel the attendance of absent senators, may con- duct investigations, may summon witnesses, and, in the event of their refusal to appear or to answer questions, may punish them for contempt. It has the right to deter- mine the qualifications of its own members. It may do more than merely examine into these formal qualifications, for it may investigate the question whether any senator has been properly chosen, whether bribery or other repre- hensible means liiive been employed to influence his election. It has the pow- r to declare an election void if reasons for so doing should ppcar. A senator is not, however, a "civil officer of the United States, "as defined by the constitution, and hence may not be impeached before the Senate itself.' In political influence and prestige the Sena.e remained, during the early years of the Union, quite inferior to the House. The latter took the initiative in legislation of all kinds, the Senate devoting more time to revising the meas- ures which came up to it from the lower chamber than in originating bills of its own. It was a small body, sitting beluiid closed doors, and regarded by the public as a private conference of provincial notables in which there was no ' See below, p. 170. Privilege* and im- munitiea of senators. The place of : ho Senate in American political history. 158 THE GOVERNMENT OF THE UNITED STATES (a) from ITHO t.. I8;i(). (b) from 1.S30 t centre of political gravity during this period, which extended from 1789 to about IS.'JO, was lodged in th(> Hou.se. But with the Jacksonian revolution this situatioti under- went a change. The abolition of the congressional nominat- ing caucus, which the Houst^ through sheer weight of num- bers always controlled, reduced the influence of that body.' The Senate began to come into its own. Men of great power and prestige came into its m(>mbership during the three decades which intervened between the inauguration of Jackson and the Civil War. The outstanding political questions of this epoch were connected mainly with the subject of stale rights, and in these the Senate, as the cham- ber representing the interests of the several states, became the great tnrum of discussion. Controversies and compro- mises rclatiiisi to the admission of new states centred about the ultimate control of the Senate by the i>ro-slavery or anti-slavery sections of the Union. The permanence of its organization, the longer terms for which its members were chosen, its smaller and more wieldy size, the reputation for skill and eloquence in debate which it developed — these things helped to make the Senate the real battle-ground upon which the great national issues of the ante-bellum era were fought out. Both at home and abroad the Senate gained a name for talent, dignity, and aggressiveness. So quickly and so completely was the balance of power shifted from the lower to the upper chamber that a distinguished French student of American democracy, writing in the middle thirties, was impressed by the wide discrepancy be- tween the two.^ The great debates which preceded the War ' Henry Jones Ford, The Rise end Growth of American Politics (N. Y.. 1911), pp. 260-261. « Of. brlow, p. ,3.32 • " On entering the House of Representatives at Wa8hing:ton, one is struck by the vulgar demeanor of that great assembly. Often there is not a distinguished man in the whole number. Its members are almost THE SENATE: ITS OHGAXIZATIO: 159 of 1812 took placi' in th« Houst- ; but thr orat ncal battles whicii lortsl.atio\v«'d liic Civil War were fough in the iSen- u ". Its zenitfi of prestige was r- ached at the 'lr«e of the ( i>il War wJH'ii it sought, under Andrew Johnson, to usurp a r«i\are of flic Pn^sident .-* ex^•cuti^■e authority and ended hy almost nnioving him from office by conviction on im- pi-achm' ■ ; No upper chamber in any other country matched iiio Senate of th(^ United Staler in influence and power at that point. Tliei) came the inevital>le reaction. By its undue em- phasis upon "'senatorial courtesy" and by its disposition to li;!tnper the hands of the executive in foreign affairs the Sinate overreached itself. CJrant and Garfield each took a hand in chpping it.-< \viugs, the former by rebuffing its claim t.. any control over removals from office; the latter by defying its rule of courtesy. Questions of economic policy, moreover, now came to the front, and in its handling of these the sectional spirit of the upper chamber became all too f,; .in. The growth of huge corporations and of gre.it fortuiit'.- b 'leht new elements into its membership, senators who ow ... ,ir belectioi; either to personal wealth = 1' were well backed front opulent '>■' If ewho owed their seats to iniellec- ti' ' ! 'iebate or long politii;.?! e.-perience grew thinner as iae>e^is went by. The Sea-it-^ hegan to stamp itself upon the public imaginatioi. is 'a^ strong- hokl of vestr d economic interests ?.nd the foe of popular rights. Other things, moreo-'t r, contributtu to the decline of the Senate's prestigt .luring the closing quarter of the nineteenth century, particularly the frequent scandals con- nected with the choice of senators by the legislatures in various states and the reputf^d alliance between certain or tn the fact t sources. The rai tual eminence or (c) uiica 1870. all obspure individuals. ... At a few '-. ', distance is the door of the Son.Ttc. whicli contains within small spa^i large proportion of the oele- br;i fl men of America. Scarcely an indi\ dual is to be seen in it who has nov had an active and illustrious career ; the Senate is composed of elo- qijnr.t. a-.-.-.^cates, distiuguisht'd funerals, r>-iso magistrates, and statesmea of not* . whose ...r^ruments would do honor to the most remarkable parlia- mentary debat^ps of Europe." — Alexis de Tocqueville, Democracy in America ' vols London, 1835-1840), I. oh. xiii. 160 THE GOVERNMENT OF THE UNITED STATES I'l Wai the new plan of election improve the Senate? The many- sided Senate. senators and great railroads or industrial corporations. The great and dominating figures of the golden age disappeared, one by one, and the new senators who came to take their seats did not share to a like degree the public confidence. During the past twenty-five years the senatorial firmament has contained very few stars of the first magnitude. Yet the Senate has relaxed its grip very slowly, and even yet it retains a large portion of its earher strength and prowess. By Some this deterioration in personnel and in influence has been attributed , o the old method of choosing senators, and the prediction has been made that, under the new scheme of popular election provided by the Seventeenth Amend- ment, the Senate will soon regain its unquestioned hegem- ony. It is yet too early to pass judgment upon the soundness of this expectation, but the lapse of a few years has given no tangible indication that it will ever be fulfilled. Popular election, when used in connection wiLh the direct primary, has not shown itself in any field of American po- litical life to be a certain method of securing for the pubhc service men of high intelligence, sound judgment, or rugged mtegrity. The new plan is not likely to do worse than the old, perhaps, but the hope for a marked improvement leans upon a slender reed. "It is very difficult to form a just estimate of the Senate of the United States. No body has been more discussed ; no body has been more misunderstood and traduced. There was a time when we were lavish in spending our prais 3 upon it. We joined with our foreign critics and appreciators m speaking of the Senate as one of the most admirable, as It IS certainly one of the most original, of our political mstitutions. In our own day we have been equally lavish of hostile criticism. Wo have suspected it of every malign purpose, fixed every unhandsome motive upon it, and at times almost cast it out of our confidence altogether. The fact is that it is possible in your thought to make almost anythmg you please out of the Senate. It is a body vari- ously compounded, made many-sided by containing many elements, and a critic may concentrate his attention upon one element at a time if he chooses, make the most of what THE SENATE: ITS ORGANIZATION 161 is good and put the rest out of sight, or make more than the most of what is bad and ignore everything that does not chime with his thesis of evil. The Senate has, in fact, many contrasted characteristics, shows many faces, lends itself easily to no confident generaUzation." ' ' Woodrow Wilson, Constitutional Government in the United Slates (N. Y., 1911), p. 112. CHAPTER XI The Senate an execu- tive as well as a legisla- tive body. la this eon- sistont with the principle of separa- tion of power? THE SENATE : ITS FUNCTIONS The United States Senate was designed to be more thari a branch of Congress and the right arm of the legislative power. It was intended to serve, in some degree, as an 'executive council as well. If the framers of the constitution niadc no regular provision for any body like the English Privy Council, it was possibly because they felt that they had assigned to the Senate the most important things upon which it was desirable that the President shoi'ld have advice and assistance. Washington, when he became President, fully expected that tlie Senate would act as an .idvisory council, deliberating with him on treaties and ap- pointments. The Senate at this time consisted of twenty- eight members only, so that it was not too large a body for informal and conhdential discussion. At any rate, it was Washington's practice, in the earlier years of his adminis- tration, to attend in person whenever executive sessions of the Senate were held for the consideration of treaties. But the senators did not relish this practice; they felt that it was a restraint upon free discussion, and soon adopted the plan of postponing all matters laid before them by the President until they could bo taken up in his absence. In time then- developed, accordingly, the practice of merely sending ajipointments and treaties in formal written com- munications, leaving the Senate to make up its mind with- out presidential assistance. When Alexander Hamilton wrote of the executive power as being divid(>d between the President and the Senate, he had in mind, doubtless, the great executive functions which the constitution gave to the latter, namely, those of confirming appoutments and of appnwing treaties. 162 THE SENATE: ITS FUNCTIONS 163 The idea of vesting executive functions to any extent in the upper chamber of Congress came, no doubt, from colo- nial experience, for in several of the colonies the same body which advised the governor formed a branch of the legis- lature. On the whole this scheme had served with a reason- fible degree of satisfaction because the governor's council in colonial days had given stability, character, and continuity to the whole administration. It was no great innovation, at any rate, to bestow upon the Senate some special functions of an executive nature. The constitution provides that appointments made by SpscM tlio President shall be subject to the "advice and consent" ^"jn^^ions of the Senate. The appointing power is one of the greatest Senate: of all executive functions, too portentous, it was felt, to <») **>•» mn- bo given without restraint to the President alone, lest he orapSnt- permanently intrench himself in office by filling the great °>«t8. offices of state with his own minions. Although the Presi- dent is commonly spoken of as appointing a justice of the Supreme Court or an ambassador, his action in reality is merely that of nominating. When he desires to fill any office, the President sends a nomination to the Senate, and this nomination, after being announced, is referred to the appropriate committee. If it be the nomination of a federal judge, it goes to the judiciary committee ; if that of an ambassador, to the committee on foreign relations. These committees may, and often do, assign such presidential uuininations to special sub-commit toes for investigation as to the qualiHcations of the person nominated. If there are objections to the nominee, the committee or sub-com- niittee hears such objections, and in due course a report,, favorable or unfavorable is made to the whole Senate^ Thcfi comes the vote to consent or to refuse consent. The Senat.. is not bound, of course, to follow the recommenda- «ums of Its rommittees on such matters; but it does so ■ x.cpt in unusual case**. If connent is refused, the same nomination may be submitt«>d a seewnl time, but this is not fo-,mt:nn}y done. Ilej(>ction« k*vf not b«en ur-.^vf,mmon, and they have at tunes (!'>velop*Kl considerable bitterness, but the vast majority ul prt ^dential f*ominations are confirmed with 164 THE GOVERNMENT OF THE UNITED STATES Recesj) appoint- ments. (2) the approval of treaties. little or no hesitation. Much depends, of course, upon whether the Senate contains a majority representing the same poht^cal party as the President, and the gener;i tem- per of the Senate with reference to appointments has changed from time to time. It is now pretty well conceded, however, that the responsibihty for selecting appointees rests, and was intended to rest, chiefly upon the President's shoulders and that the Senate should not impair this clear responsi- bihty by insisting upon a share of the initiative. Hence the senators do not ordinarily reject nominations without good reason. A bare majority is r -ded to confirm nomi- nations sent to the Senate by the President. What happens if a post becomes vacant and the Presi- dent desires to fill it when the Senate is not in session ? In that case the President may make what is known as a "recess appointment." The recess appointee assumes office at once and holds it until the Senate has an opportunity to confirm him as the regular incumbent. If, however, the Senate dechnes to confirm him, he ceases to hold the office whenever the Senate's session comes to an end. Then, of course, the President can bestow upon the same individual another recess appointment if he chooses to do so. It has occasionally happened that by a succession of these recess appointments an office has been kept occupied, de- spite the non-concurrence of the Senate, for several years. The second executive power shared by the Senate is that of approving treaties.' In deahng with this matter the framers of the constitution faced a dilemma. If they gave the President sole power to make treaties, they would endow him with the absolute control of foreign affairs including the power to make alliances, and they were not prepared to face public opinion with a proposal so startling. On the other hand, they realized that in the making of treaties, as John Jay phrased it, "perfect secrecy and immediate despatch are sometimes requisite." » And these requisites. It was easy to see, could scarcely be had if the President ' S. B. Crandall, Treaties, Their MaHng and Enforcement (2d ed.. Washington, 1916), and C. H. Butler. The Treaty Making Power of the United Stales (\. Y., 1902). • The Federalist, No. 04. THE SENATE: ITS FUNCTIONS 165 wero forced to submit liis negotiations, step by step, to any considerable body of men. In the end it was decided to take chances with the less dangerous of the two alterna- rivos and to stipulate that the President should make treaties "with the advice and consent of the Senate, provided two- thirds of the senators concur." In treaty negotiations, as in the selection of persons for How the appointment to office, the Senate's advice is not asked President in any formal way, although on some occasions the President LlfatoA lias sounded the Senate before actively beginning treaty "harethia negotiations. In any event a President rarely goes ahead *^''"" and definitely concludes the terms of an important treaty witliout making sure of his ground. He is likely to keep in tuuc'Ii with the leaders of the Senate, especially with the chairman of its committee on foreign relations, and through tliem to ascertain in advance what the action of the Senate is likely to be on any treaty that may be framed. No President likes to carry treaty negotiations to a conclusion, only to have the Senate reject his work. When it is borne in mind, moreover, that two-thirds of the senators must Ki\e assent, the difficulty of securing this approval in all cases is by no means negligible. Hence the President is constramed to unfold his plans in part at least to influ- ential senators, hearing in mind always that the Senate IS very jealous of its share in the treaty-making prerogative and that a relatively small group of senators can completely s|K)il the fruit of his negotiations. WTiile it is true that a President does not ask the Senate's advice, it is equally true that he cannot profitably ignore that body until the time comes to send the treaty to it for ratification. Many mstances of this consultation and of its successful outcome miglit be given, and many illustrations, likewise, of the failure of a treaty to be ratified by reason of a President's disinclination to art in harmony with the ascertained con- victions of Senate leaders. President Grant's treaty for the annexation of San Domingo in 1870 was rejected by the benate because Charles Sumner, the chairman of the com- mittee on foreign relations, fou^dit it to defeat. The negotiations which precede the making of a treaty with any foreign country are conducted on behalf of the 166 THE GOVERNMENT OF THE UNITED STATES The way a treaty is made. Legal status of a treaty. The Senate's power to amend a treaty. United States by the Department of State. This may be done either at Washington or at a foreign capital, the American ambassador or minister acting as intermediary in the latter case. After the general provisions have been informally agreed upon, the formal document is prepared and .signed by diplomatic representatives of the countries concerned. At this stage the treaty goes to the Senate for approval. If approval is given, the treaty is formally ratified and goes ;.'ito force, but if the Senate's approval is refused, the whole proceeding comes to naught. Every form of international agreement to which the United States is a party must be submitted to the Senate in this way. A treaty, when duly approved and ratified, becomes, like the constitution, the supreme law of the land, "and the judges of every state are bound thereby, anything in the constitution or laws of any state to the contrary not- withstanding." No state may make a treaty nor may it enforce any law which contravenes the terms of a treaty made by the national government. The national govern- ment, moreover, may conclude treaties covering matters on which Congress would have no right to pass laws. The right of foreign citizens to acquire and hold property in the United States, for example, is a proper subject of a treaty provision, althougli the regulation of land-holding in any state does not come within the legislative jurisdiction of Con- gress. If a treaty and a state law or state constitution are in conflict, the treaty prevails. If, however, a treaty conflicts with a national law, whichever is later in time will control, and the same is true as between two conflicting treaties. May the Senate amend a treaty laid before it b;. *he Presi- dent? It may, and sometimes has done so. In that event, however, the negotiations with the other country must be reopened in order that its consent to the amendineuts may be obtained. But it sometimes happens that th-^ nature of the Senate's amendments precludes any such agreement altogether. Thus *he general arbitration treaty of 1897 was thwarted by hostile nmendments. Not only may the Senate amend a treaty, but it may by resolution, either jf itself or jointly with the House of Representatives, request the President to open negotiations on any matter THE SENATE: ITS FUNCTIONS 167 with a foreign power. The President is of course under no legal obhgation to comply. Strictly speaking, the House of Representatives has nothing to do with treaties, but occasions may arise in which action on its part is virtually necessary to give a treaty effect. No money can be appropriated for any purpose, no laws passed, no changes made in the tariff, for example, without affirmative action on the part of the House. Trea- ties sometimes include stipulations that money will be paid, or that reciprocity in tariff matters will be granted by the United States. The treaty with Russia whereby the United States purchased Alaska in 1867 is an example ; likewise the treaty with Spain in 1898, which provided for the payment of twenty million dollars in connection with the transfer of the Philippine Islands. What if the House of Representa- tives had stood on its prerogative and refused to join in appropriating the money stipulated in the terms of these treaties? That is a very old v;onstitutional question, for it was raised and discussed in connection with the L,orisiana Purchase of 1803, and it has been debated several times since, but it is still an unanswered question because the House has, thus far, never failed to do its part.. The House has on more than one occasion asserted its right to refuse, but it has made no actual refusal. The best l(>gal opinion inclines to the view that while the refusal of the House to do its part in carrying out the provisions of a treaty after such agreement had been approved by the Senate and finally ratified would place tlie nation in an awkward pre- dicament, it would none the less be within the constitutional privilege of the House to take that stand. It is often said that treaty-making arrangements such as exist in the United States would be intolerable in any European land. In England treaties are mad(> by the Secretary of State for Foreign Affairs without the necessity of submitting them to any body outside the Cabinet. In the various countries of Continental Europe certain treaties must be submitted to the legislative chambers, but not the ones which require secrecy. .41liances and obligations of that nature have been made and assumed by the chief executive alone Hence it is that in things of the Relation of the House to treaties. The treaty- makine power and secret diplomacy. I-; (3) the power to trj- im- poach- mcnts. 168 THE GOVERNMENT OF THE UNITED STATES most transcendent importance, in things which are most likoly cither to bring on wars or to prevent them, the direct representatives of the people in European countries have had no immediate influence at all. Bismarck, the Iron Chan- cellor of the German Empire, once spoke of public opinion as the great enemy of efficient diplomacy." If that be true, American diplomacy can never be very efficient for public opinion must always be a controlling factor in it from a European point of view the necessity of secrecy in the making of treaties has been taken for granted, and secret diplomacy has been the tap-root of that continent's overwhelming catastrophes. The men of 1787 were prudent in their day and prophets in their generation when they raised in the New World an insuperable barrier against anything of the sort. At times, no doubt, the requirement that treaties must go before the Senate has been a stumbling-block. It has occasionally prevented the President from making a good bargain. It has sometimes compelled him to enter a diplomatic tussle with one hand tied behind his back. When John Hay was Secretary of fetate, he fumed against it as the weakest feature of Amer- ica s whole governmental scheme. But it has been on the whole a salutary provision. It has held rash Presidents m bounds. It has kept the nation on its course for one hundred and thirty years without a sin-]o entaiv-'in? alliance^ Of no other great country can that be saFd. Ihe Senate, as the constitution declares, iias "the sole power to try all impeachments." Several important ques- tions arise with respect to the scpe and incidents of this impeachment power. How did this process of impeach- ment originate? Why did -the framers of the constitution establish ,t in the United States ? Who may be impeached, for what offences, and what are the penalties in the event of convictioa? Does the procedure in impeachments differ from that of an ordinary trial by jury ? And to wha^ extent has the impeaching power been used in the national govern- ment of this country? ' 6"^'" in Se?FLt.r^ >• ''""'■^'r'^''-'' '^.*'"' ^'"''" ^"•'J^'^t i" that contain. . w THE SENATE: ITS FUNCTION'S 1G9 The impeachment is of EngUsh orisin. It dates back mto m(>diajval times, atul for many centuries before the development of Cabinet responsibility it aflForded the oniv means whereby any minister of tlie crown could be brought to account by the House of Commons. The Commons preferred the charges ; the House of Lords heard the evi- dence and gave its decision. Many high executive officials who used their power oppressively were brought up with a sharp turn m this way. An impeachment, however, should be clei^.^Iy di.stinguished from the enactment of a bdl of attamder," which was a way of condemning men U> death by ordinary legislative process, without formu- lating any definite charges or giving them any form of trial iiUs of attainder are prohibited by the constitution of the United htat^s, and they have long since become obsolete in England The impeachment procedure, on the other hand commended itself to the pioneers of the American political system as a necessary safeguard against the exercise of arbitrary power. They found difficulty, however, in deter- mining just how tiie English impeachment svstem could best be adapted to the needs of a purely n^presentative government. A well-constituted court for the trial of impe.dunents, declared Hamilton, "is an object not m.re to be desired than difTicult to be obtained in a -overn- -uent w^iolly elective. The subjects of its jurisdiction are those offences which proceed from the misconduct of public n.on, or. in other words, from the abuse or violation of some pub,;- trust. They are of a nature which may with peculiar pMpriety be denominated political, as they relate chiefly |0 injunes done to the society itself. The prosecution of hem, for t lis reason, will seldom fail to agitate the passions of he vyhoie community, and to divide it into parties more or less friendly or inimical to the accused. ... lu such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength o par les. than by the real demonstrations of innocence nlZ ^1"' '^Tu"" •* ''■^' «"gg««t^d that the impeachment poxver should be gwen to the Supreme Court, or to the ' The Federalial, No. fio. Its origin. Who may be impeached ? 170 IHK GOVERNMENT OF THE UNITED STATES Supreme Court and the Senate sitting together. But there were great practical objections to both t! alternatives. Would it be wise, for f-xample, to leave the duty of passing judgment upon tlic Pi, sident to judges whom he liad him- self appointed? So the convention decided to follow the traditional English practiic of allowing the lower house to prefer the charge,- niul the upper house to determine them. Its members w«re well aware that this was by no means an ideal arrangement. But if mankind, as one of the delrgates sagaciously e.xpressed it, "were to agree upon no institution of government until every part of it had been adjusted to the most exact standard of perfection, society would soon liecome a general scene of anarchy, and the world a desert." Who may be impeached? Only the "President, Vice- President, and all civil officers of the United States." The list of civil officers includes ambassadors, m ubers of the cabinet, judges of all federal courts, even postmasters ; but it does not include members of either branch of Congress, nor, of course, officials of the several states. Members of the Senate and the House may be expelled by a two-thirds vote of their respective chambers, but not impeached. They are not civil officers of the United States.' This was de- cided by the Senate in the famous Blount case (1797). Senators ;ind representatives are responsible to the states and to the people of the states. State officors may only be imjjeaclied in tlieir own states under such regulations as are provid'.'d in the state constitutions. A civil officer of the United States is liable to be impeached for any offence committed while holding office even though he should resign his post before the impeachment proceed- ings begin. That was one of the points made clear. in the Belknap case (rs76). Military and naval officers are not liable to impeachment, but are subject to trial by court- martial. The constitution also sots forth the offences for which » Notice, in corroboration of this, tl t v.ord; ,g of another c'ause in the constitution (Article I, section vi), whi. !i iKovides that 'no senator or representative shall, during the time for which h« was elect-.; he ap- pointed to any civil office." ' THE SENATE: ITS FUNCTIONS 171 a civil officer of the United States may be impeached ; For what but i* does not do this with unmistakable clearness. The '>^^°'**^ prou' is for impeachment, as therein stated, are "treason, l)rilit ry or other high crimes and misdemeanors." The first two words of tliis phrase are definite enough, buv the ronuiiniiiK part of it is ambiguous and has given rise to siinic dilTcrenccs of opinion. In general, however, it is now understood that civil officials are not to be impeached except for offences of grave misconduct or malfeasance in office. Ine ficiency or partisan favoritism or the abuse of an official's discretionary authority are not accounted pronnds for impeachment although they may afford reason for an officer's removal by +he President, except in the case of the judges. When an officer is convicted by the Senate in an impeach- The mcnt trial he cannot be punished to any further extent p<«"»'**«* than removal from office and disqualification from ever holding a federal position again. He cannot be put to death, imprisoned, or fined. But conviction upon impeach- ment does not prevent additional proceedings against an official in the ordinary courts of the land if he has committed an indictable offence, and such penalties may be imposed by tliese courts. A two-thirds vote of the Senate is necessary for a conviction, and no pardon from any human source is possible in the case of one convicted on impeachment. The procedure in impeachments may be briefly outlined.' The nro- First, the accusation is made by some member of the House <=«<*""• of Representatives from the floor of that body. A committee of the House is then appointed to investigate the charges. If it finds that an impeachment slior.ld be proceeded with, the committee so reports to th;* Home and the latter may vote to accept this recommoudation. In this case the articles of impeachment are scut to the Senate. The Senate has no discretion as to whether it will accept these articles or not. It merely sets a date for the trial and furnishes the accused official with a copy of the charges preferred against him. In hearing an impeachment the Senate sits as a court, the senators being "placed on oath ' ^^- Simpson, Jr., A Trealiae on Federal Impeachments (Philadelphia, 1916). MAl MICROCOPY RESOIUTION TEST CHART (ANSI ond ISO TEST CHART No. 2) 1.0 !f" I.I 2.8 3.2 13.6 1 40 m 2.2 2.0 1.8 _J ^PPLIELJ IIVHGE Inc ^^ 165:5 East Mom Street rJS Rochester, New Tori, i*609 USA iSS (716) 482 - 0.300 - Phone aaS (716) 288 - 5989 - Fox 172 THE GOVERNMENT OF THE UNITED STATES [i n Famous impearh- ments. Blount. Belknap. Johnson. or affirmation," as the constitution , requires, before the proceedings begin. The Vice-President of the United States presides on this as on other occasions in the Senate, except when the articles of impeachment are directed against the President, in which ca.se the Chief Justice of the Supreme Court presides. This provision is made for an obvious reason. The Vice-President would not be an appropriate presiding officer when tlie outcome of the trial might deter- mine his own promotion to the presidency. In impeach- ments the usual rules of evidence are ()l)served : the accused official is allowed to be heard in his own defence, he may summon witnesses and have his own counsel. The proceed- ings are public until the senators begin to vote upon a ver- dict. Scrupulous pro\ision is therefore made for fairness and impartiality. In all there have been nine federal impeachments, only two of which have come within the last forty years. Only three have resulted in convictions. The most notable cases were those of William Blount, senator from Tennessee, in 1797, Andrew Johnson, President of the United States, in 1868, and William W. Belknap, Secretary of War, in 1876, all of whom were acquitted. Senator Blount was charged with having a part in a conspiracy to stir up troubles in the Floridas and Louisiana, which at that time belonged to Spain. The Senate, after receiving the charges, expelled him from its membership, but refused to convict him on impeachment, holding that he was not a "civil officer of the United States." Secretary Belknap was charged with the acceptance of bribes from an officer whom he had appointed to an Indian post-tradership. Belknap resigned before the Impeachment proceedings began, and President Cirant accepted his resignation. The point was raised that, being no longer the occupant of a civil office, the accused was now a private citizen and not subject to impeachment, but the Senate overruled this claim and proceeded with the impeach- ment. In the end Belknap was acquitted. Tlie charges against President Andrew Johnson in 1808 were eleven in all, most of them having fo do with reputed violations of the Tenure ^>i OlTice Act which Congress had passed over the President's veto in 1867. The trial was conducted --. Tr-.^"-^.»r"- 5f! THE SENATE: ITS FUNCTIONS 173 during the month of March, 1868. At its conclusion the Senate voted thirty-five to nineteen for conviction, but this was one vote short of the required two-thirds. It was a close call. In the autumn after Johnson's acquittal the next presidential election took place, and the accession of CJrant put an end.to the highly strained relations which had existed between the executive and legislative branches of national government. The most recent instance of a federal impeachment occurred in l912 when a judge of the short- lived federal Commerce Court was impeached. The charges related to the acceptance of bribes from liti- gants in his Court, railroad officials, and attorneys practising l)efore him. In this case the accused was convicted and removed from office.' An impeachment procedure is at best a cumbrous and costly proceeding. It is not a method to be used if there is any simpler way of securing an officer's dismissal. But in the case of judges, or of other civil officers whom the President may decline to dismiss, an impeachment is the only other way of securing involuntary removal. Of tlie nine impeachments, six have concerned members of the Icijeral judiciary, and three of these ended in convictions. The three special functions of the Senate, — confirmation The author- of ai)pointments, approval of treaties, and the trial of im- "'^ "' '*■" peachments — have combined to give it dignity and prestige Suon. as well as power. The Senate, however, in add'ion to these special prerogatives, is a regular branch of Congress, shanng with the House of Representatives the function of making the federal laws. With one important excep- tion its legislative authority is coordinate with that of the House. Thi.= exception relates to measures for raisin<; the revenues, all of which, by the terms of the constitution, Money must "originate in the House of Representatives; but '''"''• the Senate may propose or concur with amendments as on other hills." This devolution of the initiative upon the popular branch of Congress was one of the concessions made to larger states by the First Compromise. It was 'For (lata poneernitiR thrso various impea<-hmpnt trials see the Cydo- n u ''•'.'^""''•''•''" Oovernwrni (edited by A. C. McLauRh'in and Albert Bushndl Hnrt, .i vols., N. Y., 1914), pasHm. J^^^^^S^mStT^mm^^TW Lej^slativo powers of the Senate and the House are substan- tially co- ordinate. DisaRree- menta between the two chambers — how settled. 174 THE GOVERNMENT OF THE UNITED STATES in imitation of the English parliamentary rule v u. h how- ever, goes a good deal further, in that it gives ti.e House of Commons the sole rijht to originate all money bills, whether relatmg to revenue or to expenditure.' In the United btates the hmitation upon the Senate's authoritv, as ex- pres.sed m the constitution, has not prove.! to be of great importance, for the Senate -an virtually initiate new revenue proposals under the guise of amendments. On the other hand, while the constitution of the United States is silent as to which chamber shall originate bills for spending monev thus creating the presumption that they mav originate in either, the practice has been to leave this function wholly m the hands of the House. Usage lias made this an un- written law of con.stitution. In all other matters the powers of the two chambers, both by the constitution and by usage, are equal in scope! ^o bill can become a law without the Senate's approval. At various times and on var. us matters one chamber or the other may have the greater a p.ount of legislative influ- ence because of its better organization or stronger hold upon public opinion. The Senate, being the smdler and more wieldy body, usually has this advantage. If the two chambers fail to agree on any measure, one or the hv Knt';!" ^r'' '^'''^' "' * ^«™P''»"^i''« must be arranged by both receding in part. This is effected bv means of a conference committee, representing both chambers, and made up of three mombcTs from each. In these compro- mises the isenate has the reputation of usually getting the bet er of the bargain, t^ j,, f„, ,i^^ ^J ^ ^ sented on conference committees by stronger personalities, and as a ru e it gives its co.iferees a firmer degree of support. Senators, too, are more experienced legislators, on the average, than are the members of the House. Many of them have served terms in the lower chamber before ])eing all the subtleties of legislative practice. The older senators ^vao guide the upper chamber in its work, regard themselves ZrTTt^!'' il'^ '"'"'" "^ lawmaking, whereas the mem- bers of the House arc to be reckoned rather as mere ' See below, p. 306 n. THE SENATE: ITS FUNCTIONS 175 amateurs, serving a tv.-o-yoar term only. They are legis- lative birds of passage, as it wore, who abide thoir destined hour and go their way. Even upon the President, as Woodrow Wilson remarks, the older members of the Senate look with "unmistakable condescension." If the Senate has at any time been an imperium in imperio, it is not that the coii.stitution, laws, or usages of the land have made it so, but because it is a more compact body than the House better organized, more tractable to leadership, and less subject to fluctuations of opinion. CHAPTER XII The "popular branch" of govern- ment. The basis of repre- sentation in the House. THE HOUSE OF REPRESENTATIVfCS : ITS COMPOSITION The House of Representatives was intended to be a reformed and popularizod House of Commohs. It was designed to be a very different chamber from the Senate in that It should represent not the states bat the people of the states. In the original frame of government it was the only authority so constituted as to obtain its mandate directly from the people. The other agencies of the new government, the President and the Senate, were to be chosen by indirect election. Hence the House ,f Representatives was from the first designated as the '"popular branch." It was assumcJ as a matter of course that any such body, directly elected, would be radical, impulsive, vacillating 1 he provisions relating to the organization and powers of the House were avowed concessions to the principles of democracy, made rather reluctantly by some members of the convention, but regarded by all as a practical necessity, ic establish a government with no branch of it directly responsible to the people was out of the question. In all the colonies popular assemblies had grown up and all the states in 1787 had provided for at least one such body in their new legislatures. In view of tlie bitter protests which had been raised against taxation without representation in revolutionary days, moreover, the claim of the people to direct representation in that branch of Congress which was to have the initiative in taxation was one which could not well be denied. The constitution, accordingly, provided that "the House of Representatives shall be composed of members chosen •jvery second year by the people of the several states " In accordance with the compromises which had been agreed 176 HOUSE OF Ri:i'RESENT\TIVES: ITS COMPOSITION 177 upon, it was further stipulated, first, that the several states should be represented according to their respective populations, and, second, that in estimating this popula- tion all other than free white persons were to be counted on a three-fifths basis; in other words that negro slaves were to be counted at only sixty per cent of their numerical strength. The first House of Representatives was to have sixty-five members, distributed among the states in a way which was assumed to be roughly proportional, but a census was to be taken forthwith and a redistribution on a more accurate basis was to be arranged on these figures. Further provision was made that a similar redistriCing should take place after every decennial census, but that the House should never contain more than one member for every tliirty thousand population. No state, nevertheless, was over to be left without at least one representative. Within these limits the size of the House is fixed by action of Con- gress. As to who should have the right to vote at congressional who vote elections, the framers of the constituticn did not venture "*•*?" to decide. There were at the time the widest differences ^\Tom7 among the thirteen states in the matter of suffrage require- ments, and it was not deemed advisable to impose upon any of them a general provision which might be out of accord with their own practice. Hence the convention grace- fully evaded the diflicult question by leaving it to be settled by the state constitutions. Thi>., to be sure, waj not the logical thing to do when so much care was being bestowed upon the proper adjustment of miner questions, for the suffrage is one of the fundame itals of free government. Yet it was the best of the practical alternatives. To have reduced the diverse requirements of the several states to one uniform rule would have satisfied nobody. To have left the matter open for Congress to settle would have vested in that body the power to create an oHgarchy by law. Nor could the determination of the suffrage at congressiona elections be left, without restriction, to the legislatures ot the various states, for that would ave made the federal House of Representatives too dependent upon the state Itgislatures when it was designed to be responsible to the =VE^' 178 THE GOVERNMENT OF THE UNITLu STATES Citizen- ship and the right to vote are two (lifTcrcnt things. One is a the other a itate matter. people alone. Hence the provision which was finally ac- cepted seemed to the builders of the constitution "to be the best that lay within their option." Each state, accord- ingly, determines by its own constitution who may vote at elections held to choose "the most numerous branch" of Its own state legislature. The.so same voters, whoever they may be, must receive the right to vote at congressional elections. On this local discretion, however, one important restriction is now imposed, namely, that there must ' - no exclusion of citizens from voting rights because of ce, color, or previous condition of servitude." This li .tion is imposed by the Fifteenth Amendment. If any state withholds voting rights from any adult male citizen of the United States "except for participation in rebellion, or other crime," a reduction may be made in the congressional representation from such state. This provision, it may be added, has not been enforced. There is a clear distinction, as has been already pointed out, between citizenship and tho right to vote} In the popu- lar mind the two things are often confused, but they rest upon entirely different legal foundations. Citizenship does not necessarily carry with it the right to vote, nor, on the other hand, is it always necessary for one to be a citizen in order to be a voter. Th, usands of American citizens, women, residents of the District of Columbia, untaxed Indians, to give a few examples, have no right to vote, while tliere are thousands of voters who are not American citizens. Iherc IS no requirement that only citizens shall vote at national elections, and in several states of the Union a decla- ration of intention to become a citizen, which is something far short of actual citizenship, is all that is required. In a dozen or more states of the Union, moreover, women are permitted to vote for the election of congressmen; while in the remaining states they have not been given that privi- lege. All this ought to impress upon the reader's mind the fact that citizenship is a matter o{ federal jurisdiction, while the suffrage, as the constitution now stands, is whollv a matter of state control. The national government determines ' See above, p. 78. HOUSE OF REPRESENTATIVES : ITS COMPOSITION 179 who may become citizens and under what conditions. Each sti'*»^, on the other hand, determines by its constitution and ill .vs w)io shall have the right to vote at all elections, whether ni'tional, state, or municipal, subject to tlie restrictions contained in the Fourteenth and Fifteenth Amemlments. The constitution of the United States as has been already sliown, docs not treat the right to vote as an inalienable right like the right to freedom of speech or to trial by jury. It deals with it rather as a privilege which may, under cer- tain broad restrictions, be given or denied, ii arrowed or widened, by the several states at their own discretion and upon considerations of expediency. The result is that the suffrage requirements at congres- The actual sional electi'ms are not alike in any two states of the Union, f"*!'?^ ... ** ^ require- or, it tliey are, the identity is by mere accident. Some ments. states, as has been said, demand full citizeiisliip ; others only a declaration of intention to become a citizen. Some require a longer period of residence than others, the time ranging from three months to a year; a few exclude all persons who are unable to read and write. Some require tliat a voter shall be a taxpayer or at least shall have been assessed as a taxpayer. Most of the states exclude paupers, criminals, and idiots, vith varying degrees of strictness, from tlioir electoral lists. The most important difference of all is to be found, ho- ■■ n the fact that some states have opened the suffra^ i en while as yet the majority of the states have ix„, so. About the only requirement that seems to be tim.jim in every one of the states is the rule that a voter, wiiether male or female, must be at least twenty-one years of age.^ No definition of American suffrage requirements can. The gradual therefore, be given in general terms. Manhood suffrage pf'Xe''"' is noL the rule, although it comes nearer to being the rule sufTraRe. than the exception. Between the suffrage as it existed in 1787 and the suffrage as it exists to-day, however, there is a world of difference. The process of widening has gone a long way, not steadily, but by fits and starts. When the national constitution went into operation, property or ' The detailed provisions relating to the suftrage in all the states may !>e found in the Cyclopedia of American Government, iii, pp. 449-456. 180 THE GOVKRXMENT OF THE UNITED STATES existed in most of or, at any rate, How voters are regis- tered. taxpaying qualifications for voting the original states. The lugroes, the great majority of them, being in bondage, were not allowed to vote although they were counted on a sixty per cent basis in determining each state's quota of repre- sentatives in Congress. Women were nowhere entitled to a share in the elections. The potential voters formed but a small percentage of the adult population.' During the past one hundred and thirty years all this has changed. Beginning with the era of Jacksonian democracy the prop- erty qualification went overboard. The constitutional amendments of the reconstruction period forbade all suffrage discriminations against the negro and provided, moreover, that he should be counted at full value in determining the apportionment of repre.sentatives.' And finally, a genera- tion or more later, came the extension of votinir privileges to women, a movement which has been gaining impetus in recent years. Not only are the suffrage requirements different in the several .states, but the machinery for registering or enrolling voters varies from place to place. The most common plan is to require every voter to present himself before a registrar or some similar official and there to take oath that he is qualified by citizenship, age, residence, and what- ever else the laws of the state may demand. This regis- tration takes place at designated places and on assigned dates some time in advance of each election, and from the registration books the voters' lists are compiled. Usually the same lists are used at all elections, whether presidential, congressional, state, or municipal, but this is not always the case. Occasionally it happens that a state allows women to vote at some elections but not at others ; as, for exr.mple, in Illinois where they now have the suffrage at presidential but not at congressional elections. Ordinarily no one may vote whose name is not on the ''st as a qualified voter. The constitution does not squire that members of the federal House of Representatives shall be elected by con- ,t>1-{^'a^,' ^"^^-Y' '^"•^'■«!'« Franchise in the Thirteen English Coloniet (Fmlaaelpnia, 1905). ' See above, p. 79. HOUSE OF REPRESENTATIVES: ITS COMPOSITION 181 f^rcssional districts or by socret ballot or in all states on the Congrei^ same day. But the federal statutes have now established ^^Jricu. these requirements. The district system is now universally used except in cases where a state legislature has neglected to make provision for a division or redivision into districts, in which case all the congressmen from such st.ite are elected at large T.iis function of districting is devolved by Con- gress upm the legislatures of the several states, but there is no way of compelling a legislature to assume this duty. Wlien a legislature proceeds, however, to the work of divid- ing the state into congressional districts, the only limitations imposed upon its discretion are that these districts must be approximately equal in population and must not be made up of scattered units of territory. All the territory within the limits of any congressional district must be contiguous. The arranging of congressional districts, each of which How elects one representative, is carried out as follows : After *='**'«*• tbe national population has been ascertained by a decennial census, Conjrress by law fixes the number of members to be elected to the House of Representatives and then figures out the "ratio of representation" for the whole country; that is, the uniform quota of population which is entitled to elect one representative. This is done by dividing the total population by the number of members in the House. After tlie census of 1910 the size of the House was fixed at 43.5 and the ratio of representation was found to be The ratio of somewhat above 200,000, since the total population of the Jl^n"^"*"" country was 92,000,000 or thereabouts. The limit ^'xed by the constitution upon the size of the House is absurdly high, namely, that it shall not exceed one member for every thirty thousand population. Were this limit reached to-day, the national House of Representatives would have more than three thousand members. The country's population has grown, therefore, beyond the wild<»st anticipation of its Fathers. The exact size of the Hov- .e is fixed every ten years fa - below the constitutional limit and at such a figure as Congress may determine. Under this arrangement the House has been steadily growing larger. In 1789 it started with only 65 members ; in 1S20 it had 213 ; in ISSO 182 THE GOVi;UN.ML\T OF THE U.MTEi.> STATES A|)|>orti(in- iiiK roprt'- llllirillK ilu> iit:ite!<. Prinriples on wliiih (li-'tiifi.-i ail' ha.iod the number had ris»'ii 1o 292 ; in 1000 it wa« 386, and if now stands at 435. It is, therefore, more than four times as large as the Senate. It is l)e(oming so unwieldy, in fact, that the periodical increasing of its membership must before long come to an end. Having found the ratio of representation to be 200,000 or thereabouts, it becomes a simple matter to determine how many representatives each state shall have. If Rhode Island has about six hundred thousand population, it gets threr ; while Xew York with ten millions of people would get fiftv. But no state, liowever small its population, may ever be oft without at least one representativo. The constitution malces that rule. Four states, nam* v, Vrizona, Delaware, Nevada, and Wyoming, would be witliout a single repr(>- sentative were it not for this provision, l)ecause tlie popula- tion in eacl\ is below the ratio. In the larger states con- siderable changes take place every ten years. Some gain rapidly ; others stand still or even lose. Hence some receive additional representatives after everj' census, while others have their quotas reduced. Tliis means that every ten years the congressional districts within each state must be mapped out anew, or, as it is commonly termed, a "redis- tricling"' must take place. This work of rcdistricting a state, when it gains or loses representatives, is nominally oerformed by the state legis- latures, but in reality the task is deputed in the first instance to a legislative committee appointed for this purpose. The recommendations of this committee then go bcfo/e the legis- lature and are there acted upon. So far as practicable, an efTort is made to respect local boundaries by placing a whol<^ city or town in one congressional district, but at times it becomes necessary to f'ace one part of a municipality in one congressional district, while the r,-.naining part goes into another. In large cities it \ thought desirable, also, to respect the ward boundaries, and in great rural areas the aim is to put whole counties into the same district wherever it is practicable to do so. To accomplish all these things and yet have districts approximately equal in popu- lation is sometimes quite a problem. The task of redis- trictinc; is one requiring careful studv and absolute fairness. HOUSE OF REPRESENTA riVES : ITS COjMPOSITION 183 Too oftrn, unhappily, the work of redistricting a stui Tb« is performed with neither care nor impart iiiHty. State o?'!'^™^. legislatures are partisan boilies, and so are their committees, mamicr- Hecaiise of their partisanship the attempt is often made "* ti; so lay out the districts that the interests of the dominant pnlitieal party may be served. 'ITiis practice of "gerry- niaiiderinj!:" is more than a century old; it took its name lioni Ciovernor Elbridjje Gerry of Massachusetts, who apparently sanctioned one of the first flagrant cases of parti- s;m district-making in that state.' By adding one county and taking off another, by shaping the «iistrict in some iiiinatural way, so that in configuration its nearest resem- i)lanoe may be to a lizard or a starfish, it is quite possible to make the area yield a comfortable r ajority for the candidate of the right political party. . ,• hostile votes, on the other hand, ran be "hived" or massed into a few districts which are likely to go to the opposition party in any event. The gerr>'mander has been a perni( ious factor in American politics, but of late years popular sentiment las been developing against it. This resentment now reacts a I times again.st the party which performs the work of re- districting in a way that is flajrrantly unjust to i*s minority opponents. The congressional districts having been fixed, they rep>ain unaltered for ten years, or until after the next decennial c(ib'i> Each district elects one member of Congre!r .Massachusetts w.iich Benjamin Russell, an ardent Federalist and editor of the Teiitincl,' hung up over his desk in his office. The celebrated painter, Gilbert Stuart, coming into the office one day and observing the uncouth figure, added with his pencil a head, wings, and claws, and exclaimed, 'Tluit will do for a salamander!' 'Better saj' a Gerrymander!' growled the editor: and the outlandish name, thus duly coined, soon came into general currency." 184 THE GOVERNMENT OF THE UNITED STATES i,| Contested ii elections y are ready to join in the hue and cry against the "carpet-bagger" who corses in from outside. Every ilistrict, moreover, wants a share in the annual appropria- tions for post-offices or for the improvement of rivers, har- l)ors, or roads, and the general feeling is that a local man can best discern the local needs. Hence, although the constitution intends the House of Representatives to rep- resent the people of states and not the people of districts, the unwritten rule as to district residence has narrowed the horizon of the members to the bounds of their own com- iiiuiiities. All this suggests ? query as to the proper function of a The un- written law aa to district residence. English and American usage on this point. Why the American voter insists upon resident candidacies. 186 THE GOVERNMENT OF Till- UNITED STATES The losiral fiinr'tiiiii of a roprc- bontativc. A roncretp example. The dictum of IJiirkp. popular representative, whether in Congress or in a state legislature or in any other elective body. Is it his duty to act in accordance with the dictates of his own judgment and in obedience to his own conception of the general wel- fare, regardless of whether this may reflect the opinion of his own particular district? Or, is the sole function of a representative to represent, in other words to discover, what his district desires and to be governed accordinglv? These are fundamental questions of duty wh.ch every representative must face. A legislator may, for instance, be personally opposed to the use of the initiative and refer- endum as a method of making laws, and may sincerely believe this movement to be at variance with the best interests of the whole country. Yet if a majoritv of the voters in his own district be known to him to favor tlie initiative and referendum, how shall he vote upon the project in Congress or in the legislature? Shall he stultify his own judgment and convictions, or shall he disregard the logic of his own status as a popular representative? Is it conscience or constituents that should determine hi'=i vote ? Congressmen are often confronted by this dilemma. Students of political philosophy, too, have long wrestled with the fundamental question but have reached no agree- ment upon it.* It may not be inappropriate to quote in this connection, however, the famous dictum of Edmund Burke in his address to the electors of Bristol when he defended certain unpopular votes which, as their repre- sentative, he had given in the House of Commons. "I maintained your interests against your opinions," he de- clared. "A representative worthy of you ought to be a person of stability. I am to look indeed to your opinions ; but to such opinions as you and I must have five years hence. I am not to look to the flash of the day." ' The idea that a representative should reflect the sentiment and desires of his district rather than his own judgment or inclinations is, nevertheless, firmly bedded in the average .American voter's mind. ' For a further discussion see J. W. Jenks, Principles of Pnliticn (N. Y., 1909), pp. 76-80. HOUSE OF REPRESENTATIVES: ITS COMPOSITION 187 'I'he House of Representatives holds cne session eacii vcar, so that there are two regular sessions between (■'lections. These two sessions, howf^ver, are not of equal l('iicember and concluding not later than the following fourth ol March ; the other is a longer session, beginning in De- cember of the year following and extending through July or August. The House assembles for its short session soon litter the congressional elections ;ake place in the even- iniml)ered years ; but the newly elected congressmen do ii(»t take their seats at this session because their terms of iifHco ilo not officially begin until the following March. Ileiice it is normally thirteen months after his election before a n(>w congressman actively begins his legislative duties. It is unfortunate enough that a new President, elected in November, should not take office till the following March, l)Ut that congressmen should not begin their actual service until still another nine months have passed seems to involve an inexcusable departure from the realities of representative government. It means that for thirteen months the busi- ness of legislation and the spending of public money may remain under the control of men who have been defeated at the polls. Large appropriations are sometimes carried through by the votes of congressmen who have been defeated tor reflection. Moreover, the present arrangement means that although a representative serves for two years only, the interval between the beginning of his campaign for a nomination and the close of his actual service in one Congress is almost four years, during all of which interval he nnist give a large part of his time to the public. To earn two year- ilary requires nearly four years of effort. The two-year term for which representatives are elected is too short for the best results. Members of the popular chamber in every other country serve a longer period. The system of biennial elections was adopted in America at a time of strong partiality for short terms, and if some of the delegates" in the constitutional convention of 1787 could have had their wav, the congression:il term would have been one year only. It is quite true that congressmen ■ire fn quently neltfcte-l, and that some of them manage .Sfssioiis of the House. The long interval Iwtwoen ;i rongresK- nian'rt elee- tion and the tjenin- ninK of his active duties. Should ronitress- men l)c phown for longer terms ? IM Effect of short terms upon oo.i- (Sressional leadership. 188 THE GOVERNMENT OF THE UNITED STATES to retain their seats for ten or twenty years ; but that is exceptional. A great many are retired to private life after one or two terms, before they have had a real opportunity to demonstrate their capa. ity as legislators or even to acquire much famihanty with national problems. The frequency with whicli the elections come, moreover, is distracting in Its effects. A congressman who manages to retain his seat has u double contest on his hands every second year, a fight with his political friends for the nomination and another with his political enemies for election. The political exigencies of his own district, therefore, are always before his eyes, and the opportunity to see national affairs in a broad light is correspondingly restricted. The few members who manage to secure reelection to Congress term after term become, therefore, its recognized loaders although they may not be fitted for that r61e by natural capacity. Seniority of service determines the chairmanships of important committees and gives to the few congressmen who have been repeatedly reelected an influence which their own merits would never earn No other practice, as Lord Bryce has p.mted out, could more efioctually discourage noble ambition or check the growth of a class of accomplished statesmen. There are few walks ot lit(> in which experience counts for more than in politics. Ao one comr^ to Congress with an intuitive knowledge 01 what to (lo. The new member is handic^Dped by the complexity of the rules and by a natural disinclination to push himself too far forward until he has acquired a sure foot- ing, l^ar from making the House a democratic body, re- sponsible to the fluctuating pulse of public opinion, the short term has in reality tended to centre its great powers m the hands of a few old-timers, while the great body of newer members have to be content with a minor share in the determination of legislative policy. The situation in this respect is not now so bad, however, as it was before the congressional revolution of 1910.' The debate.s in the House of Representatives are not of a hiffh order. Nor are they a« good as they used to be. This IS in part due, no doubt, to the great size ' See below, pp. 197-198. '^'"lEits.r: '2T'^^:mmr^i^;r^ HOUSE OF REPRESENTATIVES: ITS COMPOSITION 189 of the chamber in which the sessions are held. Only a leather-lunged orator can make himself heard in every part of it. "It does not always happen that a powerful mind and a powerful voice are combined in the sanu individual, and often the member with the real message cannot be heard, while the member with nothing to say has no difficulty in filling the chamber with sound. This condition tonds to develop a manner of speaking that is gladiatorial and declamatory . . . and except on occasions much too rare lae House does not strike the spectator in the gallery as an impressive body." * Prior to 1909 the situation was much worse, but since that time the auditorium has been reduced in size. The acoustic facilities of the Hcmse remain, however, the worst of any great legislative chamber in the world. To some extent, again, the paucity of good speeches is duo to strict limitation upon the time that any speaker may keep the floor, and something may be credited to the custom of allowing a member to have his speech printed in full without deliv'ering it at all. "^Vhy should a repre- sentative make long speeches, or why should others listen to them, when it is so easy to place an argument in printed form, at the public expense, into the hands of every one? Members, therefore, ask for "leave to print" or to "extend in print" a few remarks made on the floor, and this request, while it must be unanimous under the rules, is usually Srantod. Copies of such speeches, printed without ever having been delivered, are then struck off by the thousaiid ami sent through the mails, free of postage, to the voters of the districts from which the congressmen come. The "franking" privilege, or right to make free use of the mails for all official business, has been grossly abused in this way. Magazine articles and even whole books have sometimes boon reprinted and distributed broadcast by congressmen at the public expense. Those things contribute to the absence of much genuine oratorical effort in the House, but they do not account for it ontiroly. Tlic stupendous mass of routine business which comes before the House day after day is the great deterrent ' S. W. McCall, The Busineas of Congreos (N. Y., 1911), pp. 108-109. The Btanrfards of debate If the House. Chamljer not well adapted to forensic argument. It is easier to print spoechea than to deliver them. 'I'lic pre.s- siirp of ri>iitiiio Iiirsiiicss loavoM little timp for s|»oorh- iiiakiii';. 19U THE GOVERNMENT OF THE UNITED STATES to prolonged deliberation. The merely meclianical work of putting the grist of bills through their various stages takes a great deal of time. The last Congress, at its two sessions received more than twenty-six thousand bills, not to speak of joint resolutions, concurrent resolutions, and reports by the hundreds. Of this total the great major- ity never received any serious consideration, even bv a sub- committee, Init of tliose which did receive consideration about seven hundred public bills an.' seven thousand private bills wore finally passed. If there >vere an earnest consider- ation of every measure, the House would never get its work done by sitting twenty-four hours tliroughout every day in the year. Routine business, therefore, must have the right of way. Discussion iuis been transferred to the committee rooms, and it is only on matters of unusual importance that a real debate takes place on the floor of the House itself Hcnnn the popular l^ranch of Congress differs greatly from the House of (Emmons, where the art of public discussion has not yet become wholly obsolete. mBm >'jk.-^'fM....lSSif.!M-^ dib^/i^ CHAPTER XIII THE HOUS.; OF RKPRESENTATIVES : PROCEDURE ORGANIZATION AND When a new House assembles, its first duty is that of How the organizing. The roll is called to determine the presence ^""'* of a constitutional quorum. During this proceeding the clerk of the last House presides. Then the election of a Speaker is in order. The House also chooses its other officers, including the chaplain, sergeant-at-arms, clerk, and doorkeepers. The rules, usually those of the preceding Congress, are then provisionally adopted to stand until altered ; the oath is administered to the members, and the House is then ready to proceed with the business of legis- lation. At this point the lower chamber joins with tne Senate in sending a committee to notify the President that both bodies are ready to receive any communication he may desire to make. The House of Representatives has full power over its The House own rules of procedure. The first House, in 1789,. adopted "'''*''• a set of rules based largely upon those which had been used in the Congress of the Confederation. These, again, had been modelled on the rules of the colonial assemblies which harked back to the procedure of the English House of (/ommons. Each succeeding House since 1789 has re- adopted these original rules with various changes from time to time. On a few occasions there has been a considerable revision, but many of the provisions which were adopted in 1789 remain su' stantially unaltered at the present time. The rules of Congress, therefore, are not the work of any one man. They are an evolution, the growth of many centuries of legislative experience. Some of them, as, for example, the provision that a bill shall be given three read- w The Speaker. Origin of hu oiScc. Attributes of the •Speaker's nPTirt^ in 192 THE GOVERNMENT OF THE UNITED STATES Ir/K^T \u^^ '''"^ ^P' ^" ^"SHsh parliamentary history. In 18.37 the House adopted a provision, which is still in force, that it should he guided by JeflFerson's famous parlia- mentary manual in all matters not covered by its own rules and not inconsistent therewith, but this compendium is not now referred to very frequently.' The House rules and he precedents cover practically everything that can possibly arise.^ •' o The Speaker Is the presiding officer. The men who framed the constitution decided without much argument ha the House should have such an official, chosen by itseW thus p.i-pe^uating m the New World a post that had ac- quired a tradition of democracy in the Old. In Enelish parliamentary annals the Speaker had more than once t Ho ' f the crown. On one occasion well known to audents of Engish constitutional history, for example, Char es I strode into the House of Commons with a body of soldiers to seize five of its members and demanded that the Speaker point them out to him. But the Speaker with unconquerable self-assertion merely replied that he had neither eyes to see nor tongue to speak save only as this House shall command."' The speakership was in due course transplanted to the colonial assemblies in America and here also its tradition continued good. So there was tia '"th: H '" -'f '^"^-n of the United States a pro'Ii Speaker" "' ^^P'-'^^^^^at. /es shall choose their own But the office of Speaker in America presently came to differ from that which had so long existed in the land of !.1w:"'';;- k" ''' ^''"^^ '' ^""'--^ the Speaker I and elcenTthn' Tk "^^'^ f'^^'^'^'^^S officer, with no powers except those which one ordinarily associates with the chair- ' S. W. MeCall, The numness of Congrens (N. Y., 19in d "i^t slth S^e'ss TSn.'"'''''^ "'''' "' "''"^^ ^-"-^''t. No. 355.' ;■ Josiah Iloyee, in his Philosophy of Loyaltu CN V lono^ „.» = ♦i.- u..dent as a conspicuous historical eUpleoMy la cS Z^^ ORGANIZATION AND PROCEDURE 183 mansliip of any gathorins. Ho has a few honorary functions and privileges, but they are of no political account. Usually he is a man of political distinction and long parliamentary service, but not one who has been overmuch in the public eye as a party leader. Above all things, he is expected to bo fair, tactful, and firm in the discharge of his duties, and absolutely neutral, never giving members of his own party an obvious preference nor allowing himself to be drawn into the thick of partisan controversy. The English Speaker is commonly roelectoH by his constituency to successive parliaments without opposition and often serves for a long term of years despite changes in the political complexion of the House. He appoints no committees, and his posi- tion is certainly not one of either open or covert leadership. His position, in fact, comes as close to absolute non-partisan- ship as is possible in any legislative body.* In the colonial assemblies of pre- Revolutionary America Devciop- tho office of Speaker soon began to show the effects of a m"'V'^'*'* now environment, particularly as political controversies office in grew acute. Men bke Otis and Randolph, vho served as -^°>"'<''»- speakers in Massachusetts and Virginia, could not constrain themselves to any attitude of scrupulous neutrality. In the (lays of passive resistance they perforce assumed the func- tion of active leadership. A\Tiether the makers of the constitution, when they gave the House of Representatives the right to choose its own Speaker, had in mind the Eng- lish or the colonial model is not easy to say, for they were quite familiar with both. They were also familiar with the position held by the presiding officer of the Congress under the Articles of Confederation. In the absence of an independent executive this personage had been the highest officer of the confederated government. At any rate the constitution places no restrictions upon the office, and in the course of time the Speaker of the House began to gather power into his own hands. Ultimately he became the most powerful figure in national administration, next to the Presi- dent himself.^ 1909) • Michael MoDonaRh. The Speaker of Ihe House (London. 1914). ' M. R. FoUett, The Speaker of the House of Representatives (X. Y. 104 THE GOVERNMENT OF THE UNITED STATES finmiirf- wnrk of SiM'aker'* powers. How the SiK'nker is chosen. Why and how did this development take place? Well, to begin with, it arose out of tne fact that the constitution provided the House with no oflBcial leadership. Apparently the statesmen of 1787 took it for granted that both Houses of Congress would be able to do their work smoothly with- out any official leadership, a strange assumption as it appears at this day. The House was a small body to start with ; at first it had only sixty-five members, or about two-thirds of the Senate's present membership. But it grew rapidly with the increase of national population. In twenty years it had doubled in size, and before the Civil War it had doubled again. Even then it had only about two hundred and forty members, to which it has since added nearly two hun- dred more. With this growth, and with the increase of busmess to be done at every session, the need of a steering hand became steadily more urgent. This function could not, as in England, devolve upon members of the Cabinet because they did not possess seats in the House. What more natural, therefore, than its gravitation into the hands of the Speaker as the only conspicuous officer provided by the constitution to be chosen by the House itself? That, at any rate, is what happened. The Speaker became the recognized leader of the majority party, chosen virtually by the caucus of that party, and one who could be depended upon to use his offis o for its benefit. A word as to this caucus method of selec. g the Speaker. In name the clioice is always made by the House itself at the beginning of each Congress, that is, every second year. In pr. tice, however, it is always agreed upon, before the House meets, by a caucus composed of members of the majority party. To be chosen speaker is a high honor, one which goes only to a m.an of considerable experi- ence in Congress and of undoubted prominence in his party If a change takes place in the relative strength of the parties as the result of an election, the next Speaker is altogether likely to be the man who served as leader of liis party when 't was in the minority. Tlie caucus makes the choice and ihe HoiiHe niereiy ratifies it. The powers of the Speaker have l)een developed from three sources: first, his formal authority as a presiding officer; ORGANIZATION AND PROCEDURE 105 second, his function of appointing committees;' and third, his position aa a party leader. Only the first of these is implied in the constitution ; the others have come to him pitlior by the rules of the House itself or by usage. Except when the House is sitting in Committee of the WHiole, the Speaker is in the chair. He has the customary ])rcrogatives of a presiding officer; he recognizes members wishing to speak or make motions, decides all points of order subject to overruling decisions which may be made !>y a majority of the House, puts questions to a vote, an- nounces the result, and so on. The power to recognize one member rather than another is one which can be used to some extent for partisan advantage, although the Speaker is accustomed to observe certain long-stauding usages of the House in relation to this matter. Members who desire to be heard rise in their places and address the presiding officer as "Mr. Speaker." The Speaker, turning to the member whom he decides to recognize, asks, "For what purpose does the gentleman rise?" After being thus recog- nized, a member may be interrupted by any other repre- sentative and asked to "yield the floor" in order that some explanation or brief interpolation may be made. This tlio meml)er having the floor may do or not as he chooses, Init the usual practice is to yield when requested. The Speaker may himself take the floor, and occasionally does so. In .such case he calls some member to take the chair temporarily. Likewise he has a vote on all questions and not merely in the event of a tie, as is the case with the Vice-President of the United States who presides in the Senate. By becoming Speaker he loses none of his rights or privileges as a member. Having once voted on a ques- tion, he may not, however, vote again to break a tie. In tlie case of a tie, if the Speaker has voted, the motion is deemed to be defeated. 'Ilie Speaker's right to determine, in the first instance, all points of order, procedure, or privilege gives him the oppor- tunity to help his own party or to embarrass its opponents. His diseretiou iii this field is bv no means unrestrained, Sources of hui authority. The Speaker's powers: 1. Ah a presidinR officer. (a) the right to recognise, member!*. (h) the right to rule on points of order. ' This branch of his authority has how been largely taken away. below, p. 197. See 196 THE GOVEKNMENT OF THE UNITED STATES \\m^ Limitations on thin richt. The S|H'iikpr i.i lint riKiflly bound by precedents. His author- ity on points of order is always subject to the control of the House itself. howcvpr. The rulos of the House on many matters are plain, and the Speaker has no authority to set them aside. 'Die rulinga made by previous speakers, e.'^pecially when these have been long acquiesced in, are also regarded as binding; althougli on occasions a Speaker has had the hariihood to set one of these rulings aside and to establish a now precedent. 'ITie most notable example of this precedent-breaking, and the o.ae most commonly cited, is a ruling once made by Speaker Thomas B. Reed with reference to what constitutes a quorum of the House. .e constitution prescribes that "a majority shall constitutt: a quorum to do business," but does this mean that a major ty of the House must be re- corded as voting on a measure or merely that a majority of the members must be present, whether voting or not? For more than a hundred years the former interpretation was accepted and a quorum was not deemed to be present unless the roll-call showed a majority of the entire member- ship to be recorded cither for or against a measure. This repeatedly led to the blocking of business by members of the minority party who, although in their seats, would concert edly refrain from voting and thus prevent the official record from showing the presence of a quorum. In 1890, Speaker Reed (iirocted that the names of all those present but not votinor should 1)p added to the record and that if the total should prove to l>o a majority of the entire member- sliip, the House should be deemed to have a quorum. A! though this new ruling was bitterly attacked as unconstitu- tional the Supreme Court later upheld it and it is the rule to-day. This instance has been mentioned because it involved an exceptional exercise of the Speaker's authority to rule on a point of order in defiance of the established precedent,?. Controversies concerning procedure come up frequently, but the Speaker has an ample store of precedents to which he can refer for guidance. Wliore there is no precedent, he usually follows the general rales of parliamentary prac- tice. Yet despite restrictions the Speaker retains a consid- erable amount of discretion which ht; may use to the advan- tage of his own political friends in the Houiie. On occasions ORGANIZATION AND PROCEDURE 197 this power has been used ruthlessly, to the point of causing an open revolt on the part of the minority ; but surveying congressional history as a whole it cannot be said that the Speakers have abused it badly. There is no Speuker's ruling, moreover, which cannot be set aside by a majority of the House. \V len, therefore, a Speaker is permitted to he an avowed pai. san, the dominant party must share the responsibility. For a long period the power upon which the Speaker rhiefly relied as a means of guiding legislation was the right to appoint all committees. This authority was cut to pieces during the congressional revolution of 1910-1911, but for many decades prior to that time it was a source of greav l)restige ;md influence. It enabled the Speaker to organize all the important committees of the House in such way that he and his party were maintained in absolute control of legislation at ever>' stage. True, the Speaker deferred ill aost cases to the advice of the party leaders and to the decisions of party caucuses, but his own hand was always firmly on the tiller. He became in newspaper parlance the "Czar of the House." Loud murmurs were heard from time to time against this virtual dictatorship, as wielded l)v a succession of strong willed Speakers such as James (j. Blaine, Samuel J. Randall, John G. Carlisle, Thomas B. \\ ;, and Joseph G. Canncn ; but it was not until 1910- 101 1 that strong-headedness in the Speaker's chair induced a successful revolt against the old arrangement. To understand this important char -c in the Speaker's authority, however, it is necessary to know something about tlio influential part which had been assumed during the voars preceding 1910 by one small committee of five mem- i)crs, the Committee on Rules. Originally the o.iiy func- tion of iiis committee, with 'he Speaker himself as chair- man, \va< to prepare and to recommend a set of rules for the H use at the beginning of each Congress. These rules, which were usually not much more than a repetition of the ones used by the preceding Congress, served for the guidance of business throughout the sessions. Thup +he Committee on Rules was in its origin a special or seit^ct committee ; but in 1880 it became a regular or s nding 2. The right to appoint ■'ommittccs. Special influonre of the Speaker as chairman of the Committee on Rules. 4[.-M. J^'. ir» "ses*?- 198 THE GOVERNMENT OF THE LNITED STATES The "revolu- tion of 1910- 1911." 3. The Speaker as a party leader. committee with the function of considering and reporting upon any proposed changes in the rules which might be made during the sessions. Finally, in 1891, it was given the right to report a new rule at any time or for any purpose, thus enabling it to intervene and cut a knot whenever busi- ness in the House should become tangled. Out of this authorization the Committee on Rules, with the Speaker as its chairman and dominating spirit, steadily developed a preponderating influence, amounting at times to a practi- cal control over legislation. AVith the Committee on Rules ready to do his bidding and a majority of the House on his side, the Speaker could secure at any time the adoption of a special rule to advance measures which he favored or, on the other hand, to retard measures which he opposed. The "grand remonstrance" of 1910 took from the Speaker the power to appoint this Committer on Rules, increased its membership from five to ten, and made the Speaker ineligible to a place on it. In the following year the House went a step further and made provision that ail other committees should likewise be chosen by itself. The House of Representatives is an organ, not of popular government merely, but of party government . The Speaker is the choice of the majority party ; he is the party's mentor. It is upon him that the party depends to get its programme through. "The power to govern, the power to act or to fon 1 action when the House desires, and thus to set aside obstructions and suppress those who would prevent the action of the House, ~ this power must be lodged centrally somewhere. In P::ngland it is in the Cabinet, that is t.ie cen- tral guiding committee who manage the business of govern- ment." • In the Hou'='f^ of Representatives it is the Speaker and his fellow party leaders who perform this function. The real question, therefore, is not whether a certain measure can worm its way througli the House if it gets a chance. It is rather tlie question whether the Speaker and the other leaders of the majority party ought to give it a chance. As the recognized head of his party in the House the Speaker must be to some extent a legislative censor, but '- J. A. Woodburn, The Atneiican Hepublic (2d od., N. Y., lyiti), p. 269. P^ ^mmTFT ^ffl ORGANIZATION AND PROCEDURE IW let it not be forgotten that two things have combined to make him so : first, the omission in the constitution of any provision for' official legislative leadership, and, second, the development of party responsibility for legislation. Two thiiifts, indeed, there must be in every well-ordered govern- ment , leadership and responsibility. The constitution did not provide a means of supplying them, hence usage has stepped in to fill the void. So much for the Speaker. It is next appropriate to say '^^^\^- something about the committees of the House, their organi- „f the zution and the work which they do, for most of the real House, legislative work is done by them.' There are now fifty- eijiht regular or standing committees of the House, but at least half of them have practically nothing to do. These inactive committees are maintained year after year because the chairmanship of a committee, however unimportant, lurries with it certain perquisites, including clerical and st(>nographic service.^ Out of the entire fifty-eight commit- tee's not more than a dozen are of consistent importance, while perhaps a half dozen more have substantial work to tlo on infrequent occasions. The most important com- mittees are those on Appropriations, Ways and Means, Kules, Interstate and Foreign Commerce, Judiciary, Post Office's and Post Roads, Military Affairs, Naval Affairs, and Agriculture. The temporary prominence of some par- ticular issue may give some other committee a fleeting importance, but when the agitation has subsided, the coni- mittee again lapses into innocuous desuetude. In addi- lion to its standing or regular committees, the House may also establish special or select committees to deal with any particular matter which may arise from time to time outside the ordinary run of business. Wlien standing and special committees are appointed, the member whose name appears first on the list is chairman and presides at all committee meetings. Tlie rank of the other members of each committee is also determined by the order in which their names appear on the committee roUs. > L f1 MfConafhip, Cnngressional Commilteei (N. Y., 1898). - For i-xample the Cornmittpp on the DispoRition of Useless Papers, tile Committee on Mileage, etc. •^IkUWh'A-^W^'IB^^ SW7BT 200 THE GOVERNMENT OF THE UNITED STATES Coniniittoo of the Whole. How phiccs on rom- mittccs are assitjnoii. Tho moch- anisni by whirh aKsiKn- mpnfs arc made. Mention should also be made of one other congressional institution, the Committee of the \Vhole. This is merely the entire membership of the House sitting as a great com- mittee. There are several important differences, however, between the House in Committee of the Whole and in regu- lar session. In Committee of the ^Vhole the Speaker does not preside, but calls upon some member to act as chairman ; the strict rules of procedure do not apply; one hundred members make a quorum; there are no roll-calls on any measure under consideration — in a word the arrangement enables the House to deliberate informally. Large use is made of this facility, and the House probably sits a larger number of hours in Committee of the Whole than in regular session. Places upon important standing committees are much sought after. What factors determine who shall get the most coveted assignments? Length of service counts for a great deal, more than any other single factor. Places on iniportant committees naturally go to congressmen of experience, not to new members. The chairmanships go to the leaders of the majority party ; indeed it is sometimes said that the chairmen of the chief committees form the closest American analogy to the "members of the govern- ment" in the House of Commons. The chairman of each committee is selected as a -lie from among those who have in previous years served ; . members of that committee. The senior or "ranking" member is next in Hue for promo- tion, provided, of course, that his party continues in con- trol of the House. So, also, members of minor committees, after doing good service in one Congress, if reelected, are deemed entitled to promotion in the next. A member's own personal preferences are also ascertained and, so far as practicable, respected. Subject to these general principles, then, this is what now happens : first of all, the members of the House, each in their own party caucus, select the Committee on Wavs and Means. The majority party selects fourteen members of this committee, wliile the minority chooses seven, lliis Conimitt»-^e on Ways and Means then presents for adoption by the House a slate of all the other committees. On every ORGANIZATION AND PROCEDURE 201 Coininittec the dominant party is invariably given a tiiajority. When the slate is presented, the House usually accepts it without any material change, and the committees so constituted remain intact until the end of that Congress, ill other words during two sessions. So fur as the actual composition of committees is con- cerned, too much weight must not be attached to the changes of 1910-1911. It is true that these changes impaired the Speaker's authority considerably, but in the main the members of the House get just about the same committee assignments to-day that they would have obtained before the change was made. Length of service, personal ability, amenability to party discipHne, willingness to work har- moniously with oth. rs — these things rather than the vafjaries of either Speakers or caucuses have always deter- mined and are always likely to determine whether a congress- man will be placed high up or low down on the list, no matter what the rules may provide. In that respect Congress is no different from any other body of sensible men. The functions and powers of the committees may best bo made clear, perhaps, by a brief explanation of the way in which bills are dealt with, step by step. In the first place any member of the House may present a bill or draft of a proposed law. It may be one that he himself has prepared and favors, or it may be one that any outside indi- vidual or organization has asked him to introduce. The procedure is simplicity itself; the congressman merely writes his name on the bill and places it in a box at the clerk's desk. Thousands of bills are put in during the opening (lays of each session. This freedom with which bills may be introduced has both good and bad features. It gives reality to the citizen's constitutional right of petition and lierhaps encourages the putting forth of new legislative ideas. On the other hand, it permits Congress to be deluged with all manner of eccentric proposals which have no chance whatever of being adopted. Presently all these bills are sorted out and are referred, imder tlie rules of the House, to appropriate committees. If there is any doubt as to what committee should have a particular bill, the Speaker decides. If a measure is of Senice and merit the chief factors. Work of the com- mittees: 1. How bills are intro- duced. 2. Refer- ence of hilU to commit- tees. ifl ."i. Com- mittee hearintia. 4. What action tho c'oniniittfore the committee, the hearings may last, day after day, for weeks. Com- mittees usually sit in the forenoon, and no committee, except the Committee on Rules, may hold meetings while the House is in session unless it secures special permission from the House itself. Dining these hearings a record of th(> proceedings is kept by the clerk of each committee. When a hearing is finished, the committee decides, either at once or on a later day, what report, if any, it will make to the House on the measure. Several courses are open to any committee with refer- once to a bill which it has had under consideration. It may favorably report a bill just as it stands. In that case the measure will havo, under ordinary conditions, a good chance of passing, especially if the favorable recommendation of the committee is made unanimously. Or, again, the com- mittee may approve the bill in some points but not in others. In that ease it may redraft the measure and report it favor- ably in a new form. Here too the chances of passage are good. \\Tien a favorable report is made upon any mf.isure, either in its original or revised form, the report goes to the Clerk of the House, who enters it upon the journal, and in due course it is set upon one of the calendars for a first reading. Certain committees have the privilege of reporting at any time directly from the floor of the House, although this is nnw not usually done. But in the great majority of cases the committee will not be favorably impre.s.sed with the measure a* all, in which ORGANIZATION AND PROCEDURE 203 case it usually makes no report whatever. Over twenty thousand bills are introduced at each session of Congress, but the great majority of these have not the slightest chance of ever "coming out of committee." The simplest way to kill any proposal is, therefore, to have a committee refrain from reporting it, because no bill can be acted upon ])y the House until a committee sends it up. Since 1910 it has been possible, in certain ta.-^es, for the House to call up a bill from the hands of a committee and proceed to action upon it ; but this is very rarely done. While favorable action by a commitiee does not, therefore, mean that a bill is assured of passage, adverse action, which i;< no action at all, is automatic execution. Most bills are j.!;uillotined by committees, as indeed they ought to be. The f'omniittees of Congress are, therefore, the great sifter . f legislative proposals. Without them the introduc- tion ot bills would haVe to be rigidly limited or the whole mechanism of law-making would soon become hopelessly clogged. Wiien a measure is reported to the House by a committee, Procedure it is placed on one of the calendars so that it will be given '^^^^ . its various readings and voted upon. Tliere are three i. xhc calendars. One of them, known as the Union Calendar,^ calendars, contains all favorably reported measures relating to revenue, appropriations, and public property. A second, called the House Calendar, includes all public bills not included in the foregoing category. The third, known as the Calendar of the Committee of the \Vhole, or the Private Calendar, makes a place for all measures of a private character. Mat- ters on each calendar are not necessarily, or even usuallj^, taken up in order ; they may be called up out of turn. At every daily session there is a "morning hour," so-called (it may bo an hour or a whole day), for the consideration of jreneral bills called up from one of the calendars by com- mittees which have favorably reported upon them. Then, if time permits, the House goes into Committee of the Whole to discuss revenue or appropriation bills, or, failing these, some other public bills on the House Calendar. The reeu- ' Its full title is "Calendar of tho Whole House on the Staff of the Union." 2. r.-illing up bills. 3. Tho three readings. 4. The debate. 204 THE GCVERNMENT OF T. : UNITED STATES lar order of business is frequently interrupted, however, by re'ports from privileged committees, by the established practice of setting aric certain days each month for the consideration of particular matters, or by the discussion of business brought in under a suspension of the rules which the House can authorize at any time by a two-thirds vote. It is desirable, moreover, that important measures, usually those which provide money for urgent purposes, may on necessary occasions gain the right of way, and this is secured by the action of the Committee on Rules, which may report a special rule putting such bills ahead of other business. Every bill, of whatever sort, must have three readings in the House. The first reading is by title only ; the second is a reading of the whole measure, and at this stage amend- ments may be offered; the third reading is also by title unless some member requests that it be again read in full, which hardly ever happens. If the measure passes to its third reading, it is engrossed and must go through a further formal stage of being finally passed by the House before it is sent to the Senate for concurrence. Four methods of voting arc used. The common plan is by viva voce vote. Any member may doubt the result and call for a rising vote. If a certain number of members so demand, the vote is again taken by tellers who are appointed by the Speaker. The members pass between the tellers and are counted. Finally, the constitution provides that if one-fifth of the members ask for it, the ayes and nays shall be recorded. A roll-call must always take place when the passing of any measure over the President's veto is Iwing decided. The debate on a bill almost invariably takes place upon the question of ordering it to a third reading, although it sometimes continues upon the question of final passage. Reconsideration may also be asked for after the House has voted at either of these stages. When the measure succeeds in running this entire gantlet of readings and votes, it does not become a law, of course, but merely goes to the Senate, where substantially a similar course of pro- cedure is encountered. When a bill is reached on one of the House calendars or is called up out of turn, the usual practice is for the chairman ORGANIZATION AND PROCEDURE 205 or some other member of the committee which has reported it favorably to open the debate. If the favorable report lias not been made unanimously, some minority member of the committee then follows with a speech in opposition. When members of the committee have had their say, other eongrossmen are recognized in their turn, and thus the debate runs on. No member may address the House for more than one hour without unanimous consent, and when the House is in Committee of the Whole, speeches are hmited to five minutes only- If there is any likelihood of a long debate, it is customary for the House, by unanimeus consent at the beginning of the discussion, "to fix a time at which a vote will be taken. The previous question may also be moved at any time as a means of bringing a debate to a close. The best discussions do not take place when the House is in regular session, but in Committee of the *,Vhole, under the five minute rule. This is because short, snappy speeches, with members answering quickly the arguments of each other, hold the attention of the House, while long and carefully prepared addresses do not. When the House has finished with a measure, it goes. Bills sent as has been said, to the upper chamber. What may the ^^^^^^^^ Senate do with it ? It may do any one of three things : concur- It may pass the measure without change. It may defeat ^'"'^• it or let it die in committee. Or it may pass the measure after making some amendments. In this last case the bill must come back to the House for a vote on the amendments ; if the House accepts them, well and good, but if it declines to accept the Senate's amendments, the usual plan is to ask for a Committee of Conference. This is usually made up of three members from each chamber, and its function is to reach some agreement by way of compromise. Conference Conference committees meet behind closed doors, and the matters dealt """""""ees. with are only those upon which the two Houses have failed to agree. The committee is not supposed to touch provisions which have been accepted by both. As a rule the conferees from each chamber make mutual concessions and in that way secure a meeting of minds. If the committee can reach an agreement, the two Houses usually accept their recom- mendation ; if they cannot agree, the measure fails. Noth- rrrrrrf?; -A '.■ L .v Tlie final steps in connres- sional leginlatiou /i? I! ■! I- The House of Repre- sentatives '•onipared with the House of Commons. 206 THE GOVERNMENT OF THE UNITED STATES ing can become a law unless both Houses have concurred on every point. When a bill ha.s passed its various stages in both cham- bers, It IS "enrolled" or written on parchment. It is then signed by the Speaker of the House and the presiding officer of the Senate, after which it is laid before the President for his approval or veto. If signed by the President, it goes to the archives of the State Department and in due course is published in the statute book. The powers of the House and the Senate in law-making are exactly the same, save for the exceptions already noted, namely, that the House.has by constitutional provision the sole right to -originate bills for raising revenue, and by usage It has acquired the exclusive power to initiate appropriations. But the Senate may amend bills of either sort, even to the extent of making practically new measures out of them. Comparing the House of Representatives with the House of Commons, some striking similarities and contrasts come into view. Both do most of their work through committees and the general procedure followed in the passing of measures is in both substantially alike. But in Congress no broad distinction is made between pubUc and private bills. All are dealt with in the same way. In parliament there is a special procedure for private bills, that is, for those which concern only an individual or an organization or a local- ity, and which accordingly are not deemed to be of gen- eral importance. Relatively little time is devoted in the House of Commons to this category of measures, and hence more time is left for the consideration of general laws. This permits and encourages more discussion and debate in the English chamber. The great powers of Con- gress, again, are almost equally shared by the two chambers, while in parliament the lower chamber has long been domi- nant, and since 1911 it has become potentially supreme. ITic presence of executive officers in parliament and their absence in Congress is another striking diflference and one which has far-reaching results upon the course of business. iMualh-. and perhaps rno^t important of uU, the members of the House of C\)mmous and of the House of Representa- tives are alike ranged into two well-defined and relatively j=f:t. Jko.:*'!*»J ORGANIZATION AND PROCJKrJUllR 207 pprmanent party divisions, ono supporting and tho other opposing Uio administration. It is this phonomcnon more than any other that betrays the kinship of the two great. KiiKhsh-speaking organs of popular government. It is this unified party system which differentiates them both trom the parUaments of Continental Europe. The House of Representatives was created in conscious imitation of the House of Commons. In its traits and temperament, if not in its external features, it bears unmistakably the ntarks of its parentage. ■K-'^'V CHAPTER XIV The law of Icidsla- tive powers in the I'niteJ States. The powers of Congress are delegated powers. THE GENERAL POWERS OF CONGRESS The Senate and th>' House of Representatives together constitute the Congress of the United States, which is the law-making department of the national government, the organ through which the people frame and declare the policies of the nation. But this power of the people to declare through their representatives in Congress the laws by which they wish to be governed is not an unlimited power. Unlimited power cannot be exercised by any arm of the national government, executive, legislative, or judi- cial, or even by all three acting together. Limitations there are to a greater extent than in any other countr>', and the greatest of these limitations upon the powers of Congress arises from the theory of the constitution itself. The constitution of the United States, as has been already shown, is a grant or delegation of powers. In that respect it differs from the constitutions of the several states, for in the latter all powers accrue as an incidrnt of their original sovereignty, hy the national constit (Confederation, to maintain a common postal service, and to do various other things together. But they still remained s(nor(>ign states, for these conces- sions, even wlien taken all together, were not a serious im- pairment of their sovereignty.* By accepting the constitution of 1787, however, the sev- eral states took a far more important step. They surren- dered powers of greater variety and extent. The nature of the change was clearly expressec. by Chief Justice Marshall in one of hia great decisions: "It has been said that they (the states) were .sovereigns, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their con- gress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the mo.st interesting subjects, the whole character in which the stct,- appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which the change was effected." * ITiey gave up, in fact, some of the most important prerogatives of sovereignty, and although we still speak of them as sovereign states, they are not in a strictly juristic sense entitled to be .'^o termed. Tliey are ^^overeign within their own residual sphere of action, and there alone. There is no denying that the states gave up large powers when they accepted the fedv ral constitution Did they, however, surrender these powers to the national government contrarj- view, seo .\lbert Bushnell Hart. National Ideals Historically Traced (N. Y., 1907). p. 136. ^ ' " Each stato retains its sovpreiRnty. freedom, and independence, and f.vpr>' pnwor, jiiri^-liption. and right whii-h is not by this Confederalion delegated to the United States in t'dngreas assembled."— ArticUtof Con- frdcration. Article ii. ' Gibbons vs. Ogden, 9 Wheaton, 1. SETW^Rft - =^rfc- THK (JENERAL POVVKUS (»F CONdREHS 211 forfvpr, or dirl oacli state implic n^orvo tin- right to rosiimp thrm at some futuro time if circumstMCPw should s.. ilirtatc ? That is a qupstion which hulked large in Ameri- can ])olitical controversy during the decades preceding the Civil War. Could a state, in other words, nullify a power L'ivcn by the constitution to Congn'ss by insisting upon its own interpretation as to what such power was meant to include? Could a state secede from the Union and thus resume its full sovereignty ? ITiese two questions, involving respectively the right of nullification and the right of seces- sion, were eventually answered, not by political philosophers or jurists but bv the logic of events. South Caroliiia in 1832 asserted its famous policy of nulli- ^'J^^^'^.^ fication based upon the contention that whenever Congress ,^°|"4" ventured to transcend the Umits of power granted to it ])y the constitution, any state was at liberty to declare such action unauthorized and null. Tliis ('octrine found its protagonist in John C. Calhoun.' In his interpretation tlie constitution gave the various states a "negative power, the power of preventing or arresting the action of the govern- ment, br it called by what term it ma> veto, interposition, nullification, check, or balance of power." Acting upon ;•,:: conception of ultimate state sovereignty, '^'outh Caro- lina in 1832 attempted by ordinance to nullify cer+ain acts of Congress. The federal authorities under President Jack- son's sponsorship promptly took up this gage of battle, and ir: the end South CaroHna receded from her position of defiance. The question as to whether a state had the right not ^j';^^^''^^JJ- Tiierely to refuse obedience to acts of Congress but to with- '^^^["1"" draw from the Union altogether and thus to repudiate the problem, compact of 1787 came to the front in a much more serious form twenty or more years later. Threats of secession had been made by various states from time to time during the first half of the nineteenth century, but it was not until De- cember 20, 1860, that any state took the actual step of seced- ing. On that date South Carolina once again took the initia- ' For a full statement of the doetrinp. seo his SteUe Papers on Nvilifica- linn (18.34); also David F. Houslnn's Critical Strtdy of NMification in S.ntth CaroHna (X. Y., \»W)). iit^.;ir 212 THE GOVERNMENT OF THE UNITED STATES f l.iims of the seccs- (uonigts. Tl.o Civil War .-settled (he iiuestion. Perpetual nature of the Union catnbliahed. Summary of the con- stitutional l)a.ies of cf)nKre»- sionul powers. tivo witli the issue of a declaration that "the union now sub- sisting between South CaroHna and other states under the name of the United States of America is hereby dissolved." Within a few months ten other southern states tooiv similar action. The right to secede from the Union and thus to reacquire a!l the powers which had been surrendered to Congress in 1787 was based upon several contentions which need not be enumerated here. They may be epitomized in the claim that the constitution was nothing more than a treaty or compact among the states, and that the violation of its terms or spirit by some of the states freed the others from the obligation of being further bound by it.^ During the years preceding the Civil War this question ,was discussed from many angles, but to no solution. Nor was it one that could be settled by any reference to clear understandings at the time the constitution was adopted. Tlie constitution itself is silent on this point. Nothing was said about it in the convention of 1787 and practically nothing during the discussions while the campaign for rati- fication was under way. Tlie matter was not then of imme- diate interest. So men argued bitterly about it, went to war over it, and finally settled it at Appomattox. Since 1865, therefore, this stormy petrel of American politics has been at r(>st. No state has the right to take back any of the powers or functions which it agreed to give to the national government by the compact of 1787. These powers form the permanent endowment of Congress. They can be withdrawn in one way only, that is by the concurrence of three-fourths of the states as provided in the constitution. Three points, accordingly, are now well established in American constitutional jurisprudence. First, that the constitution is a grant or delegation of powers and that Congress has no lawmaking authority save as is therein conveyed; second, that within its own legislative sphere, as delimited by the constitution, the authority of Congress ' Jefferson Davis, President of the Confederacy, in his message to the Coneress of the Confederate St.-vtes f April 20. 1861) gave a full statemcat of the secessionist doctrine. This is elaborated in his Rise and Fall of the Corfederate Government (N. Y., 1881), i, pp. l-2.'i8. THE GENERAL POWERS OF CON'tiRfclSS 213 is supron^o ; and, third, that no state has the riglit to nulUfy Tliis supremacy by a refusal of obedience or to withdraw from the jurisdiction of the federal government. Turning now to the actual powers o Congress, these Thedassi- may l)e classified in various ways. ' "te mitiiou o<" classi- the^wers fication is in accordance with tlie fo ni -n vvliith ^'sey are of Congress, granted, whether in express term; i- by imi lication. Another is according to the degree of ^.-Jlig^^'-^'- irriposcd by various powers, in other words whether they are permissive or mandator^'. Finally, and most significant, is the classi- fication of the powers of Congress according to their scope, nature, and importance. Does Congress possess only those powers which are Express granted by the constitution in express terms? Or does ?°p|igj Congress also possess powers which, though not expressly powers, granted, may be reasonably implied? This was a point of clash between the Federalists and the Anti-Federalists (hiring the early years of the Union. Hamilton and the Federalists argued that there should be no strict construc- tion of the constitution's terse phraseology, and that where an express power had been granted, this should be construed to carry with it any authority desired by Congress to make such power effective. "Is the end included within the expressed powers ? " asked Hamilton. " If it is so included," he answered, "the means requisite and fairly applicable are constitutional." The Federalists thus related their conten- tion chiefly to that clause of the constitution which confers on Congress the right "to make all laws which shall be necessary and proper for carrying into execution" the powers expressly granted. The Anti-Federalists took the opposite ground, maintaining that the long enumeration of express powers granted to Congress in the constitution was m(>ant to be complete and that nothing should be added by implication. Be' een these divergent views the Supreme Court, in one of its otable decisions a century ago, took a stand which involved a near approach to the Federalist claim. "The sound construction of the constitution," said Chief Justice Marshall in this decision, "must allow (o the national legislature that discretion with respect to the means by which the powers it confers are to be carried ;^i^£^^ 214 TIIK COVKRNMENT OF THE UNITED STATES S-'ope of the "implied" powers. Mandatory IHjnnissivo lx>»(?rs. into oxocution, whicli will enable that body to perform thr liigh duties nssijxiKvl to it in a manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the con.stitution, and all means which are appropriate, which are plainly adapted to that end, and which are not prohibited but are consistent with the letter and spirit of the constitution are constitutional." ^ llie doctrine of implied powers was thus given legal recognition, and it is now a well-establislied principle of American constitutional interpretation. Some of the most important functions which the federal government performs to-day have their basis in "implied" powers. TTie right of C\>ngrei-s to provide for the estal)- lishment and supervision of national banks, for example, is not an express power. It is implied, or at any rate has been held by the Supreme Court to be implied, in the express power "to borrow money on the credit of the United States." Tlie right of Congress to authorize the enforcement of wheatless and meatless days in war-time or to compel the shutting down o*" stores and industries in order to conserve the fuel supply is nowhere expressly gr;tnted in the constitu- tion. It is implied, however, in the e.\|)ress power "to rai.se and support armies." Nor, again, does the constitution expressly give Congress tlie right to own and oj)erate rail- roads, yet this authority may be and doubtless is implied in the power "to establish post-offices and post-roads" or in the power to regulate commerce among the several states. The power to establish carries with it the power to maintain ; and the power to regulate carries v/ith it the authority to choose any agencies of regulation which are in fact adapted to the end in view. The powers of Congress, as (>xpressly or by implication granted in the constitution, are for the most part permissive in character. Tliat is to say f^^\)ngress may exercise them or may not as it sees fit. It may make use of them much, little, or not at all. The clause which provides that Con- gress "shall have power ... to borrow money" does not, obviously, mean that Congress shall borrow money whether the country is in need of it or not. But on the other hand, ' McCuUoch V8, M yland, 4 Wheaton, 1<16. THE GENERAL POWERS OF CONGRESS 215 there are some powers which ot withstanding their permis- sive phras separate powers, how- ever, as some of the clauses convey m ire than one. The section which contains the enumeration of these powers is the longest single section in the constitution and also the most important.^ It furnishes the national govern- ment with its motive power, and indeed without this par- ticular section Congress would be a wholly impotent body. The powers granted to Congress by these eighteen clauses are those which the makers of the constitution agreed upon as either being necessary for the maintenance of a vigorous central government or of such a general character that they could not be left to the precarious tutelage of the several state legislatures. Taken as a whole they may be grouped under eight heads : (1) Financial, the power to levy taxes and to bor- row money. (2) Commercial, the power to regulate foreign and interstate commerce. (3) 1/ti? to ry, the power to declare war, to raise and support armies, to provide for the organiza- tion, arming, and calHng forth of the militia, and the power to maintain a nav}^ (4) Monetary, the power to coin money, to regulate the value thereof, and to protect the currency against counterfeiting. (5) Postal, the power to estabhsh post-offices and post-roads. (6) Judicial, the power to constitute tribunals inferior to the Supreme Court. (7) Miscellaneous, including powers in relation to naturaliza- » Article 1, Section 8. :^:^i THE GENERAL POWERS OF CONGRESS 217 tioa, bankruptcy, patents, copyrights, and to the govern- ment of the national capital. (8) Supplementary, the power to make all laws v/hich may be found "necessary and proper for carrying into execution the foregoing powers." Not all of these powers are of equal scope and importance. The firbt three categories — financial, commercial, and mili- ^.^ry — are probably of greater moment than all the others put together. They form the mainstay of congressional powers. The fact that a power is given to Congress by the constitu- tion does not imply, however, that Congress alone may exercise it, and that it may not also be shared by the states as well. Some congressional powers are by their nature practically indivisible, as for example, the power to declare war ; but there are others which can readily be shared, for instance, the power to punish counterfeiting. These latter powers are usually spoken of as concurrent powers, or powers which the states may use so long as their action does not conflict with laws made by Congress. To take an illustra- tion: Congress is given by the constitution the power to establish "uniform laws on the subject of bankruptcies throughout the United States." If, however. Congress does not enact such uniform laws, any state may make its own rules on the subject and apply them within its own borders. But when Congress does provide uniform laws, all conflicting rules in any state become unconstitutional. Naturally enough, no enumeration of powers retained by the states is made in the constitution ""' ' ''" retained the whole residuum. Subtracting from the totality of all governmental powers those which are expressly for- bidden to them and also those which arc granted to Congress the states have what remains. All powers not mentiored or imphed in the constitution are state powers. If this was not sufficiently clear at the outset, the Tenth Amendment soon made it so.* The residuum which remains with the states is very large, including as it does nearly the whole field of civil and criminal law, the chartering of corporations, the supervision of local government, the inainteuance of order, the control of education, and the general adminis- « See above, p. 45, footnote. 3. Con- current powers. 4. Powers ThesVates merely -'ot:^'^ or "resid- ual" powers. 218 THE OOVERNMKNT OF THE UNITED STATES f'onstitueat powers and luwmukinK tiowers. Are the povvcrs of CuHKress nUequato ? tration of nearly all the things wliioh touch the daily life of the people. 