i the i READINGS IN CIVIL GOVERNMENT READINGS IN CIVIL GOVERNMENT BY PERCY LEWIS KAYE, Ph.D. HEAD OP THE DEPARTMENT OP HISTORY IN THE BALTIMORE CITY COLLEGE NEW YORK THE CENTURY CO. 1917 A\ Copyright, 1910, by THE CENTURY Co. Published, September, 1910 READINGS IN CIVIL GOVERNMENT CONTENTS AND LIST OF CITATIONS PART I THE SPIRIT OF AMERICAN GOVERNMENT CHAPTER I THE PRINCIPLES OF GOVERNMENT IN GENERAL PAGE 1. Definitions: State, Government, Nation 3 Leacock, Stephen, Elements of Political Science, 12 sq., 52 sq. 2. Constitutional Government 9 Wilson, Woodrow, Constitutional Government in the United States, 1 sq. 3. The Meaning of Self-Government .15 Abbott, Lyman, The Outlook, LXII, 147 sq., 196 sq. (1899). 4. How the Capacity for Self-Government is Acquired .... 19 Same as above, No. 2, 51 sq. 5. The Origin of Representative Government 21 Commons, J. R., Proportional Representation, 11 sq. 6. The People vs. The' Representative 26 Bryan, W. J., Hughes, Charles E., Hart, M. K., The Outlook, LXXXVII, 730 sq. (1907). CHAPTER II FORMATION OF THE FEDERAL CONSTITUTION 7. The Articles of Confederation 31 8. Defects in the Articles of Confederation 39 (a) Amendments Proposed in 1781, Bancroft, History of the Constitution, I, 287. (b) The Five Per Cent Scheme, Elliot's Debates, I. 93. (c) Rhode Island's Objections to the Five Per Cent Scheme, Ibid., 100. v 424824 vi CONTENTS PAGE (d) Hamilton's Reply to Rhode Island's Objections, Ibid., 106. (e) Commerce and Navigation under the Confederation, Ibid., 107. 9. The Ratification of the Constitution 44 Landon, Judson, The Constitutional History of The United States, 89 sq. CHAPTER III DEVELOPMENT OF THE CONSTITUTION 10. Written and Unwritten Constitutions 51 Bryce, James, Studies in History and Jurisprudence, 187 sq. 11. The Doctrine of Implied Powers 55 McCulloh vs. Maryland, 4 Wheaton, 406 sq. (1819). 12. The Interpretation of Rigid Constitutions 61 Same as above, No. 10, 193 sq. 13. The Present Meaning of the Constitution: The Strict View . 0.5 Rogers, H. W., North American Review, CLXXXVIII, 320 sq. (1908). 14. The Present Meaning of the Constitution : The Liberal View . 69 Amidon, C. F., Proceedings of the American Bar Associa- tion, 1907, 465 sq. CHAPTER IV RELATIONS BETWEEN STATE AND FEDERAL GOVERNMENTS 15. New Fields for Federal Legislation 74 The Nation, LXXXII, 131 (1906). 16. The Constitution and the New Federalism 76 Same as above, No. 13, 321 sq. 17. State vs. Federal Control 82 Same as above, No. 14, 473 sq. 18. The States and the Federal Government 89 Same as above, No. 2, 177 sq. 19. The Extradition of Fugitives from Justice Between the States 92 Wise, J. S., Citizenship, 174 sq. CONTENTS vii CHAPTER V THE RIGHTS AND IMMUNITIES OF CITIZENSHIP PAGE 20. Citizenship in the United States 95 Scruggs, W. L., North American Review, CLXXVII, 840 (1903). 21. The Rights and Immunities of Citizenship 97 Wise, J. S., Citizenship, 98 sq. 22. The Rights of Citizenship under the Fourteenth and Fifteenth Amendments 100 Civil Rights Cases, 109 U. S., 3; The Slaughter House Cases, 16 Wallace, 36. 23. The Writ of Habeas Corpus 105 Crawford, C. C., American Law Review, XLII, 481 sq. (1908). CHAPTER VI POLITICAL RIGHTS AND DUTIES 24. The Nature and Extension of the Suffrage Ill Willoughby, W. W., The Nature of the State, 410 sq. 25. The Effect of the Fourteenth and Fifteenth Amendments on the Suffrage 113 Same as above, No. 20, 215 sq. 26. The Position of the Federal Courts with Reference to the Right of Suffrage 116 Same as above, No. 21, 215 sq. 27. The Education of Voters 118 Haynes, Geo. H., Political Science Quarterly, XX, 486 sq. (1907). 28. The Responsibility of Citizenship 126 Folk, J. W., Vanderbilt University Quarterly, V, 155 sq. (1905). PART II THE FORM OF AMERICAN GOVERNMENT CHAPTER VII THE HOUSE OP REPRESENTATIVES 29. The Speaker of the House of Representatives 129 Hinds, A. C., American Political Science Review, III, 155 sq. (1909). viii CONTENTS PAQB 30. The Rules of the House 136 Dalzell, John, Independent, LXIV, 577 sq. ( 1908 ) . 31. The Public and the Congressional Committee 145 McConachie, L. G., Congressional Committees, 59 sq. 32. An Apportionment Bill 148 Statutes at Large of the United States, XXXI, 733. 33. The House of Representatives and the House of Commons . . 149 Herbert, H. A., North American Review, CLVIII, 260 aq. (1894). CHAPTER VIII THE SENATE 34. Popular Election of Senators: (a) Haynes, G. H., The Election of Senators, 259 sq. . .156 (b) The Seventeenth Amendment 161 35. The Committees of the Senate 162 Avery, B., Yale Law Journal, X, 244 sq. (1900). 36. The Freedom of Debate in the Senate 167 Reinsch, Paul, American Legislatures, 113 sq. 37. The Usurped Powers of the Senate 170 Low, A. M., American Political Science Review, I, 2 sq. (1907). 38. A Defense of the Senate 177 Lodge, H. C., Scribners Magazine, XXXIV, 546 sq. (1903). CHAPTER IX THE PRESIDENCY 39. Defects in the Electoral System 184 Dougherty, J. H., The Electoral System, 250 sq. 40. Parliamentary vs. Presidential Government 192 Woodburn, J. A., The American Republic, 94 sq. 41. Executive Supremacy 193 Young, J. T., Proceedings of the American Political Science Association, I, 47 sq. ( 1904 ) . 42. The Powers of the President 202 Fairlie, J. A., National Administration of the United States, 9 sq. CONTENTS ix CHAPTER X THE EXECUTIVE DEPARTMENTS PAGE 43. The Cabinet 211 Same as above, No. 42, 54 sq. 44. Cabinet and Congress in Washington's Administration . . .218 Hinsdale, M. L., Same as above, No. 41, II, 126 sq. (1905). 45. Departmental Dealings with Congressional Committees . . . 223 Same as above, No. 31, 221 sq. 46. Should Members of the Cabinet have Seats in Congress . . .226 Bradford, Gamaliel, Annals of the American Academy of Social and Political Science, 1893, II, 406 sq. 47. Civil Service Reform 232 Same as above, No. 42, 252 sq. 48. Recent Progress in the Merit System 238 Twenty-fifth Annual Report of the United States Civil Service Commission, 1 sq. ( 1908 ) . CHAPTER XI THE FEDERAL JUDICIARY 49. Tenure of Office in the Federal Courts 243 Hamilton, Alexander, The Federalist, No. 7&. 50. The Character of the Good Judge 247 Choate, Rufus, Works, II, 286 sq. 51. The Power of the Courts to Declare Laws Unconstitutional . 250 Marburg vs. Madison, I Cranch, 137 sq. (1803). 52. The Process and Effect of Declaring Legislative Acts Uncon- stitutional 255 McClain, Emlin, Constitutional Law m the United States, 19 sq. CHAPTER XII STATE ADMINISTRATION 53. The Development of State Constitutions 261 Bryce, James, American Commonwealth, I, 451 sq. 54. Recent Tendencies in State Government 265 Dodd, W. F., same as above, No. 41, V, 149 sq. (1908). 55. The State Governor 271 Same as above, No. 53, 531 sq. 56. Public Service Commissions 275 Osborne, T. M., Atlantic Monthly, CI, 547 sq. (1908). x CONTENTS CHAPTER XIII STATE LEGISLATION PAGS 57. The Defects of State Legislation 282 Reinsch, Paul, American Legislatures, 299 sq. 58. The Problems of Intelligent Legislation 288 Freund, Ernst, same as above, No. 41, IV, 69 sq. (1907). 59. The Initiative and Referendum 295 (a) Recent Development 295 Dodd, W. F., same as above, No. 54. (b) The Oregon Amendment 296 (c) Initiative and Referendum in Oregon 298 U'Ren, W. S., same as above, No. 41, 193 sq. 60. Primary vs. Representative Government 303 Garner, J. W., Proceedings of the American Political Science Association, IV, 164 sq. ( 1907) . CHAPTER XIV THE STATE JUDICIARY 61. Election and Tenure of State Judges 311 Baldwin, S. E., The American Judiciary, 313 sq. 62. Jury Trial 316 McClain, Emlin, Constitutional Law in the United States, 334 sq. 63. Problems of Trial by Jury 320 Babb, J. E., same as above, No. 60, 241 sq. (1907). 64. The Jury in Civil Cases 325 Braxton, A. C., American Law Review, XXXVIII, 224 sq. 65. Criminal Procedure in the United States 328 Garner, J. W., North American Review, CXCI, 50 sq. (1910). CHAPTER XV MUNICIPAL GOVERNMENT 66. Home Rule for Cities 330 Oberholtzer, E. P., International Quarterly, VI, 399 sq. (1902). 67. Results of Home Rule 344 Maltbie, M. R., Yale Review, XIII, 462 sq. (1905). CONTENTS xi PAQB 68. Council Government vs. Mayor Government 349 Durand, E. D., Political Science Quarterly, XV, 426 sq. (1900). 69. The Des Moines Plan of City Government 356 Acts of the General Assembly of Iowa, 1907. 70. The City Manager Plan 361 James, Herman G., American Political Science Review, VIII, 602 sq. (1914). CHAPTER XVI PARTY ORGANIZATION 71. National and Local Party Organization 369 Wilson, Woodrow, Constitutional Government in the United States, 208 sq. 72. What the Party Machine Has to do 373 Bryce, James, American Commonwealth, II, 90 sq. 73. Some Disputed Points in Primary Election Legislation . . . 378 Merriam, C. E., same as above, No. 60, 179 sq. (1907). 74. The Short Ballot 384 Childs, R. S. The Outlook, XCII, 635 sq. (1909). PART III THE FUNCTIONS OF GOVERNMENT CHAPTER XVII INDIVIDUAL FREEDOM AND LAW 75. Personal Liberty vs. Governmental Authority 392 Mill, J. S., Essay on Liberty, 9 sq. 76. The Non-Essential Functions of Government 397 Willoughby, W. W., The Nature of the State, 337 sq. 77. Governmental Enterprise in the Non-Essentials 402 Martin, John, The World's Work, XVI, 10651 sq. CHAPTER XVIII PROBLEMS OF TAXATION 78. Defects in the General Property Tax 411 Seligman, E. R., Political Science Quarterly, V, 25 sq. (1890.) xii CONTENTS 79. The Taxation of Securities 419 Taussig, F. W., same as above, No. 78, XIV, 103 sq. (1899). 80. The Corporation Tax 428 Same as above, No. 78, 449 sq. 81. The Income Tax Amendment to the Federal Constitution . . 434 Statutes at Large, Sixty-first Congress, First Session, 185 (1909). CHAPTER XIX GOVERNMENT FINANCE 82. Congressional Finance 435 Bryce, James, American Commonwealth, I, 175 sq. 83. The Underwood Tariff, 1913 441 Statutes at Large. 84. Collection of the Revenue 448 Dewey, D. R., Financial History of the United States, 488 sq. 85. Municipal Finance Administration 452 Fairlie, J. A., Municipal Administration, 359 sq. 86. Municipal Franchises 456 Wilcox, D. F., The American City, 352 sq. CHAPTER XX CURRENCY AND BANKING 87. The Relation of the United States Treasury to General Finance 464 Gage, L. J., North American Review, CLXXXVII, 161 sq. (1908). 38. The National Banks and the Panic of 1907 469 Ridgley, W. B., same as above, No. 87, 168 sq. 89. The Federal Reserve Bank System 475 Agger, E. E., Political Science Quarterly, XXIX, 265 sq. (1914). CHAPTER XXI THE REGULATION OF COMMERCE 90. The Power of Congress to Control Inter-State Commerce . . 483 Wise, J. S., Citizenship, 154 sq. CONTENTS xiii PAGE 91. The Hepburn Interstate Commerce Act of 1906 486 Statutes at Large, XXXIV, 584 sq. 92. The Sherman Anti-Trust Act of 1890 490 Statutes at Large, XXVI, 209. 93. Federal Control of Trusts 492 Williams, Talcott, Annals of the American Academy of Political and Social Science, XXXII, 240 sq. 94. The Anti-Trust Acts of 1914 .... 497 Seager, Henry R., Political Science Quarterly, XXX, 448 sq. CHAPTER XXII ELECTIONS 95. The City the Battle Ground of Democracy 503 Deming, H. E., The Government of American Cities, 192 sq. 96. Reform of Election Laws 506 Merriam, C. E., Primary Elections, 167 sq. 97. The Connecticut Corrupt Practices Act 513 Acts of the Sta-te of Connecticut, January, 1909, Chapter 253. 98. Repression of Political Corruption 518 McGovern, F. E., Proceedings of the American Political Science Association, IV, 266 sq. (1907). 99. The Recall 526 Los Angeles City Charter, Section 198c. PREFACE In preparing this Book of Readings it has been my endeavor to include only such material as would be suitable for the use of secondary students. For this reason documents have been almost entirely avoided. The purpose of the book is to place within the reach of teacher and student selections which will serve as the basis for class-room discussions of important questions in government and so to arouse on the part of the student of civil government a greater interest in the inde- pendent reading and study of current civic and political top- ics. Standard political and scientific journals have been drawn upon largely and it is to this class of literature espe- cially that the attention of the young student should be di- rected, for it affords abundant and attractive material for the popular study of the more pressing governmental prob- lems of the day. Most of the selections have been cut freely so as to avoid technical and unessential details and reduce them to a convenient length. In the arrangement of the selections I have followed, in the main, the plan of Forman's Advanced Civics. But, although the book is intended pri- marily as a supplement to that text, the selections are each preceded by an introductory remark so that they can be read separately and, I trust, used profitably with other texts. I desire to make public acknowledgment of my indebtedness xv xvi PREFACE to the several gentlemen who have assisted me in the work of preparing the Readings. With Dr. S. E. Forman I have been in frequent communication and his comments have been uni- formly suggestive and helpful. Dr. W. W. Willoughby of the Johns Hopkins University has materially assisted me in lo- cating appropriate material on many subjects. The list of selections was examined and criticised by Mr. E. E. Hill, Chicago Normal School, Chicago, Illinois; Mr. H. W. Ed- wards, Berkeley High School, Berkeley, California; Mr. Rex W. Wells, East High School, Toledo, Ohio, and Dr. Wm. G. Wetzel, Principal of High School, Trenton, New Jersey. The manuscript was read by Dr. James Sullivan, Principal of the Boys' High School, Brooklyn, N. Y. I must also here acknowledge my appreciation of the kind- ness of the several publishers and authors who have generously consented to the use of these extracts and articles. PERCY L. KAYE. Blue Ridge Summit, Pa. August 1st, 1910. HEADINGS IN CIVIL GOVERNMENT READINGS IN CIVIL GOVERNMENT PART I THE SPIRIT OF AMERICAN GOVERNMENT CHAPTER I THE PRINCIPLES OF GOVERNMENT IN GENERAL 1. DEFINITIONS: STATE, GOVERNMENT, NATION. In the study of civil government the terms state, government, and nation will constantly recur. Therefore, it should prove useful to obtain at the outset as clear and definite a conception of the exact meaning of these terms as is possible. Professor Stephen Leacock in his Elements of Political Science makes a good, accurate state- ment of the sense in which these words are used by writers on this subject : * Political science 2 then, deals with the state; it is, in short, as it is often termed, the ''theory of the state." The word "state" is sufficiently familiar to have been used in the preceding discussion without explanation. It is now nec- essary to make a nearer analysis of the exact meaning to be attached to the term. An examination of the ordinary senses in which the word is used shows at once a considerable latitude in its employment. Thus when we speak of the different "states" of Christendom, or refer to France, Germany, etc., as the leading states of Europe, the word seems roughly to i Reprinted by special permission of Houghton, Mifflin and Company. 