'riiis distribution of powers and the limitations on the national government, as a thoujihtftil writer lias pointed (»ut, will enable any one to understand why the British parliament is termed u constituent body while Congress is only a lawmaking body.' Legally speaking, parliament IS the Briti-sh empire. Its powers embrace the sum total of all governmental authority. There is no political power above it, competent to restrain or overrule its acts; there is no sphere or field of government in which it may not operate, no act of government which it may not perform. Coagressmen represent the people; but parliament is the people. Congress is merely an agent, while parliament is a priricipal. UTiatever the nation can do in its sovereign capacity, parliament can do. It is not restrained by a eon.stitution, because its acts make up the constitution, and hence nothing that it does can be unconstitutional! Congress, on the other hand, is the American nation for one purpose alone, namely, for exercising certain powers delegated to it by the states. ^ Does the constitution give Congress powers enough? Construed strictly, it does not. But the literal powers conveyed by the constitution, as has been already shown, have been greatly broadened by tlie process of judicial interpretation sf ^hat they are now reasonably adequate for all that a central government needs to do. The con- vention of 1787 was undertaking a great experiment in the division of governmental powers. It is small wonder that its members should liave gone cautiously. Since their day a dozen other nations have established federal constitu- tions, including Australia, Canada, Switzerland, and South Africa. In every case these constitutions give more powers to the federal government than does the supreme law of the United States. The old fear of federal despotism has passed away. ' J. A. Woodburn, The American Republic (2d ed., M. Y.. 1916), p. 89. CHAPTEiv XV THE TAXING POWER Of all the preiogatives that can be lodged in any govern- imtwrtance luont, the taxing jmwer is the most important. When ^^JJ Ch'of Justice Marshall spoke of the power to tax as the to tax. ■power to destroy," he meant that this great economic woapon, if unrestrained, might be used by a government to destroy any form of business or to wipe out any form of property.' It is a power, nevertheless, which in some form or other every government must possess. No government can exist without income, and taxation is the natural source of governmental income. The Articles of Confederation Slave no power to tax, and that is the chief reason why the Confederation tottered. It was chiefly to create a taxing power that the framers of the new constitution were brought tojiother. The Union was born of the desire for a central authority with an assured income. It is appropriate, ihorefore, that the authority "to lay and collect taxes, duties, imports and excises" should stand first among the eighteen enumerated powers of Congress. A tax may be defined as a burden or charge imposed Definition hy a legislative authority upon persons or property to raise °' " *"*• money for public purposes. Taxation, accordingly, is sim- ply the confiscation of private property for public use under conditions determined by law. The only difference between modern taxes and the predatory exactions of tyran- 1 "That the powiT to tax involves the power to df stroy ; that the power to destroy may defeat and render useless the power to ereate ; that there is a plain repugnanee in eonferring on one erovrrnment a power to eontrol iLe (.onsti'utional measures oi' iiuoiiier, wLieu olii«, vfitfa respect to tlw^c . '.ry measures, is deelaivd to be supreme «\ er tliat whieb exer'e the control, ire' propositions not to be denied." — McCullocli vn. Maryland (1819), 1 Wiienton, 31«. 210 Essentials of a good tax. •••I Classifi- oation of taxes : 1. Accord- ing to purpose : fiscal and regulative. 2. Accord- ing to incidence : direct and indirect. 220 THE GOVERNMENT OF THE UNITED STATES nical times is that the former are levied upon the people by action of their own representatives and in accordance with certain principles which aim to insure a fair adjustment of the burden. Xearly one hundred and fifty years ago the greatest of political economists, Adam Smith, laid down four rules or canons which ought to be observed in the levying of taxes, and these rules, despite great changes in both economic and political conditions, are recognized as sound at the present day. Adam Smith's canons of taxation may be briefly summarized as follows : that the citizens of a state should be taxed according to their abilit> to pay; that taxes should be certain, not arbitrary ; that they ought to be "levied at the time and in the manner which is most hkely to be most convenient for the contributor to pay"; and, finally, that taxes should be so contrived as to take out of the pockets of the people as little as is possible above what is actually needed by the public treasury.* Taxes are of various sorts and may be classified in several ways. According to their purpose, taxes may be divided into two kinds, fiscal and regulative. The former are levied with the sole purpose of securing revenue; the latter arc imposed, either in whole or in part, from motives of social or economic improvement and without prime regard for tlieir value as revenue producers. The general property tax is the ])est example of taxation for purely fiscal purposes, while taxes levied upon alcoholic liquors may be looketl upon as being to a large extent regulative in character, de- signed to discourage consumption. Taxation may, of course, be both fiscal and regulative. A protective tariff on imports is a good illustration. High duties yield a large annual revenue and in addition afTord a measure of protection to home industries against foreign competition Another classification of taxes is based upon their assumed mcidence or final resting place.'' Direct taxes, such as taxes on land and poll taxes, are supposed to rest finally upon those who pay them in the first instance ; while indirect ' The Wealth of Nations, Book v, ch. ii, pt ii J For a discussion of this subject see E. R. A. Seligman, The Shiftina and Incidence of Taxation (3d ed., N. Y., 1910). ^niJitng •A£*UH»Ili;r..i'M._ 3lfi--.-- ■ THE TAXING POWER 221 taxes, such as customs duties and excises upon spirituous liquors, are laid with the expectation that they will be shitted t > the shoulders of the ultimate consumer. These suppositions, however, are not always in accordance with the facts Even direct taxes are occasionally shifted, while indirect taxes under some circumstances remain where they are placed. For this reason the classification of all taxes into two categories, direct and indirect, according to incidence, is not a satisfactory one from the sti.ndpoiut of the economist. In political science and in actual legislation, nevertheless, this distinction between direct and indirect taxes has been of great importance, particularly in the United States. The chief taxes levied in the United States today, whether fiscal or regulative, direct or indirect, are taxes on property, real and personal, taxes on incomes, duties on imports, excises on liquors, tobacco, railroad and theatre tickets, telegrams, and so forth, taxes on the excess profits of indus- try and commerce, inheritance taxes, and poll taxes on per- sons. The national government is permitted by the con- stitution to levy taxes in all these seven forms, but it has not for more than fifty years made use of the first or the last, both of which, if imposed, must be apportioned among the states according to their respective populations. But although the taxing power of Congress is extensive in scope, it is by no means unlimited. Restrictions of vari- ous sorts are provided in the constitution. The first of these limitations relates to the pujxjses for which taxes may be imposed. Congress may only levy taxes in order "to pay the debts and provide for the common defense and general welfare of the United States." That, to be sure, is not a stringent limitation, for nearly every tax that Congress desires to levy may be brought within th(> broad confines of "general welfare." This general welfare clause, it should be mentioned, is not a grant of legislative au- thority to Congress, as might appear from a rapid reading of its context, but a limitation upon the taxing power.' ' "Somp, who have not denied the necessity of the power of taxation, ha\c grounded a very fierce attaclc against the constitution, on the lan- eiiagp in which it is defined. It ha? been urged and echoed, that power "lo lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defense and general welfare of the United 3. Acoord- in(f to subject. Limita- tions on the taxing power of Congress : 1. Taxes must be levied for a public purpose. 222 THE ClOVERNMENT OF THE UNITED .STATES 2. Taxof must t)i> uuiforin may Ix' laid on exports. In various forms the question as to what is a " 5eneral welfare" purpose has been presented to the courts for inter- pretation. May taxes be imposed in order to pay bounties to growers of sugar beets or some other commodity which Con- gress desires to encourage ? In such matters the courts have held that incidental private benefits do not preclude the main purpose from being a public one. Rarely, therefore, have tax laws been declared invalid on this account. In the second place, the constitution requires that ail duties, imposts, and excises imposed by the authority of Congress shall be uniform throughout the United States. Tills does not mean, however, that all tlio states must con- tribute equally or in proportion to their population. Con- gress, in the cxerci.se of its discretion, may adjust the bur- den of national taxation so that more will fail upon one area or section of the population than upon another. A tax on tobacco is not void for want of uniformity because tobacco happens to b'' grown in some states of the Union and not in others. iformity, within the meaning of the constitution, is secured if tlio levy bears with equal burden wherever the subject of tlic impost is found. For example, a tax upon alien immigrants has been held to be uniform even though nine-tenths of it was shown to fall upon the port of New York. On tlie other hand, a tax would not be uniform if it should make discriminations between the same things in different parts of the country; foi example, if it should be levied upon iniieritancei", at one rate in some states and at a different rate in others. When customs duties are collected, to give another illu.s- t ration, the rates upon any class of commodities must be the same at ail ports of entry. No preference ma}' be given l\v any regulation of commerce or revenue to the ports of one state over those of another. A third limitation upon the taxing powers of Congress relates to exports and to internal tariffs. '* No tax or duty," declares the constitution, "shall be laid upon articles ex- States,' .'iimiiints )(• an unlimiteil i-oiiiniissiDii tit cxcnisi' evory powi-r which may be alleged to be iieoessar> for the coitiiiion ile?'t. i^-e or ^eueral welfaTf. No stron^pr proof could be given of the diatres? under which these writers labor for objections, than their stooping to such a miacou- str'U'tiou.'" — Thi: Fcdi ralUl, No. 41. TSB^ismm Tlir. TAXINti POWKR .'•j:j for poitpH from any statr." Coiignw may not, tluTHfore, tux Iho exports wliicli Ro from ilic Uuit.d States to forcifiii terri- tories. It may tax imports only. The restriction upon \\w states is even more rigid, since a state c^ not, without the consent of Congress, impo>e taxes upon either imports or exports under any circumstances whatever. In this connection the insular possessions, such as Porto Rico and the Pliilippines, have been licld to be noitlier states nor foreign territory, hence trade between the United States and these areas may be made subject to taxation. In one of the famous Insular Case.s the Supreme Court held that I'orto Rico, upon its cession to the United States, ceased to be foreign territory, but did not thereby become incor- porated into tlie Union.' The prohibition of anv tax upon exports was one of the Roa^m f. compromises of the constitution. It was a concession to the southern states, which were at that time large exporters oi rice, tobacco, and similar staples. The current economic notion of the day was that export duties always fell upon the exporter, while duties on imports fell upon the consumer. Hence the southern delegates were firmly opposed to giving ("ongress any right to impose export duties which would i'all wholly upon the planters, and in tlie end they had their wav In some respects, however, the restriction has provetl its unf-.r- tiiifortunate. It has at times deprived Congress Oi a means j^fluenee. whereby the depletion of natural resources might liave been prevented. Exports of timber amounting to many millions per year have gone forth untaxed. It should be noted, how- ever, that the prohibition of taxes on exports does not re- strain Congress from regulating export trade in any reason- able way otherwise than by taxing it. Nor does it exempt nuods from the payment of ordinary internal taxes merely liecause they ar(> being manufactured for export. As regards duties on imports, Congress has full power. It may levy import duties of any sort and at such rates as it may determine, provided of course that the rates are uniform at all ports where the goods come in. A fourth constitutioaal limitation on tlie taxing power of Congress relates to the imposition of capitation and other > 183 U. S. 151. 4. Direct taxes must be appor- tioned. What are "dirt'ct tuxes" in thia soiue? Some exam- ples of early taxes not held to be "direct" taxes. 224 THE GOVERNMENT OF THE UNITED STATES direct taxes. Congress has power to lay and collect direct taxes, as often and in such amounts as it may see fit. But the amount which it requires to he raised hv direct taxation must b(> 'apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not tax<>d " ' In other words, direct taxes must be distributed throughout the Umon according to population, not according to wealth income, or any other common denominator. This provision of the original constitution, .somewhat modified by the i^ourteenth Amendment, was part of the (Jreat Compromi.se Hut what iiro direct taxes within the scope of this restric- tion .' At the time the constitution was adopted it seems to have been take.: for granted tiiat the only direct taxes were poll taxes ami ta.xes on land. Taxes of every other sort w,.re regarded as indirect taxes. Ten vears later the bupreme Court affirmed this as.sumption in an opinion which declared that a tax on carriages was not a direct tax; that capitation taxes and taxes on land were the only forms of direct ta.xation ; and tliat all other taxes were included within the comprehensive pjirase "imposts, duties and excises, or indirect ta.xes.^' Three of the four justices who heard the arguments in the controversv had been mem- bers of the constitutional convention. "As all direct taxes must be apportioned," said one of the justices in this case, It is evident that the constitution contemplated none as direct but such ,s could be apportioned." Congress also levied at various times a tax upon bank circulation, a tax upon he receipts of insurance companies, and a tax upon the inheritance of real estate; but it 'ligorically tliat tlie only direct taxes, within the meaning of the constitution, are poll taxes and taxes on real estate.' This decision was not iiiven for many years after the passage of these income fax laws. Mean- while, the need for great increases in the federrl revenue had passed and the hiws were repealed. This long line of decisions might well have been thought to settle the matter forever, but in the next generation the (liicstion as to the status of income taxes was once more revived, and this time it was a:i .Ted in a different v. 'v. Congress in 1894 p;i~sed a new income tax law impo .■ , a levy of two per n nt on all incomes above four thou^■ ■ dollars from whatever source derived. This law waf. promptly attacked as unconstitutional, and the Supreme Court, after prolonged delays and two hearings, finally decided in 1895 that a tax on the income ."rom property is virtually a tax on the property itself, and accordingly that a tax on such income must be held to be a direct tax.'^ A tax on land, the court pointed out, was admittedly a direct tax, and a tax upon the income of land is not distinguishable on any broad principle from a tax on the land itself. The law of 1894, havinj. levied a direct tax without provi- sion for apportioning it among the states according to population as the constitution requires, was therefore dechired to be unconstitutional. Thus, l)y a close decision, in which four out of the nine justices liissented, the court reversed the ruling which it had made on the nature of income taxes fourteen years before. From 189.5 to 1911, accordingly. Congress was not able to enact a valid income tax law without providing for an apportionment among the states. To have apportioned an income tax according to population would have been hishlv ineouitable. since popu- lation and total income do not bear any fixed ratio to one ' Spnnger vs. United States, 102 U. S. 586. « Pollock vs. Farmers' Loan and Trust Co., 157 U. S. 429 ; 158 U. S. 601. Till" iiimmr t.ix ••otitni- vi-rsy : il.-i variouR BtaKPii. 1. The in- rome tax liiw o' thf Civil War period. ?. The in- ,)me tax vw of 1S94. 226 THE GOVERNMENT OF THE UNITED STATES :!. The Six- toenth Amend- ment, 1913. il; '! 4. The incDiiir tax law of I'JV.i. Constitu- tionality of the tax on rur- porations. another. Massachusetts, for example, has a smaller popu- lation than Texas, but a far larger number of taxable incomes. This legal obstacle was finally removed, however, in 1913, when a sufficient immber of the states gave their assent to the Sixteenth Amendment, the adoption of which was in effect a reversal u! the Supreme Court's decision on the law of 1894. This amendment provides that "Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the states and without regard to any census or enumera- tion." Shortly after the adoption of the Sixteenth Ameml- meat a new federal tax upon incomes was imposed, and this tax, which is now collected directly by the federal authori- ties, brings in a considerable share of the nation's income.' The power of Congress to levy upon incomes, without apportionment, is now beyond question ; but this does not mean that no income tax law can henceforth be held to be unconstitutional. The constitution provides, for ex- ample, that the salaries of judges "shall not be diminished iluring their continuance in office." Notwithsta' aj; the provision that Congress may tax incomes "frt)ni what- ever source derived," it is quite possible that a tax upon the salaries of judges would be held to be an impairment of their protection against any diminution of remuneration, and hence to be uncon.stitutional. In 1909, before the adoption of the Sixteenth Amend- ment, a tax was imposed by Congress upon the net income of corporations. This levy was upheld as being an excise, not an income tax ; in other words as a tax upon the privilege of doing business imder the corporate, as distinguished from the individual, form of organization. Being an excise, it could be levied without apportionment. All of the foregoing limitations are expressly laid down in the constitution. In addition, there is an implied limita- tion arising out of the very nature of the federal union, and one that is necessary to the continued free working of the state governments. If the states are to be secured in the full enjoyment of their reserved powers, CongreHs must not ])e permitted to hamper their agencies of administra- > E. R. A. 8ellgman, The Income Tax (2d ed., N. Y., 1914). THE TAXING POWER 227 tion by imposing taxes upon them. For let it once be admittpd that Congress may tax the mechanism through which the state performs its functions and the supremacy of Congress over the states would soon become established. One hundred years ago it was decided by the Supreme Court that no state could tax the instrumentalities of the federal srovcrnment, such as post-offices, customhouses, or the notes of national banks. This decision was based upon the argument thnt the various states, if given authority to tax the mechanism of federal administration, would possess the power to stop its wheels entirely. This argu- ment, however, if valid in one direction is equally valid in the other, as is now well recognized. Congress may not tax the property of a state or the salaries of its officers.' It may be that the Sixteenth Amendment has now altered this situation as respects incomes derived from state em- ployment. These, then, are the limitations imposed by the constitu- tion upon the ta.xing power of Congress. Now as to the way in which the taxing power is actually exercised. It was assumed by the framers of the constitution that Congress would frequently levy direct taxes and apportion them among the states, but direct taxes have proved far less important sources of federal revenue than was anticipated in 1787. On five occasions only has Congress levied direct taxes: once in 1798, three times during the War of 1812, and once during the Civil \\ ar. In each case Congress s(-t the total amount to be raised and then allotted to each state its due proportion according to its population. In each case also, Congress specified the subjects I'pon which the tax was to be levied and indicated the machiner>' for collecting it. Lands and slaves were the subjects taxed by the earlier laws, while the act of 1861 laid a direct tax upon land alone. The seceding states refused to pay this le\'\'. No direct tax has been apportioned among the states since that date.* May Congress tax the in- gtrumentnli- ties of :i stiito? How Con- Kreg-i hoH exercised it8 tax- iiiK I)<)»er8 1. Direct taxes. ' Tax Collector vs. Dot/, 11 Wftllaoe, 113. ' Data concerning the taxing policy of the federal goverpiiiont Uuriuc: \ arious periods may be conveniently found in D. R. Dewey's Financial HUtory of tht United Stale* (5th ed., N. Y., 1915). 2. Indirect taxes. The T.'ar taxes. 228 THE GOVERNMENT OF THE UNITED STATES At all times since its establishment the national govern- ment has depended for the bulk of its revenue upon indirect taxes, and particularly upon three forms of indirect taxation, namely, customs duties, excises upon liquors and tobacco,' and, more recently, taxes levied upon the net earnings of mdividuals and corporations. Until the time of the Civil War the proceeds from ' ^port duties upon merchandise formed the most important source of national income. ITie entire national revenue in 1860 was about sixty millions, of which nearly ninety per cent came from duties upon imports. In 1916, the year before the United States entered the war, the national revenue from taxation had increased to more than seven hundred millions, of which the import duties contributed considerably less than one-half. Excises, or internal revenue taxes upon spirituous hquors, tobacc(»,' and a few other articles had grown to be the most lucrative source of national xncome and yielded in 1916 much more than duties on imports. Some years previously Congress imposed a tax upon the net inc. me of corporations, and in 1913, after the adoption of the Sixteenth Amendment, the policy of taxing the net incomes of individuals and partner- ships was revived. These four forms of taxation, customs duties, excises, taxes on corporations, and taxes on individ- ual incomes formed the mainstay of federal revenues m the years just prior to 1917. In April, 1917, when the United States declared war upon the German government, the certainty of huge mili- tary expenditures necessitated an increased revenue. It was not deemed to be just or expedient that all the funds needed for carrying on the war should be raised by borrow- ing, but rather that the present generation of taxpayers should be made to bear its proper share of the burden Hence Congress, by a series of war revenue measures, not only extended and increased some of the existing taxes but resorted to new forms of federal taxation as well. The excises on liquors and tobacco were made higher, while many new excises were imposed, for example, upon tele- grams, railroad tickets, automobile sales, certain legal papers, and so forth. The rates of taxation, both upon the net income of corporations and the net income of individuals. ■1SS£ta' THE TAXING POWER 229 were much increased. A tax upon excess profits, that is, upon all business profits above a certain point, was levied for the first time in American history. By these various tax meas- ures the nation's normal income was many times multiplied. This great widening in the area of federal taxation means that both the nation and the states are now to some extent taxing the same things. From the citizen's point of view this is double taxation. Contrary to the popular impres- sion, however, there is nothing in the constitution of the United States which forbids double taxation. The taxing powers of the states clearly overlap those of Congress, for the states are at Uberty to tax practically anything except imports, exports, the instrumentalities of interstate com- merce, and the agencies of the federal government. Many states now have inheritance taxes and taxes upon corpora- tions, while some have income taxes. In all such cases the inheritance or corporation or income is subjected to two different levies, one by the nation and the other by the state. Such double taxation, while not constitutionally forbidden, is unsound policy. It means that revenues are being drawn from the same source by two diffc-ent authorities, neither of which pays much attention to what the other is taking. Each imposes what it regards as a necessary and reasonable burden, yet the two levies put together may prove to be more than can be borne without forcing great economic readjustments. A sys- tem of taxation, to be highly efficient and at the same time equitable, . ' ould be coordinated in all its bearings. In each de^" ' field either the nation or the states, wherever p : )le, should be given the right of way. Competition h venues between two different authorities, each of whic. aas the right to gather all it can from the same sources, can hardly ever be made the basis of*sound public financing. Not all this extension of federal taxation has been due to the need for more revenue. The corporation and income taxes were levied before the huge expenditures on military account began. These taxes, along with the inheritance tax, have had in view, to some extent at least, the readjust- ment of the entire national tax-burden, so that a larger por- The widen- ing field of federal taxation. Federal taxation as a weapon to compel economio readjuat- menta. The tuturt of n:ilii)iiiil taxaliiiii. 230 THE GOVERNMENT OF THE UNITED STATES tion of it may be borne by the well-to-do than was the casr in the earlier days when customs duties furnished the bulk of the revenue. During the whole of the nineteenth cen- tury the larger part of the national revenue was not raised in conformity with the principle that those who are best able to pay should contribute accordingly. The high cus- toms duties were spread upon the whole population in the form of higlier prices. The rich, being larger purchasers, doubtless assumed some share; but relatively the load was much lighter upon them than on the poor. The excises on liquors and tobacco, moreover, fell chiefly upon the masses of the people and not upon the well-to-do. The income tax, on the other hand, with a rate which becomes higher as the size of the income increases, is a charge which ad- justs itself to the financial resources of each individual citizen. The inheritance tax also represents an endeavor to niake wealth rather than population the measure of the pubhc n mand from different sections of the country. Tax- ation, iii :v word, is liecoming in the twentieth century not only a means of raising money for public use, but of com- pelling such economic reconstruction as Congress thinks desirable for American society as a whole. Many people beheve that "swollen fortunes" are an evil in a democracy. ITie inheritance tax is one agency for reducing them ; the income tax with a progressive surtax affixed is another. Incidentally these taxes bring in a large revenue, and thus relieve the national government from depending so heavily upon duties and (excises. The future of national taxation ought to have a word because certain features of congressional poUcy in the domain of public finance are now becoming clear. It is unlikely that tariff duties will for some vears after the war contribute as large a proportion of the total revenue as in the years preceding it. The adoption of the Eighteenth Amendment, which prohibits the manufacture and sale of intoxicating liquors, deprives the national treasury of large sums which have hitherto been obtained from liquor excises. On the other hand, there will be a continuing need for a far greater revenue than in pre-war days, to pay interest upon the billions of war l)onds, to provide pensions, to carry ^i»>t:d^, iilji^-v.:.--^ iy;'"*-vw, JS^ THE TAXING POWER 231 through domestic enterprises which have been suspended during the war years, and to take care of many things which the nation's participation in the great conflict will inevitably throw upon the public treasury. Where is all this revenue to bo had? If the signs of the present day are not mis- leading, we may reasonably look for the continuance of taxes on incomes, inher. nces, and excess profits. Possibly tli(>ro may be a resort to direct taxes on properly, appor- tioned among the states, although this will never be the case untU the other producers of national revenue have been used to their full carrying capacity. In any case the history of American federal taxation during the first quarter of the twentieth century is certain to be altogether unlike that wliich marked the doting quarter of the nineteenth. Hie work of collecting the national revenue is in tlic How the hands of the Secretary- of the Treasury, but is performed by [^^[^^ two agencies in that department, namely, by the customs collected. and the internal revenue services. For tlie collection nf duties upon imports the country is divided into about fifty customs districts, each with a m.ain port of entry in charge of a collector or deputy collector of customs. For the collection of internal revenue taxes vhe countrj' is divided into a larger number of similar areas, about sixty- tiv(> in all, each also in charge of a collector. The work of tli(>s(^ collectors of internal revenue includes not only the levy of the regular excises on spirits, tobacco, and so forth, Init the collection of the corporation and income taxes as well. The assessments upon which corporation and indi- vidual income taxes are levied depend, in the first instance, upoii sworn declarations which must be filed by every oor- noration, partnership, or individual liable to taxation. Incomes of business corporations and of individuals below a designated sum are exempt. All collections are turned into the general treasury of the United States. This general treasury consists of the main vaults at Wash- The aencmi iiigton and nine sub-treasuries located in as many large ^n^th^ cities throughout the country.* These f'"'b-treasuries are sub-treas- the ji vernment's chief agencies, not only i r receiving th the Ix'^'imins, of a system of federal revenues which not only providcf" 'for the ordmary expenses of government, but maile possible the gradual extinction of the nation's indebteilness. Duriiifr the War of 1812 some new bomls were issued, but twenty years after the close of this war the entire national deb't had virtually been paid off. Not only that, but there was a surplus in the federal treasury which (A)ngress distributed among the states although there was no legal obligation to do this. For twenty-five years, 1836-1861, the United States was the only great country in the world without a national debt of any appreciable dimensions. Then came the Civil War, and during the years 1801-1865 the debt rose by leaps and bounds to an unprecedented height. At the close of this war the interest-bearing indebtedness of the nation stood at about three billions of dollars, but this does not tell the whole story, for much borrowing had m reality taken place through the issue of paper currency. This fiscal h(>ritage of the conflict was steadily reduced, however, and during the twenty years which followed Lees surrender the national debt was brought down to about six hundn^d millions.' Then the pendulum began to swing once more in the other direction. In the second Cleveland administration bonds were ^ued to replenish the gold re.serve in the treasury, and 1;. r, during the war with Spain, there were additional borrowings. The build- ing of the Panama (^anal, during tlie ensuing era, added several hundred n.illions to the total, so that the national debt, on the eve of .America's participation in the European W ar, was about a billion dollars in round figures. Viewed in the light of to-day this single billion of onlv a year or two ago seems insignificant. ITie war borrowings for the two years 1917-1918 alone amounted to over fifteen bil- lions, or more than five times the highest figure ever reached at any previous time. During the first quarter of tne nineteenth century the Supreme Court w.is called upon to interpret the scope of the THE BORROWING POWER 235 powe conferred by the borrowing clause; iu other words Sfop«of to settle the question whether Congress might, under cover ">»*'"'to»'- uf Its power to borrow money, establish a national bank, m'^.w The constitution contains no mention of banks orbankinjr. T*"^ t , . . . , ^ . , , '"' charter A proposal to give tiie national government such power banks? ill express terms was rejected by the constitutional con- vent ion. Accordingly, the power to barter and regulate l)aiiks might at first glance be looked upon as fa! ing within the residuum of jurisdiction reserved to the states.' But .Vle.xander Hamilton, as Secretary of the Trea.sury, outlined ;i plan for the establishment of a great national bank, some- what after the model of the Bank of England, and in 1791 Congress chartered the first Bank of the United States, The first the ostensible purpose of this action being to provide a f',"','^./ *''* financial institution which would assist the national govern- states, incnt in the exercise of its borrowing power, in the collection i'^'-'^'^- of its revenues, and in the custody of its funds.^ Washing- ton was in serious doubt as to whether he should sign the bill which chartered this bank, but Hamilton in an able state paper persuaded him to give his si, nature despite the strenuous opposition of Jefferson, who was also a mem- 1)(T of the Cabinet as Secretary of St: *o.^ The first Bank of the United Sta' ^ continued in exist- its history cnco until 1811 when its twenty-yea charter expired. It ""'*''"''• had a capital of ten millions and established eight branches in different parts of the country. It served as a depositary for public funds and also loaned the government consider- ' .Jamos Madison, as is well known, took this Krouiul. dtolarinK that the cstaWishmpnt of a national bank would be unconstitutional, and assort- ine that the claim of (Congress to charter a hank was 'Condemned by the siiencc of the constitution ; was condemned by the rule of interpretation arising out of the constitution ; was condemned by its tendency to destroy I he main characteristics of the constitution ; was condemned by the exposi- iiKii^ ,)f tlie friends of the con.stitution whilst depending l>efore the people. In 1781. several years before the adoption of the constitution, the Hank of North America had been chartered by the Congress of the Con- tidcration. This institution, however, encountered popular opposition and soon surrendered its ch.-vrt^ir from the CouErrest!. ubtaiuissif isisttwi n i^^liarter from the state of Pennsylvania. See Lawreuut? Lewis, HUtvru W the Bank of ^forth America (Philadelphia, 1882). ' This document is reprinted in H. C. Lodge's edition of Hamilton's \\urk.-i (Federal edition, 12 vols., N. Y., 19(M). The second Hank of flio United States. The question of its ron- stitutionul stutua. The deci- sion in AfrCitllorh V8. Mary- land. Chief Justirp Marshall on the implied power to charter banks. 23C THE GOVERxXMENT OF THE UNITED STATES .il.lo sums from timo to time. The bat.k w.s woll nianaRed and proved profitable, but its charter was not renewed^in sma i St Jto h T""T '' '\^^^^«"«*''i t»»« oppo.sition of many u^. In . "^' ""^r ^"'^'^^'y "f **'« "^^»«»al institution was now strongly reflected in Congress.' Five years later, however, the financial embarra.ssments caused by the War of 1812-1815 determined Congress to estabhsh the second Bank of the United States, and it.s charter was signed in 1816 by President Madison, whose mVs^v'ngs what iSr "^^"^''"^T^''*^' '''' ^'^ become'lomi thirty-hy(« millions ; it was empowered to issue paper monev ' It served as a depositary for public funds; it ass s^ed the treasury- department in the collection of the public revenues and at times made temporary loans to the national govern- ment. Its charter was to run for twenty years bJrh/." 'f ' '^' '"'^""^y °^ ^^^"^••-^ t« 'Charter a bank had not come squarely to issue before the Supreme Court but the .second Bank of the United States had no s itutionaity was brought forward in a way which enabled the point to be settled for all time ^"aoiea fix'oil^tlfet' J^^'^^"*"'-^ °f ^^I'-^^yl-nd imposed a stamp ax on the bank s paper money, and the cashier of the Bal- timore branch, McCulloch, refused to pav this tax The matter in due course went before the Supreme C.nirt of the United States. This tribunal, in ISlO.'set a new land- mark in American constitutional development bv its opinion m the famous case of McCulloch vs. Maryland} The dec" ^u>n in this case written by Chief Justice Marshall, has become a classic of American jurisprudence. It is the most cogent elucidation ever made of the doctrine of "imXd powers." In words which for clearness and force cTnot be improved upon, Marshall laid down the prh dple tha though the national government "is limited as to its oL (Philadelphia, 1910). """''"'°'^^'^' ^^ ^*'-«' Bank of the UnUed State, ' 4 Wheaton, 316. 'm^s'm: THE BORROWING POWER 287 jccts," it is none the less "supremo with. respect to those objects," and hence that where an express object is author- ized by the constitution, "any means adapted to the end, any means that tend directly to the execution of the con- stitutional powers of government, are in themselves con- stitutional." In express terms the constitution had given the national government the power "to lay and collect taxes" and "to borrow money on the credit of the United States." It had also expressly granted to Congress the right "to make ail laws which shall be necessary and proper for carrying into execution the foregoing powers." Putting tiicse provisions together, the Supreme Court held that Congress must be allowed discretion in choosing the sort of laws "necessary and proper" for carrying out its un- doubted right to collect revenue or to borrow. Congress being thus authorized to provide its own finan- cial mechanism, it followed that any administrative agencies created for this purpose must not be subjected to factious interference by the states. "If," declared the Court, "the states may tax one instrument employed by the [iiationn'l government in the execution of its powers, they may t;-< -iny and every other instrument. They may tax tlie mail ; they may tax the mint ; they may tax patent riilhts ; they may tax the custom-house ; they may tax judieial process; they may tax all the means employed by the government to an excess which would defeat all the ends of government." For this convincing reason the law of Maryland which taxed the circulation of the United States Bank was declared unconstitutional. The decision in this case was of the highest national importance, for it set the authority of the federal govern- ment upon a firm and sure foundatir Its reasoning is a tribute to Marshall's intellectual power, to his political sagacity, and to his mastery of the English tongue.' Al- No state may tax the cir- culation or deposita of banks chartered by Congress. Impor- tance of the decision. ' " Marshall was probably the greatest judge that ever lived, when one oonsidors the wonderful cogency and bea\:ty of his judicial style, his states- iiuui's foresight, the accuracy of his iogai h\rning, the power of his rca. on- incr, his soundness of judgment, his wo;.d .^rful personal influence over his (•iili('at,aifs, i nd the fateful influence of his work upon the structure of our prt^at ijovinmont." — W. H. Taft, Our Chief Magistrate and His Powers (X. Y., lOitij, p. 46. 238 THE GOVtRNMKXT OF THE UNITED STATES Jar km Ill's wnr on the Bank. Its i'Xi)i!u;< liiinka and haiikinR from the .larkMonian era to tho Civil War. The Nitional Hankinc Arts of 1SI)3-18".5. though not rehshed a tl„ Hmo by the extreme champions of state rights, it is t-.-duy ui. v.-rsally conceded to have marked a triumph of union over sectionah.sm and to have saved the nation from what w(-uld .surely have liecn the first of a series of inroads upon its cons tutional prerogatives ■ The second United Su :- B.uik cam,, to an end in 1837 hut not hecaus,. of ai,v uht : as to its constitutional status, nor yet because ^t .... kr.i ,rusp..nty. It was drawn ui o thepohtwil arena, « f. re \n.',ew.ru.ksonand hispohti- cal supporters waged V. a np.P ,,. The allegation was that managers of the bank s ,, ran. 'k - ,„ dil -rent parts of the country were showing i.oliii.al ..oriilsiu in mnking loans, jind that the bank its, If was ...loavonn^ tn .-rush loca monopolv. This line of attack pro^..d etu-ctive in a day of strong anti-capitalistic feeling. Ja.-k.on vetoed a ,ill passed l,y Congress f„. renewing thr ..nk's charter and withdrew all government diposits fron, it. Fore ! o the wall, the mstitution was in 1S36 .onvorted into a staf bank but in this held it was unsuccessful and finally went <- ^ of existence ahogether.* ' .\lthough movements for the estabUsfimt nt of i n-w bank with a federal charter were set afoot trorn time to time during the ne.xt twenty-six years, none of them resulted in success. Tlie banking of the country was carried on uring Uus period by institutions chartere.l in the several states But m 1863, muur the financial stress of the Civil War when the Secretary of the Treasury was n.r pressed in hi^ ettort o .'11 bonds on reasonabl.. terms, Congress was induced to pass the first of the laws whid. laid the founda- tions of the American national banking system as it exists at the present day. Bri.fly. the National Banking Act of 1863. .,s con,sider- aljiy amende.1 by other stnfutes pa.ssed in the two foUowiue y-ears. imposed a heavy tax upon the circulating r^otes of dl state banks, with intent to drive tfiis paper cu-rency out ' The full hi9t«ry of its vicissitudes mav'b.. found in R r r-tt— le. i TflE nORKOWING P«>\VF?{ 23*) of existence. It thtn rovifiwl hat any mnk incorporated under thr uew law t -rht is.su»^ untaxefl circulating mrioH, pre Mli'd it bt'Ught .united St:; <•« (khi's fo .^ (Josigni^ini a nu>un! and deposit t i these h. in i-, in singvvm a-i security !i»r its note issues. Fundai .•ptall u-n. thir legislation was merely a scheme to creat' ..a urliht-iai market for ;ov- I lament Ixmda at h tinn' of gr*'at natii al leed, althof ■ a >«■( itiiury purpo-" M-a^ to siih^ttute inii »nn bank notes d\ wit i fi'deral gu.^ ,iutee f ir the i Itifarou issue- of state b aks, tl is pl;5 - a iuiit unou But tiif li'g'!*!ation oik >{ out sm risin the war its iuin pro\i>i. 'is hav(^ .Oftt c nous nflation. mn y amendments 'r, it ive be. n m. thousand nati ' A banks n iw inel: i. tcin. At any -ute ♦!■ U ^al ■ . '- run control and supt -vis .• • e n;. 1 b; ■A corollary from e f xi^rt- .»wei uti' money on the or of t' litfv) - es.' Tie sup<''-visii »f 1. hargc f t. :*' Coinpf '•olwr oi t; (ic Trcasur} )pparti« i«nt wno flic ,eneral vaminition of thf approval of af>ph'c;i ns tu f^*' ciiarti )f th«^ ., irp. :' !> it: •ihou' inspecting, the bani tu ill' '-vene whenever a b fuany years prior tt \s: U. ai iin»^i" N- nnce hough eigli* • sy .t-d stem , to borro* banking system is in super- rrency, an otficial in vUioaof ./, , , national responsible not only for banks. '■■ accounts but for the ish new banks. He has ank examiners who go y (> and he lias power ms t- )e insolvent, t was ,'enerally recognized Defects es tliat the natitmal banking system "'*■'"'. ■states i■!■ ;i. .: lUUIl li^^- snia. this re.ser\ itter banks, again, have i i illowed to keep a part of their f'serve.s the banking institutions of New York City. This iiolicv ot ing the amount of rc'^erves in terms of definite perc .;' and of tying them up among a hierarchy of laiik- J for many year* to deny the American banking The fi'iioral reserve bunkiriK s>stem. 240 THE GOVERNMENT OF THE UNITED STATES system that considerable measure of flexibility which i« to be fouml in the financial arrangements of othel countnes. The reserve requivements proved to be higher than necessary in times when deposits were coming in freely, and not high enough when heavy withdrawals were bemg maae. When a financial crisis occurred, as in 1893 the smaller banks did not find it easy to call in their reserves promptly. To give the national banking system greater elasticity, n 7q r' u" u""^"""^ ^''''''^ ^'^ ^^« P^«««d by Congress in 1913 By the provisions of this statute the entire terri- tory of the United States is divided into twelve federal reserve districts, with a federal reserve bank in each. The capital stock of each reserve bank is contributed by banks within the district, the n-ional government also subscrib- ing :f necessary to make up the amount. Each reserve bank 18 controlled by a board of directors chosen in part by the banks who own stock and in part by the national government through a body known as the Federal Reserve JBoard. This board is composed of the Secretary of the Treasury, the Comptroller of the Currency, and five other members appointed by the President. These twelve federal reserve banks are now the reserve depositaries for such Xt «f , 7.' ^T '""^l''^^ t« their capital stock, and they also lend funds to the smaller banks upon approved s^ecurity when funds are needed. The Federal Resell Bo.rd has authority to change the percentage of reserves required ana each of the twelve federal reserve banks ^as the right to issue paper money. In time these notes will utkT tI "'''' ^^''^ ^'^' ^^^" '««"«d by the national Danks. The new system thus secures leeway in the amount of reserves required ; it discourajres the piling-up of funds in any one large financial centre; it enables small banks to get their reserves quickly when needed nnd also to borrow or rediscount easily ; and finally, it provides in the Federal Reserve Board a central authority which is able to furnish the entire banking interests of the nation with guidance in an emergency. It gives the United States, in a word, the larger part of the advantages which other great countries derive from their centralized banking systems, yet it doe II ' THE BORROWING POWER 241 not create a single gigantic institution like the Bank of England or the Bank of France. Tliese agencies, then, the national banks and the federal The reserve banks, provide the government with an adequate ^^*ati^,n,,i means of regulating the flow of currency, collecting the borrowing, revenues, and borrowing money. Niw as to the methods by which the national government exercises its power to borrow. The most common plan has been to secure loans by the issup of bonds. These bonds are promises to pay on tlip expiration of a designated period, say twenty, thirty, or forty years, with interest, at a stated rate during the lifetime of the bond. For the most part the national gov- ernment has borrowed from banks or groups of banks, giving them the bonds which they either resell to private investors or deposit at Washington as security for their own circulat- ing notes. But at times the bonds have been offered for public sale, and subscriptions 'lave been taken not only by l)anks but by post-offices and other government establish- ments. To facilitate a direct and general sal to the public, some of the bonds sold during the Spanish War were issued in denominations as low as twenty dollars, and the " Liberty bonds" issued during the European war were put on sale in denominations as low as fifty dollars. Even so, how- ever, a very large proportion of these bonds were sold to toe public through the banks. Bonds are of two types, registered and coupon. The Types of former are registered in the name of the owner upou the ^^"^ books of the Treasury Department. The interest is paid by cheque from Washington to the holder whose name is so registered. Registered bonds can be transferred only by written indorsement. Coupon bonds, on the other hand, are made payable to bearer, and the owner secures his interest by presenting the coupons which are attached to the bond and which are also payable to the bearer. Coupon bonds are transferable by mere delivery. The Treasury Department keeps no record of those who hold them. For permanent investment the registered bond is preferred ; the holder does not suffer loss if his bond is stolen or destroyed ; and the interest payments come to him regularly without any action on his part. Coupon C^-M Tmuiiiry uotes. I i^ Borrowing hy the imun of curreaey 242 THE GOVERNMENT OF THE UNITED STATES bonds arc preferred by those who hold bonds for speculation or who desire to have securities which mav be quickh turned into money when needed. As the greater part of the bonded debt of the United States prior to 1917 was held by banks and other institutions of investment, the rc«-istered bonds formed until recently the major part of the total issues. But the huge borrowings of the last two years bemg floated largely by the issue of coupon bonds, have changed this situation. From time to time the United States has also borrowed money by the issue of treasury- notes. These are promissorv notes issued in denominations of from five to one thousand dollars and maturing within a short time, usuallv from one to three years, or even on demand. In some case.s they have been issued bearing interest, in other cases without interest During the Civil War these treasu' ' notes, of all varieties were issued to a total of nearly two billion dollars. At the close of the war most of them were converted into bond^ Those which remain in existence bear no interest and have become part of the national currency. During the last few years large issues of interest-bearing treasury notes have also been put on the market, but merelv as a'prolim- inary to the selling of bonds, the notes ueing issued to provide money until the bonds could be sold and paid for. Certain issues of currency, for example the silver dollar, the silver certificate, and the fractional coins, have sometimes lieen referred to as examples of a method of borrowing m*, loy, inasmuch as they yiold more to the national government than it costs to issue them. Ordi- narily the silver dollar does not cost a dollar to coin, nor does the nickel represent five cents' worth of that metal llie difference between what they cost and T./hat the govern- nK>nt gets for them, however, is a profit rather than a loan, rhey do not, at any rate, form part of the interest-bearing debt and do not increase the burden placed upon the tax- payer. Bonds issued on the credit of the United States are not taxable by the states or the municipalities without the consent of Congress. This is a logical corollary from the general rule laid down in McCuUorh vs. Man/lnml lidil, THE BORROWING POWER 243 the bonds themselves and the income derived from them may, however, be made subject to federal taxation. Hiis, nevertheless, has not been the policy of Congress until within very recent years and then only with reference to bonds which have a relatively high rate of interest. The first war bonds of 1917 were made exempt from all taxation whatsoever; the later issues gave to each holder a limited (xt'inption. \n no case has there ever been a repudiation of the na- tional debt of the United States or any part of it. Repudia- tion of the debts owed by some of the individual states, however, has occurred on several occasions.' Where such ;H'tion takes place, the holder of a repudiated bond has no offoctive legal rodress. He cannot sue the state except in its own courts, and even there he has no status as a plaintiff unless the state gives it to him, which it is not likely to do. He cannot enter suit in the federal courts, because the Eleventh Amendment prohibits federal courts from hear- ing any citizen's suit against a state. After the Civil War there was a fear in financial circles thnt some portions of the national debt might be repudi- .itcd. To allay these misgivings the Fourteenth Amend- ment provided in 1868 that "the validity of the public debt of the Uniti ; States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." It was furthermore stipulated that neither the United States nor any state of the Union should as- sume or pay any debt or obligation incurred in aid of in- surrection or rebellion against the United States, or any claim for the loss or emancipation of any slave. Debts incurred by the Confederacy or by any state of the Con- federacy in connection with the Civil War were thus nullified liy constitutional pro"'«'on. Tlie burden of a : al debt may at times be lessened hy the process kn ..• s refunding. The government, ivh(>n bonds are issue^ lUay reserve the right to pay them ' Eleven states, mostly in the South, have repudi»t«>d (somo of th«r State issues at various times. W. A. Scott, The Repudiation of Slate Dtbtf (N.Y.. 1893). U. S. Imnas aro not aubject to || state !! taxation without the con.«nt of ( "onuresM. i i i 1 i Repudia- \ tion of ' public debta. The Four- teenth Amend- ment a.s a Becurity aKuin.st repudia- tion. The pnuj- tioe of ref'indinB. Absence of a national debt limit. Is a public debt a public evU? 244 THE GOV-ERNMENT OF THE UNITED STATES off at any ' ime after a designated date. If at that HrIp *u lower ra^ s Ur at the expiiy of the term desienated in the bonds It may offer the holders their choiceSer of inttcrTti"^ "' "^" 'r^ ^^^""^ ^ ^-- - doZ \ I government, for example, borrows a billion dollars a five per cent in war time on bonds which are to Z for twenty years this does not mean that it must either7^ ferei t /" "' '^" '"P'^^r"^ *^^* P^""^ or keep on paying Z terest at five per cent. It can, and probably will, " refS' he loan at its expiration by the issue of new bonds bear- ing only four or perhaps even three per cent interest This IS entirely fair to the original bondholde>-s, whTget the r option of either taking cash |,ayment as p omised or new bonds at current rates. It is thus possible fo lessen the S burden of a national debt without actually paying it off Many of the states have placed in theb "^constitutions various provisions which limit the total amounts wS the state authorities may borrow on the pubUc emit Phey have even more rigidly limited the amounts whi h becTu^none" wasTC Tn'tV'^ t^^"? "^^ '«^^^^' «f„+« • ■ P'^^^" ^^ the national constitution States ana municipalities are often prohibited from borrow- when tW 1" r"'P""^' '""^ '""'y ^'^ -"^^ti'"- -qu" ed, when they do borrow, to establish a sinking-fund which enueT-iU be siiffi "Tf ^«"*"^"*-- -^de t'o it from ret' enue, Mill be sufficient to extinguish the debt at its maiuritv No such limitations are placed upon the borrowing powers of Congress. It may borrow for any purpose Tt anv tfrne mrt l7T'''^r' "^"■""* -^'^•"^ P-Ti'offrre^^^^^ Tvilw of i '' ^ '"''"^P^"^ P^^^'-' ^^"t necessarily so m view of the emergencies which may arise. we^e pou'ala^W ?\''? ^'"''''*^'°'^ "'' ^^^ -» P^^ic debts ^ere popularly looked upon as public evils. To eet the nation out of debt altogether was deemed to be an end worth greatly needed. To^\y. ^^.S!^: J^ZZ^Z^Zl m^^^ THE BORROWING POWER 245 away. The whole national bank circulation of the United States, for example, rests upon evidences of public indebted- ness. Economists agree that the creation of debt for certain purposes and within reasonable limits is entirely justified. The doctrine propounded by the first Secretary of the Treasury, Alexander Hamilton, that a public debt, if not excessive, is a source of public strength in that the holders of government bonds become influential factors for politi- cal stal)ility would hardly receive general acceptance at the present day ; yet the opposite contention that all public debts are public afflictions is still further from popularity among authorities on public finance. Enterprises which result in permanent or semi-permanent value to the people, such as the building of the Panama Canal, or the purchase of forest reserves, or the extension of national territory ought not, in all fairness, to be paid for entirely by the tax- payers of a single year ; that is, they ought not to be wholly paid for out of current revenues. Borrowing money in such a way that the cost will be gradually liquidated in the course of a term of years is the fairer plan, provided, of course, tliat this policy is not so distorted as to pile up huge incre- ments for future generations to bear. A nation may be lioth prosperous and thrifty while yet having a national delit of large dimensions. So, too, the huge national ex- penditures which result from participation in armed conflict cannot be placed entirely upon the taxpayers of the day, for tlie dead-weight thus imposed upon the nation's whole economic system would liandicap production and thus serve to impair its military resources. Business conditions take time to adjust themselves to a new and unexpected situation, hence too severe a dislocation should not be l)rought about if it can be avoided by a reasonable exercise ot the borrowing power. Practically the entire debt of the United States has been incurred for one or other of two purposes, public improvements or war. CHAPTER XVII Commerce and national prosperity. Commercial chaus before the formation of the Union. THE POWER TO REGULATE COMMERCE "The prosperity of commprco," wrote Alexander Hamil- ton m 1788, "is now perceived and acknowledged by al enlightened statesmen to he the most useful as well as the most productive source of national wealth, and has accord- ingly become a primarj- object of their poUtical cares." ' It was m recognition of this truth that the framers of the national constitution gave to the federal government what have proved to be powers of paramount importance in the matter of encouraging, maintaining, and regulating the commerce of the several states both with foreign coun- tries and among themselves.' The chaotic condition of American commerce, indeed did about as much as anything else to bring the states together m constitutional union. After the close of the Kevolutionary War some discriminatorv jules against American commerce were made by Great Britain, and the Congress of the Confederation had no way of making reprisal. The various states themselves were adopting commercial tariffs against each other. Connecticut, for example, threw her ports wide open to British shipping • The Fede-nlial, No. 12. infi'J''V'''"'''' '" *•"' '"^"°"«1 constitution directly rdating to the regu- lation of pommpfpc are as follows : s, uo icgu ^J^^ <^°y ««s shall have power ... to regulate pommeree with foreign Tsection 8 1*"""**^ ^^ '***^'' •""* '"'^^ ^^'^ ^°'^''''* *"^««- (^t'*« i, sSiS) *'"*^ '''*" ^ '*'** '"' "'*'"''" "'^P'^'t^'^ '""" ^^y st^'te- (Article No preference shall be given by any regulation of commerce or revenue to the ports of on,. «tato oyer those of another ; nor shall vessels bound t«, ?LhT •""%'• *n^ °^^'^ ^"^ ''°*^''' ''^^^' "' P»y duties in another (Article 1, section 9.) ««iv.iai«. 246 THE POWER TO REGULATE COMMERCE 247 while all goods imported into Connecticut from Massa- chusetts were subjected to duties.' Such commercial dis- criminations, as the world has too often found out, lead ovontually to retaliation and often to open hostilities. The mischief was great and the dangers for the future were alarming. Never could the several states hope to live in peace and amity among themselves if each preserved the right to secure its own commercial advantage by setting at naught the welfare of all the rest. The forward-looking mon of the thirteen states realized, therefore, that the com- merce of all must be placed under uniform direction or the "most productive source of national wealth" would not be available in proper measure. The regulation of commerce m.ust be made uniform, and uniformity could only be had by giving the regulatory power to some central body. The constitution, therefore, gives to Congress complete power to regulate commerce with foreign nations and among the several states, but subject to the limitation that such regulation shall not give to one state any preference over another, and that no export duties may be levied. These provisions are deceptively simple on their face ; in reality thoy have become, in their application to present-day com- merce anc' commercial methods, more difficult to define with exactness than almost any other powers granted in the constitution. They were framed in days when life was simpler, when the agencies of commerce were pack-wagons and sailing vessels, when there were no steamships, railroads, tf'lofiraphs, or lelephones, and almost no manufacturing for sale outside the immediate locality. The task of fitting th(se phrases of the eighteenth century to the intricate commercial and industrial conditions of the twentieth has drvolved upon the Supreme Court. It has been performed, however, with a degree of persistence and of ultimate success which provides us with a striking illustration of constitutional expansion. As the Supreme Court frankly avowed in one important decision, the commerce power has been extended "from, the horse with its rider to the stage- coach, from the sailing vessel to the steamboat, from the ' F>,r many other examples of intcrstato commercial rivalrj', see A. C. McLaughlin, The Confederation atul the Comik'Uion (N. Y.,'l905). What the constitu- tion Rives to Congrpsa in the way of powers over com- merce. The expan- sion of these powers. 248 THE GOVERNMENT OF THE UNITED STATES -X Tho rirst landmark in this expansion : (lihlmiis vs. Ogiiin 1 1824). Exact definition of the coni- mcrrp power is impossible. ^Tiat is commerce ? ii v. h r r L coach and the steamboat to the railroad, and from the rail- road to the telegraph, according as new agencies are suc- cessively brought into use to meet the demands of increasing population and wealth." ' No one in the constitutional convention could have had even a remote idea of the vast potentialities which lav- concealed in these three words "to regulate commerce" nor did tin iull iniport of the authority begin to be realized until at least a generation after the Union was established. The decision in the famous case of Gibbons vs. Ogden (1824) first brought home to the states the extent of the juri.s- diction which they had handed over to Congress, and from that time forward the commerce clause has been steadily including one thing after another within its broad bounds. The elasticity of the written word finds ampler illustration here than in any other field of American constitutional development. Words and phrases, when used in a con- stitution, have dynamic properties. Their meanings keep step with social and economic changes; they expand to coyer the necessities of each new age; they signify one thing in this generation and another in the next. Those who deplore the cold rigidity of written constitutions and laws make the error of postulating the static character of legal phraseology. In endeavoring to explain what the phrase "to regulate commerce" means to-day one is confronted with an initial difficulty. The phrase has never been authoritatively defined, and cannot be. The Supreme Court has never ventured to say that here the power begins and there it ends. An authority so vast and su steadily exp nding does not, indeed, yield to exact definition. Yet from the multitude of its decisions the general lines of jurisdiction may be staked out, always with the reservation, however, that what is the law of the land to-day may not be so to-mor- row. What, then, is the commerce which Congress under certain limitations may regulate? We have the word of Chief Justice Marshall that "commerce is intercourse," but that does not carry us far when it is further explained ' Pensacola Tel. Co. vs. W. U. Tel. Co., 96 U 8. 1. S'..^fflR'J%?iJSfi» THE POWER TO REGULATE COMMERCE 249 that not all intercourse is commerce.' Does commerce in- clude not only trade in merchandise l)ut the transportation of passL igers and the sending of messages by telegraph or l)y telephone? The answer is chat the term " commerce," whatever it may have meant to those who gave Congress the power to regulate it, includes all these things to-day. It ciiibraees navigation in all its phases, and every form of transportation by land. It includes the transmission of intangible things, such as messages sent by wire or by wire- less. It has broadened its scope to cover transportation through the air as well. Mention has been made of the first great mileston- in the evolution of the power to regulate commerce, the decision in tiie case of Gibbons vs. Ogden? In this instance the Supreme Court held that commerce among the states is not tlie mere buying and selling, or trading in goods, but includes all the instrumentalities of trade such as vessels carrying goods or passengers from the ports of one state to those of another. Hence it was declared that no state might prevent the use of \i? own waters by vessels plying between the ports of two different states, that is, by vessels engaged in interstate commerce. This was but the first of a long line of decisions, which, especially during the last forty years, have steadily widened the federal law of com- merce. By one decision the term " commerce " has been held to include passenger traffic ; by another to include tele- grams ; by another toh piione messages ; while by still another the transportation of oil in pipe lines has been held to come within the scope of tlie term. On the other hand, it has been declared by the Supreme Court that such things as traffic in bills of exchange or the selling of fire and life insurance policies are not commerce. Nor does it in any 'veiit include the manufacture of goods even when they are iitended to become articles of interstate commerce. Com- icrce does not begin until the product has started on its way. Commerce may begin after manufacture has been completed but is not a part of it.' In a word the term "commerce" to-day "embraces navigation, intercourse, • Brown vs. Maryland, 12 Wheat. 419 (1827). ' Above, p. 248. ' U. S. vs. Knight, 156 U. S. (1895). Stages in the broad- oninK of the terra. Passenger and freight traffir, telegrams, telephone serviee, pipe lines, etc. Does not inrlude bills ijf cxchaiiKP. iiisurauco, or iimiiiifiic- ture. The relation of manufac- turiDK to fi'denil <'outrol. Congress cannot by the ex- ercise of its commerce power, control the incidents of manu- facture. The child- labor decision (191S). But Con- press may exercise Bome control through taxation. 250 THE GOVERNMENT OF THE UNITED 8TATES communication, traffic, tho transmission of persons, and the transmission of mpssagos," ' but docs not include banking transaction.-*, insurance, or manufacture. All commerce, &a thus defined, wlien carried on either with foreign countries or among the several states, is from start to destination wholly under the regulatory power of Congress. When it is said, however, that manufacturing has not been held to be included in the term " commerce," this .does not mean that the processes and incidents of industry cannot be to some extent controlled by the federal government. All larji ^ industries of to-day depend on a large area for their raw materials and desire a wide market for the distribution of their products. Their import of materials and their export of products, if not their actual work of manufacture, fall within the scope of commerce. They buy raw materials in one state, make them up in another, and sell the finished products in several more. Even the processes of manu- facture must depend to some extent upon the regulations under which tnis interstate buying and selling goes on. But the extent to which Congress may make such regulations is not well defined. During the years immediately preceding 1918 it was assumed in many quarters, for example, that Congress might prohibit the sale in foreign or interstate commerce of goods made by child-labor, thus placing a damper upon that sort of employment. But the Supreme Court decided in 191S that the act of Congress which imposed such prohibition was unconstitutional, being a federal int«>rference in a matter which belonged to the states alone. For the time being, therefore, it is settled that Congr(>ss cannot, under color of regulating interstate com- merce, dictate the conditions under which manufacturing shall be carri(>d on. On the other hand, the Supreme Court is clearly on r(>cord as upholding the right of Congress to tax the manufacture of a product, even to an extent which actually operates to prohibit manufacture.* Manufactur- ing is not commerce or subject to regulation as such ; but by virtue of its taxing power the national government has a method of controlling to some extent the processes and » Champion vs. .1 mes, 118 U S. 321 (1903). « The Oleomargarine Case {McCray ^ h U. S., 195 U. 8. 27), 1004. Ili \ THE POWER TO REGULATE CO! i MERGE 251 itiK'dents of manufacture whether for sale within the bounds of n single state or outside. So much for a short survey of what commerce is. When does coiiimorco concern a single state alone, and under what circumstances, on the other hand, does it come within the sfopp ot "commerce with foreign nations or among the several states " ? The division of power between the federal ami state governments on this point is now well settled, although it is not a logical division. All commerce which hcflins and ends wholly within the bounds of a singb state is intrastate commerce. The state alone can deal with it. lint if at any point between its beginning and its end it passes outside the boundaries of the state, no matter for how short a distance, the whole transaction goes out of the state's jurisdiction and into the domain of Congress. Goods sliipped from Boston to New York are under federal regula- tion from one place to the other, not merely while crossing the intervening states. In other words, the only way to keep from coming under the federal commerce power is to live, move, and have one's being wholly within a single state. Under present-day conditions of general economic int(>rcourse that is a practical impossibility. The federal trovernment has thus become the groat regulator of American commercial and industrial life. That is why economic problems have thrust themselves so far to the front in diseussions of national poUcy. Having pointed out in general terms th^ extent of the Limitations commerce power possessed by Congress, it remains to indi- '^^p^of cate more specifically the Hmitations phu-i-d by the con- Congress to stitution upon the exercise of this authoritv. In the first 3/^^ place when Congress undertakes to regul. !'• foreign com- commerce, merce, it must do so uniformly. It cannot discriminate in f;ivor of one section of the cotmtry, or in favor of one part of the population as against any other. If it impo.ses duties upon imports coming into the United States from forcisu lands, those duties must be levied at the same rate in all jjorts to which the goods may come. The same rules m.u.st dotprmine the method of valuing the goods, collecting tlie duties, giving refunds, and so on. Congress must regulate with an even hand. There must be no sectional 252 THE GOVKflNMEXT OF THF UNITED STATES The tftriff as an in- strument of oommeri'ial regulation. HpirinninKM of Atnericim tariff hi»t')ry. Hamilton's Report nn Manu- faeturia (1791). partiality or distriminnfioii. If Congress should try to col- loct a liigluT duty on sugar coiiiirig from Cuba to Now York than on sugar coming froi'i CuIki to N' «■ • loans, its action would bf dearly unconstitutional. Su long as it observf-s the rule of uniformity, however. Congress may levy duties either a- a means of regulating commerce or of securing revenue, without any liinita' on as to their nature or amount. Strictly speaking, a tariff imposed for revenue only is im- posed by virtue of the taxing power, while a tariff avowedly framed for protection comes more properly within the scope of the commerce power. But this distinction is of no practical importance, for Congress has never imposed any duties which could not easily be justified as coming well within both of these powers. A word on the tariff policy of Congress may not in:ippropriately be added here, for tariff questions have bulked large in the history of American poHtics, more consistently so, perha(.<. than any other single issue or group of issues.' To begin with, the prevailing opmion in the thirteen states .-it the close of the Revolution- ary War leaned rather stron^'ly to the doctrine of free trade. That was natural, bcfausc the taxing of trade by parliament had been one of the lausra of the war. But when the constitution had ber:i adopted and a new national government established, one of the first acts of Congress was to rnact a tariiT in which the desirability of protecting the industries of the cuuntry was frankly asserted. The duties imposed by this first tariff of 17S0 were relatively low, but they mark the beginning of the protectionist movement. This movement soon fcained force, moreover, by rea.son of the logent arguments put for, h in its behalf by Alexander Hamilton in liis f-imous Rej^irt on Manufactures (1791), a document which still ranks as a classic of protectionist literature. Ntv<'rtheles>-, the duties on imports continued to be fixed at low tigures, and there wa.s little in the way of tariff controversy until the war with England began in 1812. Duties were then doubled, and when the war was over; they were nor materially reduced. During the next ' For a full narrative 8«h> F. W. Taussig, Tarif UiMory oj the United States (6th ed., N. Y., 1914). THE POWER TO Rl lULATE COMMERCE 25!) two decades, indeed, th« v kept goinR lip; thp principle of Thetarifti tariff-for-reveiiuo heing rdoRated to the background, while '^riodpre- protectionist sentiment gained headwnv. '[Tie northern ceding the states favored protection, nnd they wen- lor the time in the "'• ascendant. By 1832 the tariff had become a powerful weapon of industrial protection. Then came a reacMon, slow at first and temporarily interrupted on one occasion, but gaining in impetus as the years went by. The tariff was revised downward from time to ; e until it was sub- stantially upon a revenut basis () Congress has revamped the tariff, re\ i. v n or revi ing it down, narrowing or widening the ■ '.' '...it , but it lia^ never dej.arted altogether from the pr : ■■ '■?=;■.• i< pro- tection. Congress continues to regulate foreign commerce iiV taxinji it for the benefit of American industry. The (■(institutionality of its power to do so is not doubtful in the slightest degree. ITie right to regulate commerce includes the right to tax imports or even to prohibit imp.T.-^o al- together. In the enactment of tariff legislation, however, the The prooed- national legislature has not always shown itself at its best. ^^ j, °"^ Tlio machinery of Congress is not well adapted to secure th' weU best results in tariff-making. Since 1861 all tariff measure. *^,1S!^a^. ' Hannnck'.'' wnrd.s wprp " thp tariff i a local affair." but his dictum has passed into popular currency as "a local issue." What he meant was that thf comitrv as a whole favored protection but that every local area wmit.d a different sort of tariff. smce Tarief de- velopmenta since 1880. 254 THE GOVERNMENT OF THE UNITED STATES The Till ft CommiaBion have been framed by the Ways and Means Committee of the House of Representatives. After this committee has prepared the bill and its accompanying schedules, the measure is taken up by the entire House. Here it may be amended at will in the interest of any proposition that can secure a majority. Then the bill as amcMided goes to the Senate, where the process of overliauling is continued, and in the end it invariably goes back to the House again. To reconcile whatever differences may exist between the action of the two chambers a Committee of Conference is appointed, and this committee makes the final readjust- ments. In the end the tariff is altogether Ukely to be a medley of compromises and trades, bearing litt.e resemblance to the measure as origiually drawn and with no one directly responsible for its final form. On rare occasions, however, this has not been th(; case. WTien one political party controls a working majority in both House and Senate, a tariff bill can be drawn and pushed through without sub- stantial change if the leaders are agreed upon what they want and if tboy have the support of the President. That is what happened in 1913. But the ordinary vicissitudes of American politics are such that legislative and executive solidarity of this nature is quite the exception. To better this situation resort has been had to the ex- pedient of a tariff commission. Ilie first step in this direc- tion was taken as early as 1865, but the work of the com- mission appointed in that year amounted to little and it soon went out of existence, llien in the early eighties another attempt was made. A commission of nine members was appointed; it studied tariff questions carefully and made recommendations to Congress, but the latter gave little heed to its advice. No further steps towards a more efficient tariff policy were taken luuil 1909, when Congress provided for the creai ion of a Tariff Hoard made up of three members appointed by the President. The duties of this board were to investigate and to report upon the condition of various American industries, their relation to the tariff, their production-costs, the rate of wages paid in such in- dustries, and the rates paid in corresponding manufactures in other countries. But before this board could accomplish THE POWER TO REGULATE COMMERCE 255 more than a small part of the work piamied for it, Congress refused to continue the appropriations for its support and it wont out of existence in 1912. The sentiment m favor of ^„nie such body would not down, however, and m 1916 Congress was persuaded by President Wilson to provide once more for a tariff commission. This board now consists of five members appointed by the President, one of the muTiber being designated as chairman. Its duties are to study the tariff needs of the countrj' from every point of view and to report annually with recommendations. It has. of course, no power to make any changes in the tariff, it-^ functions being of an informational and advisory nature only. Even so, its work may be of the highest value in adjusting future tariffs to the actual needs of the country, whether for revenue or protection, rather than leaving tlie matter a prev to partisan and sectional intriguery. By virtue of its power to regulate foreign commerce Jhe^^^l Congress has also passed numerous laws relating to the "^^j^^. immigration of aliens. These laws prescribe the conditions graUon. u-.ider which immigrants may enter the United States and exclude some classes of aliens altogether. For example, the ftHleral laws exclude all persons, except those engaged in the various professions, who come to the United States to perform labor under contracts made before their arrival. They also prohibit, with certain exceptions, the immigration of Chinese.' More recently a literacy test has been pro- vided by law for all otherwise admissible immigrants. Among tiiose inadmissible under all circumstances, however, arc insane persons, those likely to become public burdens, or afflicted with serious ailments, polygamists, anarchists, and p. rsons who have been convicted of serious crimes. Admissible aliens are required to pay, upon entering the United States, a small head tax. 'Hie administration of these ndea is in the hands of tue Howthe fommissioner-genoral of immigration, an officer appointed ™]J",f^g by the President. At each port of entry for immigrants ^J^""- .tiiere is a board of inquiry, under his jurisdiction, and this "'" board determines whether an immigrant is entitled to enter. Il it decides that he is not entitled to be admitted, he is » The exceptions include students, merchants, and professional men. [iiii* 256 THE GOVERNMENT OF THE UNITED STATES Methods of regulating interstate commeroe. Interstate Commerce Commis- siou : Its com- poiitioQ. Its (unctions. ordered to be deported and the steamship company bring- ing him in must tiike him away. Appeals from the deci- sions of these boards may be carried to the commissioner, however, and as a last resort to the Secretary of Labor. There is no iippoa' to the court.-^ from tlio Secretary's decision. It is by means of the tariff and the immigration law.s tliat Congress chitfly exercises its power to regulate commerce with foreign nations. Commerce among the several states, on the other hand, is an entirely different matter to whicli these laws have obviou.«ly no direct relation. Inter^vate commerce has been the subject of many regulating laws relating not only to the rates charged and the service rendered by transportation companies but to combinations in restraint of trade between the states, to unfair com- petition, the inspection of food and dn'gf , and to a multitude of other matters. These laws, however, are not self- enforcing, hence a considerable amount of administrative machinery h-.s been created to see that their various provi- sions are duly applied. The scope of the laws, in fact, may best be understood from a general survey of the work which these federal regulating bodies perform. First in point -jf importance among these administrative regulating bodies is the Interstate Commerce Commission. It was establislied ip 1887 and at the outset consisted of five members named by the Presidi nt. The number of members has sub.sequently been increased to nine and the powers of the commission have also been greatly widened during the last thirty years by various acts of Congress.' The functions; of ^\u Inter tatc Commerce Commission include the genen-l carrying out of the federal laws relating to steamship und railroad companies, express 'ind sleeping car companies, telegraph anJ telephone companies, and i.il pipe compi^nies, all when engaged in interstate commerce. It mav investigate, either upon complaint made to it or on its own initiative, any allegations of overcharge, or faulty ' The Acts of March 2, 1S«1», and of February 11. 189:$: thi Hepburn Act of June 29. 1906; the Act of June 18, 1910, and s. on. Members of the commission are paid salaries- of SIO.'KX) P'T year and are appointed for seven-year t«rm8. THE POWER TO REGULATE COMMERCE 257 The regu- lation oi rates. sorvicp or fliscrimination in rates. By the Act of 1906 the {'ommission is authorized to fix, when petitioned to do so and after proper hearings, the maximum rates to be charged and also to make reasonable rules as to service. The "Act of 1910 further enlarged these powers by em- powering the commission to prescribe maximum charges oven when no complaint against existing rates had been filed with it. As the regulations now stand, all railway rates in inter- state commerce must be reasonable in the judgment of the commission; there must be no favoritism as between different shippers cr patrons, no rebates, and no dis- crimination against any person or locality. With certain specified exceptions no free passes may be given; and no railroad is allowed to transport any merchandise which it is itself engaged in producing. There are many other regu- lations applying to all companies engaged in interstate commerce. Schedules of rates must be public, kept open to inspection, and must not be changed without due notice to the commission, which may withhold its approval of the changes. All the companies must keep their accounts in the way which the commission prescribes and must make periodical reports to it. It will be seen, therefore, that the commission has functions cf a wide variety and great im- portance.' It is the country's most powerful administrative tribunal. In addition to all these things, moreover, it was tcivon, a few years ago, the enormous task of securing a pliysical valuation of all the rai' oads in order that a more iiitcllinent determination of rates might be made possible. From the rulings of the Interstate Commerce Commission Appeals an appeal may be taken oti nu«tiersof constitutional privilege J^J^^^^ to tlio federal courts. There is no escape from the necessity sions of firanting this right of app« al. The constitution doe« not "^"k"- permit (congress to endow the commission with final powers. No law of the land may deprive a citizen or a corporation of jvulicial protection against a deprivation of their prop- erty. Hence the regular ffvifrai courts have many appeab from decisions of the comtrr.»«ion brought before them, so ' Durintr the piriod in which th< i-ailroad* are uri4»tr ft^4(vni operation is( 1 below, p. 259) these functionj are naturally dimini«ed. T^^MWi 258 THE GOVERNMENT OF THE UNITED STATES The divi- sion of authority over commerce l)etween federal and state gov- ernments. many, indeed, that these appeals form a serious tax upon their time. In order to lighten this load, Congress in 1910 established a new Commerce Court, to be composed of judges selected from the federal circuit courts. This new tribunal was to liear, in the first instance, all appeals from the orders of the Interstate Commerce Commission. The Commerce Court, however, soon came into disfavor by its frequent reversals of these rulings, and in 1913 it was abolishx. I. It should again be pointed out, even at the risk of over- emphasis, that the Interstate Commerce Commission has no authority over intercourse whicli keeps strictly wit^' the bounds of a single state. So far as such commerce is concerned, each state provides its own regulations and its own regulating body, commonly known as a railroad commission or public service board, 'niis division of authority over transportation, telegraph ."nd telephone companies hns been a great source of friction and of working at cross purposes. Every large railroad does both sorts of business, carrying some goods and passengers from one point to another within the same state under state regulation, and carrying other goods and passengers between points in different states under federal regulation. The states, moreover, regulate the organization, the capitalization, and the borrowing powers of these companies (because each obtains its charter from the state and not from the federal authorities), while the nation, through the Interstate Commerce Commission, is usually the deciding factor in determining the revenues and tlie conditions of service. The spirit and methods of regulation have not aUvaya b^^ the same from both quarters, lience the double and divided supervision has in many cases unreasonably hampered the railroads in their efforts to give good service at fair cost. Regulation can never be altogether satisfactory until it is wholly placed in the Fame hands, that is to say until some one authority is vr-sted with power to rontrol the organi- zation, borrowing powers, income, rates, serv^ioe, hours of labor, and every otfier incident of transportation. All such problems are interlocking and no one «'«n be .solved without regard to the others. The solution of th( matter THE POWER TO REGULATE COMMERCE 259 is not a simple one, however, for there are serious objecticrts to vesting all of this power in the hands of the federal government. On December 27, 1917, the President of the United States, Federal by virt K> of war powers conferred upon him by Congress, °^"a°°° took over the operation of all the important railroads of the roads in coimtry, placing them for the time being under a Director- w"*™^- (Jenoral named by himself. In the spring of 1918 Congress l,>y law provided that the owners of the railroads should be compensated during the period of federal operation by being ffuarantoed a net income equal to the average net earnings of the tliree preceding years. This statute likewise pro- vided for the physical upkeep ef the roads and for their re-delivery to the owners in as good condition as when taken over, this return to private operation to take place not mi)re than twenty-one months after the close of the war. The President was given authority to fix rates and terms of service subject to the approval of the Interstate ('(.mmerce Commission, but all such determinations of the Pr(>sident were authorized to take effect at the date of tlunr issue and to remain in effect until overruled. Another important agency of Congress in carrying out its The Federal laws relating to interstate commerce is the Federal Trade J,^^'^^ Commission, established in 1914.^ Its organization has sion. bocn already described.^ The commission's functions are twofold. In tlie first place it is charged with the du+y of preventing unfair competition in foreign or interstate trade by manufacturers or manufacturing corporations or anv other cono(^rns except banks and common carriers. TIh' latter »r«» under separate federal supervision, one under the Comptroller of the Currency and the other under the Iiitorsfate Commerce Commission. The Federal Trade Commission m;iy, after due invest isration and hearings, issue nrdtrs designed to pr«'V(>nt unfair com])etition, but appeals I'oin such orders may be taken to the Circuit Court of Ajipenls and from its deeisitm, again, to the Supreme Court- Till' oth»'r fuiR'ti'jf* of ( he commission is to )■ vestigate, when ' This I (iinmissioii f.iok f/vpr thf powfM '/f tho federal Bureau of Cor- (luriiiidii': which hud htcn crfati-fi m 19(M. ' H<* nbove, p. 140. 260 THE GOVERNMENT OF THE UNITED STATES Thp attempts to suppress' combina- tions in restraint cf trade. The Sherman Anti-Trust Law of 1890. The Northern Securities Case (1904) Other decisions under tho Sherman Act. asked to do so, the facts in any judicial proceeding which may be begun by the federal government to dissolve an illegal combination. Combinations organized for tho purpose of stifling competition or otherwise restraining interstate trade have long been under tho Iwn. It is a principle of the common law that all combinations designed to restrain trade un- reasonably are illegal, lliis was the legal situation in the United States until 1890. In tliat year, hov,ever, Congress went a slip further and passed a law, commonly known as the Sherman Anti-Trust Act, the fii-st provision of which was as follows: "Every contract, or combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states or with foreign nations, is hereby declared to be illegal." This provision, it will be noted, makes no distinction between combinations which are unreasonable and those which are not. Going further than tlie con^mon law its wording seemed to forbid all combinations in restraint of trade, whatever their nature. For a dozen years or more this provision slumbered on the statute b(jok< ; ' but in 1904 it was brought to activity by the decision of the Supreme Court in the Northern Securi- ties Case.^ 'I'his decision arose out of an action entered by the federal authorities to dissolve what amounted to a virtual merger of two great railroads, the Northern Pacific and the Great Northern, througli the agency of a holding corpora- tion known as the Northern Securities Company, which had acquired a majority of the common stock of each railroad. The Supreme Court held tliat the combination was ii; -i>- straint of trade and ordered it to be dissolved. Tlien came som(< otiier decisions, notably in the Standard Oil Company's Case (1911) and the American Tobacco Company's Case (1911), which held that these concerns were also combinations in restraint of trade and ordered their dissolution. But in rendering its decision in these cases the Supreme Court gave for the first time a definitive > In 1895 the Supremo Court deciiled (''. S. vs. Knight Co., 156 U. S. 1) that the ShiTttian Act did not forbid the merging of manafpctuiing companies. 2 Northern Securities Co. vs. U. S., 193 U. S. 197 (1904). THE POWER TO REGULATE COMMERCE 261 Merits and defects of the Anti- intorpretation of the Sherman Act. The court explained that the mere existence of a combination in relation to trade did not, according to the provisions of the Sherman Act, render it illegal, but that every such combination must he adjudged in accordance with its purpose and in the light of reason. Hence the court, although it held these particular concerns to be illegal, set forth the principle that it would not order the dissolution of combinations merely because they happened to restrain trade but only when it appeared that tiioy were able and ready to restrain trade unreasonably. This dictum passed into popular discussion as "the rule of The^™'*; roi.son." The gist of the rule is that while the exact wordmg of the Sherman Act differs from the old rule of the common law with reference to combinations in restraint of trade, it was not the intent of Congress to change that rule in substance but merely to provide for its more efficient application. In its practical applications the Sherman Act has clearly demonstrated the inferiority of purely legislative as compared with the administrativeregulation of trade. Its enforcement Tn«t no doubt put an end to some huge commercial abuses but, on the other hand, it has in many cases proved an obstacle to the proper consolidation of business in the interest of economy. Competition is often a prolific source of wasteful- ness so that in the end the public gains nothing from it. \\Tipn the national government in 1917 took over the opera- tion of the railroads it at once proceeded to do on an un- I)ara]leled scale what it had always prevented the railroads themselves from doing. It put everything under central control, eliminated duplications in service, cut away every vestige of competition and operated every mile of trackage a- part of one giant transportation monopoly. Enormous savings were mado in this way, thus demonstrating that more can be had in the matter of results through the elimina- liou of competition than through the compulsory fomenting of it. Administrative supervision such as is exercised over rai'roads hv the Interstate Commerce Commission, over the !)ftnks by the Comptroller of the Currency, and over indus- irial copcerns by the Federal Trade Commission is much more flexible and in the long run more salutary from the 262 THE GOVERNMENT OF THE UNITED STATES The extent to which the stntos may restrain commerce. Police power in its relation to inter- state trade. The Orieinal Parkage Do'ision (1890). public point of view than the sweeping prohibitions of the law can ever hope to be. These, in brief, are the powers and instrumentalities of the national government with respect to commerce. Lest a misleading impression has been given let it be repeated, however, that federal jurisdiction in many of those matters is not exclusive ; the several states have some powers even with respect to foreign and interstate commerce. The constitution expressly permits a state to lay duties on imports or exports whenever such "may be absolutely necessary for executing its inspection laws," but it may not use this power as a means of obtaining revenue. Moreover, the Supreme Court has consistently upheld the doctrine tliat reasonable state laws for the protection of the public safely, heaUh, and morals, even when they operate to restrain interstate commerce, are vaHd. Thus a state may establish its own quarantine, may prohibit the operation of freight trains on Sundays, mav regulate the maximum speed of trains, and so on, even though such regulations interfere with carriers engaged in interstate commerce. The state regulations must be reasonably designed to protect its own citizens and no more ; they cannot interfere with interstate com- merce on any other ground. Tlicre is, accordingly, a margin for conflict between two spheres of authority, the commerce power of Congress and the police power of the states. This was well iUustrated in the so-termed Original Package Case. Various states have laws forbidding the manufacture or sale of intoxicating liquors within their own borders, Maine, Kansas, and Vir- ginia, for example. Do these prohibitory laws operate to prevent the importation of liquor from other states and it? sale within the prohibition area? Many years ago the Supreme Court in a well-known decision which passed mto popular pariance as the Original Package ruling held that the prohibitory laws of states cannot ordinarily interfere with the importation and sale ot any merchandise so long as the commodity remained in the unbroken package in which it was delivered for transportation into the ^tate from a point outside.* Tlie court did not lay this down as an t Leisy va. Hardin (135 U. S. 100), 1890. THE POWER TO REGULATE COMMERCE 263 absolute rule but as a general principle to be followed when- ev' special circumstances did not ^^'^ '''"XJi-Z departure from it. ITiis decision established the doctnne that in the absence of permission from Congress the states cannot ordinarily prohibit unbroken importations from n broad or from another state. . ^ , , Congress, however, soon cleared up this difficulty so far ns the importation and sale of liquors is concerned Im- nodiatelv after this decision it passed the Wilson Act o ThcVV..«.r 1890 which provided that all intoxicating hquors brought nto inv state should be subject to tlie state laws as regards heir si even in original packages, and i.a 1913 it went st^ further bv forbidding altogether the importaaon of liquora into statJs which have laws against importation. In IJU the Eighteenth Amendment was adopted, making pro- vision for national prohibition. 'Fhe "original package doctrine still holds in a general way as regards tobacco and other ?.rticles of general trade. , • .«, The regulating power of Congress over foreign and inter- state commerce, therefore, while paramount whenever exer- cised, is not exclusive, men a state, tor example, maKes liws for the sanitarv protection of its harbors, these laws applv to foreign merchant vessels in port, and if they are not in conflict with laws made by Congress they are held to represent a reasonable exercise of the state s police power Wliat the constitution i rquires is that the states shall not set ou' u determine ih. course of commerce and that they shall not, under color of their police power, undertake to raise r(-venues from any form of commerce which is not wholly carried on within their own 'ooundaries. Withm this latter sm.Te the states mav tax. l-' onse, regulate, or even prohibit . '. ihov see fit, provided they do not deprive any one of his property without due process of law or deny to any one the «[ual protection of the laws. ' 'Th.- fact that state retnilations adopted in the exercise of the genera! nolioo nowor mav inoidontally affert foreign commerce does not render such ' rCeulaUon; ne<.osHarily invalid. If they are not unreasonaolo, nor ; ; 'nl to t effoc-t a dimTiniiuation, and do not in substanee amoun to pn I r .n ;UW^ns of n.-h commerce a. is plared withm the control of Coaur's' u'ev\vill be uphold." Emlin McClain, Con.liluHoual Law ,n the UnHc'd .^(aies (2d cd., N. Y.. 1913), p. 153. .VA'.».LMiH > kl. > 264 THl GOVERNMENT OF THE UNITFD STATES r r V . I- Federal taxation of rorpo- ratioiu. Proposed federal ineorpora- tion. Since 1909 all corporations loing business in the United States, even when such business is wholly within a single state, have been subject to a ffMleral corporation tax.' The levy of this tux has been upheld, not as a regulation of commerce, but as an excise lai.l upon tlie privi! se of doing business umler a corporate form of organization. As a means of assessing the tax, every corporation is required to make to the national government an annuiil report disclosing its earnings and expenses, so that thf weapon of publicity as a means of corporate regulation is now m the government's hands. But although business corporations pay federal taxes and make an annual report to the national authoritus, nearly all of ihem arc operating under powers conferred by the states. In other words, nearly all have state charters. Congress undoubtedly has authority to charter corporations provided they are to engage in foreign or interstate commerce and at times has exercised this authority, but not to any large extent. It has frequently been proposed, however, that the national government should require all concerns engaged '.n such commerce to take out national charters, so that the charters of all corporations might be made uni- form and federal coiurol rendered more effective. Another suffse-uon >s that while leaving the states to provide cor- por^t.ionsof all kinds with their charters, tlie national goycrn- meiit might proscribe a federal license for all those desiring to carry on foreign or interstate commerce, thus providing itself with a strict and effective regulatory power through the possibility of revoking a license at any time. Thus far, howcvrr,' nothing tangible has been brought to pass along either of those lines. 1 Provided their not earnings are more than a designated amount. CHAPTEU XVIII THE WAR POWERS "Security against foreign danger is one of the primitive Scope^of ftECURiin ag avowed and essential . :.oS '' Xtinthf words of Madison, is the reason Xl; powers of practically unlimited extent are^confe^^^^^^ pon the^national government by the consti utum. Seven snccific giunts of war power to Congress appear m that rcumentnamely, to declare war, to -- -^ ^^pp rt ■irmies to provide and maintam a navy, to make rules lor 1 r.overnment of the land and naval forces to provide cXng forth the militia to execute the laws of the ua ion "proved! for organizing, arming, and disciplining the miMm •md to exercise exclusive legislation over places acquired or lorts magazines, arsenals, dockyards, .nd other needful n iS Among the eighteen clauses of the constitution S Numerate 'the powers of Congress, there -e^ more than one-third deal with the various branches of military and naval authority.' "^::TrrSe'rd's:nSrt'annies. but no appropriation of money to that iH." shall be for a longor term than two years. •'K rufXtri"^v\-S and regulation of the land and naval '"■To provide for calling forth the militia to execute the laws of the ruion, suppress insurrections, and repel "^*«P°?\. . ^^^ njiutia, and prescribed by ( 'ongress. 205 MICROCOPY RESOIUTION TEST CHART (ANSI ond ISO TEST CHART No. 2) 1.0 I.I Ui, 11^ ill 2-5 Li 11^ li& 1^ IIIIM tii Hi, 1^ tii L. ■ 4^ III 2.0 1.8 1.25 A APPLIED IIVMGE Inc ^Sr 1655 EqsI Mair. -ireet r-S Hochester. Ne* York U609 USA i^S (716) *82 - OJOO - Phone = (716) 2Bfl - 5989 - Fon I. The power to (li'i'lare war. 2. The power "to raise and support armies." The regular army. 2G6 THE GOVERXMEXT OF THE UXITED STATES Congress alone can declare war, but a formal declara- tion 1.S not an essentia! preliminary to the outbror.k of hos- tilities, huch declarations are customary among nations but no rule of international law recjuires their issue Dec- larations of war are not issued primarily for the benefit of the adversary but for the information of neutrals so that they may observe the strict rules of neutrality and keep out of the way. .\ot infrequently a declaration of war is issued after the hostilities have actuallv begun, as for example, in the Spanish-American War 'of 1898. When Congress does act, however, a declaration of war is usually embodied in a resoliUion passed in both Houses and signed by the President. This resolution recites the reasons for the resort to arms and ends by declaring that a state of war The power "to raise and support armies" is vested in Congress without any limitation save that no appropriation of money for this purpose shall be made for a longer term tl an two years. In other words no Congress may commit s cceeding Congresses to a programme of military expendi- tures. In all other respects, whether as to the size of the tnTl: r "^ ?! recruiting it, or the measures necessary for supporting it, Congress has unlimited discretion. This wide latitude ^^^s wisely given because no one could foresee fronted, but ,t was assumed that no standing army of any considerabl,. size would ordinarily be required During Washington's two terms as President the army of the Lnited States (as distinct from the militia of the states), never exceeded five thousand of all ranks. But oven this was regarded by the anti-Federalists as too large and ,n 1.08 the legislature of Virginia, under the insplfal tion of Jefferson and Madison, voted that "our security from invasion and the strength of our militia render a sta2 JeonuXn'T"""'-'' ^"""^ '"^"^^^^ '' '^ -^ ^^^ N^^o- eon.c France however, soon led to a tenporarv increase in he size of he regular forces. During ?he War of 18 2 C ongress authorized the raising of about thirtv-five thousand ^nd tt T ""/ "^ '^'^ ^""^-^ ' ^'"^ ™ ^^^ "«t enlist readilv and ti.e .^ar was fougi.i ,iuefly by the militia called into the THE WAR POWERS 267 national service. After peace had been made in 1815 the regular army again dropped in numbers and was not again substantially increased until a few years prior to the War with Mexico. Even in the Civil War thj strength of the The regular army was not haised to any formidable proportions, ^^re""***' By far the greater portion of the fighting forces were obtained by calling out the militia of the several states and by en- couraging volunteer organizations. After the war the maximum size of the regular army was fixed at twenty-five tliousand, a figure wliich was raised to sixty-one thousand for the Spanish War in 1898. Thereafter it continued to range between sixty and one hundred thousand until after tlie outbreak of hostiUties in Europe when comprehensive measures for its further increase were taken. The regular army has always been recruited by voluntary enlistment. It lias never contained any units raised by conscription. It is, as its name implies, a permanent establishment, com- poseil of trained officers and men who give their entire time to the service.^ Although the regular army, upon the participation of The the United States in the European War, was recruited by national enlistment to the highest figure in its history, and although "™^' tlu! organized militia of the various states was called into I 1h> federal service, the bulk of the expeditionary forces were raised by the application of the so-termed Selective Service Law, passed by Congress in 19 17.^ This act, with its nmeiidnients, provided atfirst for the selective conscription of male citizens between the ages of twenty-one and thirty-one and later for an extension to include all between the ages of eighteen and forty-five. A registration of all such persons was onlen (1 and the first incn-mcnt of the new army was drawn from tlie b>ts by lot after a duo apportionment of the re- quired number had been made among the states. For eubse- Miieut increments, however, all registrants were divided ac- iiirdirig to their circumstances into various classes, the first class including physically fit persons without dependents, ' Ry th,. provisions of the National Dofonce Act of 1916 the authorized stivntiiU „f tho Rpuular .\rm.v of the United States was fixed at about !■!:!.(«)(> of all rtuik.-,. ■ Approved by tho I'resident, May 18, 1917 ; amended August 30, 1018. .>>¥■ ISV'l Scope of the power "to sup- port armies." Control of the food and fuel supply. Operation of the railroads. The ship- building program. 268 THE GOVERNMENT OF THE UNITED STATES not engaged in necessary war work or in essential employ, ments. Selections were then made . holly from the first class. The entire work of selecting men for the army was performed under the supervision of the provost-marshal- general an official of the War Department, assisted by civilian boards in all parts of the country. The power "to raise and support armies" gives to Con- gress in war tr.ie an authority over every branch of national life which IS well-nigh unlimited. The events of recent years have shown this impressively. When an army is m training or in the field every branch of commerce or industry even the home life and habits of the people, may be placed under any necessary restraint to facilitate its support. It was by virtue of this authority that Con- grr< empowered the President to establish systems of loou and fuel administration with power to regulate supply and to control consumption. It is by virtue of this authority to support armies" that the compulsorj shutting down Oi industries for i:' ort periods was decreed. The taking- over of the railroads /kewise came within the scope of this power. That action may also be within the power which tvongress possesses to regulate commerce; but there was no need to have recourse to that interpretation. The war autliority is broad enough to cover it. The huge ship- building program upon which the nation embarked in 1917 IS also withm the same category. In time of peace the commerce clause might be invoked to validate the construc- tion, ownership, and operation of merchant vessels by the national government, although it is not certain that it could be invokrd successfully. But so long as the nation is at war there appears to be very little, if anything, in the way of construction, conservation, or regulation that Con- gress cannot command. The last ounce of national energy may be necessary to support military operations ; if so Con- gress may call for it. This is as it ought to be. The framers of the constitution acted with great foresight when they set no shackles upon the national government in time of war. Power "to provide and maintain a naw" is also given to Congress, m this case without any restriction as to THE WAR POWERS 269 the period for which appropriations may be made. Tht naval authority includes the right of Congress to make ruk'S for the general administration of the sea forces, includ- ing the organization of the navy department and its various technical bureaus. It also authorizes the voting of money for the construction of vessels, the determination of the type of ships to be built, the provision of navy-yards and repair depots, and the entire general direction of the nation's naval policy. While the immediate direction of the navy is in the hands of the President as its commander-in-chief, acting through the Secretary of the Navy, the organization and general policy are both within the jurisdiction of Con- gress. Five years after the establishment of the national gov- ernment Congress provided for the construction of six frigates, which became the nucleus of the United States navy. A few years later a separate Department of the Xavy was created, naval affairs having been theretofore under the control of the War Department. Some impetus to naval construction was given by the War of 1812, but from the close of this war until 1861 the armed sea forces of the government received astonishingly little attention. .\ large naval establishment was built up during the Civil War, but it was allowed to disintegrate when the struggle was over. The navy of to-day began its real development al)out 1885, when a complete reorganization of the depart- ment took place ; but it received new impetus during and immediately af+er the War with Spain in 1898. At the outlireak of the European War the navy of the United States ranked third among the fleets of the world. The authority to "make rules for the government and reiiiilation of tlie land and naval forces" is also devolved ui)()n Congress by the constitution. The general rules lor the government of the land forces are contained in the Artielos of War. On the outbreak of the Revolutionary ^\ar in 177,') the Continental Congress adopted with some cliaimcs the code of military rules which governed the Eng- lish army at that time. These were continued in force, 'vith some furtlicr modifications, by resolution of the first Consr(>ss of the United States in 1780, and by successive .. The power "to pro- vide and maintain a navy." History of the navy. 4. The power to mako rules for 'he land and aea forces. The Articles of War. ■I'FJSr'.TiU- i-r *P^ r If li^l Military law: what it implies. Diatin- c; 'dhed from martial law. Military law and military tribunala. Tourfg marti;'i. 270 THE GOVERNMENT OF THE UNITED STATES enactments thereafter until 1806, when they were revi8e< and somewhat altered. Although further amendment were made, particularly during the Civil War, the \rticle' remamed without great changes until 1912 when anothei general revision took place with numerous alterations Ihe navy is also governed by a general code of regulations whicli Congress has enacted. These codes of rules, enacted by Congress for the govern- ment of the land and naval forces, make up that branch of jurisprudence which is commonly known as military law. It shoul.l be clearly distinguished from martial law Military law applies only to persons who are in the military or naval service. Martial law i. a term used to designate the government of any territory when the ordinary civil administration is superseded by the military authorities VV hen martial law is proclaimed the ordinary laws and courts are no longer paramount : the miUtary authorities prescribe tlie rules and administer them for the time being. Martial law applies to the inhabitants of the area in which it is proein.med. It may, but does not necessarily, include within us scope the members of the armed forces. Military law establishes many rules of conduct to which civilians are not subject but which are regarded as essen- tial tor the proper maintenance of discipline The enforcement of these rules of military law is not intrusted to the ordinary courts but to special tribunals known as courts martial composed of officers named for the purpose 1 here are three types of courts martial, -summary, special' anil general. A summary court martial is lield by a single oihcer and ueals with minor offences. A special court martial consists of from three to five officers and has a broader jurisdiction. A general court martial is made up of from five to thirteen officers and may try any crime or offence made punishable by the Articles of War Every special or general court m! The Federalist, No. 29. Who con- stitute the militia? Legal status of the militia. Muster- inK the militia into the federal service. 6. The power to control the organ- ization, arminiK, and dis- ciplining of the militia at all times. ig* '^,-T 274 THE GOVERNMENT OF THE UNITED STATES is - I The exercise of this control. r' f states were jealous of ilieir military privileges and would not have tolerated a complete extinction of their rights in this field. On the other hand it Was obvious that if each state was left entirely to itsi If in the matter of organizing, arming and drilling its militia the country would never be able, in time of emergency, to call forth a homogeneous army. Accordingly the national government was given such authority, and only such authority, as would suffice to secure the necessary uniformity in the militia systems of the several states, while the states themselves were allowed to retain the reins of direct control, including the appoint- ment of all militia officers. This latter right was the one upon which the states laid the greatest emphasis. As early as 1792 Congress passed the first act for "or- ganizing, arming, and disciplining" the militia, and this statute continued in effect without veiy material changes until 1903, although the various wars of the nineteenth century showed that most of its provisions were absurdly inadequate. In this year a general measure for the improve- ment of the militia was passed by Congress, Provision was made for supplying all militia units with the same uni- forms and equipment, also for their instruction by jfficers of the regular army and for a periodic inspection in the interests of efficiency. An important stipulation of this act was that militia units might be mustered into the federal service in time of war by a procedure therein set forth. A few years later (1908) Congress provided for the distribution to the states of an annual grant to assist them in the main- tenance of their militia, and in 1916 various other changcj were made, chiefly in the direction of accentuating the federal government's control.* While the division of military authority, as provided for » These provisions werp embodied in the National Defence Act (ap- proved June 3, 1916). he numbers of the National Guard were fixed in each state at 200 ra„ . and file for each of its senators and representv tives in Congress, with a provision that in each succeeding year this number is to be increased bv .50 per cent until a total peace strength of 800 for each senator and representative is reached. Various provisions relating to the disciplining of the state militia, the qualifications and pay of officers iind lueu, and as to closer fcdiral supervision wero also included. Iba legislation may be found in John H. Wigmore's Source Book of Mihtary Law and War-Time Legislation (St. Paul, 1919). pp. 384-444. THE WAR POWERS 276 in the constitution, was a necessary concession to the states and could not have been avoided, its practical workings have been at all times far from satisfactory. The federal government makes the rules of organization and disciplme, but so long as these rules arc carried out by officers whom tlie states appoint the hands of the War Department are bonumbed. In r.^any of the states the appointment of militia officers has been largely a matter of personal and political favoritism, with Uttle regard for the military capacity or experience of the persons appointed. The annual training of the militia, extending over a few days only, has too often boen the occasion of large expenditures without any substantial results. Tlie militia of the United States will not be an effective force until its entire control, whether in peace or war, passes into the hands of the federal government.^ When the militia of the states was called out by the national government in August, 1917, the requirements of dpfonce at home were met by the organization of a federal force kn>/wn as the United States Guard and of local forces, commonly known ao home guards or state guards. The United States Guard was under federal jurisdiction, but the state or home guards were wholly under state control. The rules concerning organization, equipment, and dis- cipline, the appointment of officers, and the methods of triining for state guards were established by tlie legislature of each" state. The cost of maintaining such organizations was alpo borne entirely by the states. Ill various parts of the country the national g' /ernmeat has acquired land for the construction of na\^'-yards, forts, arsenals, and other military or naval works. Over such property, the constitution provides. Congress may exercise "exclusive legislation"; in other words, Congress alon. mav make laws relating to such areas. The military and naval v jrks of the United Stat s are not subject to taxa- tion by the states in which they >'uppen to be located, nor ■ In 1918 all outward mark? of distinction between members of the Regular Army, the federalized Militia of the States and the National Army were abolished for the duration of the War. This action, however, di.l m.i abolish distinctions made between these various oi^nizations m tho constitution or the laws. Wi-akiut.' of th<' miKtia provisions. Home Kuurds and similar organiza- tions. 7. Powers over forts. arsenals, etc. i' ''* ■i i 276 THE (lOVERNMENT OF THE UNITED STATES may the states apply to them any restrictions inconsistent with a proper fulfilment of the purposes for which such works are constructed. They are to all intents and purposes federal areas, outside the legislative jurisdiction of the states. No property may be acquired by the national gov- ernment in any state for military or naval purposes, how- ever, without the consent of the state legisUiture. ConciuHion On the whole the war powers of Congress have proved ample. If demonstration of this fact were needed it has been forthcoming within the la.st couple of years. The relative slowness with which the United States has been able to put forth its whole military strength cannot be laid at the door of inadequate constitutional powers. The in- action of Congress in making preparations and the apathy of public opinion have been the real causes. When Congress decided to act the power was there. • Under authority vested in the President by Congress many important boards and commissions were created during the years 1917-1918. Among these may be mentioned the War Industries Board, the Emergency Heet Corporation, the Shipping Board, the War Labor Board, the War Labor Policies Board, the War Trade Board, the Council of National Defence, the federal Board for Vo.-ational Education, the Bureau of War Risk Insurance, the Committee on Public Information, the Censorship Board and the War Finance Corporation. Some of these were created for the duration of the war only, but others will probably remain in existenco for many years to come. On the organization and work of these various boards see the Amencan Year Book for 1918, especially pp. 38-81. il CHAPTER XIX MlSCELLANt:OUS POWEHS OF CONGRESS Of the great powers granted to Congress by the eighteen endowment clauses of the national constitution the four Istimportant have been discu.^ed in the immediately ZceZlchapior.. The others .v.Bt have less extended riation,'not because they . . of "tt le importa-e (for some of the.u are of large consequence), l>"t be^^^se he limits of space preclude any attempt to trace the rami- at ons of them all. Nor is a knowledge of these powers detail necessary to a reasonably clear grasp of the ma m n c P les A statement of these remaining powers, with rrw comments upon the scope of each, must therefore '"congress has power to establish uniform rules upon two NaturaU-^ .uliiects naturahzation and bankruptcy. Th. procedure , .^,^y. natu alization has been already explained. Over the nWs Is to citizenship Congress has compU-te and excl..s.ve jurisdiction, having fully covered the matter by lav A. Uards bankruptcy laws, or laws which provide fo- tne distribution of a debtor's assets among hi, ^^ editors ^.er lu. becomes insolvent. Congress has not assumed junsdic ,u,n to the exclusion of the states, but where any state 1 nv conflicts with a provision of the National Bankruptcy Act, the former becomes inoperative. The present national law provides for both voluntary and ^"voluntary pe^rUons in bLcruptcy. In the former cases t^e msolvent mself tiles a petition in a federal district court and officials are appointed by the court or elected by his creditors to take over his assets; in the case of involuntary Petitions the arr.lication is made l^-y one or more of the inso vent s credi- turs After the assets have been liquidated the ii -olvent 277 278 THE GOVERNMENT OF THE UNITED STATES Coinage and currency may under certain conditions obtain from the court a dis- charge from bankruptcy which reUeves him of further legal liability with respect to all debts unpaid at the time of filing the petition. For the spcurity of interstate trade on credit it is obviously desirable that the rules relating to bankruptcy should be uniform throughout the country. Congress, again, is given power by the constitution to coin money and to fix the standard of weights and measures. The power to coin money belongs to the federal government alone; it is prohibited to the states. Immediately after the formation of the Union a mint was established at Phila- delphia (1792) and other establishments for minting coin have since been presided for in other cities.^ Provision was also made for adopting the decimal system, with eagles, dollars, dimes, and cents as the chief units. The ratio of silver to gold was fixed at fifteen to one, that is to say the weight of the silver dollar was made fifteen times that of the gold dollar.^ But changes in the supply of the two metals and in their market value made it necessary to change the ratio to sixteen to one in 1834. This ratio con- tinued until 1873 when the coinage laws were entirely revised and the minting of silver dollars discontinued. Gold alone now became the standard of values. The country passed from a bimetallic to a gold basis. But vigorous opposition at onco developed, with the result that in 1875 Congress restored the silver dollar to the list of legal tender coins, and in 1878 the minting of silver dollars in hmited quantities was resumed. This policy continued until 1890, when an increase in the coinage of silver was provided for, but the continued decline in the market price of that metal led to the complete discontinuance of further silver purchases for coinag-?. This action of Congress divided the two great political parties on the issue of free silver. The Democrats, under bireiaUism. the leadership of Mr. Bryan, fought the eh-ction campaign of 1896 on a platform which demanded the free and unlimited > There are four mints at present, namely at Philadelphia, Denver, San Francisco, and New Orleans. Assay offices have been established at nine other places. -^^ , ' Gold dollars were actually coined auring the period 1S4&-16J$9 only. The conflict over MISCELLANEOUS POWERS OF CONGRESS 279 • „„n nf <5nvpr dollars at a ratio of sixteen to one. The Mrtuaiiy i"^""_' , ,^^ ^ tl,e Gold Standard Act of So" l"To thfet tomtmcrHL. this famous con.rov»rsy f"- not necessary to proceed; but the various quarters that these paper notes be withdrawn and {3d ed., N. Y , 1898). , ,„ tt a 421 '- Th- Legal Tender Caten, 110 U. 8. 421- 280 THE GOVERNMENT OF THE UNITED STATES The green- back ron- troversy, 1866- 18S0. Present factors in the currency. 1^ i Weights and measures. that specie payments be resumed. Various difficulties stood in the way of this policy, however, and the contro- versy over the greenbacks continued for a decade. One faction, both in and out of Congress, sought to continue the greenbacks in circulation and even to increase them; the other sought to have them removed from circulation so as to make room for metallic currency and national bank notes. The organization of the Greenoack Party which figured prominently in the elections of 1876 and 1878 was an outcome of this political conflict. Congress, however, agreed that in the matter of returning to a specie-payment basis "the way to resume is to resume" and a consider- able portion of the notes were retired by virtue of an act passed in 1875. The remainder are still in circulation. The present currency of the United States falls into at least six classes : (l) gold coin, minted at various times in denominations from one to twenty dollars; (2) silver dollars, fractional silver (half-dollars, quarters, and climes), and fractional small coins (nickels and cents) ; (3) gold and silver certificates issued against deposits of gold and silver bullion held in the federal treasury; (4) United States notes or "greenbacks," and treasury notes, both of which arc redeemable in coin; (5) national bank notes, which pre protected by deposits of government bonds, and (6) federal reserve bank notes issued against the security of commercial paper deposited by subscribing banks for re-discount. This is a greater variety of currency than one can find in the peace-basis circulation of any other great count r\'. Yet it is not to be assumed that there would be any great advantage in reducing it all to the same type. ITie entire currency, metallic and paper, is issued under the authority of Congress ; no state can either coin money or "emit bills of credit." A state may authorize a bank to issue paper money, but as such notes are subject to a heavy federal tax tliey are non-existent. In the matter of weights and measures Congress has full determining power. Many laws were put upon the statute book relating to this subject during the course of the nineteenth centur>', but no comprehensive attempt was made to deal with the standardization of weights and MISCELLANEOUS POWERS OF CONGRESS 281 • *•<: ^roir until '001 when the national nmmcpa ^"^^^"J^^^^ . ,Vr der^atives), somewhat modified, yard, g^"°«' ^^^•' '^f^^,, ^^^^^^^ system was also made of the international metric system are supplied to all the ''congress has power to provide for the Punishment of The^^^_ lon^resi, f ^^^ securities of the ^^„t„{ punished by the state courts. constitution The ITien there is the postal power, or as tne couhu ^^ nns it the power "to establish post-offices and post-roads. ^„^,, i'to olher c^onTtitutional grant," as one ^f^^f^:^^ h.s remarked " sooms to be clothed in words which so poorly ':^t%oior so feebly indicate the Part-lar mea - Z which may ^^;^::::^^ ;^„Son mer^J^ '■'r:; Ce^; ult i centr^^^ a power which was ta ?^-'-d which in its^tu^worUin^- ^^ „uprehended by everybody. Tin- P^^^^^l ^jsie" . Jtry is oMer t^-n the fedora Igove^^^^^^^^ s;::S ::;^aJtvi:r:nd thJXtion ouhe const^ mi was first in charge of the Continental Congress and l"or by the Articles of Confoderation was given to the Con- > J N. Pomorov, An ln,ro,lucHon to tkeConslit^ional Lau> of the Umied States UOth ed., Boston. 1888), Section 411. n Wh-it it inciades. "Fraud orders." How far does the postal power extend 7 282 THE GOVERNMENT OF THE UNITED STATE3 not onlv maintains the country's elaborate network of post- offices and delivory routes but conducts the money-order service and the postal savings bank system.^ It likewise exorcises a considerable degree of control over certain lines of business bv virtue of its power to recuse the use of the mails to anv concern which has been found to use the service fraudulentfy. This is done by the issue of fraud orders. The right t> denv the use of the mails represents a large power, capable of wide extension and indeed with possi- bilities of serious abuse. Many years ago the Supreme Court sustained the riglit of postal authorities to exclude from the mails anv matter that they deem objectionable, and also declared that no state might establish a postal svstem in competition with the federal governnient. Con- gress mav likewise delegate to the Postmaster-General the right to determine what matter shall be so excluded, and this delegated authoritv is not subject to review by the courts Decisions of the Post mast er-(^,eneral, in the case of fraud orders, are final • nd conclusive.' The demal of the ri1 , } 286 THE GOVERNMENT OF THE UNITED STATES the law of a single country, has no single tribuna\mth auth^^ ity to enforce it. The federal courts of the Um^^d States apply the rules of international law only where the contro- versy arises within American jurisdiction. The question of a national capital gave the makera of the ^Zn constitution some trouble. The prize was coveted by vari- °^^' *'t ous cities both north and south. To avoid an embarrassing ""^""' drcuU; therefore, the whole matter of .electing a capital was left to be decided by Congress after the constitu- tion should go into operation. It was felt that an en- tirely new city should be founded to serve as the seat of nit onal government, and with that idea m mind provision was made for creating a small d^f ^^7^ of clm national control. In establishing the District of Colum- bia Congress later availed itself of this power to ex- ed'se exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as "lay, by "ssion of particular states and ^^X-^^.r'Tr^.t^.'-'^e become the seat of government of the United States The iurisdiction of Congress over thi. area is complete. As wUl be seen later, the District of Columbia has no system "oc^lsel" government, and Washington is the only arge municipality in the country of which that can be^-^-^^^e Finally, there is the national government s nght to mke all iTws which shall br necessary and proper for carrying any oTts general powers into execution. This is sometimes reTerred to' as the "implied powers clause" of the const ;- tion or as vesting in the national government a coefficient power." Laws afe the agencies through which all the powers ™ted by the constitution either to Congress or to the Pres dent are carried into effect. Tlie exercise of every Stutional power requires a law. The law adds nothing to the scope of powers already possessed ; it "^J^^^ ^^^^^^ the powers effective. Where a power is granted, the right to carT t into effect is implied. To desire the end is to tolerat?the means. The Supreme Court as already indi- cate^ has interpreted this clause liberally, giving to the cSl govornment a large range of choice as to the ^e^ which it will employ in carrying its powers mto effect. lli« 1 Below, pp. 384^388. The "implied powers." MISCELLANEOUS POWERS OF CONGRESS 287 'of the national govcrnmeuL ^^^^ ^^^ enumerated J^^;^^ The^e, then, are t^^e PO^«!^ °J ^^^ i„ ^hich they are ^con^ in the constitution. ^^^^^ ?^^^^^^^ proper conception in «.-«»• clothed give rather ^^^^^^^^^^^'a imp'y at t^e present day. of what these powers express ^"^^'^m^^^ the constitu- The lapse of time has f ^^^J^f^fj^^her than too many, tiou gave to Congress "^f^^'^ P^^^'thority to make uniform It might well have mcluded he aut^o^ J^^.^^^^ ^^^ rules coucernmg the ^^^^^^^^l.^^^^^ rights of aliens marriage and divorce, ^nd fjicj^j,, being left to each in the several states. ^^^^^^^"^ , ..„'ueen dealt with by state for its own t^'T'Tov^^rJ^^y toward others some in ways which not only operat un ^^^.^^ ^^ ^^^^^^ but which are contrary to the oesi society as a whole. Constitu- tional limitations ; their nature and importance. The chief limitations upon legislative power : 1. As to bilU uf attainder. CHAPTER XX CONSTITUTIONAL LIMITATIONS ON THE POWKRS OF CONGRESS In the preceding chapters the various powers of Congress, expreis aJd implied, ha've been outlined. T.e const^t^n however, does more than grant certain powers It imposes Stations upon Congress in the exercise of its egislative aSoritv, and these limitations are matters of supreme importance in American constitutional law. bome of hem relate only to the way in which a power may be exer- cised, as for example the provision that all taxe. shall be uniform, and these limitations have been already indicated "n conn;ction with each of the congressional powers con- cerned But others are in the nature of general prohih,- Jions which forbid the exercise of certain powers under any c^cunT^^nces. These restrictions and prohibitions are ellher expressly set forth in . constitution or may be reasonably implied fron-^ its provisions. ..•,,_ s^ Congress is forbidden to pass any bill "^ !^"^'"f ^^ . J ,„a of attainder may be defined as a legis ative a t^ which inflicts a penalty without a judicial trial.^ J;lrt por^d this sort was frequent during the Tudor and ^^^^ period nf FnLrli«h hi«torv. By bills of attainder men in high ottice we^"Ca!nted^of trLson and sent to t^o -affold withou Tven the forms >f judicial process; their descendant's even unto the third and fourth generation bemg deprived o cH^l rights. By a modified form of attainder known as bms o pains and penalties, men were fined, or thrown mto p t: or had thei; property confiscated. Tlie -act^^ of attainders in any form is prohibited by the constitution becaus't^ makers did not believe that any leg.lature ought . W. W. WiUoughby. Constitutional Law of the United States (2 vols.. N. Y., 1910). ii, 801. 28o UMITATIONS ON THE POWERS OF CONGRESS 289 ,, assume the function of conaomnin. n.on wi^^^^^^^^^^ of the border ntates tried to ^xcmoe voluntarily ,,,,o refused to .^-^^.^"/ ^ i;':^^^^ ^e Supreme Court held bornearmsagamst he Union but tn p ^ ^^^^^^ tl,is to be unconstitutional >" that U i P without judicial condemnation ^^^^J^^^ ^^^ ,„y o„e in which a penalty can o'-^!"^"^^ ^^^Xt of some regular i, the United States ; one is by ^^^^^^ court s-martial) ; -erf provision preme Court many ^^.^^^Xufe It includes "every .lofinition of the ex T^' ;(«'=*" '^^V law that makes an action ^^ne before - pa g^^ ^^.^^^^ and which was -nocent when done --n ^,.^^^ P ^^^^ such action ; every law that ^^^^ ^ . law that it ,reater than U was when CO J^^^^^^^^^ changes the P^^^^^^^J^J ' ^^^^^.^hen committed, and every than the law annexed to a '^""^^ Evidence and requires less, 1,, that alters the ^«g^\r"^^%tTt "equ'red at the time Taking a lesson i^om ^ Congress with ^i^^ ^^ r^ T^^at n is t oMe^t of crimes. In the history of Eng- , mmmiu,,^ ^^■JH}'^'"''''- ^ '^^'cMer vs. BuU, 3 D«ai. 386. ■ Cf. below, p. 292. u Early his- ti>ry of treiiaon. The American constitu- tional definition. Strict construc- tion of this definition 290 THE GOVERNMENT OF THE UNITED STATES i.r,^ it ffoes back to the time of the Saxon kings. Originally it l^'fhf r^ent of killing the --i.n hut^ as tjrne^wen on various other offoncos were mcludcd, such as tne KuimR rtr";. poTon shall 1,. cmvu-tcl of troason, unl«. on the rtT:n",Xr;rWZ!dTrufo Jm,,o porsL coa. victoX No p„nishmont may l.c ox.on.lrd to J-eondan ^ ;^1 artho word» of tho constitution express it, the penallie. lu no° "work corntp.ion of blood or forfeiture, except rlnriiK' the lif'' of thc person attainted. . u „„ ""t^< .n^itu.e the crime of treason ">ere must be aa overt act of lewinB war or assisting the enemy. 0"- a man of h.s Ule, '^^^f J' Lred a statute passed . The phrase "due process of law ,^28 FdwHirS). We have the bv parliaL.nt in the lourteonth ««!tury ^^ Edw lU^ ^^ ^^^ woul .,f tho great EnRl.sh Juns. Sir Edward c ,.^^^ ^^ ^^^^ j^. ^ .. it was then- used as the «^"i>;^ f .^^^To '^^^ ^ ^ Tu-tniug vs. New Jersey, 211 U- f • '»• :??1*^«^ Webster's definition. The ap- plication of due process : (a) to judicial procedure. (h) to freedom of contract 292 THE GOVERNMENT OF THE UNITED STATES of those general rules which are essential to the safeguarding of the individual's rights, those judicial forms and usages which bv general consent have become mseparable accom- paniments of fair procedure. Daniel Webster ma famous argument before the Supreme Court gave a definition of due process which has been much quoted and which will probably Lrve the layman as well as any other. It is the process of law he asserted, "which hears before it condemns which pro;eeds upon enquiry, and renders i^^^"^^;;* .^^^J;,/^^, trial. The meaning is that every citizen shall hold his life, libertv, property and immunities under the protection of the general rules which govern society. • Where the difficulty comes, however, is in the application of these "general rules which govern society to particular cases In the main the courts have held that due process of kw alwavs involves a hearing of the issue by competent authorities before it is decided ; but they have not been readv to go much further than this so far as procedure is concerned. It is now settled that due process of law does not necessitate a trial by a jury or even by a court of law at all. but that issues involving a deprivation of property may in certain instances be determined by administrative officers, for example, that a man's property may be taken and sold upon the order of city officials for failure to pay taxes, provided the owner has been given fair notice. 1 ue process does not require that an accused be given he right to appeal from a lower to a higher court or that the incidental forms of judicial i^rocedure at any trial shall be rigidlv adhered to.'' ^ u „ +« The chief application of this phrase has not beeji to iudi-ial procedure but to what is compendiously ca led ttie ''right to freedom of contract." This right to make con- tracts and to have them enforced is a c«r«J!\^y ^^"^Sh general rights of liberty and property which the titth. Amendment guarantees against deprivation. The bupreme Court has stood guard against frequent attempts to deprive individuals and corporations of their freedom of contract ' The Dartmouth Colhyc CiSr, 4 Wh^-.ton ."ilS. r.„,M,dwn . L P McGehee, Due Process of Law under the Federal ComHKUwn (Northport, L. I.. N. Y., 1906), and the cases there c.t«d. *# UMITAT.ONS ON THE POWERS OF CONGRESS 293 „„, dommulcdbythe needs ot pubic salew_^__ ^^ ^^^^ .^ i,v. Federal laws providing tor t""/^- , ^(,„pensation, i,;,..r.,a.e eommerce ->jSr"ndTg«armany other ""■ """""T fi'w7 ndus^.^ have comi before the eourt matters m the Beld of ""ustry involved tt for review upon the allegation that tncs ^^^^^ Sre:i^en"^u^M?S£^^^^ !i::;;e'tn::il^"ovTreer:ic leg^atlon of Con- ^'■nie due process '«!---: 'alm^trnuporth: fegll- ^1' \mondment, docs not apply as a ^^"'^^'^^'''''p^^^ress The i^nt a. ^ of tl. several ^--;^r'L:;Cs'^-tdction St^^: Fourteenth Amendment, ^"7^^";;^^ ^^.e same terms, so ,pon the state ^^S- atu^es n exac ly t ^^^^ ^^.^^ that "due process of law is a g^";[ .\ ^^.e state Unls all American legislate autl.^^^^^^^^^^^ U..isUitures, far more requently ^^^l"^^^"^ ^^^ ^.^1, prop- Jinterfere ^^^^ f^Xr^:^ t:^^ appeals to the ;C- r^if Ccri.:I:it^Xod deprivations have been made on the basis of state laws. ^ process of law" Due process U is to-day well rec.,n-edtut^ duej^^^^ ^^ ^_,^^_ ■■■•^ i, to-day well re^o^-cj^tmu^ ^o^^yV Hberty ^:_. is not a stereotyped ting. A t^ ^^P ^.^^ adaptation to is not a stereotyped t^""?-^^^^"";^^' wise adaptation to ,,ust permit a P^^g^^f/^X^^^rrefore, that any legal now circumstances. It ^o""^^"' ^^.t-gritv, whether sanc- p,oceeding enforced by P^f ^^^ j;^;;^J;d in the discre- 'ti.,,,,.,! by age or custom, or "^^^ J^^^^^^ „{ the general tion of the legislative power, n f^^^^^^;^^^^^ principles of puhli.. good, which regards ^^^ pres^v^^;^ J.^^^ ^F ^^^ , lil.ny and justice, must be hoM t^^^ f\^^^P^^^i,i,, ^f pro- To declare once -Ijor a tl^ c^xt- ^ ^^^^^ , codure must in every case ot mummify lil,orty or property are ^-"^'l^^JJ^.^^.o due process legal progress. The g^«^;^\[^^f "^'X indiv^ or cor- affords an ^^^^^^^.^ ^^^^^ it was not 294 THE GOVERNMENT OF THE UNITED STATES 5. As to the taking of private property. The right of eminent liomain. What it means. The limitations upon the right of eminent domain : (a) as to public purpose. intended to bo a barrier to the reasonable regulation of property in the interests of social and industrial justice. Linked with due process in the Fifth Amendment is a provision that "private property shall not be taken for public use without just compensation." Before explaining this provision a word nuist he said about the right of eminent domain upon which the foregoing provision operates as a limitation. It is a necessary attribute of every government that it shall have the right to acquire for public purposes the ownership or control of private property even without the consei't of the owner. Sivh property is essential to the carrying on of governmencul functions; it is needed for forts, navy-yards, post-offices, custom-houses, prisons, highways, and so on. The domain or property-taking right of the government must therefore be eminent or paramount, that is, superior to the property-holding riglit of any individual. This is a well-recognized doctrine of both jurisprudence and political science, so well recognized, in fact, that it is now never disputed. In the absence of constitutional limitations, therefore, the nation and the several states might each take, at their own will and pleasure, any private property for any purpose and under such terms of payment as their legislatures might provide or oven without any payment at all. In England, parliament has that unfettered authority, although it does not practise the tyranny of taking property without paying for it. But in America the constitution contains express limitations upon the power of eminent domain. The nation is restricted by the terms of the Fifth Amendment and tho states are limited, for the most part in the same words, by the terms of their own respective constitutions. The limitations in both cases are twofold : tho taking of property must be for a public purpose, and just compen- sation to the owner must be given. But what is a public purpose ? The courts have been liberal in their interpreta- tion of this term. They have upheld the taking of land for post-offices and other buildings, for parks, and for all other purposes related to the functions of government. Not only may tho government itself exercise tliis right of taking private jproperty for pubHc purposes, moreover, but it may ^^■1 Tsm LIMITATIONS ON THE POWERS OF CONGRESS 295 eonfer the same right by franchise-g-nt -Ponj^ ,,a other -^^nf :rtrrXnt^o't^^^ service enterprises. It j^ J^^*? f '^^ ^^j.f aifficulty is found m corporations, indeed, that the cmei j aot^rmining the ^^^^'^^t'^'^:X st!U however, of eminent domain, it may be gem-iaj^ possesses in the that such power as the government ^t;;J^ .f ^^^''^elegate Ltter of condemning Pnvate property ^ ^^^^ j^^^^f^^, ,, any public utihty ^^^^^^^^^i^^^^^J^^^^^^ of th^ oithe bv thrgoWrnment itself or by some corporation j,,_^„„. use citaer oy vnt- g.'jv. „.:„„"hi(st pomnensation. „,„h„ri.od by it, must always receive just """^P^ ^, ;;;:;;;;;:S, arn^Potses a„''aai.,stment .ay be made^ '„■ Ihe private owner -- /^^evtr, he has an appeal just compensation in this w»y' "°T? : ^^ „„ receive "" r "°r::;e"nf wS;lt Pr^p^^y t\a Jn by the and must accept. /y^7^ P"YTninn the laws of that stst.. ;;:.S tt-rC-by^hiere-oCUlon will be d. tcrmined. . . , ^„_„„t to the methods 6. As to \T.,nv exnress lim tations with respect to tut- '"^ judicial /ludL^r^edure^a. h^or^^^ ^l ;::rrSt«cSjrcS.^^^ process which may be used f^.^^^^J^tmles of evidence, limitations relate to jury trial, to certain mies ^ tn tho nature of punishments, and to second jeoparay im to the nature oi F" , , appropriately ex- the same offence. 1 hey will oe .'""'. rf,.[, ^gr of plained in a later chapter deahng with the judicial power ''L'^illere rrelmpUed powers in the Constitution, so there ,,fJi;:^L;ii" limitations in other words, some restric- 1 See oh. xxiv below. m¥Ssrmmi!r^jt^^''.r4js^^^t:Mnsiimsmi w^ii^mwe. -^,s T. M. Cooley, Constitutional Limitations (7th od., Boston, 1903), p. 163. LIMITATIONS ON THE POWERS OF CONGRESS 297 ^. ro it has oassed a law, to provide, for example, that it :Xo ntoX^vlu.u'ver the President ^huU ud.udge in conditions to exist and shall so announce by proc- hm-itioni While Congress, therefore, cannot delegate si ower to make a law, it can authorize the exercise of dnStrative discretion with respect to matters whh :„ closely related to law-making. Just when thi dis- t.on Times so broad as virtually to constitute legislative or iVn nuestion which cannot be answered by rule. Cte^dency of the Supreme Court in later years has been torive administrative discretion a large amount o play This is of great practical importance because of the -eadi V ncreaLg control of business by the law. Laws ; not by natur? resiUent, and regulation by laws alone unmodified by the exercise of official discretion is reasonably r to work"^ injustice. The best system of /egulat-n - one which can bear heavily when the need ans bu re ax its weight when the need disappears. Hence it has been he policy of Congress to delegate to various federal boards ch OS the Interstate Commerce Commission, the Federal rIvc Board, the Federal Trade Commission and even various administrative officials such as the /ostmaster ILral or the Commissioner of --?-/-"' ^X^TlS nowers of a comprehensive and varied character, ims a tirhas been furiously attacked in the courts as con ' itu ng a delegation of legislative authority. In practically :'ory instance' however, the action of Congress has been "^One" result of this frequent delegation of ministerial discretion has been to take the country, in aet-^ practice ^ Ion.' step away from old legal traditions. As official discre- lu-n wis, a'government becomes more -^ mor-^^^^^^^^ ornment of men. Hence we have had in the United htMes during the past quarter of a century a steady g^o^^ ^ ot " administrative law," a rather incongruous term in a country which still professes allegiance to the aoctrine of «^;Pajat.^" « powers. So rapidly has this system of/dm^nistrative dism^^ ion been extended t'lat to^lay a considerable Pf rt of ^e fed oraUovernm rP^uiating authority is actua.^ earned mto Importance of this ad- ministra- tive dis- cretion. It has introduced a new feature iuto American govern- ment. ■SS'^-^XFSgg. The con- flict of theory and practice in delegation. Importance of the whole 'subject. 298 THE GOVERNMENT OF THE UNITED STATES operation by the promulgation of administrative rules and o> dinances, thus approximating the practice of European coun- tries, Adiaiuistrative supervision is far more just and more effective than legislative dictation couched in unbending terms, and befor(> the pressure of tliis practical advantage the ancient theories of government by law alone are bemg relent- lessly puslied off the stage. Let it be made clear, however, that in no case may any administrative board or officer change any express provision of a law, even though such pro- vision mav seem no longer calculated to fit the needs of the situation.' Administrative officers, no matter how wide their discretion, can insert notliing, change nothing, repeal nothing. Their discretion extends only to such latitude, within^'the written provisions of the law, as Congress may designate. . . ,11 The foregoing are not the only limitation-' placed by the constitution upon the powers of Congress. Some others, which relate more particularly to the inherent rights of the citizen, have been already discussed under that heading ; others, again, which appertain to the forms of judicial procedure will be explained more fully in connection with the jurisdiction nnd work of the federal courts. Con- stitutional limitations, a subject which concerns the student of European governments very little or not at all, can never be lightly brushed aside by any one who desires to Vxider- stand the spirit and the scheme of government m the United States. Nor is Congress alone in its subjection to organic limitations. The state legislatures also have their constitutional shackles, as will in due course appear. American constitutional law, indeed, is fundamentally the law of constitutional Umitatidns. ■ m )!^mir^'y ''■I'-'-^-i.^- CHAPTER XXI T„K WOUKINC-.S OK CONCUtESSIONAL (lOVERNMENT WITH SPECIAL UEl'EUKNCE TO CONGUESSIONAL FINANCE Thk Congress of the United States, as the foregoing ,.';,. hav^e tried to show, is a legislative organ of mtncate j;thanism, with its complicated rules and methods of p Xre, its multitude of committees, its vaned powers^ ami its equally significant limitations. How well or how •^ilvdoes it do L work which a legislature ough^t to do? Doesit function smoothly as a ^^^g'^^^^^'^.f^^^^^f ,. /^'^HoVs t,.t of a constitution is the success with which the various orins established by it perform their functions and hold tlu-ir proper relations to one another. F UrLon- the merits of congressional government .s i has exS^d in the United States for over one hundred ni tirty years, is the fidehty with which law-making n? rX-ted the pubUc opinion of the country. That is ;; :, f:;^ that igress has at ail times been --diatdy rcnonsivo to popular sentiment; but on the whole it has ^rolton failed to act when the country «Poke i s mmd^ A clnricteristic of American public opin- -, is that it does not ,H1 . ow solid the country over. Sentiment on great oliticar^ues of American history, states' ngh^s^ave^^^^^^ ocossion, the tariff, the currency, the regulation oi^mm l,as s1u>wn great sectional divergences and on many occasions Congress failed to act decisively because no audible mandate came to it from the country as a whole_ ..^^^j, the Heroin one finds a fundamental difference ^^et^reen the American and the English conceptions of what a law .naking body ought to do. Enghs uncn ^P^^^^/J Jf^. "governing classes" who have virtually dominated parha 299 The mmtg and short- cominosa of Conwes* aa a lc(d»- lativo body. Its re- sponsive- ness to public opinion. lis function is to follow, not to lead. -mM^i^^tMi'^^t^iYf*' «^' w.. 300 THE GOVERNMENT OF THE UNITED STATES Lack of inherent leader- ship makes this ncces- sao'- The liberty of the individual Congress- man compared with th^t of a member of parlia- ment. ment for many generations and whose function it is to assume the r6le of leadership, guiding public opinion along definite lines. There are no governing classes in America and save for a few years after the establishment of the Union there never have been. It has been the function of Congress to keep its finger on the public pulse and to be guided in its actions accordingly. Its duty has been to transform national desires into statutory enactments rather than to formulate policies for the nation to follow. So far as the national sentiment is crystalUzed into definite proposals, this has been the work not of Congress but of the men who make the party platforms. It is well, on the whole, that Congress has not essayed the function of leadership, for its organization is not well adapted to that task. Someone has remarked that even if every Athenian citizen had been a Socrates, the Athenian assembly would still have been a mob. So if every member of Congress were a Washington or a Webster, its methods of doing business would in themselves preclude the planning and consummation of a well-defined legislative policy The House of Commons has been able to guide political opinion in Great Britain because it is itself endowed with an administrative leadership. The doctrine of separation of powers has denied that advantage to Congress. Con- gress is not, therefore, to blame for the lack of continuity in American legislative policy or for the paucity of well- grounded legal traditions. A new and rapidly growing country changes its mind frequently ; it is proverbially fickle in its desires, and Congress has mirrored these trans- formations in public opinion with a reasonable degree of ftccurucv. The 'eulogists of the British system of representative government have laid emphasis upon the way in which public proposals can be formulated by a few ministerial leaders and carried through parliament without the like- lihood of their being mutilated beyond recognition. A government measure, when once laid before the House of Commons, is reasonably sure of adoption without matcna! change. From the standpoint of clarity and expedition m law-making, and the concentration of responsibility for it, Wfyi'.J*!^\ THE WORKINGS OF CONGRESSIONAL GOVERNMENT 301 •* i>.,t U U uchieved by sacrificing the th,. is a great «^«"V.Maivdial member. In the House personal discretion of the individual mem ^^ ^^^ ^f Commons ^^ has reduced the greater ^^ ^ members, the " ^'a^^'^^"^^*"^ ,/,le making of the laws, position of virtual i-potence n^^^^^ t^thether they will They have no personal ^ section as to w ^^^^^^^ I ju not ^-vvon'^:':::z^^^ of the of the majonty P^fjf.rbeing branded as a political cabinet only at ^e mk o ^ ^^^^^^ ^^pp ^ renegade. I a "^-"^^^J /Jj,; ,^^, ^ould be an equally any proposal of ^^^J'^l^'y;^^; guch things 1 ppen on | ,rave breach of P^^J^ '^J ^^^J^^'.^e in the high, t degree ; occasions, it is true, but tney government exceptional and con^raY to ^^^Xngas'the English legis- as it exists m Great Britain. »» ^° ^ ^^^.^^ lator stands by his ^-^ers he t^,^^^^^ constituents, is always in itself a sufficienMust.fica^^^o^^^.^^ ^^ ^^^ .^_ In Congress, on the «t^f ^^^^^^^^^^^ ,„d his responsibility dividual member IS more ^^^^^^^^^^ ^ ^ the measures of more general. The ^^'l^S'^*^?^,^; fSion to do what his ''^^'^'r::lT:Zt^^SZ. desire. The conscience directs o^ wnat m as a rule, determined ultimate character of Y^f^''''V:,ut\Tnl^^^ie\y settled i„ advance ^Y a few leaders ; and x ^« ^-;^^^ '^^ .^^ir until the members of both "ouse^ J^ave g .^ in^Uvidual opinions upon it. ^^ J^J^/ ^ fuberty of the taken upon measures before Congress th^^^^^ individual member IS ^f^P^^^^^ut rela vely ^^ ^^^^ are made the subject f ^^^^^^^^J J^^ governmerit , there- striking characteristics ^^.^^"fXces upon the discretion fore, is the empha.s which ^^ P^ ^ ^^^^^^^^^ ^^i. is a tt^: ;tFcr:^cur U':;^ congressional district its due share in the law-making process. ^ ■ ^i^at a Congre«- Thc theoiy of English p^^^^^^^^ p,,ey .o^^^^ ^ minority party has no right to mnuent J- ^ ^^^. .^^^ghta am: j*^5» 'Sf^KTf' j' I r i Where Congress fails. Its in- efficiency in public finance. Stages in the niaking of appro- priations. 1. The estimates: how pre- pared. 302 THE GOVERNMENT OF THE UNITED STATES bu«ines« in Congress, it is often witliin the power of tho mmonty, when the ranks of the two parties are no vv dl apart to prevent the progress of business. I CWesst to get through Its huge program at any se..sion;moreove the advancing of measures must he had i„ « ^reat minv eases by unan.rnous consent, and a minority tweve^ mall, may establish a legislative blockade by refusing thTs But most important of all is the fact that a party mlri; n Congress ,s not always to be counted upon/S"ona1 mterests often outweigh party allegiance. ReativeyTw measures pass both Houses of Congress by a stra git part v vote. Hence the individual member of Congress CI much greater personal share in moulding tlie po ic J of he country than has the meml,er of parlkmen unU L latter happens to be also a member of the ministr^ On the other hand Congress lias the defects of its qualities The absence of official leadership is the source ofTric on" og-rol ing, working at cross purposes, and hopeles diffu- sion of re.sponsibility. As an appropriating body Conte^s appears at its worst and in liandling that branch of publ business can scarcely bear favorable comparison wi/^the national legislature of any other country. Its methods are clumsy, provocative of delay, and an incentive to e^tAva! gance In no other field of Congressional activity s the need for reform more urgent than in this It is a fundamental principle of popular government that public expenditures shall not be aW^ .riz^ed savTby tl e representatives of the people. Ace .,glv it is provid I n he constitution of the United States that "no money shall be drawn from the Treasury but in consequencT(^ appropriations made by law." The first essential step in all national expenditure is, therefore, that Congresf shaU make an appropriation in the form of a law. Be ore an appropriation bill is submitted to Congress, howev^ there are some preliminary steps which should b; indicated M n of the functions of national government (such as the maintenance of the army, the navy, public works the administration of justice, and so on) a^e' in the jurisd L on therrr;"s;':b "> department. Each of these departments! thereft)re, submits an estimate of the amount of money '^m^m TIFE WORKINGS OF CONGRESSIONAL GOVERNMENT 303 that it needs for the ensuin;. \\ year. Tliese estimates arc made out in (let ,il. 'I'lie sheets are then put together ami fjiven as a whole to the Secretary of the Treasury who transmits them to the Speaker of the House. In printed form they make up a volume of many Imndred pages. Along with these departmental estimates the Secretary forwards his forecast of probable revenues for the year. In preparing their estimates the various departments act independently. Each formulates its own requirements with- out any reference to the needs of the others, and without knowing how much there will be to spend. The Secretary of the Treasury has iio power to prune these estimates ; he is nuToly a cliannel for transmitting them to Congress. As a natural consequence the estimates, when totalled together, are always far in excess of the probable revenues. Since March 4, 1909, the law requires the Secretary, whenever he fill 's the estimated expenditures in excess of the probable revenues, to "transmit a detailed estimate of all said estimates to the President, to the end that he may, in jjiving Congress information of the state the Union, and in recommending to their consideration such measures as iie n .ly judge necessary, advise Congress how in his judg- ment the estimated appropriations could, with the least injury to the public service, be reduced so as to bring the appropriations within the estimated revenues, or, if such reduction be not in his judgment practicable without undue injury to tlie public service, that he may recommend to Conirress such loans or new taxes as may be necessary to (dver the deficiency." * Since the adoption of this provision it has been the |M;utice of the President to name a committee of the Cal)inot to go over the estimates before they are sent to the Secretary of the Treasury. But the task is so large that no firoup of busy men can attend to it properly m their spare time. Despite the act of 1909 the estimates continue to be framed and sent to Congress without any mutual co- operation among the executive departments. Now comes i ^ next step. The Speaker of the House ' ITeury Joues Ford, The Coal of Out Nalioiud GoMrnment (N.Y., 1810), p. 128. Lark of joint action in prpparinK them. 2. Sent to the Secretary of the Treasury. The change of 1900. Has not accom- plished much. :i. K.f.r- I'lll'l' Clf ••Htiniatci to rom- luittceg. 4. Supple- mentary estimates straggle in. 5. Bills are also filed by individual Congress- men. 6. The appropria- tion measures framed l)y the com- mittees. 304 Tin: (;(tVKHNMK\T OF THE I'XITKD STATES rfToivos the ostimatos from the Socrotarv of the Treasury His funcion, tlicrnipon, is to refer them to the several committees of the House for consideration. Eight or nine difTercnt committees each jjct a portion. The largest .share goes to the ('ommittee on -Appropriations; hut the Com- mittee on Military Affairs, the(\)mmitteeon Foreign Affairs the Naval Committee, the Post-Offiee (^mimittee, and vari- ous others each get the estimates relating to their several brandies of administration. 'Hiese committees then proceed to hear what th(> various heads of departments or chiefs of bureaus have to say in explanation of their estimates. No official of an executive depar^-nent may sit or speak in Congress, but he may appear l)..ore one "of its committees, and in the long run that is about as effective a wav of making his opinions known. Each of tliese eiglit or nine committees does its work independently. No one knows what the others are doing; each is solely concerned with its own estimates. To make matters worse, supplementary estimates keep coming in after the committees have their work under way. These supplementary estimates are to provide for things which have been ovnrlooked by executive departments in makhi - out their original estimates, or for new and unforeseen demands which have ari.sen. Various bills involving expenditures, again, are filed by C ongressmen after the session begins. Sucli measures include bills for the erection of post-offices and other public Iniildings, for dredging rivers and harbors, for the con- struction of roads, td for various other matters in wliich the representatives aio directly interested. These bills also go to the proper committees for consideration. After eadi committee has delil)erated upon all these proposals to spend money it reports one or mo'-e appro- priation measures in wliich the expenditures, as the com- mittee has finally decided upon them, are provided for. Ihese measures are either in the form of the regular appro- priation bills,' based upon the estimates sent in by the ■Ordinarily there are fourteen regrular appropriation bills, as follows: ■^^1,. !-jpg!'=iative, e.xec-uUvc, and judicial expemlilure, y2) District of Colum- bia Appropriation bill, (3) Fortification bill, (4) Pension bill, (5) Army 3^^^!r?:^7??^S¥ff^BS»3L ^®iEJP*'HRliraFaH!R8B5 Tin; WORKINGS OF CONGRESSIONAL GOVERNMENT 305 rxccutivedopartmontH, or they take the form -f "omnibus" hills, made up by lumping together such separately-intro- duced proposals for expenditure as the committee may favor It is with respect to these omnibus bills that the •riciitest opportunities for log-rolling are presented. Nearly every congressman has some project for spending public 111(1. loy in his own district, and if it is not recommended in the estimates of some executive department, he endeavors ti> get it wedged into one of the omnibus enactments. Every year many millions of dollars are appropriated in tliis way for post-office buildings whidi the Postmaster- (leneral's department has not asked <'or and which it would Milvise against if its advice were asked. These bills are tlien reported to the House, where they ,ire put through their .several stages. To give them detailed consideration is quite out of the question in a body which mmihers four hundred members. Consequently they go through, for the most part, just as they come from thr> roiiiniittees. .\ little may be added here and taken off tliere, Imt great increases or reductions are rarely made. In appropriation bills totalling nearly a l)illion dollars "-ported by committees in 1016 the Hou.se n.ade changes niiiounting to less than fiv;' niillidiis in all. Tiio .-pcnding- l>o\v(T of the House is thus diffused among various com- mittees which do not work together on any single plan. Having passed the House the l)ills go to the Senate. H( ic the system of consideration by committees is much simpler. All appropriation bills go to one Committee on Aijpropriations, with the exception of the Rivers and Harbors hill, which is referred to the Committee on Commerce. Before these two committees the senators may urge amend- ments, and many of them do so, usually in the way of proposed increasi-s or new items, \\lien the bills are reported to the whole Senate, accordingly, the aggregate amounts are almost always increased. With these amend- ments and others that mav be added in the Senate itself 7. Put t hmugh thfir various Magea in the House. S. Sent up to the Senate. '"11, ((•)) Militant' Academy bill, (7) Naval bill. (H) Post-Offiee bill, ^'•_ Indian Affairs bill, flO) Rivers and Harbors bill, (11) Agrieultural -■!!. 12; Diplomatic and Consular bill, (l.i) Sundry Civil bill, and finally (14) the Deficiency Appropriation bill. 306 THE GOVERNMENT OF THE UNITED STATES 9. The Senate's part in appro- priations. 10. The final com- promising and the executive approval. Influence of the President in appro- I)riationd. How appro- priations are made in other countries. after the committees have roportecj, the bills are finally sent to Committees of Conference made up of selected senators and representatives. It is the function of these conference committees to adjust the items so that both • chambers may agree and get them finally passed. Com- promises here and there arc made ; the conferees report these to their respective chambers, which then pass the bills and .-*end them to the President to be signed. When an appropriation bill has been passed by Congress the President has practically no alternative but to accept it. He can veto the whole bill if he chooses to do so ; but he cannot veto any items in a bill, leaving the rest to stand. To veto a whole appropriation bill because certain items in it are objectionable, thereby depriving some department of the national government of funds for carrying on its work, is a rather drastic step. Consequently the President, as a rule, registers his objections to the offensive items but signs the bills all the same. The result is that the veto power, so far as the spending of public money goes, is reduced almost to a nullity. Such a situation is both embarrassing to the President and costly to the taxpayers. Public opinion holds the President responsible for extravagances which he is in reality quite powerless to prevent. In this complicated procedure two things stand out prominently, first, the marked difference between the way appropriations are made in the United States as compared with other countries, and second, the considerable share which the Senate has assumed in the authorizing of expenditures. In England, in France, and indeed in every country having constitutional government except the United States and the Latin-American republics, there is a centralization of responsibility for all proposals to spend public money. In England, no proposal to spend money can be considered by the House of Commons unless it comes from the crown, that is, unless it comes to the House with the indorsement of the cabinet.* No proposal of expenditure ' Here is the rule (adopted more than two hundred years ago) : "This Hnuso will reppivo no petition for any sum relatine to the public service, or proceeti upon any motion for a prant or charge upon the public revenue — unless recommended by the Crown." THE WORKINGS OF CONGRESSIONAL GOVERNMENT 307 can roach the Chamber of Deputies in France unless it is pent by the executive branch of the government. In the United States, on the other hand, any h' 'l of a department, any senator, any representative, ; vr ciiizou ihmugh the agency of his congressman in fact m-iV obtnin : hearing upon proposals to spend the nation' . n 'jney. Lord Bryce quotes an unnamed .Lr.'^'f" n -publicist as tlio source of the following shrewd observation on this point : "So long as the debit side of the national account is managed by on(? set of men, and the credit side by another set, both sots working separately and in secret without public re- sponsibility, and without intervention on the part of the executive official who is nominally responsible ; so long as these sets, being composed largely of new men every two years, give no attention to business except when Congress is in session, and thus spend in preparing plans the whole time which ought to be spent in public discussion of plans already matured, so that an immense budget is rushed tlirough without discussion in a week or ten days — just so lonji the finances will go from bad to worse, no matter by wliat name you call the party in power. No other nation on earth attempts such a thing, or could attempt it without soon coming to grief, our salvation thus far consisting in an enormous income." ^ The second feature which stands out prominently in the moclianism of national expenditure is the relatively large power ot the Senate. It was taken for granted by those who framed the constitution that the House of Representatives would "hold the purse," as Madison phrased it. But the actual words of the constitution do not so specify, for tli(\v give the Senate equal powers with the House in all financial matters except the originating of bills for raising money. There is thing in the constitution which requires tliat i)ills for spen^ .ng money shall originate in the House, although by custom they always do originate there. It was expected that the House would become practically supreme in all financial matters because the framers of the constitution had before their eyes the example of England, thi- unc country having real parliamentary government in ' American Commonwealth, i, pp. 182-183. Lord Bryce's comment. The intlucnee of the upper chamber upon financial policy. 308 THE GOVERNMENT OF THE UNITED STATES The House Wiis in- tended to 1)6 the duniinant factor in that field. But it has not suo- oeeded in IwcoMiint? such by any means. 1787. There, without any formal provision of law, the House of Commons liad acquired a complete mastery over both revenue and expenditure. In one of the Federalist letters Madison brought his historical knowledge to bear on this point. "Notwith- standing the equal authority which will subsist between the two Houses on all legislative subjects, except the origi- nating of money bills, it cannot be doubted," he declared, "that the House . . . will have no small advantage. . . . The House of Representatives can not only refuse, bnt they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse — that power- ful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with whiehany constitution can arm the immediate representatives of the people, for olitaining a redress oi every grievance, and for carr>'ing into effect every just and salutary measure." ' No expectation of the Fathers has been denied realization to a greater extent tlum this. The House of Representatives, unlike the House of Commons, has obtained no financial mastery. Where the Senate and the House have come into conflict upon questions either of revenue or expenditure the Senate in nearly every case has had its way. Instead of becoming the dominant chamber the House has hard work to maintain its plare as a coordinate arm of the national legislature. It has never gained that power of the purse which was originally regarded as its peculiar prerogative. Instead of he'iug strong and masterful in its relations with the Senate, as was anticipated, the House has been forced on numberless occasions to take refuge in compromise. The fact is worth remarking that in the United States, almost alone among the world's great nations, the lower chamber of the national legislature has faik'd to gain control of tl. national pocket-book. » The Federalist, No. 58. THE WORKINGS OF CONGRESSIONAL GOVERNMENT 309 It is often remarked that the United States is also the The lack only great country without a budget system. Whether that '^J^ionai saying is true or not depends upon what one means by a budget, budgt . . If a budget be defined as " a s+atement of probable revenue and expenditures and of finsj 1 proposals for the ensuing year as presented to or passed by a legislative body," ^ then Congress does have each year a series of such statements emanating from various sources, and these taken together make up a national budget. But if a budget be de- fined as "a collection of documents assembled by an officer who is at the head of or is responsible for the administra- tion and submitted to the legislative branch of the govern- ment."^ then the United States does not have a national budget system. Some of the documents are prepared by the executive departments under the President's direction ; others are prepared by the committees of the House. Neither the executive nor the legislative branch of the gov- ernment is wholly responsible for the programme of ex- penditures. There is no correlation, moreover, between those committees which prepare bills for raising revenue and those which prepare the appropriation and the "omni- bus" bills. If the expenditures keep within the income it is by happy accident rather than by careful design. How might this serious defect be remedied ? One change Suggested would certainly be of advantage, namely, the adoption in l^^^f^ both the House and the Senate of a standing rule providing relating that no proposal of expenditure should be in order unless ^riatto^. recommended by the, executive branch of the government. It may be urged that such a provision would be unworkable because the executive and legislative branches are not always, as in England, harmonious as to public policy. In reply it need only be pointed out that political inharmony between the mayor and the council is often found in .\mcrican municipal government, yet the provision that no appropriation can be considered by the city council unless it is recommended by the mayor has been inserted with good ' Boston Budget Commission's Report (1915), p. 4. ' Report of the President's Commission on Economy and Efficiency. The Need for a National budget (Washington, 1912. 62d CongreBS, 2d Session, House Document 854), p. 8. 310 THE GOVERNMENT OF THE UNITED STATES A budget system recom- mended. Congress works too hurriedly And has too much to do. results in many city charters. Congress could manage its expenditures under the operation of a similar rule if com- pelled to do so. It would still have the right to strike out or to reduce any item, but not to insert or increase. It may be of interest to note that the framers ci the short-lived constitution for the Confederate States of America in 1861 adopted a provision of this nature.^ Some years ajjo, on the recommendation of President Taft, Congress authorized the appointment of a special com- mission to examine the existing methods of national finance and to recommend improvements. This commission, after a thorough investigation, recommended the estivblishment of a budget system under which all estimates for the year would be transmitted to Congress by the President in a single list and incorporated into one great q,pp-opriation measure. Congress, however, did not take kind.y to this proposal and the system remains as before. Not merely in the matter of appropriations but in the enactment of all its measures the great handicap upon Congress is the perennial need for haste. The first and in some cases the only object of its multifarious rules is to hurry business along. Ever>'thing else is subordinated to the problem of getting things out of the way. So much is each year laid out for it to do that only by skimming the surface can Congress hope to do its work at all. Legisla- tion is never an easy business in a democracy whore many discordant voices are shrieking their desires and counsels at the same time. If a country makes up its mind to have a government of laws it must expect a plenitude of laws, for it takes a whole volume of laws to do what one administrative official, with sufficient discretionary authority, could per- form without overworking himself. The American doctrine of government by laws alone has brought in its train the greatest outpouring of statutes that the world has ever seen. Law has become the popular panacea for all political, social, and industrial evils. Congress is not the inspirer • Art. I, Sec. 9. "Congress is forbidden to appropriate money from the treasury except by a vote of two-thirds of both Houses, unless it be asked by the head of a department and submitted by tiie President, or be asked for the payiaent of its ov/n ejtpenses, or of claims aijainst the Confederacy declared by a judicial tribune to be just." THE WORKINGS OF CONGRESSIONAL GO\^RNMENT 311 but merely the reflection of this national eccentricity. The enacting, revising, amending, repealing of laws has become a great national industry. Statutes fly from fort^-nme leaisUitivt" capitals in the United States like sparks from so muuy forges. Laws beget laws. Give a statute tmie and it will have The its own progeny. The increase is like that of micro- or'nuiisms, by geometrical progression. The fathers of tlir RopubUc foresaw the dangers of over-legislation and dosirod to guard against it. " It will be of little avail to the people," wrote one of them in the Federalist, "that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood ; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is to-day can guess what it will be to-morrow." But such safeguards as the constitution provides against law-making en gros have not proved effective. The chief shortcoming of Congress, and of the state legislatures as well, is the sacrifice of quality to quantity in the process of law- making. plethora of laws. Opposition of the founders to the purty system. CHAPTER XXII POLITICAL PARTIES IN NATIONAL GOVERNMENT: THEIR HISTORY AND FUNCTIONS The history of political parties in the United States began with the constitutional convention of 1787, yet the men who made the constitution were not believers in party government. On the contrary they were at great pams to provide a scheme of government which would be free from party animosity or the "violence of factioii" as James Madison expross(>d it.' This attitude of Madison and his colleagues was quite in tune with the eighteenth century Whig idea of government which regarded parties as barnacles upon the ship of state or cancers in the body politic. Before 1787 no English political writer of any consequence except Edmund Burke had dared to defend the party system, and his arguments were regarded as di.^ingenuous attempts to gloss over the inu{uities of cabals and cliques. The fathers of the American r(>public chose rather the political gospel of Bolingbroke antl Ciiatham, which frowned sternly upon the "pestilential influence of party animosities." ' "Among the numerous advantages promised by a well constructed union, none deserves to be more aecurately developed than its tendency to break and control the violence of faction. ... By a faction I under- stand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion or of interest, adverse to the rights of other citizens, or to the per- manent and aggregate interests of the community. . . . The latent causes of faction are sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different cir- cumstances of civil society. A zeal for different opinions concerning reh- gion, concerning government, and many other points . . . ; an attachment to different leaders . . . iiave in turn, divided maukiud into parties, in- flamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good." The Federalist, No. 10. 312 POLITICAL PARTIES IN NATIONAL GOVERNMENT 313 The eighteenth century knew little of the practice of Yet^^^ frre government. The statesmen of the period could not j reJe that poUtical parties would come into bemg m a ev.tab.^ ,l,.mocracv no matter what constitutional barriers niight be . t up against their existence. Give any people the right r..nu. to .overn themselves, the right to ^hink their own though s ;^.d to speak their minds aloud, and p I'-tical parties are mo vitable. The political experience of the nineteenth ™tury was to prove that parties will come and flourish ndc" all forms of .popular government, that they are an essential of sound democracy and not an f J^^^^^^^J^^ it Bat Madison and his colleagues, guided by the relatively brief history of political parties in England prior to 1787^ Tvl earnestly concerned to keep the party system from "tdnrry foothold in the New World. How futile were A rcMideavors the whole history of American politics can now attest. The stone which the builders rejected lii< become the chief corner-stone. Tit Ihorrence of party divisions contmued, for a time Wash.. it least, after the new government had been estabhshed. ^^ thy VasMn^on's farewell address was as much an admonition to^ he^^^ linst party divisions within the Union as against ^^ty." permanent alliances outside. " In the most solemn manner Z Hrst of the presidents warned the nation "against the ll..ful effects of the spirit of party generally,;' and pilloried it u< the worst enemy of popular government. i.tration of the Kovernment, and serve to keep ^''^.f ^ J^^^^^^^ent, of a This within certain limits is probably true -and in f/>;«™"J^^^'j p. olffl. 314 THE GOVERNMENT OF THE UNITED STATES The liesiii- mni!s of American political parties. There were party groups even in the con- stitutional convention. The Federalista and Anti- Federalists. Yet although thoro existed in high places this animosity to political parties in the closing decade of the eigliteenth century it was then, nevertheless, that American political parties came into being. The members of the cont^titutional convention were themselves ahgned into two political parties. They did not realize it, of course, and would have resented the imputation ; but to any one who follows their daily deliberations the fact is readily discernible. From the very outset of their deliberations the delegates divided themselves broadly into two groups on questions of general policy. There were those who believed in a real union, who wanted to subordinate the states to the nation, to bestow large powers upon the central government. These were the Federalists. On the other hand theie were dele- gates, and they formed a minority, who desired that no power should go to the central government if it could be safely left to the several states. They believed that the central government should care for the common defence and such other things as could not be handled by the states acting separately. These were the Anti-Federalists. Ameri- can political parties began with federalism and anti- federalism, with Edmund Randolph and William Paterson leading the delegates into two groups on the first great ques- tion that came before the convention. They crystallized into pormament form when Alexander Hamilton lined up one half the country against Thomas Jefferson and the other half, during Washington's first administration. It may be contended, of course, that political divisions in the New V, )rld antedated even the framing of the constitu- tion.^ In a sense that is true. There were Whigs and Tories in colonial days : there were Whigs and Tories during the Revolution. But between these analogues of the great English parties and the new divisions based upon federal- ism and its antithesis, there is no close connection. Nor, indeed, is there any close continuity between these new divisions and the American political parties of to-day. The • "You say our divisions began with federalism and anti-federalism! Alas! they began with human nature; they have existed in America from its first plantation. In every colony, divisions always prevailed." John Adams, Works (10 vols., Boston, 1850-1856), x, pp. 22-23. POLITICAL PARTIES IN NATIONAL GOVERNMENT 315 Ronublican party, when first organized, drew from both F a.ralist and \nti-Fopul)li('an8. Their strenj^h anioiiR the people soon increased, and at the elec- tion of 17nt) they almost defeated John Adams, the PVd- eralist candidate for the presidency. The administration of John Adams gave the opposition a chance to make headway owing to the divided leadership of the Federalists. Hamilton, the most brilliant spirit in the ranks of the latter party, did not manage to work in harmony with Adams. The two were not alike in tempera- ment or ways, and tlieir relations ended in an open breach. By their support of the Alien and Sedition Acts (1798), moreover, the Federalists made a serious error, giving Jefferson and liis friends a fine opportunity to make politi- cal capital. Tlie country rang with the clamor of the Republicans that these measures were designed to buttress the falling fortunes *he Federalist party by repressing freedom of speech .lU' ifling criticism. Ever\- prosecution under tliese laws provided occasion for a demonstration against the Federalists. The result was that at the election of 1800 Jefferson was triumphantly returned and the Democratic-Republicans assumed control of the national t,overnment. Before the close of liis administration, how- ever, Adams succeeded in clinching for many years the hold of fhe Federalists upon one department of tlie government. This he did when lie appointed John Marshall to be Chief Justice of the Supreme Court. The election of 1800 disclosed for the first time a definite political alignment not only among the leaders but among the people. The agricultural population of the country, the small farmers of the North and the planters of the South, supported Jefferson. Tlie industrial and the trading in- terests, the seaboard towns and the Puritan strongholds of New England, were behind Adams. The change from Adams to Jefferson was, therefore, a turnover of great political significance. The Federalists had been con- servative, aristocratic, even reactionarj'. They had clung with great tenacity to theories of government which placed more emphasis upon order than upon libertv. They strove to make the central government a real power in the land. POLITICAL PARTIES IN NATIONAL GOVERNMENT 317 construing in a broad way the powers granted to Con- .rross by the constitution. Jefferson and !)•.» Democratic- Konubh'can followers, on the other hand, p.ofessed those theories of government which laid stress upon the natural liljorty of the citizen. They asserted that the provision.s o|- the constitution which gave powers to the federal govern- ment should be strictly construed. They were partisans of .fite rights and gave their allegiance to what they liked to cill "democratic principles." Yet they did not, after their uccssion to power, throw overboard what the Federalists had acquiied for the new government. They continued the pro- 'tective tariff, established another United States Bank, and in the purchase of the Louisiana Territory gave the broadest po.^sible interpretation to the powers of the national gcvern- mont Tlie AUeii and Sedition laws v:ere allowed to lapse ;. but the Embargo Act which shut off American commerci' with Eiiiope(1807), and the methodsused in its enforcement consti- tuted (luite as great an interference with individual liberty. Jefferson remained strong, however, in the confidence of the people, as his reelection proved in 1804, and he was able to pass on the presidency to his disciple, Madison, at the (lose of his second term in 1809. During the two adminis- trations of Madison the Federalist party still further dis- int.-rated, and at the election of 1820 placed no candidate before the people. The Republicans with the election of .lames Monroe in 1820 were in complete control^, their candidate having carried every state in the Union. The Federalist partv went out of existence. But no one party can long remain in sole control of any free government. A majority party, no matter how strong, has within itself the germs of decay. The more pronounced its ascendency, in fact, the more quickly is it apt to relax its vigilance and to afford opportunities for disintegrating forces to do their work. Signs of disunion promptly showed • One elector from New Hampshire gave his vote for John Quincy Adams for President, and thus deprived Monroe of che honor of a unam- rnnu. ,!,.,.i;„„. It has been frPqu'^nMy said that this recalcitrant elector ilM so in order to prevent any one else from sharing with Washington the lio,„.r of a unanimous choice ; but this statement is not true. The elector ha.l other r.^asons for his action. See Edward Stanwood, A Hxslory of the Presidency (2d ed., 2 vols., Boston, 1916), i, p. 118. Supremacy of the Re- publicans, 1800-1824. Insintcgra- tiou of the Federalists. The parry chaos of 1824. 318 THE GOVERNMENT OF THE UNITED STATES Evolution of tho new parties. The elcrtion of Jacltson and the era of Democrntip supremary, 1828-1844. «ii'':, themselves atnoiiK the HepubHcans. Before long the party divided itself into various fact ions which eventually coalesced into two jironiinent groups, one of them led by .John Quincy Adams, Daniel Webster, and Henry Clay, the other by Andrew Jackson and John C. Calhoun. But I)efore this consolidation was accomplished the country was compelled to pass through ten years oi personal and factional poli- tics. During the.se years it 8eem(>d impossible to restore the popidar alignment into two great divisions, and at the election of 1824 there wrre four candidates for the presi- dency, Jackson, John Quincy Adams, Crawford, and Clay. No one of tliese obtained a majority of the electoral vote, and the choice of Adams was made by Congress. Thus ended the rule of the Virginia dynasty. The new administration began its work in a whirl of charges and recriminations. Rumors of corrupt and under- hand dealings were in the air. Congress was hostile to Adams and his administrative plans frequently missed fire. The factional bickerings seemed interminable. By 1828, however, the various groups had consolidated. The more nationalistic factions, now known as the National Republicans, in that year supported Adams for reelection; while the motv radical elements of the old Republican party, taking the name Democrats, supported and secured the election of Andrew Jackson. "ITie election of General Jackson to the presidency," says Professor Channing, "was the most im})ortant event in the history of the United States between the election of Jefferson in 1800 and that of Lincoln sixty years later. Madison, Monroe, and John Quincy Adams belonged to the Jeffcrsonian school of statesmen who, while holding liberal views, yet represented in their education and habits of thought the older and more courtly type of which Wash- ington was the most con :uous example. Jackson, on the other hand, was an indigenous product of the American soil. Vigorous and absolutely without fear, he was a born leader of men. Tlie Jeffersonian theorv aimed rather at the establishment of state democracies, while Jackson's mission was the founding of a national democracy." ' > The Unilcd States. 1765-1865 (New York. 1896), p. 208. POLITICAL PARTIKS IN NATIONAL GOVERNMENT 319 llie election of Jai-kson, at any rate, is a proat huulniark in the histor>' of American political i)artie8. His views and policies were forceful; they made him warm friends and bitter enemies; and thev accentuated the division of the p,.opl<> into two great parties, Wliigs and Democrats. Jackson's extension of the spoils system promoted the .-tiiciency of party organization by giving his party followers something tangible to fight for. But even more important was his successful fight to break up the congressional caucus as a machine for nominating presidential candidates, thus paving the wav for the rise of the national party conventions. Tlu^ Democrats continued to hold power until the mau- r. The second period extends from about 1820 to 1860. It was marked by a succession of party crumblings and new iiiti'tirations. First came the break-up of the old Demo- cratic-Republican organization into groups of which some eventually united to form the Democratic party under tlie leadership of Andrew Jackson, while the others consoli- dated into the Whig party under the leadership of Adams, Webster, and Clay. Then, in due course, ensued the •lisruption of the Whigs in the campaign of 1856 and the rise of the new Republican party, followed in turn by the disruption of the Democrats in 1860. The third period covers the years since the Civil War. During that time the alignment of Republicans and Demo- crats, save for temporary defections, has been reasonably well preserved. These two great narties, siiice 1860, I'.ave had a longer and more intelligible history than any of their predecessors. It is during this period, moreover, tliat in addition to the regular political parties, various other organizations based upon social or economic principles have come into the field and have managed to continue th(Mr existence over considerable periods of time. Two of these minor parties deserve mention in even the briefest outline of party history. One of them is the Prohibition party, which held its first national convention in lN72. Its fundamental principle, as its name implies, is opposition to the manufacture and sale of intoxicating Summary of party history : First periotl: 1787-1820. Second period : 18L»0-1860. Third period : l.s()0- The Pro- hi))itioa party. 322 THE GOVERNMENT OF THE UNITED STATES The Socialist party. Its platform. Definition of a political party. liquors, but in recent years the party platform has expressed itself on various other issues as well. The Prohibition party regularly nominates its candidates for President and Vice-President. Although at times a considerable popular vote has been poUc " for these candidates (more than a quarter of a million on one occasion), the party has never yet secured a single vote in the electoral college. The SociaUst party in the United States virtually began its career as a national party in 1900, although for some years previous to that date a Socialist-Labor and a Social- Democratic party had been in existence. The Socialist party of to-day is the result of the union of these two earlier organizations, although a Socialist-Labor party still continues in the field. Its platform calls for both economic and political reforms. Among the economic demands are the public ownership of railroads, telographs and telephones, the extension of state ownership to mines, forests, and other natural resources, the socialization of industry, the provision of work for the unemployed, and the establishment of pensions for the aged. Among the political reforms which the party desires are equal suffrage, the initiative and referendum, the abolition of the United States Senate, the popular election of all judges for short terms, and the abolition of the Supreme Court's power to declare laws unconstitutional. At the presidential election of 1912 the Socialist candidate polled a popular vote of more than eight hundred thousand, but in 1916 the total dropped to six hundred iluiusand. The party organization includes all members who pay small monthly fees, such funds as are needed for election campaigns and for propaganda being obtained in this way. It is sometimes said that the genius of a nation for self-government can be best judged by a study of its political parties. The strength of parties is an index of popular interest in public affairs ; their weakness and disintegration is a sign of a political indifference among the people. What, after all, i« a politicnl p.-irty? Rdmund Burke defined a political party as "a body of men united for the purpose of promoting by their joint endeavors the national interest ■M Ml POLITICAL PARTIES IN NATIONAL GOVERNMENT 323 upon some particular principle on which they are all agreed." That is, at any rate, a good definition of what a political party ought to be. , , ^ . Pohtical parties, in short, are groups made up of voters P^.e. wlio profess to think alike on public questions. Their j^^^^,^ aim is to promote the success of those policies and methods ^^^ in which thev believe. They are a perfectly natural out- ;„ popular come of the fact that all people do not think aUke nor yet ^ov^e™- (lo they all think differently. Left to themselves they will gravitate into political groups just as people range them- solvos as the result of passive inheritance or active choice into various sects or denominations in matters of religious belief. Parties are, in fact, the denominations or sects of statecraft. Most people inherit their political as well as their religious beliefs, although ia the one field as in the other there may be defections due to the influence of environment or propaganda. _ If all people thought aUke on pohtical questions we could have no political parties ; if every man thought differently from his fellows we could have no parties, for every voter would then be a pohtical party unto himself. The pohti- cal party is therefore a logical phenomenon in all forms of government, except in a despotism on the one hand or an auarchv on the other. Their existence is the outcome of a trait which is characteristic of free men everywhere. John Adam« was right, in a sense, when he declared that parties befian with hum" - ature. Thedesirc,if not the opportunity, for'^group-exr is primeval. No country has ever been able'^to maint • or considerable periods of time, any form of responsible nment without the aid of political parties. And it is safe to prophesy that no country ever will. Yet essential as political parties are to the proper work- ings of government in all democratic countries, they have l)wn compelled to grow up without much nursing from con- stitutions or laws. The latter have either ignored the existence of political parties altogether or have sought to hold them in check by regulatory provisions. Parties, whetlier in England, France, or America, are extra-con- stitutional institutions, not formally recognized as ha\ang any influence upon the actions of the government. Neither But they have not been so recognized. The func- tions of political parties : 1. To select ■lublic issues and present them to the electorate. Importance of this function. 324 THE GOVERNMENT OF THE UNITED STATES parliament nor Congress has ever admitted that any poUtical organization is entitled to delineate its poUcies or deter- mine the obUgations of its members. Yet every careful observer is well aware of the dominating influence exerted by party platforms, party discipline, and party allegiance in both these great legislative bodies. What are the functions of a political party? In general a party has three functions. In the first place it smgles out and frames political issues for presentation to the public. Such issues come to the front gradually and do not, as a lulc, assume at the outset a very definite form. By means of the party platforms various major and minor issues are succinctly stated and the attitude of the party upon each of them is made a matter of recjrd. "We believe m the adaption of a non-contributor- old-age pension system," may be a plank in the platfoim of one party. "We view with alarrr. the proposal to spend large sums of public money in old-age pensions except upon a contributory basis, the platform of the other party may make reply. Party assertions of this type put questions of public poHcy squarely before the voter. Indeed, it may well be said that in order to get any important principle of public policy transformed into legislation the first step is to have it enunciated ia one or both of tlic party platforms. An election under the party system is therefore not merely a means of choosing candidates but a referendum to the people of the various matters contained in the platforms upon which the respective candidates stand. The specific poUtical views of men range over a wide area ; but in a democracy they must be wilUng to make sacrifices of individual opinion to reach common ground. A democracy of irreconcilables, of men who would not sacrifice to reach common ground, could not long endure. It is the function of party organi- zations to find that common ground which will attract the greatest number of individual preferences among the voters. Or to express it in another way : the function of preparing a political creed upon which large numbers of men CUM substantially agree, a eroed m-ade up by selecting those aspirations which are uppermost in the minds of the people and embodying them in a programme— that is the first func- POLITICAL PARTIES IN NATIONAL GOVERNMENT 325 tion of a political party. It is a duty that needs to be pertormed in every well-governed country, yet it is difficult see how, in the absence of political parties, it would be performed at all. The political party, by its performance of this function, enables men to act in masses. It is quite true, of cour. , that political parties do not ,hvavs perform with frankness and simplicity this work of iu.liucating the issues. Sometimes their platforms present mustiuns to the people in a bewildering or evasive form. N,nu.tuac3, agpm. they dress up the party s Pnnciples m rebounding platitudes which may mean anytV^mg or nothmg •U ill At times the platforms evade important issues or Straddle them, as in 1892, when neither of the great parties ventured to take an unambiguous stand on the free si ver nu(-tion. But on the whole the main issues at each election arc made fairly clear, and certainly they are much less o1)scurc than if there were no party platforms at all. In the second place, it is the function of political parties to provide a svstem of collective and continuing responsi- bilitv. Responsibility, to be real, must be both collective and'continuing. The mere fact that individual officers of government are responsible to the people does not guarantee X r.monstrations, deluge the voter with their circulars and harry him to the polls on election day. "If all men took a keen interest in public affairs, studied them laboriously, and met constantly in a popular assembly where they were debated and decided, there would bn no need of other agencies to draw attention to political questions. But in a modern industrial democ- racy, where the bulk of the voters are more absorbed in s«\' During colonial ilaj's there existed in Boston and in other New England towns various clubs or cliques which were at first social in character, but which became hotbeds of political discussion during the .stormy days of stamp taxes and tea parties. The Caucus Club in Boston was a conspicuous example.- At its more or less secret meetings the wheels were set in motion for influencing the deliberations of the colonial assemlily and the town meeting. After the Revolution some similar clubs or "Democratic Societies'' were formed in the cities and towns of the various states, but public opinion did not take kindly to these self-created organizations and they eventually went out of existence. ' Tliere are several excellent monographs on the or^nization and methods of Ameriean political parties, but special mention should be made of Jesse Macy, Parly Organizulicn and Machinery (N. Y., 1904) ; M. Ostrogorski, Democracy and the OT(janization of Political Parties (2 vols., N. Y.. 1902) ; and P. Orman Rav, Political Parties and Practical Politict (2ded., N. Y., 1917). - The origin of the term "caueus" is not known. Some believe it to have been derived from the Algonquin Indian kair-kaw-was, meaning to talk or confer. Others have derived it from " caulkers " because secret political meetings, which are said to have originated in Boslon, \ver»- htid by the ship caulkers to make protests against the actions of English soldiers. For further details, see M. Ostrogorski, Democracy and the Party System (N. Y., 1910), pp. 3-4. 330 POLITICAL PARTIP:S IN NATIONAL GOVERNMENT 331 Party machinery did not, thoroforp, obtain its earliest development through organizations of the people them- sclvos. It came through another channel, namely, the organization of caucuses in the national and state legisla- tiin^s, in other words through the development of party nominations for office. In local elections, during the earlier part of the nineteenth centiir>', nominations were made at town or county meetings wliore the number of the voters was sufficiently small to porniit their coming together. Not only the town and county officers but the representatives in the state legislature and in Congress were nominated in this way.' Quite often tlic candidates were virtually picked out beforehand by ■^niall groups of men who represented different shades of political opinion, and the general town or county meetings nurcly indorsed these selections. There were no regular town or county committees in charge of the local party interests, and no party funds. In the case of state elections, for such offices as those of <;overnor or lieutenant-governor, however, the ])lan pursued in local iictions could not so easily be followed. The function of making the preliminary selection of party candidates for state offices was therefore taken in hand by tlie members of the state legislature. This was natural enough, because the legislators formed the only available body of delegates representing the entire state. Hence arose the legislative caucuses, in which the members belong- inj to the same party in both Houses came together, decided npon their respective nominations, and announced them to the voters. The legislative caucus spread to all the states. It was not the creation of any individua' •> party, but arose from tlie simple fact that it was at the t.ii.>- the only practi- cahlo way of making selections on behalf of the voters thromihout the whole state. It was not easy in those days Party organisa- tion in the early part of the nineteenth century. 1. Local party organixa- tions. 2. State party or- Kaniiationt. The legiii- lative caucua. ' To nominate candidatea for elective \tt&cea which went beyond the limits of tho county, delegates from sevirul localities often assembli i. But tli(s:o ncptinRs were pomposcd in ar. anythint; but regular way; too "fi'.'n tho rt'pr^sent.atinn nf the different localities w'-'.s neither fomplet* nor 'lin 1 1. Tii^ decisions taken in them, however, were not binding .neither \'>t. r- nor c.indidates considrred themselves bound by the nominations mailc." M. Ostrogorski, Ibid., p. 5. M 332 THE GOVERNMENT OF I HE UNITED STATES n- i 3. National party nr- Bauiiation. The ron- grewituual caucus. Opposition to the congres- sional caucus. The prac- tical objection in it. to gather a special convLntion >f party delrgatci^ together; travelling was difficult and costly ; the local party organi- zations were not strong, and there were no party fund.s. llie spoils system, moreover, had not yet been de\ ned to iurnish a corps of aspiring ofll -holders, party enthusiasts, and professional workers where.' 1 1 ) fill a cunvenuon hall. In Congress also the legLdc'iive timcus a.s a means of expressing the consensus of rnch ptirt; in nominations for office was soon adopted. Ii IS'H) both the Feder.list and the Democratic-Republit an 'McniLei-s ( f the Senate and the House of Representntivrs Iv i t secnt conclaves and nominated their respective cam'idates for the Prr-sidency and the Vice-Presidency, recommending; tli' -e , mdnlate^ to the presidential electors in the several states. At iiie election of 1808 they did the same thing; but on this "ccasion their caucuses were not secret. There were pi'" "v of orote.st apainst this arrogation of nominating autiiurity, but tl presidential electors accepted the advice given them by tfi« ,r respective congressional caucuses, for there seemed to be no practical alternative. The congressional caucus inclu' senators and representatives from all over the count r\ Surely these congressmen were able to express \u>- sentiment of their states quite as well as any other body of men could do it. No other gathering so representative of the wli' *•■ party could have been brought together in tho>-e days. Yet the congressional caucus was not favorably regarded by public opinion at any time, and )>opui ir ntagonism grew strongei s time went on. This antagonism reflected itself in Congress to such an extent that in 1820 President James Monroe was renominated without the indorsement of a congressional caucus at all, and in 1824 the last attempt to lominate candidates by caucus action proved a liopelcss fiasco. ITie ostensible objectioii to the congressional caucus was its defiance of the spirit of th« constitution. Congress, the people felt, was virtually usurpinsc the funct .in of choosing the President. There was also the |>r3ctical objection that the congressional caucus represente* nly a portion of those who made up the partv. Distri ret?* resented in Congress by members of one party 1 no representation in the caucus i ' -e other party. '"h J^» J^^ P(lLn ICAL PARTIES IN NATIONAL GOVERNMENT 333 districts might contain la -o numhera of voters professing i'giaiK * to this other } irty. At my rat- the logislative lu decline. (utiais, botii in natumal nd in state earn; n-ns, i mpletely (!'-a|»pearcd after 1824.' Fhe ri«e of the nominating c« invent iiin ov'Tlapp<'^ ''let f ■•• the purpose of nominatii' ' cand; latcs statt (Jt{icf»s, ^solneoutsiflcaf■legate^ chu n foi -ii« ^nrp" ^- ^ic iroiv those towr or count ic^ which mid lui n -irpsentaium then' 1 ^ae mi> d t if it^iislutors and ielegates, > on gave « ^ ir!v ■■]:: ,V( mi- ;•'{". lar party con- ention oliosen for this purpo'*e n n. i)f tliis type to n nin,. Pennsylvania in 181 Gra itthor st.ites as 'veil. I the r d ' ' nationa' gtver .m' \v^. dtWe caueu to nat mal t m\ som(v\li,ii difTentit rlimnel. The pr;Hi ically disapp- ure(i has lieei took its .iL-e? in 'he np;)ig AiuIk'w 'acksou w: * annoui i»wn .-tai Tcnnessi^e, and w iiifortnal ublic rathcrings el> ' 'icv A i!^:-^ \v:is n iormaih ■)fiven'= 1. L laving i'rvee fir- re oi y th- ''guiitr T u ^1 ise ip o n It* ion held in ad lo the Riaeof (iDminating iin/en- (a) in the states. 'u- transition from itKU was through a f-ongrcssional caucus d, after 1824. \Vha' S28 the candidacy of he "gislature of his >rse(i y a number of Hi opponent, John nominated by any caucus ne term as president, he d to be a logical candidate (h) in the nation. 1: Vc: Id scarcely be called con- loiis, liH they did not contain delegates from all the s and t basis on which thej were chosen was not iti d. But in due course national conventions, .son, The Rise and Fall of the Congressional Caucus (New The sj'stem of national conx'cntions makes headway. 334 THE GOVERNMENT OF THE UNITED STATES OrRauiia- tion of the na- tional party. Conven- tions. How dele- gates are chosen. Work of the naticnal party conven- tions : Adopting the party platform. made up of party delegates from all the states and chosen on a recognized basis of apportionment, became the recognized agencies of nomination. As time went on these conventions developed a systematized organization ; they were brought to some extent under the supervision of the law, and they became an integral part of American electoral machinery. To nominate their respective candidates for the Presidency and the Vice-Presidency, each political party holds a national convention once in every four years. Republicans, Demo- crats, Prohibitionists, and Socialists each have their own gathering of this sort. The time and place of meeting are decided in each case by the party's national committee, a body which will be described presently. The national convention is made up of delegates from every state, each state having twice as many delegates as it has presidential electors, in other words, twice as many delegates as it has United States senators and representatives combined. Massachusetts, for example, has two senators and sixteen representatives in Congress. It is entitled, therefore, to eighteen presidential electors and it sends to each national convention. Republican or Democratic, thirty-six delegates. An allotment of delegates is also made to the District of Columbia, Hawaii, Porto Rico, the Philippines, and Alaska, so that the total membership of a national convention is about one thousand. In addition it is the practice to provide each delegate with an alternate, that is, with some- body to take the delegate's place if the latter should be absent from any of the convention's sessions. Prior to 1912 the delegates to both the Republican and the Democratic national conventions were practically everywhere chosen by state or local convention- ; but in recent years this plan has given way to the method of selection by party primaries in about half the states. The nomination of candidates is not the only function which party conventions, whether in the nation or in the states, are expected to perform. Tliey also prepare and issue the party platforms, the actual work being done by a committee and submitted to the convention, which almost invariably accepts it without much amendment. Until 1912 the conventions also chose the national committees, POLITICAL PARTIES IN NATIONAL GOVERNMENT 335 but in that year the Democratic convention provided that tlir national committee of that party should be chosen, one iiicniber from each state, by the voters at the primary. Tlic RepubUcan convention continues to name members of its national committee wherever the "tate laws do not provide for their election by popular vo^d. Tlio national committee has its chairman, who may or The may not be one of its members. He is the party's chief of ^^^^ staff and head strategist. Ostensibly he is chosen by the committee, national committee, but in reality he is the personal choice of the party's candidate for the presidency. No man can have too much skill, ingenuity, resourcefulness, or patience for lliis position. "He must be a master of details, and J^^j^^ at the same time capable of taking a correct view of the '^ »'™»"'- general situation and endowed with an unUmited capacity for liard work. He must possess the co. ndence of party leaders and liave an almost intuitive grasp of the popular feeling. He must keep in touch with every fibre of the oi_anization, lioldinji frequent conferences with state chairmen in the most important and doubtful states. He must be con- ciliatory, secretive yet approachable, keen in his choice of lielpors, able to command the services of the most effective workers in the party, and capable of making them work in unison without overlapping." * The ideal national chair- man is a rare individual, for nature docs not often combine all iliese qualities in the same personality. The national chairman is often a factor of ^roat importance His ill (letcTinining the party's success or failure at a presidential """^ "'"• elect ion. Ho must plan the campaign, select the vulnerable sjK.is ill the embattlements of his adversaries, and bolster ni> I lie weak places in his own. It is for him to determine what states nccnl particular attention and what states need little or none. He virtually decides how and where the canipaicn funds of his party shall be spent, allotting them as his judgment dictates to this or that purpose, or to this or that section of the country. President Harrison probably owed his election in 1888 to the skill and energy of Senator Quay of Pennsylvania, then chairman of the ' P. O. Rav, PolUical Partxet and Practical PolUiea (2d ed., N. Y., 1917). pp. 2155-236. 336 THE GOVERNMENT OF THE UNITED STATES The secre- tary of he national I)arty oonimittec. Auxiliary committees. The con- Kri'ssional campaign ccmniitteea. I':! National Democratic Committee, and although President McKinley would probably have been the victor at the election of 1896 in any event, his large majority was mainly due to the work of the Republican national chairman, Senator Mark Hanna of Ohio. Next in point of importance to the national chairmen are the secretaries of the national committees. Each is in charge of his party's national headquarters, supervising the enormous amount of correspondence which pivots on that point, and handling a legion of details relating to the itineraries of campaign speakers, the publication of cam- paign literature and the coordination of every campaign activity. Tliose secretaries are paid and permanent officials. Each national committee maintains a number of sub- committoos or auxiliary committees, made up lo some extent from its own members but to a much larger propor- tion by the selection of prominent party workers outside. Among these auxiliaries are finance committees of each party, publicity committees, speakers' bureaus, organization committees, and hO on. Each of these groups is responsible for some special branch of campaign n tivities, but all aro under ;ae general direction of the national committee and under the immediate supervision of the national chairman. The work of the national committee of each party is primarily concerned with presidential elections. The special function of assi h'ng the party's candidates for Congress is devolved upon separate committees, known as the con- gressional campaign committees. Each party Tiaintains a committee of this type. The chief work of these com- mittees comes midway between presidential elections when congressmen are being chosen in the "off-years." In organization they are like the national committees, being composed of one member from each state and territor).* They likewise have their respective chairmen and secretaries. But their men.bers are chosen differently. Both political parties select their congressional campaign committees by means of legislative caucuses. The Republicans make their selections at a joint caucus of the Republican i«enntora and representatives in Washington ; the Democrats convene > The Democratic committee has nine additional members. POLITICAL PARTIES IN NATIONAL GOVERNMENT 337 tlicir sonators and their representatives in separate caucuses. The committees are made up mainly from among the congrossmon themselves.' 'Hie work of these party committees, each in its own field, X'"''' ?f cdvors a wide range. Details of the nominating convention committeea liavo to be arranged. Then there is the general planning (if tlio election campaign and the selection of subcommittees tit take charge of different branches of the work. There is the preparation of campaign literature and its effective (list rihiit ion. Speakers have to be secured ; meetings pro- vided for and announced ; local committees must be set to work ; causes of friction or dissatisfaction here and there liavc to be elimmated ; campaign funds must be raised and apportioned, canvassing and newspaper propaganda oijianizcd, and arrangements made for getting out the vote on election day. It is not to be assumed, of course, that the national J^*^*^"'"' committee looks after all these matters in a presidential party campaign. Each member of the committee is to some functions. extent in charge of +he arrangements for his own state, cooperating with the state committee. But the detailed work is in large measure delegated to state committees, auxiliary committee or local party organizations. The seneral responsibility, however, cannot be delegated, so that, to borrow a military metaphor, the national committee serves as the general staff of the party forces. Tlie state and local organizations form a hierarchy of divisional, bri- gade, and regimental staffs who direct the operations of tiK-ir respective units. Tlie theor> of party organization i< tliat it is controlled from below, by the men and women in tlH> party ranks. In actual fact, however, the control and direction, as in military organization, comes always fnnn above. It is o. < m the event of a mutiny that the ordinary soldier i * party's ranks gets any measure of control. Political campaigns aiv not waged with uniform aggressive- ness all over the country. In some sections, where the party is strong and imited, the national committee finds ' F..r a further description see Jesse Macy, Pnrly Organitalion and M,iclu,i,ry (N. Y.. 1Q12). eh. vii. 338 THE GiJVERNMENT OF THE UNITED STATES The theory and the practice of party organiza- tion. The need of tense eflfort in a presiden- tial cam- paign. Party finani'c. The quest for ron- iributions. little to do. Ill other sections, whore the party's chances of success siem tv^ be hopeless, it will also put forth little of its energy. The Democratic national committee does not bother itself much about a presidential campaign in Texas. Nor does the Republican national committee give its chief thought to Pennsylvania. The result is that efforts are largely concentrated from both sides upon the doubtful states', the states which may be swung from one party column to the other by dint of good strategy, careful organization, and the free expenditure of party funds. In a national campaign all the machinery of tiie party, and everv wheel in it, must be run at full speed. From the smallest village or township coTiimittee through the district and state organizations the party's entire strength must be put forth in perfect articulation. For it must always be remembered that the outcome in the nation may hinge upon victory or defeat in a single state. New York turned the scale in 1884 ; California did likewise in 1916. A relatively slight lapse from sound political strategy was responsii>le for the defeat of Mr. Blaine in the one case and of Mr. Hughes in the other. On either occasion the shifting of about a thousand votes would have changed the line of presidents. Mishaps of this sort have taught party leaders the value of capable guidance, good discipline, and thorough organization. The activities of a political party in a national campaign require large expenditures. In the campaign of 1916 the Democrats spent nearly two million dollars while the Republicans disbursed almost twice that amount. Nor do those figures tell the wiiole story of actual expenditures, for while each national committee has its own fund, so has everv' state commit too. Likewise the various city, county, district, and town committees have special campaign funds of their own. Being raised and spent independently, these latter are not included in the national totals. To secure these funds every committee, national, state, and local, has its tronsurer and usually its subcommittee on finance. The first step is usually to send out circulars asking for contributions. TTicse circulnrs go to all party leaders, to all candidates and office-holders belonging to the POUTICAL PARTIES IN NATIONAL GOVERNMENT 339 party, to all who have contributed in previous campaigns, and to all others from whom subscriptions may for any reason be expected. Much money comes in by way of response to this preliminary call. Then a second and more urgent appeal is commonly sent to those who have not responded. But no party war chest can be filled by im- personal solicitation. Persona' canvassing must also be undertaken, especially to get large contributions. This work is done by the national chairman and the treasurer, licnco it is desirable to have as treasurer some one who has a largo personal acquaintance with men of means. The national and state committees also have auxiliary commit- tees on finance, the members of which assist the treasurer in this work. iSubscriptions to party funds on the eve of a national Where the election come from many sources. Some of them are made ^""^f by persons who, acting for themselves or for corporations, from. have more than merely altruistic ends to serve. Men who aspire to office or to future political favors of any sort usually find places for their names upon the subscription rolls. Large sums often come from those who anticipate that the success of one or the other party would affect their own business profits. In the election campaign of 1896 millions were given to the Republican fund by manufacturers who sincerely believed that the Democratic programme of free coinage of silver and tariff redxiction threatened the busine.ss interests of the country with ruiu. There was a time when corporations and public officials were literally black-jacked into making contributions. Regular assess- ments were levied upon federal office-holders in proportion to their salaries. Tliese are now things of the past. They are forliiddon by the laws and by the civil service regulations. ("iU|iorations are now pretty well protected against black- mailiuy: politicians, for by law they have been forbidden to coDtributc anything to national campaign funds. .\notlier factor which has proved of great service in The control lessening the evils connected with the raising of campaign fina^i^J'by" fiu-'ls iR tlic practice of requiring the publication of the puWirity. sul'scription lists. An act of Congress, passed in 1910, requires the national party committees to file before the day 340 THE GOVERNMENT OF THE UNITED STATES Ramifica- tioiu* of 1 1 irty in- (luen™. WTiy strong parties are needed in America. Relation of partyism to the Atnerioan syatem of govern- ment. of the election detailed statements of all their receipts and expenses, showing who have contributed to the funds and where the money is being spent. The law no longer looks upon the national party funds as orivate patrimony to be used as its custodians see fit, but as semi-public money to be collected and disbursed under strict governmental supervision. One salutary result of this has been to make the party leaders more dependent upon small contributors and hence more directly accountable to the rank and file of the voters. In recent presidential campaigns every effort has been made by both parties to gather large numbers of small subscriptions, and to an astonishing degree these endeavors have proved successful. The party system, not only during an election campaign but in the intervals between elections, permeates every phase of American political life. The framers of the con- stitution, were they to emerge from their graves, would doubtless \new this situation with amazement, yet it is difficult to see how any other outcome of their work could have been looked for. In a federalism where national and state governments have independent spheres of jurisdiction, with a government based upon the principle of division of powers between executive and legislative organs, the party system furnishes the one great coordinating force. The expression and the execution of the people's will must somehow be conjoined in every system of popular govern- ment. If an articulation is not provided for by the con- stitution or the laws, it vAW develop outside, usually in the form of a party system. And the greater the official barriers in the way of coordination the more elaborate and the more centralized will be the party organization needed to over- come these obstacles.' This is one reason why the American party system has developed so much more machinery than have the party systems of England or France. The correlation between central and local administration, and between the legislative and executive organs in these countries is provided for within the frame of government itself. In the United ' For an elaboration of this point, see F. J. Goodnow. Politici and Adminislralion (N. Y., 1900), especially ch. ii. POLITICAL PARTIES IN NATIONAL GOVERNMENT 341 States no single organ of government, President or Con- liress, has power to shape the entire national policy. Yet public policy ought to be carried into operation by the organs of government acting in unison, and to secure this accord is the aim of each political party. Whatever the theory of the constitution may be, the party crganizations have become in fact the great poUcy-determining factors in American government. By far the larger part of what Congress does is at the behest of party leaders. By far the larger part of what it puts upon the statute-books is by way of redeeming promises made in the platform of the majority party. "Congress as at present constituted," a recent writer complains, "is ninety-nine per cent poUtics," and he proceeds to urge that "the first concern of every economic and moral interest should be to reverse this relation." ^ 8uch comments display a poor mastery of the science of <:overnment. Tlie destruction or even the serious weakening of partyism, whether in Congress or out of it, would in all probability impair, not improve, the practical workings of American national government so long as the present con- stitution of the United States is retained. A federalism, and particularly a federaUsm which possesses a central gov- ernment based upon the principle of division of powers, demands the centripetal influence of partyism. Most of the assaults which have been made upon the party system are the result of a failure to comprehend the true aims and functions of political parties. It is quite true that in their organization and work political parties have developed many excrescences and have often been guilty of public abuses.'^ But to get rid of parties altogether on that account would be a ruthless sort of political surgery. The true task of the reformer, and the one to which too much attention cannot be given, is that of making the party system conform to its professed and proper functions. ' Lynn Haines, Four Congreat (Washington, 1916), p. 40. ' Especially in the matter of nominations. 8eo F. W. Dallinger. Vnrr-nrnions for Ehrtivf Off,Ci it the United f!ir.tfi (N. Y„ 1897), and E. C. Miyor, Nominating Systems (Madison, 1902). Partyism controls Congress. Tbo elimi- nation or weakening of the party sys- tem would not improve legislation. CHAPTER XXIV The need of a Htrong judiciary. What the ronstitu- tion provides. 1= THE JUDICIAL POWER OF THE UNITED STATES A FEDERAL System of government, if it is to be successful, must have a provision for a strong judiciary. Federalism by its very nature implies a division of authority between the central and the state governments with the certainty that disputes concerning the exact range of their respective powers will arise. There must, therefore, be a judiciary strong enough to settle such controversies with fairness to both authori- ties. The makers of the constitution realized that a decen- tralized judicial organization would be "a hydra in govern- ment from which nothing but contradiction and confusion could proceed," hence by deliberate choice they set up a tri- bunal which in the extent of its powers had no counterpart in any other land. The wisdom of this action has been fully demonstrated by the manner in which the guiding hand of a strong judiciary has become the most notable feature of American constitutional evolution. It may fairly be said, in fact, that the development of a Supreme Court into a final arbiter of constitutional disputes is America's most conspicuous contribution to the , cience of gov^nment. Lord Bryce tells of an educated Englishman who heard that the Supreme Court of the United States had authority to annul as unconstitutional the laws of Congress and spent two days reading up and down the constitution in a hunt for that particular provi"jn.^ It is no wonder that his quest proved vain, for the constitution has nothing to say on that point and very little about the powers of the judiciary in any connection. It provides for a Supreme Court, but leaves the organization of that tribunal to Congress. It likewise protects the judges in all the federal courts against ' American Commonwealth, i, 246. 342 THE JUDICIAL POWER OF THE UNITED STATES 343 improper removal and secures them from cither legislative or exec tive interference. But it is far less explicit with rcfiTence to the rights, powers, and organization of the jmliciary than with regard to the composition, authority, and procedure of Congress. This was not, however, be- cause the makers of the constitution failed to recognize the importance of the federal courts. They did recognize it. But they wore of widely different minds as to how such courts ought to be constituted, and they e".ded by merely laying down a few general principles upon which they were agreed, leaving to Congress the task of determining the detr.ils later on. And Congress, by the Judiciary Act of 1789, performed this task at its first session.^ What need is there for iederal courts? Why was not the Whyfede^ nation's entire judicial business left to be handled by the d^wT*" state courts ? That had bee.i done during the period before necessary, theeonstitution was framed. The answer ia that this selfsame experience had shown the weakness of such a plan. The lack of a federal judiciary had been strongly felt during these years, and it was realized that the new national government, with its greater powers, would have to lean more heavily than ever upon the sympathy and support of the tribunals. Questions would arise omong the states themselves, more- over, and there should bo some judicial authority, standing outside them all, to settle these controversies. There would 1)e controversies bearing on the relations of the United States witli foreign powers, on matters covered by treaties, for instance, which could ruvt safely be left for decision by cacli state through its own tribunals. But most important of all, disputes would arise as to the meaning of various clauses in the constitution and concerning the interpretation of laws passed by Congress. By whom ehouid such con- testations be decided? To leave them to the various state Cviurts would be to invite chaos. Each court might render a different decision, so that the constitution and the federal laws would mean one thing here and another thing there. To make the Union real there must be a coordinating judicial organization, in other words one or more tribunal? wholly ' This law remained in force, with amendments, for well over a hundred years. It was not superseded until 1911. 344 THE GOVERNMENT OF THE UNITED STATES Two pom- pletp Hels of courts have arisen. independent of the states. "If there are such things as political axioms," wrote Alexander Hamilton, "the pro- priety of the judicial power of a government being co- extensive with its legislative, must rank among the number. The mere necessity of uniformity in the interpretation of the national laws decides the question. . . . Any other plan would be contrary to reason, to precedent, and to decorum." ' These reasons, however, did not necessitate the creation of a whole hierarchy of federal courts. One Supreme Court would have sufficed to maintain the federal supremacy and to insure the uniform interpretation of the laws, leaving to the state courts the function of hearing all cases in the first instance. Nor does the constitution expressly require that there shall be any federal courts other than the Supreme Court.* Might it not have been possible, then, for Congress to have refrained from establishing subordinate federal courts and to have empowered the state courts to take cognizance of cases falling within the judicial power of the national government ? The framers of the constitution appear to have thought so. As Hamilton distinctly pointed out, the power "to constitute tribunals inferior to the Supreme Court," as enumerated among the powers of Congress, was "intended to enable the national government to constitute or authorize* in each state or district of the United States a tribuiial competent to the determination of matters of national jurisdiction within its limits."* But Congress decided that it would be better for the new national government to have a complete series of its own courts from tlie lowest to the highest, and on the whole this decision lias turned out to hav;^ been wise. The Supremo Court, moreover, decided some years after the Ju(^li(iary Act was passed that Congress has no power to confer jurisdiction on any courts not created by itself.^ Before tlie structure and powers of the various federal » The Fed -nl-isi. Xo. 80. ' "Tho jtiiliciat power of the Vnitcd Statea -shall be vested in one Siiprenip (\..,ii and in surh inferior rouris a- Cungies.-, iim> from time to fimf onlain j'xl cstahli.sh." Artich iii. Section 1. ' Tl ■ itali' aro Hamilton's, not mine. * Ti. h'cflcriilisi, Xo. 81. ' llnuMoh \ s. Moore, 5 Wheaton, 1. THE JUDICIAL POWER OF THE LNITED STATES 345 {•(Hirts are explained, it may be well to notice the division of jurisdiction between the federal courts, taken as u whole, and the state courts.' The federal courts have jurisdiction over certain classes of controversies named in the con- stitution ; the state courts have jurisdiction over all others. Tlicse matters of federal cognizance cannot be more con- lisely or more clearly summarized than by quotinj; the exact words of the constitution itself: "The judicial power shall extend to all cases in law and {'(luity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassador-*, other pulilic ministers, and consuls; to all cases of admiralty and maritime jurisdiction ; to controversies to which the L'liitod States shall be a party; to controversies between two or more States, between a State and citizens of another State; between citizens of the same State claiming lands uiuler grants of different States, and between a State, or the litizeiis thereof and foreign States, citizens, or subjects." * As a model of concise legal { 'hraseology this paragraph of the constitution is probably unsurpassed in the whole raiijie of jurisprudence. If any one has doubts on this score let him try to recast its phrases in his own words. But the very compactness of the wordint-- makes some explanation necessary in order that the full force and ctTect of these provisions may be properly understood. First and most extensive of the controversies enumerated as within the judicial power of the federal ;u,overnment are those arising under the constitution and under the laws or treaties of the United States. Where a controversy involves the interpretation of any clause in the national constitution or ill a federal law or in a treaty to which the United States is a party, such issue is for the federal courts to settle. The xphcro of the federal rourts. 1. Cases arising under the federal constitu- tion, laws, and treaties. ' l{. R. Curtis, The Jurisdiction, Practice and Peculiar Jurisprudence "/ Ihe Courts of the United States (2d ed., Boston, 1896) ; Joseph Story, ('(immeyitnries on tne Constitution of the United States (5th ed., 2 vols., Boston, 190.J), 5 J 1573-1795; W. W. Willoujfhby, Constitutional Law of ihc Criiir.i stairs (2 vols., N. Y., 1910), ii, 970-99S; and II. M. Hughes, \lnu,lh»„k of Jurisdiction arul Procedure in United States Courts (2d ed., St. I'aul, 19i:)). • Article iii. Section 2. 346 THE GOVERNMKXT OF IHE UXITEI) STATtii •/--* Anyone whoclainisa rifihf timli r 'he cons*!*"' inn, laws, or trt'alU's t)t' the Unitfil Stati ■• may clai;;. ..• •In- federal courts.' To take an i-xamph- ; if a person or corporation is beinm the constitiii ion, laws, or treaties of the United States, this gives the federal courts juriMliction. Again the federal courts have jurisdiction over all cases alTecluig foreign diplomats. A diplomatic agent of a for- eign state is hy international law lumunc from prosecution in the courts of the country to whi( ii he is accredited. Tlie provision of the American constitution which extends federal jurisdiction to diplomats merely operates, therefore, to keep the state courts from a possible infringement of such rights at internaticmal law. If an ambassador or other public minister of a foreign state commits an offence his recall may be requested, or he may even be expelled ; l)Ut so long as he remains an accredited diplomat his freedom from legal process is guaranteed. Tliis nile as to diplomatic immunity has been recognized from ancient times. By "admiralty and maritime" jurisdiction is meant raity cases, authority over cases which relate to American vessels travelling on the high seas or in the navigable waters of the ' "Tho jurisdiction of tho pourts of the I'nitcd States is proptTly com- monstiniti' with cvcrv ritrlit ami duty crt'iitod, declared, or noct'ssarily implied by and under the constitution and laws of the United States" (Irnriv vs. Murshdll. 20 Howard. '>r>S). But tho ritrlit must l>o a substantial and not merely nn incidental one in order to warrant its assertion in the federal courts. "It must appear on the record . . . that the suit is one which d(M s renlly and suhst.antiaily involve a dispute or oontroversy ai to a right which depends on the construction of the constitution or sotne law or treaty of the United States, before jurisdiction can be main- tained." Cablcmitn vs. Peoria, etc. R. R. Co., 179 U. S. 333. 2. Cases afTei'tiiiK anibas- sadors, (ither pul)lic ministers, and coiLsiilr^. 3. Admi- THE JUDICIAL POWER OF THE UNITED 8TATEH MJ Initod States. Such, for example, are cont roversU's rrgard- inj; seamen's wages*, damapes due to eoUir.um!<, and offences cuininitted on sliipluiard. In Knirland for luany penenitions ,,ri..r ti) 17.S7 admiralty courts ua«i xercised juri-^diction over (•:ises connected witVi »ea-lM>rne cummerce. Admiralty law is M distinct branch of jurispruth-n. i', differinK both in sul»- stance and in pn>c(>(hire from tuf common law and eciuity of the regular courts. Both for that . ; ^on and l>ecau8e foniirn commerce was plac d within th»- refculatinfj power of the federal povernment . it w..- deemed wise to vest n.linirahy jurisdiction exclusively in the federal courts. Likewise the federal ctmrts have jurisdiction whenever the Tnited States is one of the part us to a suit, or whenever tlic contestation is I.etvvc-n two states of the Union, (jr l.rtween a state and a cit;i;en of an<»t her state. On this last point the wording .-^ the const itutum at the time of its adoption pave pround for difference of opinion. Did the words "between a state and citizens of another state" intend th;it suits mipht be broupht in the federal courta wliriiever an outsider wished to proceed apainst a state? Am is-sue on this n ttcr was soon raised, an^ n a note- wor' V decision the preme Court ruled thy - might be maintained.' 'ITiis rulinp was a aurp -.' it had been openly asserted, when the const'i' ifoi-e the ^tates ior acceptance, that no stn- I uits ! "se ' be 4. CaaM in wliiih the United States or a state of the Union is a party. The suability of a state. aiueaable to the suit of an individual without its own con- scut. But the Supreme Court in makinp its adjudication merely followed the literal wordinp of the constitution which plainly allowed such construction if it did not act vially retpiire it. The decision was regarded by the states as an in (V.iir- nunt of their legal sovereipnty, since the principle t\ l a sovcreipn state is not liable to suit without its own consent liad lieen a maxim of public law from time immemorial. Hlackst«me had spoken of it as "a necessary and fundamental ]irin(iple." Popular res.ntnient apainst this new subordi- nation of the states to outside jurisdiction was aroused, and five years later (1798) the F.levcnth Amendment was vxd'kd to the constitution, m-ikuip ilie situation clear for the future. > Chisholm va. Georgia, -' Dalliis, HO. 348 THE GOVERNMENT OF THE UNITED STATES The Eleventh Amend- ment. May state officials be sued in the federal courts T (^^i I i 5. Contro- versies between eitizens of differ- ent states. By the terms of this amendment the federal courts are expressly forbidden to take cognizance of any suit brought against a state " by a citizen of another state, or by citizens or subjects of any foreign state." Any one who desires to sue a state must bring his suit in the state's own courts and these courts will not entertain such suits unless they have been authorized to do so by the state laws, in other words unless the state has consented. But the states do, as a general rule, permit themselves to be sued in their own courts under prescribed conditions. A state may be sued in the federal courts only by the United States or by another state of the Union. WHiile the doctrine that no state may be sued in the federal courts by either its own citizens, by citizens of an- other state, or by foreign citizens is now well established, the question whether the officials of a state are equally immune is by no means so unclouded. In general the Supreme Court in such cases has endeavored to determine whether the suit is really against the state through one of its officers, or whether it is against a state officer as an in- dividual. In the former case it will not assume jurisdiction ; in the latter it has maintained its right to entertain suits against those who "while claiming to act as officers of the state, violate and invade the personal and property rights of the plaintiffs under color of authority." ^ Finally, the jurisdiction of the federal courts extends to all controversies between foreign and American citizens, and between citizens of different states. It is cases of this sort that bring the largest grist to the federal mills. A corporation or company is presumed for purposes of juris- diction to be a citizen of the state in which it was chartered or incorporated, although it may be doing the larger part of its business in other states.'' When a corporation brings a suit, or when a suit is brought against it, the chances are, therefore, that the other party to the suit will not be of its own citizenship, m which case the issue will come to the federal courts. The same is true of foreign companies doing business in the United States. They sue and are sued in the federal tribunals. National banks arc for purposes of > Hagood vs. Southern, 1 17 U. S. 52. » See above, p. 84. THE JUDICIAL POWER OF THE UNITED STATES 349 jurisdiction designated by law as citizens of the states in which they are located. All other corporations chartered by Congress, unless their charters provide to the contrary, may invoke the jurisdiction of the federal courts. 