3 4 READINGS IN CIVIL GOVERNMENT correspond with such terms as country, international power, etc. When, on the other hand, we talk of the relations exist- ing between the * * church and the state, ' ' we have no reference to international affairs; the idea implied is rather that of association or organization. Again, in such uses as "The State and the Individual," or in the title of one of Herbert Spencer's books, "The Man versus the State," the word is plainly used to imply a contrast between the individual citi- zen and the collective aspect of the community. Finally, in such phrases as "state aid to the poor," "state control of railroads," etc., what is thought of is not so much the com- munity collectively as the special machinery or organized agency through which the community acts. Out of the different elements here embodied we may con- struct an exact conception of what is meant by the state in the technical language of political science. It embodies as the factors of which it is composed : I. A territory. II. A population. III. Unity. IV. Organization. Let us briefly examine these in turn. Without a definite territory there can be no state. The Jews, being scattered abroad and dissociated from the occupation and control of any particular territory, do not constitute a state. Professor Holland in the definition given in his * ' Elements of Jurispru- dence, " speaks of a "numerous assemblage of human beings generally occupying a certain territory." But it seems ad- visable to insist on the idea of land teing necessary. Equally necessary is a population. It goes without saying that an un- inhabited portion of the earth, taken in itself, cannot form a state. The third requisite is said to be unity. By this is meant that the territory and population in question must form no part of a wider political unit ; nor must the territory contain any portion or portions which while forming geo- graphically a part of it, are not a part of it politically. The island of Haiti is a geographical unit, but being divided into THE PRINCIPLES OF GOVERNMENT 5 the separate republics of Haiti and Santo Domingo, does not present the unity required to constitute a state. In the same way the separate " states " of the American Union are not states in the technical sense of the term, since each forms part of the single political entirety known as the United States. The United States as a totality constitutes a state; the "state" of Massachusetts does not. The final requisite, that of organi- zation, is one that must be carefully noted. Even granting that we have a territory and population disconnected from the rest of the world, and thus in a sense a unit, we have not yet a state. Imagine, for example, that a " numerous assem- blage of human beings," to use Professor Holland's phrase, were deposited upon some uninhabited island not owned or controlled by any existing government. Here we should have land and population in unity, but the inhabitants, having as yet no cohesion or connection, would not form a state. Im- agine, however, that these inhabitants, being persons, we may suppose, accustomed to live under a settled government, should agree to form themselves into an organized body and to vest the control of all of them in the hands of certain among their number. "We should then have a state. Or let us imagine a very different state of affairs. Suppose that a certain number of the inhabitants were enabled by their su- perior physical force or cunning to reduce the others to a con- dition of submission, so that settled relations of control and obedience were established. In this case too there would be a state. For the organization needed to constitute a state need not be one established by mutual consent or one of an equitable nature. The mere existence of settled obedience to a superior, coercive force is all that is required. Any form of despotism or tyranny which fulfills these conditions establishes a political state just as much as does a government whose authority rests on a general acquiescence. . . . Having considered the general idea of the state as an or- ganized community occupying a definite territory, it is next necessary to make a further analysis of the organization it- self. This will involve the discussion of the relations exist- 6 READINGS IN CIVIL GOVERNMENT ing between the individual citizen and the state as a whole. The two central points around which the discussion of the present and the succeeding chapter will turn, are those of the sovereignty of the state, and the liberty of the individual. These two ideas, which appear at first sight to be mutually contradictory, will be shown to be not only reconcilable, but complementary and correlative to one another. The question of the sovereignty of the state has long been a vexed topic of political discussion, and one that has given rise to the most serious difficulties and misunderstand- ings. The proposition that the state is absolutely sovereign over the individual has proved itself a stumbling-block and a rock of offense to the student of political history. Take, for example, the enunciation of the principle of sovereignty given by Professor Burgess. "I understand by it," he says, ''the original, absolute, unlimited, universal power over the individual subject and all associations of subjects." This is a hard saying and one calculated to call forth at first sight a most emphatic contradiction. It seems to sanction the tyranny of the state, and to involve the sacrifice of individual rights. A nearer analysis of the proper meaning to be at- tached to the sovereignty of the state ought to rob it of all offensive connotation. What is meant is simply this. The state is an organized community. It comes into existence when the relations of control over and obedience from the individual person are established. This obedience may or may not receive the approval of the individual rendering it. The fact of obedience is all that is needed in order that the state may be said to exist. Somewhere within the state there will exist a certain person or body of persons whose com- mands receive obedience. The commands may be just or un- just, morally speaking, and the persons in power may be put in a position to issue them, either by general consent or by the use of physical force. But in either case they are able to make their commands good by actual coercion. Unless there is such a body there is no state. The commands thus given are called laws. A law, then, is a command issued by the THE PRINCIPLES OF GOVERNMENT 7 state. Can there, then, be any limit, any legal limit, to the sovereignty, or legal supremacy, of the state ? Obviously not, for such a limit would imply a contradiction in terms. A legal limit must mean a limit imposed by a lawgiving au- thority. Now the lawgiving authority is the sovereign power of the state, and any limits it might put on its own power would be removed as soon as it saw fit to remove them. The lawgiving power of the lawgiving body is therefore of neces- sity unlimited. The state, in other words, is legally sovereign. Looked at in this light the matter simply resolves itself into an equation in terms. . . . The meaning to be attached to the word state will be ren- dered more precise by distinguishing it from society, govern- ment, and nation. The term society has no reference to ter- ritorial occupation ; it refers to man alone and not to his en- vironment. But in dealing with man its significance is much wider than that of state. It applies to all human communi- ties, whether organized or unorganized. It suggests not only the political relations by which men are bound together, but the whole range of human relations and collective activities. The study of society involves the study of man's religion, of domestic institutions, industrial activities, education, crime, etc. The term government, on the other hand, is narrower than state. It refers to the person or group of persons (which in a modern community will be very numerous) in whose hands the organization of the state places for the time being the function of political control. The word is sometimes used to indicate the persons themselves, sometimes abstractly to indicate the kind and composition of the controlling group. The ordinary citizens of a community are a part of the state, but are not part of the government. The term has moreover no reference to territory. . . . In the next place it is to be observed that nation and state are two distinct conceptions. The term nation, though often loosely used, is properly to be thought of as having a racial or ethnographical significance. It indicates a body of people the Germans, the French, the Hungarians, etc. united by 8 READINGS IN CIVIL GOVERNMENT common descent and a common language. But such divisions by no means coincide with the political divisions of the civil- ized world into states. Austria-Hungary constitutes a single state, but its population is made up of members of a great many different races. The political division of the civilized world into states freely intersects with the division into races, although sometimes the political units as in the case of mod- ern France are almost coincident with the ethnographic. The relation between political organization and nationality has been a changing one. In the classical world, in the city states of ancient Greece and Italy, kinship among the citizens was considered an elemental factor in the composition of the state. In ancient Athens and Sparta persons of alien race were not considered as members of the political community. Hence in the political thought of classical Greece the concep- tion of the state is limited to a small area occupied by persons of the same race. In the Roman world, the original concep- tion of a city state with a common nationality was trans- formed by the process of absorption and conquest into the larger conception of a world-wide state and universal sov- ereignty. Nationality is here lost from sight. The foreign nations occupying the subjugated provinces were recognized by the virtue of the Emperor Caracalla's act of general in- franchisement (A. D. 212) as citizens of the universal em- pire. Such a conception, as will be seen in a later chapter, long survived as the basis of European polity, though existing only in the shadowy form of the titular Holy Roman Empire. In actual fact, however, it was displaced by other political conceptions. Feudalism brought with it the notion of terri- torial sovereignty and dynastic supremacy. A state became coincident with the domain owned, if one may use the term, by a particular house and its descendants, and quite irrespec- tive of the nationalities of the subject peoples. States were formed out of communities of varying nationalities by inher- itance, by cession, by marriage of their sovereigns. Witness for example the sovereignty of Henry II over Anjou, Aqui- taine, etc. ; the claim of Edward III to the crown of France j THE PRINCIPLES OF GOVERNMENT 9 and at a later date, the empire of Charles V, who inherited Burgundy, Spain, part of Italy, and various Austrian terri- tories. To a large extent this political fusion has fortunately been accompanied by a fusion of languages, as in the amalga- mation of modern France. It was in the nineteenth century that the claim of nation- ality as the paramount basis of state organization strongly asserted itself. The great political upheaval consequent upon the American and French revolutions led to an intense na- tional movement in most parts of Europe. Under its influ- ence modern Italy has been converted (1815-1870) into a national state. Germany has assumed a definite national form in the modern German Empire (1871), whose boun- daries, however, are not identical with those occupied by the German people. In other countries Hungary, Ireland the same movement has been seen in abortive form, while the modern aspirations of Pan-Slavism, Pan-Germanism, and "unredeemed" Italy foreshadow the part that nationality is to play in the organization of the states of the future. Com- mon nationality is, therefore, though not an actual requisite in the composition of the state as it now exists, a potent factor in its formation. 