'hie authority of the federal courts covers a wide area and the amount of judicial business which comes before tliom is very large. Summarizing it all, one can say that many suits arise in the federal courtb because of their subject-matter, that is because they concern matters dealt witli by the constitution, laws, or treaties of the United States; that others arise there because of the sovereign character of the parties concerned, as for example suits to wliich the United States is a party or in which two states arc contestants ; while yet others go to tlie federal courts because the suitors are not of the same citizenship. So much for the jurisdiction of the federal courts. What is the law which they administer? Speaking broadly, it is made up of two branches, the common law and statutes. Tlio common law is the oldest branch of American law. Its development began in mediaeval England when there wore few written rules and when the royal courts decided cas(>s, so far as they could, in accordance with the unwritten usair own rules of procedure."' The constitution, however, contains many limitations ' "ThtTo is no Ixjdy of fcdtTdl common law separate and distinct from the common law t^xistini.': in tlie several states, in the sense that there is a body of stalite law ctiacted hy Con(?ress .separate and distinct from the body of .statut*' Ihw onact«d hy the several states." Western r>ii()n Til. Co. vs. Cill PuhliMng Co., 181 U. S., 92. ' The Srreiilr, 9 ('ranch, :{S8. ' .V revision of equity procedure was made a few years ago; a revision of the procedure in cases at law is also needed. SrST' THE JUDICIAL POWER OF THE UNITED STATES 353 upon this power of Congress to regulate the procedure in the fodoral courts, limitations designed to insure fair trials and to preclud • iujustice to any of the parties. These limita- tions, which are to a large extent set forth in the Bill of Ri(;hts, relate to such matters as grand jury hearings, jury tria's, promptness and publicity in judicial proceedings, (loiii)lp jeopardy, self-incrimination, the issue of warrants, and the nature of punishments.* They apply to the federal courts only. No one may he hold to trial in a federal court for any '"capital or otherwise infamous criuio unless on a present- mint or indictment of a grand jury. "^ A grand jury is a l)ody of men, not exceeding twenty-three in number, selected 1)V lot or hy some other established procedure, and sworn to disch.arge impartially the duty of investigating all alleged offences which may be brought to their attention by the prosccuiing officers of the government. It conducts an in- i[iK'st or investigation, not a trial. If it finds that there is a prima facie case against any person, it returns an indict- ment against him and he is held for trial. If, on the other liand, it finds no reasonable ground for holding a person to trial, it returns a "no bill" and he is dis- charjred.^ In all criminal cases (except impeachments) and in all civil suits at common law, where the amount involved is Piinre than twenty dollars, the constitution requires that the trial slinll he by jur}'.'' This jurj^, in criminal cases, must be splect(>(l from the state and district in which the crime is :ille;;((i \o liavo been committed. If the offence is committed ' Aincndinorits I-X. Sw T. M. Coolcy. Conslitiiti-onal LimUalions Cith wl., Boston, ltK)3), pas.iim, and F. Lieher, Civil Liberty and Self- Cin-ninfut (3d t>(l., Philadelphia. 1911). - Auicndmoiit vi. An "otherwise infamous erlme" has been construed id 1... mil- to which a penalty of imprisonment for mor.> than one year is .•lUai'icd. The constitution ma'cs an exeeption to the grand jurj- require- iiiint in the case of the military and naval forees. The dibtinction between prtM'iiiiiicnt and indictment is now of no praetioal importancv?. ' ''■ 1. Kdwards. Thr llriind .lurij PliilaJelphia, ItKKJ). ' .\rticlo iii, .Section 2 ; also .Xnnndriienf viii. It is not ne<;essary that :ill siK'li trials in tin- lowest court shall U by jury ; it i* sufficient if the ac- <'\\mA has the riRht of appeal from suoh trihunni to a higher court which |!r(i\ i.li-s a jury. The constitutional riprht !o a jury trial is one which may Hi' »;iiv('d in any case by the con.sent of both parties. 2a " But subject to various limita- tionu. Nature of these limita- tions: (a) the need of grand jurj- action. What the grand Jury is and does. (6) the re- quirement of jury trial. iBMa 354 THE GOV:^RNMENT OF THE UNITED STATES What a tri^l jury is and docs. Funftinns of the jury I 'it- f outside the limits of any state, the trial may be held and the jury selected wherever Congress shall hy law direct. No fact, moreover, when tried and determined by a jury, may be reexamined in any court otherwise than according to tlio rules of common law, that is to say a higher court sitting without a jury cannot set aside oouciusions of fact reached by a jury in a lower court. In jiuch cases it can only hear appeals on points of Uiw. A trial jur}', or petit jury as it is sometimes called, ia a body of twelve qualified persons, selected either by lot or in accordance with other legally established methods, and sworn to try impartially a particular case, rendering a true verdict thereon in accordance with the evidence. It is usually required that persons called for jury service shall be qualified voters but there is no necessary connection between the right to vote and the obligation of jury service. Certain classes of persons are exempted by law from the obhgation, inch ling physicians, attorneys, public oflBcers, teachers, and so on. Persons selected for ser/ice at tach term of the court are called veniremen or talesmen, and from among them the twelve jurors arc selected after due inquiry has been made concerning their impartiality and conipetence. Each party to the trial, plaintiff and defendant, has the right to challenge any venireman for stated cause. Tlie right to challenge peremptorily, that is, without assigning any cause, is also granted under certain Umitations. The selection jf the jury is complete when twelve persons, against whom no valid objection or peremptorj- jchallenge is interposed, have been duly sworn. The jury hears such evidence as the presiding judge per- mits to be presented. The admissibihty of evidence is a matter of law for the judge, and not for the jury, to decide. The value of evidence, when once admitted, however, is a matter of fact for the juiy to determine. Most suits at law resolve themselves into questions concerning the relative credibility of evidence submitted by the opposin^; sides. When the evidence hai^ been presented and the arguments of counsel heard, the judge instructs or charges the jury on their legal duties and on matters of law only, with no com- ments upon *'-e weight of the evidence, Jury verdicts must THE JUDICIAL POWER OF THE UNITED STATES 355 be unanimous. If a jury fails to reach unanimity a dis- agreement is reported and no verdict or judgment can be rendered except after another trial. A presiding judge may set aside a unanimous verdict if he finds that the jury has disregarded his rulings on points of law, or if he is satisfied tliat the verdict is clearly unsupported by the evidence, or if there has been any serious irregularity in the methods by which the jurors have reached their verdict. In such cases the presiding judge cannot himself render a different verdict, but merely orders a new trial.' Certain essentials of all trials in the federal courts are made mandatory by the constitution. It is required that trials shall be "speedy and public," that a person charged with crime shall "be informed of the nature and cause of the accusation"; that he shall "be confronted with the wit- nesses against him" and shall "have compulsory process for obtaining witnesses in liis favor," but no person in any criminal case may be compelled to be a witness against himself. Finally, an accused person is entitled to have the assistance of counsel in his defence.^ "Excessive bail shall not be required, nor cruel and unusual punishments in- flicted." ' No warrants may be issued, except upon prob- able cause supported by oath and definitely describing the place to ])e searched or the persons to be arrested.^ All these requirements are imposed by the supreme law of the hind and Congress has no power to set any of them aside. Lci it he repeated, however, that they apply to the federal administration of justice only and have no relation to the procedure of the state courts. But most of the state con- sti"' I ,ns impose similar limitations upon thoir own courts. The constitutional protection of all accused persons a^niiist second jeopardy requires a word of explanation. ".\i»r shall an}' person," the provision recites, "be subject for tlie same w.Teriee to bo twice put in jeopardy of life or liiub."^ The application of this rule is that where a person accused of crime has been tried and acquitted, he may not Ko reopen- iiiK of facts except by another jury. (c) other securities for fair trials. (d) the rule against second jeopardy. ' Vor a discussion of jury prooeduro, see S. K. Baldwin, American J'ldirinry (X. Y.. 1914), Ch. xii. Amendment vi. ' Amnndmont viii. ' Amendment iv. ' Amendment v. [I Conclusion. 356 THE GOVERNMENT OF THE UNITED STATES be again tried for the same offence. It matters not if new evidence has been discovered; the verdict of acquittal is conclusive and cannot be reopened. When an accused person is acquitted, the government has no right of appeal to any higher court against such verdict. But if an accused is convicted an appeal may be taken in most cases on his behalf. Instances arise occasionally in which the same act may be made the basis of two distinct accusations, as for example the wilful passing of counterfeit money, which is both a statutory offence under the laws of the United States and a fraud under the laws of a state. In such cases the acquittal on one charge is not a bar to trial on the other. In general, however, an acquittal in connection with any act relieves an accused from all further criminal liability in connection with that act. ITie insertion of these various limitations in the Bill of Rights shows the jealousy with which Americans in the closing years of the eighteentli century regarded the fundamental rights of the citizen. These were the fruit of struggle and sacrifice during many centuries. It was not thought safe to take any chance of their being swept away by some arrogant Congress in days to come. CHAPTER XXV THE SUPREME COURT AND THE SUBORDINATE COURTS The roRular tribunals of the United States consist of a Supromo Court, nine circuit courts of appeals (one for each „f nine circuits into which the country is divided), and eighty district courts. In addition there are two special courts, i,:,mcly, the Court of Claims and the Court of Customs Appeals. The courts of the District of Columbia, the courts i)f Hawaii, of Alaska, and of the insular possessions are also f-.lcral courts inasmuch as these territories are completely under the control of the national government. Thv Supreme Court of the United States is composed of a cliief justice and eight associate justices, each appointed by the Prc>sident with the consent of the Senate to hold office durins good behavior.* No justice may be removed except by impoa'-h mcnt . The Sn premr Court meets at Washington aiid its sespioDs usually last ^rom October until May. It has its >y removal is much more common. WTienever a suit i.^ ijroiight in a state court and one of the parties believes that because of its subject-matter, or the diverse citizensliip of the suitors, or for any other legal reason it ought to be tried in a federal court he is privileged to ask its removal thereto. WTien so removed it iniy go directly to tlie Supreme Court, but morQ often it will be transferred to one of the lower federal courts. M> r,t cases come before the Supreme Court by appeal either from a state court or from a subordinate federal tribunal. The usual process of appeal is by writ of error. A writ of error is a formal order by which a superior tribunal instructs a subordinate court to transmit to it the record of any case which has been decided in the court below. The suitor who secures such a writ is then called "the plaintiff in error" and his opponent becomes "the defendant ir f for" no matter what their respective positions may have been originally. » If. :(ime casos the chief justice may himself writ« the opinion*. THK SUPREMK COURT AND SUBORDINATE COURTS 359 n>e popular notion that any one not satisfied with the (li. .-ion of the highest tribunal of liis own state mny carry hisfasc I" forethe Supreme Court <> the nation is far from liciiiK in accord with the facts. No case may be appealed fniiii state to federal jurisdiction except where the inter- pretation of the constitution, statutes, or treaties of the I'liitod Stales becomes involved, and more particularly wliire pome right, privilege, or immunity guaranteed by tho federal constitution is in jeopardy. Most controversies wliich begin in the state courts end there. If, however, a case is carried through the state courts and an appeal is per- niitted, this appeal goes directly to the Supreme Court of the United States. No subordinate federal court has any authority to hear and determine an appeal from the state courts. ' > amount of business which comes before the Supreme Court is very large. It is not uncommon to find a thousand rasos upon the docket when its session begins in the autumn. To keep pace with this work the court's adjudications must maintain an average of about thirty cases a week, which moans a great deal of drudgery in the studying of briefs and tlic writing of decisions. In printed form these decisions make vip three large volumes each year.* llio Supreme Court, began its work in 1790 with John Jay ;h its first chief justice. He had with him five associate justices, more than were really needed to handle the small amount of business which came before the court. At its firM mooting no cases appeared ; the court appointed a clerk and then adjourned for lack of anything else to do. During th( first ten years of its history the court decided only six castas involving questions of constitutional law, and when John Marshall became chief justice in 1801 there were all tnsetlior only ten cases awaiting him on the docket. Thus f;'r the f'ourt had not exercised any great influence on the nation's politit al development. Its most important de- ' I'lip ofRpial reports of thi Supreme Ccurt were published in each year prior to 1H7.5 under the name of the reporter; since that date they have apiii-arcd as suepessivn volumes of IJ nited Slates Reports. The names of tlu-(. ooui rep. i'ers are as follows: Dallas (1790-1800); Cranch (1801- IM.o; Wheaton (1816-1827): Peters (1828-1843); Howard (1843- 18(50); Black (1861-1862); WaUace (1863-1874). NotsU ruaea may be appealed. Tho pressure of Supreme Court buaineas. Landmarks in the Supreme Court's history. Its chief justices. MICROCOPY RESOLUTION TEST CHART (ANSI and ISO TEST CHART No 2) 1.0 !f« I.I 2.8 3.2 ■ 40 m 2.2 1 2.0 1.8 ;.6 _^ APPLIED IfvHGE Inc ^— ■. 1653 Eosi Main Street S%-- Roches!!?'. New York 14609 uSA '■^g (M6) 48i - 0300 - Phone ^^ (^6) 288 - 5989 ~ Tax fdhll Marshall. His con- stitutional views and influence. 360 THE GOVERNMENT OF THE UNITED STATES cision upon a constitutional question had been set asids by the action of the states in adopting the Eleveiith Amend- ment.^ The prestige of the court was small, and a position upon its bench during these early years was regarded as less alluring than the post of a governor or senator. Chief Justice Jay, for example, resigned from the Supreme Court in 1795 to serve as governor of New York. During the next few years the position of chief justice was bandied about somewhat ; but in 1801 John Marshall was given the reins and he held them firmly for more than three decades.* Born in Virginia, he saw service as a captain in the Revolutionary army when only twenty-one years of age. While still a young man he studied law and entered politics, like so many other young Southerners of his day. Although not one of those who framed the federal constitution, Mar- shall was a member of the Virginia convention which ratified it in 1788, and was on intimate terms with the founders of the Virginia dynasty. He tloclined the p. st of Attorney- General in Washington's cabinet, but in 1798 was elected to Congress and in 1800 became Secretary of State under President Adams. He held this post when he became chief justice. Marshall was a Federalist in the original and genuine sense, a believer in the need of strengthening the Union, and he lost no opportunity of making his influence effective in that direction. When he became chief justice the powers of the national government under the constitu- tion were not sharply defined ; scarcely a clause of the constitution had been sul)jected to judicial interpretation. To the work of making it "efficient," however, Marshall and his associates promptly set their hands. A succes- sion of great decisions during the next thirty years not only cleared the constitutional horizon but strengthened the arm of the national government and incidentally raised the court to a position of great authority. Marshall was not only a great jurist but a man of firm • Chishnlm vs. Georgia ("1793). Rcp above, p. .3-17. ' On .Jay's resignation John Rutlcdge was lamod chief justice and as- sumed the office, but was not confirmed. Then the post was offered to William Cushinsr, who was already an associate justice, but he declined it. Oliver Ellsworth was then (1790) appointed and contirmed. He resigned in 1799. •i'MytsiiSkr^ THE SUPREME COURT AND SUBORDINATE COURTS 361 and clear convictions. He had the advantage of writ- ing upon a clean slate. There was as yet no long train of decisions to hamper the court's freedom, and of course no doctrine of stare decisis when there were no decisions to follow. Yet the period through which he gu''ded the Su- pi(>mo Tourt was a critical one in many ways. The chief pr()l)lenis which came up for adjudication were drawn reeking from the shambles of partisan warfare, and the court on more than one occasion had to take grounds which aroused sitrong resentment. State officials everywhere looked with susjicion upon what seemed to be a judicial encroachment uiiuii state powers. During his thirty-four years of service Marshall wrote the decisions of the court upon no fewer .hail thirty-^ix important questions of constitutional law.^ In these he not only laid the foundations but raised the whole framework of federal jurisprudence. Two principles of constitutional construction Marshall enunciated and maintained. In the first place he insisted that every power claimed by Congress must be articulated to some provision of the constitution, the onus of finding an express or implied grart of power being imposed upon the federal authorities. But, in the second place (and here is where the doctrine of broad construction obtained full play), Marshall held that once any grant of power was found it should be interpreted liberally, giving to Congress all reason- able discretion as to how the authority should be exercised. Both these principles are in full force and effect to-day. "No other man," says Lord Bryce, "did half so much eitlier to develop the constitution by expounding it, or to secure for the judiciary its rightful place in the government as tlie living voice of the constitution. No one vindicated more strenuously the duty of the court to establish the authority of the fundamental law of the land, no one ab- stained more scrupulously from trespassing on the field of executive administration or political controversy. The admiration and respect which he and his colleagues won for ' These include such landmarks as Marhury vs. Madison, McCulloch vs. Maryland, Gibbons vs. Ogden, and the Dartmouth College Case. See J. P. ChIou Jr., Th« ConalUalional Decisions of John Marshall (2 vols., N. Y., 1905). The man and hia work. principles of consti- tutional construc- tion. Lord Bryce's estimate. mm ■ I 362 THE GOVERNMENT OF THE UNITED STATES the court remain its bulwark: the traditions which were formed under him and them have continued in general to guide the action and elevate the sentiments of their succes- The court's power to declare laws un- constitu- tional. 1. This power is now beyond dispute. 2. Its exercise has proved beneficial. sors." ' It was under Marshall's leadership that the court first undertook to assert its place as the guardian of the con- stitution, with authority to invalidate any law, whether state or federal, that contravened the provisions of this instrument. By so doing the court assumed a power which was not expressly committed to it by the constitution, a power which even at the present day some students of political science believe to have been a usurpation. Whether the court's action was originally the exercise of a right or a usurpation is not an appropriate question to argue here;^ but in the light of present-day constitutional juris- prudence three propositions are beyond the pale of contro- versy. In the first place the Supreme Court has long since made good its claim. No lawyer would to-day deny its absolute and entire right to nullify any law that conflicts with the fed- eral constitution no matter by whomsoever enacted. That is now as well settled as any point of law can be. Congress, tlic state legislatures, and the country have tacitly accepted this doctrine for more than one hundred years. Second, the action of the court in tiius asserting the doctrine of judicial supremacy has proved beneficial in its results. Had the court assumed a different attitude the American constitutional system would have become a hydra- headed monstrosity ; it would never have gained that strength and regularity of operation which it has to-day. For the preservation of individual liberty there must be an ' The Amcricau Commonirntllh, i, 208. The best short biography of Marshall is Jamos Bradley Thayer's John Marshall (Riverside Biographi- cal Series, Boston. 1901). • For a full discussion of it see C. A. Beard. The Supreme Court and the Con^lilitlion (X. Y., 1912); C. O. TTainos, The American Doctrine of Judicial Suprrmnr;/ (X. Y., 1914) ; E. S. Corwin, The Doctrine of Judicial Remcw (Princeton. 1914) ; A. C. McLaughlin, The Courts, the Constitution and Parties (Chioago, 1912) ; Brinlon Coxe, Judicial Power and Unconstitutional Legislation (Philadelphia, l.S9;<), and J. B. Thayer, The Origin and Scope of the American Doctrine of ContHtutional Lav (Bostou, 1893). <;^' THE SUPREME COURT AND SUBORDINATE COURTS 363 arbiter between the governing powers and the governed. The integral maintenance of a proper balance of authority between the nation and the states also demands it ; and so does the preservation of the adjustment between the execu- U\i' and legislative organs of government. "The constitu- tional powers of the courts constitute the ultimate safeguard alike of individual privilege and of governmental prerogative. It is in this sense that our judiciary is the balance-wheel of our whole system." '■ Third, the power now exercised by the Supreme Court of 3. it u the United States is one which has rarely been exercised by ^jql^"'* the ither high tribunals of the world. Until recent years power, no court in any other land has openly ventured to nullify hiws enacted by the highest legislative authorities. During the past decade the Supreme Court of Argentina has refused to uphold statutes believed to be in contravention of that Republic's fundamental law. But no cour*^ in any country other than the United States has upheld this doctrine of judicial supremacy for one hundred years. While the power exercised by the Supreme Court of the United States is unique in the history of government, it has fricat merits. No part of the American scheme of government, indeed, has worked out to better purpose. It means that Americans refer to an impartial tribunal, made up of emi- nent jurists, mc n habituated to reflection and straight-think- 'nsi, tiie great questions of governmental jurisdiction which ar(> so liable to excite the political pas.sions of the people. If tlie rulings of this body are not always agreeable to the pop- ular sentiments of the day it is because neither judicial nor puldic opinion is infallible. The doctrine set forth by Jeffer- son in the Virginia and Kentucky resolutions that "as in all other cases of compact among parties having no common judnc. oach party (presumably each state) has an equal right to judiio for itself" would have utterly disintegrated the na- tion. That absurd theory has long since been ridiculed out of existence. If these constitutional questions, moreover, had been l(^ft for settlement to the Senate, as some proposed in the constitutional convention, they would never have had a • UocHirow Wilson, ConstiluliuHal GovernmtiU in ihn Lniltd SlaUa (>'. Y., 1911), p. 142. 364 THE GOVERNMENT OF THE UNITED STATES What it needs for continued success. Ill 15 ' Its abstention from political or'nions. chance of being determined on their merits. The political majority would always have settled them to its own advan- tage. The Supreme Court, when all is said, represents as near an approach to a strictly non-partisan body as the makers of any government have ever been able to devise. But the smooth working of this judicial supremacy predi- cates among the people what Professor Dicey calls "the spirit of legalism." A better phrase would be "popular respect for judicial decisions." Such an attitude exists in the United States, and its importance .-an hardly be over- estimated. The country accepts the rulings of the Supreme Court, whatever they may be, without outbursts of resent- ment or accusations of unfairness. This is not because Americans have an exaggerated respect for the wisdom or impartiahty of their highest tribunal, but because they have a traditional admiration for the constitution itself and for the scheme of free government which that document estab- lishes. "Not having a king to venerate," a facetious European once remarked, "the American people lavish their reverence upon a constitution." But if that be true, it is small wonder. The reign of the constitution has been long in the land. No monarch was ever so full of years or saw so much accomplished in his day. It commands the veneration of the people because they have found it to be no mere welter of words set down on paper but a vital factor in the life and development of the nation. The Supreme Court has had no sni. .11 part in making it so. It was the judges who drew water l"qm the rock by commanding arid phraseology to yield forth national strength and power. No people have an intuitive readiness to accept judicial deci- sions which are not to their liking. They must be schooled to it by habit. It 's a genuine compliment to the Ajjierican judiciary to say that a spirit of legalism prevails amon^- the people. Another reason why the Suprer^o Court has gained in such large measure the confidence of th ^ people is to be found in its consistent refusal to decide political questions. On various matters which have come before it the court has ruled that questions of public policy must be left within the discretion of Congress and the decisions of this body accepted as final. HE SUPREME COURT AND SUBORDINATE COURTS o65 In one notable instance the Supreme Court held that it was for Congress and the PresiHent, and not for the judif-iary, to decide which of two rival governments within the SL.ne state ought to have recognition.^ In another case it decUned to render any opinion as to the length of time during which the military occupation of Cuba might continue, holding that matter to be entirely "the function of the political branch of the government." ' The foundations of the Supreme Court's prestige and powers were firmly laid in Marshall's time. Marshall died in 1835. His successor, Roger B. Taney of Maryland, was MarshaU's a man of different stripe, a disciple of Andrew Jackson, and ^^^^l^/ a stanch exponent of the doctrine of states' rights. Under Taney. Taney's guidance there was a reaction against the centraUzing of powers in the federal government, although the work of the court under Marshall was now too firmly axed to be seriously (lislod "The provisions of once remarked, "are their essence in their form ; theiy are organic living institu- tions, transplanted from English soil. This significance is viti.!, not formal ; it is to be gathered not merely by taking? the words and a dictionary, but by considering their origin and the line of their growth."^ Not a few great jurists have adorned the supreme bench of the United States during its thirteen decades of history. Marshall was the primate of them all, and his generation knew not his equal anywhere. In the court's earlier years it numbered among its chief and associate justices several of the "Fathers" themselves, John Rutledgc, James Wilson, > Texas vs. While, 7 Wallace. 700 (1868). » Gompers vs. United States, 233 U. 8. 604. THE SUPREME COURT AND SUBORDINATE COURTS 367 OliviT Ellsworth, John Blair, and William Patorson. Later, (luriiif? the first half of the niuetetmth century, Joseph Story Joseph 80Acd his long term of thirty-four years (1811-1845). ^'"'■*'- Story may rightly be regarded as the classic expounder of the constitution; and his commentaries have not ceased to hold the admiration of legal scholars at the present day.' Next to Marshall, moreover, iSiory had the larg- est influence in shaping that notable series of Su{)reme Court decisions which reared the structure of American constitutional law. When Marshall and Story were to fiother they formed a great team. Two others whose names stand out conspicuously on the roll of justices are Stephen J. Field and Horace Gray. The former served a tim term of thirty-four years, from 1863 to 1897 ; the latter was ^"^y in olfice from 1881 to 1902. Both were men of rare legal erudition and uncommon personality. It is a great art to write decisions which combine law, logic, and literature. The Supreme Court in session is an impressive body, im- Kach day at noon the justices, wearing their gowns of black Character ol silk, walk in formal procestion from their consultation rooms the court. to th(>ir chamber, which is the old hall used by the Senate in years when that body was small. The atmosphere of this (haiiiber is one of great dignity. Only a few spectators are ever present and silence is rigitUy insisted upon. There is no jury in appellate cases, of course, and no examiiung of witnesses. The court merely listens to the arguments of eounsel, the rule being that no oral argument may be longer than one hour and a half except with the court's special pern\ission. In addition each justice reads the printed lirlel's submitted by bot.. sides and also the official record of the case in the courts below. No decision or opinion on any constitutional question is No ever given by the Supreme Court until some case actually "■' involving the determination of the point comes before it. e\er given, Even then the court will not rule on the constitutional aspect of the case if the decision can be made upon any other ground. Washington, in 1793, submitted to the Supreme Court cer- tain general questions concerning rights of the federal gov- eniuient, but the justices declined to express any opinions » See above, p. 44, note. dvisory" nions 368 THK CIOVKRNMIONT OF THE UNITED STATES M.i 1 - The doctrine of stare . jciais. It is not always foUowed. savo in actual controversies duly brought before them. In some of the states, however, provision is made for such ad- visory judicial opinions to be rendered by the highest state tribunal to the governor or legislature.' The federal rule, on the whole, has much to be said in its favor because the frequent submission of hypothetical questions to the court would place an additional burden upon an already overloaded tribunal. Advisory judicial opinions, moreover, are ren- dered without hearing the arguments on either side, and they have no binding force even upon the judges who render them. It would be an advantage, of course, if Congress could always know in advance whether a proposed measure would be constitutional but this gain would hardly offset the disadvantages of the advisory system. Reasonably good advice upon points of constitutional law, moreover, can alwaj'b be had by Congress by asking the opinion of the At t orney-( lencral . When the Supreme Court has once established a principle 01 law in any case actually before it, such ruling becomes a precedent and will generally be adhered to in future cases of the same nature. This is known as the doctrine of stare decisis. The court has not often altered any constitutional stand taken by it, although there have been a few notable cases of such reversal. For instance it decided in 1880 that an income tax might be levied by Congress without appor- tionment among the states, but fourteen years later it ruled that such taxes must be apportioned.' On one occasion the court decided that Congress might not by law make paper money a legal tender in payment of debts incurred before the passage of such legislation.' A year later it reversed this decision and held that Congress did have power to take such action.* More commonly, however, the court finds it possible to reconstruct or modify a rior decision by some means other than a frank reversal. No two cases are exactly alike, and a later case can usually be distinguished in some particular from an earher, thus affording an opportunity for the modification of a rule. » See below, p. 413. » Hepburn vs. Griswold. 8 Wallace. 003. * Knox vs. Lee, 12 Wallace, 457. » See above, p. 225. IHi: SUPREME COURT AND SUBORDINATE COURTS 369 The liberty to reverse its decisions on questions of con- -litutioruil law, whenever the urgent occasion to do so rocuiros, is one of the things which enable the Supreme Court to endow the constitution with dynamic qualitj . In cases strictly affecting private intercourse it Ik essential tliat the rules of law be not subject to frequent and capricious change. That is why the doctrine of stare decisis was evolved by lawyers and courts. But where issues of public policy are concerned the rigid application of that doctrine would tend to slow up the machinery of political and social prop;rcss. In the administration of the law as in other fields of human activity the reverence for precedents, which too often are merely the embalmed prejudices of a past generation, may easily be carried to an absurdity. Changes in the organization and procedure of the Supreme Court have been suggested from time to time. One sug- gestion is that the number of judges be increased and the court divided into sections after the European fashion. Different sections or groups of justices, say three or five in each firoup, would then deal with civil controversies, criminal appeals, admiralty and maritime affairs, and so on. This would no doubt expedite business, but i v.ould destroy 'hat uniformity in the application of the laws v hich was one of tlie prime reasons for the Supren * V>urt 's > tiginji establish- ment. The entire court wouU' till hav< lo \<: ,, all the important questions of constitutional interpreta n, and for that reason would probably develop into a cumbrous tri- bunal of appeal from the decisions of its own .st " ns. 'I e burden upon the court, as at present con^^t easily be reduced by placing more obstacles i frivolous appeals. By the Judiciary Act of 1789 which orgaiiiz* preme Court a system of subordinate federal coun created, consisting of Circuit and District Cour Act was at various times amended, and the originaj underwent many important changes during the next uuhl the judicial legislation became extremely coinpi In 1911, accordingly, the whole legislation was revamj. (^)n!iress in the so-called Judicial Code which went operation on January 1, 1912. This code is now the gro 2b ability (i{ follow ingit too Btrirtly. Some pro- posed changes in the organisa- tion and procedure of the Supreme Court. might ". =y of he Su- as also This Hem nry \ The sub- ordinate federal courts. 370 THE GOVERNMENT OF THE UNITED STATES The Circuit Court of Appealf. The District Courts. work of the entire nystem of federal courts subordinate to the Supreme CJourt. Next below the Supreme Court comes the Circuit Court of Appeals. The territory of the United States is divided into nine circuits, each circuit containinjj; three or more states. There is a Circuit Court of Appeals for each of these nine circuits, such courts having from two to four judges according to the amount of business to be done. In addition, one justice of the Supreme Court is assigned to each circuit, but in practice, tliese justices dt* not go the circuits at all.their whole time being ta'; up at Washington. The Circuit Court of Appeals in eacli cuit holds sessions at various cities, hearing appeals from the District Courts below. In many cases, where the issue of the constitution- ality of a law is not raised, the Circuit Court of Appeals has final authority. But when this issue is raised, as it is in a multitude of cases, an appeal may be carried to the Supreme Court. Then come the federal District Courts. The entire territory of the United States is divided into eighty districts, each state constituting at least one district and the more populous states having two districts or even more within till r l)oundarios. New York State is divided into four districts. Each District Court has its own judge as a n'!e: but in a few cases one judge serves two districts and a few districts have more than one judge. Every Di: 'litrourt, holds several sessions every year, sometimes sitti ^ »n more than one city within the district. It is a court of first instance, and the only federal court in which a jury is used. Every district has its United States district attorney and United States marshal, appointed by the President with the concurrence of the Senate. The function of the district attorney is to act as the representative of the nation in prosecutions before the court. The marshal executes the court's orders and judgments, attends to the service of its writs, and is its general executive officer. Both are under the din tion of the federal Department of Justice. Eac' District Court rilsohas a federal commissioner who conducts the preliminary hearing in criminal cases and decides whether an accused shall be held for the grand jury. Most cases TlIK SUPl RME COURT AND SUBORDINATE COURTS 371 iiikUt federal jurisdiction arc entorra 'n the District Courts ami the great majority of them are finally uispuseil of there, ((Illy a small percentage going thence to the Circuit Court of Appeals and a still smaller proportion to the Supreme Court. A word should also be said about the two special courts. The Court of Claims, established in 18')"), consists of a chief ii!stip'> and four "•" tiste judges appointed by the President, lis l)usiness is t ^nd determine the merits of all claims Msrainst the fet - ,overnment, such as claims for salaries (iiic or for supi.wv'S delivered. With certain restrictions t litre is a right of appeal to the Supreme Court. The other special court, the Court of Customs Appeals, is a recent creation, dating only from 1909. It has the sa.ne i\iimber of judges as the Court of Claims aiid they are similarly appointed. Its function is to serve as a final court of appeal in all controversies regarding the administration of the tariff laws, as for example, controversies jver the ap- pialscd valuation of goods, the proper rate of duty and so forth. The courts of the District of Columbia, of Hawaii, .Vluska, Porto Rico, and the Philippines are also federal courts. Their judges and other officers are appointed by the President with the consent of the Senate and theii juris- diction is as.signed to them by Congress. Their organization will be described in the next chapter.' In all the federal courts the judges are appointed for life or during good behavior. Tliey are removable only by impeachment before the Senate of the United States.' Thci** salaries may not bediminisheu during their tenure of ofHoe. The rule coveriiig these matters cannot be paraphrase] 'ito any clearer or more concise language than that of the c t^- stitution itself: "The judges both of the supreme and inferior courts shall hold their offices during good behavior, aiul shall, at stated times, receive for their services a com- pensation which shall not be diminished during their con- tinuance in office." The Court of Clrima The Court of Custonu Appeal*. Other federal courta in the territoriee. Pro tec- tic for - iai ,.in- deiice of the federal courta. ' Fur a word on the short-lived Commeroe Court, see above, p. 258. • On this and related subjects see the discussion in W. 8. Carpenter, Jiidiciai Tenure in the United States (New Haven, 1918). CHAPTER XXVI THE GOVERNMENT OF TERRITORIES The I'liited States as a colo- nizing- power. The two periods of ex- pansion : 1. within the present boundaries. It is not customary to think of the United States as a colonizing country, yet the whole history of the nation from 1787 to the present has been one of steady territorial expansion. The area of the original thirteen states forms less than one-tenth of the territory which is under the flag of the United States to-day. No other nation has relatively increased its territory to so great an extent and colonized its acquisitions so largely with its own people. The history of American expansion may be divided into two periods. First there is the era extending from the close of the Revolutionary War (1783) to the year 1867. It was during this interval that the United States acquired by successive treaties with Great Britain, France, and Spain all the land included in the Northwest Territory as it was then called,^ in the Louisiana Purchase, and in Florida. During this interval ;il>o, the nation secured by conquest from Mexico and by the admission of territories which liad declared their independence of Mexico, the enormous areas of Texas, the Southwest, and the Southern Pacific slopo.^ All this territory was contiguous ; it included • The Northwest Territorj- was acquired by the Treaty of 1783 and before the adoption of the constitution was governed by the provisions of the famous Northwest Ordinance which was framed in 1787 by the Con- gress of the Confederation. In 1789, on the estabUshment of the new na- tional government, the provisions of this ordinance were re-enacted into law by Congress. See William MacDonald, Select Documents Illuslralm of Ihe History of the United Stales, 177(>-1861 (N. Y., 1907), pp.' 21-29; also B. A. Hinsdale, 7 /it Old Northwest, (he Beginnings of Our Colonial Sy.tem (Id ed.. R-^ttm. 1899). - A general account of those various additions to the national territory may b«' found in Edward Bi(!knell, The Territorial Acquititions of tht United States 1787-1904 (3d ed., Boston. 1904). 372 THE GOVERNMENT OF TERRITORIES 373 nothing remote from lands already possessed, and its acquisition did not impair the compactness of American territory. All of it, moreover, is territory which was intended to be and indeed has now been parcelled into states of the Union with full rights of statehood. The expansions of this period merely represented the logical rounding-out of national boundaries. The socond period, extending from 1867 to the present 2. outside time, has been marked by territorial acquisitions much less ^nj'*"""* extensive and of a different sort. By the purchase of insular Alaska from Russia in 1867 the United States acquired its ^;',^*'- first non-contiguous possession. This precedent was not followed by any further ventures into di.stant territories, lio\vev(>r, until 1808, when by conquest from Spain the Pliilippines, Porto Rico, and Ouam were acquired ; and in tlie same year Hawaii was annexed at the request of its own government. In 1000 a treaty with (Jreat Britain and (lermany gave to the Uniteil States certain islands in the Saraoaii Archipelago, and in 1004 the Panama Canal Zone caiue virtually into American hands by a treaty made with tlie new Repul)lic of Panama. Finally, in 1017, the Danish West Iu(li(>s were acquired by purchase. .Ml these acquisitions differed from those of the preceding Differ- l)eii()(l in tliat they are separated from the main territory ^j'^^ggn (if the United States and cannot well be assured of any the two certain admission to statehood at a future date. They are p™fo„'"' colonies in the ordinary sense of the word, although for sentimental reasons they are designated in official l)hraseology as insular possessions. In all prior expansion there was some assurance of ultimate incorporation on a basis of equality with the states already in the Union, but since 1808 the United States has faced the practical certainty that for many years to come its jurisdiction will include two classes of territory ; one constituting the United St:!'es proper with its people enjoying full constitutional rifflits and privileges, the other made up of insular possessions wliicli cannot well be dealt with on that l)asis but can only i>e i)ri)ught by gradual stages to the attainment of full self- government. "In a word, whatever may be the theory, as a practical condition the United States, through these 374 THE GOVERNMENT OF THE UNITED STATES The con- stitutional basis of expansion. Constitu- tional questions connected with out- lying pos- sessions. acquisitions, is now confronted with the problem of govern- ing and administering dependent or colonial possessions in precisely the same way as is England or are other Euro- pean iiations that have deliberately embarked on a colonial policy." ' The makers of the constitution foresaw that the Union would eventually comprise more than the thirteen original states. Hence they made provision that new states might be admitted by Congress and that any territory belonging to the United States, if not admitted to statehood, should be governed in such way as Congress might decide. The constitution did not, however, in express terms bestow on Congress the right to acquire new territory, and in connec- tion with tlie Louisiana Purchase of 1803 it was urged that Congress had no such right. The Supreme Court in 1810, however, settled this question by asserting the doctrine that the United States as a nation has the right to acquire territory either by conquest or by treaty to the same extent that any other nation has that right.' But assuming the right of the United States to acquire territory many other questions arose to be settled. Is the control of Congress over such territory complete and un- restricted, or is Congress bound there by all the limitations of the national constitution? Have the inhabitants of insular territories the constitutional rights of American citizens, the right to freedom of speech, to assemble peaceably, to be immune from unreasonable searches and seizurt he right to keep and bear arms, and the right to trial by jury ? Is a FiHpino or a Porto Rican entitled to these rights by the mere tact that the American flag flies over his islands? And what about the operation of such laws as Congress may make? Do they apply, ex propria motu, to these territories or do they apply only when their extension thereto is expressly provided for? Does a tariff law, for example, apply only to merchandise which comes into the United States proper, or to all that may come into any ' W. F. WiUiiuKliby, TvirUurien and Dependencies of the Untied Slalet (N. Y., lOOS), p. 8. « Sere vs. Pi tot, 6 Cranch, .S.'W. See also J. K. Hosmer, The History of the Loumana Purchase (N. Y., 1002). THE GOVERNMENT OF TERRITORIES 375 territory under the sovereignty of the United States? All these questions have come before the Supreme Court at one time or another and all have been answered by that tribunal, so that the constitutional status of territories and insular possessions is now determined with reasonable clearness. Summarizing the main features in this chain of judicial Theru'.es decisions one may lay down the following general rules: ^fj"d"' The power of Congress over the territories of the United by the States is practically complete. The inhabitants of the court!"" insular possessions are not citizens of the United States unless and until Congress expressly extends citizenship to tliom. The provisions relating to the rights of citizens, for example the right of trial by jury, do not extend to the inhabitants of these territories unless and until Congress so provides. Congress, however, has to some extent made provision in this direction. As respects tariff laws, the Supreme Court has held that duties may be exacted on commerce between the United States and its insular possessions.* The problem of citizenship with reference to inhabitants status of of the Philippines is even yet, however, a little perplexing, ^'^'^^j""'^ They are, of course, no longer subjects of Spain, nor are Ricans. they citizens of the United States. What is their status? International law has coined a new term for them. Filipinos are now by general usage called "nationals" of the United States. This means that they are entitled to the protec- tion of the United States government and to its assistance in all international matters. So far as international law is concerned ihey are, accordingly, American citizens to all intents and purposes. But by constitutional law, the law of the United States itself, they are not citizens, and are not entitled to the privileges and immunities of citi- zens save in so far as Congress m^y grant such rights to them. Owing to a diversity n local conditions among the various possessions of the Jnited States, no attempt has ' Those various points wf re settled by the deoisions rendered in a series of controversies eommonlv known as The Ins'ilnr Cases. Sec espeeially D( Lima vs. Bidwell, 182 U. 8. 1, and Downes vs. Bidivell, 182 U. 8. 244. 376 THE GOVERNMENT OF THE UNITED STATES if I Preaent govern- ment of American depend- encies : Hawaii How ac- quired. Its admin- istration to-day. Laws and appropria- rvor been made to establish a uniform sclieme of govern- inent for all of them. Hawaii is at present tl e only insular possession wliich has full status as a "territory," that is to say tlie territorial status enjoyed by the various western areas of tlie United .States before they were admitted to statehood. Prior to 180.3 tlie Hawaiian Islands had a monarchical form of government with a native dynasty. But in that year a revolution abolished the monarchy and set up a provisional jjovernment which, in turn, gave way to a republic in 180.'>. Three years later t] • government of the Hawaiian republic applied for and obtained annexation to tlie United States ; and in 1900 Congress established a territorial government in the islands. Under this arrangement the federal government at Washington directly controls such matters as fall within its province on the American continent, for example, the postal service, the collection of customs, taxes, and excises, the coinage, and the national banks. On tho other hand, local functions in Hawaii are controlled by its jwn territorial government under the federal government'.-^ general super- vision. The territorial governor of Hawaii is appointed by the President of the United States. He is assisted in executive work by various administrative officials, a secre- tary, treasurer, attorney-general, and so on. Then there is a territorial legislature of two Houses. Of these the Sen- at(> is composed of fifteen members elected from the four counties and serving for a four-year term, while the House of Representatives consists of thirty members chosen from the six representative districts into which the islands are divided. All persons who were citizens of Hawaii at the time of its annexation (1898) became forthwith citizens of the United States. At present the voters who elect the Senate and the House comprise all male citizens who are able to speak, read, and write either the English or the native language. Subject to the general control of Congress the Hawaiian legislature, consisting of these two Houses, makes the laws?, determines th^ taxes, and provides for the annual expendi- tures. The governor possesses the usual right of veto, which may be overridden by a two-thirds vote of both THE GO\TRXMENT OF TERRITORIES 377 Houses, 'llicre is, moroovor, an important provision "that i.> case the legislature fails to pass appropriation bills pro- vidiiis for payment of the necessary current expenses of carrying on the government and mc^ ting its obligations as the same are provided for by the then-existing laws, the governor shall, upon the adjournment of the legisla- ture, call it 'i an extra session for the consideration of appropriat.un bills and until it shall have acted the treasurer may with the advice of the governor make such payr.ents for v liich purpose the sums appropriated in the hist appropriation bills shall be deemed to have been rcappropriated." In other words the territorial legislature cannot use its control of cxpenditUies in such way as to ioer(!e the executive into submission by stopping tlie wheels of governnient. Hawaii also has its own territorial courts, l)(vides a ftderal district court. 'Die territoiy sends one delegate to the House of Representatives at Washington, but he has no vote. From tlie date of its purchase from Russia (1867) until Alaska. 1884, Alaska was not given any system of territorial govern- nioiit. ii wa'^j kept during these seventeen years directly uiulor the control of the national authorities at Washington. In 1884, however. Congress passed an act establishing a civil government for Alaska and in its general outlines this lias remained unchanged to the present day. The adminis- tnition of Alaska is in charge of r. governor appointed by the President. A legislature was established in 1912. The ex- ecutive departments at Washington still control various Alaskan matters, f<>r (>xample, the system of education is under the Secreta f the Interior. From 1884 to 1900 the general laws > he state of Oregon were applied to .\laska so far as practicable ; but in the latter year Congress provided Alaska with a special code of laws and a code of civil procedure. Arrangements have been made whereby settlements may become incorporated as towns, and may estal>'.ish a system of elective town government. During the war with Spain the American army occupied Porto P;i!lu Rico and in the two years following the withdrawal ^'™- of the Spanish forces the island continued under military government. People do not always realize how easy it is 378 THE GOVERNMENT OF THE UNITED STATES The period of military rule, 1898-1900. Present govern- ment of the island. ftr an army to provide, out of its own resources, all the administrative machinery that is necet-ary for temporarily governing a conquered territory. The commander-in-chief with his staff transform themselves into a governor and council ; the engineer corps provides a department of public works; '\e paymaster's department takes charge of the finances ; the medical and sanitary corps become a depart- ment of public health ; the judge-advocate sets up a judicial system ; the military police take over the work of pohcing, and so on. To say that Porto Rico was for two years under military rule does not mean, therefore, that the affairs of the island were crudely or arbitrarily handled. Quite the con- trary. The system of military rule did not give way to an organized civil government because it was found to be in- efacient but because of the general aversion of the American people to continued military government in any portion of their territory.^ The present frame of government in Porto Rico has its basis in the ForakcM- Act of 1900, considerably modified by the organic statute of 1917, commonly known as the Jone- Act.^ At the head of the island adminiotration is a gover- nor, appointed by the President with the consent of the Senate. He holds office during the President's pleasure. The governor is assisted by six heads of executive depart- ments of whom two (the attorney-gencial and the commis- sioner of education) are appointed by the President, while the remaining four (treasurer, commissioner of the interior, commissioner of health and commissioner of agriculture and labor) are appointed by the governor. These six heads of departments form an executive council, assisting the governor in an advisory capacity. The Porto Rican legislature consists of two chambers, the Senate and the House of Representatives. Thf Senate contains nineteta members, of whom two are elected from each of seven senatorial districts and five are elected by the voters of the island at large. The House of Representa- tives is composed of thirty-nine members, one from each of ' L. S. Rowe, The United Stales and Porto Rico (N. Y., 1904). « Approved, March 2, 1917. 39 U. S. Statutes at Large, Pt. I, pp. 951 ff. THE GOVERNMENT OF TERRITORIES 379 thirty-five districts and four elected at large. Porto Rico has practically manhood suffrage. The legislature may levy taxes (except taxes on exports) and may authorize borrowmg on the credit of the island. It also determines the expenditures, but since 1909 it has been provided that if the two chambers cannot agree on ap- propriation measures for the support of the island govern- ment, the governor may himself promulgate a budget the total of which shall not exceed the entire appropriations of t>io year preceding. This amendment to the Fo/aker Act was made by Congress because a serious deadlock between the two chambers on one occasion prevented any appro- priations being made at all. Measures of every sort, to be effective, must be accepted by both chambers of the islprd legislature. The governor has the customary nght of voto subject to being overridden by a two-thirds vote of both chambers if the President approves. Every measure, after it has been enacted, must be reported to Washington, where Congress has power to annul it. As a matter of fact, however, Congress does not interfere, and Porto Rico vir- tually enjoys a full measure of colonial autonomy similar to that possessed by the self-governing colonies of Great Britain. Porto Rico has its own system of courts, the judges its of the higher tribunals being appointed by the President '^''^ and those of the lower courts by the governor of the island with the consent of the executive council. There is also one federal District Court for the island. All the judges hold office for life. One delegate from Porto Rico, elected by popular vote, The Porto has the right to sit in the House of Representatives at delegate Washington, but has no vote in that body. Free trade in exists between the island and the United States, but the Congress. re-iular United States tariff laws are applied in Porto Rico as a_2:ainst the rost of the world. All customs duties and internal taxes go into the treasury of the island. By the trea.y with Spain in 1898 the Philippine Islands The_ were ceded to the United States. Military rule continued, ^i^^^ however, until September 1, 1900. During this interval a commission was sent to the island to study conditions and 380 THE GOVERNMENT OF THE UNITED STATES The pre- liminaries of civil Kovern- lueut. The present frame of adminis- tration. to report upon a system of civil govornmont for the islands, and its recommendations became the basis of later action by Congress. Meanwhile, President McKinley also appointed a civil commission to serve temporarily as a legislative body for the island while executive powers remained vested in the military governor. Up to 1902 Congress took no action in the riiatter of a permanent scheme of government for the Philippines. The President contrcied the administration of the islands by virtue of his powers as commander-in-chief of the army. But in ordc to remove any possible doubts as to the legality of this situation, Congress in March, 1901, gave the President in express terms "all the military, civil and judicial powers necessary to govern the Philippines . . . until otherwise provided." ' The combination of military, executive, and civil legislative commission continued, how- ever, until September 1, 1901, when a civil governor was appointed with William H. Taft as first occupant of that post. Meanwhile various administrative departments were organized and a beginning was made toward the recon- struction of local government. In July, 1902, came the next step, when Congress passed the Philippine Civil Covernment Act which remained in force for a period of fourteen years.^ Tlie chief provisions of this law were as follows : Tlie executive power was vested in a governor-general, aj)pointed by tl\e President with the consent of the Senate, and in the heads of the administra- tive departments, who were similarly appointed. These ad- ministrative officials were also members of the Philippine Commission, which included along with them four other persons named by the President. This commission remained the sole legislative body of the islands until 1907 ; from that time until 1910 it served as tlie uj)per chamber of the legis- lature.' ' This aft was popularly knonn as the Spoonpr Amendment. '57th C'onfjress, 1st Sessioi Chap. i:iC9; :i2 Statutes at Large, Pt. I, p. 691. ^The Coniniission ua.s altolishcd l>y the new orjfanic act for the govern- ment of the Philippines wiiich was approved hy the President on August 29, 1916. A summary of the provisions of this act may be found in the American Year Book for 1916, pp. 239-240. THE GOVERNMENT OF TERRITORIES 381 The Act of 1902 did not provide for the immediate es- tablishment of an elective assembly or House of Rejucsent- ativps. It merely stipulated that such a body should be called within a certain time after the islands had been pacified and a census taken. These conditions were eventually ful- filled, and the first Philippine Assembly met at Manila in the autumn of 1907. In 1916 a further step was taken by making both branches of the legislature elective. The Philippine Commission was replaced by an elective Senate of twenty-four members, of whom twenty-two are chosen by the voters in eleven senatorial districts, while the remaining two are named by the governor-general to represent the non-Christian prov- inces. The Assembly has ninety members, of whom oishty-one are elected by districts and nine appointed. The Philippine legislature is now made up of two cham- l)erH, therefore, the Senate and the Assembly. Its powers include the levj' of taxes, the making of laws, the borrowing of money, and the voting of annual appropriations. The go\ ernor-general is given the right to veto measures passed hy the legislature and no legislation may be passed over his veto without the assent of the President of the United States. All appointments to headships o' departments, matle by the governor-general, must be submitted for con- firmation to the Philippine Senate. Tlie governor-general holds office during the pleasure of the President. Phihp- pine senators sit for six year.-* and r:.?mbers of the lower hou.^(^ for three. Two delegrtes from the PhiUppines, cliosen every two years by the Pliilippine legislature, are entitled to sit but not to vote in the House of Representa- tives at Washington. The United States is under virtual pledge to accord full independence to the Philippines when the appropriate time arrives. It is not unlikely that this will be done within a few years if the international situation permits. ITie judicial organization of the PhiUppines is much like that of Porto Rico. There are local courts, district courts (or courts of the first instance), and a supreme court for the islands. Under certain conditions appeals may be taken from the decisions of this last-named court to the Supreme The PhU. ippine Assembly. The Act of 1916. The powers of the legis- lature. Delegates in Con- gress. Judicial organi- zatio". 382 THE GOVERNMENT OF THE UNITED STATES The pro- vinciiil govern- ments. Munici- pal Rovorn- nicnt. Manila. Court of the United States. Judges of tlic subordinate courts are :ippointcd hy tlie sovcrnor-genornl with the con- sent of the Senate ; tliose of the supreme court by the President. Congress has extended to the Philippines uU the constitutional rights which belong to the citizens of the United States, excepting only tlio ri;:iil of trial by jury and the riglit to keep and bear arms. The old legal system of the Spanish period remains substantially un- changed ; but Spani.sh judicial procedure in both civil and crim.inal trials has been abolished. Common-law procedure, witli the exception of the jury system, has supplanted it. A system of local government has also been estal)lished in the islands. There are thirty-one "regular" provinces, each with a provincial governor and certain administrative officials assisting him. The provincial governor is elected ever\' two years by a convention made ap of the councillors of the municipalities within the province ; the adminis- trative officials are selected under civil service regulations and appointed by the governor-general. There js no elec- tive council in any of these provinces. The functions of the provincial governments are to look after the collection of taxes, to care for main roads, and to supervise the work of the municipal authorities. The taxes, after they are collected, go in part to the island treasury, in part to the municipalities, and in part to the province ; but the province is the chief unit for collecting them. Seven other non- Christian provinces are entirely under the control of the executive department and have no local government of their own. Of municipalities there arc several hundreds, large and small. Manila, the capital, is governou liy a board of six commissioners of whom three are appointed by the governor- general with the assent of the Philippine Senate, one is a member ex officio (the city engineer), and two are elected by the people of the city. In the event of a deadlock in the board, the governor-general is empowered to appoint a seventh member. This board has tlie usual powers of an American city government. It appoints the city officials, enacts the local ordinances, and controls the various adminis- trative departments such as public works, police, health, TIIK GOM^RN'MENT OF TERRITORIES 383 •111(1 fifhools ; it also determines the general course of mu- uiripal ent( rises. Apart from Manila all tlio i: unicipalitirs are grouped into four cl'.issos accordin;; to thi'ir i*ize. Eadi has an elective municipal government wiiich inchides a municipal council of from eight to eighteen members. These local govern- ments, however, are under strict provincial control. The fiscal relations between the United States and the Pliilippines are different from those which exist between tilt" United States and Porto Kico. Trade between the Philippines and tlie United States, both ways, in subject to a special tariff. There is also a great variety of internal taxes. Much revenue is lu'eded, especially to cover the cost of the elaborate public school system which has been developed under American rule.' Ill Samoa all governmental autiiority is vested in the hail is of a commandant designated by the Secretary of the Xav}'. The commandant appoints a governor for each of the three districts into which the American islands are divided. Local governnuMit is left to the natives. The same system of administration by naval commandant exists in the island of Guam. In the case of the Panama Canal Zone, that strip of territory across the isthmus about t miles in width, of which the United States acquired 1!))1 from the Republic of Panama "the perpetual u.-t oc'upation and control," the administration is in the hands of the War Department and is exercised thnmgh a governor appointed by it. The newly-acquire new national govern- ment, lest by so doing they .should create sectional jealousy and perhaps lead to tlie rejection of the whole constitution, they ail! make provision for tlie eventual s^'l^-ction of a capital wlfich would be exempt from the jurisdiction of any state At Madison's suggestion, accordingly, the constitution was- \vi>rded to provide that Congress should have power "to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of Cc cress, become the scat of government of the United States." ' The selection of the exact place was left for the future, out with ' The best full account of its government is that given in W. P. Dodd, The Government of the District of Columbia (Washington, 1909). ' Article i, Sootion 8. • :fWS^'im7^^^f'- THE GOVERNMKNT OF TERIUiORIES 385 tlio stipulation, as iiulicatod above, that the tcmtory acquired for the new capital should be wholly under the control of C.otigress. When the first Congress of the United States met in choice 17.SS-17S9 after the adoption of the constitution, there was ^^^^ a l(»u<; and bitter struggle on this question, particularly location. hetwcen representatives of the northern and the southern states. Kach wanted the capital located in its own region. Ill the end it was agreed to accept a location on the Potomac, which was in reality a victory for the '"' •*h.' S(» Maryland and Virginia each i'n ,'eded some terri- Th«Biu>»r. tory to the federal government, • -n of it in fact, and in ^-^'^J'"'" isifi Virginia was allowed to take -ack part of what she had and Mary- pivon, so that the area of the district is now sixty-nine '"""'■ siiiKir(> miles instead of the hundred originally ceded. During the course of the years 1790-1791 legislation was cnactod locating the new federal district, and accepting the cession of territory from Maryland and Virginia. Mean- while Congress held its annual sessions first in New York (17M»-1790) and then in Philadelphia (1791-1800). I'he statute establ-rhing the new home of the nation's The ^'overnment on the Potomac also provided for the establish- ^j^'},^''* ineiit of a commission to lay out the streets, tlie sites for district. |)iil)lic buildings, and so on. Tlie commission acted wisely ill the work, for at Washington's suggestion it brought from Fratuc Major Pierre-C^liarles L'Enfant, an engineer who had served in the Rev()lution;.r>' War, and intrusted the city- planning task to him. L'Enfant did his part well, although ^ork of^ lie planned upon a rather too elaborate scale. It is due *" larsoly to his skill and foresight that the national capital is to-day the best-planned large urban area in the world. The planning and construction of the public buildings took nearly ten years, and it was not till 1800 that the President and Congress movf^ i '- +h3ir n^w quarters in the District of Columbia. ' Thp selection was the result o a dwi.' i)et»,t'eii j' e sectional leaders by which southern congressmen su -vW-.-i a v'i«; siir-j ■ir the assumption of >ia(i- tlei)ls by th*- national Kov . '.'ki- . p.wj.-. :. ii' vhich the business int r sts of the northern states v ' .-.vh. intt ^T 1. For the whole story, sec Oaillard Hunt's article on ••■ aiinsr '.\\> ' ■ , ital" in the Ameri- can Historical Association's Annual h ■: (5«V'»i. i .>. 287-295, a855i'f "^Hr7?5»-^S9f:ff^«'IB6. 386 THE GOVERNMENT OF THE UNITED STATES Early gov- ernment of the district. Present adminis- tration. The com- missioners. Their powers. In the following year (1801) an act was passed by which Congress assumed complete control over the district and divided it into two counties, one on the south and the other on the north shore of the Potomac. In due course two cities were chartered in the nortliern area imtler the names of Washington and (ieorgetown, each with its own local government, and in this shape matters drifted along until 1871. The divided municijial authority naturally gave rise to friction and the inter(\sts of the national government finally impelled (^ongress to consolidate the whole area into one mimicipality, known as the District of Columbia. But the scheme of municipal government provided for the district soon proved extravagant and unsatisfactory. In 1874, accordingly, Congress again intervened by putting all the affairs of the district in the hands of three com- missioners appointed l)v the President, thus abolishing local self-government altogether. This plan was made permanent in 1878 and with minor changes it remains. The executive administration of the District of Columbia is vested in an aj>pointive commission of three. Two of these commissioners are appointed by the President, with the consent of the Senate, from among the residents of the district. They hold office for a four-year term and one must be chosen from each of the two leading political parties. The third commissioner is detailed by the President from the engineer corps of the United States army. He must he an officer with the rank of captain or higher rank, but is not detailed for any definite term. Subordinate officers of the engineer corps are assignee! to assist him. These three commissioners of the District of Columbia, as a body, have large powers. They make all municipal appointments, supervise the local public services such as streets, water supply, policing, fire protection, schools, and charities; and have power to make the ordinances or regulations relating to the protection of life, health, and property. Eacli member of the commission takes immediate charge of certain departments, for example, the engineer member has chnrt'o of Hfrt'ots, wafor supply, spwerage. parks, and light in sr. Ii^a word they exercise the functions which in many cities of the United States are given to the ^T ^i^. \-^: ' THE GOVERNMENT OF TERRITORIES 387 mayor, the heads of municipal departments, and the city council. Tlic laws applyiuff to the District of Columbia are practi- cally all made by Congress, although usually on the com- mission's recommendation. So also are the appropriations for carrying on the government of the district. The commissioners each year make their estimate of what is rciiiiired and submit it to a congressional committee. After tliis committee has considertd the estimates, and changed tliciu as it sees fit, an appropriation act embodying them is i)assed by Congress. Half the annual cost of governing the district, as thus appropriatoxl, is paid from the national treasury; the other half is levied upon the district by taxation. A verj' great amount of property in the district belongs to the national government and is exempt from taxation. Tliat is why the national treasury bears part of the cost. The District of Columbia has its own system of courts, comprising a police court, a court of appeals, and a supreme court. All the judges are appointed by the President. Tlie Supreme Court of the United States holds its sessions tlier(> also ; but it has no direct concern with local juris- iliction. 'Hic inhabitants of the District of Columbia are entirely (lisfrancliised. They have no vote for President, since the district is not entitled to any presidential electors. Tliey have no senators, no representatives in Congress, no mayor, aklennon, or councillors. Tlie only way in which any in- lial)itaut of the District of Columbia ever manages to cast al)alh)t is In' being a "legal resident" of some other place. Tliat is the way many of them arrange it. \Vlien men are appointed to federal positions which involve their living in Wa-hington they often retain their legal residences in the states from which they come, anil go back to these states to cast their votes on election day. But there are many thousands who are born in Washington and live there who have no such opportimity. Thej' pay taxes regularly but they have no representation either in the national government or in the management of their own local affairs. The government of the District of Columbia affords the most The laws and the a[)propria- tiona, how made. The local courts. Absence of local autonomy. -. ^ uiiuiiiuly ^^m ^^^ of the ^^H ^H situatioa ^^H ^^H 388 THE GOVERNMENT OF THE UNITED STATES Effi- ciency of the \ district's govern- ment. Washing- ton as a capital city. glaring example of taxation without representation that exists in any democracy. No sophistry can explain that simple fact away. But as a practical matter the people of the district are far better off than they would be if Congress allowed them to elect all their local officers and to pay all their own expenses. The District of Columbia is one of the most efficiently and most economically governed urban areas in the world. Its administration has been free for more than forty years fror . scandal and corruption. Local self- government would more than double the rate of taxation and the people of the district would probably get less for their taxes than they do under the present system. The selection of Washington as the site of a political metropolis was a serious mistake. The Potomac location has no marked natural advantages, and as a place in which thousands of public officials must work throughout the summer montlis it has ol)vious drawbacks. The difficulty of defending it from attack was amply proved during the War of 1812, and in the Civil War the necessity of guarding the capital interfered greatly with the strategy of the federal armie:;. Nevertheless it has become one of the world's best cities. "v i"ia«ifiM!f';i;aos^ CHAPTER XXVII THE PLACE OF THE STATES IN THE NATION Place of the states in a There are two sorts of republics, national and federal. A federal A national republic is one in which the smaller communities ^^^1^" are merely administrative subdivisions of the whole, and possess only such powers as are delegated to them. France, for example, is a national republic. A federal republic, on the other hand, is an aggregation of states, commonwealths, or other divisions, each of which possesses its own inherent powers. The United States is a republic made up of smaller republics, a federal republic, an indissoluble league of republican states. And a republic, as Madison defined it, " is a government which derives all its powers directly or federal indirectly from the great body of the people.'' The states •'^p"*^'"' of the Union are not, like the departments of the French republic, mere administrative divisions created for the more efficient carrying on of government. The American state has its own assured powers; within its own sphere it is supren.o; and within broad limits it determines its own frame of government. Its powers are i'lliorent, not dele- gated. It possesses these powers ab iniro and does not receive them by grant from the federal constitution or from any other overhead source. There were states before there was a national constitution and they possessed the attributes of sovereignty. Despite the assertion in the preamble of the federal constitution that "We, the people of the United States" ordained and establlihed that document, the fact is that the people as such had nothing directly to do either with its making or adoption. The states through their delesrates framed the constitution and through their con- ventions ratified it.^ ' See footnote on next pRge. 389 390 THE GOVERNMENT OF THE UNITED STATES Nature of the I'nion : feon, in The Federalist, gave it a lucid exposition and one that for conciseness has not since been excelled. "The proposed constitution," he wrote, "is in strictness nehhcr a national nor a federal constitution, but a composition of both. In its foundation it is federal, not national; in the operation of its powers it is national, not federal; in the extent of them, again, it is federal, not national; and finally, in the authoritative mode of introducing amend- ments it is neither wholly federal nor wholly national." ' In the American scheme of government the states are the original source of governmental powers. All powers now possessed by the national government have been deleg itod by the states at some time or other.^ By their adoption of the national constitution, the states parted with certain great powers, delegating them to a new national government 1 The Federalist, No. 39. 2 This doctrine of original state sovereignty and of state-delogated fed- eral powers was not in favor among Nortliern constitutional jurists iK'fore the Civil War. Daniel Webster, for example, was at great pains to explain that although the constitution had been ratified state by stat«, yet the process of adopting it was, after all, not the act of each state indi\'iduaUy "but of the whole people imited into a political unity by that subjective feeHng of nationality which is the ultimate foundation of every sovereign state," or in other words, that the whole people merelv used their existing state machinery to act en masse. This sounds a good deal like juridical sophistrj- ; and imleed it sets forth a proposition which no mortal man can either prove or disprove. "What the "subjective" attitude of the whole people really was in 17R7-178;: no one can say. 8o far as the written reeordf of the time -^ w-sUd to, they show a v.ariety of attitudes both as to what sort ;oti .le constitution ■ templated and as to whether that action ou^ .a b. t^ken at all. Stio ,* . W. Willoughby, The American Constitutional o„j(em (N. Y., 1904), pp. 18-19. r% M fm THE PLACE OF THE STATES IN THE NATION 391 in order " to form a moro perfect union, to establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare and secure the blessings of lihortj,'." The states on establishing the national govern- ment parted with various powers forever, for example, the power to make treat ies, to wage war, or to coin money. 1 hey putod forever with all the exchisive powers which the constitution gives to Congress and became forever subject to the lim.itations which the con^-titution places upon them- selves, subject of course to the right of amendment which tlio constitution itself provides may be exercised in ways pr(>scribed. , The states have also delegated certain powers downward, tl.at is to counties, cities, towns, and other subordinate n.rporations. But here there is a great difference, \^hat the states have given to these communities may at any moment be taken back again. The grant of power upwards is an irrevocable grant ; the grant of power downwards can ho revoked. There is a fundamental difference, accordingly, hiUveen the federal constitution and a city charter although both are examples of a delegation of power. The city, the county, and the town are the mere creatures of the state, estiil)l"ished by it as a matter of administrative convenience. Th(>v mav be divided, amalgamated, or even extinguished at any' time. They have no vested authority. The nation, altlion-h it wat, at its formation the handiwork of the states, was endowed with attributes of soven 'nty which liave proved sufficient to guarantee its indissolubility. State government in the United States accordmgly rep- resents the exercise of powers whicli have not been irrevocably (leleiiated. It covers a field originally unhmited but nowcon- iined within strict bounds by the supreme law of the land.^^ It was assumed that the policy of assuring to the states the re- si.l mm" of governmental powers would eventually make the aiithoritv of the states outweigh that of the national govern- ment, but in the course of events such has not proved to be the case Tlie elasticity of federal powers as interpreted by the Supivine Court, has enabled the national government to assume functions which would have fallen within the residual iiekl if a policy of strict construction had been consistently The dele- oration of powers to the nation The dele- gation of powers to subordi- nate com- munities. Difference Iwtween the two. The "residuum' of powers. Failure of thin residual idea. Are the Htjites "sov- ereign"'; '.V.)2 THE GUVEKNMENT OF THE UNITED STATES followed. Nevertheless the state is still the pivot around which the whole American political system revolves. Were it not for the states and their reserved powers the American scheme of government could not well continue; were it not for the work of the state governments a President* could not be elected, nor could congressmen be chosen, for the states determine 'he voting quaUfications, the states mark out the congressional districts, and the states provide all the machinery of elections. Neither would there be any county or city or town governments, for all of theee derive their existence and their authority from state constitutions and state laws. Much i nk and paper have been wasted in discussing whether the several states of the Union are now "sovereign." Here, as in so many other political disputations, a great deal depends upon definitions. If by sovereign one means "possessed of absolutely unlimited political power" then no state of the Union is sovereign. None of them is without constitutional shackles ; all are restricted in what they may do. The true situation was tersely set forth by Chief Justice Marshall a hundred years ago and it has not since been materially clianged. "In America the powers of sovereignty are divided between the government of the Union and those of the states. They are each sovereign with respect to the rights committed to it, and neither is sovereign with respect to the rights committed to the other." * This doctrine, however, did not find unanimous concurrence throughout the country du"'- -; the period preceding the Civil War. "Sovereignty," declared John C. Calhoun^ "is an entire thing; to divide it is to destroy it. . . . We might just as well speak of half a square or of half a triangle as of half a sovereignty." ' To-day, how- ever, Marshall's doctrine is accepted by the weight of authority. Much of the confusion has resulted from a failure to ' McCulloch vs. Maryland, 4 Wheaton, .316. 'Alexand-ir Hamilton, in 1788, had pxprpssed the same doctrine in somewhat different words. "The laws of the UuiieJ SiaU's," )ie de<;Iart>d, "are supreme as to all their constitutional objects ; the laws of the states are supreme in the same way. These supreme laws may act on different objects without clashing." » Disquisition on Government (1851). THE PLACE OF THE STATES IN THE NATION 393 distinguish sovereignty, as such, from the exercise of those .rovernmental powers which one commonly associates with sovereignty. Sovereignty is by nature indivisible; for thire obviously cannot be two wills, each supreme, in the same body politic. On the other hand the sovereign \yill may find expression through various channels, legislative and executive, and in federal states it may find expression tl.rough both central and local authorities. In the United States this is the case. There is a division of governmental powers between the nation and the several states, but no partition of sovereignty, no division of the supreme will. The authority which gave these powers and which can take thoni away is the ultimate sovereign in the United States and it ; ains, in fact, undivided. That ultimate sovereignty is the authority which can make or unmake the federal constitution. Where does it rest? To say that ultimate sovereignty iTst« with "the people" is not to express it correctly. A majority of the people of the United States cannot by direct action change the federal constitution; a minority might in some circumstances accomplish it. Action by a two-thirds vote on the part of Congress, ratified by the legislatures of tliree-fourths of the states in ways prescribed, or action by a convention called together at the request of two-thirds of tlie state legislatures with subsequent ratification by thm-fourths of them — that is the manner in which ultimate sovereignty can be exercised. Upon such action as may be taken in such ways are no limitations what- soever, and of no other governmental action taken in the United States can the same be said. The constitution- making authority has the last word in all things.' But this sovereign in the United States, as Lord Bryce puts it, ' "The task of running the sovereign to cover, especially in the com- posite states of to-day, is not always easy, and when discovered it is not alv.avs recognized. It is extremely difficult to place one's finger on the fxact spot where it reposes. The constitutional lawyer and the layman (1.1 not always travel the same path in the search for it, and they do not always find it in the same place. But it is always present somewhere in ill.' state; and if in the search we push our inquiry until we find tliat aiitli.)rity which has the power to say the last word in all matters of authoi^ ity, we shall find ourselves in the presence of the sovereign." J. W. Qar- n«r. 7 n/roducHon to Political Science (N. Y., 1910) o. 263. Reason {or inisunder- Btandings on this question. The real .\iuerican sovereign. asKc^s The states are equal. Creation of new Btates. 394 THF GOVERNMENT OF THE UNITED STATES is "a sovoroijrn who sleeps," a sovereign who is only at intervals roused forth to action, and whoso supreme authority has been exerted oidy twice during the last half century. It is a principle of the Aniericau constitutional system that all the states arc equal. No one of them possesses any governmental powers not enjoyed by all the rest. Con- gress may exact, however, and sometimes has exacted, certain conditions as the price of a new state's admission to the Union. It can do this because full discretion as to whether a .'^tate shall be admitted or not rests in its . vn hands. In 1894, for example, Utah was required ;i a condition of its admission to abolish plural or polygamous marriages forever. But once a state is actually admitted to the Union there is no longer any legally binding force in these promises or conditions. Upon being granted by Congress the privileges of statehood, a state "becomes entitled to and possesses all the rights of dominion and sovereignty which b.long to th(> original states" and stands upon an equal footing with them in all respects whatsoever.^ No continuing hmitations other than those provided for all the states by the terms of the federal constitution can be imposed. The constitution places no restrictions upon the creation of new states except that " no' state shall be formed or erected within the jurisdiction of any other state, nor anv state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned." ^ The process of admission to statehood IS relatively simple, the usual first step being the presentation of a petition to Congress from the people of a territory asking that they be organized as a state of the Union. If Congress regards this petition favorably it passes an Enabling Act, authorizing the people to draw up a state constitution and prescribing the way in which they shall proceed to do this. The constitution having been framed and accepted by the people it is submittetl to Congress and then, by a resolution of that body, the territory is declared to be a state. All the states, old nr now. are entitled to certain guarantees at the hands of the national government. The first of ' BoU vs. Nebraska, 176 U. S. 23. • Article iv, Section 3. Vi-^^- THE PLACE OF THE STATES IN THE NATION 395 those, as set forth in the constitution of the United States, is the guarantee of "a republican form of government."' Just what is meant by that phrase the constitution does not exphiin ; but it is reasonable to assume that what its makers IkuI in mind was the general type of government existing in the original states at the time the national constitution was adopted. "No particular form of government," declared the Supreme Court on one occasion, "is designated as republican. . . . All the states had governments when the constitution was adopted. . . . These governments the constitution did not change. . . . Thus we have unmistakable evidence of what was republican in form, within the meaning of the term as employed by the con- stitution." ^ So long, therefore, as a state continues to maintain any reasonable approximation to "a government which derives all its powers, directly or indirectly, from the groat body of the people," it is deemed to have a government ropublican in form. The denial of suffrage to women does net, accordingly, make a government unrepublican. Neither does the partial substitution of direct for representative methods of legislation by means of the initiative and referendum. The Supreme Court has wisely refrained from any attempt to restrain the development of state government within risrid bounds by construing the term "republican" too narrowly. The constitution also guarantees to the states that the whole nation shall "protect each of them against invasion; and on the application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence." ' This guarantee is couched in terms sufficiently dofiuite to prevent any serious misconception of its scope. In case of invasion the federal government's intervention does not have to be invited ; but in the event of riots or other internal disorder an express request must be made by state authorities in the manner prescribed. The national 1 Article iv, Section 4. Some thought the insertion of this guarantee to ho a needless precaution. "But who can say," wrote Madison, "what rxiiirimrnts may ho prodijced by the caprice of various states, by the ambi- tion of enterprising leaders or "by the intrigues and intluence of foreign POVVITS?" 2 Minor vs. Happersetl, 21 Wallace, 162. ' Article iv, Section 4. Federal Kuaran- tees to the states : 1. a re- publican form of govcrn- meut. 2. pro- tection against invasion and aid against internal disorder. i Tho powers ■'I (he atate.s are not cmimer- nted in any consti- tutiun. Prohibi- tions upon the states: I. in general. 396 THE GOVKHV.xrKNT OF " ' UNITED STATP^S K..vrrnmo„t may. hnuovor, intorvono t., quoll disorder ov..,. «ith„uf a state's invitation or consont, if local violonc; IS in.p,-ding tlu; proper cxtTciso of any federal function H«ch as the transnussiou of the mails or the collection of thn national revenues.' The powers of the several states are of course not enu- mera ,.d m the federal constitution. To look for them there would l.e t(, musconceive the fundamental nature of that docunu-nt. When one man gives to another a deed of cer- !;-n . '", J"' t'•'^""t "'^"l"^^ a list of all the property he still has lef . .Neither did the states, in surrendering certain powers. makt> any catalogue of those retained. All unmen- tioned governmental powers remain where thev were ori.^!- nally -with the states. This point will bear repetition, for desp.tr Its simplicity and importance, there is no feature of he American constitutional system so persistently mis- understood by tlie average citizen, tl. Jr!lv ^'l^T^ ;=«"'^Htution curtailed the governmental au- lowe/. 1 l"^ '" '!'''' ^""-''•''' ^'y tran.sterring certain po^ver^ to the national government, by prohibiting the states fK,m doing various things, and by placing some inter- s at<« obligations upon them. The powers transferred to ho nation have already been discussed. The prohibitions laid upon the states are to some extent similar to those placed upon Congn^s; but with some important additions The obligations have to do, as will be seen presently, with matters of interstate comity. The prohibitions laid upon the nation and the states alike are hose. n. ating to bills of attainder, ex post facto laws, and ties of nol,ility, all of which are forbidden. In addition the constitution forbids the states to enter into any treaty or al lanee to con, money or to issue paper money, to make any lung but gold and silver a legal tender in payment of debts to ay any duty on imports or exports, to keep troops or ships of war in time of peace, or to engage in war unless in imminen danger of invasion. These various restrictions w-ere placed upon ih states in order that various powers of the national government (such as the conduct of foreign aiiairs and tae control of commerce) might not be interfered ' See ab J p. 122. THE PLAf^K OF THK STATES IN THE NATION 397 with. They aro intondod to rendpr certain federal powers cxchisive in their nature. V restriction upon the states which has given rise to sonne famous controversies is that which forbids the passage of any "law impairing the obligations of contract." One of the earliest, and certainly the most notable, of these was the Dartmouth ('ollege Case which came before the Supreme Court in 1S19.* The point at issue was as to whether the charter of Dartmouth College was a "contract" and hence protected against any hostile interference on the part of a state legislature. The Supreme Court held that it was a contract and that the state legislature had no power either to revoke it or to impair its value. This does not imply, how- ever, that when a private corporation is given a charter it can never be taken away or changed. The state legislatures, in firanting charters, can make them revocable at will and many of tiiem now do this. But even when such reservation is not made, a charter is no more sacred than any other form of property and it can be taken away whenever the public interest so requires, provided just compensation be given. Not only that, but if the impairment of a corporate charter l>e (l(Miianded by the interest of public safety, health, or morals, the police power of the stitte is a sufficient warrant for abrogating or changing it without any compensation. The rule in the Dartmouth College Case applies to the charters of pri^'ate corporations only. The charters of puliHc corporations, such as cities, counties, or boroughs, are not contracts and are in no case protected by this constitutional provision against revocation or change at wiU. The municipality is merely the agent of the state cstal)lished for the more convenient administration of its local functions and so far as the federal constitution is concerned the legislature has unlimited power to repeal or amend its charter. But in many of the state constitutions, as will be seen later on, a certain degree of protection or "home rule" is guaranteed to cities and various limitations are placed upon the legislature's authority with reference '■> them. A contract is an agreement enforceable at law. When the ' Dartmouth College vs. Woodtcard, 4 Whoaton, .518. 2. the impair- ment of contract obliga- tions. The Dartmouth College Caae (IH19). Charters of public corpora- tions. 398 THE CJ()VKRNMi:Nr OF THK rNITKI) *alth, or morals so require.' In determining what relations eonie within the category of contracts and are hence entitled to this protection, the courts, however, liave lield to rules of strict con.stniction. A license to carry on any given form of husi»iess, for example, is not a contract within the meaning of the impairment prohibition. It does not give its holder a vested right. The Fourteenth Amendment, in addition to imposing upon the states the same limitation wliich applies to Congress with reference to the deprivation of j)roperty without due l)r()ce.ss of law, adds the provision that no .state shall make or enforce any law abridging the privileges and immunities of citizens of the United States, "nor deny to any person within Its jurisdiction the equal protection of the laws." * 'Hiis broad limitation upon the states has had, during the half century which has elapsed since its insertion in the constitution, an interesting hi.story. Its general intent wa.s jsuiiple and )>l;iin enough. 'Hip negro had been sr* free during the ('ivil War and the main purpose of tlie Fourteenth Amendment was to provide him with an effective guarantee against hostile discrimination in the future laws of the southern states. So clearly was this purpose apparent th.it not long after the adoption of the amendment the Supreme Court expressetl its doubt "whether any action by the state not directed by way of discrimination against the negroes as a class or on account of their race" would ever be held to be an infringement of its provisions.' Yet, strangely enough, the negro has managed to obtain during the past forty years scarcely a whiff of tliis solicitude. The Supreme Court presently resolved its own doubts bv ruling that "everyone everj-where," including corporations, was included among those entitled to the equal protection ' There is no provision In the federal constitution proliibiting Congress from passing any law whieh impairs the obligation of a contract. The prohibition applies only to the .states. I'Jfef ^' ^^'^''^' ^^* ^'^"P'^o" 0/ the Fourteenth Amendment (Baltimore, ■ Slaughter House Case^t, 10 WaHaee. 36. THK FLACK OF THE STATF^i IN THK NATKjN 301) of tlip laws.* And lit onre the court's docket hcgiin to fill The flood up with the appeals of corporations aBainst alleged dis- '/'.'"JJ^"' rriiiunations on the part of variouH states, while the negro, crnor chooses to make it so. Happily there has been no considerable abuse of this discretion. \Mii!e these two obligations of interstate comity and interstate extradition are imposed upon the states by the federal constitution in express terms, there are others whicli, while not so expressed, may riglitly be regarded as of ((lual force To further the interests of the whole Union the states must provide the machinery for the election of senators and representatives ; they must place no obstacles in the way of national officers in the proper performance of tiioir duties; they must give loy.il .adherence in the spirit of the constitution and by the enlightened character of ihoir laws endeavor to promote the national prosperity. The pro- cedure iu interstate extradi- tion. Mandatory in form but dis- cretionary in fact. Tne general obliga- tions of states. CHAPTER XXVIII THE STATE CONSTITUTIONS The original state oon- Btitutions. Their relation to the colonial charters. '^r The basis of state government is the state constitution Each of the thirteen original states adopted a constitution before 1787 and thus was able to come into the Union fully organized. These constitutions had been adopted by the states in various ways, but in no case save that of ?Iassachusetts was one of the original state constitutions adopted by popular vote. In the other twelve states the ratifying action was taken by the legislature or by a con- vention called for the purpose. Virginia was the first to provide itself with a constitution (1776) and Massachusetts the last (1780). These state constitutions were the descendants of the old colonial charters. The earliest American settlements were founded by trading companies which were chartered by the crown and thus it was that Massachusetts and Virginia began their political history as chartered colonies. The charter of Massachusetts Bay, granted in 1628, provided for a frame of government constituted of a governor, various assistants, together with a "Great and General Court" or assembly of freemen. In 1691 this charter was revoked and a new one issued with various changes. This continued to be the basis of Massachusetts gov- ernment until it was replaced, after the Revolution, by the state constitution of 1780. This latter document took over bodily a large part of the charter, retaining not only much of the old nomenclature but many of the general provisions as w Jl.^ In Connecticut and Rhode Island other two colonies which had succeeded in retaining their ' The constitutional title of the Massachusetts logiislature, for example, is still •' The General Court.*; 404 .^fel^ THE STATE CONSTITUTIONS 405 charters down to the eve of the Revolution, these charters were transformed into state constitutions without any substantial change. The remaining ten colonies had no charters to perpetuate. Some had never received charters ; in others the charter had been revoked. These colonies had to devise new constitutions, but in so doing they followed the traditional Hnes. The adoption of the thirteen original constitutions established as a fundamental principle the distinction be- tween law-making power and constituent power, between ordinary and organic legislation, between statutes and constitutions.' Legislatures were set up to make the laws; but their powers in legislation were circumscribed by the terms of constitutions which no legislature could change. The state constitution became, prior to 1787, the supreme law of the state. To-day this distinction between the legislative power on the one hand and the constituent power on the other has become a commonplace of political sci^ncj. In the closing decades of the eighteenth century it was ^uite novel, although it cannot be said to have been wholly un- known. If this distinction between the organic and the ordinarj' laws of the state, the constitution and the statutes, did not exist at the close of the eighteenth century either in England or in the great countries of continental Europe, where did those who framed the constitutions of the thirteen original American states derive it ? It was one of the lessons which they drew from their own colonial history. Before the Revolution, as has been said, certain of the colonies had their charters from the crown. These charters contained The dis- tinction between "consti- tuent" and "law- making" power. Whence derived? ' On the various matters discussed in this chapter the following books will hp found useful : J. A. Jameson, A Treatise on Constitutional Conven- lioun; Their History, Powers and Modes of Proceeding (4th ed., N. Y., 1S^S7) ; W. F. Dodd, The Revision arid Amendment of State Constitutions (Baltimore, 1910) ; J. Q. Dealey, Growth of American State Constitutions (Boston, 1915) ; Roger Sherman Hoar, ConstittUional Conventions (Boston, 1917); C. Borgeaud, The Adoption and Amendment of Conslituliont in Europe and America (N. Y., 1896) : and C. S. Lobingier The Peofle'* Lnw (N. v., 1909). The constitutions of all the states are printed in F. \. Thorpe's Federal and State Constitutions (7 vols., Washington, 1909) and an Index Digest of State Constitutions was prepared for the New York t'onstitutional Convention (Albany, 1915). 40(3 THE GOVERNMENT OF THE UNITED STATES i; Freedom of tho states to make and change their con- stitutions. Common features in the earlier state con- stitutions. 1. The frame of govern- ment. 2. Separa- tion of powers. 3. Rill of rights. various provision.s rolutiuff to the government of the colonv withiu the hoimds of which the colonial assemblies had to do their work. The assemblies could make laws and regula- tions, but were restrained withiu the Umits laid down by charters which only the home government could change Ihe charter was, in a way, the constitution of each colony that had a charter; and the people valued it accordingly JVaturally enough, when the colonies became states, thev sought to establish some analogous form of security against the abuse of public authoritv. The power to make and to alter their own constitu- tions IS a power which belongs wholly to the states. The national constitution merely assumes the existence of this power and places various limitations upon it. Subject to these limitations the states are free to change their con- stitiitions at will and in any manner they choose. Each 8 a e decides or itself the procedure by which a new con- stitution shall be adopted or an old one amended. Of the thirteen original constitutions all but one have been sup- planted by new ones. Massachusetts alone retains its nrst constitution of 1780. Wlien the earliest state constitutions were adopted -lo two of them were in all n-spects alike, although there was a general similarity among them all. In each a scheme of state government was provided, consisting of a governor (with sometimes a lieutenant-governor), a legislature usually of two chambers, and a system of state courts. In a few there was a specific provision that the three departments of government executive, legislative, and judicial, should be kept dis met and hat no one of these should ever assume the functions which properly belonged to the others » The Massachusetts constitution of 1780, for example, set forth thi doctrme of divided powers in unan.bi^ous terms, rhis doctrine of separation of powers did not find its way wM kT] . * "^ ''"^^"^^ constitutions, but the state. which did not accept it at the outset became converts later on. wu f^^iT/ ^^"^ ?'^''''* "'^^'^ constitutions also included a bill of nghts, m other word:, a declaration of what the framers ' See above, pp. 47jf. THE STATE CONSTITUTIONS 407 of these documents believed to be the inalienable rights of men in geaeral and of citizens in particular. Such rights, for cxrtniplo, were the right to freedom of speech, to freedom of worship, to trial by jurj-, and to the privilege of the writ of habeas corpus ; the right to a speedy and public trial, and so on. These were not new rights, of course. They liad existed for centuries in England and had for the most part been fully recognized in the American colonies. But liore was an opportunity to place them beyond the power of future governors or legislatures to destroy. So they were enumerated in some of the original state constitutions and srradually found their way into all of them. In all American constitutions, whether national or state, the bill of rights is historically the most ancient and most intorosting feature. It is there that the intimate connection Ixtween American constitutional rights of to-day and the liai(!-won privileges of Englishmen in past centuries can be most clearly traced. The political dogmas, such as the right of the people to change their government, echo the thoorios of John Locke fnd the Puritan Revolution. These lulls of rights embody in each state constitution the (ssontials of civil liberty as the American people understand th(mi. Since 1780, when the last of the thirteen original states framod its original constitution, thirty-five other states have liccn admitted. In every case the framing of a satisfactory stato constitution has been a prerequisite of admission to ptatchood. No state has ever been admitted to the Union witliout a constitution. Congress decides whether this constitation is satisfactory; it may refuse admission upon this or any other ground, but having once admitted a state Consross has no further control over any action which the =tatc may take in revising or amending its constitution. Arizona, for example, was at first refused admission to the Union because its new constitution provided for the recall of judges by popular vote. This provision was omitted; Arizona was then allowed to come in, but no soone» «vas the now state government established than the objectionable provision was restored to the constitution * ' Soe also above, p. 394. Historical signifi- cance of the bill of righta. Later state constitu- tions. Their charac- teristics. The tendency to put too many things in state con- stitutions. Baneful effects of this policy. 408 THE GOVERNMENT OF THE UNITED STATES In ad,.ition to provisions respecting the frame of eovern- ment and a declaration of rights, American state con- stitutions contam many paragraphs relating to a wide ranee of miscellaneous matters such as the militia, taxation expenditure and debt, impeachment, local government' education and the methods whei.by amendments may be made, ^\henever, during the last half-century a new state constitution has been framed by any state, or an old one revised many new provisions dealing with matters of administrative detail have been put in. State constitutions therefore, have steadily grown to be longer documents' every one of them is now far more exhaustive than the constitution of the United States. Some of them have become veritable codes of law. The tendency is to put more things m the constitution and to leave fewer things for the S t^f 'fV ''' "''^ ^^'' ^''' «^ ^" *he .tate constitu! t ions, that of \ irginia, for example, contained less than fifteen hundred words ; the present constitution of that state runs to more than thirty thousand. Oklahoma, to take another example, i.s not a state which has particularly complicated problems of government, yet its constitution contains more than fifty thousand words, which is the record for prolixity rhis practice of crowding a multitude of detailed matters into the state constitutions has br unfortunate in its results. It has multiplied the opportunities for litigation and has tended to give a legalistic and technical tone to discussions of social policy. Details, when placed in the cons itution, shackle the hands of bolii legislators ana nSl" 7^ '"«'-\^«lr'"°"-' ^ constitution the more quickly it loses touch with the social and economic needs of a rapidly growing community. The federal constitution has been a marvel of flexibility because its provisions are broad and general. Its framers wore wise enough to leave it silent on all matters which could be trusted to work them- selves out aright in the process of time. The makers of state constitutions, during the past fifty years, have not been so sagacious. They have too often fastened upon future generations the prejudices and whims of the moment. 1 here are two method., by which a state constitution may be prepared. The work of drafting it may be assumed by tfS3M i^^Si^^'-l^ vl'^k^u.-;-^^^' THE STATE CONSTITUTIONS 409 a • 1 the legislature. That plan was followed by some of the thir- teen original states. To-day, however, the other method, namely, that of having the constitution framed by a conven- tion chosen for that purpose is almost invariably followed. This body, the constitutional convention, is a distinctively American institution. Its members, usually called delegates, are elected by the people. The most common plan is to provide that some shall be chosen at large by the voters of the entire state, while others, the greater number, shall be elected by districts. Nominations are made in such manner as the state laws provde, but the usual plan nowauays is by a primary election. The ballots in some cases bear no party designations, and that is the proper procedure to follow, for the questions with which a constitutional con- vention has to deal are not, in the main, party questions. Members of a constitutional convention are usually paid for their services. Ill due course the delegates assemble in convention at the state capitol, elect their own presiding officer, appoint their committees, and proceed to the only business of the convention, which is that of preparing the draft of a new constitution or suggesting amendments to the existing one. A few state constitutions provide that a convention must be called at stated intervals, as for example every twenty years ; but most of them make no such stipu- lation and a convention is only called when either the legis- lature, or the people, or both of them, decide to call one. These conventions are usually large bodies, containing from eighty to four hundred delegates. The superficial resemblai.ces between a constitutional convcaition and a legislature are so numerous that the fundamental differences between the two are apt to be overlooked. A legislature is avowedly a partisan body ; its members are divided into two well-defined party groups, each committed to the carrying-out of a party programme. In a constitutional convention, on the other hand, party lines are not so sharply drawn. Compromises are more frequent, for the constitutional convention is above all things a deliberative body. Of itself it can take no final action. All that it prepares must go to the people for rati- Methods or fram- ini! state constitu- tions. The constitu- tional conven- tion. Conven- tions and legisla- tures compared. Proceduro of consti- tutional rftnven- tious. Com- luittees. Comniittot of tlio whole. 410 THE GOViiilNMENT OF THE UNITED STATES ficatiou.' Compared with a legisluturo the u .mber of mat- ters with which a constitutional convention has to deal are relatively few and they touch the fundamentals of govemmt-nt. Hi-nco a full and free discussion on every subject is not only more practicable but more urgently desirable in the latter. The rules of a legislature are designed to expedite business; those of a constitutional convention aim rather to afford an opportunity for careful consideration without an undue prolongation of sessions. ^Vhen a constitutional convention assembles it is practi- cally supreme with reference both to its procedure and to the scope of its work. As a rule, however, any delegate is allowed to present written proposals as tc what the new constitution should contain or what amendments should be made to one already in e.xistcnce. ITiese proposals are referred to committees of the convention for consideration and report .2 Then tliey come back to the whole body to be debated and voted upon. As a rule, also, the debate upon matters which are reported l)y committees takes plr.ce in committoe of the whole. This parliamentary device, which, as has already been indicated, is used by Congress, permits informal discussion under a general relaxation of the regular rules. In committee of the whole there are no roll-calls, a member may speak as often or as long as he pleases, and when decisions are reached they are only provisional. They must be ratified by the convention in regular session before becoming effective. The obvious defect of the plan, of course, is its tendency to waste time. When any large body gives its members the privilege of unlimited debate, or anything approaching it, the days are likely to slip by without due progress being made. ' In only ono state of the Union duri.ig recent j'oars has the work of a consututional convention been put into effect without popular ratification. ' The committees are usually appointed by the presiding officer of the convention. The Michigan convention of 1907 had 28 standing com- '^*i*e polls becomes a part of the con- stitution. Either method allows the submission of several amendments on the same ballot, and almost everv year, in many states, one or more amendments are .submitted.' Within Its sphere the state con.stitutiou is .supreme. It binds the executive, legislative, and judirial branches of state government. The state legislature, in the exercise o. Its law-making authority, must respect all the limitations placed upon it by the state constitution. In case of con- troversy the high^.t court of the state will decide whether the legislative measure in question is or is not constitutional. As a matter of judicial practice the courts always assume that the legislature has a power until the contrary is shown. 1 his rule, it will be noticed, is just the reverse of that applied in interpreting the powers of the national government, i^ngrcss IS not df:eincd to por^sess any power unless an actual ' See also below, pp. 505 ff. THE STATE CONSTITUTIONS 413 grant of that power can be demonstrated. If there be any reasonable doubt as to whether a measure passed by a state legislature is unconstitutional, the measure will be upheld. Strictly speaking, then, the only way in which a state ligislature can determine whether any law is constitutional or not is to pass it and see. There is, however, a plan l)y wliicli some states have managed to obtain authoritative opinions in advance, and thus to guard against the passing of laws which would be thrown overboard by the courts. This is known as the plan of obtaining advisory judicial opinions. AVhere it is in operation the governor or either house of the legislature may call upon the highest court of the state for an opinion upon any constitutional question which ariseb in connection with a pending legislative enact- ment. But these opinions, when given by the judges, are not binding upon them in case the same point should Inter arise in a suit at law. Tliey are merely advisory, and being arrived at without hearing the arguments on both sides can never be regarded as final. On the other hand they are usually safe enough to follow.