2. CONSTITUTIONAL GOVERNMENT. One of the most characteristic features of modern states as dis- tinguished from the ancient is that which is implied by the term constitutional. We are constantly talking about constitutional his- tory, constitutional law and constitutional amendments, but what in essence is constitutional government 1 ? President Wilson in the following selection answers this question : By a constitutional government we, of course, do not mean merely a government conducted according to the provisions of a definite constitution; for every modern government with which our thoughts deal at all has a definite constitution, written or unwritten, and we should not dream of speaking of all modern governments as "consti- tutional." Not even when their constitutions are written 10 READINGS IN CIVIL GOVERNMENT with the utmost definiteness of formulation. The constitution of England, the most famous of constitutional governments and in a sense the mother of them all, is not written, and the constitution of Russia might be without changing the essen- tial character of the Czar's power. A constitutional govern- ment is one whose powers have been adapted to the interests of its people and to the maintenance of individual liberty. That, in brief, is the conception we constantly make use of, but seldom analyze, when we speak of constitutional govern- ments. Roughly speaking, constitutional government may be said to have had its rise at Runnymede, when the barons of England exacted Magna Carta of John; and that famous transaction we may take as the dramatic embodiment alike of the theory and of the practice we seek. The barons met John at Run- nymede, a body of armed men in counsel, for a parley which, should it not end as they wished it to end, was to be but a prelude to rebellion. They were not demanding new laws or better, but a righteous and consistent administration of laws they regarded as already established, their immemorial birthright as Englishmen. They had found John whimsical, arbitrary, untrustworthy, never to be counted on to follow any fixed precedent or limit himself by any common under- standing, a lying master who respected no man's rights and thought only of having his own will ; and they came to have a final reckoning with him. And so they thrust Magna Carta under his hand to be signed a document of definition, which spoke of rights which had been disregarded and which must henceforth be respected, of practices until now indulged in which must be given over and remedied altogether, of ancient methods too long abandoned to which the king must return; and their proposal was this : ' ' Give us your solemn promise as monarch that this document shall be your guide and rule in all your dealings with us, attest that promise by your sign manual attached in solemn form, admit certain of our number a committee to observe the keeping of the covenant, and we are your subjects in all peaceful form and obedience; re- THE PRINCIPLES OF GOVERNMENT 11 fuse, and we are your enemies, absolved of our allegiance and free to choose a king who will rule us as he should. ' ' Swords made uneasy stir in their scabbards, and John had no choice but to sign. These were the only terms upon which govern- ment could be conducted among Englishmen. This was the beginning of constitutional government, and shows the nature of that government in its simplest form. There at Runnymede a people came to an understanding with its governors, and established once for all that ideal of gov- ernment which we now call "constitutional" the ideal of a government conducted upon the basis of a definite under- standing, if need be of a formal pact, between those who are to submit to it and those who are to conduct it, with a view to making government an instrument of the general welfare rather than an arbitrary, self-willed master, doing what it pleases and particularly for the purpose of safeguarding in- dividual liberty. The immortal service of Magna Carta was its formulation of the liberties of the individual in their adjustment to the law. . . . And so the instrumentalities through which individuals are afforded protection against the injustice or the unwarranted exactions of government are central to the whole structure of a constitutional system. From the very outset in modern constitutional history until now it has invariably been recog- nized as one of the essentials of constitutional government that the individual should be provided with some tribunal to which he could resort with the confident expectation that he should find justice there not only justice as against other individuals who had disregarded his rights or sought to dis- regard them, but also justice against the government itself, a perfect protection against all violations of law. Constitu- tional government is par excellence a government of law. I am not repeating the famous sentence of the Massachu- setts Bill of Rights, "to the end that this may be a govern- ment of laws and not of men." There never was such a government. Constitute them how you will, governments are 12 READINGS IN CIVIL GOVERNMENT always governments of men, and no part of any government is better than the men to whom that part is intrusted. The gauge of excellence is not the law under which officers act, but the conscience and intelligence with which they apply it, if they apply it at all. And the courts do not escape the rule. So far as the individual is concerned, a constitutional government is as good as its courts ; no better, no worse. Its laws are only its professions. It keeps its promises, or does not keep them, in its courts. For the individual, therefore, who stands at the centre of every definition of liberty, the struggle for constitutional government is a struggle for good laws, indeed, but also for intelligent, independent, and im- partial courts. Not only is it necessary that the people should be spoken for in the conduct of the government by an assem- bly truly representative of them; that only such laws should be made or should be suffered to remain in force as effect the best regulation of the national life, and that the adminis- tration should be subject to the laws. It is also necessary that there should be a judiciary endowed with substantial and in- dependent powers and secure against all corrupting or per- verting influences; secure, also, against the arbitrary author- ity of the administrative heads of the government. Indeed, there is a sense in which it may be said that the whole efficacy and reality of constitutional government re- sides in its courts. Our definition of liberty is that it is the best practicable adjustment between the powers of the government and the privileges of the individual; and lib- erty is the object of constitutional government. The ulti- mate and characteristic object of a constitutional system is not to effect the best possible adjustment between the govern- ment and the community, but the best passible adjustment between the government and the individual ; for liberty is in- dividual, not communal. Throughout English history, throughout all the processes which have given us constitu- tional government as the modern world knows it, those who strove to restrain or to moralize government have perceived that the whole reality of the change must find its expression THE PRINCIPLES OF GOVERNMENT 13 in the opportunity of the individual to resort for the vindi- cation of his rights to a tribunal which was neither govern- ment nor community, but an umpire and judge between them, or rather between government and the man himself, claiming rights to which he was entitled under the general under- standing. Nothing in connection with the development of constitu- tional government is more remarkable, nothing commends itself more to the understanding of those who perceive the real bases of human dignity and capacity, than the way in which it has exalted the individual, and not only exalted him, but at the same time thrown him upon his own resources, as if it honored him enough to release him from leading strings and trust him to see and seek his own rights. The theory of English and American law is that no man must look to have the government take care of him, but that every man must take care of himself, the government providing the means and making them as excellent as may be, in order that there may be no breach of the peace and that everything may be done, so far as possible, with decency and in order, but never itself taking the initiative, never of its own motion in- tervening, only standing ready to help when called on. Such an attitude pre-supposes both intelligence and independence of spirit on the part of the individual; such a system elicits intelligence and creates independence of spirit. The indi- vidual must seek his court and must know his remedy, and under such a compulsion he will undertake to do both. The stimulation of such requirements is all that he needs, in ad- dition to his own impulses and desires, to give him the at- titude and habit of a free man ; and the government set over such men must look to see that it have authority for every act it ventures upon. It further emphasizes this view and purpose of our law, that no peculiar dignity or sanctity attaches amongst us to any officer of government. The theory of our law is that an officer is an officer only so long as he acts within his powers; that when he transcends his authority he ceases to be an offi- 14 READINGS IN CIVIL GOVERNMENT cer and is only a private individual, subject to be sued and punished for his offense. An officer who makes a false arrest without warrant is liable to civil suit for damages and to criminal prosecution for assault. He has stepped out of the ranks of public officers, represents nobody but himself, and is merely committing a private wrong. That is the explicit principle of American law not only, but of English law also ; the American practice is derived from the English. It is a logical, matter-of-course inference of the constitutional sys- tem ; representatives of government have no authority except such as they derive from the law, from the regulations agreed on between the government and those who are to be governed. Whoever disregards the limits of the law transgresses the very fundamental presumptions of the system and becomes merely a lawbreaker, enjoying no privilege or exemption. Such a principle in effect repeats the understanding of Run- nymede: "Here is this charter; sign it and observe it, and you are our king; refuse to sign it, violate or ignore it and you are not our king, but a man without kingly authority who has done us wrong, and we are your enemies and shall seek redress." It is the same understanding from the king at the top to the constable at the bottom. It remains only to note what may be called the atmosphere of constitutional government. It is the atmosphere of opin- ion. Opinion is, of course, the atmosphere of every govern- ment, whatever its forms and powers: governments are con- trasted with one another only by the degree and manner in which opinion affects them. There is nowhere any such thing as a literally absolute government. The veriest despot is a creature of circumstances, and the most important circum- stance of all, whether he is conscious of adjusting himself to it or not, is the disposition of those about him to obey him or to defy him. Certain things are definitely expected of him: there are certain privileges which he must always respect, certain expectations of caste and of rank which he must always punctiliously regard. Above all there is the great body of habit, the habitual frame of the life in which THE PRINCIPLES OP GOVERNMENT 15 his own people have been formed, which he would throw him- self against in vain. The boundaries of his authority lie where he finds the limits of his subjects' willingness or ability to obey him. They cannot obey him if he seek to force upon them rules too strange to their habit ; they will not know how, and their spirits will revolt. They will not obey him if he outrage them by too gross a violation of the understandings which they have come to regard as sacred and of the very es- sence of their life and happiness. The difference between a constitutional system and an unconstitutional is that in a constitutional system the requirements of opinion are clearly formulated and understood, while in an unconstitutional they are vague and conjectural. The unconstitutional ruler has to guess where his subjects will call a halt upon him, and ex- periment at the hazard of his throne and head ; the constitu- tional ruler definitely knows the limits which he must not transgress and is safe in his authority so long as he does not overstep them. 3. THE MEANING OP SELF-GOVERNMENT. On the fourth day of July, 1776, the Continental Congress acting in behalf of the thirteen colonies then engaged in armed resistance to the authority of England, adopted the Declaration of Independ- ence. From that day to this the United States has stood as the typical example of a self-governing community. The success of this experiment in government has been due to the fact that the people of the thirteen colonies were at the time the Declaration of Independence was made already endowed with the capacity essen- tial for self-government. The nature of this capacity is very clearly and forcibly explained by Dr. Lyman Abbott: A great deal of current discussion assumes that the Dec- laration of Independence is a declaration in favor of self-gov- ernment, and that consistency requires that a Republic initiated by such a statement of principles should recognize the right of self-government in all peoples. . . . But it so happens, as a matter of fact, that this document says noth- ing whatever about self-government. Only one clause, and 16 EEADINGS IN CIVIL GOVERNMENT that a parenthetical one the phrase "deriving their just powers from the consent of the governed" can be inter- preted to imply, even remotely, any doctrine of self-govern- ment, and this implication from this phrase is by no means a necessary one. For it is quite conceivable that a people might very gladly consent to be governed by others and re- lieved of all the responsibility of governing. What the Declaration affirms is that governments exist for the benefit of the governed; and this is very different from affirming that they must always be administered by the gov- erned. ... It declares that men have certain inalienable rights, and it does not include the right of self-government among them ; that the end of government, and, by implication, the sole end of government, is to protect these rights; that when government becomes destructive of these rights it ought to be overthrown ; that the people, when they have overthrown it, have a right to establish a new government in whatever form will insure public safety and happiness being free; and, by implication, that they may choose for that purpose a military or a civil government, an autocracy, aristocracy, oligarchy, representative democracy, or pure democracy. In fact, our fathers chose as their first form of government, not a pure democracy, but a