* Year by year it becomes increasingly difficult to keep all the laws of a state within the bounds of constitutionality. This is because state constitutions are steadily narrowing the legislature's freedom. Things which a half-century ago were left to the legislators are nowadays being dealt with I)y constitutional provision. This, no doubt, is a sign of (leelining public confidence in the wisdom and integrity of legislatures. The constitutional convention is becoming not only the ultimate but the proximate law-making body of the s'tate, dealing with all fundamental questions and with a great many which are not fundamental. Conventions, how- ever, meet infrequently, and in the interim the legislature must provide whatever laws are needed. The demand for social and industrial reform presses the legislature on one side; the limitations of the state constitution restrain it on the other. Between the two the plight of legisla- tors is often embarrassing. To escape it they sometimes enact laws which they believe to be unconstitutional, leav- ing the courts to take the odium of destroying their work. ' See also above, pp. 367-.368. Deter- niininx in advanoe the proli- able const itti- tionulity of laws. AdviDory judicial opinioiu. The increase of un- constitu- tional state laws. 414 THE GOVERNMENT OF THE UNITED STATES One reasoa for it. During the first half of the nineteenth century state laws were not often declared to be in contravention of state constitutions. The general quaUty of legislation was good, and in all doubtful cases the courts were disposed to give the li'gislature the benefit of the doubt. But now that consti- tutions have become so prolix and intricate, now that laws are passed in such hirge numbers that circumspection by the legislatures is no longer possible, the courts have quite properly become loss lenient. Public opinion, or at least the loose-thinking portion of it, is disposed to brand the courts as despotic and to assail them as obstacles in the way of social progress because they fail to perform the impossible task of reconciling exact constitutional requirements with slipshod legislation. The real fault is with the making of the constitution, or the laws, or both. r^BoenF w CHAPTER XXIX THE STATE LEGISLATURE The legislature is the paramount branch of American «tate government. It makes the state laws, controls the appropriations, and determines in considerable measure the functions which the executive authorities perform. Constitutional limitations in steadily increasing number liavo everywhere circumscribed its authority ; the use of the initiative and referendum in many of the states has further impaired its supremacy; while the development of mde- pciuloiit administrative officials and boards has taken from it many of its regulatory functions. Yet the legislatures muintuins, on the whole, its position as the dominating liranch of state government. The organization of the legislature differs from state to Mate, but in essentials it is everywhere the same. In every state it is made up of two elective chambers with substan- tially concurrent law-making powers. Tlio upper chamber, calh'.l the Senate, is the smaller of the two. Its members are elected from senatorial districts and their term of oliie.. is either two or four years, except in New Jersey, where it is three vears. Massachusetts abolished annual elections in 1918. The lower chamber, which is variously known as the House of Representatives, or Assembly, or House of Delegates, is a much larger body ; its members are chosen from smaller districts and the term of office is slu.rtc r, as a rule, being in most states only one or two years. 'Th. smallest stat* S«>nate is that of Delaware with 17 members ; tl,.. largest is that of Minnesota, with 67. The smallest lo^*"", .^t*^"!^" are those of Arizona and Delaware, with 35 mMnbers^acJi ; the largest is that of New Hampshire, with 404. In New York t^he senate ^^ ol ^icm- b«s a.id the Assembly LW; in Massachusetts the figures are 40 and 2^ . in Illinois. 51 and 153 ; in PenoBylvania. 50 and 201. A table showing the 415 Important r61e of state leg- islatures in American govern- ment. General organiza- tion of the legis- lature. 416 THE GOVERNMENT OF THE UNITED STATES Why the bicameral system ha» beeu adopted. Is it necessary to-day ? Except in Now England the unit of representation is almost always the county, or group of counties, or portion of a county. In New England it is the town or group of towns. These units are rearranged from time to time, usually after each decennial census, with a view to making each of them approximately equal in population. This redistricting gives an opportunity for gerrymandering which the majority party in the legislature almost invariably seizes to its own advan- tage.' Why have all the states adopted this double-chamber or bicameral system? To some extent the reason may be found in certain reputed merits of the plan, but the influence of the national system has also been important. Only a few of the thirteen colonies had even the semblance of a bicameral system, and in tlieir original constitutions after the Revolution some of the states made no provision for an upper chamber. But when a two-house Congress was pro- vided in the frame of national government, the example was naturally a stimulus to the states. Those states which began with one chamber replaced it in due course with two, while new states, as they were formed after 1787, established bicameral legislatures one after another. There also de- veloped in the public mind, moreover, a belief in the use- fulness of a divided legislature as a security against hasty, indiscreet, secret, i " ecessary, or partisan action, as a pro- tection for the jf minorities, and as a part of the system of checi , balances. These are the r' .ds upon which- the continuance of the bicameral system is commonly justified to-day, but they are not so convincing as they were a century ago. The danger of hasty or secret action, under modern rules of legislative procedure, with the printing of proposed measures, with committee hearings open to all, with three readings of every membership, term, frequency of ses.sions, and limit of sessions in all the states and territories is printed in Bulletin No. 9 of the Massachusetts Constitutional Convention (1917), pp. 7-8. ' Occasionally, as in New .Jersey, each county is equally represented in the upper cham>>er. no matter what its population may he. In Cnnnectieut the lower chamber represents the towns im'speetive of their population. Not a few states have so arranged the basis of representation that the rural districts get more than their due share of legislators. rS7^^ TTCTZiTS^ TvTSTnr^E?' :lIClM..,,lfS THE STATE LEGISLATURE 417 measure in the legislature, with ample opportunity for reconsideration, and with a governor's veto power in the background — with all these safeguards the opportunities for slipping measures upon the statute book without pub- licity are very few. Nor does the theorj' that one chamber will exercise a wholesome check upon the other always work out satisfactorily when put to the test of actual practice. Both chambers are made up of party men. If the same political party controls a majority in both, the check imposed by one House upon the other is rarely of much practical value ; if different political parties control the two chambers, the checking or negativing of each other's acts often becomes so persistent that deadlocks ensue and all progress with important measures of legislation is impeded. There was a time when the state Senate, chosen by a different electoral process or with a property qualification for membership, might be said to represent an aristocracy of wealth or in- tellect, while the lower chamber reflected the interests of the masses. To-day there is no basis for any such distinction. Botli Houses are everywhere chosen by t^- same voters, in sul)stantially the same way, and with relatively unimportant differences as to the qualifications of their members. The only distinction between state senators and representatives nowadays is that the former are usually chosen by larger districts, for a longer term ; they enjoy a somewhat greater l)restige and in the natural course of events are men of srreater political experience. The arguments for the bicameral system in state govern- its meiit are not, therefore, of preponderatiiig weight. On the "^^^^^ otlier hand, the division of legislative authority has some serious defects. It increases the cost and the complexity of Ihe legislative machinery ; it facilitates and even actively encourages the making of laws by a process of compromise, bur«iaining, and log-rolling; it compels all legislative pro- posals to follow a circuitous route on their way to final enactment ; it provides countless opportunities for obstruc- tion and delay ; and it makes easy the shifting of respon- sibility for unpopular legislation. Finally, it has proved a barrier to the planning of the laws. There may be some degr( (• of leadership and planning in each House, but rarely 2b ' : ; r 418 THE GOVERNMENT OF THE UNITED STATES Methods of nomi- natinR state leids- laturcs. The ciuiriis, oDnven- tion. unit primary. is there any coordination of the work in both chambers un- less some dominating governor oversteps the strict limits of his own functions to provide it. The bicameral system is continued, in spite of itr '"fects, because the country has become thoroughly habituated to it and because most peo- ple are inclined to accept, without analysis of their merits, the formulas of government which have come down from past generations. The same system in municipal gov- ernment was retuined for many decades after its short- comings had been demonstrated beyond all controversy. Whether the states conJ. get along as well, or better, with single-chambered legislatures is a question which cannot be answered by a discussion of probabilities, but only by actual test. Some day a state with radical inclinations will take the step, just as a few courageous cities took the lead in breaking away from the bicameral obsession in municipal government.* Candidates for election to the legislature are nominated in the various states either by a caucus, a convention, or a primary. The caucus method can exist only where the district is so small that the voters of a party can be brought together in a single meeting. But even in small districts this plan of nomination has largely gone out of use. The convention, or body of delegates chosen by caucuses in vari- ous parts of the district, still retains its hold in some states, chiefly in the South. The primary has become the most common agency of nomination.* Candidates are usually required to secure the signatures of a small number of voters in order to have their names placed upon the primarj' ballot, and at this primary the voters of each political party determine which of the various aspirants shall stand at the election as the authorized party candidate. In some cases there is, at the primarj', a separate l)allot for each party; in others, all the names are in different columns on the same ballot. The direct primary, as a method of nominating officials ' In two states, Oregon and Kansas, the adoption of the single-cham- bered plan has litvii seriixisly cunsidfrfd. In I he former the question was submitted to the voters in the form of a proposed amendment to the state oonsititution fl012), but was rejected by them. ' C. E. Merriam, Primary Elections (Chicago, 1912), ffP srr-sr THE STATE LEGISLATURE 419 Has it achieved its and representatives, was welcomed as a device which would Purpose help to raise the standard of candidacy at elections. The l'^^^ old convention, it was said, encouraged manipulation and trickery. It allowed political bosses to put forward candi- dates who would never be selected by the rank and file of tlu' voters on their own initiative. The way to remedy that situation, reformers urged, was to place directly in the hands of tlu> people the nomination as well as the election of their n prescntatives. Tliis would give a fair chance to men of uliility and independence, to men who were not professional politicians, to men who could appeal for nomination upon tlieir own merits and not merely upon grounds of party regularity. Tlie new method of nomination has now had a fair trial. Has it proved superior to the convention as a means of securing capable legislators in the several states? On the purpose? wliole, perhaps it has, although there is no certainty in that direction. At its best the convention was capable of mak- ing excellent selections, the fruit of careful deliberation. The primary has not often shown itself able to reach as high a standard. On the other hand the convention at its worst could strike occasionally a plane of arrogance, trickery, and corruption to which a primary rarely if ever descends. In a word, the primary seems to afford protection against the worst fault of the convention, which was the frequent selection of incapable and corrupt candidates at the behest of a few political leaders. But it has not, in twenty years or more of experience, demonstrated that it can achieve positive results of a measurably satisfactory character. It lias not rid the states of boss domination ; it has increased the expense which every candidate must incur, and it gives a marked advantage to the man whose name is well known to tlie voters, whether he be a professional politician or not. To say that the primary secures on the average somewhat liettcr results than the old convention may be stating the truth, but it is not high praise. State elections are by secret ballot, although voting The ruiaiiines are sometimes used. The polling is in some ^f^J^'Je cases held upon the same date as the congressional and legislators presidential elections ; in others on a different date. Each Pay and privi- leges of state leginla- tors. Frequency and length of legislative sessions. 420 THE GOVERNMENT OF THE UNITED OTATES state, under the constitutional limitations already set forth, determines wlio may vote for members of its own legislature. A plurality of votes is ordinarily sufficient to elect. Only one state, Illinois, provides for minority representation.' Many of the states have laws for the prevention of corrupt practices at elections, and in some cases these laws impose strict limitations upon the amounts which candidates may spend. Contributions to campaign funds must also, as a rule, be made public. Members of state legislatures are usually paid an annual salary, wliich varies from five hundred to fifteen hundred dollars. In some of the states no annual salary is fixed, but a per diem rate of from five to ten dollars is paid while the session lasts. Usually, too, they are given an allowance for expenses in travelling to and from the state capital. Their privileges of free speech and their immunity from arrest or civil process are sub'^tantially the same as those given to members of Congress. In most states the legislature holds its regular sessions every two years. In only a few are annual sessions regularly convened.- These sessions, whether biennial or annual, ordinarily continue for two months or more with brief adjournments from time to time. In many states the constitution provides that the legislative session may not continue during more than a prescribed number of days.' In others the same end is virtually achieved by a provision that the legislators shall be paid so much per day for so many days and no longer. Special sessions may be con- vened by the governor when necessary. ' niinoi.s is divided into 51 districts, each of which elects three repre- sentatives. Every voter is allowed three votes, all of which he may give to one candidate, or one to each, or two to one and one to another, as he chooses. This permits the minority to elect one of the three representa- tives in the district. ' These are Georfria. Massaiihusetts, New Jersey, New York, Rhode Island, and South Carolina. ' The limit ranpres from forty days in Oregon and Wyoming to ninety days in Maryland and Minnesota, and flv" months in Connecticut. In California the leLHshiture holds .a thirty-days sossion during which bilU are introduced. Then comes a recess of equal length during which the legislators discuss these measures with the organizations and voters of their respective districts. Following this interval the legislature resumes, with no limit upon the duration of its session. "■MS' •: i/t 11.^1 mr ^jmn^ W9! ^r^TP i THE STATE LEGISLi^.TURE 421 The powers of state legislatures are broader and more important than the casual student of American government is apt to realize.' They comprise every field of govern- mental activity not restricted by the federal constitution and hy the constitution of the state itself. Those limitations upon the states which are provided by the federal constitu- tion liave already been mentioned. Tliose which the state constitutions impose relate not only to the rights of the citizen, but to many other matters on which the limitations (litTcr from state to state. A few examples will illustrate the general character of these prohilntions. Legislatures are sometimes forbidden by the terms of their own state constitutions to grant special charters to municipalities or to private corporations, or to authorize public borrowing beyond a fixed point, or to impose property ((ualifications for voting, or to grant public money u.^ secta- rian institutions of education, or to give perpetual franchises to public service corporations, or to lend the state's credit to private enterprises, or to change county seats without the consent of the voters concerned, or to reduce the salaries of judges, or to make discriminations in the tax laws, and so forth. In addition to these actual prohibitions the state constitutions often prescribe in detail the way in which many things shall be done and even fix the salaries to be paid to state officials. The tendency is to increase the num- iior and extent of these restrictive provisions, so that the state constitutions have become much more than codes of fui\(lamental law. Yot despite its narrowing sphere of action the work of the state legislature comes much nearer than that of Congress to the daily routine of the citizen. The state laws, for (xample, provide for the proper registration of a child's liirtli ; they determine the qualifications of the physician wlu) attends him during infancy ; they establish the schools in which he gets his education. \Vhen the child becomes a man, the state law? regulate the profession or the trade he enters ; the state laws enable him to marrv, to accumulate Powers nf state legislatures. Limita- tions thereon : 1. in the federal conati- tutioD. 2. in the state constitu- tion. The L. field which remains within these limits. ad ' For a full survey of these pov,eiJ, see P. S. Reinsch, American Legis- kturi.t ami Legiglative Methods (N. Y., 1907), especially chs. iv-x ; and A. N. Hokombe, Slate Government in the United Slates (N. Y., 1916), ch. v. 422 TuE (}OVTRNMENT OF THE UNITED STATES LefKs- lative procedure. Modelid on that of Congress. The pre- siding officers of state legis- latures. property, to vote, to hold office; the state laws provide for the issuance of a burial permit when he dies and regu- late the transmission of liis property to his heirs. From his birth to his death the state laws, t'rough the agency of subordinate municipal authorities, proviae tlie citizen with police protection, with redress for wrongs done to him, with highways and sanitation, with libraries and recreation facil- ities. The state laws determine most of the taxes which he pays ; they impose penalties upon him when he does wrong. Tlie state laws reach out into the shops and factories, regu- lating the hours and conditions of labor. Tliey provide for the care of the poor, tlie insane, and the delinquents of all ages. \Vhere federal statutes touch the citizen once, the state laws influence his actions a hundred times. Tlie average citizen docs not realize all this because he has become so completely habituated to it. In the exercise of its lawmaking function throughout this broad expanse of jurisdiction each state legi&lature deter- mines its own forms and rules of procedure. Practically all of them, however, have followed tlie i-neral example of Congress, so that legislative procedure all the states is not far from uniform. This applies to tne presiding officer of each House, the system of committees, the methods by which the two chambers take action upon pending measures, and the general rules of debate. As for the presiding officers, the influence of the federal analogy is cverj'where apparent. Wlien a state has a lieutenant-governor, he usually (but not always) presides over the state Senate just as the Vice-President of the United States is the presiding officer in the upper house of Congress. Otherwise the state Senate chooses its own chairman, usually calling him the president of the Senate, llie lower chamber of the state legislature chooses its own Speaker. In practice, the choice is first determined by a caucus of the members of that political party which controls a majority in the House and is then formally ratified by the chamber as a whole, lliis Speaker has the usual functions of a presidi;ig olTieer, including in most legislatures the duty of appointing all members of committees from his own chamber. Each House of a state legislature also chooses -v.: ^':t^rn.^-iSiBasm¥ri^BSi^' THE STATE LEGISLATUM! 423 Legis- lative committees. its other officers, chaplain, clerk, sergefnt-at-arms, and messengers. Much of the preliminary work of state legislation ia per- formed by committees, and every legislature maintains a considerable number of these subordinate bodies. There may be separate committees for each chamber, appointed in each case by the presiding officer, or there may be joint committees made up of members from both chambers. In size the committees var>', lunning from as few as five to as many as twenty-one members or more, llie committees are also of varying degrees of importance. Some of them, such as the committees on finance, or ways and means, on nilos, on the judiciary, on labor and industries, on cities, on education, on public institutions, and on public utilities may have a great deal to do. Others, such as those on printing, on fisheries and game, on pensions, and on federal relations may have very little. In addition to tliese regular or standing committees there are special committees which arc appointed whenever the occasio i arises. Ever>' measure introduced into either House of the legis- Their lature irt forthwith referred to the appropriate committee, '""ct'""'- 'Inhere, in regular order, hearings are held, and a* those hear- inj^s both the supporters and opponents of the measure are entitled to .appear. In some states, Massachusetts included, the rules require that a hearing shall be adver- tised upon every measure, and that before a certain date pvor\' matter referred to a committee shall be reported back, favorably or otherwise, to the legislature. In some other states such hearings are not held except upon important matters, or when asked for, and committees are not under any obligation to report upon every proposal that is turned over to them. Hence in some state legislatures, as also in Congress, matters may die in committee; that is, may be loft on the committee's files without any action until the loirislative session ends. Tlie committee system in its actual operation among the sevoral states has displayed great merits and equally grave •lofofts. Legislation without the aid of committees is practically impossible so long as legislatures retain their present size, for only by some such division of labor can the Merita and faults of the rommittee system in the state legislatures, Frequent disregard of com- mittee recommen- dations. Impor- tance of legisla- tive pro- cedure. 424 THE GOVERNMENT OF THE UNITED STATES huge grist of bills be given any consideration at all. Where the committees art intelligently constituted the committee system means that all measures are intrusted for preliminary consideration to those legislators who know most about them. Legislators who sit on the municipal committee of a state legislature, for example, inevitably learn a good deal about city problems and become after a while the legisla- ture's experts in that field. In principle, therefore, the committee system is sound. 'ITie trouble is that too often the committees are not properly constituted, but are made up by a process of political trading. Their members fre- quently have neither interest in the measures before the committees nor desire to learn much about them. Another feature which is destructive of efficient committee work is the too frequent tendency of the legislature to dis- regard the reports of its committees and by its own votes to reject, without adequate reason, the decisions which committees have arrived at after prolonged discussion. It is true '.at in most legislatures the recommendation of a committee, particularly if it is made unanimously, carries considerable weight ; but nowhere is there any certainty that such recommendation will be accepted. Traditions and practice in this matter differ greatly among the states, but in general it can be said that the unconcern with which legislatures set aside the work of their own committees is a serious weakness in the American system of lawmaking. 'ITie details of legislative procedure are too complicated to be set forth in brief form without the risk of serious inaccuracy.* Yet this is a branch of th« subject which cannot be entirely omitted from any disc . on of American government, however general. The spirit and form of the laws are determined in some measure at least by the system of legislative procedure. The quality of the statute' book depends thereon. Simplicity of procedure is essential to the making of good laws. On the other hand a certain amount of intricacy and formality is necessary to insure that laws ^-mll not be made or unmade hastily, or in obedi- ence to the dictates of prejudice and excitement. American ' A full description may be founJ in H. W. Dodds, Procedure in Slatt Legislatures (Philadelphia, 1918). ISBT THE STATE LEGISLATURE 425 Icjiislativp procedure has been severely critioised because of its co!nplexity, and it is indeed over-complex ; but lawmaking is a serious business and must be carried on under adequate safeguards. It is wiser to tolerate a system which slows down the process of legislation than to incur the danger of letting unjust or untimely measures pass too easily. Even with the restraint of cumbrous procedure the output of legislation is prodigious. What would it be if the barriers were cut away ? Let a single state serve to illustrate the successive steps which must be taken in the process of legislation from the introduction of a measure to its final enactment. Massa- clmsetts fum'.shes un appropriate example for this purpose, because its rules of legislative procedure have long since l)ocome firmly established and because impartial students of the subject have commended the Massachusetts system of lawmaking as worthy to serve as a model elsewhere. "ITie General Court of Massachusetts," Professor Reinsch declares, " is in all respects nearest the people and the most responsive to public opinion of any American legislature."^ As between Massachusetts and the other states there is no {^reat difference in the printed rules of legislative pro- cedure ; it is in the interpretation and application of the rules that the difference arises. In Massachusetts the rules are followed with scrupulous fidelity ; in many of the others they are honored by frequent suspension or evasion. Even wlicn the state constitution requires that bills shall be read verbatim before final ])assage, or passed through their suc- cessive stages on different days, these requirements are often evaded by a merely fictitious compliance which is set down upon the official records as a compliance in fact. In these states no one can get an exact idea of the actual procedure by merely reading the rules. In Massachusetts the first step in the making of a law is the presenting of a petition accompanied by a bill.' Any citizen may present a petition; that is his constitutional ' F. S. Keinsch, American LegUlaturea and LegUlalive Mtihods (N. Y., 1U07), p. 174. ' In nearly all the other states no petition is necessary, the bill itself being sufficient. How a state legis- latui« enacts a law. Variety and uni- formity in such matters. 1. The intro- duction of a bOl. 426 THi: r,(3VERNM T OF THE UNITED STATES Pro^-i- ■ion !or hUl- drafting bj experts. U 'UA on tlie intro- ductim of }m». ■2. The first reading and the reference to a committee. priviir^gf. OiU' sign ture i.-* *• <.ug! vjetl-ije *he hill properly drafted is not so si; l^, •, m v^• *r, hence a gf^at many moasurfs arc presentet; i.. un.aiiily form, with {'o- vwions enuit'ly expressed, ambtiiuous in wor«iin^, and otl «r- »i»e d»'fectivc. The trouble i- that w a^sunK■ the r .- petpnce of any cit'' of mixh^rii .-uciety is grn- surdit TJio proper rnfting i>f a w requi' d *>» ! In ii cognition o^ tli. ; fac some i zisL h provision for luc mninte ''(!reuus, with ox,'ort '? inl- nioasures whenevt r(^ , any additional d; or .iit It is only by .'ioni sich '< ppareii tho h' ncle> :.sk •. .,i ,^ si-tenci( and 'nbiguitif's uf b Us b\ aninteurs. The Massacr wet 'lii- reqi^ cither the Senuu or I ise of IV each pension f tr -^gisiauoii 'h Thi-^ d< f's not mean that thi some nvv of vhoh ■ aid t latior nctiv ■(•ur- )n8 ' intri- "nop. ladc no( uraf, islalors t r be desired. legit,i;iture^ can be IIS out all the incon- have been prepared it is n rented >use, •fore n iider •te /. LjUeves the petition; ■ tha petitions are pre- 1»«' in roduced in eitlier etitioner, but must be filed hey can be introduced only ules, and this requires a four-fifths \>* a prnctical matter all such re- nil' go first to the Comui Uc inendMtions, in most cases, the Bili of tne '^rwi.- Hpiest is ur d or d. a WHicii bill.- ire introdui ivy are read by title only. 'i ereupon the prt>siding office: icfers eacli bill to an appro- pr ite coin ttec. Ordinarily there is no doubt a.> to what commiUee nld have a particular measure. Bills relating •■> taxnt; ) to the committee on taxation ; tho-^e reUmng ' = • n^ty :-i is to the committee on cities. Those affecting T ' W to the committee on lie judiciary ; those relat- i. > jt to the committee on labor and industry. But v.l> THE STATE LE(JI8LATURK 427 mad W first r assign a 'rivos nccasionally a measure comes forward dealing with some iiatto; which seems to be on the bord • line between the Juri^ liction of two different committe* Tak tlio subject (if workmen's compensation, for mst:.i •>. Siiould a bill • lating to that matter go to the ''ommutee on labor and i ustry, or to the committee lusurani-e, or to the (omiiiitteeon social welfare? In such cases the assignment madi by the presiding officer may be discufssed bv the ors and possibly uvernded. Or a compromise may be • referring the bill to two committees sitting jointly. appens after u bill reaches the committee? Tlie •|) is to place it on the committee's calendar and to 1 date for a public heurin upon it. Wlien that date the heariiiii is held, \dvocates and opponents of the measure appear and argue for or against it. Sometimes the h'^aring may take an lour or less; sometimes it may ont lie all day or for septal days. When both sides have had ' if -ay, the hearing is closed ; the committee goes into VI -ession and decides ^v'lcther it will report favora- mfavorably. Or the c inmittee may por^tpone this intil some convenient time several days or even T the hearing is over. In Massachusetts each 1. 1;, -ommittee must report before a given date upon over r ref(>rred to it. In Congress, it will be recalled, tlien i- no such requirement. \Mien a committee sends back a bill with its report, favorable or unfavorable, it is listed upon tlu calendar of the House or the Senate as the case may be, and in due course comes before tlie whole chamber for action. There the committee's report may be accepted or rejected ; in the former case the measure is advanced to its next stage. The chiof debate takes place at this point, namely, the second a. The committee hearing and report. reading. If not defeated at that pohif,it is t^' ralcndar for a third r.-'"^!ng, being referred a committee on Bills in the Tliird Rea^ inspection and for any verbal changes tha Wlu 11 rrached again on the calendar, a fu, may tiikif: pkce, although that is not c" ill!: passe I ite *hird reading, it is ordered to i then forwarded to the other chamber. 1 the 4. The commit- tco's report presented. 5. Seconrt r<>adinE imtjKBCSm. 428 THE GOVERNMENT OF THE UNITED STATES Lawmaking a tedious process. Urgent measures. The intricate proced- ure does not guar- antee the quality of legis- lation. through a similar course of three readings. If the other chamber makes no amendments, the measure is finally enacted and goes to the governor for his signature. But any amendment, however unimportant, brings the bill back to the original chamber fi r concurrence and in case the two Houses fail to agree, a committee of conference, representing both chambers, is named to effect a compromise if possible. If the committee fails to reach a satisfactory compromise, the bill is dead, but relatively few measures perish in this way. It will bo seen, therefore, that the making of a stj^te law is a long process.' It is even longer than the foregoing outUnc would indicate, because reconsideration may be moved at almost any stage. Important bills often take several weeks and even months in going through their various stages. Emergency measur s can be rushed through in a few days, but only under suspousion of the rules, and this requires unanimous consent. Notwithstanding all this formality in the way of committee hearings, reports, three readings in each chamber, and fre- quent motions to reconsider, the fact remains that many measures go through the legislature without being even read by any consideral)lo portion of the members. The elaborate mechanism of legislation is depended upon to accomplish wliat can never be secured without patient study and care on the part of the legislators themselves. Tlie result is seer in the all-too-common enactment of laws which contain "jokers"; or provisions which on careful scrutiny are not what they appear to be at the first glance. Provisions in- consistent witli each other, and even ludicrous absurdities, are sometimes found in bills after they have passed through all their stages. Measures arc occasionally passed without enacting clauses or without some other indispensable feature. Tliese mishaps are not peculiar to any one state. They are common in them all.^ The reason is plain enough. ' The reader who is interested in the scope and methods of lawmaking in the United States may be referred to Chester Lloyd Jones, StatiUe Law Makinq (Boston, 1912). ' A few examples ; " If any stallion e.scape from his owner by aceidont, he shall be liable for all damages, but shall not be liable to be lined as alwve provided." "No one shall carry any dangerous weapon upon the public highway! THE STATE LEGISLATURE 429 It is everybody's business to see that defects are weeded out of a bill during the time it is under consideration. This nit-ans that it is nobody's business. Prolonged and varied formalities are substituted for individual scrutiny. There is too much of the one, too little of the other. American state legislation has not set a high standard Reaaoiu either in form or in substance. ITie popular tendency to 1^^^*, look upon law as the remedy for all political, social, and quality economic evils is one fundamental reason for this. Legis- °,^** lation in America has been called upon to perform functions which in all other countries are turned over to administra- tive officials with discretionary power. The laws which are annually enacted by the legislature of Massachusetts fill two large volumes ; the forty-eight states of the Union produce nearly thirty thousand pages of statutes every session. A large part of this annual production is rushed through by the use of rapid-fi'-e methods in the closing days of legislative sessions. Small wonder it is that under such conditions a sizable portion of it should prove to be of in- ferior quality. There are other reasons, too, why so many state laws prove unsatisfactory. The haphazard way in which bills are drafted, without attention to clearness or brevity, is responsible for a share of the trouble. The absence of recognized legislative leadership, due to the separation of executive and legislative organs, is another feature which has encouraged careless lawmaking. The attempt to make formalities of procedure take the place of personal alert- ness on the part of legislators has proved a failure. Over- production of laws, however, is the fundamental difficulty. Tlie legislative promoter or lobbyist who earns his living by buttonholing legislators in favor of one measure and against another, being paid in either case by interested pxcept for the purpose of killing a noxious animal, or a police officer in the discharge of his duty." "All carpets and equipment used in offices and sleeping rooms of hotels and lodging houses, including walls and ceiling, must be well plastered and kept in a clean and sanitary condition at all times." "Any seven persons, residents of the state, may organize a co-operative jsficiation with capital stock . . . provided however, that not more than uu> -t«uth of said capital stock shall be held by any one stockholder." Con- clusion. 430 THE GOVERNMENT OF THE UNITED STATES outside parties, has been a contributory factor to this orgy of lawmaking. The British parliament passes fewer laws for fifty million people each year than the Massachusetts legislature enacts for four million. Tliat is because in Great Britain matters of detail are left to the discretion of administrative authorities and are not allowed to cumber the law books. Every statute that passes a legislature affords a basis for future amendments, elaborations, or repeals. "Once begin the dance of legislation and you must struggle through its maises as best you can to its breathless end — if any end there be." ^ The social and economic system of the United States has become extraordinarily complex during the last half century. Tlu' task of adjusting legislation to it has become correspondingly difficult, requiring far greater caution, sagacity, and courage on the part of those who make the laws of the land, and also requiring more efficient machinery for lawmakinp^. Legislators have not, however, improved in quality dunii Woodrow Wilson, Congressional Government (N. Y., 1884), p. 297. IS' f B9BP!ff!V mm wwimm CHAPTER XXX THE GOVERNOR Every state of the Union recognizes in its scheme of ' ; the election is in all cases by secret ballot, and a plurality of votes is ordinarily sufficient to determine a choice. In a few states, however, a majority is required ; otherwise the choice is made by the legislature. Tlie elections everywhere are party contests ; but in states where one political party is largely in the majority the real struggle for tl e governorship takes place in the primarj'. Salaries of governors range from $2500 in Vermont to $12,000 in Illinois. All state constitutions make some provision for filling the governor's post in case it should become vacaiit during the term for which he was elected. Such vacancy may be hy reason of the governor's death or through his conviction and removal on impeachment. The constitutions of nearly all the states make provision that the governor and other civil officers shall be Hable to impeachment for crime or mis- conduct in office. Tlie lower house of the legislature, follow- ing the federal analogy, has the power to begin the impeach- ment proceedings ; the upper house as a rule hears and determines the issue. Occasionally, as in New York, the jus- > He is chosen by direct popular vote in all the states but one. The exception is Mississippi, where the choice is made indirectly by the people. THE GOVERNOR 433 tices of the highest state court sit with the upper chamber (luring the trial. A verdict of conviction, which usually requires a two-thirds vote, ousts the governor from office and may disqualify him from holding in the future any civil ofTicc in the state's service. As a matter of history very few governors have been brought to book in this way and convictions resulted in only about half these cases. In a few states the governor may be removed from office Removal by recall. Tliis involves, as will be explained a little later, ^^ "**^* flic presenting of a petition bearing a designated number of signatures with the request that the matter of removing the j:()V(>rnor from office before the expiring of his full torm 1)0 placed before the voters on the ballot at an election. Reasons, as a rule, must be given in the petition for a governor's recall, but they need not amount to allegations of miscnduct such as would be required for an impeach- ment. Thus fur no governor has been removed by means of the recall procedure. When a governor is convicted on impeachment, or dies in How a office, he is succeeded, according to the provisions made in ^^^^^ more than two-thirds of the states, by the lieutenant-gov- govemor- ornor. Tliis official is ordinarily chosen for the same term as ^^" the governor and by the same process of popular election. His main function, apart from that of being heir-apparent, is to preside at sessions of the upper branch of the state Icsiislature and in a few states at meetings of the governor's oouncil. Failing the lieutenant-governor (or in states where there is no such officer), the succession usually passes to some designated state official or to the Speaker of the lower chamber, as the constitution may provide. If a governor is removed by means of the recall, however, this order of succession does not go into effect. His successor is elected by the people. The powers of the governor are for the most part executive powers.' The theory of American state government is that the governor has no legislative functions, and from a reading ' J. H. Fialey and J. F. Sanderson, The American Executive and Execu- tive Methods (N. Y., 1908) ; A. N. Holeombe, State Government in the {'iiiUd Slates (N. Y., 1916), ch. x; and .1. M. Mathews. Pnnciitles of Aiiuricitn ffinte Administration (N. Y., 1917), ch. iii, 2 k 434 THE GOVERNMENT OF THE UNITED STATES The governor's powers : 1. legis- lative. How the govcrni)r secures his legis- lative influence. His in- fluence as a party leader. The spell of his influence with in- dividual legisla- tors. of the various state constitutions one might readily con- chide that this would be true in practice as well. Tliese constitutions give the governor no formal voice in the mak- ing of laws. Some of them explicitly forbid all executive pa"rticipatIon in lawmaking. Nevertheless, the governor's influence upon the course of legislation is almost everywhere considerable and far more extensive than any reasonable interpretation of his strictly constitutional powers would imply.' This is because of the close relation which exists in the states, as in the nation, between lawmaking and the party system. Members of state legislatures are almost invariably elected on a party basis, pledged to carry out a programme of legislation set forth in the platform of their party. As a rule, though of course not always, the governor is a leader of the party which controls a majority in the legislature. \Mien, therefore, the governor urgently insists that some particular measure be passed or another one rejected, he does not speak primarily as the executive head of the state government but as the leader of his party in the state. His recommendations may be communicated to the legislature formally by means of official messages, or infor- mally by conferences with prominent members of his own party in the legislative chamber^. The latter is often the more effective way. Members of the legislature, moreover, are to some extent under the spell of a governor's influence. Tliey are inter- ested in the appointments to paid positions which the gov- ernor has power to make ; they are interested in the passage of hWU which will come l)oforo him for assent or veto; they are interested in appropriations which he may or may not recommend. By the strategical use of his authority and discretion in these matters a governor can, if he so desires, bring many meml)ors of tlie legislature into sympathy with his own legislative recommendations. The governor, more- over, has ready access to the ear of public opinion. He can often present his recommendations in such way that they > J. W. Gamer, "Executive Participation in LeKi^!lation," in Proeeedingr of Ike Amerir-an Pnlilical Science AssocMlion. x, pp. 17{>-190 (1914). See .also the disous«inn of tho snmp suhipct in the Proceedings of the Academy of Polilical Science, v, pp. 127-140 (1914). .*if*^^ TlUi 'iOVflRNOR 435 stir up a popular demr.nd v;hich in its turn reacts upon the iegislature The prcssur. • i pubUc opinion acts upon the ex- ecutive and U>gislative branches of state government ahke but the former usually secures the first opportunity to sense it and to act accordingly. The strict constructionists ce to urge the doctrine that the American state .0 r has no share in the making of laws, but even the cas.K. observer of practical pohtics knows that this doctrine does not accord with the facts. The governor s lecrislative authority is not founded upon either law or lo^ic • it is not to be discovered by a reading of con- .tUutions or statutes, but rather by keeping an eye on those legislators who visit the governor's ante-chamber and then become his spokesmen hi the committee rooms or on t liG floor Nor is the governor's influence over the course of state The^^^^.^ legislation confined to positive channels only. Like tne ^et<> power: President in relation to Congress he also possesses by express as <,n^^^n^_ constitutional provision, that effective weapon of legislative ^^^.^^ obstruction known as the veto power or the power of with- holding his assent to bills passed by the legislatiire and thereby preventing their enactment into law. iTj^s veto power now exists in every state of the Union except North Carolina. It was not givoi to the governor in any of the original thirteen state constitutions except those of Massa- chusetts and New Hampshire, as it seemed to savor of executive despotism." But having been adopted in the • Some years .«o. in answer to inquiries, fourteen governors expressed their o™nionB--i^' reference to the scope and importance of executive influence upon state legislation. Their repUes r.vade it quite clear that whatrerX constitutional limitations upo ^-^^^f^^^^^^^Z^^^ be the state Kovornor is everywhere an imi, ri;u. iactor in lawmaBng. s"; John H. Finloy an.l John P. Sanderson. / '.- A.nencan ExecuUve and Krenitive MHhods (N. Y., 1908), pp. 181-183. ' The framers of the thirteen original state constitutions were much more afr^d of executive than of logislative tvTanny. This was, of course, "hl^acv from colonial davs when the governor had to carry out the instruc. Uons whVch came to hi"m from England and hence obtained on many occasions a reputation for high-handedness which was not of his own n^- inc These original constit utious reduced the governor s office to a post of relatively si^U importance, making the legislatures the predonjxnant an^ of Te goyZmenUn all the states. As Madison ^Pressed U dim^ t^debates in the federal convention of 1787. " The executive, of the statei How the veto power is ezercined. The power to veto parts of measure. The "pocket V: > " 43G THK GOVERNMENT OF THE UNITED STATES federal constitution of 1787 the veto ultimately made its way into the orRunic laws of all the forty-eight states but one. In principle and in practice the governor's veto power and the veto power of the President are much alike. With a few minor exceptions every bill or resolution which passes both Houses uf the state legislature must bo presented to the governor for his signature. Like the President he has three options ; he may sign it, or within the prescribed period send it back without his signature, or do neither. In the first case it becomes a law. In the second case it does not become a law unless both houses of the legislature, by a prescribed majority (usually two-thirds or three-fifths), pa? i the measure over his veto. In the third case, at the expiration of the prescribed time, frmi three to ten days, it becomes a law without the governor's signature, provided the legislature does not in the meantime end its session, in which case it does not become a law but receives what is commonly termed m state as in federal politics the "pocket veto." In many of the states the governor cannot veto particular clauses or sections of a measure, but must sign or reject it as a whole. In the case of appropriation bills this is a serious drawback to the effective exercise of the veto power, for a governor is often faced with the alternative of letting an objectionable item of expenditure pass or of tying up the entir-:! fist of appropriations. In some states the veto of individual items is permitted, and this, it has been found, not only enhances the authority of the governor in the de- termination of the state's financial policy but places upon him a corresponding responsibiUty for the economy of his administration. Th2 governor's power over lawmaking, through the use of the veto, is <-roatly increased by the common practice (in which most state legislatures indulge) of letting bills drag along until near the end of the session. Then they are hurried through their final stages and sent to the governor in large numbers during the last week of the legislative term. In such cases the governor has very little chance to examine are in general Uttle more than ciphers; the legislatures omnipotent." It is hardly necessary to r.mark that t!iis situation has been greatly changed during the intervening hundred and thirty years. THE GOVERNOR 437 the various measures carefully, yet any of thorn that he does not actually sign are bound to he slaughtered by the pocket veto." To ameUorate tliis situation many states have provided that measures shall become effective unless vetoed by the governor within a specified period after the legisla- ture closes its session.* Executive vetoes have been much more frequent m state Woriong. than in federal lawmaking. They are much more common in ,.^,„ some states than in others, but in all the states together the .yrtem. total number of vetoes nowadays exceeds a thousand a your. This is due in part, no doubt, to the large number of measures which come to the governor's desk and are there found to be badly drawn, or unintentionally in conflict with laws already passed, or of doubtful constitutionality, or defective in some other way. These shortcomings give a governor his oppor- tunity Yet the entire number of measures vetoed in whole or in part is but a small fraction of the total number which comes to the executive officers for approval, probably not more than five to ten per cent on the average for the whole country. On the other hand the repressive influence of the governor is not to be accurately measured by merely counting his actual vetoes. A word in advance from the governor s office to the effect that any particular measure, if passed, will not receive the executive signature is often quite suffi- cient to prevent its i 'rther progress in the legislature. A governor's vetoes are in most cases final, for it is only m exceptional cases that a two-thirds vote of both chambers can be mustered to override them. This means that governors have obtained, through the i^w^ free use of the veto, a degree of influence over the course of i„„eased legislation which they were not originally intended to have. = - The veto power was given to the executive, in the first in- stance, as a weapon of defence, as a shield against possible assaults made by t>ie legislature upon executive mdepen- dence. It was nc issumcd that a governor would veto measures passed by the legislature whenever, in his opinbn, they might seem to be of doubtful constitutionality. Tlie determination of a measure's constitutionality is a judicial > See J A. Pairlie. "The Veto Power of the State Governor," in Ameri- can Poiuical Science Review, xi, p. 473 (August, 1917). executive influence. 438 THE GOVKllXMENT OF THE UNiTEU STATES The gov- ernor's ex- ecutive powers : 1. The appointiiiK power. function. Nor was it expected that the possession of the veto povv(T would m.ike of the governor a tliird chamber of the h'Kishitur(>, ready to ^^hare with the two regular houses the function (jf tli'tcrnuinng whether any proposal of legi^sla- tion is the embodiment of good public policy. Yet govern- ors have as.sumcd both of tliesc r61es. They have arrogated to themselves the duly not only of protecting their executive prerogatives but of safeguarding tlie state constitution from violation anil of sharing in the det'-rmination of expediency as respects all matters of legi.slati\.' l)olicy. The most important gubernatorial powers are, hi)wever, executive, not legislative. In the realm of executive author- ity the law and the facts coincide. Tliis executive authority includes the power of appointment and removal as regards many positions in the state service, the power to pardon olTenders convicted by the state courts, various military powers, tlie general supervision of state adnunist ration, and certain powers of a miscellaneous nature.* The appointing power of the governor is great, and is steadily increasing. Time was when most of the higher state othcials were chosen by the legislature, but now very few are selected in that way. The practice of choosing of- ficials of state administration by popular election attained considerable vogue during the nineteenth century and still has a strong grip in many states; but in many others these administrative posts, or most of tliem, are filled by persona whom the governor appoints.^ This is partieidarly true of boards which have technical tasks to perform, -uchas pub- Uc service commissions. In the exercis. of his appointing power, however, the governor is usually s I .ject to limitations, that is to say, his appointments are not valid until confirmed. The confirming authority is ordinarily the upper chamber of the state legislature ; but in exceptional cases, as in Massa- chusetts, it is the governor's council. This practice of subjecting the governor's appointments to confirmation is one that harks back to the days of im- 1 J. M. Mathews, Principles of American Slate Administration (N. Y., 1917), ch. iv. « In the case of those heads of dopartments whoso positions are estab- lished by the constitution, however, popular election is still the general rule. THE GOVERNOR 439 plicit confidence in the principle of checks and balanc.^ checW.^^ Fcarin" that governors would abuse their authority, re- ,p,^„,,ing Kt mints were put upon it. In many cases the necessity of power: confirmation has proved a wholesome check "P»" ««?;;;;"';" J.-.r''" who sought to repay personal or partisan obligations by ,,^. ^^^ civinmained for manv decades in the hands of the aldermen or tlie councillors, h'as been generally abolished, all responsi- bilitv for appointments being thereby concentrated upon the mayor. The results have been advantageous. The other common check upon the governor's appointing (b)jiva power is the civil service system, which exists, however, in ^^ only a minority of the states. Tlie restrictions provided by the civil service laws, in states where such laws have been enacted, do !>ot cover the heads of departments and other liigh officials of state administration. They apply to subor- dinate appointments only, mere there is a civil ser^^ce or merit system the governor does not have discret ion as regards these minor positions. They are filled by competitive ex- amiuatious held under the auspices of a civil service board W?ri- 440 THE GOVHRNMENi OF THE UNITED STATES The principles u{ the civil aervioe ayitem. The dis- crepancy lietweon its ideals nnd its actual achiovr- mciiis. or commi-^Km. Th- sr cxanunutions iir<' usually open only torrsidt'iits of tho stati'.and thr namir* ot those who stand highest are tertified !■> the head of th.^ department in which the position is to be fil"<'ti Tiie civil service system hi state appointments has proved a ti()t(>worthv iinpro\'nient over the traditional nid upon the principle that merit alone should be the passport to pul-lic a- to private employment, and that political "• personal favoritism should not out- weigh ability, character, and < xoerience in determining the dioice of the state's employees. With these ideals most people are nowadays in agreement. Their difference of opinion arises in connection with the mechanism to be used in putting these .sound pnncipics 'ito practice. Between tic ideals and the acliicvenienta of the civil service .system 'here is, no doubt, a ci-n-iT-ahle disparity. \Vi*h the best )f aims and cuaeavors ' 'il service authorities in the various states have \>:<., nse such inadiinery >f selection as they could lay '' "i. hi . Js upon. Written and oral (>xaminat inns have been ' .! »' ' f reUance, supp!' tnented of course liy iiuormation secured ui other ways as to the merits of candidates. But formal examinations, as those who have much to t\o with them know, are very fallible instruments for eliciting sure information concerning the general merits of candidates. They are poor t:--.s of such qualities as initiative, industry, honesty, tac., patience, resourcefulness, an 1 they are not always dependable tests of intelligence; ye these are qualities which spell success in public as in private employ. The general ten^'^ncy of the civil service system, in its actual working., ut. has been to draw into ti;e public service a sluggish stre.^* of men and women who have diligently prepared i- f the examinations and who pass them for that reason rather than by reason of their native -lijility. It has not li^ THE GOVEHNOll 441 r.i„od the efficiency of public service to that of private "-ft^n^U 'service sy.ten. would briu, heUer and more P...o- ,u urmg results if its principles :.ad methods were earned lunher Merit should detenuine not only ar>pomtments hufprom>tions. Thus far. however, it has l>ud relative y ttle'tHo with the latter, and hence the chief .nm>t.ve^to .'d work after a man or woman has eutere.e governor or the heads of departments. i . , W th the power of appointment goes the power o suspend KecovaU. or to remove'state officials. Authority to suspend an official from offic appertains to goV(>rnors m most of the states, bu governors do not, as a rule, have a.iy free power to d.s^- mil even those ofFicials whom they themselves appumt. Ch- rges must usurllv be filed, hearings jriven, and m many states the concurrence of the upper chamber of the state WsTature is required. Here. agan> the restriction has often availed to forestall arbitrary and unjust removals bu nuite as often it has served to keep in office men of political ?. fluence whose malfeasance or negligence amply warranted .Usmissal. When officials are appointed under civil service X: moreover, they may be removed .nly by compliance .v!*h such formalities as the laws prescribe 11k-o usually ..ford adequate protection against dismissal save tor reasons of actual misconduct or gross inefficiency. _ '^0 power to pardon offenders who have been convict^ ..Jhe^ in the state courts is frequently one of the governor s pre- ^„^_ roeatives.i In England the power of pr.rdonmg offences had been from earliest times a prerogative of the erown and in the state constitutions which were framed immediately after the Revolution this authority was vested m the governor alone, or in the governor and his council where there was a council. In molt of the states at the present day the power of pardoning as respects all convictions made by state courts . Bulletin No. 4 of the Massachusetts Constitutional Convention, entitled "The Pardoning Power" (Bortton. 1917). J 442 THE GOVERNMENT OF THL UNITED STATES 3. MUi- tary powers ■', J- rests with the governor alone. Usually, however, this power does not cover convictions arising from impeachment or penalties imposed for treason. In some of the remaining states the governor's power of pardon is circumscribed by the necessity of acting in conjunction with a Board of Pardons or with some other body. In a few states the power is given entirely to a board of this sort, the governor bcmg sometimes a member of it. One reason for this is the fear that otherwise the pardoning power might be used by a governor for personal or political ends. Some governors, indeed, have used it too freely and at times unwisely. In only one state, Connecticut, is the pardoning power vested witii the legislature. The militarv powers of the state governor are not as extensive as tliey used to be. The governor is nominally the commander-in-chief of the state militia or national guard. His functions, however, are determined by law, and for the most part they are actually performed by anadjutant- general or some similar officer. As commander-in-chief of the militia the governor may appoint officers unless the constitution directs differently, or the legislature makes some other provision, as it often does. Each state has a body of laws relating to the organization of its militia, and these laws, like all other laws, are for the governor to carry out according to their tenor. When the state militia is must ered into the national service, the governor ceases to have any- thing to do with it. Usually the state constitution and laws authorize the governor to call out the militia in time of not or o+hcr civil disorder. This may be and commonly is done on the request of th( mayor or other executive authority of the municipality in which the disturbance has arisen, but governors as a rule have the right to act upon their own initiative as well. \Mien the aid of federal troops is required by any state to quell internal violence, the governor calls upon the President of the United States fox this assistance, provided the state legislature is not in session. If it be in session, the legislature by resolution makes the request. Tlie governor has become by tradition the recognized medium of official intercourse between his own state and the federal authorities. \Vhile no specific constitutional obli- iilfc THE GOVERNOR 443 gations are imposed upon the cnief state execu ives in the way of assisting the national government o perform any of Us hmctions, the practice is to call upon them for such help when occasions arise. During the Civil War the President called upon the northern governors to assist in the calling out and organization of the Union forces, and they promptly responded In the work of raising the national army during he^European War the governors were asked to recommend persons for service upon the various dra t boards and m al cases complied readily. The governor is also the channe o official communication between his own state and other stateT His functions in relation to the extradition o^ fugitives from justice have been already referred to. When onf state desiJes to sue another in the Supreme Gout a statute authorizing the suit is usually P^^^^'l^^/^^^^.^X lature; but the governor is regarded ^^ ^^^^^^.^''l^''^- on his own initiative, to institute any such suit for the pro fpction of his state. , Finally the governor is charged with a general super- visiin ov^r the enforcement of the laws and the conduct o Se state's administrative affairs. Just how much actual authority he can exercise in this capacity depends m part upon "he personality of the governor and in part^upon the nature of his legal relations with other «tate officials^ A dominating personality in the governors chair, if he have public opinion as an ally, will often compel all other state Ss to help carry out his policy, no --"- W ^de- pendent of his actual control they may be. Yet the gov ernor's executive supremacy is in most states far from bemg so complete as is that of the President in national affairs. It is here more than at any other point, that the analogy between thTtwo positions fails to hold. The President appoints all the heads of federal departments and can ro- mTe them at will. His control over them ;« ^nquestiom^ and his responribility for their actions is not to be evaded But th^ heads of state departments -re not in most cases chosen by the governor and cannot be removed from office bv him. His influence over their actions can only be indirect and imperfect, nor can entire responsibiUty for the conduct 1 Above, p. 403. 4. Func- tions in re- lation to the federal govern- ment and to other StittCS. 5. The general over- sight of state adminis- tration. Functions in this sphere compared with those of the President. 444 THE GOVERNMENT OF THE UNITED STATES Changes In the prestige und powers of the office during the nine- teenth century. of state administration be properly allotted to him, although public opinion too often puts the blame upon him when things go wrong. Heuds of state departments not infre- quently set themselves out to thwart the governor's plans ; they intrigue with the legislature against him and at times openly defy his instructions. Nothing of that sort is en- countered at Washington. Surveying the office of governor in its development and present status, one may say that it has considerably increased its powers but not its prestige in the last century and a quarter. In the early days of the Union the post was one of great dignitv snJ honor, not outranked in the public mind by members: lip in the federal cabinet or in the national Senate. Yet the influence of the governor upon legislation, his patronage in appointments, and his power as a party leader were all of them far less extensive at that time than they are to-day. During the nineteenth century the actual powers of the state governor have everywhere been steadily increased, but this has not, curiously enougli, enabled the glor)' and dignity of the office to be maintained. On the contrary, any governor would nowadays regard election to the national Senate or appointment to the federal cabinet as a real promotion. Indeed a term of service in the gov- ernor's chair has come to bo regarded as a prelude to the senatorial aspirations. The status of a governor in the public imagination is not now much higher than that of the mayor of a large city. The office of governor is a difficult one to fill with marked success. Men who occupy the post are expected by public opinion to achieve results which, owing to their restricted control over the other officials of state administration, are entirely beyond their powers. Few governors of recent vears have come out "f office richer in reputation than when they went in. Occupancy of a governor'.^ ehair, nevertheless, has sometimes placcl m< n in line for the presi- dency. Rutherford B. Ha.v«-s of Ohio, (ln»ver Cleveland and Tlieodore Roosevelt of New York, and Woodrow Wilson of New Jersey afford four notable examples of this during t\w past forty y(>ars. CHAPTER XXXI STATE ADMINISTRATION At the first establishment of state government in America there were, in addition to the governor and the heutenant- eovernor, a small number of state admuastrative officials, notably a secretary, a treasurer, and an attorney-general Frequently these officials, with some additional elective .nembers, formed a governor', council, an in^^tution which .till survives in a few states of the Union.^ Fhe officers had the -eneral duties which their titles indicate. Fhe secretary kept" the official records, the treasurer served as custodian of the public funds, and the attorney-general prosecuted suits in the name of the state. Almost invariably they were elected by the people and hence were not accountable to the ^"bv and bv other officials were added to the list and chosen in the same way, an auditor or comptroller, a superintendent of education, a commissioner of labor, and so on each at the head of his respective department. Then, hkewise, with growth in population and with the corsequent development of both social and economic problems still other adminis- trative departments were established, sometimes headed bv a single state official, sometimes by a board of three five, «;• more mcMbers. This development, which has led to an almost complete disintegration of state administrative functions, is largely the product of the last thirty or forty vears In all the larger states these officials and boards have multiplied to formidable proportions, and in some of them the total number of state administrative departments has now reached sixty, eighty, and even one hundred. 1 In MJ^ssachusetts, Maine, Now Hampshire, and North Carolina. 445 The original adminis- trative officers. Their multipli- cation in recent years. 446 THE GOVERNMENT OF THE UNITED STATES Reasons for this develop- ment: 1. the stricter regulation of business. Why regu- lation increases adminis- trative machinery. ITic changing relation between government and busines.s has been in the main responsible for this elaboration of administrative machinery.' The era of laissez-faire, of officiiil non-interference, has been rapidly passing away. Bail! . , other financial institutions, insurance companies, railroad, express, telegraph, telephone, lighting, street rail- way, and other public service corporations have been brought witliin the provisions of regulatory laws. Laws relating to the conditions and hours of labor, especially for women and children, laws relating to sanitation in industrial establish- ments, laws providing for workmen's compensation, for mini- mum wage scales in certain employments, for the adjustment of labor disputes, for the care of immigrant workers, for the protection of wage-earners against loan-office extortion, — all this legislation has been crowding its way to a place upon the statute Ijooks during the past generation. But the mere enactment of these regulatory statutes would avail little, and might readily work more harm than good if their enforce- ment were not committed to some administrative authority charged with that function and empowered also to provide that measure of flexil)ility which all regulatory laws ought to have. Hence the creation of boards, commissions, and departments. These boards serve a dual purpose. First, they see to it that the detiiiled and often intricate provisions of present- day regulator}' laws are carried into effect ; they receive complaints and adjust them; they prosecute violations. Second, they provide the legislature, when it undertakes any new step in tlie way of regulating business, with a repository of administrative power. It is impossible to incorporate in any law a specific provision for every case that may arise. Fur better, it has been found by experience, is the plan of stating the general principles with as much detail as is con- venient, and leaving their specific application to men ap- pointed for the purpose. In a word, the strict insistence upon a governmect of laws alone has given way under ' TiiP best book on this subjpot is J. M. Mathews. Principles of A meriean Stale Administralion CS. Y., !'H7). Thf Ipkb! aspects of stato adminis- trafion are fully discussed in F J. Ooodnow Principles of the Admiiiu- Irative Law of the Unilnl Slates (.\'. V., 1905 . STATE ADMINISTRATION 447 the Dressure placed upon the state authorities by the laleidorcoj^c needs of modern business. ^ human touch is needed to make regulations both effective and just. rL not in the sphere of business alone that the regulating arm of the state has been growing more energetic with the lapse of time. The state of to-day is tr>'mg to give and s liv n" a far greater modicum of service in al departments o he common life than ever before. Care for the public safety, for the health of the community, for the poor, the han^ apped, and the defective, for public comfort and recreation, f^r the preservation of natural resources - all these have added to the volume of the law and to the in- ricacy of the administrative mechanism. One need only Iknce over the list of departments, boards, and commissions inZttate to have well impressed upon his mind tl^ coia- prehensiveness, variety, and importance of the functions which the American commonwealth now endeavors to per- '"^J:^ tioustpartments may perhaps best be classified by grouping them according to the functions which they shafe in'ex^rcising. First, there are various officials ad l,oards having to do with general administration. Within the category of departments which, along with the governor, are in'the work of general state administration are those of the secretary of state, the treasurer the and tor, he a tornev-general, the elections board, and the civil service commission, each of which departments perform, functions de^Siated n part only by its title. Tlie secretary of state not only keeps the official records, but is intrusted with many o'her functions such as the distribution of public documen s til custody of the state seal, and sometimes wi h various duties relating to elections. The treasurer is not only the custodian of the revenues, but pays out the money when ailed upon to do so by the proper authority. He also issues onds when the state borrows funds. The auditor or omptroller must approve every bill ^-^^^ ,*^-^*--Ynd will pay it; he also checks up the treasurers books and renorts re-ularly to the legislature. The attorney-general [JTechTcf prosecuting officer of the stat.. but he also acts us legal adviser to the governor and to all other state 2. the expansion of state service in other fields. Present depart- ments of state adminis- tration : 1. General adminis- trative depart- ments. Their function^ 448 THK fJOVKRXMENT OF THE UNITED STATES .^1 2. Public- health and sani- tation. .'{. The reg- ulation (if public utilities. ulficiiiis. In some states he has a certain degree of super- vision over the work of district prosecuting attorneys. Election boards, where they exist, control the machinery of polhng, but usually do this through local election officials. When there is a civil service commission, it supervises the administration of the laws relating to the merit system of appointments, holds the competitive examinations, and protects the public s"7vice against the evils of patronage. This does not exhaust the list, moreover, of departments which have to do with general administrative matters. In many states there are other officials and boards of this character. A second group of state departments includes all those which have to do with sanitation and public health pro- tection. Nearly every state in the Union has a department of health and sometimes other officials or boards whose duty it is to carry out the provisions of laws relating to the col- lection of vital statistics, the prevention of disease, and the general protection of the public against epidemics. Usually this department has some degree of supervision over uhe work of local health boards or officials. The laws and regu- lations relating to the protection of the public health have become numerous and complicated in all the more populous states ; they cover a host of matters, such as the registration of births and deaths, the reporting of contagious diseases, disinfection, and quarantine, the disposal of sewage and garbage, ihe protection ."f water supplies, the inspection of food, especially of meats and milk, the abatement of nui- sances, and the amelioration of unsanitary conditions in shops and dwellings. The drift towards central supervi- p'^n in public health administration has been strong during recent years. Individual communities are no longer left to make and apply their own capricious regulations in this vital field. For many decades it was the policy, of the states to let public service companies of all sorts go unregulated except in so far as general regulations could be prescribed by law. Administrative machinery for enforcing even these general regulations was entirely lacking save that in a few cases the work was intrusted in a perfunctory way to the secretary STATE ADMINISTRATION 449 of state The result was that many large corporations, narticularlv those engaged in furnishing gas, electricity, or r"rport.tion, abused their freedom from official regulation and by variousextortionsor discriminations eventually forced the states to come upon them with an iron hand Hfmce there has been, during the last thirty years, a marked growth ia the number of state officials and boards having to do with corporate and public utility supervision Within tins Tategory are found commissioners of corporations insurance commissioners, railroad commissioners, and pubhc service commissions. In practically all the states regulating bod es of this sort now exist. Their functions are so manifold hat anything akin to a complete summary of them would be imoossible here. Some of these boards are endowed with rrrpowers to hear complaints and adjust them, to make rules on their own initiative, to pass upon the reasonability S rates and conditions of service, to compel the submission of financial leports, and to enforce compliance with their orders. Othe.-s have varying degrees of lesser authority, and some have powers of an investigating and '^^visoiy char- • ac,> r only. Everywhere, however, the powers of such ad- minist ative ofricials and boards are expanding and becom- W yearly more effective. Their work constitutes a highly important phase of state government and plays a consider- able part in the interaction of state politics. Two branches of corporate activity which have become 4. jhe re. .ubiect to increasingly strict supervision m recent years are , ,^„i^.„^ Sing and insurance. To insure sound financial methods and iu both these fields of business the various f^te legislatures have passed elaborate laws, and to insure that these laws shall be strictly carried into effect many of them have es- tablished departments of banking and msurance Iheso dep^ments\.re in charge of commissioners who hav^ power to examine the books of all insurance companies and banks which do business under state charters, to audit then^ accounts, to make sure tliat their investments are in legal se- cuntls, to insist upon adequate allowances for depreciation, and in general to insist upon conservative financial manage- "" During the last few years some of the states have been 2g and insursDce. 450 THE GOVERNMENT OF THE UNITED STATES 5. The reg- ulation of industri:U aiiJ mereantilo a£Fairs. extending thoir supervisory activities to the busint ss of sellinft bonds and shares as well as to banking and insurance. The rules of supervision are embodied in the so-called "blue-sky laws" and usually provide that no stocks or bonds may be offered for sale to the public until adequate information concerning the tangible assets behind them has been laid before the bank commissioner and a permit obtained from him.^ The issuing of this permit does not mean that the bonds or stock of a corporation are recommended to the people for investment or that the state vouches for the solvency of the companies concerned. It is merely an indication that the flotations have been found to be non- fraudulent. More recent than the development of state supervision over public utilities, banks, and insurance corporations is the growth of state regulations as appHed to ordinary industry and triide. Twenty years ago there was little or none of this ; to-tlay there is a great deal, and it is rapidly increasing. It is an indication of the transition from an individualist to a social viewpoint in the attitude of public authority to- ward private business : a transition which is not peculiar to America alone. Old doctrines of strict non-interference have been jettisoneti ; the state no longer concedes the right of the manufacturer or the merchant to do as he pleases in the conduct of his own business, particularly as regards the hours and i-KPditions of labor, rkmoorning the justice and expe- diency of this growing official mtervention in the affairs of ])rivate business there are widely divergent opinions; but as to the fact that the limits of state interference are being rapitily broadened there c-n, be no dispute. State com- missioners and boards with functions in this new domain of regulation are springing into existence all over the country. Most conspicuous among them are commissioners of labor or labor boards whose duty it is to investigate industrial conditions, to enforce the laws relating to tlie employment of women and children, to see that factories are regularly ' Th-, trrin originated in Knnsas, where the flist law of this sort was ("tiaclod in lOil. Tho iniplicatiim was that many mining, gas, oil, and !:ir>d oonmanics were issuing bonds and shares upon assets no more tangible ihan the hli sky. V: STATi: ADMINISTRATION 451 inspected as to their sanitary arrangements -"/ *J;f P[°P^5 oQuiDment with safety devices, to ehminate the evils of wrtlop production; and in many cases to mediate m "spues between employe:, and employees. In a few states this last named function is intrusted to a special state board o arbitration or conciliation. Provision for the compulsory arbTtration of labor controversies does not yet exist, however, '"S '^Ll'ln^c^T workmen's compensation laws in many Wo^- states morecrver, has necessitated the establishment of ,„„ wl; f"r the dotuih-d administration of these statutes, .jw,.na usuallv called industrial accident commissions or work- ^,,.,„^ Ss componsation boards. The principle at the basis of t.o„. those con?pensation laws is that wher. an employee is injured the coS^e of his work, frc.n whatever cause, the burden luldnor be placed wholly upon himsei: or upon his m V or even upon the empl'^v-r; :. should be included m™he cost of production and tl. ., 1 ■-' ^ >-.the entire con- um^^rpublic ^ Employers ar. > - " 'tore either compelled ouSt or allowed under conditions which are almos comDuls^r^ to insure their workmen against the industrial cSd"ntr;hich inevitably occur in every occupation PresumabV they set down the cost of this insurance as one Tf the" e^ar expense items, Uke taxes or fire "^Burance or the^placSient of machinery. It is the /""J ^ «^ «^^ iorkinen's compensation b.ard to supervise the working out of this general policy, to determmc ^^/^^ .^^^^^^^^^^^ all disputed questions between the insurer and the injureU woi^man, and to make a prudent disposition of the com- ^^£tiS:^Si;ality of workmen's -Pe-tion |.w. r^.^ in that they virtually^ require an empby^r^m^- his .,... requirement constituted '^a deprivatic. <,t liberty and *i,„ « .^^v-n'nn r<>dr'^-:>i onh' when the accident • The common law gives the ^"'•^'T^f /3„" , it ,^vof no redrew negligt nee of a f oUow-workman. ulity. 452 THE GOVERNMENT OF THE UNITED STATES Minimum wane laws. Iti r Prartical difficulties connected with their adminis- tration. property under the federal and state constitutions" not justifiable as a reasonable exercise of the police power.' This decision drew fcrtli much popular criticism, and an amendment was accordinply added to the New York con- stitution exprossly permiting the legislature to enact a compulsory compensation law. In other states the con- stitutionality of such legislation is now pretty well estab- lished. Minimum wage laws have also been passed in some states, and such action usually adds another to the list of state commissions. The function of this department is to in- vestigate the rates of wages paid to women and minors in factories or stores and to recommend, in some cases to compel, the payment of a minimum weekly wage. The doctrine at the basis of this system is that society as a whole cannot safely or economically permit large bodies of women and children to be employed at rates which are well below the point of decent subsistence; if such conditions are tolerated, the ultimate cost to the community in crime, poverty, disease, and immorality will be high. To permit such a situation, it is urged, is to allow grasping employers the privilege of thrusting upon society as a whole a burden which their own expense budgets ought to bear. Where women and children are overworked and underpaid (and by the same token, underfed), the community as a whole will ultimately suffer. That is an inexorable law of social evolution. Better it is, therefore, that the community should pay its way year by year in higher prices for the goods which women and children make, than that a social canker should be tolerated in the name either of higher business profits or of lower living costs. In their actual application, however, minimum wage laws are not without objectionable features. Even-handeil justice to both the employer and the wage-earner is doubly es'Jontial in this field of administration, yet it is in practice difficult to secure a board of men or women who will relegate their own personal sympathies to the background and give no advantage to either side. Too oftin the doctrine that the administration of a law should be placed in sympathetic » Ives vs. South Buffalo Railway Co., 201 N. Y. 271. STATE ADMINISTRATION 4B8 hands has resulted in the establishment of boards whose members assume the r6le of crusaders with a mission not merely to protect the weak against industnal injustice but t,) compel the general readjustment of wage scales. It is to be remembered, moreover, that under the conditions of to-day the family rather than the individual is the unit which should be fairly viewed in determining whether mcome is below the subsistence point. When a minimum wage is fixed for certain industries in one state and no such action has been taken in other states, again, the cost of production is likely to be so increased in the former that its products are at a disadvantage in competition with those of the latter. These various objections, however, are not fundamental. Prot-rammes of social insurance which are now under dis- cussion in various states will inevitably require, if adopted in whole or in part, the establishment of additional admin- istrative departments. Proposals for health insurance, old- age pensions, and for insurance against unemployment are „ow being considered with var^ ing degrees of seriousness, and the time is not distant when some or all of them will be cai.-ied into effect. The principle upon which these pro- posals rest is the one already indicated, namely, that society should take better care of its workers by protecting them, at the cost of the whole community, against the inevitable vicissitudes of modern economic life. The individualist policy in industry puts upon the worker the necessity of protecting himself against the hardships which result from overwork, underpayment, accident, sickness, and old age. The worker's failure to do this adequately has not only impaired the efficiency of industry, but has put r, huge burden on society in the end. The contention is that the state should take over the responsibility for this protection, reliev- ing the community from the ultimate cost by making it pay its way as it goes. Many practical difficulties are sure to arise, however, in the application of this principle. ^ The problem of the poor is still with us, which means ti.at every state has a department under some name or other assigned to their interests. Commonly it is called the state board of charities. As a rule, the state does not directly undertake the relief of poverty, but intrusts this function The peadinR programmes of social insurance. 6. The adniiDis- tration of charities and correc- tions. 1?^ wmmmmmaamgrn mmmrmmt^mmmmmmmill^ MICROCOPY RESOIUTION TEST CHART (ANSI and ISO TEST CHART No. 2) 1.0 1.1 m*^ 1^ 114 Hi 1^6 1^ IM Hi 1^ Li ■.••0 12.0 .8 ^ - PPLIED INA^GE Inc ST". ho3 Eost Mo.n Street rJS Rochester, New Vorh 14609 USA ■a^ (T16) 482 - OiOO - Phone :^ (716) 288 - 5989 - To. 1^ 7. The super- vision of public property and natural resources. 454 THE GOVERNMENT OF THE U.NITED STATES to counties, cities, towns or villages. The duty of the state department of charities is to supervise and in some measure to coordinate the work of those local poor-relief authorities. Likewise this department may have oversight of the institutions maintained for the care or instruction of the insane, the blind, the deaf and dumb, or tic handi- capped in other ways, or this work may be intrusted to separate authorities. Preferably it is handled separately. The general supervision of state prisons and reformatories is also a function which requires a department of its own ; it may be headed by a single prison commissioner or it may be intrusted to a board. Both in charitable and correctional administration the drift is toward a more humane and enlightened application of the laws. The decentralization of administrative machinery represents in part an endeavor to meet demands in that direction. Every state possesses valuable assets in land, roads, and buildings; some of them have also harbors, forests, mines, and fisheries. Various departments are given supervisory functions in relation to these natural resources. Among the several states there is the greatest variation in the names and the duties of the commissioners or boards which have to do with all such matters. Massachusetts, for example, has a board of agriculture, a department of animal industry,' a state forest commission, a commission on fisheries and game, a commission on harbors and public lands, and a highway commission, or six boards in all. Throughout the greater part of the nineteenth century the natural resources of the country seemed so inexhaustible that they were allowed to be wasted ruthlessly for the profit of indiViduals but to the ultimate detriment of the whole people. Of late, however, conservation has come to be looked upon as not only desirable but necessary. This policy, as applied to forests, fish, and game, has directed itself to the work not only of protection but of restoration. In the case of harbors, lands, waterways, roads, the problem has been that of im- proving natural resources and turning them to better account. The encouragement of agriculture in its various branches has also obtainefl greater attention from the states as well as from the nation during recent years. STATE ADMINISTRATION 455 public education. The department of education is almost everywhere one 8. The of the most important amon^ agencies of state administra- ^^„of tion. It was not always so. In earlier days education was left almost wholly to the cities, towns, and rural areas to be regulated by local school boards according to their own ideas of educational efficiency. Even yet the local school board is in immediate control and in many cases its discretion is still unrestricted ; but steadily the state is everywhere taking over a coordinating and supervising jurisdiction. Every state to-day has a department of education or of public instruction under an executive head, commonly called the superintendent of education or instruction. Many of them have state boards of education as well, and some have spe- cial authorities for the supervision of the state university or for the other pubUc institutions of higher education. The functions of an education department vary with tl ^ degree of centralized control which the state authorities have assumed. In no two states are they alike. In some the de- partment outlines the programme of school studies, chooses the text-books, apporti' is state funds to local schools, prescribes the qualifications of teachers, appoints school superintendents and settles nearly all the details of educa- tional policy ; in others it has much more limited powers ; and in others, again, its functions are little more than advisory. On the whole, however, the tide has set towards centralization, towards giving the state departments more power and leaving less discretion to the local school boards. The laws relating to the assessment of property for taxa- 9. Abscsb- tion and to the methods of taxing this property have every- where become so involved and technical that new ad- ministrative agencies for interpreting and applying their provisions have had to be created. State boards of assess- ment or of equalization, state tax commissioners, and various allied authorities now figure upon the list of departments in many of the states. There was a time when virtually com- plete dependence for public revenue was placed upon prop- erty taxes. Such taxes were easy to assess and when imposed could not be evaded. But with the increase of "intangible" property in its varied forms, mortgages, stock?, bonds, franchise-values, and bank deposits, the task of ment and taxation. 456 THE GOVERNMENT OF THE UNITED STATES 10. Rei^la- tion of the pro- fessions. U. Super- \'ision of military affairs. making this form of wealtl 'ontribute its just share of the public revenue presented i, much more difficult problem. Intangible property, when left to be assessed and taxed by the local authorities, often escapes taxation altogether. Taxes on the profits of corporations, on franchise x'alues, and on inheritances also present practical difficulties in the way of local assessment. So the states, in many instances, hav( provided the municipalities with assistance; in others they have taken the levying of some taxes directly into their own hands. State tax commissions or commissioners now exist in more than half the states, with constantly increasing powers for the assessment of property for purposes of taxa- tion, both local and state, and for the collection of corpo- ration, business, inheritance, and income taxes, and other revenues. ^ In nearly all tho states there are various boards whose business it is to issue certificates for the practice of different professions or trades. There are boards of medical and dental ^^aminers, boards of examiners in pharmacy, and in some stateti boards for the licensing of stationary engineers, plumbers, chauffeurs, nurses, and so on. In some states the courts are charged with the duty of examining candi- dates for admission to the practice of law ; in others this is handled by a board of bar examiners. The general rules concerning eligibilitj' for hcense to practice these various professions and trades are made by the legislature ; but the l)oards conduct the examinations and grant the certificates. They have also, in most cases, authority to hear charges made against any licensed practitioner and to suspend or revoke certificates. The expense of maintaining these licrising boards is usually defrayed by the fees which ap- plicants are required to pay. All the original state constitutions paid particular at- tention to the organization and control of the militia. It was taken for granted that the military forces of each state would be largely within its own jurisdiction, even though the federal constitution gave to the national govr iment certain authority in time of peace and complete powers in time of war. The federal laws of the last few years have ' H. L. Lutz, The Slate Tax Commission (Cambridge, Mass., 1918). "-mk STATE ADMINISTRATION 457 12. Miscel- laneous. greatly reduced the freedom which the several states have traditionally possessed with leference to their national guard establishments ; nevertheless, all the states continue to maintain departments of military affairs. Usually the head of this department is the adjutant-general, appointed by the governor in his capacity of commander-in-chief. Associated with him is a quartermaster-general, a surgeon- general, and sometimes an armory board. Or each of tliese officials may be, as in Massachusetts, the head of a separate department. In addition to all the foregoing there are various mis- cellaneous depart nents which look after the odds and ends of state administration. Each state has its quota of them, but the example of Massachusetts will suffice to indicate what some of them are. In that commomwealth there are an art commission, a homestead commission, a com- missioner of public records, a comptroller of county accounts, a commissioner of state aid and pensions, a board of boiler rules, a fire prevention commissioner, a board of appeal on fire insurance rates, a commissioner of weights and meas- ures, a commissioner of statistics, and a dozen other depart- ments in charge of commissioners or boards of trustees. Nor does this latter include the numerous ad hoc bodies, that is, boards created to exercise functions of a temporary nature such as the building of a state capitol or the con- solidation of the state laws or the taking of a census. Such boards go out of existence when their work is finished. Taking the entire category of officials and boards, whether permanent or temporary, the number is surprisingly large. Each department, moreover, has its own sphere of duty and is independent of the others. There is usually no coordinat- ing pressure except such as the governor may be able to apply. This somewhat detailed enumeration of state 'lepartments Outstand- has been undertaken in order to emphasize two features of '{"gj,,^, state administration : first, the scope and variety of its tasks, of state and second, the decentrahzed machinery with which these ^'""'•*- 1 T-t r 11 tration. functions are performed. l*ar more frequently than any agencies of the national goveninient these numerous boards and officials regulate, supervise, and circumscribe the daily \wm^ ^^ 458 THE GOVERNMENT OF THE UNITED STATES Reaction against the increase of state boards. A practi- cal diffi- culty in the way of cfTii'ient state adminis- tration. life of the citizen. This fact is not appreciated by the average man, who is prone to look upon the state as merely exercising an inconsiderable residuum of govern- mental autliority, the bulk of which is possessed by the nation on the one hand and by the municipalities on the other. That is far from being ho case. The state is the real centre of public administration in the United States. It is well that the top-heaviness, the disintegration, and the absurd clumsiness of state administrative machin- ery should be impressed upon every student of American government. At the present rate of increase some of the states will soon *- .ve as many boards as there are problems to be solved. A state board grows by what it feeds upon. When a new administrative department is established, itS officials recognize that it must justify its creation and its continuance by finding enough work to do. Having found more work it asks more power, more money, more clerical assistai e. In a ftnv years it becomes a far more portentous affair than any one anticipated when its work began. This tangled web of commissioners and boards, wholly unplanned in development or coordination, represents an endeavor to cope with the new and urgent problems which rapid growth in population and in the complexity of urban life have thrown upon the public authorities. But it embodies a method of administration which cannot be expanded indefinitely. The maze of interlocking jurisdic- tions and of isolated centres of authority will break down of its own sheer weight. Some states have already reached the point where they are seriously considering the best method of integrating this surfeit of officials and commissions. One or two states, as will be Indicated later, have already made substantial progress in this direction. The shortcomings of state administration, as one may so easily observe them at the present day, are not wholly due, however, to the multiplication of isolated departments or to the lack of cooperation among them. Something is at- tributable to the difficulty which the departments encounter ' 1 obtaining capable helpers. In the service of these various departments are a huge number of subordinate officials and STATE ADMINISTRATION 459 employees. In New York state there are more than eighteen thousand of them. Positions on the payroll of the state are everywhere eagerly sought, chiefly because the remuneration is better, the discipline less strict, the hours of work fewer per day, and the holidays more frequent than in private em- ployment for service of the same quality. Yet the return which the state receives for its generosity as an employer is proverbially small. The lack of a comprehensive and genuine merit system, Tiic covering not only appointments but promotions, is chiefly to o"",^feriot blame for all this. State administration does not in America, service, as in Europe, offer a cai :?er comparable in attractiveness with the regular professions. It does not secure its recruits from among the ambitious and capable, but to a large extent from among those who are satisfied to give no more than th3 worth of their wages and who on that account have failed to make headway in private vocations. The fault concerns itself, therefore, not only with systems but with men. There arc too many departments ; they are too often badly organ- ized ; they are rarely in any proper articulation with one another; and last, but by no means least, they are every- where provided with employees who display far less skill, intelligence, initiative, and industrj' than is to be found in the service of ordinary business concerns. The state is undertaking a programme of business regulation on a huge scale. Yet the officials and employees to whom it commits me actual adminit^tration of this programme are for the most part men who could make no conspicuous suc- cess in mam ging any form of business for themselves. 1^^ CHAPTER XXXII Develop- ment of state financial systems. The 8"ope of public finance. STATE FINA>' ^ The states of the Union began .r history with financial methods which were simple and uniform. They did not, at the outset, attempt to do much in the way of public services. They required very little money, and they got most of it from the same sources. But as time went on and administrative functions were extended the need for more money appeared. New ways of obtaining it and of spending it were developed, until to-day the various systems of state finance are neither simple nor in any degree alike. Public finance; whether in nation, state, or city, is usually considered under three main heads : revenue, expenditure, and debt.' But each of these headings suggests various subdivisions. Under the head of revenue is necessarily included :i discussion of the various sources from which a public authority obtains money to carry on its work, whether from taxes on property or from the granting of privi- leges, from fees, from the sale of public lands, and so on. Likewise, there are questions as to the mechanism by which the taxes^ are levied, the system of assessment, the classi- fication of property for taxation, and the practice of exempt- ing certain forms of property from taxation altogether. Under the general head of expenditure various importan* questions also arise. Who may appropriate money and under what restrictions ? How and by whom is the budget made if there is a budget? What checks are there upon extravagance or dishonesty in expenditures? Finally, a ' H. C. Adams. The Science of Finance (N. Y., 1898) ; C. P. Bastable. Public Finance (3d ed.. N. Y.. 1903) ; W. M. Daniels. The Elements of Puhac Finance (N. Y.. 1899); and C, C. Plehn. !nlrn,hu-Hnn /o PnhHc finance CM ed., N. Y., 1915), are some of the best-known books in this neld. 460 STATE FINANCE 461 consideration of state debts brings forward such matters aa constitutional limitations upon indebtedness, the methods of borrowing, and the nature of the arrangements made for the payment of public debts as they mature. Of the entire revenue obtained by the several American states at the present time the larger part comes from taxes on real and personal property, usually but not always in the form known as the "general property tax." This is a tax levied at a uniform rate upon the assessed value of real property, which includes lands and buildings, and upon personal property such as merchandise, bonds, stocks, and mortgages. Taxes on property may be levied by the state directly, or they may be imposed by the county, city, or town, and then turned over in part to the state treasury. Most of the states formerly maintained in their constitu- tions a provision that all taxes on property should be general or proportional ; in other words that all property of whatso- ever kind, if taxed at all, should be taxed at a uniform rate. This provision was part and parcel of a political philosophy which insisted upon the strict equality of all men before the law. That dogma was interpreted so rigidly in the early years jf American history that public opinion regarded the taxing of one form of property at a different rate from another as •1' ?.ct of discrimination and fundamental injustice. The ; ^ . quality of men extended, it was assumed, not only . persons but to their property. In these earlier days, ri. >>o ,'er, property consisted for the most part of tangible . hint's : londs, buildings, merchandise, and slaves. Securities or intangibles, such as mortgages, bonds, and stocks, did not form a large factor in the total wealth of the community. In recent years this situation has altogether changed. The idea that taxation should regard first of all the inalien- able rights of the individual has been supplanted by the doctrine that it should make the general good of the whole people its foremost care. Moreover, the growth of intan- o;ible wealth during the last half century has been enormous. It now forms the major element in the national opulence. Its distribution among the people has become so unequal that the imposition of taxes at a uniform rate no longer serves the ends of social justice. Hence it is commonly Sources of state revenue. The general property tax. Restrictions on the classifica- tion of property for tax- ation. Removal of such restric- tions. 462 THE GOVERNMENT OF THE UNITED STATES The tax- ing of intangiblo property. What the states may tax. believed that n more equitable distribution of public burdens can be made by classifying property into various forms and by levying a different rate upon each. Many of the states now permit this to ho done, but the requirement as to uni- formity still remains in about one-third of them. Entirely apart from any theory (»f social justice in taxation there is also the practical consideration that when a state or city attempts to tax both tangible and intangible property at the same rate, a large portion of the latter escapes taxation altogether and the former is forced to bear a disproportionate share of the burden. Lands and buildin.,^, machinery and merchandise, cattle and grain, are in sight to be levied upon ; they cannot be spirited out of view. But intangible wealth does not parade itself to be taxed, and unless the owneh, either voluntarily or by compulsion, comes forward with a declaration of its value it is diflcult to list it for taxation at all. Bonds and stocks are stowed away in safety-deposit boxes. It is mainly for this reason that in one state after another during recent years the practice of separating tangible from intangible property and of levying a much lower rate upon the latter has been adopted. This lo , 3r rate is either placed directly upon the valur of intangible property or it is levied upon the income derived therefrom. In either case there is usually a legal requirement that every owner, trustee, or recipient of income (with certain excep- tions) must file a sworn declaration as a basis for a true assessment. Only in this way has it proved practicable to make wealth in the form of securities pay its due con- tribution to the pubUc income. When taxed at the same rate as tangible property a large part of it will evade taxa- tion at all hazards, even if it be necessary to remove it outside the taxing jurisdiction of the state altogether. States have the right to tax all tangible property .situated within their borders no matter to whom it belongs. The only excepti'^ is property belonging to the United States. But they have no legal right to tax tangible property out- side their own limits, even though the owner resides within. Intangibles may be taxed either where the owner resides or where the suiurities are kept. The usual plan, in accord- ance with the principle mobilia sequuntur personam, is to levy STATi: FINANCE 403 the taxes upon the intangibles where the owner has his domicile or legal residence. Income derived from property in other states is also tnxuhle where the recipient resides and not at its source. No state or subdivision of a state may tax any intangible property in th^ form of boiui> or other obli- gations of the United States, nor may it tax any tangible property such as lands, fortifications, buildings, or equipment belonging to the federal government. This was made clear, it will be remembered, in the case of McCulloch vs. Mary- land. But the instrumentalities of interstate commerce, such as stations, wharves, telegraph lines, although their operations are under federal control, may be taxed as property by any state so far as they happen to be within its boundaries. The levying of taxes is always preceded by a formal step The proceM known as the assessment. In nearly all the states outside '^^^^^^^ New England this assessment or recording of property valuation is made by county officials. The same lists are then used as the basis of state and county and municipal taxes. Usually some higher authority, often called a board of equalization, has power to review these assessments, to hear appeals from the action of the assessors, and to adjust or equalize where necessary. In any event the assessments are revised from time to time, sometimes every year, but for purposes of state and county taxation not usually more often than once in every three or five years. Ostensibly all property is assessed either at its fair market value or at a designated percentage of that apprais-^l as provided in the tax laws. In Illinois, for example, the stipulated percentage is one-third of the actual value. Throughout the country the work of assessing is rather poorly performed because :he assessors are usually elective officials with no special training for the function of estimating property values correctly. Much of what they do is mere guesswork. While many state place their chief reliance upon the other taxation of p'-operty, either at uniform or classified rates, all of them have other taxes and some derive a large part of their entire income from these other sources. The inheri- tance tax is one of them. It is levied upon inherited proper t y and the rate of taxation commonly rises with the distance at state taxes. The in- heritance tax. latca on itioomoi*. ( "i jriKira- tion taxes. Poll taxes. Revenues from sources other ttian tazatiou. State ex- penditures. 464 THE GOVERNMENT OF THE UNITED STATES which the heirs stand in point of blood relationship. Oc- casionally, moreover, it is progressive in rate according to the value of the estate. .Small inheritances are usually exempt. Taxes on the income of individuals end on the income of corporations are also levied in several states. Corporations, especially railroads, street railway.s, lighting, telegraph, and telephone companies, banks, and insurance organizations are being more and more placed in special categories and taxed accordingly. In some states they contribute large amounts each year to the public income. Poll taxes do not yield a great deal, i i rule, for the individual tax is small and a large p(>rcentag.' of it frequently remains uncollected. Some states have abolished it altogether. Other sources of state revenue are the license fees exacted from certain forms of business. The proceeds from liquor liceri-ses have hitherto formed the largest item among these. As a rule, the state turns back a part of whatever money it may derive from these licenses, usually the larger part, to the municipalities. License fees are also collected from some other forms of business, occasionally by the state but more often by the local authorities. Fees of various sorts come into the state treasury from many quarters, fees paid by corporations when organized, by lawyers when admitted to practice, by owners of automobiles and by others too numerous to mention. When money comes into tho state treasury it can be paid out again in only one way, that is under authority of an appropriation duly made by the legislature. The appro- priation may be specific, designating a certain sum for a c(>rtain purpose, or it may be general and continuing, as for example when it authorizes a state department to expend such amounts as i: may receive in fees. Most of a state's income is appropriated annually or biennially upon esti- mates of necessary or desirable expenditure submitted to the legislature by the governor or the heads of departments, but appropriations are also made on the initiative of the legislature itself. It IS a general rule of American state government, whether written or unwritten, that measures which involve the STATE FINANCE 46/ expenditure of money sliiiU originate in nc lower chamber of the legislature. The upper chamber may, h'owever, amend or rejer* such measures. But in none of the states, with one exception, is there anything approaching the KngUsh practice which restricts the initiative in appro- priations to members of the executive department.* Any citizen may father a proposal to spend the ^tate' money, and he usually finds no difficulty in getting some i . Tiber ot the Irgislaturt' to introduce it for him. The auth( ^y to propose >utlays is not in America an executive prerogative as it is in countries where the doctrine of coordinate governmental powers prevails. Hence there a'-c proposals of expenditure from all quarters, each r ■ ^ making its own bid for adoption. That is one reason why !he states spend so much. The process by which .i state's total expenditure for any year is authorized may be summarized as follows : ' :ortly after the legislature convenes it is the custom of the vari- ous administrative departments (for example, the attorney- general's office, the state board of charities, the state board of education and so on) to transmit to the legislature cither directly or through some designated officer their esti- mate of whut each requires. These estimates are referred to the various committees of the legislature and roiy also go to some general committee on appropriations o: lance by which they are reported back to the legislatur ither with or without changes. Then in the form ol apy.iopriation 1 tills they pass the legislature like other i-ioa-ures. The estimates rarely come before th '"gislatui ;'l at once. They straggle in at various stage - ' the ses.ion. Mean- while, a throng of bills carrjitig appropriations or providing new revenues are brought forward by members of the legis- lature on their own responsibility, and although many of these fail to advance very far, there are always some which work their way to enactment. Until the session comes to an end, therefore, no one can tell just what the total revenue or expenditure is going to be. Thus the prime essential of a sound financial system, accurate knowledge of income and outgo, is lacking in most of the states. To express it in another way, less than one-third of the st tes h^ve what » See pbove, p. 306. 2a Appi ria- tion bilU oriiriiiato in the I )Wpr chamber. How appro- priations are usually made. 466 THE GOVERNMENT OF THE UNITED STATES Types of budget systems : 1. The legislative budget. 2. The joint budget. is known to students of public finance as a budget system.'* There are at least three different ways of framing a state budget. First, tlic/e is the "legislative budget" system, which is still used by a number of states. Under this plan the estimates of revenue and expenditure for the fiscal year are transmitted by the various executive departments to some committee of the legislature, usually the committee on ways and means. There the various items are - rutinized, altered as may be deemed advisable, embodied in one large appropriation bill, and reported in revised form to the state House of Representatives, where it goes through the regular procedure. The distinguishing feature of this system is that tlie framing of the budget is entirely in the legisla- ture's hands. Executive officials have no direct part in it. In half a dozen states or so, including New York and Wisconsin, the work of preparing the budget is intrusted ^o a board or committee which is usually made up of certaia administrative officials (such as the state comptroller, tax commissioner, and sometimes the governor), together with the chairmen of the appropriation committees in the two branches of the state legislature. The idea embodied in this plan, which may be called the "joint budget " system, is that both the legislative and executive branches of the government should be represented in the making of financial proposals because the plans will be broader, more accurate, andniore acc( ptable to all concerned when they are prepared by joint counsel than when made wholly by either organ of government alone. As to the exact composition of this joint body there is considerable variation among the half dozen states wliich have adopted the plan, but the principle is the same, namely, that the legislature should have a share, though not an exclusive share, in preparing the state budget. The third plan of budget-making, which is used in seven or eight states, including Ohio, New Jersey, and Maryland, > On budpots antl biidKot-makinK mothods, see 8. Oale Lowrie, The Budget (MiKlison. 1012) ; K. E. A^ger, The Budqtl in the American Commnnwenlths (N. Y., 19()7) ; and Hutlclin No. 2 of the Massachusetts Conslitutioniil Coincntioii entitled "State Budgret Systems" (Bnaton. 1917}; and \V. F. VVilloughby, The Movement for Budgetary Reform in the Stales (X. Y., 1918}. •di7ss\'ms^'^f: . z'-^m^se .• :v . STATE FINANCE 467 is commonly known as the "executive budget" system. Under this arrangement the function of preparing a tentative budget of estimated revenue and expenditure is intrusted to the governor alone. The various financial officers trans- mit to him their estimates of probable income, and the administrative departments send in a statement of what money they desire for carrying on their work. To these the governor, after making su' h changes as he desires, adds his own proposals, whether they concern new revenues or new outlays. Then the whole budget is laid before the legislature for its consideration. In all these states except Maryland the legislature retains full power to amend or reject the budget whether prepared by its own committee, or by a joint body, or by the governor alone. It may increase, reduce, strike out, or insert any item. In Maryland, by a constitutional amendment adopted during 1916, the legislature is restricted to the power of reducing or striking out items only; it cannot insert or increase. The idea is to concentrate upon the governor the sole responsibility for all increases in state expenditure. The Maryland legislature is not, however, deprived of all initiative in matters of state finance. On any matter not included in the governor's budget the legislature may make, upon its own initiative, supplementary appropriations, but only under a special and rather difficult procedure which the constitution provides. There has been much discussion as to which of these budpi t-making plans is likely to give the best results. Is the work of 1)1! !get-making primarily a legislative or an executive function? In England, where the fruits of long experience are available, the entire initiative in all financial matters rests with the executive, the ministry. But the ministry, although constituting the executive, is nevertheless a great standing committee of parliament, all its members having seats in parliament. For its continued existence the minis- try is dependent upon the will of that body. It is therefore quite defensible to argue that England has a legislative budget system, since parliament, through a body made up of its own members, controls the entire budget-making power from start to finish. In the United States, however, owing a. The executive budget. Budget powers of legisla- tures. The Mary- land s,v«teni. Relative merits of different budeet plans. 468 THE GOVERNMENT OF THE UNITED STATES The absence of budgets in most of the states. The ex- ecutive type of budget is proving the most popular. to the divorce of executive from legislative power, there is no way in which the function of budget-making can be given entirely to one branch of the government without excluding the other. Hence, the rather cumbrous and not altogether promising experiment with joint budget-framing boards. The tendency in the states is towards vesting the budget- making power in the governor alone. This is because the plan insures concentration of lesponsibility and in the long run is apt to prove the most effective method of keeping expenditures within bounds. In most of the states the continued waste of public money is not occasioned by the use of one rather than the other of the foregoing budgetary systems, but by the fact that they have no budgets at all. Administrative officials go directly and individually to the legislature for their appropriations, and they usually get what money they ask for, provided they are influential enough politically. Members of the legislature spend their time and energies in trading and bargaining their votes on different appropriations, eacn striving to muster support for the things in which their own districts are concerned. The interests of reasonable economy demand that responsibility for proposals of in- creased expenditure shall be lodged somewhere. At pres- ent, in two-thirds of the states, it is located nowhere. It rests neither with the governor nor with the legislature. It is the right and privilege of any official, of any member of the legislature, and indeed of any citizen, to set the wheels in motion towards new expenditures. Proposals to spend money come forward every year by the thousand. Their chance of adoption is not proportioned to their merits, but rather to the political influences behind them. The governor represents the state as a whole, and the general direction of financial policy may on that account be appropriately committed to him. But this policy, if consistently followed, would disturb ihe traditional balance of power in state government. Analogous action in city government has made the mayor a much more powerful officer than he used to be. It is altogether probable, judg- ing from municipal experience, that a budget system like that of Maryland, if generally adopted by the states, would STATE FINANCE 469 in time greatly weaken .