republic in which aristocracy and representative democracy were intermingled. Negroes, In- dians and foreigners could not vote; nor native-born Amer- icans, unless they possessed some property qualification, in some of the States, or some religious qualification in others. The people were not allowed to choose their own President he was chosen for them by a representative body ; nor to make their own laws they were made for them by another repre- sentative body. It is doubtful whether even a considerable minority would have approved the referendum or the initia- tive, and it is certain that practically none would have sub- mitted judicial questions to the people at a general election or even to a mass-meeting of representative citizens, as they are submitted to the General Assembly by the constitution of the Presbyterian Church. . . . THE PRINCIPLES OF GOVERNMENT 17 There are times when self-government is palpably incon- sistent with the Declaration of Independence. Self-govern- ment in the Indian Territory created a plutocracy, which is the meanest and most despicable of all forms of govern- ment. It made the Territory a paradise for land rob- bers, and a refuge for the banditti and train-wreckers who fled thither after each succeeding tragedy to escape the processes of the courts. ... At length, in order to pro- tect the inalienable right of life, liberty, and the pursuit of happiness, it became necessary to go into that Territory, over- throw its form of self-government, and institute a new gov- ernment which would do something to secure that ' ' safety and happiness of the people " for which, according to the Declara- tion of Independence, governments are instituted among men. In Santiago the death-rate under Spanish misrule was seven hundred a week ; under General Wood 's beneficent despotism it is reduced to forty or fifty a week. That under Cuban self-government it would have taken half a century to ac- complish the sanitary reforms which General Wood has ac- complished in half a year is certain; that they would ever have been accomplished is doubtful. Which takes the prece- dence, the right to life of the six hundred and fifty killed every week before their time, or the right of the Cubans to so administer municipal government as to kill them? There is but one answer to that question. . . . In fact, self-government is not a right at all it is a capac- ity. We might as well say it is the inalienable right of every man to read or every animal to fly as to say that it is the inalienable right of every community to govern itself. It is wrong to forbid men to read; but there are men who cannot read, and if they are to learn anything they must be read to ; it is wrong to forbid men to exercise self-government, but there are men who cannot exercise self-government, and if they are not to destroy both themselves and others, they must be controlled. Self-government or self-command is, says the Century Dictionary, "that equanimity which enables one in any situation to be reasonable and prudent, and to do what 18 READINGS IN CIVIL GOVERNMENT the circumstances require. * ' If a man possess this equanimity, is reasonable and prudent, can do and does do what the cir- cumstances require, he has a right to be let alone. But if he has not this equanimity, if he is not reasonable and prudent, if he does not do what the circumstances require, he is not to be let alone ; he is to be controlled by men who possess the qualities which he lacks. Self-government is a capacity and the right to exercise a capacity depends on the possession of it. He who has no capacity to govern himself has no inalienable right to pretend to govern himself and try to govern others. But because self-government is not a right but a capacity, and a right only as the capacity is first developed, therefore self-government is the ideal form of government. For all true government consists in the control of the lower and worse elements by the higher and the better. When the lower and the worse control and the higher and better are super- seded or are in abeyance, there is no true government. A man who is under what we call the control of his appetites or passions is not exercising self-control at all; for self-control means the control of the lower self by the higher self. So a community which is under the control of its passions is not self-governed; for self-government means the government of the worse by the better. Mob law is only an euphemism for lawlessness. Certainly all good government is that in which the good controls and the evil is controlled. It is quite evi- dent, therefore, that the best government is that in which in every individual the good controls and the evil is controlled. Majority government, which a great many people seem to re- gard as identical with self-government, though it is quite dif- ferent, would make an infernal bedlam out of a lunatic asylum, for it would put the physicians and the keepers under control of the lunatics. Majority government is no government for a lunatic asylum. But, on the other hand, self-government is the end which the physicians and the keepers have constantly in view. Their aim is so to exercise their control as to develop in the lunatics intrusted to their charge the power of controlling themselves. The lunatic is under the command of one who THE PEINCIPLES OF GOVERNMENT 19 has equanimity and is reasonable and prudent, in order that, if possible, there may be imparted to him such equanimity and such measure of reason and prudence that at the earliest possible moment he can take command of himself. The luna- tic has no right of self-government until he has the capacity for self-government ; but he is governed in order that he may be endowed with that capacity. 4. HOW THE CAPACITY FOB SELF-GOVERNMENT IS ACQUIRED. Dr. Abbott has explained what constitutes the capacity for self- government. President Woodrow Wilson points out the way, and the only way, by which this capacity can be acquired: Constitutional government can exist only where there is actual community of interest and of purpose, and cannot, if it be also se/-government, express the life of any body of peo- ple that does not constitute a veritable community. Are the United States a community? In some things, yes; in most things, no. How impossible it is to generalize about the United States! If a foreign acquaintance asks you a ques- tion about America, are you not obliged before replying to say, " Which part of America do you refer to?" It would be hard to frame any single generalization which would be true to the whole United States, whether it were social, economic, or political. It is a matter of despair to describe a typical American. Types vary from region to region, and even from state to state. America abounds in the vitality of variety and can be summed up in no formula either of de- scription or of prophecy. Moreover, she is a country not merely constitutionally gov- erned, but also self-governed. To look upon her and com- prehend her is to comprehend the distinction. Self-govern- ment is the last, the consummate stage of constitutional devel- opment. Peoples which are not yet highly developed, self- conscious communities can be constitutionally governed, as England was before she had got her full character and knowl- edge of herself, under monarchs who ruled her by their own 20 READINGS IN CIVIL GOVERNMENT will, checked but not governed by her parliament; but only communities can govern themselves and dispense with every form of absolute authority. There is profound truth in Sir Henry Maine's remark that the men who colonized America and made its governments, to the admiration of the world, could never have thus masterfully taken charge of their own affairs and combined stability with liberty in the process of absolute self-government if they had not sprung of a race habituated to submit to law and authority, if their fathers had not been the subjects of kings, if the stock of which they came had not served the long apprenticeship of political child- hood during which law was law without choice of their own. Self-government is not a mere form of institutions, to be had when desired, if only proper pains be taken. It is a form of character. It follows upon the long discipline which gives a people self-possession, self-mastery, the habit of order and peace and common counsel, and a reverence for law which will not fail when they themselves become the makers of law: the steadiness and self-control of political maturity. And these things cannot be had without long discipline. The distinction is of vital concern to us in respect of prac- tical choices of policy which we must make, and make very soon. We have dependencies to deal with and must deal with them in the true spirit of our own institutions. We can give the Filipinos constitutional government, a government which they may count upon to be just, a government based upon some clear and equitable understanding, intended for their good and not for our aggrandizement ; but we must ourselves for the present supply that government. It would, it is true, be an unprecedented operation, reversing the process of Run- nymede, but America has before this shown the world en- lightened processes of politics that were without precedent. It would have been within the choice of John to summon his barons to Runnymede and of his own initiative enter into a constitutional understanding with them ; and it is within our choice to do a similar thing, at once wise and generous, in the government of the Philippine Islands. But we cannot THE PRINCIPLES OF GOVERNMENT 21 give them self-government. Self-government is not a thing that can be "given" to any people, because it is a form of character and not a form of constitution. No people can be "given" the self-control of maturity. Only a long appren- ticeship of obedience can secure them the precious possession, a thing no more to be bought than given. They cannot be presented with the character of a community, but it may confidently be hoped that they will become a community un- der the wholesome and salutary influences of just laws and a sympathetic administration; that they will after a while understand and master themselves, if in the meantime they are understood and served in good conscience by those set over them in authority. ; We of all people in the world should know these funda- mental things and should act upon them, if only to illustrate the mastery in politics which belongs to us of hereditary right. To ignore them would be not only to fail and fail mis- erably, but to fail ridiculously and belie ourselves. Having ourselves gained self-government by a definite process which can have no substitute, let us put the peoples dependent upon us in the right way to gain it also. 5. THE ORIGIN OP REPRESENTATIVE GOVERNMENT. Popular government in Ancient Greece and Rome was realized by the citizens coming together in an assembly to discuss and vote upon the measures submitted to them. At Rome this method in time broke down because of the increase in the number of citizens and the steady expansion of the territory in which they resided. Those citizens living at a distance from the city were unable to exercise their political rights because they could not go daily to the Forum to vote. It never occurred to the Roman citizen that he could exer- cise this right by sending a representative to act for him. That was an English discovery. How it was discovered and how it was trans- planted from England to America is explained by Professor J. R. Commons : The original object which produced representative assem- blies was nationalization. This is shown in the twofold as- pect of the union of local governments into a nation, and the 22 READINGS IN CIVIL GOVERNMENT coalescence of social classes in a single representative assem- bly. The English nation, from which our representative institu- tions were inherited, was formed by welding together inde- pendent local communities into a central organization, withe out destroying the local governments. Previous experiments in nationalization had resulted in the tyranny of the capital city and the slavery of the provinces. The reason is plain to every historical student, and the same forces were working to the same outcome in England. But the principle of rep- resentation, almost unknown to the ancients, was discovered ; and it permitted the unity of a nation, while preserving the freedom of the localities. The primitive idea of a law-making body was the primary assembly of all the warriors. The king and his chief advisers agreed on resolutions, and offered them to a simple yea and nay vote of the army. Every freeman had the right to ap- pear in his own person in the national assembly. After the Norman conquest this right was retained in theory, but aban- doned in practice. Gradually only the wealthy land-owners, the tenants in chief, and the higher clergy appeared. The dis- tances were too great, the expense too heavy, and their in- fluence too slight, for the small land-owners to continue at- tendance. And as for the serfs and the town merchants and artisans, they never had the right. Thus the king and his council of magnates became the sole government of England. They enacted the laws and controlled their enforcement. The people had no voice, neither were they represented. Slowly two forces were at work. The king gave away his private estates, upon which he was supposed to support him- self and his administration, and was therefore compelled to look elsewhere for funds. During the same time the unrep- resented classes of small farmers and town merchants and workmen were acquiring wealth. The king was forced to ask them for contributions, or " subsidies," to help him in his wars. Experience showed that these aids could not be se- cured by compulsion. The king must obtain the consent of THE PRINCIPLES OF GOVERNMENT 23 his subjects. Neither could their hearty consent and co-op- eration be obtained when they were approached privately and individually. They must have the king's affairs laid before them in assembly, and the state of his exchequer ex- plained. But a national primary assembly of all the people was impossible. However, there was in existence the more or less well-organized county government, with a history run- ning far back into Anglo-Saxon times. Here was a con- venient primary assembly of all the land-owners, twice a year at the county seat, when the king's justices made their circuit. Here the germs of representation had appeared in the prac- tice of electing juries to present the criminal matters of the county before the king's judges, and of electing assessors to levy the king's taxes upon the county. Also there was a true legislative representation in the practice of the rural towns and the boroughs, which sent delegates to the county courts. Very naturally, it occurred to the king to ask this county primary to elect ' ' two good and discreet knights, ' ' who should represent the land-owners before him, and hear and act upon his demands. In the towns, also, had quietly grown up the merchant and craft guilds, compact organizations of tradesmen and manu- facturers, with mutual interests mutually protected. When the king could no longer wring from them money by coer- cion, he invited them to send their two accredited delegates for a national gathering of guild representatives. What is the significance of these devices ? In ancient Rome the tax collectors swarmed from the imperial city with pro- consuls and armies at their backs, to exact arbitrary tribute from the provinces. Provincial self-government, and with it liberty and rights of property, were destroyed. In England the provinces joined with the central government, through their elected representatives, in determining the rate of taxa- tion and in assessing it to individuals. Concessions in turn were made by the king, grievances were redressed, local self- government, and with it liberty and rights of property, were maintained. 24 READINGS IN CIVIL GOVERNMENT In America, too, the problem, of representative government has been that of nationalization. It has passed three stages. First, counties and towns were united into colonies; second, colonies united in the Confederation; third, States formed the nation. By the first, the State legislatures arose; by the third, the national Congress. Just as the physical child, according to the biologists, re- peats in a brief time its ancestral history of geological ages, so did the colonies, the children of English political institu- tions, repeat in a few years the slow and painful evolution of centuries. The stages are best recorded in Maryland. Orig- inally the Constitution, as framed by the proprietor, con- sisted of the governor, appointed by the proprietor, a council, appointed by the governor, and a primary assembly of all the freemen. At first all could attend. But settlements ex- pended over a wide area. At the second assembly, in 1638, those who could not attend in person were allowed to send proxies. But proxies were apparently bought up by the governor and his council in order to override the popular wish. In 1639 the third assembly met. On this occasion the various "hundreds" were instructed to elect representatives. Yet, after the election, one person, at least, came forward and claimed the right of appearing in person, on the ground that he had voted in the minority and so was not represented. The claim was allowed. In 1642 the assembly became typ- ically representative by excluding the proxies and those ap- pearing in their own right, and limiting its membership to those elected by the localities. Thus the lingering hope of doing justice to the unrepresented minority was abandoned. But the colony was united on the basis of local interests. In the colony of Massachusetts Bay we find again similar conditions and a similar outcome. "The growth of fresh settlements brought with it an expansion of the constitutional machinery of the colony. . . . The Constitution of Mas- sachusetts was older than the existence of the colony. The legislature of the colony was simply the general court of the company transferred across the Atlantic. At the same time THE PRINCIPLES OF GOVERNMENT 25 the dispersal of the settlers at once unfitted that body for the work of legislation. The remedy first applied to this difficulty was, not to substitute a representative assembly for a primary one, but to limit the functions of the court. ^It is clear that there was an oligarchical temper at work kmong the leading men in Massachusetts. The action of this was plainly shown by the transfer of all legislative rights from the court of freemen to the governor, deputy- governor and assistants. At the same time the election of the governor was handed over from the freemen to the assistants. . . . "True to English precedent, Massachusetts found the sal- vation of her constitutional liberties in a question of taxa- tion. When the governor had intended to change his abode to Newtown, the assembly resolved to fortify that set- tlement at public charge, ... To meet the cost a rate was levied on each town by order of the governor and assistants. Against this the men of Watertown protested. . . . Though the men of Watertown gave way on the main issue, their protest seems to have borne fruit. In the next year the powers of the governor were formally defined by an act. It was also enacted by the General Court, in the following May, that the whole body of freemen should choose the governor, deputy-governor, and assistants. A farther step towards self-government was taken in the resolution , that every town should appoint two representa- tives to advise the governor and assistants on the question of taxation. We can hardly err in supposing that this was the direct result of the protest made by the men of Water- town. . . . Other colonies passed through similar experiences. A common form of representation was developed in them all. It was exactly suited to the needs of an independent, but busy and scattered farming and land-owning constituency, in their efforts to combine and resist the royal and oligar- chical tendencies of the times. 26 READINGS IN CIVIL GOVERNMENT 6. THE PEOPLE VS. THE REPRESENTATIVE. In a representative democracy the question often arises, Should the representative follow his own knowledge and judgment as to what the people of his constituency need or want, or should he, as each legislative question arises, endeavor to learn the wishes of the people and act accordingly? Mr. W. J. Bryan has expressed himself on this point to the following effect: [1907]. 1 In the presence of a legislative body the question that seems paramount to me is the duty of the legislator, the duty of the representative. There are two theories and these theories will be found wherever representative govern- ment exists. One is that the representative is selected by the people to think for the people. The other theory is that the representative is selected by the people to give legislative expression to their thoughts and their will. Now, these are the two theories and much depends upon which theory the legislator accepts. The legislator who thinks he is chosen to think for his people may flatter his vanity, but he is apt to be indifferent to the wishes of those for whom he speaks. The one who believes that the people think for themselves and select him to give expression to their thoughts is apt to have a more modest opinion of himself but a greater respect for those for whom he acts. And I hope you will pardon me if I give adhesion to the latter theory, and express it as my firm conviction that the duty of the representative is co represent. I believe that this theory is not only Democratic in a par- tisan sense, but Democratic in a broader sense. It is not only the theory Jefferson entertained, but it is the theory which is entertained in this country to-day by a large majority of the people, irrespective of party affiliation. Governor Hughes of New York, in one of his public utterances, speaking of the abuses against which democracy has to struggle, has taken a somewhat different view of the question: i Numbers in brackets following an introduction indicate the date on which the accompanying selection was written. THE PRINCIPLES OF GOVERNMENT 27 To guard against these abuses and put an end to them where they exist, the people must be constantly alert. Faith- ful representation of the people is of the essence of the mat- ter. Democracy on a large scale would immediately fail were not the people to act through their chosen representatives. It is only upon simple and broad propositions of policy that the people can act directly. It is difficult to procure a complete understanding, even by those charged with its con- sideration, of any complicated measure. These two theories as to the function of the representative, and the difficulties that lie in the way of the representative who at- tempts to determine the judgment of his constituents on particular legislative measures, are discussed by Mr. M. K. Hart of the New York State Assembly: What is "faithful representation"? Mr. Bryan's wholly theoretical declarations are based upon the supposition that the constituents of any man elected to a legislature are con- stantly and carefully studying all questions that come up, and are ready, nay, anxious, at all times to direct the repre- sentative how he shall vote. He tries to make us believe that a reliable if not an exact opinion on each question may be obtained by the representative when he appears, hat in hand, as it were for his instructions. He contributes nothing substantial to the solution of our problem. In the first place, the people are indifferent, tre- mendously indifferent, on all except the largest and most important questions of policy. And the difficulty of over- coming this is complicated by a very common belief among these people that they have no time to be other than indiffer- ent. Besides there is still seen an aloofness from participa- tion in public questions excepting to the extent of idle and unintelligent criticism an attitude harmful to the self-satis- fied holder of the opinion, and to the masses of the peo- ple. A citizen of one of the larger up-state cities of New York was asked one day last spring to write his representa- tive in the State Legislature to support a certain bill. He 28 READINGS IN CIVIL GOVERNMENT was obliged first to ask the name of the representative. A newspaper editor in another city challenged his companion at luncheon recently to name twenty men in Congress. He got up to fourteen, stopped, and then in revenge bet the editor he couldn't name ten more. And the editor couldn't. It is probably a fact that in a large majority of the assembly districts in the State of New York at the present day not five per cent, of the voters know, or ever noticed, how their representative voted on any bill at the last legislative ses- sion, unless the bill were a purely local measure. An illustration of this came to my notice last July just after the New York State Legislature had adjourned with- out passing a direct primary bill. Many of the newspapers favored this bill so strongly as to give the impression to the too trusting reader that if enacted the law would be an inevitable panacea. One newspaper in a county which has three members published a leading editorial on the attitude of those members towards the bill. One member had voted for it, the second had voted against it, and the third had " ducked." This particular Journal denounced the man who had opposed it, and, after dwelling upon his unfitness for office as shown by his action, closed by declaring that nine- tenths of his constituents favored this bill. I happened a few days later to meet this member. One of the most prominent men of the district joined us as we talked, and the conversation turned to the editorial. The third person, probably among the twenty most intelligent men of the district said, after listening, that he not only had not noticed how his representative had voted, but had not heard the matter once mentioned by his neighbors. Not only is this indifference widespread, but, even in a community when there is considerable interest in any bill or resolution, it is almost impossible, excepting on the occasional issue, to find out what the people really want. Newspaper agitation may mean a great deal, or it may mean merely the influence of a business interest. The old custom THE PRINCIPLES OF GOVERNMENT 29 of circulating a petition long ago became so overdone that a petition of thousands of names may mean very little. . . . The practical working out of the relation between repre- sentative and people is like that in the case of a manager of a business and the owner. If the manager is worthy of the place he holds, he will have free hand in the conduct of all ordinary matters, and very likely will be the strong- est influence in shaping the policy of the business. The owner will refrain from satisfying any passing desire he may have to show his authority (which, undoubtedly, he may make paramount) in the knowledge that all is being well done. And that this is a wise course is plain, for the owner may then give his entire time to other affairs. The owner of such a business may be one person, for the pur- pose of our illustration, or there may be several persons, or perhaps a good many. The more there are, the less desir- able is it that there should be needless interference from any of them, so long as the business is wisely conducted; though, of course, once a year, or at some other stated period, the stockholders will demand opportunity to pass upon the work done, and, by reappointing or dismissing the manager register their approval or dissatisfaction. In this simple exercise of their absolute power the stockholders of the modern business corporation secure best results. And so can it be and should be in regard to public office. The analogy is closer than at first might seem. We have every reason to suppose that if the people at the polls have selected as their representative the best man they can find to take the place, they may well trust his judgment on whatever questions come up for him to decide. Practical considerations forbid their constantly proffering advice and insisting upon its being followed. They will have opportunity at the next election to tell him whether he has done well or not. Governor Hughes in his Jamestown speech showed an appreciation of the real trouble. Mr. Bryan would have the legislator give heed to advice from without, and care- 30 READINGS IN CIVIL GOVERNMENT fully refrain from using his own brains. And as it is impossible on most questions to gauge public opinion, the legislator, in following Mr. Bryan's direction would be very likely to be following the dictates of that private business interest or political leader that had most influence over him. Mr. Hughes well points out that he who heeds advice, from such source is not a faithful representative of the people. In saying that it is only upon simple and broad propositions of policy that the people can act directly, he shows that that representative most truly represents who treats every question in the light of the greatest good to the greatest number of people. In other words, the greatest good will result when the representative brings to the solution of the problems before him the greatest care and foresight and ability that he can muster. In so doing he is recognizing his " representative responsibility. " ADDITIONAL READINGS 1 The Ideal of the American Commonwealth, Burgess, J. W., Political Science Quarterly, X, 405-25. 