^9 authority of the legislature in matters of financial policy and lead to executive supremacy in that field. Such an outcome, however, would not neces- sarily be unfortunate, and there ar^ indications that the evolution of state government is steadily working towards it. State expenditures have risen at a rapid rate during the past generation, more rapidly than the increase of population or the growth of property values. During vhe decade 1906-1916 they more than doubled, and in the last-named year amounted to more than four hundred million dollars. Only a small part of this increase has been due to the rising cost of services and materials ; in larger measure it is merely an indication that the several states are taking on new functions without having learned to perform either new or old functions economically. Scarcely a legislative session passes in any of the states without some new activity being undertaken, whether in education, in the care of the poor, in the regulation of industry, in protecting the public health, in building state roads, in humanizing the prison system, and what not. All these new services cost money, very little at the outset, perhaps, but more and more as they get under way. Hence state expenditures keep growing in spite of the spasmodic endeavors of governors and legisla- tures to keep them down. It is difficult to make the reve- nues keep pace. The problem of making both ends meet has become, accordingly, the most difficult problem of American state government. It is not being satisfactorily solved. Many of the states, although their annual reports may not show it, are regularly spending more than they take in. That is one reason for the growing burden of state indebtedness. The states, like the nation, have power to borrow money and are unrestricted in the exercise of this power by any provision of the national constitution except that they may not "emit bills of credit," that is to say, they may not issue paper money. But many of the state constitutions set forth limitations upon the borrowing power.' These con- stitutional "debt limits" are of several sorts. In some ' Horace Secrist. An Economic Analysis of the Constitutional Restrictions upon Public Indebtedness in the United Stales (Madison, 1914). The rapid increase of state expendi- tures. Reasons therefor. State debts, and debt limits. Is the present debt burden excessive ? 470 THE GOVERNMENT OF THE UNITED STATES states a definite sum is fixed, above which "ndebtedness must not be incurred except for special purposes, or, in some instances, except with the express aissent of the people obtained at a referendum. In other states no definite sum is £.ied in the constitution, but the purposes for which debts may be mcurred are carefully >pecified, and borrowing for other purposes is not permitted except when certain onerous formalities have been comphed with. A few states fix the limit of indebtedness at a certain percentage of the total assessed value of taxable property. Only four of the forty- eight states have no constitutional debt limits at all. In the remaining forty-four the limitations are of the widest variety in character, scope, and stringency. At the one extreme is Louisiana, which permits no borrowing at all except for the purpose of repelling invasion or suppressing insurrection; at the other is Massachusetts, which has allowed its legisla- ture' to borrow as much as it pleased. Naturally there is a great variation in the amounts of indebtedness which the several states are carrying. This is not altogether (' 'e to the presence or absence of consti- tutional checks upon the borrowing power, but is in part accounted for by the wide difference in wliat the several states undertake to do for their citizens. No one of the forty-eight states is entirely without debt, although a few of them have no net debt ; in other words, their sinking-fund assets are sufficient to covir all obligations as they mature. Others have debts of moderate but steadily expanding dimensions, while not a few are paying interest each year on many millions of bonds. The net debt of New York state is more than one hundred and twenty-five millions. Massa- chusetts and California come next, with less than a quarter of that sum. In estimating the burden which a debt im- poses upon any state it is usual to express it in terms of so much per head of population. On that basis the burden is nowhere excessive. The net debt of New York is only about thirteen dollars per capita ; that of California, less than ten dollars. I'he national debt of the United States, expressed in per capita terms, is many times as much. The states borrow money, when they have occasion to do ' In November, 1918, MassaohusiHts established a debt limit. vfeMp-* STATE FINANCE 471 80, by the issue of bonds. These bonds run from ten to fifty years or even longer in some cases. A. generation or two ago it was the almost in-'ariable custom to issue bonds with no special provision for hi. ving funds in hand to pay them at maturity. Consequently when the bonds fell ('ue in twenty or fifty years thereafter, there was no easy way of making payment except by re-borrowing. Sometimes this could be effected at some saving by the issue of new bonds bearing a lower rate of interest than the old. Paying off old bonds by issuing new ones at a lower rate of interest, as has been mentioned, is commonly known as refunding. But in recent years it has become the practice, although there ire st''" many departures from it, to provide a sinking-fund whenever an issue of bonds is made. This is a fund into which is paid every yea " out of current income a sum sufficient to enable the bonds to be redeemed when they mature. The sinking-fund method of providing for the ultimate liquidation of state debts is of course far better than no provision at all, yet in actual practice it has shown serious defects. The necessary annual contributions to the fund are sometimes omitted for one reason or another, usually because of urgent demands from other quarters. Monev is sometimes taken from the fund to meet a temporary emergency and then is not replaced. The sinking-funds are occasionally invested without due care and Ijst. When a state invests its sinking-funds, it takes the same risk as a private individual. Because of lo-^ses in t^e past the laws nov/ restrict the investment of sinking-funds in such way as to reduce the element of risk to a minimum. But in any case the sinking-fund places a large amount of money and securities in the custody of a few officials who are usually chosen by popular vote, the state treasurer or a board of sinking-fund commissioners. The temptation to deposit the funds in favored banks or in other ways to use them for political or personal ends is sometimes too strong to be resisted. Hence it often happens, for one reason or another, tliat sinking-funds do not contain enough money when the time comes to use them in extinguishing the state's obliga- tions. A better plan of borrowing is to serialize the dates of Methods of borrowing, and of providing for repay- ment. 1. The sinking- fund system. Defects of this plan. '^ 472 THE GOVERNMENT OF THE UNITED STATES 2. The Berinl bond system. Some general consid- erations. maturity in such way that one or more bonds will come due for payment each year. This serial bond plan obviate? entirely the need of creating sinking-funds. A definite proportion of the debt is regularly extinguished each year by applying from current revenue what would go into the ."sinking-fund, more or less. Many cities now use the serial plan, and a few of the states have adopted it with highly satisfactory results. Between the ultimate cost of the two plans there is no fieat difference, provided each is carried out exactly as planned. But in actual practice the serial plan almost invariably works out to be the cheaper method of borrowing, for it entails no long holding-over and invest- ing of money with the attendant dangers of loss.' It has been the custom in some states to look upon all public debts as evils to be scrupulously avoided. In others the idea seems to be that nothing should be paid for out of current income if by any way it can be provided for by loan, and thus pa.ssed on to a future generation. Neither poUcy is sound. When money is needed for public works of endur- ing character, such as a .state capitol or a syst m of canals or of state highways, borrowing is a legitima e and even an equitable way of obtaining it. It is neither just nor expe- dient that the taxpayers of to-day sliould be forced either to bear the whole burden or go without. The cost of capital improvements may fairly be pro-rated over the years in which they arc destined to render service to the pubhc. On tlio other hand, future generations will have their 3wn sufficient burdens and ought not to be unduly hampered by legacies of d. bt from the past. • liullrliii Xn. 21 of the Massachusetts Constitutional Convention, entitled "Methods of Public Borrowing, Sinking Funds vs. Serial Bonds" (Boston, 1917), art references therein given. CHAPTER XXXIII STATE PARTIES AND PRACTICAL POLITICS In its party organization as well as in its frame of govern- ment each state of the Union is an independent unit. The states control all such matters as the suffrage, the methods of nomination, the settlement of electoral disputes, and even the mechanism of the parties themselves. The system of party committees, the methods of raising and spending party funds, and many other essentials of party organization are determined by the state laws. In matters affecting the machinery and work of its political parties each state has complete self-government. There are national party com- mittees, as has been seen, but they do not control the state organizations. This aspect of state ' o!f-government, to wit, party independence, has not always received the emphasis it deserves, but it is important because the party system, as Lord Bryce once remarked, is the power which sets and keeps in motion the wheels and pistons of rep- resentative government. Since each state is independent as regards the organization and machinery of its political parties, it is quite conceivable that each might develop and maintain a different system from the others, that each might have its own set of political parties based upon state issues and in no way connected with party organization in other states. But that is not what has happened. The same party divisions exist in all the states, and these divisions ar- is usually a paid official, an energetic worker with a capacity for handling details. The state committee also has its treasurer, upon whom devolves the duty of helping to raise the campaign fimds, paying the expenses, and finding some way to liquidate the inevitable deficit after the election is over. This 'ast problem, it need scarcely be added, is less difficult when the party wins than when it loses. A victorious party, with preferment and patronage in its gift, rarely lacks good angels. Mention has been made of the party convention. Ordi- The state narily each party holds a convention some time prior to the '""''*' state election. The members represent the party voters in the various municipaUties or distncts of tiie state. They may be chosen by districts, by towns, by wards, or by some other type of local unit. The selection, however, m-y be made directly by the party voters, as in Massachusetts, or m an indirect manner, as in New York. Ordinarily a party convention will contain a hundred or more delegates. When the convention meets, it chooses its own chairman and proceeds to business. Each party, of course, has its own separate convention. Until a decade or two ago, the party convention nominated lu work, all the candidates, drew up the party platform, and even selected the state committee. The nominating function it lias now lost in many of the states. Where the primary ' This topic and indeed all the other matters outlined in the present chapter are much more fully dealt with in P. Orman Ray's Introduction to PolUical Parlies and Practical Politics (2d ed., N. Y., 1917). convention. 478 T»K COVKIIXMENT OF THE UNITED STATES Tli(> i)arty lilatfurm in Htatf cmnpuigas. The local party committees. system of noniiiiution is in vogue the convention no longer selects tile candidates but leaves this work to the party voters. The convention's cliief work is to draw up the party phitform. This is usually done hy a committee appointed for the purpose. As a matter of practice, however, some of the party leaders usually apn e upon the main "planks" of the platform heforeliand, so that the work of the committee is merely that of putting them together for adoption hy the convention. Kach of parties issues a state platform at the outset of the campaign. These platforms purport to be declara- tions of what ihe party stands for in the coming state election, but they usually contain expressions of the party's attitude on national questions as well. Like the national party platforms they an; sotnetimes evasive and tend to make a specialty of platitudes. A portion of tin; platform is always devoted to a criticism of what the opposing party has done or has failed to do. Then come intimations of how the party itself proposes to hasten the millennium. Inter- woven with th(>se things, occasionally, are expressions of opinion upon various matters of foreign policy, with which the state has no concern. These declarations are of course quit(> innocuous and merely inserted to humor some section of the voters. That is why the New York party platform^ are solicitous for the Jews in Russia, while those of Massa- chusetts contain a perennial declaration in lavor of Irish home rule. On some points, of course, the pledges of a party platform are specific, hut the mon; dc'finite the pro- visions the greater are tlu> chances of future embarrassment in case the party changes front. The work of both the state central committee and the party convention is of a general nature, T-.^-se bodies plan and supervise. The real burden and heat of the day arc borne l)y the local committees and the ancillary organizations which (>xist in every ^^enatorial or assembly district, in every county, town, or township, in every city, and indeed in every ward of a city. Where the party is thoroughly organized this committee system extends even to thevotini precincts, tlie smallest electoral unit of all. It is to these committees that the party leaders look for the proper -.■'»i£3^amK}i9^rr^^^' TSf^rffir ■aBF STATE PARTIES AXD PRACTICAL P()LITIC^ 479 registration of the voters, the canvjissinK, the holding of local rallies, the provitling of conveyances for voters on election day, and the mustering of a full party vote at tlic polls. These committees are chosen in all sorts of ways, l)Ut their functions an? much the sanH> everywhere. Their members are active party workers. The precinct or ward committee is no place for slackers. State conventions and committees may provide the platform, the candidates, and the funds, but the active work among the voters must be done by local organizations. It is upon them, accordingly, that victory in a close campaign usually depends. The proof of good state leadership is to be found in the efficiency of these local bodies. In addition to the local committees there are various ancillary or independent party associations, particularly in the cities. These usuallj- take the name of leagues or clubs, and their main purpose is political although they may have some social activities as well, especially in the intervals between election campaigns. Groups of voters belonging to a party organize themselves together, secure a hall or other headquarters and make it their place ot rendezvous. Usually there is a recognized leader as the moving spirit of the organization, and the members make up his personal following. Tlie reasons for the existence of such organi? ions are in port practical a»\d in part psychological. Not all the jinrty woikers can b> ^iven places on the local committees. 'Hie clubs or leagues afford opportunities for many others who are ready to help in an unofficial capacity. Moreover, these associations can do thin^ which a regular party com- mittee might hesitate to do. Tlie activities and expendi- tures of the regular committees must Ve conducted strictly according to law, but the clubs are not so closely hampered in their operations. Tlie party may welcome their help, but it can also disclaim responsibility for the acts of voluntary and non-official groups over which its leaders have theoreti- cally no control. The party's war ^^est often contributes to the expenses of these clubs, V-owevcr, and they are an integral part of the political macaine. These - a practical considerations. As a matter of psychology, moreover, men Their work Ancillary party organi- i:'Mons, and clubs Reasons for their existencei practirtU and psycho- logical. Ksn.^'H- •mei^i^s'ss^i' :,i! 1 480 THE GOVERNMENT OF THE UNITllD STATES The machine. A purely American institution. Why it has evolved in the United States. 1. Fre- quency of elections. liko to be amons their fellows when there is excitement and particularly when the spirit of victory is in the air. Im- personal loyalty to a political party does not satisfy the more ardent partisans, and the clubs provide the opportunity for making this allegiance more personal. Tlie active workers in these conventions, central and local committees, clubs, the leaders, and bosses, together make up the party machine. It is appropriately so called because its various parts are smoothly geared together, and possibly also because it constantly needs financial lubrication. Political machines exist in America only.' There are party organizations in otlier countries, but they are not called machines and do not deserve the name, for they po.ssess no such smootii articulation nor are they lield so well under central control as are the political machines of the American states. Yet the development of the machine in America is not an accident. Various conditions and circumstances have contributed to its upbuilding. Among these causes one of the most important is the frequency of elections, due to the fact that so many officials of state government are elective and hold their posts for short terms. In no other country do elections come so often. No sooner do the echoes of one campaign die away than the preliminaries begin to be arranged for the next. The result i.s that those who look after the party's interests have time for little else. A fraternity of professional politicians is the logical outcome. The professional politician is more in evidence among .Vmericans than among Europeans for the simple reason that Americans provide far more for him to do. If poli'ical campaigns were four or six years apart, as they 'The terms "party ortjanization " and "party maelune" are often used synonymously, but strictly speaking the organization includes all the members of tiic party while the machine includes the active workers only. A machine exists, therefore, only when the organization is highly efficient and has a considerable number of well-disciplined workers. The term " machine " is also ustsd, sometimes, to designate the personal organi- zation of a particular leader within the party. The machine may thus be the party organization as a whole, or only a part of it, or it may have no direct connection with the regular organization at all. It can be defined perhaps as a thoroughly nrsr.aniy.nd hif-rarchy of party workers supporting either a leader or a cause. On its evolution and methods, see Samuel P. Orth, The Boss and the Machine (Now Haven, 1919). STATE PARTIES AND PRACTICAL POLITICS 481 are on the other side of the Atlantic, it would not be so easy to keep party organizations in full working trim from election to election. But when voters are called to the polls at least every year for some form of election and sometimes (if the primary be included) even twice or three times a year, the political leaders are never accorded a long vacation. The American political machine would rus^t in other countries. The vice of patronage has also hivd its part in creating 2. The the machine. Patronage is of two sorts, offices and favors. '"'^"^^• The distribution of offices under the spoils system, by which pa'troniw. party heelers are rewarded with lucrative appointments, has been a natural incentive to political diligence. State and local committeemen, organizers of clubs and rallies, and those who pull door-bells as canvassers, do not give days its various and weeks to their work from motives of pure patriotism. ^°"°'- They are, for the most part, seekers after the loaves and fishes which they hope to see distributed when the time comes. The spoils system has provided one means of rewarding them. But there is another form of patronage, and although it has had less prominence in public discussion it is even more influential in its contribution to the vitality of the machine. This form of patronage includes the controlling of legislation so that party leaders or their friends may be financially benefited. It includes also the awarding of contracts for public works and the bestowal of favors in a multitude of other ways. It is not from those who aspire to places on tlie public payroll that all the money which keeps the ma- chine in operation is usually obtained. It comes from public service corporations, or if corporations are prohibited by law from contributing to party funds, it is supplied by • individuals who are known to be in touch with them. It comes from contractors, from those who have supplies which they desire at some favorable opportunity to sell to 1 lie state or the city, from the liquor dealers who seek to fi)rtify their trade against hostile legislation, and from a variety of other sources where the quest for public favors is the mainspring of private gencropity. The national party organizations derive a goodly proportion of their funds in ^mall or moderate contributions from the rank and file of the 2i 482 THE GOVERNMENT OF THE UNITED SIATES 3. Other far tors which have helped the Rrmvth of political machines. America's moat con- spicuous machine : Tammany Hall. voters ; but the state organizations secure relatively less from that source. The machine, in a word, flourishes because the system of practical politics which exists in most of the states provides the sinowS of war in the form of patronage. Civil service reform has done somethinf to minimize this evil, and strict laws relating to the competitive awarding of contracts have also helped in some measure. Yet valiant party service and free-handed contributions to the party chest continue *:r. be recognized as the surest passports to official favor. Other factors have also, no doubt, contributed to the PV( Uition of political mr.chines in America. The presence of newly naturalized citizens in large numbers, particularly in some of the eastern states, has been an incentive to thorough organization. Assiduous party propaganda counts for much with these voters who have not, like the native- born, inherited a predilection towards one or other of the regular parties. The long ballot with its party columns and its consequent premium on voting a straight ticket has also played into the hands of the machine. The apathy and docility of the rank and file of the voters, which is probably more pronounced in the United States than in most other countries, may also be a contributing factor. Tlie poHtieal m:. bine exists because conditions of environment have been favorable to it. By common consent the most efficient party machine in the country is the organization known as Tammany Hall.^ It is the local organization of the Democratic party for New York County (which includes only a portion of New York City) ; but it exercises a considerable influence upon the party's organization in New York state as a whole. Originating in the eighteenth century as a benevolent and fraternal association, it was first known as the Society of St. Tammany. Soon, however, the organization became strongly partisan and anti-Federalist. Aaron Burr was its first prominent leader, and ho managed to make it a tower ' This is. of course, the name of the headcjuartors ; hut it i« popularly uspd to personify tho orRani/.ation itself. A full account of the organi- zation mav ho found in Oustavus Myers, History of Tammany Hall (2d ed.. N. Y., 1917). '.^.i^f .s^smKsr^ :i%^t .,B*. ■, STATE PARTIES AND PRACTICAL POLITICS 483 of strength to the Republican party of his day. ^^^len the old Republican party went to pieces and the Jacksonian Democrats obtained their long lease of power, Tammany became a Democratic-Republican organization and it still bears this official title, although it has of course no affiliations with the Republican party of to-day. It has become so famous the world over and is so conspicuous for its machine- like operations, if not for its political ideals, that a sketch of Its organization and methods may well be included here The jurisdiction of Tammany extends over the thirty entire assembly districts and one-half assembly district which are included within New York County.^ In each of th ,se assembly districts the Democratic voters choose at an annual primary a district general committee, the membership of which varies according to the number of voters. The choice is made by election precincts, each precinct choosing its quota of committeemen. This dis- trict general committee is the chief party organ in the assembly district.* Its chairman, chosen by itself, is the directing figure in Its operations. He appoints in every election district or precinct a district captain who is the oflScial agent of the party in the precinct and is responsible for the showing which it makes on election day. He assigns the party workers m his precinct to their various tasks, a.; anvassers, watchers at the polls, challengers, or messengers. Each captain receives from the county committee's treasurer a sum of money to cover the expenses of this work, but is not paid for his own services. These captains form the stuff which carries out the instructions of the district central ' Theso are the districts which elect assemblymen to the state lems- lature at Albany. » The district central committee appoints from outside its own member- ship an auxiliary committee to assist it in its general activities, likewise several sub-committees from among its own members. Each district also has Its clubs, usually bearing the name of some past or present district garter These clubs mamtain then- headquarters the year around ^rom time to time they provide smokers, banquets, picnics, and so on for members and their fnonds. At Christm«s and on other occwinr,. they also make gifts of food, clothing, shoes or fuel to the poor of the district, but when an elect on campaign draws near, the activities of these dubs are wholly politioal. Its oriuin and early history. Its present structure. 1. The district general committeoa. 2. The district chairman. 484 THE GOVERNMENT OF THE UNITED STATES 3. Th;i district leader or district 4. The county committee and its executive committee. 5. The county leader or boss of Tammany. Why he is a true boss. committee. They are an active body and much of Tam- many 's strength depends upon their work.' But the district chairman, who appoints these captains, is not the district leader, so-called. The latter, who is also cliosen by the district general committee, is the district's representative on the executive of the county committee; in addition he makes the various recommendations for appointments to office, apportions whatever patronage may be allotted to his district, and exercises a considerable influence over the selection of the party's candidates. In the practical aspects of political activity the district leader is a much more important personage than the district chairman. For the whole county there is the county or general committee made up of all the members of the thirty district central committees sitting together. On paper it is a very large body, numbering several thousand members ; but as it holds no regular meetings this unwieldiness is no obstacle. All its business is done by an executive committee made up of the thirty district leaders, together with some ex-officio members.2 This committee chooses its own chairman ; but he is ;iot the county leader, or boss of Tammany Hall. The latter is informally elected by the high lights of the party, whether district leaders or not, and technically is only an ordinary member of the executive committee. But lie is l)y general acquiescence the dominating figure in that body, and his advice, whether on matters of policy or methods, is regularly followed. The head of Tammany Hall is thus a party boss in the true sense of the term, a man who ^.'xercises large political powers without holding any official position or incurring any official responsibility. Leader and boss are often used as interchangeable words in the vernacular of practical politics, but it is not accurate to employ them in that way. A leader has a position which is clearly defined by law or by the rules of the organization. He has definite duties and a ■AH the precinct emtains in each assembly district meet from time to time to discuss plans and to insure thorough cooperation as regard? both aims and methods. 2 This cxpcTstive committee appoints the various standing committees which also act. within their special fields, on behalf of the dormant county committee. STATE PARTIES AND PRACTICAL POLITICS 485 direct responsibility whicli he cannot conceal. His acts are performed in the open. A boss, on the other hand, wliile he may be a party official, does not derive his power from that fact. His authority comes through informal and un- defined channels ; he uses his machine for personal as well as party ends ; and he does not owe any real responsibility to the rank and file of the voters. In methods also, as well as in responsibility, leadership and bossism are different. "The difference between a boss and a leader," as Theodore Roosevelt once remarked, "is that a leader leads and a boss drives. The difference is that a leader holds his place by firing the conscience and ap- pealing to the reason of his followers, while a boss holds his place by corrupt and underhand manipulation. The difference is that a leader works in the light of day while the boss derives the greater part of his power from deeds done under cover of darkness." '" Every area of party organi- zation has its leader or recognized head ; but not every such area has a boss. ^Y\\ere it has both, the two may or may not be the same person. Many denunciations have been showered upon bosses and bossism ; but both are logical products of political conditions which have existed in most American states and cities until recent years, and which still continue in some of them. Discipline helps to win elections as well as battles, and good discipline cannot be maintained except by lodging vast final powers in the hands of a shrewd, active, and experienced commander-in-chief. The man who is best fitted to organize the party cohorts, to drive them forward at top speed, to dole out the funds where they will do most good, and to provide whatever strategy the campaign may demand is not always the one whom the party cares to put on a pedestal as its official leader. Far better it is, in such cases, to have someone of irreproachable record and demeanor in the post of technical leadership, while informally leaving the real power to some Warwick behind the throne. There will be bosses in American politics so long as government by " Speech at the New York St^te Convention, Septembor, 1910, quoted by T» Orm-n Ray, Political Parlies and P, acticeU Politics (2d ed N Y 10 -■ •V-467. "^ w. i^. I., Bosses and leaders distin- guished : 1. in responsi- bility. 2. in methods. The po- litical circum- stances which have en- couraged bos-sism in America. 486 THE GOVEltXMENT OF THE UNITED STATES Whore does bossism find its moat fertile soil? Qualities a boas muat have. patronage, the spoils system, the multiplicity of elective offices, the long ballot, the frequency of polling, the lobl)y, the policy of legislation by trade and bargaining, the gerry- mander, and a dozen other iniquities combine to place at a disadvantage the leader who insists upon tair and open methods of electoral combat. There has never been a national boss in the United Sf ates, at an} rate, not since Andrew Jackson's day, and the chief reason is that the methods of national organization and political campaigning do not lend themselves readily to bossism. In some states, for the same reason, there are no bosses. In others, where the tone of politics is mere sordid, the boss is a well-estabhshed institution. Bossism has flour- ished particularly in the large cities, where party methods have sometimes descended to the lowest plane of all. Tlie standards of political morality, in short, determine whether leadership or bossism shall dominate the activities of parties. A successful boss must be possessed of personal qualifi- cations. He must be firm in purpose, aggressive, and courageous. He must not be arrogant and dictatorial in dealing with his followers, but patient, tactful and al^ounding in resource when there are difficulties to be surmounted or animosities to be ironed out. He must bo a shrewd judge of naen, able to detect variations in the pulse of public opinion, and never caught napping when opportunity is before his eyes. He must have a vigorous physique, able to stand hard work and to enjoy it. H.bits of dissi- pation will bring a boss to grief in short oruer. He must have a zest for doing favors, thus placing voters and their friends under obligations to him. His motives may be in all cases selfish or sordid, but that matters little. In time of trouble it is deeds and not motives that count with those whom the boss befriends. Finally, he must know the tricks of his trade and have no ingrowing conscience to hamper his freedom in applying them. Bosses wlio continue in power oyer long periods are for the most part men whose natural gifts would readily bring them success in other vocations. Tl> 'V cline to politics for the love of it, nnd very few, despite a popular impression to the contrary, make money out of it. The cure for bossism is in the eradication of the things 'iifif-: ^FT i,:i'?W.i'._!i STATE PARTIES AND PRACTICAL POLITICS 487 which have brought it into being. The reduction in the number of elective offices, the use of the sliort ballot, the extension of the merit system to all subordinate appoint- ments and to all promotions, the simplification of nominating and election machinery, the practice of requiring all cam- paign contributions and expenditures to be matlo public, the placing of all public contracts on an open-competition basis, the purchase of all supphes by public tender, the extermination of lobbying in legislatures, the extension of social service facilities in the crowded sections of large cities, and the encouragement of civic education — these reforms have helped and are helping to rid the states of boss politics. Such riddance, moreover, is in the highest degree desirable, for no political system can be really democratic so long as it suffers any man to exercise large political powers without formal authority or responsibility. 'Die boss system trans- forms free government into autocracy. It is far-reaching in its ramifications and insidious in its effects. A clear distinction sliould be made, however, between these excrescences upon the party system and the system itself. Too often the merits of party organization are wholly dis- regarded. Its lapses are made the theme of sermons and editorials which advocate the ruthless harrj'ing of all party organizations. That is Hke urging the abolition of bank notes because they are sometimes counterfeited, or of news- papers because some of them print libels. The founders of tlie nation had an aversion to party politics, as well they n'ight, for party struggles were associated in their imagina- tion with the old factional conflicts of the Greek and Roman repubUcs, of Guelphs and ^' -.bellinefi in the Middle Ages, and of Cavaliers and Roundheads in seventeenth century England. These were party struggles in which bloodshed, conspiracy and banishment figured as part of the day's work. But the history of nations during the last hundred years has shown that party contests can be conducted fairly, on clear-cut issues, and without personal malice. It has proved, moreover, that real democracy can nowhere exist without party organization. These lessons, as President Lowell has said, represent the greatest single contribution of the nineteenth century to the art of free government. The remedies fiT boss rule. Ridding the land of bosses does not mean the abolitiim or we.'ik- cniiig of the party system. CHAPTER XXXIV THK STATE COURTS R.l.ilion f>t the ^tate to the fedora courts. Early history of state courts. In addition to the federal courts already described, every state of the Union has a system of state courts established under the provisions of its own constitution and laws. Between tlif'se state courts and the federal courts there are many marked similarities of organization and procedure, but two essential differences arc to be noted. One is that in most of the states the judges are elected by the people, whereas there are no elective judges in any federal courts. The other difference has to do with the range of jurisdiction possessed by the two sets of tribunals. The matters with which the federal courts may deal arc explicitly defined in the constitution of the United States. The federal courts possess such branches of jurisdiction as are there enumerated, and no more. The state courts, on the other hand, are vested witli all remaining judicial authority. The result is that the state courts exercise authority over a far wider range, and handle a far larger proportion of the total litiga- tion of the country, than do the federal courts. The state courts, in their organization and procedure, are an inheritance from the colonial period, but their evolution has been considerably influenced by the p'inciple of separa- tion of powers. The administration of justice in the colonies was not always kept distinct from the making and the execution of the laws. The governor and his advisers some- times served as the supreme court of the colony. After the winning of independence the various colonial courts were transformed into state tribunals without great alteration, and it was nul until a half century after liie ReVoluti>.n that radical departures from the traditional English forms of organization began. 488 5r. =■>..■;, f T«?^S?r^*£55^ ^s^vm^- uVx"i*-'-5Rrf:S-; THE STATE COURTS 489 These changes, which involved more particularly a democratization of the courts, were due to the influence of the new states, particularly during the Jacksonian era. They were part and parcel of the frontier influence upon American government during the second quarter of the nineteenth century. Pioneer communities want certainty, promptness, simphcity, cheapness, and a certain pro- pinquity to popular sentiment in the administration of justice. These needs directly controlled the development of judicial institutions in the pioneer states and indirectly affected judicial institutions in all the states.' They led to the supplanting of appointive by elec; ve judges, the estab- lishing of regular local courts in pla( of circuit tribunals which came only at intervals to each locality, and the simpli- fication of procedure. Tliis frontier influence was naturally least effective in the older states, particularly in New England, where it was not felt to any appreciable degree. Other currents and cross- currents of judicial reorganization have also surged from time to time during the past fifty years, but not with equal strength in all the states. The several states have developed differences in the character and distribution of their popula- tions, likewise in the complexity of the problems with which their courts have to deal. Some have become great indus- trial conglomerations, with the need for a greater refinement of jurisprudence, for more learned and capable judges, and for a higher degree of speciaHzation in the structure of their courts. Tliey have developed their judicial systems accordingly. Others remain agricultural areas, with the relative simplicity of rural life, and hence have no such need for so high a degree of expert ness or professionalism in their judiciary. They can and do proceed upon the principle that every man is competent to be his own lawyer and everj- lawyer fit to be a judge, a doctrine which would soon bring chaos in states where legal relations are more intricate. Hence it is that no two states have judicial systems exactly alike in organization or in procedure. Each has adapted its method of selecting judges, its rules of procedure, ' A. N. Holcombe, State Government in the United States (N. Y.. 1916), p. 347. Their dt'inocra- tizution during the nine- teenth century. The ad- justment (if state courts to com- munity needs. Kt J--: ?^^Z^^ir3<[lS*C7^i-^rJFra^w' state now comprises at least three sets of courts, sometimes more.* First there are local courts, presided over in most cases by justices of the peace, municipal justices, or similar officers who are chosen by popular election in all bur a verj' few states. Everj'where the jurisdiction of these local courts is limited to civil and criminal cases of relatively minor importance. Frequently, however, the local justice conducts the preliminary hearings where serious criminal charges have been made and determines whether or not the accused shall be held for trial by a higher court. Tliese local courts are not provided with juries ; their pro- cedure is of a summarj' character, and their work usually leaves much room for improvement. As a rule the justices of the peace have had no training in the law and their administration of justice is proverbially crude. It has the saving grace, however, that if the justice does not know the law he knows the suitor md his tlecisions are probably not far wide of the etern;, juities. Nevertheless, the faulty work of these lowest courts and the frequency with which one can successfully appeal from their decisions have con- tributed to the congestion of business in the higher state tribunals. Next come a higher range of courts, frequently known as county courts, which hear appeals from the decisions of the local justices and which also have original jurisdiction over a considerable range of cases, both civil and criminal. In some states these county courts, after the old English fashion, are given certain functions of an administrative character, >8.E. Baldwin TAe American Judiciary (X. Y., 1908), espeeiaUy en. vui, and A. N. Holcombe, State Government (N. Y., 1916), ch. xi. •:'** THE STATE COURTS 491 and other inter- mediate including tb pervision of county prisons, the main- tenance of couuty roads, and various matters relating to poor relief. A county court is presided over by a judge who is in most states elected by popular vote. As a rule provision is made for trial by jury in these courts. In some states, especially in New England, there are no regular county courts of this sort. Their place is taken by sessions of the Superior Court which are held at stated times in each county. The Superior Court, as it is called in Massachusetts and some other states, or District Court as it is frequently called ii) western states, has authority to hear cases both at law couru, and in equity on appeal from the lower tribunals and also has practically unlimited jurisdiction in all higher civil and criminal cases. Invariably these courts are empowered to try cases with the assistance of a jury. Tlieir decisions are ordinarily final so far as the facts of a controversy are con- cerned. The judges of these intermediate courts, whether district or superior tribunals, are in most states elected by popular vote; in a few s+?tes they are appointed by the governor. Finally, each state has a tribunal of last resort, usually 3. The called the Supreme Court, but sometimes the Court of Errors, or the Court of Appeals.* It has original juris- diction in only a few matters ; most controversies come be- fore it by way of appeal from decisions of tribunals below. Moreover, it deals, in the main, with questions "f law, not questions of fact. The state Supreme Court ii . ludes from five to fifteen judges (the number is fixed by law), who are either elected for considerable terms, or appointed by the governor, or in rare cases chosen by the legislative. Every- where this highest state court has the last word in litigation except in those relatively few cases where, because the controversy raises some subntantial point involving the federal constitution or the federal laws, the matter may be carried, by the issue of a writ of error, to the Supreme Court of the United States. highest state court*. ' The nomenclature in New York State is confusing. The Supreme Court of that state does not have final jurisdiction. Final authority is given to the Court of Appeals. !ctt FET 492 THE GOVERNMENT OF THE UNITED STATES The su- preranry of the state courts in their own ipbcre. Relative infre- quency of federal inter- ference with state decisions. Tlior;^ is an impression in the popuhir mind that all state courts are subordinate to all federal courts, that the lowest court in the federal system is superior to the hijiliest state court. To students of government it should be superfluous to mention that sudi impression is altogetlier wrong. Each set of courts is independent, each has its own field of juris- diction and within that field cannot bo interfered with by the other. Most cases which originate in the state courts reach their final determination tliere. Not one in a thousand among them ever reaches the federal Supreme Court. Whether a case is brought before a state or a federal court in the first instance depends wholly upon the nature of the case it.self. If it concerns matters or persons within state jurisdiction, the state courts handle it ; if it concerns matters or persons within federal authority, it goes before the federal courts. If the suit is commenced in cither, and in the course of the trial it becomes apparent that it should have been entered in the other, it can be removed to the latter. But if a controversy is pro{)erly within the juris- diction of the state courts it can go no farther than the highest state tribunal unless the Supreme Court of the United States olitains appellate cognizance of it by writ of error. No such writ of error, to take a cabL on .'ppeal fioui the highest state court to the highest federal court, will be issued "unless it appears afhnnatively that not only was a federal question presented for decision to the highest court of the state having jurisdiction, but that its decision was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not ;! *vo been given without deciding it."' In the vast majority of instances this condition, which is the essential of appeals to the federal Supreme Court, cannot be met, and there is consequently no chance of an appeal. The Supreme Court of the Uni+ed States has not been free-hand(Hl in its interference with tlie decisions of the highest state tribunals. It has repeatedly declared that in controversies affecting the interpretation of a state law the decision of the highest court in that state is ordinarily to be regarded as final and will not be set aside. It concedes, > De Sawaure vs. Gaillard, 127 U. S. 216. THE STATE COURTS 493 therefore, as a matter of deference to state sovereignty, that those who proceed in the stat' courts must accept whatever interpretation of the state hiws these tribunals may finally give. When the highest state court, moreover, passes upon any question as to whether a state law is or is not repugnant to the federal constitution and decides that the law is on that ground unconstitutional, the Supreme Court of the United States has not been empowered until within the last few yearc to review such decision. Now, however, the Supreme Court of the United States may hear appeals concerning the con- stitutionality of state laws in relation to the federal constitu- tion, no matter what the decision of the highest .state court may have been.* Vv hen state laws are declared unconstitu- tional, however, it is usually by the state courts and because of their repugnance to the constitution of the state, not to that of the nation. In addition to its regular tribunals every state has certain Special courts of a special character. Among these are probate or ''°'»'*^ surrogate's courts for the settlement of questions relating to wills and inheritances, although in some states th'ire are no special courts for these matters, the work being done by the regular county courts. In a few states there is a tribunal known as the Land Court, which has to do with the investi- gation and registration of lannty-one years, in New York for fourteen years, and in Illinois for six years. In Vermont they are chosen by the legislature for two years only. Many states make a distinction between the judges of the higher and the lower courts, giving the former longer terms. Much may 1)e said both for and against the practice of choosing judges l)y popular eli^ction. Before the Revolution the judges were appointed l)y the crown through the governor in all the colonies except in Rhode Island and Connecticut, where they were chosen by the ass(>mbly. The early state constitutions for the most part followed this latter precedent and intrusted to the legislature the function of choosing the judges, although in some cases it was left with the governor. In only one of the original tliirt(>en states, Georgia, were judges chosen by popular vote.^ This elective mcihod made no considerable progress for many years after the Union was established, but the Jacksonian democracy gave it great impetus and it thereafter continued to spread, particularly through the new states of the West. To-day there are no appointive judges west of the Alleghanies except in the single state of Mississippi. In only five states outside New Eng- land arc the judges of the state Supreme Court chosen other- wise than by popular election. The reasons which dictated resort to popular election of judges w^ere both sentimental and practical. The fixed > Delaware, Now Jersey, Massachusetts, Now Hampshire, Maine, and Mississippi. ' Rhode fsland, Vormont. Suutb Carolina, and Virginia. ^'F. N. Judson (The Judiciary and the People, New Haven, 1913, p. 130) declares that none of the states had elective judges in 1789. ■H«flPTa»llBF'-« THE STATE COURTS 495 notion that no branch of the government should exist outside the realm of direct popular c(>ntrol is one which must always he reckoned with in i-'li . iUtrocratic comnmnities. People are apt to reason tl- .: liiey sliou! '. directly control not only the making and ai irii-^uavion > l their own laws but the interpretation of tl > i law,- ns veil. 'Die tide of popular opinion set stronglj in iiia. ''rection during the middle period of American constitutional history and has continued without greatly diminished force down to the present day. More practical reasons for the change from appointive to elective judges were to be found in the partisanship and chicaner)'^ which too often marked the selection of judges by legislatures in the early part of the nineteenth century. By dint of political manijjulation and appeals to party allegiance men of doubtful integrity were frequently elevated to judicial positions. Hence the demand foi» the popular election of judges was in part a protest against the way in which legis- latures were abusing their trust, just as in latter days and for much the same reasons ])ublic opinion insisted upon the popular election of United States senators in place of their appointment by state legislatures. Nor docs tlie plan of letting the governor choose the judges ])rove to be free from serious objection. Judicial appoint- ments made imder that plan often go as the reward of party service to men who are not properly qualified. .Vppointment by governors has not, on the whole, worked out so unsatisfactorily as selection by legislatures, but it does not to-day commend itself to many of the states. Popular election has obtained thi* upper hand. But in actual operation, as experience proves, the people do not really choose their judges. How, indeed, can a l)()()v of a hundred thousand voters obtain the knowledge nr sary to insure the placing of legal knowledge, sound jiKi^ment, and integrity on the state bench? The answer is, that the people do not have such knowledge and do not presume to have it. In many states there is a tradition that a judge, when once elected, shall be retained in office so long :1s liis conduct is at all satisfactorj'. This means, then, that vacancies on the bench occur, for the most part, only when a judge dies or resigns. When vacancies come in this way, Reasons for itii adoption. 1. Tho logic of popular sover- eignty. 2. Defects of legis- lative selection. 3. Poor appoint- ments often made by governors. How the Bjstem of elective judges has worked out. ^^^Ht^iS^^^^npB^^ss^R 496 THE GOVERNMENT OF THE UNITED STATES The in- fluence of interim appoint- menta. Influence of bar associa- tions and of political leaders. Popular election of judges almost always means de facto appoint- ment. The re- moval of judges: 1. by im- peachment. the governor is usually given the right to make an appoint- ment until the next election, and this appointee is likcl}' afe that time to be a candidate with the chances much in his favor. Many elective judges, therefore, really owe their election to a governor's temporary appointment. If it happens, on the other hanil, that a judge retires upon the expiry of his elective term, the choice among aspirants for his place is almost invariably made, in the first instance, either by the prominent lawyers of the state or by the political leaders. The voters merely choose as between rival candidates thus presented to them. WHiichever way they decide they merely approve one or other of the preliminary selections made by the leading lawyers or politicians. Other candidates, supported neither by the bar associations nor by political parties, have ordinarily no chance of being elected. Under the system of nonrinations by convention the political leaders did their work openly and with a certain sense of responsibility ; under the plan of nomination by direct primaries they merely do it less openly and without respon- sibility. A\Tierever judges arc cliosen by popular election there is almost always a de facto appointing power. Wiether the system of election works out well or otherwise depends upon where this de facto power resides and how wLsely it is used. There is no great difference in tlie quality of judges obtained in Mas.sachusctts by governor's appointment and in Wis- consin by popular election. This is because the lawyers, through their bar associations, have a considerable influence in both.^ 'Die system of elective judges works best where the legal fraternity has the greatest practical weight in mak- ing the preliminary selections; it works badly where the nominations are dictated by the political leaders. Closely conn '.-ted with the question of appointing judges is the method of removing them from the bench. Judges of the federal courts may be removed in one way only, that is, by impeachment. Judges of state courts may be removed by impeachment also, but some of the states provide two ' There is an illuminatititj diRoussion of this matter, showing the relation between de jun lection and de facto appointment, in Bulletin No. IV A, of the American Judicature Society. THE STATE COURTS 497 other methods of removal, namely, by address, or by rpcall. Removal by impeachment is an available method in all the states without option. The process involves the fil- ing of charges by the lower chamber and a trial before the upper chamber of the legislature. Conviction usually re- quires a two-thirds vote. Removals have frequently been accomolished in this way, but the total number is not large. Removal "by address" is not a usual method of ousting 2. by a state judge from office although it is provided for in several ^^^^ states. It has its prototype in a procedure which has long existed in England and which was there devised as a means of protecting the judges against arbitrary removal by the crown. As established in various American states it permits the governor to remove a judge from office in compliance witli an "address" or formal request of the legislalure. As :i rule, a two-thirds vote of both Houses of the legislature is necessary, but not always. In Massachusetts, for example, a mere majority suffices. It is not ordinarily required that specific charges be filed or that anything like a trial, as i an impeachment, isliall be conducted ; but it is customar 1 > icduco the complaints against a judge to written form a. 1 to give him some sort of hearing thereon, either before a committee of the legislature or before the governor. The governor, moreover, is not liound to act in response to an iuldress for removal unless he chooses to do so. There is a marked difference, accordingly, between a removal by impeachment and a removal by address. The former is a judicial proceeding and is carried out with due regard to the forms of law and the rights of the accused. The latter is an ex parte legislative process with the final decision resting in the governor's hands. Another difference is that a con- viction by impeachment may disqualify from office for the future, whereas a removal by address does not. A third method of removing judges exists in a few states, 3 ^^ namely, by means of the recall.' '^This device is elsewhere »c»U. fxplauied with respect to the executive and legislative branches of state government ; its machinerj' and workings ' OrpRon, California, Arizona, Colorado, and Nevada, 498 THE GOVERNMENT OF THE UNITED STATES Reputed niiTits and defects of the reoall as npplieil to the judiciary. The recall of judicial decisious. are much the same when applied to the judiciary.' A petition sifrned l)y a desi-rnated number of voters is pre- sentetl asking for the recall of a judge from office. The question is put upon tlie ballot, and if the popular verdict is adverse, the judfje steps Jowu. The reputed merit of the plan is tliat it ser Keep the interpretation and (enforcement of the laws in .. .uony with public sentiment. Tlie judf!;(> sits with the sword of Damo- cles over liis head, being thus reminded that he is the servant and not the master of the people. On the otlier hand the ol)jections commonly urged against tlie recall of adminis- trative officials apply witli even grt^ater force in the case of judges. Tlie courts sliould be free from the momentary onsets of prejudice or passion. Courage and independence, freedom from the taint o"" political partiality, arc essentials of a good judiciary. It i.- argued that the recall will place a premium on pusillanimity, making the bench no longer a rock of defence against the abuse of political powc-, but a reed shaken by every gust of sentiment or prejudice. Much will depend, of course, upon the tradition which the recall develops. If wisely and conservatively used, the recall ofTers no greater menace to the independence of the judges than does the plan of removal by address. Tlie latter miglit easily liecome a weajwn of shameless intimidation, but has nowhere done so. Potential dangers, it ought to be rememl)ered, are often not realized in the actual prac- tice of free government. The recall of judicial decisions has been adopted in one state only, Colorado. When the Supreme Court of that state declares any law to be unconstitutional, a stated number of voters may petition to have a popular referendum on the question of enforcing the law despite the court's decision. The popular verdict, whatever it is, will then prevail. Tlie power of recalling judicial decisions, it should be noted, does not apply to all judgments, but only to those which deny the constitutionality of laws. The arrangement merely embodies a poor method of doing what could be quite as easily accomplished in a le.ss offensive way, namely, by amending the state constitu:ion so as to bring the par- ' Below, pp. 518-521. -.-J^ 'Wi 4A*' ■^ ■L^- ' -l-.. .. ■Fff W!^. ^m THE STATE COURTS 499 ticular law within bounds. It is ordinarily no more difficult to amend a state constitution than to order the enforcement of an unconstitutional law, a popular majority being the chief requirement in either case. Many state laws are held unconstitutional because they violate the provisions of the national constitution. The highest state courts are to that extent, therefore, guardians of the private rights which are guaranteed by that doc- ument. To provide that decisions of this sort shall 1)6 subject to recall by popular vote in any state is virtu- ally to permit the local annulment of the national consti- tution, thus reviving the doctrine of nullification in a new and very obnoxious form. The movement for the recall of judicial decisions seems to have derived its impetus from certain unpopular decisions rendered by state courts in affirmation of claims to federal right, and is not directed solely against the alleged misinterpretation of state consti- tutions by state courts. As state courts administer both law and equity, the burden of litigation which is placed upon them is very great. Prac- tically the whole domain of private law comes within state jurisdiction. This includes the civil rights of the individual, the law of property, of contracts, of torts and of personal n-iations. Within the cognizance of the states, moreover, is the great field of criminal law and the great bodies of law which have been developed in relation to corporate business, state banking, insurance, and exchange. Under tho, pro- pulsive influence of modern social and economic activity the volume of state law has been increasing at an enormous rate. More laws mean more lawsuits, and more lawsuits mean more courts, although this elementary truism of political science is not always appreciated by law-makers. The courts in many of the states are not able to keep up with their work. In some cases their dockets are filled for many months and even for years ahead. The cumbrous formalities of judicial procedure, relics of older days when litigation was associated with wealth and leisure, hav also had their share m accentuating the conges- tion of business in the courts. Con.-^'^utions and laws have been so regardful of the individual » eights that they have A proposal of popular nullifi- cation. The scope of the laws which state courts ad- minister. The archaic nature of judicial procedure. ^ffSf^^K: ^T^"!^?"'^" 500 THE GOVERNMENT OF THE UNITED STATES The methods of judicial reform. Where reform should bsgia. A word as to lawyers. given to every suitor an undue liberty to stay proceedings, to take exceptions, to move in arrest of judgment, and to make appeal, lliese rights, in many cases, are transformed into privileges of obstruction and delay. They restrain the judges from doing many things which judges arc permitted to do in all other countries and which, if allowed here, would greatly expedite the administration of justice. Many of the laws relating to judicial procedure, ostensibly in the interest of justice, actuallj' operate to withhold from the citizen the first essential of justice, which has been so recog- nized since the days of Magna Carta, namely, that it "shall not be delayed to any man." Tliis technical and super- legalistic spirit has sometimes made the courthouses fit the undergraduate's definition of them as "places where justice is dispensed with." The thing most urgently needed to make the administra- tion of justice in the state courts more satisfactory is not a change in the manner of selecting judges, or in the method of removing them. Judicial reform should begin with the fountains of state justice, which are the state constitutions. To be effective, it must also reach into the halls of legislation and secure an improvement in the standards of law-making. The whole system of procedure needs radical overhauling, and this reconstruction would have come long ago were it not that the removal of legal complexities would leave ^ess work for lawyers to do. Lawyers form a large element in legislatures, and they are not usually partisans of judicial reform. Yet despite their conservatism in matters affecting their own profession, lawyers form an element of the greatest value in legislative bodies. Their influence is almost always on the side of justice and moderation. They realize, as the layman usually does not, that if the laws are unjust in their provisions no court, can wring justice out of them. American legislatures without lawyers would make a far worse showing, popular notions to the contrary notwithstanding. r^^^^^?^^^^!!^^^^K? ifWPiP "V. Jyr.^A-tfcrf' 'ssd CHAPTER XXXV DIRECT LEGISLATION AND THE RECALL The movement for direct legislation by the people through The most the use of the initiative and referendum has made sub- "tn^ns stantial headway among the states during the last twentv Senom- years. Its progress is, perhaps, the most striking political *"°" "' phenomenon of the present generation. It indicates, on °"'"^''^' the one hand, a widespread spirit of popular dissatisfaction with the workings of strictly representative government, and on the other hand, a growing confidence in the ultimate political capacity of the voters themselves. In nearly half the states the voters have taken directly into their own hands the right to propose and to enact laws without the intervention of the legislature. The legislature remains, of course, the normal agency of law-making ; but where the legislature is unresponsive to any crJl for legislation the people may, by their petitions and their votes, put the desired law into effect. The m.echanism of direct legislation consists of two politi- cal instruments known as the initiative and the referendum.* • The literature relating to the initiative and referendum has become most voluminous during the past dozen years. Among the various dis- cussions of the subject from every point of view the following may be mentioned as the moreuseful : E. P. Oberholtzer. The I ni'iative, Referendu.n and Recall tn America (N. Y.. 1911) ; D. F. Wilcox, Government by All the t-eople, or The Initiative, Referendum and Recall as Instruments of De- mocr,icy(\.Y.,m2);C. 8. Lobingier, The People's Law (N. Y., 1909)- A. L. Lowell, Public Opinion and Popular Government (N. Y 1914 • 5;^;^*" "fn^-.F-J^^^^^'' Documents on the State-wide Initiative, f/{r/"t""^;' S-.?- ^- 'fV'f;^^ J: O- B-ett. The Operation -, ine int,ia!ii-f, KvfcTmdum, and Recall in Uitgon (N. Y., 1913) The most compact and most informing of all monographs on the subject S^'m ^^' /^i'i^i\,^^ Referendum (BosfonN917), priS i IQlT-igi^"' Mawachusetts Constitutional Convention of SOI WSH" 502 THE GOVEIINMENT OF THE UNITED STATES Tilt" in- itiative ilffiiicii. The ref- erendum defined. Different types of referen- dum. Inter- working of the two. The initiative is a device by which any person or group of persons may draft a })roposcd hiw or anientlment to the state constitution, and by securing in its behalf a designated number of signatures may require <]iat tlic proposed law or constitutional amendment be submitted to the voters at the polls ; and if it is approved by a majority it goes into effect. In some cases tlie reciuirement is that the proposal, having been duly signed by a sufficient number of voters, shall go first to the legislature and not before the people at the polls unless the legislature, after due opportunity, fails to accept it. The first plan is knowr as the direct initiative; the second as the indirect initiative. Tlie referendum, on the other hand, is an arrangement wliereby any measure already proposed and passed by a legislature may, under certain circumstances, be withheld from going into force until the people have had an oppor- tunity to express their opinion on it. The circumstances under which withholding is necessary are various. Under the optional referendum the legislature may or may not submit a measure to tlie people as it sees fit. Under the compulsory referendum a measure must be so submitted whenever a designated number of voters by petition request that this be done. As ordinarily used the term referendum applies to this compulsory arrangement, namely, sub mission whenever required by petition. A distinction may also be drawn between the constitutional referendum, which is the compulsory referendum applied to proposed constitutional amendments only, and the statutory referendum, which applies to proposed laws only, and not to constitutional changes. The initiative and the referendum logically go together and supplement eacii other. The initiative is a positive instrument of legislation ; it can be used to set the wheels in motion. Tbe referendum, on the other hand, is negative in its operation ; it gives the people a potential veto upon laws enacted by the legislature. It permits the voters to have the last say as to whether any particular law shall go into effect or not. Notwithstanding a popular impression to the contrary, direct legislation by the people is not new in principle or in practice. The initiative and the referendum are merely ~ A- s^^igufta^^. iwaai DIRECT LEGISLATION AND THE RECALL 503 new names for very old institutions. The Athenian de- Direct mocracy used both of tliem, although in a somewhat crude j^^^„ form. It employed them in determining questions of war is no and peace, or in actually adjudging the guilt or innocence ""^^^^y- of accused persons. Socrates was condemned to death by what we would nowadays call a bill of attainder enacted through the agencies of direct legislation. The so-c..lled democracy of all a icirnt peoples was of the direct rather than of the representative type. 'ITiose who have read Tacitus will n'meml)er his description of the way in which the primitive Saxons, progenitors of the English race, regulated their public affairs by the will of the tribesmen expressed in an assembly of the adult males. Nor does one have to go liack ten or twelve centuries in order to pick up the precedents. The cantons of Switzerland have used the initiative and referendum in one form or another for many generations. Tlie two Bonapartist emperors of the French were ardent believers in having great questions of pubhc policy determined by plebiscites, which they usually manip- ulated, however, to their own profit. Before the middle of the seventeenth century the colony of Massachusetts employed methods of proposing and enacting laws which were to all intents similar to the direct legislation methods of to-day.^ Among the earliest American state constitutions, several expressly reserved to the people the right "to give in- structions to their n , osentatives" in the legislature. The doctrine, therefore, that the people should have the right to take the first step in law-making, or the last step, or both, is not new. What is relatively novel in the direct But its legislation of to-day is the somewhat intricate machinery jay**"' whereby the will of the people is given its power of expression, mechanism This, however, is only because states which include many "*°^*'- hundred thousands of voters cannot pursue the simple procedure which served Athens, or a Saxon tribe, or a Swiss canton, or a Puritan colony. The first American state to adopt the initiative and referendum as regular instruments for the making of laws was South Dakota, In a general way it copied the system ' See the examples cited in the BttUetin on The Initiative and Referen- the caliber and capacity of the men elected to serve in them, state legislatures are not what they used to be. The reasons for this decline in quality, which is every- where apparent to the naked eye, are manifold. They include such factors as the selection of representatives from small, gerrv'mandered districts, the complicated methods of nomination, the encroachment of the state constitutions upon legislative freedom, and many others which have been already dilated upon. Legislatures, moreover, have been lacking in leadership, and l)v reason of this handicap have conspicuously failed to do their work in a businesslike way. This lack of leadership has developed irresponsibility, spinelessness, procrastination, and the other shortcomings which have given the legislatures a popular reputation for fickleness and incapacity. At any rate, the unsatisfactoiy results of representative law-making in many states has led • The full list is as follows : South Dakota, 1898 ; Utah. 1900 ; Oregon, 1902; Nevada (referendum only), 1905; Montana, 1906; Oklahoma, 1907; Maine. 1908; Missouri. 1908; Arkansas, 1910; Colorado, 1910; Arizona, 1911; New Mexico (referendum onlv), 1911; California, 1911; Nebraska, 1912 ; Washington, 1912 ; Idaho, 1912 ; Ohio, 1912 ; Nevada (adds initiative), 1912; Michigan, 1913; North Dakota, 1914; Mis- sissippi, 1914; Maryland (referendum only), 1915; Massachusetts, 1918. rsaasxFjBww* •i,s>i su-ionn. DIRECT LEGISLATION* AND THE RECALL 505 t-^ the conviction that the people themselves could not do much worse and might do u great deal better. It may be taken as axiomatic in a de ocracy that when things go badly the populace will not hasten to place the blame on its own shoulders. It is the habit of the electorate to take for {iranted its own infaUibility. When the representatives of the people give any just ground for criticism, accordingly, the popular remedy is not the adoption of some measures designed to get better representatives by giving them more responsibility, but rather to take away from the wicked and slothful servant even that wliich lie hath. Another reason for the spread of direct legislation is to be found in the readiness of the average legislator to subordinate the public interest to his own political ambitions. On many questions which come before legislatures the chief desire of many members is to escape the dilemma of taking one side or the other. The senator or assemblyman whose first care is for his own reelection finds himself likely to lose some votes in his district no matter which way he votes on these questions. ^Vhat more natural, therefore, than that he should welcome an easy way out of his personal difficulties by "putting the matter directly up to the people." Hence it is that in many states the legislatures of their own volition and in evasion of their own responsi- t)ility have fallen into the practice of referring matters to the people, not because the voters could be trusted to settle them more wisely, but because supine members preferred that means of avoiding duties which they were elected to perform. The people, of course, soon learned to relish the compliment involved in this constant reference of diffi- cult problems to their omniscience for decision. Having found their task both easy and interesting, the voters quite naturally declare themselves ready to perform it on a more comprehensive scale. Direct legislation requires considerable formalities. No states have exactly the same requirements, although there is a similarity in essentials. The mode of initiating a proposed law is everywhere by petition ; the method of enacting it (if the legislature does not act in the meantime) is by popular vote. Between the starting of a petition, 2. the roadiuess of legis- luturea to evaUe their re- sponsibility. The mechanism of direct legis- lation. i^^S^T*TT rvrr ■ .-.^r ^ r-«.r 500 THE GOVEICXMENT OF THE UNITED STATES 1. the jiiiti:iti\n petiliun. 2. the sub- mission of proi)osal9 at the pulls. howevtT, and tho ultimate decision < f tho people at the polls there is a considerable intervenii*?; procedure which will be summarized in the next few paraj;raphs. The first step in the exercise of the pojiular initiative is the framing of a proposed law or constitutional arm-nd- ment. 'Hiis may be done by any one; ])ut it is usually undertaken by some organization. A proposed measure relating to labor, or agriculture, or prohibition, or woman t^uffrage, for example, is customarily initiated by bodies which represent such interests or movements, llien comes the at once. To guard against the abuse of this privilege it is required that the existence of an emergency shall be explicitly stated in the preamble of the measure, and that no emergency law shall be passed except by a two- thirds vote of both chambers in the legislature. In spite of these safeguards, however, the emergency privilege is frequently abused. In states which have the initiative and referendum, therefore, questions may be placed upon the ballot in any one of three different ways, first, the 1. irislature may of its own accord refer a measure to the voters tor their decision. Second, an initiative petition nuiy ho (uesented bearing the requisite number of signatures sking that any proposed measure be placed upon the ballot either without going to the legislature ^t all or because the legislature has declined to pass it. Third, a law may have passed the legislature- but by reason of formal protest embodied in a petition may be withheld from going into force until submitted to the people. By one or other oi these ways a considerable batch of ques- tions IS every year submitted to the voters of the various states. As to the merits and defects of the initiative and refer- endum there are wide differences of opinion. Although direct legislation in its present form has been used in the United States for only twenty years or thereabouts, it has nevertlieless received during this period a trial on a suffi- ciently broad scale and under sufficiently varied conditions to warrant a fair survey of its achievements and short- comings. As a result of this experience a substantial body of facts and figures has bocome available, but close observers hold diverse views as to what these facts and figures really DIRECT LEGISLATION AND THE RECALL 509 disclose. No question of present-day political discussion, indeed, affords ground for wider, yet thoroughly sincere, divergences of conviction than the question whether direct legislation actually helps or hinders the efficient workings of a representative democracy. Chief among the reputed merits of the initiative and Reputed referendum is the claim that it does not supplant but 51^^°' supplements, improves, and renders more democratic the legislation: traditional machinery of representative government. It is argued that the policy of making the laws exclusively through the medium of a legislature has not measured up to rea- sonable expectations. Conditions which have existed in many American states, and which continue in some of them, afford proof that legislatures are not always inspired by considerations of public interest alone, but are influenced i. prevent* l)y sectional, partisan, class, and even by private motives J|),'n''o°""°'^ to a considerable extent. This is hardly the place to law-making particularize among legislatures, but the pressure of sinister j'^teretts"^ influences upon the course of law-making has been far stronger than the average citizen realizes. Even those who are firmly opposed to the use of the initiative and referendum liave frankly admitted this too frequent subordination of the public welfare to the arrogant demands of invisible interests.^ Laws have been enacted and bills have been defeated year after year in some state legislatures for no other reason than because the railroads, the liquor interests, the banks, the labor leaders, or the political bosses have flivcn the word. In this matter, it is quite true, there has been a considerable difference between state legislatures. Some have been consistently under the thumb of special interests. Others have shown the influence of lobbying to a relatively slight degree. All have been more or less touched by the taint, however, as any legislator of experience can testify. In view of the arrangements under which state legislators have been chosen and of the handicaps under which they have tried to perform their work it is not at all surprising I Si-!', fnr pxamplo. the sp«-fh of tho Hon. Eiihij Root on "Innsible Oovernment " in the New York Constitutional Convention of 1915, reprinted in his Political Addresse* (Cambridge, 1916). 510 THE GOVERNMENT OF THE UNITED STATES Why special interests have had an advan- tage in the past. 2. affords an incen- tive to political education. II that the results have failed to satisfy. The methods of nominating and electing members of the legislature have played largely into the hands of sinister interests. They have tended to befog the voters, to make politics a profession, and to encourage the professional poUtician ; they have made election to the legislature such an expensive process that candiuates are tempted to form alliances with those who are able and willing to contribute generously to their campaign funds. The system of nomination by party primaries, the long ballot, the use of party designations on the ballot, and the frequency of elections have all helped to lower the general integrity of legislative bodies. These defects in the system of representative legi*ilation could un- doubtedly be eradicated by the process of one reform after another, but reform by steady evolution is a slow method, whereas the initiative and referendum are heralded as pro- viding a means by which all can be set right at once. And public opinion seems to prefer the brand of reform that comes in full dc-.cs. Again, it is argued that the system of direct legislation possesses an educational value. By means of the initiative the political instincts and abilities of the individual are encouraged ; men are inspired to formulat- political ideas and policies of their own and to press tliese upon the public attention with a reasonable hope that they may ultimately accompUsh something. Under the system of law-making by legislatures alone, we are told, the public welfare suffers not alone from the assaults of the special interests but from public apathy as well. Tlie individual citizen is not en- couraged to do his own thinking on public matters ; his rep- resentative is paid to do it for him. Under the system of direct legislation, on the other hand, the voter is virtually compelled to inform liimself upon public questions. He caiuiot depute that task to any one else. He is showered with publicity pamphlets and other data ; he is confronted with discussion" in the newspapers; he has the pros and cons of measures thrust before him at every turn until "he cannot chuse but hear." Eternal vigilance on the citizen's part, not merely on the part of his representatives, is the price of liberty. It is of the essence of democracy maasn DIRECT LEGISLATION AND THE RECALL 511 ives sracy that the whole people shall bear their own public responsi- bilities and shall not deposit them permanently upon the shoulders of a, few representatives. Between what the people want, and what the people get, there is in some American states a considerable gap. The voters have sometimes sought to obtain what thoy want by changing their representatives, but only to find that candi- dates from both political parties are amenable to the same underhand influence. To be truly representative of the electorate a government must be readily responsive to public opinion, and to be responsive it must have the machinery of close contact. Where there is no opportunity for legislation by direct methods the legislators sometimes ignore public opinion and sometimes act in wilful disregard of it. The t;rowth of popular interest in pub'ic affairs is stunted by the fact that this is so. Men will not produce new ideas or urg6 the adoption of new ideas unless there is some hope of carrying them to fruition. Political thought and discussion can best be stimulated by giving ideas the opportunity of materializing into constitutions, policies, and laws. In a word, the way to get voters interested in measures is to ask for their opinions on measures, not merely for their opinions on men. The way to educate the voter in matters of government is to submit things to him in person and not merely to some ouc who happens to be his official spokesman. A legislator represents only the majority of the voters his district. He does not represent either the wishes or e opinions of the minority. Hence it is that under the J stem of representative lawmaking a considerable fraction of the voters are not represented at all. True, these voters may also be in the minority when measures are submitted directly ; but they will at least feel in such case that they are being given a real voice in the determination of public policy. John Stuart Mill once remarked that "the magic of prop- erty turns sand into gold." The voter will soon be rouscd from indifference if he can be shown that the government is his property and belongs to no one else. The initiative and referendum afford regularly aa overt demonstration of 3. makes govern- ment truly respotLsive to public opinion. 4. gives the pliua man an interest in hia govern- ment. ■-n 512 THE GOVERNMENT OF THE UNITED STATES 5. general. Reputed defects of direct legislation: 1. breaks cloivn the distinction lietwcon ronstituent und law- making authority. the right which the people possess in their own public af- fairs and impose upon them a corresponding responsibility. They bring home to every voter's mind the realization that he is a sovereign in fact as in name. Or, to express it in legal phraseology, the interest of the legislator in government is fiduciary only ; that of the people is proprietary. Hence, it is claimed, the system of direct lawmaking will eliminate in large degree tliat public apathy which has been the ulti- mate source of many political abuses, by inspiring the serious and pubhc discussion of all important measures. There are other arguments in favor of the initiative and referendum, but they are for the most part auxiliary to the ones just outlined. Representative lawmaking has not been satisfactory in American states, and to a large fraction of the voters experience has demonstrated that without a thorough recor.struction of the whole American political system it caniKjt be made anything different, for it is in large part due to the principle of checks and balances which has compelled legislatures to undertake the making of laws without leadership or real responsibility. Direct legis- lation cuts right tlirough this principle, restores to the people their sovereignty in all branches of government, makes their fiat binding on all, whether legislators, governors, or courts, and thus "rolls away the stone from the sepulchre of real democracy." That, at any rate, is what its partisans claim for it. But there is quite as much to be said on the otlxr side. First, it is urged that if the system of direct legislation is applied on the .ume basis j both constitutions and laws, it breaks down tlie traditional distinction between these two branches of j urisprudence. For a long time American states have been governed on the theory that constitutions are the embodiment of fundamental principles, that they guarantee the inalienable rights of the citizen (whether he be among the majority or among the minority), and that they should not be changed at every rash expression of popular caprice. Laws, on the other hand, have been regarded as possessing no such fundamental character, and hence have not been placed beyond the reach of easy change. The initiat'"e and referendum arrangements now in vogue in such states as ;£r^':Etjr^r:r7msnm ■MP mm DIRECT LEGISLATION AND THE RECALL 513 Oregon and California sweep away this distinction. Con- stitutions and laws can be changed by the people in precisely the same way ; the provisions of the one are no more funda- mental than those of the other. Minorities have no rights as against the wishes of the majority as expressed on the ballot. That uoctrine upsets a recognized presupposition of all free government, namely, that certain rights such as freedom of religious belief, equality before the law, and security in person and property, are the impregnable rights of the •vhole people and are not within the power of a mere majority to alter or deny. "Government by majority," as one writer '>uts it, " is merely a convenient means of conducting public atf airs, where and in so far as there is a basis of general agreement deeper and more persistent than the variations of public opinion; but as soon as a really fundamental point is touched, as soon as a primary instinct, whether of self-preservation or of justice, begins to be seriously and continuously outraged, the democratic convention [i.e. basis of government] gives way. No minority, for example, even in a compact modern state, either would or ought to submit to a decision of the majority to prohibit the exercise of their religion." ^ There has been much loose talk on the subject of "govern- ment by public opinion." It has been assumed in some quarters that government by the selfish desires of a bare majority is entitled to that appellation. Yet desires and opinions are two quite different things, nor is the general sentiment of any community always ascertainable by merely counting heads.* The intrinsic character of the issues, the actuating motives, the intensity of the contending beliefs, all count for something ; or should do so, in measuring public opinion. If fifty-one per cent of the voters, for example, made up entirely of those who own no property, should adopt a constitutional amendment confiscating with- out compensation all the property of the other forty-nine per Importance of this objection. What public opinion is. ' O, l/owe!! Dickinfson, The Dfvekf.ment of Parliament during the Nine- teenth Century, pp. 161-162. ' For a full discussion of this topic see President Lowell's Public Opinion anil Popular Government (N. Y., 1913), especially oha. i-iii. 2l 614 THE GOVERNMENT OF THE UNITTD STATl'*' 2. tends to break down the quality of legis- latures. cent, would that be an act of government b}' public opriun or of government by organized selfishness? Would such action be consistent with the usual conception of democracy as a system of government for the people, by the people, and of the people? Or would it not be necussary to re- define democracy as a scheme of government under which " they may take who have the power, and they may keep who can"? "It cannot be too often repeated," as President Hadlcy has said, "that those opinions which a man is prepared to maintain at another's cost, but not at his own, count for little in forming the general sentiment of a community, or in producing any effective public move- ment." ^ • The system of direct legislation, according to its opponents, is incompatible with the representative type of government ; its adoption will not supplement but must eventually sup- plant representative law-making ; it will deprive legislators of power and responsibility, and thus make the position of representative even less attractive to men of adequate quality and character than it is at present. This is an objection which cannot be lightly brushed aside, for the institutional history of all democratic countries lends it support. Indeed, if there is any principle which American political experience seems to substantiate it is the doctrine that a sure way to deteriorate the membershii. of any representative body i.« to reduce its powers and its respon- sibility. WHien the choice of inferior representatives does not bring any serious penalty upon the voters in the way of bad law.«, high taxes, and general inefficiency, it has become a truism that inf(>rior men will be chosen. It is always ea. y to choose inferior men, for they are the ones who put themselves forward. They are ready to neglect their own personal affairs , ready to promise much , ready to do favors. Men of the right type have to be drawn into political life at personal sacrifice, and they cannot be induced to make this sacrifice in order to accept public posts which do not offer real opiwrtunities of service. Hence it has been found that when the authority of any reprfseiUulIve body is reduced to the point where it can do little harm (and by ' The Education of the American Citizen (New Haven, 1010), p. 27. S*^?S»>"^ '- 'MK.L : •- -■ ^z^wsew^:! m DIRECT LEGISLATION AND THE RECALL 515 the same token, little good) tho quality of its membership trends downward. Tlie history of city councils in the United States during several decades gave an interesting exemplification of this. If the resort to direct legislation on any large scale would not result in filling the legislatures with poorer representatives of the people, then the political annals of America have been teaching a false lesson. The gains through direct legislation may more than offset this loss, it is true, but to maintain that state legislatures will continue under the new arrangements to turn out work of as good or even better quality is to disregard practical experience for pure empiricism. Attention is frequently called to the great gulf which lies between what the system of direct legislation purports to do and what it actually does. It purports to obtain a popular verdict on measures, to establish lawmaking by a majority of the electorate. In actual practice, however, measures are usually adopted or rejected by a decided minority of the voters. Not more than 80 per cent of tho voters appear ac the polls in regular elections, as a rule, and of those only from 70 per cent to 85 per cent vote on any particular question, the remainder confining their attention to the candidates. Tlius it is that no more than GO per cent of tlie registered voters usually pass upon any proposed measure, and a majority of these, in other words 31 per cent of the whole electorate, is sufficient for a decision. Constitutions are changed and laws enacted more often by one-quarter or one-third of the whole electorate tlian by a larger percentage. So that the "rule of the majority" becomes in fact the rule of a majority among those who are sufficiently interested in a matter to come to tho polls and record their verdict uvon it. Who are the ones thus sufficiently interested? Wlio circulate and sign the initiative petitions for the various questions which go upon the ballot? Are they drawn from tlie general rank and file of the voters, or are they mainly tliose who have some strone: personal interest .at st.ike? ITiese queries are of importance, for if the twenty, thirty, or forty per cent of the voters who form a sufficient majority to carry a measure are a fair sample of the whole body of the 3. while professing to give govern- ment by majority it estab- lishes in fact a syS" tcm of minority rule. 4. pro- motes the power of organised self- interest. i!i 516 THE GOVERNMENT OF THE UNITED STATES voters, their action may still be reasonably regarded as reflecting the general will. But in mc^t cases they are not a fair sample. The ease or difficulty with which signatures to an initiative petition can be gathered depends in large degree upon what the petition asks for. If it is a matter affecting the interests of labor the requisite names are not hard to obtain. Passing the li.-,is around at meetings of labor organizations will accomplish the work. Commercial organizations, churches, granges, and agricultural asso- ciations all have the same facility in any matter which affects their particular interests. A movement that has the support of wealth can pay canvassers to get signatures. But where measures are desired in the interest of the ordinary citizen who has no particular organization looking out for him, the work of getting questions on the ballot by means of several thousand signatures is not likely to be under- tivken at all. Legislation for the ordinary citizen, under the initiative and referendum, is nobody's business. So it is also at the polls. ITie elements among the voters to whom a question appeals as a matter of personal or class interest will go to the polls and vote upon it. Those who stay away from the polls are for the most part the ones whose personal interests are not affected. The rule of the majority gives way, accordingly, to egislation by a minority which embodies the strength of i j^anized self-interest. It is taken for grant etl by its supporters that the system of direct legislation will transfer to the unorganized and d.-pentience independent elements among the people those advantages or effort* ^^'^'^.^ ''^^^ hitherto been monopolized by the great political parties or by the vested economic interests. American political history does not afford any ground for such assump- tion. Measures without organized support have the same chance of winning at the polls as candidates similarly situated ; and it has been all-too-nften demonstrated that the customary place of the independent candidate with un- organized support is at the bottom of the list when the votes are counted. Is it reasonable to hope that by virtue of any mere change in the mechanism of legislation an un- organized majority of the people, actuated by unselfish motives, can regularly triumph at the polls over a well 5. does not pro- mote in- ^P^!^^^ DIRECT LEGISLATION AND THE RECALL 517 organized minority, backed by ample funds and spurred on by all the zeal that self-interest can supply? The experience in various American states with the machin- ery of direct legislation during the last dozen years answers that question. The power in law-making has not been taken from the organized part of the electorate but merely trans- f (>rrcd from one set of organizations to another. For guidance upon the merits of the questions upon his ballot, as well as upon the claims of candidates, the voter still turns to his politi- cal party, to his business associates in a chamber of commerce, to his labor union, or to whatever other organization he may be aflBiliated with. These bodies officially indorse some measures and oppose others. The chances of a measure's success depend, to a large extent, upon the number and strength of the organizations supporting it. The real voting is done, not by the voters who have taken the time to study each one of many questions and to form unbiased opinions thereon, but by leaders and counsellors whose advice on such matters the voters in l?-ge groups are habituated to follow. Direct legislation does not, in practice, reduce the premium which is placed on organization under the strictly representative system o government. The referendum is at -est a call for the yeas and nays, 6. is not for a full expression of opinion. It assumes that every {j"".^^ voter is ready and able to give an unqualified yes or no categorical to any question of public policy. The truth is, however, °^''*^- that the man who is prepared to give categorical answers is usually the one who gives no thought to the questions. The process of law-making by legislatures affords opportunity for compromises, for conciliating opposition by concessions which do not affect the groundwork of measures, and for reaching agreements by the procedure of give and take. The initiative and referendum have no such flexibility of operation. Every voter must be wholly for or wholly against a measure. His vocabulary of opinion is limited to two words. That fact precludes all need of study on his part. It makes easy the policy of following some leader's counsel or some organization's advice. In balancing these various arguments for and against direct legislation much depends upon an individual's own 518 THE GOVERNMENT OF THE UNITED STATES Tho balan'o u» ad- vantage. The recall. Early provisiona for it in American history. temperament and point of view. Some men are politi-i cally impatient, disdainful of traditions, oblivious to ihe\ lessons of historj', and intolerant of the scientific attitude: in public affairs. Others are conservative in habits of^ mind, their eyes so firmly fixed on the past that they ; fail either to interpret the present or to discern its ^ portents for the future, wedded to obsolete tenets of \ individualism, and obtaining their political nourishment \ from a diet of musty formulas. Between these two ex- ; tremes, prefigured by the radical and the reactionary, there i is every type of mind. The facts as to the working of the j initiative and referendum in America, while themselves | incontrovertible, are thus subjected to a wide variety of : interpretation. There are no impartial authorities on ; this subject, for the only ones who remain impartial are \ those who know too little about it to be authorities. The recall is not a necessary accompaniment of the ini- ; tiative and referendum, but in many cases all three have ; been adopted simultaneously, and in discussions of popular ; government they are commonly linked together. The recall i may be defined as a process by which any elective officer : whose services are unsatisfactory to those who have elected ; him, may be removed from office by them before the expi- : ration of his term. In principle this is not a novelty in \ American political history, being at least as old as 1780, ; for in that year the constitution of Massachusetts made \ provision that delegates to the Congress at Philadelphia i might be "recalled at any time . . . and others chosen ; ... in their stead." ' This provision was evidently copied ] from the Articles of Confederation, which expressly reserved \ to each state the power to "recall its delegates, or any of them, at any time. . . ." In the constitution of the j United States, however, no provision for the recall of ; senators or representatives was incorporated, although ; there was some protest against this omission. The idea ^ of choosing officers for short, but definite terms, without the i opportunity of removing them otherwise th.an by impeach- 1 ment, gained general acceptance after 1787 in all branches' ; > Constitution of Massachusetts, ch. iv. The provision still stands un- i repealed and unaltered, although it is, of course, inoperative. ! DIRECT LEGISLATION AND THE RECALL 519 of American government and continued throughout the nineteenth century. The recrudescence of the recall, this time in a somewhat different form, has been a feature of American politics during the past twenty years. Its adoption was projjoBed in the closing years of the nineteenth centuiy, but it was not until 1903 that any such adoption took place. In that year the city of Los Angeles made provision in its charter for the use of the recall in its municipal government. Five years later the state of Oregon made provision for its application to all state officers, and since 1908 the recall has spread to nine other states of the Union.' Tlie purposes of the recall are twofold. First, it is designed to give the people a means of removing from public office any elective official who may have proved unworthy of their continued confidence. For gross malfeasance an i)fficial may always be removed by impeachment ; but impeachment is a clumsy and slow method. Impeachment cannot well be employed, moreover, except in flagrant cases. The recall may be used for any cause whatsoever, and it is an expeditious method of removal. Second, the existence of the people's right to recall a public officer at any time is said to operate as a wholesome reminder of preelection promises and thus to keep every official alert to the proper performance of his duties. The initial procedure in recalling any official is the filing of a petition. Any voter may do this. Tliis petition assigns reasons for the requested removal, but the reasons need not be very definite. Petitions must bear a designated number of signatures, each representing a qualified voter, l)ut the number of signatures differs from state to statt. Ordinarily the requ- "i ent is at least 25 per cent of the registered voters or oi the vote cast at the last preceding It* revival in a different form. Object* of the recall. The recall procedure : 1. the petition. * The other aine suites are California, Arizona, Idaho, Colorado, Nevada, Washington, Michigan, Kansas, and Louisiana. In Idaho, however, the prov-sion remains inoperative because the legislature has not passe them »vitli tlio names on the voters' rolls. Healizing, however, tliat an official should not be subjects I to tlie possibility of recall before he has had time to show what he can do, it is usually «tipul:ited thai no recall petition shall be received u'l : •• i lea.' six months after his installation in office. In the ;a,- jf iiembers of the legislature, this period of immunity- i not 'iistoniarily accorded, for liiat would enable then, d !iui.'^:i .■ legi-lativo ses.sion before b< mg subject to remov; 1. Wlien a recall p. ;ition is presen'cd, the official at uiist whom it is directed iiiust ;( on>c i,e notified. He h is a riglit to make a reph and thi? reply ;-^ in some cases reti'.ired to be printed on the ballot wi.eu the question of his removal goci- befon^ the people. He ma* , on trie other hand, i-.sign his office without choosing to fight rh i.ssue at the p. lis. Within a design.iicd time after petition has Vieou filed, a recall election is held. The iiii rval is usi 11 from on(' to three months. 'Hie ballot at this electin a majority of the voters answer this question in the affirmative that the counting of the votes cast for the various candidate- i^ proceeded with. AMien an ..fficial .succ-ssfully defends himself against an at'.mpt to bring about his recill, it i- sometimes provided th;i' he .-^hal! ])e reimbnrsed from the public treasury for his necessary expense- in connection with the recall election. .\lthough the .state-wirle rec.ill has bee> :> existence for t»>n years, no state official has yet been .love.^ by this procedure. It is a fair inference from th set that the niRKCT I.F'ilSLATToN AND THE UKCALL 21 Mil* priictii obstacli:- to its fn-quont u.'^'' and that the rpcal! will »i, in ill iikeiihood, l)e employed as an ever lay meai!-iof i-tting iis- !> )ust I roni >ffifi . A good ileal ha^ m< n sn 1 id written a.s to the rop\ d iiu'rits and dangorr oi the n-cull, as applied t^. state j>;ov»»m- nient, l>vit tlnso di-oussion.- res- upon no ^ lid ground of actual experiiuents. Th*- rc( ill >i.-> ouviou> ssi'iili' h f< - good 1 yjl.tlv use*, aid ( nab^' obv'nu- possioilitii s fi harmi • cmplc nl vi tivoi /. iiut r us it remains ti'-useu . out ;*»r ^\ i ve li wj* oi snowing which of th- -e pobsibiliues is apt a he Lia--:d ^ '.I . and ' njje.'a of the recall. m CHAPTER XXXVI THE RECOXSTnrCTION OF STATE GOVEUXMENT State Kov- ernnicnt li;i.s Vk'ou less satis- factory tlian IS rdninionly realized. Reasons for this situation. Sttuveyixg American state government as a whole, what arc its most olivious defects and by wliat steps may they be reinetlied ? Tliere is a widespn^ad but not at all well- foiiiided impression .hat state government in the United States has l)een toh-rably satisfactory. One reason for this, no doubt, may be found in the fact that municipal govern- nu^nt was ft)r many decailes a far more consjiicuous failure and hence engrossed the attention of refornuTS. The weak- ness of state governnumt, moreover, has been to some extent screened and retrieved by the relative excc^llence of the federal system. By tlie steady twpansion of its authority the national government has taken over and has adminis- tered with com|)arative efficiency many functions which, had they been left to the states, would undoubtedly have l)een handUnl so unskilfully as to bring the inaptitudes of state srovernment into a far bolder relief. 'Hic sliort comings of state government are due in part to faulty organization. This is not to imply, however, that the tliirteen original states framed tluMr constitutions vmwisely. They began with a frame of government which was not unsuited to the nee(ls of jiiont'cr communitit^s in the closing decades )f the eighteenth ■ ititury. The chief and almost the only function of a state government in those days was to make laws. Th(> original states adopt(>d a mechanism which was well suited to the piM-formance of that function. But the making of laws has long since ct^ased to be the chief work of the state. Administration in all its branches, ))arliciilarly in it< application to social, economic, and liumanitarian activities, has grown to huge proportions and now quite overshadows all else. 522 mm THE RECONSTRUCTION OF STATE GOVERNMENT 523 Ypt the states continue to attempt the proper per- formance of the new tasks with the old machinery. They are trying to carry forward hufie administrative and busi- ness enterprises with appliances which were designed for the making of laws and for the general safeguarding of popu- lar liberties. It is the ar'^'Vnt fault of putting new wine into old bottles. The traditi. xial mechanism has been patched up, added to, and otherwise tinkered with, so that it has not entirely broken down under the new load ; but in no state has it been entirely overhaule(i and reconstmcted. The tinkering process has been carried on mainly by means of constitutional revision and amendment. Com- pared with the organic instrument of the nation the state constitutions are easy to change. In some states, indeed, the process of altering the constitution has become so simple that the temptation to incessant aheration is very strong, too strong to be resi tod. The state constitution in such cases becomes an ephemeral affair, without any essentially fundamental character, and witho' t the halo which should surround a supreme law. Back in the middle of the nineteenth century a cus- tomer once asked a Paris bookseller for a copy of the I'Vench Constitution. "We do not deal in periodical literature," the bookseller replied. American state con- stitutions have gone into this periodical class. Details of governmental organization, even to the salaries of offi- cials, clutter up their pages. Limitations of every con- ceivable sort are crowded into these documents until the legislature, the governor, the administrative departments, and even the courts find themselves without sufficient elbow room for the satisfactor\' performance of their re- spective duties. The demand for changes in this or that detail is incessant. The reconstruction of state government nuist begin, accordingly, with the state constitution itself. Constitution-makers should return to an appreciation of tlie true purpose and the proper scope of a constitution, wliich is to set forth the basic principles of government, not to provide a code of laws. There is no need for the relentless liiling on of limitations. Neither the liberty of the individual nor the welfare of the community demands it. The Umi- State functions have out- grown the old machinery. The essen- tials of a satisfactory reconstruc- tion: 1. fewer constitu- tional provisions especially in the way of limita- tions. The need of H return to first prin- ciples in con- stitution- niiikini;. 524 THE GOVERNMENT OF THE UNITED STATES 2. less reverence for the formula of division of powers. Merits and defects of this for- muhi in its prartioal &pplie"tion. tat ions which stand in the federal constitution are relatively- few, yet who will say that the rights of the citizen ar^ not fully guarded there? \Vho will assert that the states, with their constitutions a hundred pages long, have more effec- tively precluded the abuse of legislative, executive, or judi- cial power? The time has come, moreover, for a resurvey of the doctrine of checks and balances in its practical workings. During the second half of the nineteenth century it was accounted a political heresy to question the infallibility of this dogma. It was hailed as the very corner-stone of American democracy. To get rid of it seemed an impos- sibility. As well might one move to repeal the law of gravitation. To-day, however, this attitude is visibly changing. Montesquieu's aphorism that "power must be a check to power" has bee: repudiated entirely in the reconstructed charters of several hundred American cities, and is now being rudely assailed as an obstacle to the efficient government in some of the states as well. Not alone political philosophers but men of long experience in the actual work of state administration have in some cases concluded, on due reflection, that the triple division of governmental powers is a delusion and a snart . A government organized upon the principle of checks and balances derives both strength and weakness therefrom. Division of powers makes for safety. It provides the ship of state with water-tight compartments. Wlien one com- partmeiu floods, the others hold firm, keeping the craft afloat and on its course. So long as tlie balance of powers is preserved, no one branch of government can arrogate to itself any dangerous excess of authority. But on the other hand, the system of tripartite supremacy means that there can be no full concentration of responsibility for what is done, that the public interest is likely to suffer whenever the three departments fail to work in harmony, and that the community as a whole can have no effective public leadership. Is it well that these three great essentials of good government, responsibility, harmony, and leadership, should be sacrificed for the assurance of safety? in the case THE RECONSTRUCTION OF STATE GOVERNMENT 525 of the federal government that question might well be answered affirmatively, for its establishment represented a novel and precarious experiment. The states were asked to give over great powers and they were wise in taking no chance that a despotic exercise of this vast authority should some day dissipate all that the Revolution had v/on. The land had not shaken off an hereditary despotism in order that it might establish an elective one ia its stead. Safety first was therefore an appropriate rule in the planning of the national government. But whether it ought to be given anything like so much weight to-day is quite another question. There is no likelihood, however, that any successful assault can be made upon the principle of checks and balances so far as the federal government is concerned. That v.'ould involve the entire rewriting of the national con- stitution, which is something that the present generation will probably never live to see. It is a good deal easier to pick flaws in the constitution of the United States than it is to get even a small body of men to agree upon a substitute. But in t^c case of the state governments the situation is inHtate in all respects different. The great advantage of divided |^g'„""he governmental powers, which is that it provides an assurance merits cU»- against d. otism, counts for far less in the states than in "pp^"- the nation. The national constitution guarantees to every state "a republican form of government," which means that the whole strength of the Union is available to protect the ix'ople of each state from any gross infringement of their liberties. So long as a system of free government is main- tained in the nation as a whole, the danger of despotism in any state is purely fanciful. The chief argument in favor of division of powers in state government thus falls to the ground. hand the disadvantages of the divided system And the 1 state than in national government. Ad- ks relatively larger among state functions .natters of a far greater variety. The party system, moreover, which has served to provide an extra- legal coordinating force in national affairs has not succeeded in doing so to the same degree at the state capitals. Finally, On the o'' ■ arc far gn ' ministratio and includes defects are magnified. 526 THE GOVERNMENT OF THE UNITED STATES The logical conclusion. But if the divi- sion of powers be abandoned, what then? The two alterna- tives: (n) legis- lative supremacy. the jita;.f s have pressed the principle of checks and balances to a a cxrromr length, establishing a division of powers not only as between the legislative, executive and judicial organs of government but even within the executive branch itself. In the national system the President remains the supreme administrative authority, sharing his powers with no one else. But the state governor, as has been shown, occupies no such position. Administrative authority in most of the states is so hopelessly disintegrated that it may fairly be said to portray a system of checks and balances run riot. It would appear, therefore, that division of powers is not needed by the states in the interest of safety, that it is the mainspring of clouded responsibility and the absence of vigorous If^adership in state government, that it has been blindly carried to an extreme in the decentralizing of execu- tive power, and that it should give place to some plan of concentrated authority. But by what type of organization might the present system be replaced? Two courses are open. The legislative branch of state government might be restored to a position of supremacy and given full control of the executive, or the pown-s of t>\e executive can be concentrated and increased until the legislature l^ecomes a wholly secondary organ. On the face of it the former alternative would seem to be not only more in harmony with American traditions and tem- perament, Init in keeping with the practice of responsible government in other countries. Nevertheless the develop- ment of American state government during the past thirty or forty years has been alt oget tier in the other direction. '^The legislatures have been sinking to a seconilary place in the control of pub'ic policy. Constitutional conventions have been steadily circumscribing tlieir sphere of influence while the jjiogress of the executive brancli to greater prestige and power has gone forward unchecked. Notwithstanding its disintegration the executive brandi of state government is nearly everywhere the more vigorous, the more influential and the more secure in public confidence to-day. It is altogether unlikely that this movomont can be halted and a march begun in the opposite direction. Wliatever the logic of the situation one must face the obvious fact that a f*"S)Rr^ THE RECONSTRUCTION OF STATE GOVERNMENT 527 distrust in the capacity and in tho intcprity of logislaturcs is one of the most deep-seated of American political con- victions. Being founded upon abundant reason, moreover, this conviction is not Ukely to pass away. No scheme of reconstruction, therefore, is Ukely to gain mucli popular support if it is postulated upon that principle of legislative supremacy which is frankly accorded recognition in most other countries. The other alternative, that of elevating the executive branch of state government to a place where it will be in law as in fact the dominant arm, would in the end produce an anachronism of political science. Yet the general us(> of direct legislation, tho adoption of executive budget systems, the extension of the governor's veto power, and the con- solidation of boards and commissions, are all manifestations of waning confidence in legislatures and waxing trust in the executive. It is in recognition of this fact that various schemes for the reduction of the legislature to a single cham- ber and for making that chamber a mere legislative commis- sion have been materializing in recent years. The most radical of these proposals is that made by the governor of Kansas in 1913. He suggested that the executive organization of the state be left without any change, but that the double-chambered legislature be aboHshed. In its place it was proposed to establish an elective commission made up of sixteen members, two from each of the eight congressional districts of the state with terms of four or six yeare, the governor to bo an ex officio member of this body and to preside at its sessions. The function assigned to the commission was to be that of law- making only, and it was argued that the proper performance of this task would take up the entire tinu> of its members every working day in the year. Accordingly the commis- sioners were to be amply paid. This Kansas plan found its inspiration, of course, in the commission form of government which many cities have adopted with highly advantageous results during the past dozen years. But il goes only half the distance covered by the latter in that it leaves the executive branch of state government wholly outside the commisBion's sphere of Hardly a pruftical plan ut present. (')) execu- tive Huprcniacy. The drift is in timt direction. Some con- crete proposals : (a) the Kansas plan. A halfway and illoKical proposal. m.:^ :ysr:: ...-.■^k-^ .