2 Natural Law and Natural Rights, Willoughby, W. W., The Nature of the State, 89-111. 3 Characteristics of the State, Willoughby, W. W., The American Constitutional System, 3-11. 4 Government by Public Opinion, Bryce, J., The American Commonwealth, II, 255-69. 5 The Social Basis of Proportional Representation, Jenks, J., Annals of the American Academy of Political and . Social Science, 1905, II, 381-96. CHAPTER II FORMATION OF THE FEDERAL CONSTITUTION 7. THE ARTICLES OF CONFEDERATION. While the colonies were still subject to England many plans were suggested for the establishment of an inter-colonial union. One of these, Franklin's Plan, submitted to the Albany Congress, 1755, became the model for the Articles of Confederation. These Articles were drawn up by the Continental Congress soon after the Declara- tion of Independence, discussed for more than a year before being submitted to the States, where nearly four years more were spent in securing their ratification. In spite of this long and painful con- sideration, the Articles of Confederation proved wholly inadequate as a frame of government for the States. Nevertheless the pro- visions of this document are worthy of study both because of the contrast and the similarity which they offer to corresponding clauses in our present Federal Constitution. Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Article /.The style of this Confederacy shall be, "The United States of America." Art. II. Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled. Art. III. The said States hereby severally enter into a firm league of friendship with each other, for their com- mon defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon 31 32 READINGS IN CIVIL GOVERNMENT them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever. Art. IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the differ- ent States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and egress to and from any other State, and shall enjoy therein all the privileges of trade and commerce subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively; provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State to any other State of which the owner is an inhabitant; provided also, that no imposition, duties, or restriction shall be laid by any State on the property of the United States or either of them. If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State shall flee from justice and be found in any of the United States, he shall, upon demand of the governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense. Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State. Art. V. For the more convenient management of the general interests of the United States, delegates shall be an- nually appointed in such manner as the Legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year. No State shall be represented in Congress by less than two, nor by more than seven mem- bers; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall FORMATION OF THE CONSTITUTION 33 any person, being a delegate, be capable of holding any office under the United States for which he, or another for his benefit, receives any salary, fees, or emolument of any kind. Each State shall maintain its own delegates in any meeting of the States and while they act as members of the Committee of the States. In determining questions in the United States in Congress assembled, each State shall have one vote. Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress; and the members of Congress shall be protected in their persons from arrests and imprisonment during the time of their going to and from, and attendance on, Congress, except for treason, felony, or breach of the peace. Art. VI. No State, without the consent of the United States, in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with any king, prince, or state ; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any pres- ent, emolument, office, or title of any kind whatever from any king, prince, or foreign state; nor shall the United States, in Congress assembled, or any of them, grant any title of nobility. No two or more States shall enter into any treaty, confed- eration, or alliance whatever between them without the con- sent of the United States, in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue. No state shall lay any imposts or duties which may inter- fere with any stipulations in treaties entered into by the United States, in Congress assembled, with any king, prince or state, in pursuance of any treaties already proposed by Congress to the courts of France and Spain. No vessel of war shall be kept up in time of peace by any State, except such number only as shall be deemed necessary by the United States, in Congress assembled, for the de- 3 84 READINGS IN CIVIL GOVERNMENT fense of such State or its trade, nor shall any body of forces be kept up by any State in time of peace, except such number only as, in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use in public stores a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage. No State shall engage in any war without the consent of the United States, in Congress assembled, unless such State be actually invaded by enemies, or shall have received cer- tain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States, in Con- gress assembled, can be consulted ; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States, in Congress assembled, and then only against the kingdom or state, and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States, in Congress assembled, unless such State be infected by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States, in Congress assembled, shall deter- mine otherwise. Art. VII. When land forces are raised by any State for the common defense, all officers of or under the rank of Colonel shall be appointed by the Legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appoint- ment. Art. VIII. All charges of war, and all other expenses that shall be incurred for the common defense, or general FORMATION OF THE CONSTITUTION 35 welfare, and allowed by the United States, in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted to, or surveyed for, any person, as such land and the buildings and improve- ments thereon shall be estimated, according to such mode as the United States, in Congress assembled, shall, from time to time, direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the Legislatures of the several States, within the time agreed upon by the United States, in Congress assembled. Art. IX. The United States, in Congress assembled, shall have the sole and exclusive right and power of deter- mining on peace and war, except in the cases mentioned in the sixth Article; of sending and receiving ambassadors; entering into treaties and alliances, provided that no treaty of commerce shall be made, whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatever ; of establishing rules for deciding, in all cases, what cap- tures on land and water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated; of granting letters of marque and reprisal in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas; and establishing courts for receiving and determining finally appeals in all cases of captures; pro- vided that no member of Congress shall be appointed a judge of any of the said courts. The United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting, or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in 36 READINGS IN CIVIL GOVERNMENT the manner following: Whenever the legislative or executive authority, or lawful agent of any State in controversy with another, shall present a petition to Congress, stating the matter in question, and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their law- ful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question. . . . The United States, in Congress assembled, shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States; fixing the standard of weights and measures throughout the United States; regulating the trade and managing all affairs with the Indians, not mem- bers of any of the States; provided that the legislative right of any State, within its own limits, be not infringed or violated; establishing and regulating post-offices from one State to another, throughout all the United States, and exact- ing such postage on the papers passing through the same as may be requisite to defray the expenses of the said office; appointing all officers of the land forces in the service of the United States, excepting regimental officers; appointing all the officers of the naval forces, and commissioning all offi- cers whatever in the service of the United States; making rules for the government and regulation of the said land and naval forces, and directing their operations. The United States, in Congress assembled, shall have authority to appoint a committee, to sit in the recess of Con- gress, to be denominated "A Committee of the States," and to consist of one delegate from each State, and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction; to appoint one of their number to preside; provided that no person be allowed to serve in the office of president more than one year in any term of three FORMATION OF THE CONSTITUTION 37 years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses; to borrow money or emit bills on the credit of the United States, transmitting every half year to the respective States an account of the sums of money so borrowed or emitted; to build and equip a navy; to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State, which requisition shall be binding; and there- upon the Legislature of each State shall appoint the regimen- tal officers, raise the men, and clothe, arm, and equip them in a soldier-like manner, at the expense of the United States ; and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled; but if the United States, in Congress assembled, shall, on consideration of circumstances, judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such State, unless the Legislature of such State shall judge that such extra number can not be safely spared out of the same, in which case they shall raise, officer, clothe, arm and equip as many of such extra number as they judge can be safely spared, and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled. The United States, in Congress assembled, shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascer- tain the sums and expenses necessary for the defense and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor 38 READINGS IN CIVIL GOVERNMENT appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same, nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States, in Congress assembled. The Congress of the United States shall have power to ad- journ to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military opera- tions as in their judgment require secrecy; and the yeas and nays of the delegates of each State, on any question, shall be entered on the journal when it is desired by any delegate; and the delegates of a State, or any of them, at his or their request, shall be furnished with a transcript of the said journal except such parts as are above excepted, to lay be- fore the Legislatures of the several States. Art. X. The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Con- gress, such of the powers of Congress as the United States, in Congress assembled, by the consent of nine States, shall, from time to time, think expedient to vest them with; pro- vided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled is requisite. Art. XL Canada, acceding to this Confederation, and joining in the measures of the United States, shall be ad- mitted into, and entitled to all the advantages of this Union ; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States. Art. XII. All bills of credit emitted, moneys borrowed, and debts contracted by or under the authority of Congress, before the assembling of the United States, in pursuance of FORMATION OF THE CONSTITUTION 39 the present Confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged. Art. XIII. Every State shall abide by the determinations of the United States, in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legisla- tures of every State. 