^r :^^!wv.Lyp ' :-j jm^^ cdsy ' 528 THE GOVERNMENT OF THE UNITED STATES (b) the Oregon plaa Public opinion not yet ready for u ra(ii<.'at overhaul- ing of state framework. authority. Commission govornmont as applied to cities involves not only the reconstruction of the municipal legis- lature but the complete telescoping of both legislative and executive orgar« into a single authority. The Kansas plan, being a halfway measure, did not command the general favor of reformers, and needless to say it was not cordially received by the legislature which tlie scheme proposed to abolish. It is significant, however, that any such suggestion should be seriously put forward by a man of experience in high state office. Twenty years ago ? project of this sort would have been ridiculed as preposterous and irrational. Rather less radical in the way of legislative reconstruction is the plan which was brought forward by the People's Power League in Oregon some years ago, but the essentials of which were defeated by the people at the polls. The most conspicuous feature of the Oregon plan was the proposal to abolish the two-house legislature in favor of a single chamber made up of sixty members, with provision for minority representation. In connection with this abolition of the bicameral system it was proposed to increase greatly the strength and influence of the executive. The governor was to be intrusted with the appointment of all heads of depart- ments, other high officials and boards. He and his cabinet (made up of the chief state officials) were to have seats in the one-house legislature. He was to have the sole power to initiate all measures for the spending of money but no longer to have the right of veto in any matter. The Oregon plan, accordingly, while less radical than the Kansas pro- posal so far as legislative reconstruction is concerned, provided for a much more drastic change in the position and powers of the executive. As a whole it was never submitted to the people for their approval, but various parts of it, including the proposal for a single chamber, were placed upon the ballot and defeated. In none of the states does public opinion seem to be ready for any drastic alteration in the organization of the legislature or for any great and sudden curtailment of its powers, al- though minor changes in both directions are being made year by year. The real initiative in legislation is gradually passing into executive hands, chiefly because the people are THE RECONSTRUCTION OF STATE GOVERNMENT 529 looking more and more to the governor for aggressive leader- ship ill the formulation and carrying through of public policy. Governors on the whole have been less susceptible tiian legislatures to the control of political bosses and more ready to assume full responsibility. They have more promptly sensed the drift of popular sentiment and have l)een more responsive to it. Without any organic changes there are ways in which the work of legislatures may be improved and their prestige with the people restored. One agency of improvement, as several states have discovered, is a bureau of legislative reference with facilities for giving expert assistance in the ilrafting of laws. Legislatures are judged by the products which they turn out, and these have hitherto left much to be desired. The proper drafting of a law is not merely a matter of clearness in phraseology. It involves a thorough knowl- (>dge of the conditions to which the law is to apply ; in many cases it also necessitates a careful study of laws already enacted in the same field so that there may be no unin- tentional conflict; and always it demands a full apprecia- tion of whatever constitutional restrictions there may be. In tlie drafting of a law it is almost always possible to obtain profitable guidance from the experience of other states both as to what should be provided and what left out. The work is technical to a far greater degree than legislators have realized, and it ought to be intrusted to professional hands. I'lie legislative reference and bill-drafting bureau is there- fore an institution which should be provided for in all the f'tates, not merely in some of them. More essential to good government than any readjustment of the relations between governor and legislature, however, is the reorganization of the machinery by which the vast and varied administrative work of the state is now carried on. Tins machinery, as has been shown, is extensive and intricate, consisting of departments, boards and officials by the score. It has been built up without plan or set purpose. In scarcely n state of the Union does the .scheme of administrative organization conform to the simplest requirements of unity and cooperation. It embraces merely a heterogeneous group of disjointed authorities, with the lines of responsi- 2 M How louis- lation may be im- proved without reconstruct- inR teRis- laturcs. 3. the consolida- tion of administra- tive agen- cies. 530 THE GOVERNMENT OF THE UNITED STATES Proposals and proR- ross in thi:< direc- tion durinK recent years. The obsta- cles which Imve l)oen encoun- tered: (a) consti- tutional barriers. (M opposi- tion of state officials. bility running in all directions, with powers which are ill defined and functions which overlie, and with no means of working in unison. The situation in New York State is perhaps worse in degree but not widely different in nature from that which exists elsewhere. There, as a distinguished student of statecraft remarked a few years ago, "anybody can see one hundred and fifty-two outlying administrative .gencies, l>ig and little, lying around loose, accountable to nobody, spending all the money they can get, and violating every principle of economy, of efficiency, and of the proper transaction of Imsiness." ' The simplification of state administrative machinery has been earnestly urged by governors in all parts of the country during the last few years. Their annual messages have had more to say on this than on any other topic except the War and its problems. Legislatures have been responsive to the extent of having the question studied by special commissions or committees, but then^ the matter has usually ended. One rea.soii for this is to be found in the fact that projects of administrative reform usually require changes in the state constitution. These constitutions have grown to be so all-embracing that tlicy have literally stereotyped the num- ber, the metliod of selection, the tenure, the powers, and sometimes even the salari(>s of the various boards and officials. In such cases the governor and the legislature, even when they agree, are powerless to do any considerable overhauling. But even where constitutional obstacles do not stand in the way the legislatures have been slow to act. Opposition to any radical consoh^ ition of the .-.-isting administrative departments comes chiefly from the officials of these depart- m(>nts themselves, a considerable proportion of whom are or have been prominent party leaders. Their influence «' the legislature, w^hen they oppose reform unitedly, i3 v. ; great, and in m : t of the states it has proved to be the chid practical hindrance to administrative reconstruction. The wholesale consolidation of departments and boards has been proposed in a score of states, but in only one or two of them ' Speech of the Hon. Elihu Root in the New York Constitutional Convention of 1915. THE RECONSTRUCTION OF STATE GOVERNMENT 531 has it been accomplislied. Illinois and New Jersey are the states where the progress towards the simplification and the general improvement of the administrative mechanism has been most conspicuous. Other states, however, are certain to follow in their wake, for the situation is plainly in need of reform. The reconstruction of state government must not, how- ever, confine itself to official machinery alone. The party system, whether legally so recognised or not, is a factor of high importance in the actual workings of state government and should not be left outside the reckonings of reform. Much criticism has been bestowed upon the system of party organization, but not all of it has been deserved. Some reformers compi lin that the party organizations are domi- nated by bosses who pay no attention to the demands of public opinion ; others make it their grievance that party leaders truckle to every popular whim and are too spineless to stand up for their own conceptions of sound public policy. Both these complaints can scarcely be well founded. The chief shortcomings of party organization, as a matter of fact, do not arise from the perverseness of leaders, whether despots or demagogues, but from the fact that the laws of the land have been inclined either to ignore the existence and influence of parties altogether or else to treat party organizations in a wiiolly suspicious or hostile spirit. Law- makers have not appreciated the fact that parties must exist in a democracy and that the only choice is between compelling thom to be helpful and permitting them to develop abuses. No phase of American state government has had so little earnest study as the party system. The tendency has been to look upon party politics as the soiled dove among public activities, something to be spoken of only in terms of apology or denunciation. "It is much easier," as President Lowell has pointed out, "to bring a railing accusation against men or institutions than to ascer- tain how far they are a natural product of the conditions in which they exist. To the scientific mind every phenomenon is a fact that has a cause, and it is wise to seek that cause when attempting to change the fact. The need of scientific 4. less hostility tu the party system. Party or- Kunizatiuna liavc not t)Con fairly treated or properly under- stood. 532 THE GOVKHNMENT OF THE UNITED STATES Somo rcsult.s of thin iiiifriciiilly itttituilc. Party or- gaoizations should be encouraged, not ignored or re- pressed. invosiigation is as groat in the case of parties as of any other phenomenon in politics." ' One great result of this failure to appreciate the real function and the potential usefulness of parties is the practically complete failure of the various attempts which liave been made to impair their influence. Twenty or thirty years ago the Australian ballot was welcomed as a device which would shatter the grip of the party organization upon *he voter and restore liim to a position of independence. But this ballot has not broken down the strength of party organizations in any appreciable degree. Somewhat later, the direct primary took its turn in public favor as the in- strument which would really break the chains of partisan bondage. This new method of nominating public officers has demonstrated some features of superiority over the old caucus or convention system ; but it has signally failed to attain us main objective. It has increased the number of pollings and by so doing has helped to fatigue the electorate to a point where public interest is more deficient than it was before. The party leaders control the nominations as securely as ever, the only difference being that they can now ilisclaim all responsibility for the outcome. The time has come, therefore, to make a truce with partyism, to take it into camp as an ally, not an enemy, of responsible government, to recognize, legalize, and sympa- thetically regulate it. In the reconstruction of state govern- ment the aim, so far as party functions are concerned, should not be to destroy but to fulfil. Constitutions and laws sliould lend their a.ssistance to the upbuilding of strong political parties with regularized organizations. These organizations should be recognized as integral factors in actual government and dealt with accordingly. They should l)e given such measure of friendly consideration w^ith respect to their proper and necessary functions as is accorded the courts. Constitutions and laws should be no more ruthlessly hostile to the one than to the other. They should i-.cognize that parties need leaders and ought to be provided with a rightful way of choosing them. These posts of leader- ship should be dignifif d in keeping with the real power which ' PMic Opinion and Popular Government (N. Y., 1913), p. 101. THE RECONSTRUCTION OF STATE GOVERNMENT 533 they ropropcnt, and no longer treated as representing a species of politiial usurpation. It is time to recojjnize, more- over, that party organizations need money, and that they should be provided with convenient and lawful means of obtaining it. The need, in a word, is for less repression and more encouragement. One obvious way to keep party organizations fnim going wrong is to make it more ea.sy for them to go right. Another field of state government in which a considerable reorganization has become essential is that of finance. If the states are to keep taking on new functions and par- ticularly if th(>y (Mnbark upon comprehensive programmes of social insurance, as they arc altogether likely to do, they must have far more money to spend. This means that new and lucrative sources of revenue must be sought and found. Between the levies of the national government on the one hand and those of the municipalities on the other, the field of taxation which the states may readily exploit is not a wide one, hence the task of finding new sources of revenue which can be utilized without economic or social injustice is one of the most difficult that confronts the states to-day. It is here more than in any other field of reconstruction that there is need for the highest grade uf expert leadership. Following the dictates of class prejudice, or seizing in haphazard fashion upon any source of revenue which looks attractive at the moment, are not the right steps to a sound and permanent financial poHcy. When legislators pass fmm the domain of politics to that of economics, there is an ( special reason for moving circumspectly; yet opportunism and favoritism rather than careful planning or exp> ; counsel have too often y)een the determining factors in the discovery of new state revenues. Finally, no programme of reconstruction will assure im- provement in the quality of state government if it begins and ends in changes of mechanism alone. There can be no con- siderable regeneration if the fundamental factor in all demo- cratic government, the voter himself, is left out of the reckon- ing. Tlie patent medicines of politics, including the initiative and referendum, the recall, direct primaries, short ballots, proportional representation, civil service, administrative 5. integra- tion of financial policy. 6. the Ix-ttcr enlictiten- ment of the elec- torate. 534 THL GOVLRNMENT OF THE UNITKU STATES f h::- The nicro roconMtruc- tion of machinery will nut avail. oonsolidalioiia, si^n-giitod budgets, woman suffrage — and all tlic rest — may be iis( iul so fan's they go; but no one t)f tliem or all of i.iem i>ut t<>r. ■.■; will ever make a real democruty out of an igi'.orant, indifferent, or unthinking e'ectorate. So long as the niawses of the voters remain befog<;('d as to the real is-uea at stake, so li>ng as the mecha- nism of the state remain unintelligible to them, just so long will they be altogether likely to have "unpopular" govern- ment, which has Ijeen well defined as "a government of the few, by the few, and for the few, at the expense and against the wish of the many. " ' The maintenance of oligarchic government does not in- volve the open and avowed placing of power in the hands of a class. Power, when avowedly vested in the masses, may stealthily gravitate into a few hands, indeed its inveterate tendency is to ilo so uidess the utmost vigilance is exercised. The inclinationof all governmi-nt is towards tyraimy, whether it be tyranny of one, or of tin few, or of a majority. That is a law of political science and human nattire. A clear appreciation of that axi in was the greatest asset the framers of the federal constituii.>n possessed. According to their lights they set up various lj;irriers to what they regarded as an inevitable tendency, and these safeguards have helped greatly, even if they have not proved altogether adequate. No purely mechanical ilevices, however, will fully avail to prevent tlie perversion of democracy into oligarchy on the one hand or mobocracy on the other. kSuch assurance can be provided only by the political education of the voters. This work has been the last and least among the functions of the state ; it ought to be the first and most important. The greatest merit of democratic goverimient is not its efficiency or its cheapness, but its possibilities in the way of contenting, unifying, and educating the people. When such a government fails to utilize these possibilities, it cuts away the chief justification of its existence. ■ Albert M. Kales, I' npopalar Government in the United States (Chicago, 1914), p. 7. CHAPTER XXXVII THE HI8TORY OK i.' - AL GOVKRNMFNT RenciM of local self- Kovpm- ment. "Municipal institutions," says Dp Tocqueville, "con- The stituto the strongtli of frro nations." History has demon- stratpd the cnith of thi^' assertion. It was in the aroas of local jiovernnu-nt tliat rrproscntative institutions first developed. L ". d democracy arose in the F^njilish townahip, borough, and shire long bcf.'re the government of the nation became free oven in form. It was in these local areas that men first became familiar with the principles of civil liberty, ;ind it was there that they obtained their tirst lessons in free government as a practical \\1ien 'englishmen (ifst came t" A nericit, their own local The institution had been in existence f .< ,ind had thus become an inregral f ;; The Miirit of these Institutions, an-, i • form : - well, they brought with tl i of the new land diffeicd much, howv ve t.ld, hence there was need of adapting the ancient township and county institutions to the demands of frontier com- munities. This the colonial ancestors of America did, the alterations being rather considerable in som parts of the country but much leas extensive in other > Three types of local government were soon evolved, a'' of them deri- vations from *'ie ancient institutions of England.' In the New England colonies the town was the unit of local governin'^nt upon whirli, for reasons of. pr ical ex- pediency, the iiiain emphasis was laid, although c •• ities ' For It fiiii suivhv of ili'ti aevelopment see John A. Fairlic, ^ocal Onvernment in Cities, Towns and Villages (New York, 1906), ohs. i, ii; :ind O. K. Howard, Local Constitutional History of the United StaU$ (N. Y., 1889). 53« 1st seven ctmturies f^^^^^ ■ national life. ! •.:.<• ic extent the rh.j environment ; .)m that of the of Ameriran local in- stitutions. 636 THE GOVERNMENT OF THE UNITED STATES Types of local gov- ernment in the American colonies : 1. New EnKiund. Why the town type was evolved. The town meeting. The officers of town govern- ment. were also organized on the English model. Some historians have endeavored to see in this accenting of town organiza- tion a renaissance of the old Teutonic landesgemeinde or community of freemen. But there was no conscious imi- tation of any mediseval practice. The settlers who came to the New England colonies gravitated into compact com- munities. They did this because their farms were relatively small, because the dangers from hostile Indians could be better avoided in that way, and because the untamed wil- derness was at best a lonesome place in the long winters when there was very little work to do. Having congregated their dwellings together it was quite natural that the demo- cratic spirit of Puritanism, which permeated the political as well as the religious belief of these colonists, should assert itself and find ready expression in a form of town government in which all freemen might share. The government of the New England town was vested, therefore, in a town meeting, which at the outset consisted of all the adult male inhabitants. This meeting, which was held several times a year, elected its own moderator or presiding officer, levied the local taxes, provided for all expenditures, passed whatever by-laws ^vere needed, made provision for roads and bridges, for schools, and for the care of the poor. The town was the local unit for the organiza- tion of the colonial militia and also for election of repre- sentatives in the colonial assembly. Its organization and functions were thus not unlike those of the open vestry or parish meeting in England.' In the earliest colonial days the town meeting was called at frequent intervals, but as the communities grew in size this was found to be inconvenient. Consequently the towns- men adopted the plan of appointing, at the annual town meeting, a borrd of selectmen or executive committee whose function it was to carry out the decisions of the town meet- ing in the intervals between sessions. Tlie board consisted of never less than three nor more than thirteen townsmen, elected lor a single year, and unpaid. Their dutief^, at first very loosely defined, liecame in time more clearly marked out. They took immediate charge t)f such administrative ' Soe also below, pp. 501-564. ^mmm THE HISTORY OF LOCAL GOVERNMENT 537 2. The Bouthern colonies. work as there was to do. The town had some other officials, also, such aa assessors, surveyors of roads, and constables, all elected in town meeting. This town type of local gov- ernment predominated in all the New England colonies. In the southern colonies a di fferent type prevailed. There the county became the chief unit of local administration. Its officers, including a county lieutenant, a sheriff, and sev- eral justices of the peace, were appointed by the governor ; there was no general meeting of all the citizens to vote the taxes or to determine matters of local policy. Tlie voters of the county, that is to say, those citizens who held property The or were otherwise qualified to vote, elected the county's J^ty representatives in the colonial assembly. It was just as log- ical, however, that the county type of local government should have developed in the South as that the town type should have predominated in New Endand. In the south- ern colonies there were largo plantations with relatively few settlers occupying a considerable area. The homes of the planters were scattered at distances one from another, and there was no such social or religious homogeneity as that which characterized the population of New England. Almost everywhere throughout the colonial South the man- agement of local affaiio drifted into the hands of the plan- tation-owners, who formed a close corporation. The chief organ of county government v/as the county court, which, as in England, corabined administrative with judicial fanc- tions. For example, it had charge of the building and repair of roads and bridges. This county court was made up of justices of the peace, and its sessions were held four times a year. There were parishes also in the southern colonies, notably in Virginia, each parish being a civil as well as a religious district. The management of its affairs was in the hands of a vestry, a body of twelve parishioners. These vestrymen were at first chosen by the people of the parish, but in time the vestry became a self-perpetuating body, filling all va- cancies in its own membership as they occurred. The county soon dwarfed the parish to a very subordinate position. In the middle colonies, particularly in New York and Penn- sylvania, there was a mixed type of local government; j 538 THE GOVERNMENT OF THE UNITED STATES 3. Tho middle colouies. The mixed type. The culonial borough. in other words, a combination of county and town adminis- tration. After the evacuation of the New Netherland by the Dutch the EngUsh divided the colony into counties each with a county court. The county did not, however, become as strong as in the southern colonies, and the administrative functions of the county courts wore in time taken over, for the most part, by the elective county supervisors. Towns and townships were also established in the middle colonies, especially in New York, and they became important areas of local government although by no means so dominating as in New England. Another unit of local government in nearly all the col- onics except those of New England was the borough. In England a borough was a community which had received a ch;irter from the crown : in America it was a community chartered by the governor as the crown's representative. Variouf^ colonial towns received such charters and thereby became boroughs, among them New York and Albany in 1086, Phihidelphia in 1691, Annapolis ia 1696, Richmond in 1742, and Trenton, the last, in 1746. There were about twenty boroughs in all. None of them were in the New England colonies, f n there the system of town government was regarded as sufficient and satisfactory' even for the largest colonial commiuiities such as Boston, Salem, and New Haven.' \\lion a town Viecame a borough, it received a new scheme of udmiiiistnition, modelled upon the prevail- ing system of borovigh government in England. Thence- forth it had its mayor, aldermen, and common councillors. The mayor wa.'- in some cases appointed by the governor; more often lie was elected by the aldermen and coimcillors together. The voters or freemen of the borough chose the councillors, and the latter, in turn, named the aldermen ; but all sat in the same borough coimcil, — mayor, aldermen, and councillors together. T1iis borough system, as will be shown later, was the genesis of the American plan of city government. Tlie system of local government before the Revolution, despite its considerable^ variations in different parts of the ' Two lioroiiijb ''fiart«rs woro crimtiHl in ?C('s summary of the situation in 186f). WkH no important function except that of electing the local offi- cials. But although the new states derived their types of local government from the older communities th^y were inclined to tlevolop them more rapidly along democratic lines. ITie principle of popular election in the case of county and town ofRcia's received greater emphasis. In consequence of this the original diversity of local government was not only main- tauied but intensified. By 1820 there were not only three general types of local government in the various states, but numerous modifications of these three types representing all degrees of progress towards complete local au ..omy. It was about this time, 1820, that the movement towards the direct popular election of all local officials began to gain an irresistible momentum. During the next twenty years the elective plan made great headway, not only in the frontier states but in New England, Now York, and Pennsylvania. In Virginia, however, and in a few other states which fol- lowed the lead of the Old Dominion, the appointment of county officers continued to be the rule. The policy of appointment as appHed to officials of local government proved to be a lost cause, for the practice of popular election commended itself to one after another of the new states as territories west of the Mississippi were organized into com- monwealths. The democratic wave which marked the Jacksonian era, moreover, swept the elective principle into acceptance almost everywhere, while the widening of the suffrage placed the control of local elections in the hands of the whole people and not of the taxpayers alone. Thus by the time the Civil War began, the main features of present-day local government throughout the United States had become well established.^ "Throughout the country'," as Professor Fairlie has shown, "the states were divided into counties, each with a considerable number of elective offices, but with important differences in the organ- ization of the fiscal authority. Everywhere, too, the county was subdivided into smaller districts ; but these varied in importance from the New England town, through the town- ship of the Middle West, to the election and judicial pre- ' J. A. Fairlie, Ibid., pp. 47-48. THE HISTORY OF LOCAL GOVERNMENT 541 cincts in the South. The basis of suffrage for local elections was the same as for state elections, ana had been steadily expanding during the half-century before 1860, until the ?• aeral system was one where every free white male citizen could vote." During the fifty years or more which have elapsed since the conclusion oi the Civil War there have been many changes in the local systems of the various states, but few of them are of vital importance. To some extent the south- em states have divided their counties into townships or other minor districts, but nowhere in these states has a vigorous town or township organization been developed as in the North. In several of the southern states, moreover, there has been a tendency to expand the sphere of state control over local institutions. This has been aimed, in part at least, to secure the more efficient maintenance of law and order, the better administration of justice, and greater provision for education in those counties where there is a large negro population. Officials of local govern- ment are now for the most part directly elected in the south- ern states ; but the suffrage in local as in state elections is confined almost rutirely to white male citizens. The Fourteenth and Fifteenth amendments to the national constitution guaranteed that there should be no political dis- crimination in any of the states on account of " race, color, or previous condition of servituup," but this guarantee has proved as ineffective at local as at state or national elections. In the northern and western states there has been no great or steady extension of state control over the areas of local government except in the case of the cities. The county, particularly in the states west of the Mississippi, has been developing to a position of greater importance (luring the last half century, while the townships, owing to the growing practice of incorporating villages, towns, and special districts witliin their border,-, as will be r^xplained presently, have hardly held their own. In areas which are sparsely settled it is natural that the county should be first established a? the nmin unit of local govornmcnt, but is population increases in density and a subdivision of local Changes in local govern- ment Mince the Civil War. 1. In the southern states. 2. In the Nortli and West. 542 THE GOVERNMENT OF THE UNITED STATES The con- fusion of loral govern- ment namea. The (Srowth of incor- porated areas. functions becomes essential the logical wtop is to develop smaller divisions wliether in the form of townships, towns, or incorporated cities. The terminology of local government in the United States is very confusing. The New England town, for example, has its geographical analogy in the town.ship of the Missis- sippi valley states. It is not necessarily an urban or thickly settled area. It may have thirty or forty thousand inhab- itants crowded closely together, or it may have only a few hundred scattered over many sqaare miles. The town, in other parts of the country, is usually an incorporated urban community, covering only a part of a township and immune from township government. So with cities. In some states this designation in reserved for the largest urban communities, with populations of ten thousand or even more. In others any area of local government, even though its population be only a few hundred, may be incorporated as a city. The distinction between city, town, and village, taking tlT" United States as a whole, is not one of size or population or importance, but merely one of legal status. The practice of incorporating not only villages, boroughs, towns and cities, but school districts, police districts, fire districts and sanitary districts as well, has been another feature of development during the last decades. When any portion of a township, county or other rural area b(;- comes more thickly settled than the rest, its inhabitants make request for some special public services in the way of fire protection, police, schools, water supply, or sanita- tion. Accordingly, the small area in which they live is often incorporated by law into a district for one or other of these special purposes. The district becomes a corpora- tion with power to borrow money and to raise taxes in con- nection with the special purpose for whicli it is incorporated : its inhabitants being usually given the right to elect trus- tees or other officers of local administration with carefully limited jurisdiction. As population becomes more con- gested in all the states, therefore, the tow!"hip becomes less important as an area of local government berause one portion of it after another is virtually given independence in whole or in part by a charter of incorporation. THE HISTORY OF LOCAL GOVERNMENT 543 Decent ralization in the framework of local government tuc forms continues to be the rule throughout the country, although "'jj"^^.. it is more pronounced in some states than in others. Save . rnment in a ver>' few cases, and these are in the southern states, no p^^^^ attempt has been made to place the appointment of county, town, or township officers in the hands of the state author- ities, thus removing them from the direct control of the people concerned. The forms of local autonomy are almost everywhere preserved. This is a matter, moreover, upon which the communities have strong sentiments. State interference with the selection of local officers is everywhere vigorously resented. But state supervision over the work of these officials does But itate not provoke so much local antagonism, and it has been de- J'™^"' °' veloping steadily in recent years although not at the same activities rate of progress in all the states. It began with school jj^^^ jidmiuistration, for two reasons. First, it became generally recognized many years ago that the system of free public The start- education, being so vital to the general welfare of the whole '"* p°'°'- state, could not be safely left to the voluntary and capri- Education. L'ious action of towns, villages, or townships. Compulsory education laws were passed by the states and state author- ities were created to see that these laws were carried out. Second, the local communities receive from the state, in most cases, large annual subsidies or grants for the support of their schools. Tlie policy of state financial aid carries with it, of coursi ; the right of the state to see that these contributions are not misapplied or wasted, a right which is capable of expansion to a point where it virtually permits tlie state to control the general policy of the local school authorities. At any rate, the centralizing movement ob- tained its first foothold in the realm of local education. From that point of vantage it has spread to other fields of state super- local activity, pubUc health, poor relief, the assessment of prc7)erty for taxation, and the enforcement of the law. In all these matters it is not difficult to demonstrate that a policy of strict non-intervention may be detrimental to the general interest. When each county, town, or township is permitted to make and enforce, or to leave unenforced, whatever rules for the preservation of the public health ita vision in other fields. h 544 THE GOVERNMENT OF THE UNITED STATES I More local •elf -gov- ernment in the United States than in European countries. The merits and defects of local autonomy. own officials may decide upon, it is altogether likely that one community will be made to suffer for the negligence or ignorance of its neighbors. It should not be within the power of any county, town, or township to decide whether or not it will quarantine cases of infectious disease. The public health can be effectively protected only when all communities are uniformly vigilant, and to insure this situ- ation there must be some general supervisory authority. So with various other matters which at first glance may seem to be functions of strictly local adminiHtnition but appear upon careful analysis to be things which intimately concern the people of the state as a whole. Tlie guiding hand of state authority is being therefore applied to local adminis- tration in many of its branches, and the end of this develop- ment is not yet in sight. It is in the cities, however, rather than in the rural areas, that the progress of centralized supervision has been most marked, and it is there, as will be seen later, that the protest against this movement, the cry for local home rule, has become most vociferous. Yet with all this widening of central supervision over local government, the counties, towns, and townships of the United States have on the whole a larger measure of auton- omy than have their prototypes in European countries. Centralization in England has gone much further during the last half century, although even there the officials of local government retain far greater freedom from national supervision than has been left to the local authorities in any country of continental Europe. Home rule in counties or townships, as in cities, has its merits and defects, both of which are too obviou; to need much elucidation. It fosters local initiative, encourages the trying of experiments which may prove worthy of gen- eral adoption, allows each local community to adapt its own administration to its own needs, and tends to develop a wholesome spirit of local rivalry in good works. Local in- dependence begets local responsibility. On the other hand, local home rule too often becomes another name for local misrule, and the sins of one remiss community are visited upon its neighbors. The right of the individual community to do as it pleases, spend its own money as it may see fit, ^- THE HISTORY OF LOCAL GOVERNMENT 545 and be a law unto itself is surely no greater than that of the individual citizen. The limits of liberty in each case are set by the rights of others. That is the fundamental con- sideration to be borne in mind when dealing with the problem of local self-government. 2h f^*f'-i-^ ■.'■-♦sj'i'y"' ' j'>*yE<-'-'*- -■.--"<- CHAPTER XXXVIII The county Kcograph- ical area. TIiP rroatioii o( counties. 1 ' COUNTY GOVETtNMENT EvKRY state of the Union, with tlir ^!n}:lo exception of Louisiana, is divided into counties.' In these forty-seven states there are nearly three thousand of them. They arc of all sizes and density. The larj;(>st is San Bernardino County in California which takes in more than 20,000 square miles ; the most populous are New York County in which the downtown portion of New York City is located, and Cook County, Illinois, which includes Chicago.'' For the most part tlic county is a firmly established geographical area, and its boundaries are rarely changed in the older states. In Ihe newer states the counties were mapped out in t'.ie first instance on a large f^cale, hence they are frequently divided as population increases. In the long run, however, the tendency i to make the county a fixed and permanent division of the state. As a geiH^ral rule the creation of new counties is within the powers of the state legisliture, but in many of the statc*^^ there are numerous constitutional provisions which limit the legislature's authority by providing that new counties • In T»ui:'<-five square mile.s-r -tte MSfctteat in population ia Cochran C.unty, Tixas. which had tt5 inhabitants in 1910. "Comparing the .\nipriean county in area and population with th ^ distri'>ts in European countries most nearly similar it will 1 See H. S. Oilbertsou, County Oovernment (N. Y., 1017). COUNTY GOVERNMENT 549 The centre of county government is the county seat or Tto^^ , ■ipital The selection is made by the legislature when the ge^t. county is first established, and the legislature may remove it to some other city or town at any later time, but m many of the states the constitution forbids this unless the voters of the county approve the change. The county seat is the location of the county courthouse, the offices of^the county board, and often the other county offices as well.' The chief administrative oi.^.in of the county in all the The states but two is a county board.^ Members of this board ^oard. are usually known as commissioners or supervisors. They differ greatly in number and in method of selection from state to state. In New England the boards are small, usually consisting of three members. Tliey are elected it.orKan- by the voters of the county at large except in Connecticut, where they are appoir i ed by the state legislature. In other eastern states, such as New York and New Jersey, the board is a much larger body, including from fifteen to twenty-five members or even more. The members, usually known as supervisors, are not chosen by the voters of the county at large but arc sent as representatives by the townships and cities included in the county. In this case the representation is not according to population, for each community, however small, has at least one representative. This method of constituting the countv board is also followed in some states of the Middle West, including Michigan and Wisconsin. Still another plan is found in Pennsylvania and in various states throughout the West, including Ohio, Indiana, Minnesota, Nebraska, Kansas, and the Dakotas. Here the board is small, with from three to seven members ; but the choice of members is not made by the voters at large as in New England or by municipalities as in New York. The counties in these last-named western states are divided into districts and each district elects one or more supervisors. In the southern states there is a great variety of practice. The board is usually a small body, but its members are » Occasionally a county has two county seats, each with a courthouse and other county offices. ■, ^ ^ »•„ » The exceptions are Louisiana, which has parish boards but no counties, and Rhode Island, which has counties but no boards. Diversity in organi- zation of the boards. The functions of county boards: 1. Finan- cial. Taxation Mini appro- priations. 550 THE (iOVERNMENT OF THE UNITED ST.\TES Bometimes elected at large and sometimes by districts. Finally in the states of the Pacific slcpe and Rocky Mountain areas the preference has been for a small board, usually of three men bers, but there is no uniformity in the method of selecting these three commissioners. It is commonly said that county boards may be divided into two general classes : first, the smalUjoard of three or more members elected at large for the whole county or from large districts ; and second, the representative board composed ordinarily of one member elected from each township within the county. It is added, usually, that the first type prevails in New England, in the South, in the Middle West and in the Pacific states, while the latter is to be found in New York, New Jersey, Michigan, and a few other states.^ This generalization, however, is true only in the rough. There are many compromises between these two types, and some states do not conform in any essential respect to either. There is almost as much variety in coimty govern- ment as in city government throughout the United States. The functions of the county board are established by law. Some states have general laws on the subject, but in most of them the duties of county commissioners or supervisors are set forth in a long succession of separate and unrelated special acts of the legislature which sometimes apply to one county and not to others. Taking the boards as a whole, however, their functions may be grouped under six general heads : financial, highways and bridges, other public works, poor relief, elections, and miscellaneous. Most county boards have the right to lex-y county taxes and to make appropriations for expenditure. There are some exceptions to this, however, notably in Massachusetts, where the appropriations are made by the loijislature (usually on the recommendation of the county commissioners), and in New Hampshire and Connecticut, where the legislature retains the function both of determining the county tax rate and of making the appropriations. In most of the other states, where l > countj' hoard both makes the ap- propriations and spends them, there is a fusion of two ' C A. Beard, American Government and Politics (N. Y., 1916), pp. 639-640. COUNTY GOVERNMENT 561 powers which am usually kept separate in government. In the national government, Congress makes the appropriations, and the executive has the function of applying the money to the purposes designated. In the states, again, the legis- latures appropriate and the executive spends, bo in the cities (except those under the commission form of govern- ment), the council votes the budget, while the mayor and tiie heads of departments disburse the funds. But in county government throughout the larger part of the country the same board, of three or seven or fifteen members as the case may be, lays the taxes, votes the appropriations, and then proceeds to spend the money thus appropriated. This has been criticised as an unsafe policy and in practice it has encouraged extrava-ance, although it does not appear to have done so on any large scale. In addition to the function of levying county taxes, making appropriations, and supervising expenditures the county board, as a rule, has other financial duties, l^rom time to time, either by general or special law, the board is given authority to borrow money on the county s credit, either with or without the necessity of first securing the approval of the voters. Ordinarily the county board has no general power to borrow hut must obtain special legis- lative authority in each case. Borrowing powers are frequently obtained in this way for the building of roads, bridges, and county buildings. The county board, again, sometimes serves as a tribunal of appt al from the assessments made by local assessors or as a board of equalization for making the proper adjustments in assessments among cUfYerent municipalities. In many states all the important highways are either state or county roads. The towns and townships are responsible for the minor thoroughfares only. Nearly everywhere the county board has authority to lay out, to construct, and to repair the various rural highways which may be designated as county roads ; but there are great differences among the states in the extent to which this authority is exercised. In some, such as Ohio, Indiana, and California, rountv roads are numerous; in Massachusetts they are very few. Main bridges, especially those which The fusion of appropriat- ing und spending powers. Other financial functions. 2. Roads and bridges. 3. Other public works. 4. Poor relief. 552 THE GOVERNMENT OF THE UNITED STATES connect two cities, or towns, or townships, are also commonly built and maintained by the county authorities. The money for these enterprises, whether roads or bridges, is obtained partly by taxation and partly by borrowing. Various other public works are provided by the county 1 lard, particularly the courthouse, the county jail, the house of correction, and the registry of deeds (wherever this is needed). Such buildings are often erected on an expensive scale, far more so than a county requires or can well afford. Tlie management of these buildings, their supervision, repair, and upkeep is also a function of the board. In states here and there the county officials have been given other public enterprises to carry through, such as the con- struction of irrigation works, the abolition of grade railway- crossings, or the building of levees, dikes, and drains. In general, when a project concerns all the municipalities in the county, or several of them, the county board is the natural authority to have charge of it. Poor relief in the great majority of the states is primarily a county rather than a local function. The chief exceptions are the New England states where local responsibility in matters of poor relief still remains extensive. Over the greater part of thp country the county poorhouse and county farm are well-known institutions. Persons who need public assistance are sent to these institutions from all the towns or townships of the county. County ho.^ 'tals exist in a few of the states. Institutions for the care of the insane are usually provided by the state, not by the county. Expenditures for the relief of the poor have had a relati ^ely large place in county budgets, but these expenditures have not been, for the most part, administered in an enlightened or humane way. The general policy has been merely to build a poorhouse and to put paupers into it, supporting them there at whatever may happen to be the .ost. There has been relatively little attention to the problem of helping the poor to help themselves, thus reducing the burden of poor relief by measures designed to prevent pauperism. Fo this the county officials are not mainly to blame. The states have lent little encouragement to those who do otherwise than follow the methods of a hundred years ago. In most COUNTY CU)M:itNMKNT 553 American counties the system of poor relief remains exactly as it was when the county was first established. There has lioon far less progress in the methods of public charity than in the methods of road-building. County boards have various duties with reference to elcc- 5.^Eiec- tions, although here again the New England states provide conspicuous exceptions to the general rule, niroughout the South and the West the county board has immediate charge of election machinery-; it designates the polling places, appoints the poll officials, provides the ballots, and canvasses the returns. It sometimes also selects the jury panels from the voters' lists. The county, as has been already mentioned, is the prevailing unit for the selection of senators and representatives in the state legislature. Finally, the county board has miscellaneous powers. It ^^^^^^^ appoints some county officers, although in most counties these officials (such as the sheriff, the county prosecuting attorney, the registrar of deeds, the county treasurer, and county clerk) are elected ])y the voters. In the counties of the southern states and to some extent in the central and western states as well, the boards grant the hquor licenses; but the spread of prohibition during the past ilecade has greatly diminished the importance of this au- thority. Occasionally they issue charters of incorporation for smaller companies. Odds and ends of jurisdiction go to the county boards here and there ; for example, the exter- mination of noxious animals, the regulation of schools for truants, the licensing of pedlers, and so on. It will be seen that the county board, as the chief organ Some of county administration, gathers to itself a considerable ^„„„ty variety of functions. They are in part legislative, since the boani-s levying of taxes and the making of appropriations are legislative functions. But they are in larger part adminis- trative, as has been indicated. In a few cases the county board h\s son^e judicial duties as well, and sometimes, as in W>st Virginia and Missouri, it - officially listed as a court. County boards cannot, therefore, be placed exclu- sively in the legislative, executive, or judicial division of o-overnment, and tliey are among the very^ few American political institutions of which that can be said. . 554 THE GOVERNMENT OK THE UNITED STATES The county 11.-4 a jiidirial area. The county court. Ita juris- diction. Other county officials: (a) the sheriff. \Vhile tho county bo°rc' "ms, occasionally, some minor judicial functions, it is not ihat fact which makes the county an important area of judicial admini.st ration. It is rather th'.^ existence of the county court, an institution which exists in almost all the states. These county courts are not always constituted in the same way. In about sixteen of the states each county has its own judge and court. In a few others there ' e separate judges and courts for a few populous coun^ )nly. Most of the states do not have a judge for eacl anty, but group the counties into judicial districts witn one judge for each district. This judge then goes on a circuit, holding sessions at the courthouse of each county in succession. Tlie judges are in mo? cases elected by the voters of the counties or districts, as the case may be. but they are ranked as state officials and form an integral part of the state judiciary. Tlie jurisdiction of the coimty court usually extends to the hearing of appeals from local courts presided over by justices of the peace, with original cognizance of criminal cases and of civil controversies where the amount at issue does not exceed a certain sum. But the powers of these courts differ so greatly among the states thut no general rule can be laid down. The probating of wills and the administration of estates is also, as a rule. • ^ ~n of the county court, or of a branch of it. In addition to the county board and ti. .ar,^ of the county court there are some other officials of '^oanty adminis- tration. The most important, at any rate the oldest of these offices, is that of sheriff. "Every county has a sheriff; and the office may be called the constituent office of the county." ^ The name is an abbreviation of the old Saxon shire-reeve, which antedates the Norman con- quest of England. During the middle period of English hisiory the sheriff was the right arm of the crown in the counties, the keeper of the king's peace, and the enforcer of the common law. These functions, in a general way, the sheriff of an American county has inherited. He is the chief conservator of law and order and the executive agent of the county court. The office of sheriff is everywhere > Fairlie, Ibid., p. 106. COUNTY GOVERNMENT 555 elective save in Rhode Island. There the legislature chooses the sheriffs. The sheriff is uaually empowered to appoint deputies who assist him in keeping the peace, attending court sessions, making arrests, serving court papers, and so forth. Both sheriifs and their deputies are sometimes paid fixed salaries; but more often their re- muneration comes from fees. In populous counties these fees make the sheriff's office a very lucrative one. In rural ( ounties, on the other hand, the compensation is small and the duties are often onerous, particularly in unruly parts of the land. In such areas the security of life and prop- erty depends to a considerable extent upon the alertness, honesty, and courage of the sheriff. This is particularly true in time of serious disorder or riot, when the sheriff may not only summon his deputies for assistance, but may raise the posse comitatus by sending out a general call for help to the citizens, and in the last resort may obtain the aid of the state militia. The sheriff, in addition to his functions as guardian of the peace within the county, is also the chief executive officer of the county court. It is through his office that the judg- ments of the court are carried out. He is the keeper of the county jail and has the custody of all prisoners there. He looks after the comfort of juries while the court is in session. He or his deputies serve subpoenas upon witnesses, or seize property in satisfaction of judgment ; or place writs of at- tachment upon property, or perform whatever other duties the court may request. The coroner is another important county officer, nis duty is to hold an inquest whenever a death takes place under circumstances which excite suspicion of crime. To assist him at the inquest the coroner usually cmIs together a jury of citizens, who hear the evidence and render a ver- dict. If the jury finds grounds for believing that a crime has been committed, it may so declare in its verdict, where- upon the coroner may usually issue an order for the arrest of the person accused. But neither the coroner nor his jury finally determines any question of guilt or innocence. That function is left to the regular courts. In the United States coroners are ahnost always elected. His col- lateral function : executive officer of the court. (6) the coroner. His duties. 556 THE GOVERNMENT OF THE UNITED STATES UtsatiB- factory character iif in- ((uests in general. To perform their duties efficiently they should be either physicians or lawyers, but often they are neither. Their juries, moreover, are selected by summoning anybody who happens to be near at hand. On the whole, therefore, coroner's inquests have not contributed greatly to the dis- covery of crimes or to the approhcusion of c lenders. Still the whole process is not so deserving of derision, perhaps, as Shakespeare in Hamlet makes it out to be.* The office of county coroner has a long and interesting history behind it, and one i ight hesitate to see it generally abolished,, yet the procedure is not well adapted to conditions of to-day. Massachusetts for over forty years has gotten along very well without coroners, having provided for the appointmmt of medical examiners who make investigations without the : id of improvised juries and report the results, if necessary, to the regular prosecuting officials for action. The regular prosecuting official of the county is an attorney prosecuting ^^Qge office bcars various designations.' Usually he is elected by the people of the countv' or district. His chief duty is that of conduct! z' prosecutions in the name and on behalf of the «tate. He prepares the evidence for presenta- tion to the grand jury and advises the jurymen as to whether there is sufficient ground for an indictment. If an indict- ment is found, the prosecuting attorney is responsible for the proper handling of the case when it is brought before the trial jury. These officials have considerable discretion in the way of discontinuing prosecutions, either by entering a nolle prosequi or by asking th^t a case be placed on file.' The court's approval is sometimes necessary for such action, but more often the prosecuting attorney takes the whole responsibility. In a few states, including Michigan, Wisconsin, and Minnesota, the requirement of grand jury action in all but the most serious criminal cases has been (c) the attorney. » Act .5, Scene 1. ' Prosecuting attorney or state's attorney or district attorney or county attorney or county solicitor. ' A nolle prosequi is entered when the prosecuting attorney feels that there is no occasion for pressing an indictment to trial. Such action is popularly termed "no', p^o^4sing" an indietmeni. Placing an indictment on file involves an indefinite postponement of the prosecution, and while it does not preclude a trial at some future date, this rarely takes place. COUNTY GOVERNME?TT 6S7 abolished. Proceedings are b(igun by an information, which is a sworn declaration made by the prosecuting attor- ney to the effect that there is suffici Pt ground for placing an accused person on trial. Other county officers are the treasurer, who receives the revenue and makes all payments out of the county funds, the auditor, who inspects the accounts and prepares from time to time a statement of the county's financial condition for presentation to the county board ; the assessors, who appraise property for taxation ; the clerk of the county court, who looks after the judicial records ; the registrar of deeds or recorder, and the county superintendent of schools. Not all counties have this entire set of officials. In Massachusetts, for example, there are no county auditors, assessors, or school superintendents. Nearly everywhere these various officials are elective, although some of them are in a few states appointed by the county board. It is generally adniitted that there are too many elective county officers and the result has been the selection of inferior men. The voter s interest is centred upon the candidates for state office_on the one hand and for municipal office on the other. Die county, coming in between, gets little of his attention. The consequence is that county nominations and elections have been proverbiallv dominated by small rings of professional politicians. There has been loss genuine political indepen- dence in the counties than in the other areas of govern nt. County government, taking the country a^ a who , has not b' ;n conspicuously bad, but it has been far fruui what it ought to be. Corruption and political dishonesty has not been so prevalent as in the cities. But mediocrity m office, unprogressiveness in policy, a failure to get full value for expenditure, favoritism in appointments and m the award of contracts, lack of popular interest in county affairs — these things have characterized county administration in most of the states. The situation has been tolerated because the need of reform in other quarters appeared to be more pressing. Now that both state and municipal governments have been improved the tide of reform is di- recting itself towards county affairs. The reconstruction of county government will involve (rf) the treoHurer, auditor, aaseiMor, clerk, regiatrar, etc. A' -J w >rkin88 of county govern- ment . ^^- 668 THE GOVERNMENT OF THE UNITED STATES The nwd of county recon- ■t ruction. 1. County should huvo u chief ex- ecutive. 2. Fewer elective offices. three changes of far-reaching importance in the present system. First among the needs of county government to- day is the bettor organization of county executive work. As matters row stand there is no county official correspond- ingtotho president, governor, and mayor in national, state, and municipal government. Executive responsibility is scattered, some of it devolving upon the county board, and the remainder accruing to the various county olilccrs, each of whom is independent of the others. " Either the sheriff should again become the chief executive of the county, transferring his ministerial functions to an under-sheriff, or some other officer should become chief executive, and the sheriff be confined to his ministerial duties as court bailiff." ' Probably the latter alternative would be the more practical as it would be difficult to separate the office of sheriff from its police and judicial duties. The vesting of executive power in an elective county president, with powers somewhat analogous to those of a mayor, might prove to be a better solution of the problem. At any rate the need of executive centralization will appear most clearly to any one who studies the actual workings of county government. T\\e concentration of responsibility for the management of county business will entail a reduction in the number of elective offices. There '.s no good rtason why treasurers, auditors, recorders, and clerks should be appointed in cities and elected in counties. The elective principle, when appHed to these positions, means an undue lengthening of the baiiot with a consequent flagging of public interest in the claims of individual candidates. With a dozen or more county officials to be elected at large the average voter will not inform himself of particular qualifications but will be guided entirely by party designations. The party leaders, appreciating this lack of popular interest and information, place in nomination for the county offices men who would not be put forward for positions in the state or municipal government. That is why the county has been aptly called "the juncle of American politirs." It is the region where the voter finds the greatest diflTi ulty in threading his way. •Fairlie, Ibid., p. 112. COUNTY (.OVERN'MEXr 559 The practice of electing those purely administrative ofHcerr. of county government has, moreover, encouraged freiim-n* changes in po^;^^ in the service of the county as in that of the city, state, or ^.„u„ties. nation. Clerks in courthouses, keepers in jails, attendants in poorhouses, foremen in road-construction are almost everywhere chosen by a strict application of the spoils system. The progress of civil service in other fields, more- over, has tended to make the county service a last refuge for the incompeter Tlie march of the merit system has been impeded thei y the machine-like organization and overwhelmii e poll „.d influence of the "county rings", whose con'ortcu pressure upon the state legislature is difficult to "erpower. But the wedge has been inserted u\ '. -he salie.if will be widened in time. .L^pecial problems of county government arise whenever a Thejpeciai large city spreads itself over all or a great portion of the p[°„J^^ county area. This is the situation, for example, in Cook p^wtan^ County which contains Chicago, in Suffolk County which shelterr Boston, in Philadelphia County which includes Philadelphia, and so on. In some such cases, as in San Francisco, Philadelphia, and Boston, the same body acts as a city council and county board combined. In other instances there are two separate bodies with powers which interlock, sometimes overlap, and are frequently ill-defined. I CHAPTER XXXIX The various areas of local govern- ment in the several states. Relation of local to state govern- ment. TOWN TOWNSHIPS, AND VILLAGES For purposes of local government counties are usually divided into towns, districts, or townships, but whenever any portion of a county becomes urban in character through the growth of population it is commonly organized as an in- corporated village, town, borough, or city. The practice and th(! terminologj' are very different in various parts of the country, so that any clear and accurate presentation of local government throughout tlu United States is a task of con- siderable difficulty. All that can be attempted in this chapter, therefore, is to set forth the general principles according to which local administration is carried on and to describe in a summary way the organization of the more important units of local government, particularly the New England town and the western township. Local government in the United States, it need hardly be explained, is exclusively a matter of state control. The national government has nothing to do with it. Each state has full power to devise its own system of town, township, district, or borough government, and to modily tins system at will. But although each state is supreme as t>. .spects its own form and functions of local government, the state legislatures arc not always given a wholly free hand in such matters. The state constitutions contain many Hmiting provisions which guarantee to the local units their existence and the possession of various privileges. And as constitu- tions are revised, the tendency is to insert more of these restrictive provisions. Nevertheless, the towns, townships, villages, and other communities are largely under the leg- islature's control. Acts of the legislature provide what officers a community shall have, how they shall be chosen, 560 TOWNS, TOWNSHIPS, AND VILLAGES 561 and what their duties shall be. Such acts are usually of a general character applying to all local areas of the same legal character, that is, to towns or townships as a class ; but special laws applying to individual communities are also common except in states where they are forbidden by constitutional provision. Among the various areas of local government the New The New England town is one of the oldest and in every respect the ^3'^° most interesting. The town is not always, as the name would ordinarily imply, a thickly settled community. Some New England towns, it is true, are towns in the generally accepted sense, or places with populations running into the thousands. Most of them, however, are what would elsewhere be called townships, that is to say, agricultural regions covering twenty or thirty square miles. They differ from the western town- ships in that they are not of regular shape or uniform area, having been laid out in early days according to no fixed system of survey. They are as diverse in population, more- over, as in size or shape. One Massachusetts town has a population of nearly forty thousand; another has less than four hundred. In Maine, Vermont, and Connecticut a few villages or borouglis have been incorporated within the limits of the towns ; but in general this practice has not been pur- sued. A town remains intact until its people secure incor- poration as a city. The New England town does not possess a charter of m- corporation, yet it has practically all the rights and privi- leges of a municipal corporation. Originally the towns derived their powers from the common law, but since the Revolution it has been well-settled legal doctrine that they can claim no powers except such as "have been expressly conferred by statute or which are necessary for conducting municipal affairs.'" The idea that towns have inherent and inalienable rights because they are in many cases older than I lie states is widely held by town officers in New England ; but it is without any legal basis. The New England town is as completely under the; thumb of the state legislature as is the western township or any other area of local government. To some extent the powers now possessed by the towns 1 BloomfieU vs. Charter Oak Bank, 121 U. S. 129. 2o Its legal status. 562 THE GOVERNMENT OF THE UNITED STATES Gpiionil pftwcrs of tuwus. The town meeting. Their orir;»ni- z:»ti(in and functions. have been conferred by a general law dealing with town government; but special statutes have also, from time to time, added new privileges or functions. To-day the New England town has substrutially all the authority which a city charter conveys. It may sue and be sued, make contracts, levy taxes, borrow money, and own property. It may by ordinances or by-laws provide for the protection of life' and property, the public health and pubhc morals. It has the usual powers of a municipal corporation to build and maintain streets and sewers, to provide water supply, public lighting, police and fire protection, parks and public buildings. It is required to establish schools, and it may maintain a hospital, a pubUc library, and a market. Poor relief is also a town function in New England. The town, in fact, provides many services which in other parts of the country are amonr; the functions of counties. The chief organ of town government in New England is the town mri t ing. An annual town meeting is usually held in May, with special meetings whenever necessary, but not more than two or three special meetings are commonly called during the year. Every voter of the town is entitled to attend the annual and the special town meetings, both of which convene in the town hall. As a rule, however, not more than half of them do attend, and the percentage is fi(>quoiitly much smaller. The town meeting selects its own presiding officer, who is known as the moderator, but this honor customarily goes year after year to some prominent citizen.^ Town meetings are called with considerable formality, and their procedure is strictly regelated by law and tradition. The call 's in the form of a wa- at issued by the e*»lectmen to the constaliles of the town commanding them "to notify and warn" the townsmen and to "make due return" of their having done so. The warrant specifies item by item the matters which are to be brought before the meeting and no other business can be considered. At the annual meeting the various town officers are elected for the year, a poll being ' It is Itn' liisiliest honor thai the iowtismc-n ean hf-stow and i' appre- oiatod acoorriinRly. Even povemors and United States sonatots do not disdain to serve as moderators at the annual meetings in their home towns, TOWNS, TOWNSHIPS, AND VILLAGES 563 opened for this purpose whenever there is a contest. Usually this polling takes place in the morning, the afternoon being devoted to a business session in which the appropriations are voted and all matters of general town policy settled. In the more populous towns, however, the polling often con- tinues throughout the day, with the business session in the evening. When the warrant contains many items, it is impossible to finish .he entire docket of business at a single session, in which case the meeting is adjourned to a subse- quent afternoon or evening, and still further adjourned if necessary. In the smaller rural tcyns the occasion of the annual town meeting has always been and still is a neighborhood holiday. The debate, particularly upon matters which the world would not regard as of momentous importance, is often spirited and piquant, with no dearth of humor and an occasional flare-up of personahties. It is a picturesque gathering, this annual meeting in a small New England town, with its copious flow of homely oratory, its insistence upon setthng even the smallest details by common voice, its prodigious emission of tobacco smoke, and the general retail of local gossip which takes place around the doors. In the larger towns things are quite different. There the business of the town meeting is for the most part cut and dried before- hand ; a few active politicians monopohze the debate, and the large amount of business necessitates the strict applica- tion of parliamentary rules. In somo of these larger towns, moreover, it has become the practice to have the moderator appoint a committee, usually of fifteen or more townsmen, which makes recommendations to the town meeting on all matters in the warrant, and these recommendations are usually adopted. The town meeting ceases to be a satisfactory organ of local government when the population of the town exceeds five or six thousand. When that point is reached, a reason- ably full attendance of the voters becomes impractical and the control of the town policy passes into the hands of what- ever element happens to be the stronger or more aggressive politically. For this reason many towns, nn re l.ing an unwieldy size, apply for incorporation as cities. Some How tha system works : 1. in smaller towns. 2. in larger towns. Recent changes in the town meeting. The selectmen. Their functions. 564 THE GOVERNMENT OF THE UNITED STATES others, hov vcr, have been reluctant to give up local in- stitutions which have served so long, and hence continue a scheme of government which no longer suits their needs. Others, again, have attempted to modify the town meetmg without actually abol^hing it, but these halfway measures do not seem to be proving altogether successful.' There is, in fact, no practical halting place between direct and repre- sentative government. A town meeting must represent one or other of these types ; it cannot well embody both. A "Umited" town meeting, accordingly, is not a town meeting at all, but merely a camouflaged town council of unwieldy size. In the earliest days of seaboard settlement the town meeting was the sole organ of town government. But it was soon found necessary to have officials who would carry the decisions of the town meeting into effect and who would also deal with minor matters in th(! intervals between the meetings. Hence developed the practice of choosing at the annual town meeting a committee of the townsmen, usually three or five in number, known as the selectmen-^* Originally these selectmen were chosen for one year only, and that practice is generally continued, except in Massachusetts, where the term is three years in many of the towns, one selectman retiring annually. But in any event re- elections are commoii, and a selectman who is wilUng to serve is frequently continued in office for ten or a dozen years. The selectmen form, n^ it were, the executive committee of the town meeting. They have no legislative authority, pass no by-laws, levy no taxes, borrov/ no money, and make no appropriations. All these things require action by the town meeting. Nor do the selectmen appoint the town offi( ers. Even their administrative functions, although mul- tifarious, are of a subsidiary character. They prepare the warrants for the annual or special meetings ; they grant 1 In 1916 the town of Brookline, Massachusetts, with a population of about 35 000, was pormitted by a special act of the Massachusetts legis- lature to adopt a system of "limited town meetings." The town is now divided into precincts, each of which etecls a (juola, of representatives. 2 In Rhode Island this body is not known as the board of selecvmen but as the town council. TOWNS, TOWNSfflPS, AND VILLAGES 565 licenses under the authority of the state laws ; they lay out highways and sewers for acceptance by the town meeting; they make the arrangements for state and local elections, tnd they have immediate charge of town property. Ihey usually award the contracts for pubUc work, and all bills against the town for .ork or services must be approved by them before being paid. Schools are in charge of a school committee elected at the annual town meeting, i he select- men may serve as overseers of the po- or as assessors or as the town board of health ; but in tow ,s of any considerable size these functions are intrusted to separate boards, the niembers of which are also chosei. at th3 annual town meet- ing The New England town do., not, therefore, possess a centraUzed executive authority. The selectmen share ex- ccutive functions with various boards and officials who are not under their control. re . i „ . Tne number and nature of these boards and officials other depend upon the size of the town. Most of the towns have ^ ^^^ a school committee or board of school trustees a board of and .^^^ healta, and a board of overseers of the poor. A large town may also have a water board, a library board, and a board of park commissioners. In Massachusetts each town has a town planning board with aa/isory functions only. As for administrative officials, every town has it." town clerk, who is perhaps the most important among loca officers Many functions are devolved upon him by state law, such as the issuing of marriage Ucenses, the registration of births and deaths, the transmission of various reports to the state authorities, and =n some states the recording of deeds and mortgages. In addition the town clerk is the keeper of the local records and the general factotum of the selectmen. He is eleotod bv the town meeting, rccer a salary, ana;s usually continued in office as long as he c nis work satis- factorily. Each town also has its assessors, its town treas- urer, its constables, and often a considerable list of minor officials, such as poundkeepers, fence viewers, sealers of weights and measures, and so on. These officers are usually rho«en bv the town meeting but in some towns the selectmen appoint 'to the minor posts. In four of the New Eng- land states the justices of the peace are elected by the .15' it. Why so nmny officials ? 666 THE GOVERNMENT OF THE UNITED STATES townsmen;^ in the other two they are appointed by the governor. One reason forthis multi^ lication of administrative boards and officials, even in towns wliieh have relatively small populations, may be found in the fact that most town officers serve without pay. If the work were concentrated in a few hands, there would be a demand for remuneration. In the smaller communities this plan of idministration by scat- tered and unpaid agencies serves well enough and has the merit of cheapness; but in the larger towns, where there is much public business to be done, it falls far short of the requirements and has had to be in part abandoned. These places, as a rule, are now putting paid officials in charge of the more important services. Inertia and the influence of long-standing custom also count for much in the perpetuation of the present system. The various boards and n:inor offices provide places for a large number of prominent townsmen ; indeed it is a rare individual who can live in any small New England town for many years without being named to some official post, be it only that of constable, fence viewer, field- driver, or hog-reeve.'^ It is not that the craving for public office is greater in New England tlian elsewhere, but the continuance of these minor posts entails no expense and the townsmen see no urgent reason for abolishing them. There is need, however, for a considerable reduction in the number of elective town officers, and a movement in tliis direction is already under way. liie adoption of the commission form of government by cities has had its indirect influence upon public sentiment in many of the larger New England towns. New England town government has three centuries of good tradition behind it and enjoys a splendid reputation, which, however, is not wholly deserved. Those who are not in close touch with the actual facts of the situation imagine that ' CoTinoptiptit. New Hampsliirp, Vermont, an. Rhode Island. In Rhode Island some justices are also appointed by the Kovemor. Only in the first three states have the justices any judicial authority. 2 In some towns it is the custom at oach annual town meeting to elect to this last-named offi.-e all the young men who have been married dunng the year. This honor is assumed to represent the community's wedding gift. TOWNS, TOWNSfflPS, AND VILLAGES 567 these towns are miniature republic., left to handle their own Error>«.us local affairs in their own way, free from legislative inter- eoncemhiR foreneo, and governing themselves admirably by the device Now^^^ of a mass meeting. That is a pretty picture, no doubt , but ^^^^ far from being a true likeness. ^;^^- The New England town has in reality no more home- rule than the New England city. It is buffeted in all directions by the action of the state legislature; and scarcelv a year ever passes without new duties being thrown by the state upon town officers. The New hng- land town has a form of government which serves well enough for a very small community where there are no im- portant public services to be provided, where the people are ■ill or nearly all of native stock, and wh. (> every one knows his nei-hbors. But in its application to places of several thousand inhabitants, and particularly to industrial towns which have a considerable proportion of foreign-born voters, it has no marked merits except those of age and good his- torical association. In point of actual accomplishment, it is no better than the newer forms of local government which exist in other parts of the country. Towns an ; townships, as areas of local government, exist Towns^^ in the "reat group of nortliern and central states from INew ^^jp^j^ York and Pennsylvania to Nebraska and the Dakotas. In the^^^^ the older of these states the towns are of irregular shape and ^„j vary considerably in size; but in the newer states the ter- ritorv is mapped out into uniform blocks, six miles square, and these areas are usually called townships. The irvey- ing was done when those regions were territories under the jurisdiction of Congress, hence the divisions are sometimes called congressional townships. In some of the states, both old and new, the town meeting is an institution of local government, but lu.where outside cf New England has it developed much vitality, and its chief function is that of elect.ng the town or township officers.' In other states there is no town or township meeting, the work of local > The chief reason for this, no doubt, is the purely artificial nature of the township It h.as no «oeia1 homo(;eneit> of local self-consciousness like the New England town. By incorporation, moreover, .tie tbickly settled portion. townships are usually organized as cities or vUlages, thus breaking into the original unit. central states. Ill The organs of town and township (lovprn- nienl. The in- rorporatwl niunici- palilien, \nlla(?es, and boroughs. 568 THE GOVERNMENT OF THE UNITED STATES administration being wholly carried on by officers elected at the polls. In a few cases, moreover, the counties have not been divided into towns or townships at all. The administrative work of town or township government is carried on either by a board of trustees or by a single officer known as the supervisor.' Where the board system prevails there are different ways of constituting the board, although its members are always elected by the voters. The powers of the board also vary from state to state. So it is with the single supervisor, an elective official, w iiose functions are more extensive in some of the states than in others. Towns and townships also have their clerks, treasurers, assessors, constables, highway overseers, justices of the peace, and other local officials, all or most of them elected. Township government has been greatly weakened by the practice of incorporating as a separate municipality any portion of the township which becomes urban in character. Nearly all the states now make provision by general law for the organization of these thickly settled areas under the name of villages, boroughs, incorporated towns, or cities. The usual course is for the inhabitants to present a petition to some designated officer, who submits the question of incorporation to a vote of the people, and if they decide affirmatively, the petition is granted. The region is there- upon incorporated as a village, borough, town, or city, as the case may be. Usually there is a minimum requirement as to population : from two hundred to three hundred in the case of a village, from two thousand to twelve thousand where the petition is for incorporation as a city. ^\^len a region is thus incorporated, it passes from the juris- diction of the township officers and sets up its own local gov- ernment. In the case of a village this government commonly consists of a board of tnistf>es or a council with from three to nine elected members, together with a chief executive officer, called a mayor or village president, who is either chosen ' The formpr plan is followed in Pennsylvania, Ohio, Iowa. Minnesota, North Dakota, and South Dakota ; the latter in New Yor Michigan, Illinois, attd Wisconsin. In the last-nain«i slate the oflleial is called the town ehairman. In Indiana, Missouri, Kansas, and Oklahoma he is called the township trustee. .John A. I^airlie, Local Government in Coun- ties, Towns, and Villages (N. Y., I'JOG), p. 17."). TOWNS, TOWNSHIPS, AND VILLAGES 569 by the trustees or by the village voters. In the case of a borough, an incorporated town, or a city, the organization is along somewhat the same lines; but the governmental mechanism is more elaborate. The general laws of each state provide what powers these local governments shall exercise, but they generally include the making of by-laws, the management of streets, water supply, sanitation, police, fire protection, and public recreation. Taking the Lnited States as a whole, there are more than ten thousand of these small incorporated municipalities. They differ so widely in size, population, form of government, and functions that no general description will hold strictly true in relation to all or even to any large number of them. In the southern states the county remains the dominant area of local government. There are no towns as in New England, and only in scattered regions any system of organized town- ship government. Instead of townships the counties usually have districts for such purposes as the management of schools, the building of highways, the holding of elections, and the administration of justice. Tliese districts are not corporate entities, like towns or townships ; they have no taxing power and they exist for certain designated purposes only. In some southern states they are called magisterial districts ; in others the name township is used, although the term is misleading. Delaware keeps the historic Enghsh "hundred," a shire divi- sion which in Anglo-Saxon times contributed one hundred warriors to the feudal array. These various districts have their elective officers whose powers are fixed by law. The vitality of local government in the southern states ceases with the county, the city, and in some cases the incor- porated village. This is an interesting phenomenon m the American political system, and there must be a reason for it. There are, indeed, several reasons. One of them is historical, the system of great plantations and slavery before the Civil War In those days even a considerable tract of territory contained very few voters, for the slave had no political rights The planters controlled local affairs, and the county was none too large for their public acti^-ity. There^were no public schools ; there was very little public road-building, and no public poor relief was required because each planter looked The county divisions in southern stUi«8. Why areaa of local govern- ment have not developed in the South. 570 THE OOVERXMENT OF THE UNITED STATES The 'ounty divisions in states of the Far West. after the people of his own estate. There was, therefore, little or no need for community administration. With the abolition of slavery some development of township or village government miglit have been expected, but several factors stood in the way. The slaves were set free, but as matters turned out, they were not destined to become voters except for a short time during the era of reconstruction. Their descendants, who form a large element in the rural population of the South, are for the most part without poHtical power. The systematic organization of townships would only serve to make negro disfranchisement more conspicuous and perhaps more difficult to defend. A town meeting attended by negroes in almost any southern state would be unthinkable. Such a meeting, if restricted to whites, on the other hand, would have a slim attendance in some rural areas of the South. After the Civil War some townships, commonly known as reconstruction townships, were established in various southern states, and the new colored voters at once took control of them. The experience of these few years is one wliich the white citizens of the South have not forgotten. When the opportunity came, they abolished the reconstruction townships, and there has since been no serious thought of refistabhshing them. In a word, neither historical, ethnic, nor geographic considerations have favored the growth of local self-government as applied to small areas in this region of the country. Finally, in tlie far western states, the system of county divisions, commonly known as precincts, is more or less general. It is also a common practice to divide the county into school districts, judicial districts, and road districts, each for the purpose indicated by its name and each with elective officers. The county in these sections is the all- important unit. \Mien its authorities cannot conveniently carry out all the work that needs to be done, a division into districts is made for single functions. Population in these states is evf n yet too sparse to warrant tho general estab- lishment of organized townships. In none of them is the density more than a dozen persons to the square inile, and in some it is not more than half that figure. Townships, if created, would have on the average only fifty or sixty voters, TOWNS, TOWNSHIPS, AND VILLAGES 671 not enough to form a local electorate. Wherever the popu- lation is compact, incorporated villages or cities lave been created ; but for the rest of tlie territory the county or its special divisions arc adequate. Nv' improbably, however, as theso regions become more thickly settled, the organiz( d civil township of the central states will find its way to the Pacific slope. CHAPTER XL THE AMERICAN CITY A century of city growth. The development of large urban communities, or cities, has been the most striking socif 1 phenomenon of the past ten decades. England, a hundred years ago, was the only country in which the inhabitants of cities formed any considerable fraction of the national population, and even there it was less than forty per cent. The United States, in 1820, contained only about a dozen places with populations exceeding eight thousand, and taking these as a whole they contained less than five per cent of the country's total. In 1920, unless all the indications are misleading, the number of such communities will be nearly a thousand and they will contain nearly forty- five per cent of the American people.' The movement of the people from county to town has thus assumed huge pro- portions, especially in re '.t years, and its strength shows as yet no signs of abating. ' The following table shows the dovelopmont of urban centrps in the United States by ten-year pt>riods : NuMBEn or Places Percentage or Na- Yeah WITH More than Total I'opcla ■! ix I.nclcoed Thkh ■■:. tional Population 8,000 Jnclcded 1820 1.3 t/'-.,l.3r) 4.9 la'io 26 8(i4,r>09 6.7 1840 44 f,*r,.i,994 8.5 18.W &5 2,. )7,.'>86 12.5 1860 141 5,072,2r>6 16.1 1870 226 8,071,875 20.9 1880 291 11,450,894 22.8 1890 449 18,327,987 29.1 1900 25,142,&78 35.1 1910 778 35,726,720 38.8 572 THE AMERICAN CITY 573 Various factors have contribated to this extraordinary ^"^^ development of urban communities." Improvements in ^p^" agriculture, for one thing, have released men from the soil, w^*t^»^ permitting great increases in the production of foodstuffs eium.""" without a corresponding increase in the r iv.unt of labor required. This has permitted and even encouraged the exodus of young men and women from the rural areas. Industrial causes, too, have been of great importance : the rise and extension of the factory system with its never satiated demand for labor in the cities and towns. "God made the country, and man made the town," Cowper tells us, and that is true in a very literal sense ; for man devised the means of utilizing steam power, and steam power haf revolutionized the order of human Ufe in civilized lanr' Factories congregate in cities, mainly in large citn^s, where the factories are there will the laborers be gatht i together. Commerce also has had its place as a contribut- ing cause of city growth. Neariy all the great centres of population in both the Old Worid and the New are situated on navigable waters. It is hardly a mere accident that the American cities of two hundred thousand people or more which arc not situated upon navigable waters can oe counted on the fingers of one hand. Railroad trans- portation, furthermore, has helped to buiid up the large communities, makini 't easy to get raw materials and to market the products of manufacture. The flood of alien immigration during the fifty years between the close of the Civil War and the opening of the great European conflict directed itself chiefly to the cities for various reasons. And t'^'^se are only the outstanding caises. Political factors, such as the choice of a place as the A&te capital or county seat, have contributed to the upbuilding of some cities; educational advantages have helped as many more. Im- provements in sanitation, in housing methods, and in public recreation have made the city a better place for men to live in. Its call has become irresistible. The- are more cities in the United States the It ji.' other countrv. Among the dozen largest citif >* th • A. F. Weber, The 1899). rowth of Citiet in the Nineteenth Cen'v ■:; (5^. Y., m 574 THi: GOVERNMENT OF THE UNITED STATES Kffcpts of urban expansion. The oity as a social unit. Traits of its l)opulation. The attitude of docility. world, five at least are American. At the present time there are ten American cities with populations ex- ceeding half a million and twenty-five with populations above a quarter of a million. Mon> than a hundred cities in the United States have over 60,000 people. ITie nation is becoming urbanized at a rapid rate, so much so that the United States can no longer be called a rural land. In another decade or two the urban section of the population, in all likelihood, will have gained the mastery. This is a fact of great social significance, for the influence of cities upon the national life is much greater than their numerical strength in the census figures would imply. It is the cities that supply the leaders in all branches of activity : political, social, and economic. Through their newspapers, through the various organizations which centre there, and through their leadership in every form of propa- ganda it is the cities that mould the public opinion of the nation to a large degree. No country can change from a rural to an urban land without some transformation in its political temperament, its social complexity, and in the nature of its economic problems. Many things differentiate the city from the rural area. The occupations of its people are highly diversified, so that no bond of common vocation and economic inter- est holds them together as is the case with agricultural comnmnities. Division of labor in industry and commerce is carried to its zenith in the large urban centres, and extreme specialization in any field of activity usually narrows the horizons of men. It develops a personal expertness in doing some one thing, with a dependence upon others for everything else. "If disorder occurs in a city, it is to be put down by a professional police force ; if a fire breaks out, it is to be extinguished, again, by a professional fire service ; if contagious disease appears, it is to be dealt with, again, by a professional health department." ^ The city-dweller looks for professional guidance in philanthropy, in recreation, even in politics. The whole tendency of city life is towards docility and the extinction of independence in thought and ' F. J. Ooodnow, City Oovernment in the United States (N. Y., 1904), p. 14. THE AMERICAN CITY 575 action. Men who are born and grow up in large com- munities do not realize the workings of this psychological influence, but its pressure is incessant. Paradoxical though it may seem, the city nevertheless R.-vdiraiism tends to be radical in its attitude toward political and S"/;iau^g. economic issues. Its restive frame of mind does not betray, however, the radicalism of independence l)ut of self-interest. This is because the city is the habitat of great propertyless elements and lacks the stabilizing influence of widely distributed private ownership. In Boston not one in five families own their homes ; in New York not one in eight. In the rural districts of the United States, on the other hand, more than half the adult male population can claim the ownership of land. The great disparity in income and wealth which may be found within the bounds of the city is also an incentive to restiveness on the part of the less well-to-do. Class antagonisms develop, therefore, more readily in cities than in regions where worldly possessions are more evenly distributed, and where each man's earnings do not differ greatly from those of his neighbor. The presence of large foreign-born elements in American The .Mien cities is another factor which has tended to promote political l^'^AmCTican docility, social unrest, and a readiness to depart from estab- cities, lished traditions in government or law. In the nation as a whole only thirteen per cent of the population is of foreign birth ; ^ but in the cities the ratio is much higher. Rarely is it less than twenty-five per cent and it sometimes exceeds fifty. Many of the largest cities are veritable melting-pots for the assimilation of aliens drawn from the ends of the earth. It is said of New York City, and doubtless with truth, that it contains "more Irishmen than Dublin, more Italians than Padua, more (iermans than Potsdam, and more Jews than Jerusalem." llie immigrant brings with him no knowledge of American political traditions. His eyes are on the present and future, not on the past. If he tries to enter into the spirit of existing American institutions, he finds almost insuperable obstacles in the way, his lack of education, his difliculties in mastiTiiig the new language, > This does not include, of course, native-born persons of foreign parerUase. I ^ 576 THE OOVERXMENT OF THE UNITED STATES Why immi- grants concen- trate in urban centres. the dearth of leisure, and the various other forces which in- evitably cast him into the company of other immigrants like himself. All too soon he learns to think as they do, to be exploited by contractors and politicians as they are, to shape his attitude upon political and industrial questions in accordance with the only sources of information which are open to him. All too soon after an immigrant passes the Statue of Liberty he is likely to be disillusioned. He came to America as to a land of promise, of political liberty, of social equality, and of economic fraternity, ^\^lat he usually finds is hard labor at two dollars a day, a two-room home in a tenement, a foreman who bullies him at work, a walkin: -delegate who tells him to strike, and a politician who dictates how he shall vote. It is hard for the new arrival to discern the principles of liberty, e(iuality, and fraternity in all this. Thus disillusioned and exploited the immigrant often becomes a malcontent and quite naturally becomes the prey of demagogues who use him solely for their own advantage. Why do immigrants concentrate in the cities, particularly in the large cities ? It is not merely because they land there, for Chicago and St. Louis, Bridgeport and Gary, Milwaukee and Schenectady, all have large infusions of foreign-born although they are not ports of entry. ITie real reasons are partly social and partly economic. The immigrant goes where he can be with others of his own tongue, hence whenever a colony of Italians, Greeks, Poles, Lithuanians, Armenians, or any other alien race gets a foothold in any American community, it is sure to be steadily augmented by new arrivals. But the economic magnetism of the city is even stronger. The great majority of these immigrants come to America to work, and it is in the city that jobs, particularly of the unskilled sort, can be most readily found. The factories and shops of the large industrial centres fur- nish an almost unlimited demand for alien labor. The largest single industry in New York City, for example, is the manufacture of "ready-tn-wpar" clntliing, and this industry employs foreign-born labor almost entirely. Some immi- grants, it is true, go to the agricultural, mining, and lumber THE AMERICAN CITY 577 regions of the country ; but the industrial communities get by far the largei share. It is upon the cities, accordingly, that the burden of Americanizing the alien has been chiefly placed, and a heavy burden it is. At times it has looked as though the outcome might be the un-Americanizing of the city rather than the Americanization of these great alien groups. At any rate their presence has profoundly affected the city's social structure, its attitude upon public questions, its political ideals, and its part in the national life. In many other respects a city differs from a rural unit other of equal population. It has a higher birth-rate, a higher ^;^^^° death-rate and a far higher ratio in the statistics of crime. It has relatively fewer illiterates, strange to say, despite its larger proportion of aliens. This is a tribute to the far more accessible educational advantages in the way of evening schools, for example, which the cities provide. The people of the city earn more per capita, spend more, and save more than those of rural sections. ITicy preserve, as military statistics show, an equality with the rural population in point of good physique and the absence of serious bodily defects.' Other differences which cannot be statistically compared there must be in plenty. They are plain enough to any observant eye. The city populations are more vola- tile, less dependent upon the associations of home and church, more influ ■ sd by things of the moment and less by tradition, more aracnt in their championship of new doc- trines, and generally accounted to have more iniliative. The city, however, is a place where extremes meet. Wealth and poverty, culture and i-^norance, .virtue and vice, are there brought into close proximity. The city of to-day is responsible for most of what is good, and for most of what is bad, in our national life and ideals. The genesis of city government in the United States may Periods in be found in the chartered boroughs of the colonial period. ^un'S New York, in 1686, was the first American community develop- to receive a borough charter, but Albany became similarly ™«"'- • In the physical examinations of more than three million men between the ages of twenty-one and thirty-one in connection with the raising of the national army, there was no appreciable difference in the percentages of rejections on physical grounds between those who came from urban an4 those who came from rural areas. 578 THE GOVERNMENT OF THE UNITED STATES 1. Tho colonial Borough orff;iiii- zatiiin in th - ccloiiios. 2. From tho Rev- olution to almut 1820. incorporated a few months later. In due course nearly a score of other places got their charters as boroughs, including Philaflelphia, Annapolis, Norfolk, Richmond, and Trenton. All the active chartered boroughs were in the southern and middle colonies. There were none in New England, where the town system of local government met all local needs. The borough charters were in all cases granted by the colonial governor, and in a general way they were modelled upon those of English municipal corporations at the time. Tlie government of the colonial city or borough was in the hands of a borough council, made up of a mayor, alder- men, and councillors, all sitting together. In most cases the councillors were chosen by the people, and so were the aldermen; but the mayor w usually appointed by the governor of the colony. Thei--> were some other borough officers, such as the treasurer and recorder, l)Ut the adminis- trative work of the colonial borough did not amount to much. Very little was provided for the citizens in the way of municipal services. Paved streets and sidewalks were rare; there was no public water supply or sanitation, no public lighting to speak of, no professional police or fire protection service, and no arrangements for public re- creation. Poor relief to some extent, public schools in some boroughs, the administration of local justice and the making of some by-laws constituted the main functions of borough government in colonial times. The Revolution made some changes both in the form and spirit of these municipal institutions, although the general structure continued for the most part unaltered. Charters were now granted, not by the governor, but by the state legislature. The disposition in colonial times had been to"^ treat the boroughs as close corporations after the pre- vailing tendency in the mother country. After the Rev- olution this idea was wholly abandoned ; the suffrage was gradually widened, and the local officers were made more directly accountable to the whole body of the citizens. The formation of the new national government also had its influence vipon tlie cities. ^Mien new borough charters were framed there was a conscious imitation of th. federal t;ystcm with its arrangement of checks auJ ' '^ ^ The THE AMERICAN CITY 579 borough council during the parly ye.'irs of the nineteenth century became a double chamber, with its two branched known usually as the board of aldermen and the common council.* In New England the prevailing theory was that the alderman would perpetuate the selectmen of the town system, while the common council would be the successor of the town meeting. The practice of choosing the mayor by popular vote also came into existence and in time sup- planted the method of appointment by either the governor or the borough council. In general the system of borough government, or city government as it was now irore commonly called, became a reproduction in miniature of the national and state organizations. The principle of division of powers thus gained a general acceptance in all three fields of American government. City growth was slow during the thirty or forty years Charac- next following the winning of independence. New York, oTIwT the largest American city in 1820, had somewhat more period, than 100,000 people ; Philadelphia, the second, hud about half that number ; and Boston, the third, was still a town of less than forty thousand. City government, however, was steadily increasing the scope and variety of its func- tions. More attention was now being given to streets, sanitation, lighting, fire protection, education, and the preservation of order. Tliis devolved more work upon the city councils, which accordingly began the practice of intrusting the direct supervision of the various services to its own committees. From about 1820 to the Civil War municipal growth went forward at an increased pace, and with this increase in size new problems came to tlie front. The system of adminis- War tration by committees of the council proved quite unsatis- factory in the larger communities, resulting in mismanage- ment and waste. Hence arose the policy of intrusting the management of public works, water supply, and similar 'The terms "aldermen" and "eommon council" carry back to the Anglo-Norman period of English history, ffildor-men were Saxon nffioi.als hpfnre the Conqueror came to England: the cnmmupnl council (common council) or council or the commune was a Norman trans- plantatio'i. The communal council remains the chief organ in French city government to-day. 3. From 1S2I1 to the Civil smss^'^ 580 THE GOVERNMENT OF THE UNITED STATES 3-1 W^if The (jrowth of state iuter- fereiu'C ill city affairs. technical services to boards of officials specially chosen for the purpose and wholly independent of the council. Like- wise, as a further check upon the council's activities, the mayor was in many cities given the power of veto, and occasionally was empowered to appoint the various adminis- trative boards and officials. In a word, the council began to lose its hold upon au linistrative affairs, and the develop- ment of a strong municipal executive commenced. This shifting of power was hastened to some exteat by the decline in the quality of municipal councils which has usually been attributed to the influx of aUens during the mid -century period, but which really began before the tide of immigra- tion set in. The spoils system of the Jacksonian era, which found its wav into municipal government, did much to de- moralize the city councils by placing patronage in the hands of councillors and by making party subservience the prereqxnsite of all municipal office-holding. The seeds of later corruption and extravagance were planted in all the larger municipalities before 1850. State interference in municipal affairs, as a result, became more frequent, especially during the decade 1850-1860. The lax enforcement of state laws in the larger centres of population, the freedom with which cities were spending and borrowing money, the inefficiency and wastefulness which characterized the administration of various depart- ments, all co.nbined to encourage state investigation of local affairs and state intervention. Cities began to lose what modicum of home rule they had. State laws stepped in to circumscribe the powers of city councils and city offi- cials, taking away some of their discretion and increasing their legal responsibility. In a few cases, where municipal misgoverninent had seemingly become incurable, the state authorities took matters out of the city's hands altogether. In New York City, for instance, the state took over the local police administration in 1857 and did not give it back until 1870. State interference in municipal affairs did not have its origin in any theory of state supremacy but in the sordid facts of urban misrule. The cities themselves, in most cases, invoked it by their perversions of democracy and their gross abuse of the freedom which had been allowed THE AMERICAN CITY 581 them. But once this habit of interventions began, it was hard to check, and in succoedinfi; years it became in its own turn an abuse as serious as tliat which it originally set out to cure. The third period in American municipal history extended 4. From from the close of the Civil War to the end of the nineteenth ^L^to'' century. It began rather inauspiciously because the tide of about looo. immigration which had ceased to flow during the war years now set in again with redoubled force, with the result that the cities grew more rapidly than ever before. Industry and commerce also expanded, and optimism was the keynote everywhere. As was only natural under such conditions the cities spent money with a free hand, discounting the future as optimists are wont to do. Taxes soared, debts ran far into the millions in all the larger communities. Much of this money was spent without proper planning, much of it went to contractors who scam 1 their work, and in some cities not a little went into the pockets of local politician.,. These were the days of the Tweed Ring in New York, the Gas Ring in Philadelphia, and of less notorious plunder-bunds in other cities, llie spoils system, during the seventies and early eighties, seemed to be triumphant everywhere. It flaunted its vicious doctrines with all the truculence of a despot, and helped to make the city, in the words of Lord Bryce, "the one conspicuous failure of American government." During these years there were spasms of reform. One of The faUure them ousted the Tweed Ring in New York and secured the ^^ ™e°™t, insertion of new safeguards in the citj' charter. In other in tius cities these reform movements succeeded in transferring ve"°^- .nore power to the mayor and in making him somewhat more directly responsible for the administrative functions of city government. Civil service reform, moreover, having gained large recognition in national administration during Grover Cleveland's first term as President, presently began to make its influence felt in the cities as well. But in no city of the countr>' was there any successful reconstruction of the entire system of municipal organization. It was taken for granted that the trouble did not lie with the machinery of city government but with the men who were running it. Reform campaigns, accordingly, were undertaken chiefly for the !j 582 THE GOVERNMENT OF THE UNITED STATES 5. The period sir>;e 1900. The basis of city govern- mont — the city charter. Methods of granting charters. purpose of replacing one set of onicial.s with another. But when they succeeded (as they did occasionally), little of permanent value was achieved. A few new provisions went into the city charter; the tax rate was lowered a notch or two ; some spoilsmen were shaken from their grip on the city payroll, and then the reform administration would go out of office with profuse excuses for not having been able to accomplish more. Municipal reform did not make much genuine progress in the United States until the opening years of the twentieth century. About that time it entered a new cycle by direct- ing its assaults not merely against incompetent or corrupt office-holders, but against the system which permitted and even encouraged dishonest men to gain control of the city's affairs. Public opinion began to realize that efficient municipal administration is not merely a matter of men, but of laws and institutions as well. Beginning with the Galveston experiment of 1901 the first two decades of the twentieth century have accordingly witnessed the reorgani- zation of American city government on a scale which would have been considered out of the question a generation ago. The doctrine of checks and balances has in many cases been swept away ; the mechanism of city government has been everywhere simplified by the elimination of superfluous officials and boards ; the commission and city-managei plans, home-rule charters, the initiative, referendum, and recall, the short ballot, stringent laws a^ .linst corrupt practices, the direct primary and nomination by petition, the abolition of party designations, — these and many other changes have made the American municipal system very different from what it was in 1900. The basis of city government, and the medium through which any radical changes in organization must be made, is the city charter. This document, in a way, is the con- stitution of the municipality. It provides what officials a city shall have, how they shall be chosen, what functions they shall perform, and what powers they may exercise. City charters always emanate from the state legislature, which, however, may be restricted by the provisions of the state constitution as to the manner in which such charters THE AMERICAN CITY 583 shall be granted. Different states pursue various methods in this matter, but in general ihere are five principal methods of framing and granting a city charter. These may be designated as the general, classified, special, home-rule, and optional charter systems. The general charter system was common in several states ^ Jhe a quarter of a century ago, but is now being abandoned. Charter It was the outcome of a popular conviction that legi>*latures system, ought to treat all cities alike, giving no one city a more favorable charter than others. A provision was frequently inserted in the state constitution, therefore, forbidding the legislat re to charter cities by special law or to give to any city po ers which are not given to all.^ The only alternative in sucli cabcs was for the legislature to enact one general charter or municipal code applying to all the cities of the state, whether large or small. The great defect of the general charter system is its Its defects rigidity. Not all cities are aUke in size, population, char- acteristics, problems, or requirements. A seaport city, for instance, may need a harbor board with powers to regulate the anchoring-places of ships ; but to require for the sake of general uniformity that inland cities of the state shall also have harbor authorities and anchorage regulations is a palpable absurdity. Under the general charter plan, as it formerly existed in Ohio, for example, it was found that a scheme of government which had to be fitted to both big and little cities proved satisfactory to neither. Other states, realizing the undesirability of requiring absolute uniformity in city charters, have provided in their constitutions that cities shall be grouped into classes plan according to their respective populations and that the legislature shall grant similar charters to all cities within the same class. This allows more leeway, while at the same time preventing any discrimination in favor of, or against, a particular city. Grouping cities according to their popu- lation, however, is at best a purely artificial method of classification, for municipalities which stand close togethft- in the census figures may be wholly unlike in the texture » See the bulletin on Municipal Home Rule prepared for the Massa- chusetts Constitutional Convention (Boston, 1917), p. 7. 2. The oliissified charter ^ III 584 IHl': (lOVKRNMENT OF THE UNITED STATES 3. Special charter aystem. lU mcritH and defecUi. 4. The home-rulo charters. of their populations, in their resources, their problems, ^uu their administrative requirements. As cities grow, more- over, they pass from one class to another, thus coming under a new charter regime whether they desire to change the existing system or not Many states, again, have continued the original method of granting city charters, commonly known as the special charter system. Under this plan each city is dealt with as a separate problem and each gets whatever form of charter the legislature chooses to give it. All may get the came charter, or each may get a different one, the latter being the usual course. On its face, this system has much in its favor. It has the virtue of adaptability, enabling the legis- lature to frame each city's charter with an eye single to tliat city's needs, giving it such officials as may be required and such powers as seem necessary. But in practice it has merely thrown the door wide open to partisan discrimina- tion and to factious interference in matters of purely local concern. To help the dominant political party, or to serve some other selfish interest, legislatures have frequently altered city charters agains*^ the will of the citizens, treating these documents as though they were entitled to no more permanence or security than any ordinary law. Where there is no barrier to the passing of special charter laws, the legislatures of some states have not hesitated to interfere with the conduct of routine business in cities, raising the salaries of favored officials, reinstating dismissed municipal officers, altering the boundaries of wards, awarding holidays to municipal employees, and so on, all such actions being dictated by purely political motives. The special charter system has thus been grossly abused, so much so that the demand for municipal home-rule has become insistent over large sections of the country. The home-rule charter sy-stem was devised, accordingly, to protect cities against V.o over-activity of meddlesome legislatures. It has gained in popularity during the last couple of decades and is now established in twelve states of the Union.* As its name implies, it L i plan whereby • These states are Missouri, California, Washington, Minnesota, Colo- rado, Oregon, Oklahoma, Michi<;an, Arizona, Nebraska, Ohio, and Texas, THE AMERICAN CITY 585 cities make their own charters just as states tnake their own constitutions. In this connection it should be made clear, however, that cities which do not see fit to frame their own charters remain under the provisions of the general or special laws as before. The methods of framing home-rule charters differ some- Method.^ what in the various states, but in all of them except Oregon them"!""" the drafting of the document is intrusted to a body of citizens commonly known as a board of freeholders or charter commission.' The members of this board are in all cases elected, except in Minnesota, where they are appointed by the district court. When the board has completed its work, the charter is submitted to the people of the city and if it is approved by them at the polls, it goes into effect without further approval in most of the states.' In actual practice, however, the home-rule system does Limitations not give as much local freedom as this brief description of it ^|,^^^, might indicate.' The cities, in making their own charters, by»ttm. are allowed entire liberty, to be sure, in matters of purely local concern. But what are matters of strictly local con- cern? The line of demarcation between matters of local interest on the one hand and of state interest on the other is not firmly fixed; but the sphere of the state is ever widening, and it already includes a host of things such as assessment, taxation, elections, police, licenses, education, public health, poor-rehcf, which on their face might be sleemed to be mat rs of municipal jurisdiction. The pro- visions of home-rule charters must keep within the bounds of the general state laws on these and many other matters. Municipal home-rule does not mean, therefore, that each city can set up a little rock-ribbed republic, but merely that it may choose for itself the general outlines of its own govern- ment and that it shall be free from state interference within • In Oregon a charter may be drafted by any body of citizens and submitted to the people by an initiative petition. > In Arizona and Oklahoma, however, it goes first to the governor, who may withhold his signature if he finds the charter in conflict with the state constitution or laws. In California it goes to the legislature, which may accept or reject, but may not alter it. „ t» • »For an exhaustive discussion of the subject, see H. L. McBam, The Law and the Practic* of Municipal Home Rule (N. Y., 1916). lBPl^HIS!^'r'?>lS?^K?'55»'?. '^B Its merits. 586 THE GOVERNMENT OF THE UNITED STATES that ratlior limited realm which is usually designat(:- other. Under this arrangement the state legislature provides several standard L-iiartcTs, any one of which a city may adopt by popular vote. The New York, optional charter law passed by the New York legislature in 1913 provided fovvn different forms of local government and allowed any city of tin. state except the three largest (New York, Buffalo, and Rochester) to choose whichever one of these plans it might desire. The Massachusetts optional charter law of 1915 provides four options, namely, city government by a mayor and small council, by a mayor and u large council, by a commission, and by a city manager. Optional charter laws have also been enacted in North Carolina, Virginia, and some other states. The merit of this plan is that it gives flexibility to the charter system, allowing each city a reasonable range of choice, without opening the door to such rash experiments as the home- rule plan has sometimes encouraged. These optional charters are fitted to the general state laws so that there can be no conflict. The system, on the whole, seems to have 5. The optional charter system. Massa- chusetts. THE AMERICAN CITY 587 the largest number of real advantages without counter- Viiiling drawbacks. City charters, like state constitutions, arc becoming more prolix and unwieldy as time goes on. The earliest ex- tant charter of London, granted by William the Conqueror in 1066, contains about sixty words. The present charter of New York City makes up a volume of nearly one thou- sand closely printed pages. All manner of minor details are being provided for in charters, when they should properly be left to be dealt with by ordinances of the city council. American city charters, on the whole, have been poorly drawn, and they have consequently been the basis of much litigation. m *-, k li'-l -« L^ IVf ■^ CHAPTER XLI Types of municipal organi- zation in the United States ; 1. The mayor- and- couneil plan. 2. The commission plan. 3. The oity- manager plan. MUNICIPAL ORGANIZATION The type of city government which developed in the United States during the nineteenth century and which still prevails as the most common form is the mayor-and-council plan. Under this scheme of local government the corporate powers and functions of the municipality are divided among a mayor, a number of administrative boards or officials, and a city council. In other woids, this plan follows in its general outlines the frame of federal and state government. Until after 1900 the mayor-and-council plan was virtually the only type of municipal government existing in any part of the Uniteil States. But in 1901 a commission system of city government was pstablished in (lalveston, Texas, and since that date this arrangement has found adoption in many municipalities. The essential feature of the commission type, as will be more fully explained in another chapter, is the vesting of all the corporate powers and functions of the city in the hands of a commission made up of five persons elected by the voters. This body combines within its jurisdiction both legislative and administrative authority, thus discarding the doctrine of formal checks and balances. Finally, during the past half-dozen years the city-manager plan of municipal government has come into existence. It may be defined as a scheme by which all sr i corporate powers and functions of the municipality as h. ■ to do with the determination of policy and the general direction of local affairs are intrusted to a small council or commission elected by the voters at large, while the strictly administrative functions of municipal government are placed in the hands of a professional, well-paid ofiTicer, known as the city- manager, who is chosen by the council for his proficiency 688 MUNICIPAL ORGANIZATION 589 council form. The mayor. as an administrator. The fundamental pnnciple of this plan is a separation of legislative from administrative func- tions, but without any division of ultimate power or respon- '" Thr t-rst of these three plans, the mayor-and-council, or t^^vaienc fod 'r'^ I executive type, is to be found in all the largest cities ^^^y^,. (.*• tJi'.- country, that is to say in all those which have popu- and-^ latioiis exceeding 500,000. It prevails hkewise in all American cities of over 200,000 with about a half-dozen ex- ceptions. Taking the fifty most important municipaUties of the United States, the mayor-and-council organization is retained in all but twelve. Despite the spread of the other plans, therefore, it must still be regarded as the prevaihng type of municipal government. Its mechanism includes, as has been said, a mayor, a staff of administrative boards or officials or both, and a city council of either one or two chambers.^ The mayor is every wliero chosen by direct popular vote. Nominations, as a rule, are made at a primary, and the election is by secret ballot, usually with party designations thereon. To be eliKiblo for flection a candidate must in all cases be a qualified voter, and in some cases additional residence requirements are imposed. It is not necessary that a candidate for the mayoralty shall have previously held any other office or have had any experience in munici- pal government, but in practice the candidates are almost invariably men who have been prominent in national, state or local politics. The mayor's term is either two or four years in most cities, the former being customary in nearly all but the largest ones. Usually a mayor may be chosen for a second term ; but in a few cities, including Philadelphia and Boston, this is not permitted. The office carries a salary which varies from one thousand dollars in some of the smallest cities to fifteen thousand in New York. The authority of the mayor usually includes the right to H«^^^ advise the city council by message or communication, to « For a further discussion of the various matters dealt with in the following paees of this chapter, the reader may be referred to the author s volume on The (lorernmenl of American Cihva [2(1 ed., ^. i ., IJi-H), and to the references there indicated. j^i;3:saiE^ia^^iaswsmi^'i'& 'L*''..:. 690 THE GOVERNMENT OF THE UNITED STATES (a) advis- ory. ■ri (b) the veto. veto ordinances, to appoint mo.st of the higher city officials, to exercise various powers in relation to municipal finance, and to perform some miscellaneous functions. According to the abstractioi. ^ of the mayor-and-council type of municipal government the mayor has no active share in legislation, that is, in the making of city ordinances. Legis- lation is assumed to be the function of the city council. But the mayor, as a rule, is empowered to recommend legislative action on the part of the council and also to veto any ordi- nance which may meet with his disapproval, so that his actual influence ovn- the course of municipal legislation is often considerable. Recommendations to the city council are sent by messages or written communications which are read by the councils clerk and then referred to the appro- priate committees. Whether they will be adopted depends to a large extent upon the political relations which exist between the two departments of the city's government. The mayor is usually a local party leader, and if his party controls a majority in the city council, the chances of favor- able action by the latter are naturally much greater than when the pohtical situation is reversed. Most city charters provide that any ordinance or resolution which passes the city coimcil shall be sent to the mayor for his approval. If the mayor approves the measure, he signs it ; if he does not approve he may return it unsigned within a designated number of days, usually five, seven, or ten, with a communication stating his reasons for disapproval. The council may then pass the ordinance over the mayor's disapproval or veto by a two-thirds vote.' If it does not do so, the measure remains inoperative. There is also, in most cases, a provision that if the mayor neither signf^ nor returns a proposed ordinance within the prescribed time, it becomes valid without his signature. The analogy between the veto power in federal and in municipal government is thus plainly to be recognized. The qualified veto, however, has not proved a satisfactory institution in local government. Occasionally it has enabled a courageous mayor to check extravagance and to prevent ' In Baltimore the requirement is a tliree-fourths vote ; in Philadelphia, three-fifths ; and in San Francisco, seven-ninths. MUNICIPAL ORGANIZATION 591 the imprudent granting of franchises ; but more often 't has Ments been employed to further a mayor's own pohtical or per-.defecu sonal interests quite regardless of the gon.'ral welfare The oUhe exercise of the veto power has been far more frequent m the cities than in the nation or the states, so much so that it has enabled the mayor in many cities to become the real dictator of local policy without having the full responsibihty therefor. In its origin and by its design the veto was intended to be an emergencv weapon in cases where drastic mterference with the normal course of legislation seemed to be clearly justified by obvious considerations of pubhc interest. Its employment on all and sundry occasions as a means of enforcing the personal wislies of the executive is a per- version of the veto's true place in the American scheme of government. . av, ^ ^ „^ The higher officials of city administration, such as the W.a^ treasurer, comptroller, city solicitor, police commissioner, ^enta. superintendent of streets, likewise the members of the various boards and commissions, are in <()me cases chosen by popular vote In a few instances, again, they are selected by tlie citv council, but most commonly their appointment is now intVusted to the mavor. T - tendency to concentrate the appointing power in'the m.- 's hands has been increasing in recent years. In many c...es, however, there still exists the requirement that appointments made by the mayor to these higher administrative positions must have the con- currence of the citv council (or the upper branch of +hat body) before the/ become valid.^ This requirement of aldermanic confirmation is another example of the influence of the federal analogy in local government and forms part of the municipal system of checks and balances. Its advan- tages, however, are seriously open to question, for while the plan has at times availed to prevent the making of improper appointments it has more often served to divide the respon- sibility for inefficiency in municipal office between the mayor and the council to such an extent that the people are able to hold neither of them to account. It has become a prohhc source of political legerdemain and imposture, .^ome of the larger cities. New York for rsamplr-, have nbnliP.hed the 1 In Boston the approval of the state civil service commission is required. 592 THE GOVERNMENT OF THE UNITED STATES (d) re- movals. (<■) finan- cial powers. (/) mis- cellaneoiu. system of council confirmation with results which have ♦ proved to be distinctly advantuj^oous. The mayor, as a rule, may remove appointive city officials, but his discretion here is also in most cases limited. Some- times the concurrence of the council is necessary in such removals. \Vh'>r ^ appointments have been made under civil service rv' ' )reover, various formalities in the way of fifing definite charges and holding a public investigation must usually be complied with before an officer's removal can be efTected. Suspensions, however, may usually be made by the mayor on his own authority. .\nother group of mayoral powers relate to the city's fintincial administration. These powers differ greatly in extent from city to city, but the tendency everj^where is towards their enlargement. In some cities the mayor is given the sole right to initiate proposals of expenditure, the council being allowed to reduce any item in the mayor's list of estimates but not to increase or to insert new items. Boston affords a good example of this system whereby the entire responsibility for all increases in municipal expenditure rests upon the ma.^ or alone. In New York City this respon- sibility is not imposed upon the mayor alone, but is devolved upon a body known as the Board of Estimate and Appor- tionment, of which the mayor is an influential member.' In Chicago, on the other hand, the initiative in matters of expenditure continues to be vested in the city council. On the whole it seems desirable that the function of preparing the city's annual budget sliould be deputed to the mayor, thus locating the responsibility where it cannot be evaded. A budget made by a city council is nothing but a means of dividing the city's money in accordance with the interplay of ward politics. Some miscellaneous powers usually pertain to the mayor's office. He has the right to investigate the work of the municipal departments ; sometinies his approval is required whenever contracts for public works are let ; and not infre- ' This body is composed of eight members in all, namely, th ■■ mayor, the comptroller, the president of the board of aldermen, and the p ^sidents of the Ave boroughs : Manhattan, Brooklyn, The Bronx, Richmcid, and QuTens. Sixteen votas are distributed amor these eight members, the mayor having three votes. MUNICIPAL ORGANIZATION 593 quently he has the powers of a justice of the peace or local magistrate. The mayor represents the city on all occasions of ceremony and ranks as the first citizen of the community. Social duties, which are of infinite variety, take a large share of his time and energy, so much so that personal attention to the details of his official work has become exceedingly difficult in the larger cities. In addition to its mayor a city which maintains the may or- and-council system of government has various officials and boards in charge of its administrative departments, such as pohce, fire protection, highways, water supply, and public health. Originally the management of these departments was in charge of the city council's committees (as it is in English cities at the present day) ; but during the nineteenth century American municipalities broke away from this plan and committed the work of departmental administration to separate boards or individual officials. For a time the board system was the more popular, partly because of local prejudice against giving too much power to any one official, and partly because a board of three or five members gave an opportunity for having both political parties represented on it. But tlie bi-partisan board rarely proved to be an efficient or smooth-working body, and in many cases it has been supplanted by a single commissioner. The board system has some distinct merits when appUed to such departments as poor relief, schools, city planning, or public libraries where deliberation and discussion are desirable. But in its application to some other city departments, police, fire protection, and health, where quickness of decision and firmness in action are essential, the board system is un- suitable and has given way in many cities to the plan of administration by a single head. The officials in charge of the various city departments, whether members of boards or individual commissioners, are either elected by the people, chosen by the city council, or appointed by the mayor. Popular election was at one time the customary method, but it is now used in a few cases only. The council ptil! chnoses some of the higher officials in most '>ities, particularly the city clerk. But appointment by the .ayor has become the prevailing plan. The meriti 2q 2. The heads of city depart- ments. Evolution of this ■ystem. How depart- ment heads ai« chosen. -r<^m^.M: .i^_; 694 THE GOVERNMENT OF THE UNITED STATES Should civil sen-ice rules bo cxtcuiled to the highest municipal offices ? State inter- vention in city adminis- tratiun. system applies only to subordinate officials; in no American city are the heads of departments chosen by civil service competition. The nearest approach to it is in Boston, whfre the mayor's appointments to the headships of depart- ments require the formal approval of the state civil service authorities as to their general qualifications by education, training, or experience. The selection of the higher as well as the lower officials of city administration by civil service competition has some- times been proposed, but there are serious objections in the way. Heads of departments should not only have famili- arity with the work which is tol)e placed in their charge, but personal qualities such as tact, ability to work witii others, and a due deference to public opinion. Competitive tests may determine an official's expert ness and technical knowl- edge, but they do not and cannot put to the proof the possession of these other qualities. Hxperts in all fields of human endeavor tend to be dogmatic and impersonal, while public administration is an intensely practical and personal matter, whether it be in the field of police, public health, education, poor rchef, or recreation. No administrator who hopes to ])e successful can nonclialantly brush human nature aside and deal only with the cold canons of technique and efficiency. A disregard of that simple principle, which is as old as democracy itself, has brought many a municipal expert to grief. Work that is technical in its nature, whether in public or in private administration, should be put into the hands of trained men ; but the determination of public policy must reckon not only with professional theories, but with the pragmatism of the public mind. The science of municipal government is in large part the science of managing cantankerous men and women. For of such is the kin^rdom of democracy. Occasionally the state has intervened and taken into its own hands the appointment of certain higher officials in the larger cities. In Boston, Baltimore, and St. Louis, for example, the municipal police is in charge of state-appointed officials. There is always a strong local prejudice against this policy, however, and it is rigidly forbidden by the constitutions of a good many states. Stat<3 appointment MUNICIPAL ORGANIZATION 595 of municipal officials is more defensible in the case of the police department than any other, for inefficiency and corruption th(Te results in the non-enforcement or dis- criminatory enfoiccment of the state laws. Such inter- ference with municipal home rule is, in most cases, however, of doubtful expediency. The other important branch of the municipal organization is the city council. Originally it was the chief and in fact the only governing organ of the city, but it has parted with many of its earlier functions and is now in most cities the less important branch of local government. The council may consist of one or two chambers. In the latter case the upper chamber is usually known as the board of aldermen and the lower chamber is called the common council. The members of both are elected, ordinarily for terms of from one to four years, and either by wards or by the voters at large or by some combination of these two plans. Nomi- nations are usually made by means of a primary. In a few cities there are no formal nominations and the election takes place by means of a pretti"ntial ballot. Much has been said and written about the relative merits of the single and double chamber system in the organization of municipal councils. The bicameral plan has been de- fended as affording a protection against hasty and unwise action, against subservience to any sinister interest, and against the complete control of the city's legislative ma- chinery by one political party. On the other hand it is contended that the single-chamber plan enables the city to get better councilmen, and that it permits business to be done more promptly, with far less opportunity for wire- pulling. With the greatly curtailed powers of the council there is no longer any need for such an elaborate checking apparatus as the bicameral system provides. At any rate the double chamber is rapidly becoming obsolete in city government. One city after another has abandoned it, so that at the present v^ay it is the exception rather than the rule. Tlie relative merits of the ward and at-largc methods of electing councillors have also been the theme of much controversy. The ward system is the older plan and at one 3. The city council. Ita oruani- zatioQ. The single and double chamber eystema. m 596 THE GOVERNMENT OF THE UNITED STATES Ward and ftpneral ticket systems of election. Functions of the city council. (a) the rnactins of ordi- nances. time was practically universal. But it was regarded as responsible for the mediocre qua ity of the men chosen to city councils, especially in the large municipalities, and for the zeal with which every councillor sought to obtain favors for his own district without any allegiance to the interests of the city as a whole. The ward system has accordingly been supplanted in many cities by the plan of election at large. The practical difficulty with this latter method, however, is that some districts of the city are likely to be left unrepresented altogether. Moreover, if elections are conducted on a party basis, as is almost invariably the case, the majority party will elect its entire slate of candi- dates, leaving the minority with no councilmen at all. To O'e.-come these practical objections some cities have adopted a combination of the two plans, electing one councillor from each ward and also a designated number at large. If a city has nine wards and a council of fifteen members, for example, each voter marks his ballot for seven members, one to represent his own ward and six to be chosen at large. This plan assures some geographical representation and some measure of minority representa- tion as well. City councils hold regular meetings, usually once a week, and are usually emptnsered to select their own presiding officer. They also make their own rules of procedure, which are similar to those used in state legislatures, although much less elaborate. Most of a city coimcil's work is done by committees whose members are appointed by the presiding officer. These committees examine into the various matters which come before the council and make recommendations, which may or may not be accepted. Chief among the functions of a city council is that of making ordinances or local laws. These ordinances relate to a wide variety of matters, the protection of life and property, traffic in the streets, sanitation, health, housing, weights and measures, bill-boards, places of amusement, and so on. They must not, however, be inconsistent with the provisions of the city charter or any other state law. Ordinances must be enacted with due regard for the pre- scribed formalities and must in most cases receive the MUNICIPAL ORGANIZATION 597 approval of the mayor before going into effect. But once properly enacted they have the force of law and are enforce- able by the regular courts. Municipal ordinances must fulfil certain conditions, however, or the courts will hold them invalid. For one thing they must be reasonable and not oppressive in char- acter. There is, of course, no general test of reasonabihty, but the courts have now set up a sufficient number of precedents to serve as a guide. Ordinances, again, must not be discriminatory in their application. Tliey must not single out individuals or groups of persons for special restriction while permitting others of the same sort to be immune. Finally, municipal ordinances must not unduly restrain freedom of trade, freedom of contract, or the other established rights of the citizen. Considerations of public safety, health, and morals arc paramount, however, and the freedom of the individual may always be restrained where these considerations require it ; but factious or undue re- straint will not be tolerated. On the whole, however, the courts have been lenient in these matters, giving the ordi- nance the benefit of any doubt, where doubt exists. City councils also possess various powers in relation to local finance. No taxes can be levied, no appropriations made, and no money borrowed except with the council s approval. It is true that the nature of the taxes is deter- mined by the state laws, but the city council by ordinance fixes the rate. The list of appropriations, too, is often prepared by the mayor or by a board of estimate, but no appropriation becomes effective until the city council has given its approval. And in the matter of municipal borrow- ing the council determines the amount, the term of the loan, and the rate of interest to be paid. The hands of the council are often tied, however, by the facts of the situation. In appropriations, for example, there are many items over which the council has no real discretion. Interest oa the municipal debt, expenditures which are made compulsory by state law, the cost of maintaining city property — these must be provided for in any case. So, too, the expense of maintaining the schools, the police and fire departments, and the sanitary svstem cannot be reduced below a certain Legal limitatioDa on the ordinance power. (b) financial authority. Limitations OS tu taxation and appro- priatioos. ~2^ ^, 4l Limitations upon tho borrowiuK power. (c) powera in relation to fran- chise. W) mis- rellanoous powers. 598 THE GOVEilNMENT OF THE UNITED STATES point. The discretionary power of the council with respect to expenditures is not nearly so large, therefore, as is com- monly imagined. The same is true of the tax-rate, which is nothing but tlie quotient obtained by dividing the pro- posed net expenditure into the total assessed valuation of taxable property. City councils, by a rigid paring of appropriations, can reduce the tax-rate a trifle, but rarely can any considerable reduction be made without crippling the administrative departments. Most cities, again, are not permitted to borrow beyond a certain point, lliey are subject to debt limits fixed by the state constitution or by state law. These limits are usually set by designating a certain percentage of the assessed valuation as the maximum of municipal indebtedness. In New York, for example, a city may incur indebtedness up to ten per cent of the assessed value of the real estate within its borders, but no more. Unless municipal financing is carefully done a city soon reaches its debt limit, and thereafter can borrow no more unless there are increases in the assessed valuation. In most cities the council retains the power to grant franchises or privileges to public service corporations such as lighting, telephone, and street railway companies. In former times it had complete authority over such matters, but grossly abused its trust. Franchises of great value were given for long periods, and sometimes in perpetuity, without securing the city any compensation. Briber\' and the crack of the party whip rather than business sense and honesty too often determined whether a company's gas mains or car tracks should have the free use of a' city's streets forever. The states accordingly have stepped in and by their laws now restrict the council's discretion, providing as a rule that no franchise may be granted for more than a certain term of years and that companies which receive such privileges shall be subject to public regulation. Finally, a city council possesses some powers of a mis- cellaneous nature which cannot be readily classified. They include such matters as authorizing the purchase of land for public buildings, deciding the location and naming of new streets, the approval of certain important contracts, the fixing of water rates, and the acceptance or rejection of per- PcTrsE^sva MUNICIPAL IC.ANIZATION 699 missive state legislation, in other words, of laws which are passed by the legislature with a provision that they will go into effect in any city whenever the city council accepts iheni. 'ITiis brief survey of the council's powers may indicate that Place of thev are of considerable scope, but they are not nearly so '^^^^^i, important as they used to be. The principle of division of inAmer- powers, as applied to city government, has resulted in trans- ^7„'^*^^.' ferring the major share of authority to the mayor and to the heads of departments. The council remains the chief legislative organ of the city ; but municipal government is not largely a matter of legislation. It is for the most part administration, a matter of managing public services and carrying on routine work. In local government the function of making laws is far outweighed in scope, importance, and influence by the function of carrying them into effect. ITie trend of municipal development in the mayor-and-council cities, therefore, is towards a subordination of the legislative to the administrative branch of the government. The same trend has been already noted in the state affairs, but it is much more pronounced in the cities. The situation stands out in sharp contrast with that existing in European coun- tries. There the city council has everywhere retained its position of supremacy. In addition to the mayor, the heads of departments, and 4. Thp the members of the city council, the work of municipul %,^; government requires a large staff of superintendents, foremen, clerks, and other employees. Cities everywhere are large employers of both skilled and unskilled labor. If one adds together all the school teachers, policemen, firemen, library officials, clerks in the city hall, street cleaners, and other workers, the total is far larger than the ordinar}' citizen realizes. In New York City these employees make up an army nearly seventy-five thousand strong. The task of organizing these large corps of employees, recruiting their ranks, getting rid of the incompetent, and making the rest give a hundred cents' worth of service for a dollar's worth of salary — that is the most persistently difficult task which mayors and city councils have to perform. Tliree factors have contributed to accentuate the difficulty of this problem. First and most important is the habitual . I T^BP^wrrmrtr ^ 600 THH GOVKRNMKXT OF THE UNITED STATF:S Why thov have not It hitih pbitic of efficiency. Tl.fir popular ri-putati'in not wholly deserved. jfd •A.*:- tm selection of officials and employees on purely political or pergonal grounds without reference to individual competence. Wlierever civil service regu hit ions have not been adopted, the spoils system flourishes ; ami even with civil service rules on tiie statute book the spoilsman often manages to pain his ends. A second factor is the customary absence of any well- defined sy.-item of promotion as a reward for efficiency. Promotions in the nmnicipal service have scarcely any relation to individual merit. Political influence counts for a preat deal more in the majority of cases. Employees, moreover, are rcgxilarly carried upon the list of active workers after tliey have become too old or too indolent to give any fair return for their wages. The chief incentive to diligence is tlms taken away. Finally, there is the lax disciplinary organization of the various city departments and the absence of direct personal responsibility for tlie proper j. > rformance of duty. Subordinate officials who ivc close friends among political le.ulers often do as they please, disregarding the instructions of department heads. The slack discipline of municipal service is proverbial. Miinicipal employees are voters, of course, and in a position to exert strong pressure upon the nuiyor and upon the members of the city council. That is the fundamental explanation of the trouble and the chief reason why tlie situation is so difficult to remedy. Ineffic.ency in the municipal service has not been a> gross or as widespread, however, as tlie literature of reform some- times implies. In every city there is a large body of em- ployees who earnestly tr}' to give the public the worth of their wages. But the people of (he city see or hear little of this class. The officials and employtes who give the munic- ipal service its infelicitous reputation for indolence are the ones who can so often be seen in public places during busmess hours. They are a minc^rity, no doubt, but their actions stamp upon the public imagination its general conception of city emploj^ment. This public attitude in its turn reacts unfavorably upon all those who are really trj-ing to do their work faithfully and deprives the service of that esprit de corps which is essential to the best results. Tlie city is able to tolerate auioag its employees a measure of incompetence and carelessness which would be fatal to pri- ; -r-^' MUNICIPAL ORGANIZATION 601 vate entenirifc because it does not have to bear the strain of competition. The taxpayers must bear the cost, whatever it is. The city, moreover, is in most cases not hable in damages for the incompetence or negUgence of its officials and employers, another feature in which it differs from the ordinary business corporation. So far as the city is engaged in the performance of strictly governmental functions, such as police and fire protection, the safeguarding of the public health, and the promotion of education, it is not liable for any injuries which may be directly due to the incompetence of its employees in these departments. Tlie citizen in such cases has no effective redress. A private corporation, on the other hand, is ordinarily lial)le for the torts of its agents or employees whenever any damage is done by them within the scope of their employment, and that fact affords an obvious -^centive to the maintenance of efficiency. When a city en- .. I ■■ i in any non-governmental or business enterprise, such as ' le operation of a municipal lighting plant or a municipal street railway, it assumes the same legal liabilities for the acts of its employees as are imposed upon private companies ; but these enterprises form but a small part of a city s entire administrative work. . The chief defect of the mayor-and-council type of city government, surveying it as a whole, has been its emphasis upon the formula of checks and balances. This has dis- integrated authority and engendered friction between the two branches of local government. Tlie endeavor to mode the political organization of the city upon that of the federal government was unwise in its day, and has proved to he unfortunate in its consequences. It has resulted in placing upon the majority of American cities a governmental mechanism which is adapted to the making of laws. But what the city needs is a governmental mechanism adapted to the work of doing business as business is done in the worid of to-day, awarding contracts, buying supplies, hiring labor, and getting results without wasting money. Citiw are not legally liable for the result! of in- coriipet<>nce of their employees. The chief defect of the American municipal system. CHAPTER XLII MUNICIPAL ADMINISTRATION The various branches of mu- nicipal adminis- tration. 1. Public safety. WTiat it includes : (a) police. The administrative functions of a modern city are both numerous and varied, but they may be arranged into several groups of activities which are closely related in their general nature.^ The commission form of government assumes that five groups arc enough to include all branches of municipal business, but in the larger cities this never proves to be the case unless unrelated functions are crowded into the same group or department. The extent and variety of a city's ad- ministrative activities depend in part upon its size, and in part, again, upon the measure of real service which it affords t( its citizens. No fixed rule can safely be laid down in mat- ters of this sort. Public safety, the safeguarding of life and property, is an administrative function in all organized communities. It includes primarily the two rather closely associated depart- ments of police and fire protection. Modern police organ- ization began in 1829 with the enactment of Sir Robert Peel's famous statute for reorganizing the police adminis- tration of London. This statute swept away the old watch and ward system of day-constables and night-watchmen, replacing it with a body of professional, uniformed police officers. The results were so advantageous that other English cities adopted the plan, and it was eventually copied by An\orican municipalities as well. To-day the work of policing is intrusted in all urban communities to officers who devote their entire time to the service. Tlie system of part-time constables remains in small lowns and rural areas only. • This chapter is, in the main, a very brief condensation of the dis- cussion contained in the author's Principles and Methods of Municipal Administration (N. Y., 1916). 002 MUNICIPAL ADMINISTRATION 603 In large American cities the police force is in charge of a board or a single commissioner, the latter bcmg the more common plan.^ He is usually appointed by the mayor; but in three large cities the heads of the police department are appointed bv the state authorities.* In those cities which have adopted the commission type of government the police and fire departments are invariably combined under a commissioner of public safety, and this plan is also followed in some cities which retain the mayor-and-council form In smaller and medium-sized communities this com- bination has some important advantages, but in large centres each department is of sufficient importance to have its own head. Tlie commissioner or superintendent is m immediate charge of the entire force and supervises its work from head- quarters. In the large cities he is assisted by a headquarters staff, each member of which holds a high rank (such as that of deputy commissioner, or superintendent, or inspector) and has jurisdiction over some assigned branch of ponce activity. . . . ,, For purposes of police administration a city is usually divided into districts or precincts with a poUce station m each. The members of the police force are graded in semi- military fashion into various ranks : captains, lieutenants, sergeants, patrolmen, and sometimes reservemen. The cap- tains are in charge of stations, the lieutenants taking com- mand when captains are absent. The sergeants do d^k- work in the stations or perform inspectorial functions. The patrolmen perform the active function of enforcing the laws and maintaining order. Various members of the force are detailed to special duties as traffic officers, or detectives, or attendants at the courts. In round figures there are about twenty police officers for every ten thou- sand people in all large communities. Whether police administration will be honest, efficient, and humane depends in large measure upon the patrolmen. The method of selecting these officers is accordingly a matter of prime importance. Forty or fifty years ago it was the invariable custom to let political and personal influence » Sometimes calM siiperintendent. marshal, or chief. • St. Louis, Bostou, and Baltimore. iolice controL Police organi- zation. Kasontiala of good police orgiini- sation. '■m.vn^inwr ■■^■: 604 THE GOVERNMENT OF THE UNITED STATES European and American police compared. dictate both appointments and promotions, but to-day in a great many cities the police department has been brought under civil service rules. Likewise it was the practice to set patrolmen at work without any preliminary training, but the largest cities nowadays maintain regular training schools in which the essentials of a police officer's duty are taught. The smaller cities will no doubt make some similar provision in time. European and American police systems have frequently been compared to the disadvantage of the latter. The almost entire absence of police scandals in English and con- tinental cities has been contrasted with their all-too-frequent recurrence in the cities of the United States. It should be borne in mind, however, that the problem of satisfactory police administration is a much more complicated and diffi- cult one in America than it is on the other side of the Atlantic. In European cities the populations are homogeneous, and almost wholly native-born ; in the majority of large Amer- ican municipalities there are great elements of alien in- habitants with no uniform traditions of personal liberty. European police, moreover, have wider powers and are not restricted to the same extent by constitutional provisions relating to the inalienable rights of the citizen. In the countries of Continental Europe, again, the police officii s are recruited from among those who have had military service and who, accordingly, have served a perioa of probation under strict discipline. American cities, on the other hand, select their patrolmen from any branch of civil life with no real opportunit' n test a man's amenability to discipline, or his regularity ' its or his resourcefulness in emergencies until after h een appointed. Finally, the temptations to corruptioi .. been much more plentiful in American cities, particular,' m the large ones, than they are abroad. Strict laws relating to the Uquor traffic, gam- bling, and the social evil have been enacted by state legis- latures and turned over to the police of the large cities for enforcement. In many cases these laws are more rigid than the sentiment of the city itself would dictate. They are passed by legislatures in which reprosentatives of the rural districts predominate. It is obviously difficult to secure MUNICIPAL ADMINISTRATION 605 the strict enforcement of laws which the people of any com- munity do not as a whole support, and it is in such cases that police organizations have most frequently succumbed to sinister influence. The situation once led a well-known New York attorney to suggest that the city should have two sets of restrictive laws, one made by its own people for actual enforcement, and the other to embalm the moral yearnings of up-state prudery. The enforcement of laws relating to the liquor traffic and to sex morality present no serious problem in Europe, because not only are the rules more lenient but they are made by the cities for them- selves. Looking at police administration in its broader aspects, there are some fundamental differences between Anglo- American and Continental European conceptions of police functions. The English theory and its American derivative look unon the function of a police department as almost whoUj- repressive in its nature. The work of police officers is to prevent violations of the criminal laws. In the coun- tries of Continental Europe, on the contrary, the concept of the police function is much broader. There the work of police officers includes many constructive activities such as the civil registration of the population, the censorship of the press, the granting of licenses, the inspectioi- of build- ings during construction, the control of societies, and many similar phases of jurisdiction which in America either do not exist at all or are intrusted to authorities outside the police department. The work of the European police organizations thus affords greater scope for initiative and makes a greater demand upon the versatility of its personnel. An organization which is altogether or even largely repressive in its activities, such as is the police department of the American city, cannot as readily acquire prestige or develop a vigorously progressive spirit in its ranks. Americans, like Englishmen, have always viewed with a resentful eye any proposed extension of police jurisdiction. That, no doubt, is a liy-product of the general antipathy to military rule, and indeed to government by any class of professionals. Hence when the laws are passed to prevent overcrowding in tenements, or for the protection of workers The concept of police functiona The American antipathy to the extension of police duties. 606 THE GOVERNMENT OF THE UNITED STATES Recent improve- ments. h Police courta. in factories, or for the inspection of food, or for a score of other social welfare purposes, their enforcement is not usually committed to the regular poUce, but to inspectors who are appointed for each particular purpose and who are attached to the tenement-house department or the labor bureau or the health service as the case may be. The specialized en- forcement of technical laws is not, therefore, made a part of the ordinary police jurisdiction. Thi= '^olicy, while much may be said in its favor, has reacted rather disadvantageously upon the latter by confining the police function in America, as it has not been confined in Continental Europe, to a rather narrow range of repressive, non-technical, and for the most part, unpopular duties. Nevertheless the general tone of police administration in American cities is far better than it ^as a generation ago. This is due in part to better methods of organization, par- ticularly to the abolition of the bipartisan police board and the concentration of authority in a single police commissioner. In larger measure, however, it has resulted from improved methods of recruiting and training the force, better pay, and greater security of tenure. Police officers are no longer in most of the large cities appointed, promoted, reduced in rank or dismissed at the behest of ward politicians. Much still remains to be done before this branch of municipal administration is in all respects as satisfactory as it ought to be, but the progress of the past twenty years gives ample ground for optimism. The maintenance of law and order in cities depends not only upon t' o efficiency of the police, however, but upon the honesty and fairness of the local courts. The magistrates or judges of these municipal courts are usually elected, and too often their attitude towards the strict enforcement of the law is influenced by political considerations. It is some- times argued that the practice of electing these -judges of city courts is advantageous because it secures men who know and understand the conditions under which the people live and who can on that account administer the laws more justly. But on the other hand the elective system has its manifest dangers in the way of political cliicancry and boss domina- tion. Some large cities, therefore, have provided that the rsansfsssBrT^rry MUNICIPAL ADMINISTRATION 607 judges of the municipal courts shall be appointed by the mayor.^ Another branch of public-safety service is the protection W ^'.^^ of life and property against destruction by fire. This in- cludes two separate functions, namely, fire-prevention and fire-fighting. Until recent years very Uttle attention was bestowed upon the former, while so much was given to the latter that American fire-fighting organizations became easily the best in the world. The annual wastage by fire loss in the United States is appalling. In the cities alone it is over one hundred million dollars every year; in the rural districts it is even larger. The chief reasons, of course, are the high percentage of inflammable wooden structures, the laxity of the laws relating to fire hazards, and that most conspicuous of American traits, the readiness to take chances. The science of fire-prevention, which has made note- The worthy progress in recent years, is concerned primarily wth »«'^ four remedial measures. First, there is the fixing of what prevention: are commonlv known as fire-limits, that is to say, regions J^^f^^^ in which inflammable buildings are not to be erected. These areas usually include the business sections of cities. Second, the cities have tried to eliminate by the provisions of ordinances relating to buildings, those structural features which experience has shown to be fire-spreading agencies, such as the combustible party wall in apartment houses, the wooden-shingle roof, the uaprotected elevator-well, and the inflammable connection which so often exists between the cellars and the first floors of tenements.'' Third, the science of fire-prevention has been applied to the reduction of risk, in special structures such as theatres, factories, department stores, and schools by the enforcement of rules adapted to the needs of each type. Frequent inspections to insure com- pliance with these regulations are made by the fire-preven- tion authorities. And, finally, there is the campaign of popular education which aims to make people realize that > Some notable progress in the way of eatablishing children's courts for the trial of juvenile ofifeuders and night courts for the speedy deter- mination of minor accusations has baen made in the largw Amoncan cities during the past two decades. . . , . ..i. n _. • About one-quarter of aU tenement house fires originate ra the cellMS. I ■li ail 008 THE GOVERNMENT OF THE UNITED STATES How fire- prevontion rules are enforced. The fire depart- ments. :m •>. Public works. Ill street planning. igncrar.."r ind carelessness are the chief factors in causing unin+f'afea ^t-^a to start. Wooden walls and shingled roofs do not cause fires to begin, but merely enable them to make rapid headway. Fires break out, in most cases, as the direct outcome of human negligence. The work of enforcing fire-prevention rules is usually intrusted to special state or city authorities. In the latter case the fire-prevention bureau is a branch of the municipal fire department. As yet the staff of officials is too small in most cities to insure the frequent and thorough inspections which are essential to a rigid enforcement of the fire-pre- vention laws. Fire-prevention ought, indeed, to be a state rather than a municipal function, for if one city applies strict rules while its neighbors refrain from so doing, the general conflagration hazard will still exist and there will be inter-city friction over the matter as well. Some com- monwealth.s, including Pennsylvania and Massachusetts, have already taken hold of fire-prevention as a state enter- prise. The fire-fighting service or fire department in nearly all American cities is in charge of a commissioner jt chief who is usually appointed by the mayor. The officers and men under his control are organized into companies on a semi- military plan, and one company is assigned to each fire- district or precinct of the city with a fire-station as its head- quarters. In most of the larger cities firemen are appointed under civil service rules, and a few cities havetraining-schools for the new men. American fire-brigades have been brought to a high piano of tactical efficiency, much higher than those of European cities. The reason is that the need for quick and efl'octive work, because of conflagration risks, is greater here than there. Public works, including the construction and manage- ment of highways, bridges, sewers, and municipal buildings, present a somewhat related group of problems which engage the attention of a separate department and sometimes of more than one department. The streets are a city's most valuable asset, and occupy from one-quarter to one-third of its entire area. To pro- vide and maintain a satisfactory system of urban highways !B5«E! i" jjs.:» ,-.i i. sm ■ MUNICIPAL ADMINISTRATION 609 involves at least a half dozen different municipal tasks. First, there is the proper planning of streets, a matter of great importance, because highways can never be made to give their maximum service to the community if badly planned at the outset. There are two general types of street plan : the rectangular or chessboard scheme, which prevails in nearly all cities, and the radial plan, which has found more general favor in European municipalities. The former en- deavors to make all highways straight and to have them cross each other at right angles ; the latter uses diagonal or winding thoroughfares which radiate from designated centres. Each plan has its merits, and to some extent these meritorious features can be combined. As to the width of streets the general practice has been to make highways uni- form or nearly uniform without due regard to the extent and nature of the traffic which they are expected to bear. Of late years, however, new streets have had their widths deterriiined, not by any rule-of-thumb method, but by paying strict '•e- gard to the probable needs of traffic. Good street plann'ng is not merely a matter of making the highways both straight and wide, as so many western American communities imagine. Streets have to be paved, cleaned, and lighted, every inch of them, so that every unnecessary foot of street space represents a continuing source of municipal waste- fulness. Then there is the problem of good surfacing. Cities ha^"^ ^%^^ experimented with every variety of street paving, including p''^""'- granite-blocks, bricks, wooden blocks, concrete, asphalt, and its related materials, and the various types of macadam. On one thing the authorities are now agreed, namely, that there is no best form of pavement for streets of every sort. One type is best for heavy-traffic thoroughfares, another for residential streets, and still another for boulevards or parkways. One type is durable but expensive; another costs less, and is easier to keep clean, but does not last so long. The selection of a street pavement should be made in accordance with the volume and nature of traffic, the general charactpr of the highway, whether business or resi- dential, and the probable future development of the neigh- borhood. These matters can be readily worked out by 2r if I -.i.LJ i .» < wB&mmm II 610 THE GOVERNMENT OF THE UNITED STATES 3. Sani- tation. 4. Public health. highway engineers. Too often, liowcver, the .selection is made in obedience to :av superficial caprice of neighboring property owners or to the influence of pohtician-contractors who have some patented brand of pavement to sell. The congestion of factories, shops, and dweUings in urban areas makes the problem of waste disposal, including rub- bish, garbage, and sewage, one of great importance. Sewage, or polluted water waste, is the most constantly dangeuus of them all. There are ordinarily from one hundred and fifty to two hundred gallons of it to be disposed of daily for every head of population. Many plans of sewage disposal are in use by American cities. Some municipalities merely discharge untreated sewage into the sea. Others carry it to reservoirs, tanks, or basins, where the solids are allowed to settle and form a sludge, the effluent being run off into the sea or some neighboring waterway. The settling process is sometimes hastened by the use of chemicals. Other systems of sewage disposal such as intermittent sand filtra- tion and oxidization by the use of slag contact-beds are in use by a few cities. The broad-irrigation or sewage farm plan of disposal, which is used in some notable instances abroad, has found little favor in America. No one of these systems can bo designated as the best under all circumsta ces. Local conditions differ greatly from city to city and ich case requires special study. No branch of municipal activity has made more conspic- uous progress during recent years than the care for the public health. This, in turn, has been the result of the notable advance in the sciences of preventive medicine and public hygiene. The old boards of health, with their haphazard methods, have in many cities given way to highly trained health commissioners who are assisted by skilled specialists, each devoting his energies to some particular aspect of the general problem. The work of a municipal health department includes the collection and interpreta- tion of vital statistics as a means of determining the health status of the community. Relatively few people realize that prompt and accurate reports relating to diseases and deaths form the groundwork of efficient health administration. Public health work also includes the quarantining of infec- ■.jLmLiiiJi.t.! !!T^3yg 9BM MUNICIPAL ADMINISTRATION 611 6. Eduna- tion. tious diseases, the inspection of the milk supply, the oontrol of every agency by which disease may be spread, and a mul- titude of other functions. Nearly every state also maintains a health department, which assists the city officials when necessary and exercises a general supervision over their work. The city's hospitals fall naturally within the jurisdiction HoapitaU. of the health department although they are sometimes administered independently. A general hospital does not nowadays suffice for the needs of any large group of popu- lation. A separate hospital for contagious cases and a special sanitarium for the treatment of tuberculosis are also necessary, and many of the more progressive cities have provided such institutions. Measured by the amount of money spent upon it, educa- tion is the most important of all municipal functions. Be- cause of this the public schools are usually placed under the supervision of a separate board or committee, the mem- bers of which are in most cities elected directly by the people but in some are appointed by the mayor. In general these boards have three different groups of functions to perfovm. First, they provide the school buildings and keep them m order. Second, they liave duties of a business nature, such as the purchase of fuel and supplies, the buying of f .-hool books, and the management of school finances. In so'ne cities the school taxes are assessed and collected under the direction of the board itself ; but in the majority of them the funds for the support of the schools are obtained m part from the general city revenues and in part from the state. Finally, these school boards have the duty of appointmg the superintendent, engaging and promoting teachers, deter- mining salaries, approving changes in the school curricula and settUng all questions of educational policy. These functions, when taken together, are of far-reaching influence for good or ill. From one-fourth to one-third of a city s entire annual revenue, on the average, is spent upon its schools. , , In every part of the United States the local schools are ^^^^J°°- to some extent under state supervision, but the nature and ^u^ripai strictness of this oversight differ greatly from state to state. schouls. BBH ■F^WP"fl« 612 THK GOVERNMENT OF THE UNITED STATES TIiP widen- iag sphere uf public education. - jMi,*^, fi. Public library iidininis- tratioD. In some of them the local school board has little discretion except in minor matters ; in others it retains a large amount of independence. Between these extremes there are all gradations of freedom and restriction, but the strictness of state oversight is roughly proportioned to tlie relative amount.s which the various states contribute to the cities and towns for the support of their schools. The general ten- dency, moreover, is toward greater centralization in order that school administration may be made more nearly uni- form. Central control of local schools is exercised through a state board, or a state superintendent of education, or both. To a greater extent than in most other city departments the school authorities have been called upon for many new public services during recent years. Evening schools, part- time schools, continuation schools, special classes for handi- capped or defective children, the medical and dental inspec- tion of pupils, vocational guidance, and the use of schools as neighborhood centres in evening hours — these indicate only a few of the more important services which large communi- ties now call upon their school authorities to provide in ad- dition to the regular •ruk of ordinary education. During recent years, moreover, the establishment of public play- grounds and the supervision of play have in many cities be- come additional responsibilities. Supervised play, out of school hours, is now recognized as an integral part of a city's educational system. The public library is potentially a far more effective agency of public education than most American cities have hitherto made it. In many municipalities it is merely a depositary of books, a considerable portion of which are ephemeral works of fiction. For the most part the library authorities have not assumed an aggressive Icadersmi in moulding the literarj' tastes of its clientele or in actively developing among the people of the city the habit of read- ing books. Library boards have usually been made up of reputable nnd well-intentioned citizens who give their ser- vices without pay, but who have no special competenct in educational matters and who have for the most part failed to perceive the true relation between a public library and MUNICIPAL ADMINISTRATION 613 7. Poor- the masses of the people. A closer coordination between li- brary and school administration would doubtless have beneficial results, for it is from the pubUc schools that the future patrons of the Ubrary should be recruited. At any rate boards of education throughout the country have ex- panded their service to the whole people at a rate which has left library administration far behind. Public Ubranes in American cities have been administered honestly, with fair inteUigence, but with little or no imagination and almost entirely without any spirit of aggressive service. In all large centres there are several branches of adminis- ^^ tration which have to do particularly with the welfare of the people in the city's congested districts. Poor-reUef is a municipal function in some states, but in others it it a func- tion of county government. Everywhere, however, a large part of the work is left to voluntary and private philan- thropy. Public responsibiUty for the care of the poor has not been assumed on a large scale in America as it has been in the various countries of Europe. , ^ , , *, . Nor, again, has the proper housing of the people had the 8j^Hou«ng same amount of attention except perhaps m the largest p^pi^. cities New York City first began the rigorous regulation of tenement houses in 1902, and its example has since been foUowed by many other urban centres in the United btates. Tenement house regulation aims to eliminate unsanitary conditions, fire-traps, and overcrowding. The last of these is the most difficult of all to prevent. Housing rules have not been adequately enforced, however, because of the legal diffa- culties which often stand in the way of drastic interference with private property and also because a sufficient corps of inspectors is rarely provided. Political or personal fa- voritism has often operated, also, as a barrier to the rigid enforcement of the rules. Cities have long since provided parks and other open spaces for the use of the people, but it is only of late years that more positive measures have been taken in the w^ay of facilitating public recreation. The older conception of mu- nicipal functions went no further than the piwentials of com- munity life. It recognized the right and duty of the city to provide for the pubUc safety and convenience, but did not 9. Public recreation. ,J^:^=' m J 614 TH! GOVERNMENT OF THE UNITED 8TATEb 10. Th. reKulation of publir utilities. (a) watcr- -uppiy. regard measurp" for the public umasr-ment as bf>ing withLn the sphere of the governing powers. lis proVi,-,ion, it wan assumed, might better be left to V() uitarv orgariizations. But the old roncepuoii has bi nw rigid lieonse requirements. A much great = expansju. municipal recrcition facilities is 'ikeh' '■ > ta. - place i the yeaib to come. The J ovision or the regulatioi f puiiJi* ilitie (» rtant functions of all citieR. \ or s' i«i '' and in many re«neci.s the n^ost i « ntiu. oi Ar "iican cities till le.xve t '« servit '"• to b pri^ftte companie.s, but in the .riiit maj rity it is operaf'-d by the munii ipality. Hk- . rk is usua'' to a board of three or five members, o are ( 'f o' the smaller cities I'ut apps intisd lu ueji 'v ones. Their funciiont are twt fola : first to tain an adequate an -ufe source of sup provide for its distr ition to th- itistituu - of th( (■ ' n mu . be fi 1 irhin a rs, t ! t b« ei uUrui n oi hemically treated to irge I!--- OI , opui' ;on ake heavy water-suj ; ejaginp )Ut opo hundred ta every da, ,n the ye ity of one ], therefore, wil' have a ■ requirement iie P vu shops, ;ind hdii, quate supply c the city ; in (M must either bf make it saf demands upo: gallons per cai hundred thoub; ini- lidcst A few id by vned and titru.sted in some e l.'Tger .aid i in- econu to factories, V cases u safe and ade- asona'< e distance of rought a long way or unr T of ten million g. ons. In its relation to pub.ic health the city's water- rapi y is ma ifestiy of supreme conscqucace, and that is the chief r lso? r taking it directly under public ooiii-rol. ■ iflW m, MUNiniPAL ADMINISTRATION 615 Other impoi- ant oublic utilities operating withi if helimitf^ (Moth.^ of the ty an? steam railroads, electric lighting plant?^, gas utaui*. plants, lephone systems, and electric railways. Steam rail- roads ai wholl- under national or state repilation and th.- city nut .,rili ^ uave relatively little to do with the Ligiit- ing plants, wliether gas or electric, operate nnd what are knowT< as franchises or grants of priv-ileges made i the mu- ncipii tie usually for a stated term of yxn and always subject to ,. va nety of conditions. Street r. . ways are in the same categor\'. although the franchise term is usually longer. State ronstitu ions and laws have everv-where imposed street Umitat- ^ upon the powers and duties >f cities in llic r atter of gra - these f ranch incs, and the regulation of all iblic utilitit- passed largely into the hands of the state thorities. N^early every state now maintains oi\e or more boards ^ lOse function it is to supervise the enforcement of franchise conditions, to require adociuate service, to hear complaints fr- n customers or patr. as, and in some casesto regulate the r <-s, tolls, or fares wM^h may be charged. The I ibUc utilities may now bt looked upon as h:.! a municipal functi m. This is, on the to be, for the companies usually operate glc municipality, and if each city under- iting, there would be no end of friction the consequent demoralization of the regulation of a state r whole, V. in more in took its ow and diversit scrvicG. A public utility is a natural monopoly. No ultimate good can come from the maintenance of competitive telephone or street railway services, for example. These corporauons occupy a field in which competition means duphcaiion of faciUties, pubUc inconvenience and a far higher cost of ren- dering the service in +he end. Two practical alternatives, and only two, are open to fl city. It may give a complete monopoly to some one telephone company, street railway company, or gas company with a define d area and then to pubUc regulation for the protection of the pubhc in Or it may acquire the service and operate it undr naunicipal control. This latter alternative, municipal ownership au M 616 THE GOVERNMENT OF THE UNITED STATES 11. Mu- nicipal owoenhip. Its merits and defects. ation of public utilities, has made considerable progress in the United States although by no means so much as in European countries. Municipal ownership of water-supply has had the greatest development everywhere. Among sixty-five American cities having populations of 100,000 and upward, all but half a dozen have municipalized their water- supply services. This is chiefly because water-s./, ply, unlike lighting or transportation, is intimately related to the public health and to the hygienic welfare of congested regions. Electric lighting ranks next in the spread of mu- nicipal ownership. There are nearly six thousand elec- tric lighting plants in American municipalities, large and small, of which number more than a fourth are in public hands. Gas lighting, on the other hand, has had no such development. There are only about thirty municipal gas plants in the entire country, as compared with about fourteen hundred in private ownership. Of the cities hav'ng over 30,000 population only five own and operate their ga^ lighting facilities.^ One large city, Philadelphia, owns its gas plant, but has intrusted its operation to a private company. In the matter of street railways the cities of the United States have had even less experience with the policy of municipal ownership. San Francisco is the only large city that has taken over any considerable part of its street railway system, although a few other municipalities own and operate a few miles of trackage. Such experience with municipal ownership as American cities have had appears to indicate that wages and hours of labor for employees are such as to increase the costs of opera- tion ; that the quality of the service rendered is not better than under regulated private ownership ; that under public ownership an additional burden is usually placed on the tax- payers and that political considerations rather than business principles determine many important questions of operating policy. On the other hand, municipal ownership assures some protection against the avaricious practices which have been more than common under private operation, such as the inflation of capital stock, the payment of extravagant salaries ' Richmond. Va. ; Wheeling, W. V». ; Duluth, Minn. ; Holyoke, Maas.. and Hamilton, O. MUNICIPAL ADMINISTRATION 617 for managerial and legal services, and the arbitrary treatment of the employees. The question as to which policy is the better cannot be answered in general terms. It can only be determined with reference to a particular city and a partic- ular form of public service. CHAPTER XLIII COMMISSION AND CITY MANAGER GOVERNME>rr The beifin- ning of the The most significant feature of American municipal development during the last twenty years has been the organic reconstruction of government in several hundred cities. This has been accomplished by throwing over- board the older form of municipal organization, with its division of powers among mayor, boards, and council, and putting either the commission or city manager system in its stead. This striking upheaval in local government represents a political renaissance of no meagre importance. It has embodied both a protest and a policy, a protest against the old regime in city administration and a policy which aims to secure greater directness of responsibility from men in public oflBlce.^ The beginnings of this renaissance were the direct result CoramUbn °^ ^ ^^^^^ disaster, the tidal inum i 'on which partly de- movement, stroyed the city of Galveston, Texas, in 1900. Prior to this time, Galveston had ranked as one of the worst-gov- erned urban communities in the whole country. Under the old system of jurisdiction by a mayor, various elective officials, and a board of aldermen, its municipal history managed to afford illustrations of almost every vice in local government. The city debt was allowed to mount steadily, and borrowing to pay current expenses was not uncommon. City departments were managed wastefuUy. Professional politicians were put into ^ laces of honor and profit in the city's service. The a 's were kept in ' The best-known works on this subject are i •■ Bradford, Commission Government in American Cities (N. Y., 1911); i. jnry Brufire, The New City GuvtritmeiU (N. Y., 1912) ; Ford H. MaeGregor, Oily GovtruiueiU by Commission (Madison, 1911); and C. R. Woodruff, City GovernmerU by Commission (N. Y., 1911). 618 COMMISSION AND CITY MANAGER GOVERNMENT 619 such a way that few could understand what the financial situation was at any time. The tax rate was high, and the citizens got poor service in return for generous expenditures. Aifairs were in this condition when, in September, 1900, TheCaivea- a tidal wave swept in from the Gulf, destroyed about one- third of the city, and put the municipal authorities face to face with the problem of reconstruction. Before the disaster the city's financial condition was precarious ; now its bonds dropped in value, and it was apparent that funds for the work of putting the city on its feet could not be borrowed except at exorbitant rates of interest. It hap- pened that much of the real estate in Galveston was held by a comparatively small number of citizens. Some of these, accordingly, went to the legislature of the state of Texas and virtualb' asked that the city be put into receiver- ship. They requested that the old city government be swept away, root and branch, and that for some years, at any rate, all the powers formally vested in the mayor, aldermen, and subsidiary organs of city government be given to a commission of business men. This drastic ac- tion they urged as a means of saving the city from involve- ment in grave financial difficulties, if not from actual bankruptcy. Acceding to their request, the legislature passed an act empowering the governor of Texas to appoint three of the five commissioners, and providing that the other two be elected by the voters of Galveston.* A year or two after they had taken office, however, a constitutional difficulty arose. In a matter which came before the courts it was held that the appointment of city officers by the state authorities was contrary to a provision in the Texas constitution; whereupon the legislature amended its act by providing that all five members of the Galveston com- mission should be chosen by popular vote." The same three commissionci-8 who had been holding office under the gov- ernor's appointment forthwith stood for election, and were elected by the voters. As thus amended in 1903, the Galveston charter provides |^t^^^"»w for the popular election, every two years, of five commis- »• ''^• « Special Laws of TexM, 1901, ch. 12. • Ibid., 1903. oh. 37. 620 THE GOVERNMENT OF THE UNITED STATES Success of the experi- ment. sioners, one of them to be entitled the mayor-president, and all to be chosen at large. The mayor-president is the presiding chairman at all meetings of the commission, but otherwise he has no special powers. The conamission, by majority vote, enacts all ordinances and passes all appro- priations, the mayor-president voting like his fellow-com- missioners. It further supervises the enforcement of its own by-laws and regulates the expenditure of its own appro- priations. Likewise it handles all awards of contracts for public works. In a word, it exercises all the powers formerly vested in the mayor, board of aldermen, and other officials, acting either singly or in concurrence. The com- missioners, by majority vote, apportion among themselves the headships of the four administrative departments into which the business of the city is grouped ; namely, the departments of finance and revenue, water and sewerage, police and fire protection, and streets and public property. The mayor-president is not assigned to the head of any one department, but is supposed to exercise a coordinating supervision over them all. Each of the commissioners is thus directly responsible for the routine direction of one important branch of the city's business. Appointments of permanent officials in each department are not made by the commissioner who is in direct charge, but by vote of the whole commission. Minor appointments are, however, left to the commissioner in whose department they may happen to fall. The Galveston plan was not intended to be a permanent system of government for the city. Its prime object was to enable Galveston to tide over a difficult emergency. Prepared somewhat hastily, with very little experience to serve as a guide, it vested in the hands of a small body of men more extensive final powers tlian most cities would care to give away ; but the lapse of a few years demonstrated the great merits of the new system. The people's civic spirit was aroused, the business of the city recovered rap- idly, and in a remarkably short time the place was again on its feet, financially and otherwise. Then developed the conviction that commission government was a good form to maintain permanently. The other cities of Texas, apreads northward. COMMISSION AND CITY MANAGER GOVERNMENT 621 noting conditions under the new charter in Galveston, came forward and asked the legislature for similar legisla- tion ; and in the course of a few years the new plan of local government was authorized for use by general act in all the cities of the state. This development naturally attracted attention in other The^i parts of the country, and the reform organizations of vari- """ ous northern cities began to discuss the possibility of apply- ing the scheme to the solution of their own municipal problems. The first municipality outside of Texas to accept the plan was Des Moines, the capital city of Iowa. In 1907 the Iowa legislature passed an act permitting any city of the state having a population of more than 25,000 to adopt a commission type of government ; and forthwith the citizens of Des Moines, by whom the act had originally been brought forward and urged, took advantage of the new provision. The Des Moines plan of government by commission is simply a new edition of the Galveston plan, similar in out- line, but embodying some novel features. In brief, it provides for a commission consisting of a mayor and four ^^^ councillors, all elected at large for a two-year term by the voters of the city. To this body is intrusted all the powers hitherto vested in the mayor, city council, board of public works, park commissioners, boards of police and fire com- missioners, board of waterworks trustees, board of library trustees, solicitor, assessor, treasurer, auditor, city engineer, and all other administrative boards or officers. Under the Des Moines plan the business of the city is grouped into five departments; namely, public affairs, accounts and finances, public safety, streets and public improvements, and parks and public property. By the terms of the charter the commissioner who is elected mayor of the city becomes head of the department of pubUc affairs ; each of the other commissioners is put at the head of one of the other depart- ments by majority vote of the commission, or council, as the body is called in Iowa. All officers and employees of the various departments .are appointed by the council, which also has authority to choose a board of three civil service commissioners to administer, under its direction, Adopted by Des Moines with new features IW 622 THE GOVERNMENT OF THE UNITED STATES Nature of these new features. the state laws relating to the civil service. Most of the city officers come within the scope of these laws. Thus far the system diverges but very slightly from the Galveston plan. The chief difference lies in the fact that the Dos Moines scheme incorporates what are commonly termed the newer agencies of American democracy ; namely, the initiative, referendum, and recall. The initiative is the right of 25 per cent of the qualified voters of the city to present to the council by petition any proper by-law or resolution, and to require, if such be not passed by the coun- cil, that it be submitted without alteration to the voters by referendum. If at such referendum it receives a majority of votes, it becomes effective. Or if the council should pass, of its own volition, any such measure (except an emergency measure), it cannot go into effect until ten days after its passage. Meanwhile, if a petition protesting against such by-law, signed by 25 per cent of the voters of the city, is presented to the council, it is incumbent on that body to reconsider the matter. If the by-law is not entirely repealed, it must then be submitted to the voters for their acceptance or rejection. The vote takes place at a regular election, if there is one within six months ; otherwise at a special election held for the purpose. If indorsed at the polls, the measure becomes effective at once; if rejected by the voters, it becomes inoperative. The recall provision permits the voters to remove from office any member of the council at any time after three months' tenure in office. Petitions for recall or removal must be signed by at least 20 per cent of the voters, and the question of recalling, or in other words forthwith ending the term of a councillor, is put before them at a special election. Since its adoption in Des Moines the spread of the re- vised commission system has been rapid. During the next ten years a great many cities, scattered about in forty-three states, abolished the old system and established the new one.* Some of these were large cities, but in general the ' The only states which do not have any cities with the commission form of government are Delaware, Indiana, New Hampshire, Rhode Island, and Vermont. The most important oities now having commis- ,T.-^[4J>iii (V'r at:.=/:« GOVJCxINMENT 623 commission plan seemed to appeal ciore strougly to the smaller urban centres. A list of cities that have the system at ti e present day would contain the names of more than three hundred munic- ipalities. Six are cities with populations exceeding 200,000 (including Buffalo anr' ' ■- Orleans) ; fourteen are cities with populations of 1 » or over. ITie others, ranging from a few thousand u, rds, are scattered in all parts of the United States from the Atlantic to the Pacific and from the Canadian to t^ie Mexican border. , „ ., , WTiat have these cities gained as a result of the change? M^^of^^ In its actual working the new system has shown itselt pos- g„^^,„. sessed of many advantages.^ Of these the mo.t striking ment: one of course, arises from the fact that the plan puts an end to that intolerable scattering of powers, duties, and responsibilities which the old type of city government pro- moted to the point of absurdity. By enabling public atten- tion to focus itself upon a narrow and well-defined area, it allows the scrutiny winch voters apply to the conduct of their representatives to be real, and not, as neretofore merely perfunctory. The system does not guarantee that a city's administration shall be always free from good ground for criticism — no system can do that ; but it does guarantee that when the administration is faulty there shall be definite shoulders upon which to lay the blame. Under the commission plan the responsibility cannot be yi^r^ bandied back and forth in shuttlecock fashion from mayor ^iuty. to council and from the council to some administrative board or officer. Issues cannot be clouded by shifty deals among several authorities. In thus eUminatmg a chaos C^ ^SbS« and R^drng P»; MemphiB. Tenn.; DaUas. Houston. STd SanTnS. Te.T SaU Lake City. Utah ; Spokane and Tacoma, ^^he .ummary of merits ^d^^eoU «^^-^t^^ -^J J- ^S !• KoXmt' 5Tn.«S^^«e; rnd";KTclL- observation^ Sisrion government during the interval has not m any way earned him to change. SF^^ZXTafEg^:^ 624 THE GOVERNMENT OF THE UNITED STATES 2. Facili- tates the handUns of business. 3. Helps to eliminate friction. of checks and balances, another name for which is friction, confusion, and irresponsibihty, the new framework removes from the government of American cities a feature which, to say the least, has in practice been unprofitable from first to last. Advocates of city government by commission have been in the habit of saying that their plan would give cities a business administration. They pointed out that a city's affairs are of the nature of business, not of government. Go through the records of a council-meeting and catalogue the items that can be classed as legislation ; the list will be very short indeed. By far the greater part of a council's proceedings have to do with matters of routine adminis- tration, which differ slightly, if at all, from the ordinary operations of any large business concern. Now no business organization could reasonably hope to keep itself out of insolvency if it had to do its work with any such clumsy and complicated machinery as that which most American cities have had imposed upon them. What would be thought of a business corporation that intrusted the con- duct of its affairs to a twin board of directors (one board representing the stockholders at large and the other repre- senting them by districts), and gave to an independently chosen manager some sort of veto power over them, besides subjecting his appointments to their concurrence? It is, of course, quite true that a city is something more than a profit-seoking business enterprise. The affairs of the municipality cannot be conducted in defiance of public opinion, or even in disregard of it ; but responsiveness to popular sentiment is not necessarily iuconipatible with sound methods of public administration. The system of government by commission lias enabled the authorities of the city to conduct budiness more promptly and with less r • ion. There may be wisdom in a multitude of councillors, 1 t the history of thoue municipalities which maintain large deliberative bodies seems to warrant the im- pression that this collective wisdom is not of very high grade. Unwieldy councib have been put upon American cities under the delusion that democracy somehow associates itself with unwieldiness. There is a notion in the minds of all COMMISSION AND dTY MANAGER GOVERNMENT 625 democracies, and it is as deep-seated as it is illusive, that a body cannot be representative unless it is large to the pitch of uselessness for any effective action. Even delibera- tive bodies, however, reach a point of diminishing returns, and American municipal experience seems to show that this point is not fixed very high. Large city councils in the United States have everywhere been found to be ill adapted to the work which they are expected to do. To say that they display greater regard for the interests of the people, or more conservative judgment in the handling of questions of policy, than do small councils of five, seven, or nine men is to disregard the undeniable facts of the situation. The history of large councils, whether in New York, Philadelphia, Boston, or in smaller cities, is little more than a record of political manoeuvring and factional intriguery, with a mastery of nothing but the art of wasting time and money. A council of some half dozen men offers at least the possibility of despatch in the handling of city affairs ; for its small size removes an incentive to fruitless debate, and affords little opportunity for resort to subter- fuges in procedure. But the chief merit urged in behalf of the commission plan is not that it concentrates responsibility and permits __ the application of business methods to the conduct of a city, city's affairs, important as these things ire. In the last analysis, municipal administration is as m^\ch a question of men as of measures. Efficiency in city administration may be assisted by one form of local government or retarded by another, but in the long run it is not less a question of personnel than political framework. Much depends, ac- cordingly, upon whether the commission form of govern- ment does or does not install better men in the city's posts of power and responsibility. In the early days of the commission propaganda it was Hasitactu- argued that the new plan could not fail ^ secure a higher ^^ grade of councilmen or commissioners. "Concentrate power, it was said, and you will get men worthy to exercise it." But nearly twenty years* experience with the com- mission form of government has not, on the whole, borne out this prediction. The fact is that the great majority 2s 4. Induces better men to serve the »«sfflsffif?"' ywss®?. 626 THE GOVERNMENT OF THE UNITED STATES 5. Reduces the tax rate. of those who have been elected commissioners under the new plan are men who held some public office under the old. What has actually happened is not the drawing of new men into the municipal service, but the retention of the best among the old groups and the giving to them a better chance to achieve satisfactory results. It is, at any rate, the testimony of those who have served under the old plan and the new that the latter gives greater opportunity and greater incentive; and it is the experience of those cities which have been under commission arrangements for several years that, whatever may have been the effect upon the personnel of the administration, the change has had a salutary influence upon the whole tone of municipal affairs. Perhaps the most convincing evidence that cities derive advantages from the new form of government is that gath- ered by the United States Bureau of the Census and pub- lished by it in 1916. The figures relate to rates of taxation, expenditures, and loans in various cities both before and after the adoption of the commission plan. Likewise there is a comparison of annual financial statements from typical cities, some with the new form of government and some with the old. The figures leave no doubt that the new plan has had a favorable reaction on tax rates and borrow- ing.^ Nor do the statistics tell the whole story. Tho > U. S. Bureau of the Census. Comparalive FiiMneial Stntistics of Cities under Cnuneil and Commission Government (Washington, 1916). The pij;ht mayor-and-council cities which were chosen for com- parison wore Indianapolis, Indiana (2.')9,820) ; Hartford, Connecticut (107,.->21) ; Youngstown, Ohio (100„-)93) ; Troy, New York (77,.'>60) ; Peona, Illinois 170,006); Little Rock, Arkansas (53,811); Davenport, lov i (46,537) ; and Charlotte, North Carolina (38,263), representing a tot.U population in 1915 of 754,111, or an avera«e of 94,000 each. The eight commission-governed cities were Birmingham, Alabama (164,166); LowoU, Massachusetts (111,004); Salt I^ke City, Utah (109,736); Des Momes, Iowa (97,304); Pueblo, Colorado (51.218); Topeka, Kansas (47,102); Montgomery, Alabama (42,154); and Austin, Texas (33,218), wth a total population of 655,901, or an average of 82.000 for each city. A comparison of tax levies? in the two group* of <«!ti«>s for Ifll.'i shows that the average per capita levy of property taxes for the eight mayor cities was $16.36 as against $12.31 in the commission-governed cities, or a difference of $4.05 in favor of the cities under government by commission. COMMISSION AND CITY MANAGER GOVERNMENT 627 improvement in the general tone and temper of municipal government is something which couut» for much, even though it cannot be set down on a balance Bheet. But even though the financial results seem favorable, there are those who continue their objection to the commis- sion plan upon political grounds. According to these opponents, it is based upon a wrong principle and proposes a dangerous policy ; and it is accordingly branded as oli- garchical, undemocratic, and un-American. But to urge that because a governing body is small it must inevitably prove to be bureaucratic in its methods and unresponsive in its attitude, is merely to afford a typical illustration of politicians' logic. \Vhether a public official or a body of officials will become oligarchical in temper depends not upon mere numbers, but upon the directness of the control which the voters arc able to exercise over those whom they put into office. And effectiveness of control hinges largely upon such matters as the concentration of responsibility for official acts, an adequate degree of publicity, and the elimination of such features as national party designations attached to the names of candidates on the municipal ballots, a practice which has always served in tlie United States to contuse the issues presented to the voters at the polls. In fact, it might almost be laid down as an axiom dcducible from American municipal experience that the smaller an elective body the more thorough its accounta- bility to the electorate. Commission government, we arc told by those who have been and are still opposing it, is inadequately representa- tive ; five men, chosen at large, cannot represent the varied interests, political, geographical, racial, and economic, in any large municipality. If it be true that in the conduct of his local affairs a voter cannot be adequately represented except by one of his own neighborhood, race, religion, politics, and business interests, then his criticism is entirely reason- able. But is this not the reduciio ad absurdum of the repre- sentative principle? Would not a recognition of this doc- trine absolutely preclude all chance of securing a municipal administration loyal to the best interests of the city as a whole? It has been frequently proved in the United States ! : Objertioni to the plan: 1. "Takei the govern- ment of th« city away from the people." 2. Is not adequately repre- ■entative. 628 THE GOVERN>fENT oV THE UNI'. KD STATRS that a single official, like tho President of the nation or the governor of a state or tin mayor of a city, may more truly represent popular opinion than does a whole Congrtss or Rtate legislature or municipal council. Popular sentiment is not difficult to ascertain when a p;;! .ic )fficer takes the trouble to ascertain it. Five men i^an do it as easily as fifty, and they are much more likely to try. " The smaller the council, the more easih can it be reached and corrupted." In other words, it is easier fc "rooked politicians or professional lobby idts to corrupt oi coerce five councillors tlian fifty. There i- safe'y in numbers. But the flaw in tliis line of argument is it- aj*j*umption. It assumes that sinister influences exert themselves directly upon the councillors one by one, and lience iliat, where a large council exists, the forces of comiotiou or coercion must deal with a large body of men. llu this is not the case, however, every one who has had anything to di. with mu- nicipal politics knows very well. Large councils in this country have been, for the most part, made up of men who owed their nomination and election to political leaders to whom the councillors have been under permu- .it obli- gations, and from w-hom thi have taken their order .- A few bosses, sometimes a singU >ss, can control a majoii* of the council, and can deliver the necessary votes to ai proposition when the propei incentive app«'ai-s. Politician or contractors who wish to et what they are not entitle to have do not approach the council through its membeiij one by one. They have always dealt with the middle- man ; that is to say, with the political leader, who controls the votes of the councilmen. Accordingly, they have had to do with perhaps five men, not with fifty, and, what is more, with five men who have power without responsi- bility, who were not invested with authority by the voters, and are consequently not accountabU to them for the abuse of it. Under commission governmt>nt, on the contrary, a favor-seeking private interest h-.n had to deal not with a few middlemen, who have the votes of others to deliver, but with five men who are free to act as hey think best and who act with the eyes of the voters upon them. Objection is raised against commission government ot. COMMISSION AND CITY MANAGER GOVERNMENT 629 case, &• 'ri> the ground that it uts into the hands of a single small 'j^Aboi«b«i body of men the p« ^er both to appropriate and to spend J„^ % public money. Sue n an arrangement, it is said, and said «||^^"'' truly, violates an e;- ablished principle of American govern- '^** ment, which demanu that in the interests of economy and honesty these two powers should be lodged in separate hands, it commits to a single board of five men the power of fixing the annual tax rate, of appropriating the revenues to the different departments, and of supervising the detailed expenditure of the funds so apportioned. Unorthodox as this arrangement may appear to be, how. ver, it is not necessarily objectionable on that account. Many novel features have come into American governmental methods within comparatively recent years, and all have had to meet tlie cry that they involved departure from the time- honored way of doing things in this country. Moreover, the fusion of appropriating and spending powers in the organization of city government is not unprecedented. This very principle is at the foundation of the English mu- nicipal system; and, as the world knows, it has proved in operation neither a source of corruption nor an incentive to extravagance. Furthermore, those American cities which have had the commission form of government for nearly a dozen years find nothing objectionable in this blending of the two powers; on tii< contrary, their experience with it seems to indicito tvai it possesses some imiportant ad- vantages over t Kt >;t3 p'ln of separation. It inspires greater care in making \.t ^.timates and promotes greater success in keeping within them when made. Commissions have unquestionably not proved to be less capable of handling expendituiea than \ ere the various executive boards and officials that formerly had charge of such work. A much more substantial objection to the commission *^^^tj^»^ plan arises from the fact that it practically abolishes the ^^w ° offce of mayor, that it does not provide an apex for the power in pj mid of local administration. Now, the mayoralty is ^o",'°^ a pcj' hat has established a fair tradition in America, and t jre is a rational function for it to perfoim. It stands in the public imagination as the one municipal office in which all administrative responsibility can be centralized. IfijI 630 THE GOVERNMENT OF THE UNITED STATES ;s^ 5. Its failure to make use of experts. To lodge all such power and responsibility in the hands of five men is better than to put it in the hands of fifty ; but to place most of it in the hands of one man, duly sur- rounded by the neocssary safeguards, is better still. The commission plan achieves at best a five-headed unifica- tion of responsibility ; it leaves room for friction on a three- to-two basis ; it affords ample scope for wasted energy and for the management of the city's business in such way as to serve personal or political ambitions. This is not a mere possibility of the system, for many commission-governed cities are finding it to be a disappointing reality. Jealousy among the five commissioners has often led to friction and working at cross-purposes. There has been too much evi- dence of a disposition to "play politics " ; that is to say, too much readiness on the part of the individual commissioner to popularize himself with his constituents even when by so doing tlie general interests of the city are likely to suffer. But even more serious as a defect of the commission plan, as shown by its years of experience, is its failure to make full use of expert service in handling the regular work of the city. T\\e commissioner who, on election, takes charge of some special branch of the city's business (such as police and fire protection, or water and light) is a layman, unskilled in the problems of his new department. But he draws a good salary from the city, and naturally desires to make at least a pretence of earning it. The consequence is that he becomes too busy with the matters which are under his direction, often hampering the skilled efforts of the permanent officials such as the chief of police or fire chief or head of the water service, ordering things about as political motives or as a desire to secure his own reelection may dictate. The result is that these officials disclaim responsibility, often lose- enthusiasm, or sometimes resign and are replaced by more pliable subordinates. Now the commission plan did not at its inception con- template that development. It assumed that the five commissioners, not being experts themselves, would be guided by expert advice. But in the great majority of commission-governed cities (that is to say, cities with 50,000 population or less) there is hardly room for two well- COMMISSION AND CITY MANAGER GOVERNMENT 631 paid men at or near the head of each division of work. The taxpayers do not feel Uke paying a commissioner of public safety an annual salary of 12500 or more, and also provid- ing full-salaried officials at the head of the police and fire protection services. The tendency has been, with political motives in play, to pay the commissioners more and the officials less. The result is that in many cases the pro- fessional's part in administration has been curtailed, while the elective commissioner, although not qualified by train- ing to do 80, has assumed technical functions. It is with a view to improving the commission plan and The city- particularly to securing a greater concentration of adminis- ^°°**'" trative responsibility that the city-manager scheme has more recently been devised. The city-manager arrange- ment does not embody a new scheme of local government, but merely a variation of the commission system, designed to secure a more effective concentration of administrative functions in the hands of a professional well-paid expert, removing from the elective commissioners the power to interfere with the details of municipal business. The first its origin, large city to experiment along this line was Dayton, Ohio, where the new arrangement wont into effect on January 1, 1914. Since that date the example has been followed by many other municipalities, and additions to this list are being lapidly made at the present time, Acco'-ding to the Dayton plan an elective commission its esaential of five members controls all branches of the city's affairs, ®* ^^'' legislative and administrative, except the schools, which are under a separate board. The members of the commis- sion are chosen by popular vote for a four-year term, but are subject to recall by an adverse vote at any time after six months of service. The commission, by majority action, enacts the ordinances and fixes the tax rate. It also voter- the appropriations and may create or abolish city departments. But it does rot directly have anything to do with the actual r^snagement of the various d^^oart- ments, nor does it immediately supervise the work of the officials. These responsibilities it delegates to a high official with the title of city-manager, appointed by the commission to hold office during its pleasure and paid a good salary. 632 THE GOVERNMENT OF THE UNITED STATES FuncHons of the city managjr. I> the plan a success? Prefi-'D- tial viitiiig. Now as to the city manager's duties. They are fourfold. First of all, in an advisory capacity he attends all meetings of the commission, with the right to be heard and to make recommendations, but not to vote. Secondly, he is the enforcer of all ordinances. In the third place he appoints all other city officials and employees, subject, however, to the civil service regulations, and may suspend or dismiss any of them for proper cause. In this connection he assigns to each official the sphere of work to be done And, finally, he pi -"pares the annual estimates, submitting them to the commission for action; and he is the general supervisor of all the work done in the various dep ii tments and offices, having charge of contracts, the purchase of supplies, and so forth, the details being handled by his subordinates. He is, in a word, the general manager of the corporation. Since 1914 the city manager plan, or some variation of it, has been established in about ninety American cities. Only two of these, Dayton and Grand Rapids, are places of over 100,000 population; but the list includes a dozen cities of 25,000 or over. .Naturally enough the plan has proved most popular in the smaller communities. So far as one may judge from four or five years' experi- oncp, the city managership forms a highly valuable, if not an indispensable, adjunct to the commission p'an of govern- ment. It strengthens the latter at its weakest point by insuring a high grade of professional skill ao the apex of the city's administrative service. As for the future, much will depend upon two things : in the first place whether cities find it possible ty get the right sort of men for man- agerial positions, and in the second place whether the position can be kept out of the vicious circle of political patronage. The latti'r danger is the more likely to be en- countered, and indeed it has already made its appearance. Some municipalities are already insisting that the city manager shall be "a local man" and that he shall be paid a very moderate salary. If that policy becomes general, the whole plan will be rendered inefToctive. The commission system and the city manager plan have brought with them, in some municipahties, a change of election methods. Preferential voting, in a number of COMMISSION AND r-JTY MANAGER GOVERNMENT 633 cities, has replaced the method of straight balloting. Under the so-called Australian ballot system, as used in the United States, each voter designates his first choice only. An inevitable result of this system is that the candi- date who stands highest at the poll (in cases where there are several candidates for the same office) may have re- ceived a considerable minority of the total votes cast. In such instances the person elected does not genuinely repre- sent the wishes of the majority. The preferential system of voting permits each voter to designate not only his first, but his second and third choices as well. If any candidate receives a clear majority of first choices, he is declared elected without any counting of second choices. But if no one obtains such majority, the second choices are added to the first choices and a further computation made to ascertain whether any candidate thereby secures a ma- jority. In like manner the third choices are resorted to if necessary. Preferential voting has been adopted and used with satisfactory results in many American cities during the last ten years.* Preferential voting should be distinguished from pro- Propor- portional representation, which is another electoral repr^i method brought into use during the past decade. Various tion. schemes for securing the proportional representation of all factions among the voters have been under discussion by students of government for a half century or more, but none of them has had a fair trial in any American com- munity until a few years ago when Ashtabula, Otao, in- augurated one of these plans in connection with the work- ings of its commission-manager government. The details of the Ashtabula scheme seem at the first glance to be rather complicated, but in its actual operation the plan has thus far presented no great difficulties to the voters. ITie ballot used is something like thi?t employed under the preferential system, but the method of counting the vote« is altogether different. By dividing the total number of votes cast by ' The d«taib of the plan diffy somewhat in different cities. For a discussion of the workini^ aad merits of the system see the Bulletin on Preferential Voting, prepartid for thf Massachusetts Conititutional Con- veotioR. 1917. and the references there aivQu. 634 THE GOVERNMENT OF THE UNITED STATES Coiiclusion. the number of offices to be filled, a quota is established. If any candidate is found to have received a number of first choices equal to this quota, or above it, he ia declared elected. If he have a surplus of first choices above the quota, this surplus is dis rlbuted to other candidates in accordance with the second choices indicated. On each count, moreover, the lowest candidate drops out and his votes are distributed, similarly, among those who remain. This procedure is continued until enough persons have been declared elected to fiU the available offices. This, of course, is only one among various systems of proportional representation. There are at least a half dozen ..jts} But the purpose is in all cases the same, namely, to give each fraction of the electorate its due share of representation. Under the system of election which prevails in general throughout the United States no repre- sentation is accorded to am^ party except the two leading parties. The chief objection to proportional representation is its seeming complexity when presented to the average man. It looks pedantic and intricate. In itd actual appli- cation, however, no scheme of proportional representation yet used in any country has proved too complicated for the voters to comprehend. A word in conclusion. America has not yet reached a final solution of those problems of municipal government which seemed to constitute during the latter half of the nineteenth century the most vexing of all the problems of the Republic. But at any rate notable progress has been made. Old theories have been discarded ; obsolete political mechanism has been relegated to the scrap heap. New theories and institutions are being given a new trial. With this has come an awakened interest in municipal affairs, and things which were not intelligible to the electorate because of the elaboration of municipal checks and balances have become intelligible now. But before the average American city becomes a model « The best known book on this subject is J. R. Commons, Proportional Repretenlation (N. Y., 1907). litjferences to recent publk;atioM deal- ing with the various plans may be found in tho Massa«hu««'ttB CoMtitu- tional Convention's fiuiiehn on Proportional Repretenlation {B««ton, If 17) COMMISSION AND CITY MANAGER GOVERNMENT 636 of efficiency and thrift, a great deal more remains to be done. Rings and bosses will still get control of cities from time to time as they managed to do in days gone by. But such victories of the enemy do not now spell disaster. Frenchmen said of the Bourbon Restoration in 1814 that it brought back the old dynasty but not the old regime. So, too, the stalwarts of Tammany and of similar organiza- tions throughout the land may occasionally come back to a fleeting lease of power, but the public indifference which once gave them a strangle-hold on the municipal treasury is gone, and gone forever. INDEX Academy of Political Science, Proceed- ings, 434 n. Adams, H. C, PuUic Debts, 234 n; Science of Finance, 460 n. Adams, John, Works, 48 n. Address, removal of state judRes by, 497. Administration, national and the Cab- inet, 126-145 ; in the states, 443-459 ; in cities, 002-617. Agger, E. E., Budget in American Com- monwealths, 466 n. Agriculture, federal Department of, 138. Alaska, government, 137, 377 ; delegates to National Convention, 334. Albany Congress, 10. Aldermen. See City Council. Amendments, to the Constitution, 67- 60; first ten, 67-68, 352-356; Eleventh. 68, 347-348; Twelfth, 68, 91 ; f Mirteenth, 72-73, V 3, 398-400; Fifteenth, 79-80; Seventeen:'. 151- lUZ; Sixbienth, 226; to state cou- stitutiond, 412. American Historical Review, 28 n. American Judicature So'ii^ty, BtMetin. 496 n. American Year Book, 274 n. .iVmes H. v., "Proposed Amendments to the Constitution," 69 n. Andrews, C. M., Colonial Self-Oavern- ment, 3 n. Annapolis Convention, 24-25. Appointments, by the President, 106- IIC; confirmation by Senate, 163- 164 ; recess, 16-1 ; by state governors. 438-441, i: -496; by mayors, 591- 592 ; of city o.licials, 593-595. Appropriation bilb, customary origin in Kousa of Representatives, '^; share of Treasury Departir.ent in, 133-134 ; of Senate in, i 73-1 74; passage through Conf»res8. 302-309. 5«e ^o Finance. Army, control of President over, 121 ; unc'or War Depart rrnnt, 136; of the (nited Statc-3. 2(:(i 2'\S. Articles of Confederation, adoption, 13 ; constitutional importance, 14-15 ; general provimons. IS; powers ot Congress under, 15-16; ratification, 16-17; weaknesses, 20-23; accom- plishmento, 23-24. Articles of War, 269-270. Ashtabula, Ohio, proportional represen- tation in. 633-634. Attainder. bUl of. 169. 288-289, 396. Baldwin, 8. E., American Judiciary, 365. 490 n. Ballot, in congressional elections. 184 ; need for shorter. 482 ; in preferential voting. 632-633; in proportional representation, 633-634. banking system, national, connection with Treasury Department, 134-135; in general, 233-248; history of. 234- 239; defects, 239-240; Federal Re- serve, 240-241 ; of the states, 449-450. B'.nkruptcy, power of Congress over, 277-278. bamett, J. D., Initiative, Referendum and Recall in Oregon, 601 n. Bastable, C. F., Public Finance, 460 n. Beard, C. A.. Economic Interpretation of the CorutittUion, 41 n ; Supreme Court and the Constitution, 53 n, 362 n; American Oovemment and Politics, 550 n. Beard. C. A., and Schulti, B. E., Docu- ments on State-wide Initialite, Referen- dum and Recall, 501 n. Bicameral legislature, adoption of, in Congress, 146-147; merits and de- tecta. in states, 416-418 ; in -.ibiished by Con- gress, 128 ; qualifications and ap- pointment, 128-129: powers and functions. 129-139; relation to Con- gress, 142-144. Cableman v. Peoria R. R. Co., 346 n. Colder v. B%M, 289 n. Calhoun, J. C., State Pajtem on NtUli- fication, 211 n; Disquisition on Gcverntitent, 39- Califomia v. Central Pacific R. R. Co., 283. Carpenter. W. S.. Judicial Tenure, 371 n. Carson, H. L., Hiatory of the Supreme Court, 357 n. Catterall. R. C H.. Second BanK of ti.- United Slates. 238 n. Ca- cus, in the Senate, 150-157 ; ho ginnings of, ,330-.331 ; legislative. 331 332; congressional, 332-;i33; a.s nioimA of niiminating in states, 418. Chaml)erlin, F., Philippine Problem, 383 n. <'hnni}iiun v. Anieii. 250 n. Channing. Edward. History of the United States. 2 11, 17 ri, 318. Charities and corrections, administra- tion of, in states, 453-4.54 ; in coun- ties. 552 ; in cities, 663. Charters, city, methods of granting, 58.3-58". '"liild-lalMir, under Ilcpartment of In- terior, 130 ; control of Congress over, 250. Chisholni V. (leorgin, .347 n. 300 n. Circuit Court of Apiwals, 370. Cities, growth of, 572-577 ; periods of development, 577-582; granting of charters to, 582-5S7 ; organisation, 588-001 ; administration, 60;.'-617 ; commission and city-manager govern- mcMt in, 618-635. Citizens, rights of, 71-87; who are, 71 78; by birth, 73-74; by naturali- zation. 74-78 ; status of Porto Ricsns and Filipinos as, 75, 374-375 ; privi- leges and immunities, 78-83; cor- porations as, 84 ; duties, 86-87 ; in connection with voiing, 178-179, City Council, organization, 606-696 ; functions, 590-599 ; place of, in American government, 599. City-manager plan of city government, 631-032. Civil Service Commission, 108. 141. Civil service sysi . .u, "i national govern- ment, 10s lOVt; iri the slates, 439- 441 ; need for, to nlt'set political machines, 481-482; need for. 'n counties, 55il ; lack of, in appointing department head , in cities. !J93-694 ; in appointment of city employees, 599-600. Cleveland, Grover, ?ri.sidenlial Prob- lems, 105 n. Coinage and currency, supervision by Trca.sury Department, 135 ; control of Congress, 278-280; kinds in United States, 280; counterfeiting, 281. Coke, Sir Edward, Institutes. 291 n. C'oUins, C. W., Fourteenth Amendment and the StalfJf. 399 n. Colonies, the Thirteen, goiemment of, 2-13. t^ommerce, federal Department .>f, 138. Commerce, power of Congress to regu- late, under the Confederation, 21-22, 240-247; under the Constitution, INDEX 639 246-264; what commerw ii, 248- 261 ; interstat • 2.'>«-264. CommUaion govenmient. in cities, be- ginninits of, OTi-OlU ; Gnlveston plan, 619^-621 ; in Dee Moinos, ft21-«2;j . meritt. 62S-627; aefeci», 027-631 ; improv»«menU effected by city-mana- ger plan, 631-632; chunnos caused by, in election mothoUs, 632-634. Committee, National, of political parties. 334-3,38. Committee of the Whole, in House of Representatives. 2()(), 20.'>. Comraittoo on Kules, in House of Repre- sentatives, 197-198.204. Committees, in the Senate, ICVLM; in House of Represcntjiiives, 197-19b, 199-203; of Conference. 20.5-206; in connection with appropriations, 303-300 ; in politicnl parties, 3.34 ,3,38. 47.'.-477, 483484; in constitu- tional conventions, 4il); in state legislatures, 423-424. 426-427. Commons, J. U.. Proporlional Hepresen- tation, 0.34 n. Compromises, in ronnoction with fi'am- ing the Constitution, ;i3-3.'). Conlirmatioii, of appointments, federal. 65. 106-108, 163-164 , in states, 43!t. Congress, povers under Confederation, 15-16, 20-23, 209-210; adjournment and special sessions, 112; relation of Cabinet to. 142-144; members may not b« impeached, 170; power of, in general, 208-218; to tax. 219-232; to borrow. 233-245 : to regulate com- merce, 246-264; of war, 205-276; over naturalization and bankruptcy, 277-278 : over coinage and currency, 278-280 ; over weiph* ' and nioa.sure9, 280-281 ; over post offices, 281--83 : to grant patents, 283-284; to es- tablish subordinate courts, 284-285; as to the high sear-. 28.5-286; over the capital, 286; implied, 286; limi- tations on. 288-298: as a legislative body, 299-.302 ; inefficiency in public finance. 302-311; c.mtroUod by par- ties, 340-341 : control over procedure of federal courts, ;«2-3fi6 : control over territorie.*. 374-37.''-. Constitution, an r.u;',- V Jiulicial Reciew. 362 n. Cotton, J. P., Jr., ed., C ... iHomU Decisions of John Afart.wu, 2b» n, 361 n. County courts, 490^-491 , 564. County, government of. in the colonies, .5.37-.539; in 1860, 640-641; what the county is, 546-,547 ; it« functions, 647-548 ; its administration, 549-660 ; financial duties. .'i50-.551 ; admlnis- traiive functions, 651-663; judicial functions, 5,5.3-554; its various offi- cials. 554-557; nee>m» .Appeals. 371. Coxc, Brinton, Jiuiieial Powfr and Vn- constittUional Lrgialaiion, .362 n. Crandall. fl. B.. Trratitt. Their Making and Enforcement . 104 n Cuoit, relation to the Vnited States. 3"-»3. Cumminaa v. Afi>i>- iiri. 289 n. Curtis, B. R., Juritiitiion. Practice an,* Peculiar JuritrnWencr :f the Courif. 345 n. Dallinger, F. W.. Ntr,.inatiotu for Ele.iive Office. 341 n. Daniels, W. M., EiemeiUs of .''nWic Finance, 460 n. i! I! ■ I ! i 040 INDEX Dartmouth College v. Woodward, 21)'.', ■■W\ n, 39/. I >:aU, Jetlenon. Rim: and Fall uj the Cuii/cdrralf iiueernmrnt 212 n. Dayton, Ohio, city-' igc>r plan in, ti:u-oa2. Uealey. J. Q., (Irowth of Anwri-an Slate Corutilntiona, 405 n. Debt, nnlional, j;«-24.'>; state. 409-472. Deoluration o( Indepv..i- 320. INDEX M7 Tauastg, F. W., Tariff Hiatory, 252 n ; I Silver Situation, 279 n. Tax Collector v. Day, 227 n. Taxation, power of, in the colonies, 7, 8; under Articles of Confederation, 15-16, 20-21 ; under the Constitu- tion, by Congress, 219-232 ; by states, 461-464 ; by counties, 650-5.11 ; in cities, 597-598. Taxes, definition, 219-220; essentials, 220; classification, 220-221; limita- tions on levy by Congress, 221-227; direct, 224-225; income, 225-226, 464 ; corporation, 226, 264 ; war, 228- 229; collection of, 231-232; general property, 461 ; classification of prop- erty for, 461-462; on intangible property, 462; assessment for, 463; inheritance, 463^64 ; poll, 464. Territories, government of, 136, 137, 372-388. Texas v. White, 366. Thayer, J. B., Cases in Comtitutioruil Law, 62 n ; John Marshall, 362 n ; American Doctrine of Conatittitional Law, 362. Thompson, C. S., Rise and FaU of the Congressional Caucus, 333 n. Thorpe, F. N., Federal and State Con- stitutions, 405 n. Tiedeman, C. G., Unieritten Constitution, 64 n. Tocqueville, Alexis do, Democracy in America, 158-159 n. Towns, government of, in the colonies, 536-537 ; relation to state govern- ment, 560-561 ; in New England, 561-567; town meeting. 562-564; selectmen and officials, 564-566; criticism oi, 566-567; in north and central states, 567-569; in South, 569-570; in Far West, 570-571. Treason, 289-291. Treasury, federal Department of, 133- 135; relation to estimates in appro- priations, 303. Treaties, power over, of President, 111- 112; of Senate, 164-167; of House of Representatives, 167 ; and secret diplomacy, 167-168. Tucker, J. R., Conatituiwn of the United States, 44 n. Twining v. New Jersey, '. 91. Unconstitutionality, of I iw^ federal, 59, 362-364 ; state, 498-499. United States, "Report on Citizenship of the United States," 74 n; Tenure of Office Act, 109 n ; National Bank- ing Act of 1913, 238-239; Federal Reserve Act, 240; National Defence Act of 1916, 267 n, 274 n; Manual for Courts-Martial, 271 n; Report of the President's Commission on Eeortomy arid Efficiency, 309 n ; Judiciary Act i,t 1789, 343, 369, 493 n ; Foraker Act, 378; Philippine Civil Government Act, 380; Comparative Financial Statistics of Cities under Courtcil and Commission Government, 626 n. United States v. Knight, 249 n, 260 n. Van Dyne, F., Citizenship of the United States, 74 n Veatie Bank v. Fenno, 224 n. Veto power, of colonial governors, 7 ; of President, 115-119; frequency of use by, 117-118; pocket, 118-119, io states, 436-437 ; merits and defects of, 119; limitations on, 12C-121 ; of state governors, 435-438 ; of mayors, 590-591. Vice-President, election o., 89-96; suc- cession to presidency, 103-104 ; pur- pose of office, 104 ; qualifications for, 104; in the Senate, 152-153; in impeachments, 172 ; nomination of candidates for, 334. Virgin Islands, 138, 383. War, federal Department of, 135-136. War, powers in relation to, under the Confederation, 22-23; exercised by the President, 121-122 ; of Congress, 265-276 ; of state governors, 442. Washington, city of. See District of Columbia. WashinKton, George, on defects of the Confe.^ HO-82. Worcester, D. C, The Philippines, 383 n. Workmei/j compensation laws, in states, 451-452. I Yick Wo V. Hopkins, 400. Friowd in the Unitwl SutM of AoMriM. 6l. in. tea. 'T^HE following pages contain advertisements of books by the same author or on kindred subjects. BY THE SAME AUTHOR The Government of American Cilie' Ntu> ami Ktvittd Edition, Svt, $fM> In an age when men appear far too ready to proceed with a diagnosis and to prescribe remedies without much preliminary study of the anatomy and the physiology of city government, too much stress upon the importance of the latter branches of the subject can scarcely be laid. At any rate we have heard so much in recent years concern- ing what the government of American cities ought to be that an apology is hardly necessary for the emphasis which this volume places upon what their government really is. The book deals with government rather than with ad- ministration, with the framework rather than with the functioning mechanism of the municipal organization. The author discusses in his later chapters those phases of city government which at the present moment are arous- ing the liveliest interest among all good citlzeris, with the desire and expectation that the resulting criticisms, both favorable and unfavorable, of his views will result in awak- ening those citizens who earnestly desire civic betterment to a realization of the necessity for a well-organized con- centration of effort, backed by a serious study of the prin- ciples of municipal government. "The Government of American Cities" provides an introduction to the study of a very large and important subject. For use in a college course in municipal govern- ment, " Principles and Methods of Municipal Administra- tion " is an excellent b>. jk for supplementary reading, as is also "The Government of European Cities," by the same author. 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"A sound contribution to the study of local government." — Local Government Review (London) . THE MACMILLAN COMPANY PuUiahen 64-66 Fifth Atsbu* Vmr York State Government in the United States By ARTHUR N. HOLCOMBE Associate Professor of Government in Harvard University iqSpp., Svo, U-'S This book is designed to furnish a critical analysis of the principles of state government in the United States. Beginning with a statement of the principles upon which the governments of the original states were established, it explains how the original forms of gov- ernment have developed in response to changing condi- tions, how the present state governments are meeting present needs, and concludes with a brief consideration of some of the contemporary plans for further reform. Why should we change our form of government? Has the time come for discarding the eighteenth century doctrine of the division of powers.' 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