8. DEFECTS IN THE AETICLES OF CONFEDERATION. (a) The Articles of Confederation had hardly gone into opera- tion before attempts were made to amend them. Some of these amendments were urged upon the States again and again by Ham- ilton and Madison with the most convincing arguments for their necessity, yet none were adopted because of the requirement that any change in the Articles should be ratified by every State. Never- theless they "are of the highest interest as evidence of the defects of the Articles recognized thus early in their history and as imme- diate precedents for provisions soon after inserted in the Constitu- tion." l On August 22, 1781, before the Articles had been in oper- ation six months, Congress adopted the following report: That, as America became a confederate republic to crush the present and future foes of her independence; As of this republic a general council is a necessary organ ; And without the extension of its power in the cases here- inafter enumerated war may receive a fatal inclination and peace be exposed to daily convulsions: It be resolved to recommend to the several states to authorize your the United States in Congress assembled 1. To lay embargoes in time of war without any limitation. 2. To prescribe rules for impressing property into the service of the United States during the present war. i Thorpe, Constitutional History of the United States, I, 276. 40 READINGS IN CIVIL GOVERNMENT t 3. To appoint the collectors of and direct the mode of accounting for taxes imposed according to the requisitions of Congress. 4. To recognize the independence of and admit into the federal union any part of one or more of the United States with the consent of the dismembered state. 5. To stipulate in treaties with foreign nations for the establishment of consular power, without reference to the states individually. 6. To distrain the property of a state delinquent in its assigned proportion of men and money. 7. To vary the rules of suffrage in Congress, taking care that in questions for waging war, granting letters of marque and reprisal in time of peace, concluding or giving instruc- tions for any alliance, coining money, regulating the value of coin, determining the total number of land and sea forces, and allotting to each state its quota of men or money, emitting bills of credit, borrowing money, fixing the number and force of vessels of war, and appointing a commander-in- chief of the army and navy at least two-thirds of the United States shall agree therein. Resolved, That a committee be appointed to prepare a representation to the several states of the necessity of these supplemental powers, and of pursuing, in the modification thereof, one uniform plan. (b) The most serious difficulty that confronted Congress was the raising of a revenue to defray the expenses of government and dis- charge the interest on the public debt. The requisition system broke down completely. On October 30, 1781, Congress asked for eight million dollars; by January, 1783, less than half a million had been received. Of six million called for between 1782 and 1786 only one million was paid. In 1787 New Jersey not merely neglected but positively refused to raise any part of the amount apportioned to her. To remedy this situation two revenue amendments were sub- mitted to the states. The first of these, February 3, 1781, was as follows : Resolved, That it be recommended to the several states as FORMATION OF THE CONSTITUTION 41 indispensably necessary, that they vest a power in Congress to levy, for the use of the United States, a duty of five per cent, ad valorem, at the time and place of importation, upon all goods, wares, and merchandise, of foreign growth and manufacture, which may be imported into any of the said states from any foreign port, island, or plantation, after the 1st day of May, 1781 ; except arms, ammunition, clothing and other articles imported on account of the United States, or any of them; and except wool cards and cotton cards, and wire for making them; and also except salt, during the war. Also a like duty of five per cent, on all prizes and prize goods, condemned in the court of admiralty of any of these states as lawful prize. That the moneys arising from the said duties be appropri- ated to the discharge of the principal and interest of the debts already contracted, or which may be contracted, on the faith of the United States, for supporting the present war. That the said duties be continued until the said debts shall be fully and finally discharged. (c) This amendment received the assent of all the states except Rhode Island, which made the following objections to it: 1st. That the proposed duty would be unequal in its opera- tion, bearing hardest upon the most commercial states, and it would press peculiarly hard upon that state which draws its chief support from commerce. 2nd. That the recommendation proposes to introduce into that and the other states officers unknown and unaccount- able to them and so is against the Constitution of the state. 3rd. That by granting to Congress a power to collect moneys from the commerce of these states, indefinitely as to time and quantity, and for the expenditure of which they are not to be accountable to the states they would become independent of their constituents ; and so the proposed import is repugnant to the liberty of the United States. (d) A lengthy reply to these objections was drawn up by Ham- ilton in closing which he spoke as follows: 42 READINGS IN CIVIL GOVERNMENT It is certainly pernicious to leave any government in a situation of responsibility disproportioned to its power. The conduct of the war is intrusted to Congress, and the public expectation turned upon them, without any compe- tent means at their command to satisfy the important trust. After the most full and solemn deliberation, under a collec- tive view of all the public difficulties, they recommend a measure which appears to them the corner-stone of the public safety; they see this measure suspended for near two years; partially complied with by some of the states; rejected by one of them, and in danger, on that account, to be frustrated ; the public embarrassments every day increasing; the dissatis- faction of the army growing more serious; the other credit- ors of the public clamoring for justice; both irritated by the delay of measures for their present relief or future security; the hopes of our enemies encouraged to protract the war; the zeal of our friends depressed by an appearance of remissness and want of exertion on our part; Congress harassed; the national character suffering, and the national safety at the mercy of events. 1 (e) Another serious weakness of the Articles was their failure to give Congress exclusive control of foreign commerce. So great had the inconvenience from this source become by April, 1784, that the following report was adopted by Congress: The trust reposed in Congress renders it their duty to be attentive to the conduct of foreign nations, and to prevent or restrain, as far as may be, all such proceedings as might prove injurious to the United States. The situation of com- merce at this time claims the attention of the several states, and few objects of greater importance can present them- selves to their notice. The fortune of every citizen is inter- ested in the success thereof; for it is the constant source of i This reply was sent out to the States with the second revenue amend- ment in 1783 which was so drawn as to obviate as far as possible Rhode Island's objections to the first. These papers were accompanied by an able Address to the States on the condition of the revenue, also by Hamilton. Nevertheless, New York this time refused to ratify. FORMATION OF THE CONSTITUTION 43 wealth and incentive to industry; and the value of our pro- duce and our land, must ever rise or fall in proportion to the prosperous or adverse state of trade. Already has Great Britain adopted regulations destructive of our commerce with her West India Islands. There was reason to expect that measures so unequal, and so little calcu- lated to promote mercantile intercourse, would not be perse- vered in by an enlightened nation. But these measures are growing into a system. It would be the duty of Congress, as it is their wish, to meet the attempts of Great Brit- ain with similar restrictions on her commerce; but their powers on this head are not explicit, and the propositions made by the legislatures of the several states render it neces- sary to take the general sense of the Union on this subject. Unless the United States in Congress assembled shall be vested with powers competent to the protection of com- merce, they can never command reciprocal advantages in trade ; and without these, our foreign commerce must decline, and eventually be annihilated. Hence it is necessary that the states should be explicit, and fix on some effectual mode by which foreign commerce not founded on principles of equality may be restrained. That the United States may be enabled to secure such terms, they have Resolved, That it be, and it hereby is, recommended to the legislatures of the several states, to vest the United States in Congress assembled, for the term of fifteen years, with power to prohibit any goods, wares, or merchandise, from being imported into, or exported from, any of the states, in vessels belonging to, or navigated by, the subjects of any power with whom these states shall not have formed treaties of commerce. Resolved, That it be, and it hereby is, recommended to the legislatures of the several states, to vest the United States in Congress assembled for the term of fifteen years, with the power of prohibiting the subjects of any foreign state, kingdom, or empire, unless authorized by treaty, from im- 44 READINGS IN CIVIL GOVERNMENT porting into the United States any goods, wares, or mer- chandise, which are not the produce or manufacture of the dominions of the sovereign whose subjects they are. Provided, That to all acts of the United States in Con- gress assembled, in pursuance of the above powers, the assent of nine states shall be necessary. 9. THE RATIFICATION OF THE CONSTITUTION. No more momentous question has ever come before the people of the United States for decision than that presented when the work of the Federal Convention was submitted for their approval or re- jection. The evil consequences which were likely to have followed upon the adoption of the latter alternative and the good results which have flowed from the acceptance of the first, now seem to weigh as an overwhelming argument for the ratification of the Con- stitution. Nevertheless the struggle in the several State conventions was long and bitter. In none was the contest waged more fiercely nor the issue held longer in doubt than in New York, where the Federalists were led by Alexander Hamilton and the Anti-Federalists by Governor George Clinton. Mr. Judson Landon has thus sum- marized the arguments of these protagonists : x We do not oppose a Union ; indeed, we desire one, said the Anti-Federalists; we have one under the Articles of Con- federation; defective, we grant; not in its principles, but somewhat so in the details of execution. We are willing to amend these so as to allow Congress to levy and collect the tax to meet its requisitions, if the state should not voluntarily pay them. Why ask for more? Why make this untried experiment of a great central government, acting directly upon the people, and compelling both states and people to yield obedience to laws which are to be, in the execution of the powers conferred, the supreme law of the land, any state law or act to the contrary notwithstanding? Then, when there are any disputes as to whether the nation or the state has the right to act, the national, not the state, court has the right to decide, and our fears tell us how that decision will always be made. You are creating a great central power, which, if it desires so to encroach upon the rights of the states i Reprinted by special permission of Houghten, Mifflin and Company. FORMATION OF THE CONSTITUTION 45 as practically to destroy them, needs only to declare that it is necessary to do so in order to carry into execution the power conferred upon it ; then, if its court decide that it is right, the destruction is complete, unless we can take up arms to defend ourselves; and we cannot defend ourselves, first, because the United States may take our able-bodied men to recruit its army ; and, second, because it has an unlimited power of taxa- tion for necessary purposes ; and if the United States compel payment of the taxes which it may decide necessary to levy upon us, we shall have nothing left for state purposes, and cannot even support our troops, if we have the men left from whom to recruit them. How do we know that your President will not make himself king ? In the United Netherlands, once its chief magistrates were elective, now they are hereditary. The Venetians, once a republic, are now governed by an aris- tocracy. History furnishes no example of a confederated re- public coercing the states composing it by the influence of laws operating upon the individuals of those states. Your experiment is without precedent or example. It is false in principle, for there cannot be two supreme powers over one individual, namely, the governments of the state and of the United States. No man can obey two masters. Your country is too vast in extent to be governed by one power. You create a national legislature who may vote their own pay, without limitation ; who are too few in number to represent the people New York having only six ; and who are in nowise amenable to the state : what security have we against their combinations against our liberties, and their corruption in squandering the contributions they extort from us? Why give the South in- creased representation because of the slave? Do you wish to compel us to sanction slavery ? Representation implies the free agency of the persons represented; the slave cannot be represented, because he is not a free agent ; and it is false in principle to give his master double representation, once on his own account, and then again upon account of his wrong to another. And small as our representation is, Congress may reduce it; for the provision is, the representatives shall not 46 READINGS IN CIVIL GOVERNMENT exceed one for every thirty thousand, but it does not say that it may not take twice, or many times thirty thousand to be en- titled to one. We prefer more than six; the more, the better we are represented, and the less risk of corruption. The rep- resentatives should be chosen every year, instead of every two years; six years as the term of senator is much too long; the government will fall into the hands of the few and the great ; it is not a government of the people; it is in everything too far removed from the people, and must inevitably become a government of oppression ; not perhaps immediately, but grad- ually, by construction, and by amplification of jurisdiction and power. This may be slow, it may be almost impercepti- ble; but knowing the natural tendency of human nature to hold power when once gained, and to extend it when its grati- fications have been experienced, we plainly see that the states are to fall beneath the United States, and the people will be crushed beneath a government too remote to hear their voice, and too well assured of its own power and permanency to heed it. True, the Constitution assumes to guarantee to every state a republican form of government ; alas, for the substance, when the form only remains! . . . Hamilton and his associates replied: The radical vice in the Articles of Confederation is that the laws of the Union apply to the states only in their corporate capacity. Our misfortunes proceed from a want of vigor in the continental government. New York and Pennsylvania are the only states that have fully complied with the federal requisitions. New Hampshire, which has not suffered from the war, is totally delinquent. So is South Carolina. The other states have only partly complied. Suppose we amend the Articles as proposed, giving the nation power to compel the state to com- ply with the requisitions. That may mean war against a hos- tile state. Do you mean that ? If the state refuse to comply, how is the nation to proceed against such a hostile state ? If you confer the full and unlimited power of taxation, and also control of the army, upon Congress, you establish a despotism, the meaning of which word is, all power in one body. You FORMATION OF THE CONSTITUTION 47 are afraid to trust the representatives of the people. You can have no government of your own unless you trust some- body. Some confidence in our fellows is the basis of human society. Unless you will trust your kind, you are divided by anarchy, and are become the spoil of the strongest. But there are provided all reasonable checks. There are three depart- ments of government, each a check upon the other. The President is the representative of the people. He can veto bad laws. So the two houses are checks upon each other; and these failing, there sits the court, appointed for life, re- moved from the passion of the partisan, and with no induce- ment but to do justice. You elect your own representatives; these will be in positions of honor, and if not honorably filled, you will send others in their place. Besides, the President and judges may be impeached for wrong-doing. But human selfishness and ambition also are your safeguards. The public servant is under the eye of the public, a public quick to see, and prompt to strike dead the madness of tyranny and cor- ruption. What reasonable precaution is omitted ? Your coun- try is too large to admit of a pure democracy, wherein all the people assemble, deliberate, and decide. You must from ne- cessity be represented, and better so ; for men may be incapa- ble of public affairs and yet choose one of their number to represent them who is capable. And so a representative government is the best. The ancient democracies, in which the people themselves deliberated, never possessed one feature of good government. Their character was tyranny, their figure deformity. Their assemblies were mobs ; the field of de- bate was the theatre of enormity, of mad ambition, of blood- shed; it was matter of chance whether the people were blindly led by one tyrant or another. You want more representatives. The ratio is one to thirty thousand ; you want it one to twenty thousand. We cannot argue with your emotions, but may not one man understand the interests of thirty as well as of twenty? Remember that he will not represent all your in- terests, but only those of federal concern. These are princi- pally commerce and taxation. Are these questions generally 48 READINGS IN CIVIL GOVERNMENT understood by many, or by few? The people may choose whom they please, and we hope they will choose their best. Suppose they choose the bad ; they must conform to the scheme of the Constitution, and if that is wise and good, we may yet enjoy good government from bad men. Bad grain does not grow from good seed, though the wicked sow it. We hope that the popular elections will be pure, and unbounded liberty of choice allowed. Public opinion will be a great element of safety. Your state government will, by their watchfulness and jealousy of federal encroachment, be a check upon it. The national and the state governments have their respective spheres; each will hold the other to its place, and the two, thus related, form a double security to the people. Surely, if you can appeal to the nation againart the injustice of your state; if you can ask your state to interpose against the injus- tice of the nation, you will, indeed, be fortunate. We predict that the national government will be as natural a guardian of our freedom as the states themselves. But how open to corruption is the confederate Congress! Each state has one vote ; nine states must concur in the most important measures. Suppose nine states present, and a foreign enemy bribes the two delegates who represent one state. The other eight are instantly paralyzed, and the measure thwarted which may be essential to your national existence. What a difference be- tween the old and the new! The old was made of rotten materials put together in haste. The new government will not encroach upon the just powers of the state. Does it re- model the internal police of any state? No. Does it alter or abrogate any of its civil or criminal institutions? No. Any of its forms or safeguards of justice? No. Does it af- fect the domestic or private life of any citizen? No. Does it ask the state to surrender any power or function essential to its welfare ? No. The declared object of the new government is to insure domestic tranquillity, provide for the common de- fence, and promote the general welfare. How is it to be done ? Not in the least by taking away any of the safeguards or FORMATION OF THE CONSTITUTION 49 means by which every state may now compass these blessed ob- jects, but by strengthening those safeguards and means by the added power of all the other states ; not separately, either, in their capacity as states, but by the union of all the people who dwell therein. The allotment of representatives in pro- portion to the population, the inclusion of three-fifths of the slaves in ascertaining the people to be represented, the ex- emption of exports from taxation, the non-interference with the importation of slaves until 1808, the imposition of a tax upon slaves imported, were matters of accommodation, agreed to in order to secure the assent of the states more especially benefited by these provisions. You may, indeed, discuss them upon their merits, and possibly condemn them ; but the states which insisted upon them as important are not here to per- suade or reply to you ; unless you respect the accommodation, it is in vain to remind you that to some of the states equality in the Senate and power in Congress to regulate commerce, to make navigation laws, to impose taxes upon imports, to exer- cise any power with respect to the slave, were conceded in the same spirit of compromise. It is easier to calculate the evils than the advantages of a measure, and we can only deprecate that appeal to the passions which creates a prejudice fatal to deliberate examination. We have sought to equalize the power of the states; to balance the departments of the gov- ernment ; to lodge the sword in one department and the purse in another ; to connect the virtue of the rulers with their in- terests; to make the Union dependent upon the states for its executive and senate; to make the states independent of the Union, except in those matters of highest concern to the safety, protection, and benefit of all. We thought it right that the Union, in the exercise of these powers of high con- cern, should not be impeded or trammelled by the interposi- tion of the state. Such powers may not be efficiently used when most urgently needed, unless they are completely and supremely held. The members of the Union will be stronger than the head; the number of their powers will always be 50 READINGS IN CIVIL GOVERNMENT greater. The Union can only exercise such powers as are conferred ; the state can always exercise all that are not given to the Union. ADDITIONAL READINGS 1 The Origin of the Constitution, Bryce, J., American Com- monwealth, I, 19-31. 2 The Nature of the American State, Willoughby, W. W., The American Constitutional System, 12-32. 3 The Principles of the Fathers, Woodburn, J. A., The American Republic, 1-43. 4 The American Democracy, Abbott, L., The Rights of Man, 194-215. CHAPTER III THE DEVELOPMENT OF THE FEDERAL CONSTITU- TION 10. WRITTEN AND UNWRITTEN CONSTITUTIONS. Since the Constitution of the United States was adopted it has been subject to formal change by amendment on substantially three occasions only. The first ten amendments were adopted so soon after the Constitution itself that they may be considered a portion of the original instrument and, in any event, made no important change in its meaning. The three instances referred to are : first, the eleventh amendment adopted in 1798 ; second, the twelfth amendment adopted in 1804; and third, the thirteenth, fourteenth, and fifteenth amend- ments adopted in 1865, 1868 and 1870, which, inasmuch as they followed each other so closely and deal with the same subject, may be considered together. Moreover, one of these amendments, the twelfth, merely corrected a minor detail in the machinery of the government ; and the last three were added as the result of the Civil War. That the Constitution has been subject to formal amendment so infrequently is one of the remarkable facts of its history and is due in the first place to its brevity its containing merely a state- ment of the essential principles as distinguished from the minutia of government and in the second place to its being a definite written instrument with a rather hard and clumsy provision for amendment, a "rigid constitution" as distinguished from an "unwritten" or "elas- tic constitution." In the following selection Mr. James Bryce dis- cusses the significance of this last characteristic: The stability of a constitution is an object to be much de- sired both because it inspires a sense of security in the minds of the citizens, encouraging order, industry and thrift, and because it enables experience to be accumulated whereby the practical working of the constitution may be improved. Po- litical institutions are under all circumstances difficult to work, and when they are frequently changed, the nation does 51 52 READINGS IN CIVIL GOVERNMENT not learn how to work them properly. Experiment is the soul of progress, but experiments must be allowed a certain meas- ure of time. The plant will not grow if men frequently un- cover the roots to see how they are striking. Constitutions embodied in one legal document and unchangeable by the leg- islature, are intended to be, and would seem likely to be, pe- culiarly durable. Being definite, they do not give that open- ing to small deviations and perversions likely to arise from the vagueness of a Flexible or " unwritten " Constitution, or from the probable discrepancies between the different laws and traditions of which it consists. They may be battered down, but they cannot easily (save by a method to be pres- ently examined) be undermined. When an attack is made upon them, whether by executive acts violating their pro- visions, or by the passing of statutes inconsistent with those provisions, such an attack can hardly escape observation. It is a plain notice to the defenders of the constitution to rally and to stir up the people by showing the mischief of an in- sidious change. The principles on which the government rests, being set forth in a broad and simple form, obtain a hold upon the mind of the community, which, if it has been accustomed to give those principles a general approval, will be unwilling to see them tampered with. Moreover the process prescribed for amendment interposes various delays and for- malities before a change can be carried through, pending which the people can reconsider the issues involved, and re- cede, if they -think fit, from projects that may have at first attracted them. Both in Switzerland and in the States of the American Union it has repeatedly happened that constitu- tional amendments prepared and approved by the legislature have been rejected by the people, not merely because the mass of the people are often more conservative than their repre- sentatives, or are less amenable to the pressure of particular "interests" or sections of opinion, but because fuller discus- sion revealed objections whose weight had not been appre- ciated when the proposal first appeared. In these respects the Rigid Constitution has real elements of stability. DEVELOPMENT OF THE CONSTITUTION 53 Nevertheless it may be really less stable than it appears, for there is in its rigidity an element of danger. It has already been noted that a constitution of the Flexible type finds safety in the elasticity which enables it to be stretched to meet some passing emergency, and then to resume its prior shape, and that it may disarm revolution by meeting revolution half-way. This is just what the Rigid Constitution cannot do. It is constructed, if I may borrow a metaphor from mechanics, like an iron railway-bridge, built solidly to resist the greatest amount of pressure by wind or water that is likely to impinge upon it. If the materials are sound and the workmanship good, the bridge resists with apparent ease, and perhaps without showing signs of strain or displacement, up to the highest degree of pressure provided for. But when that degree has been passed, it may break suddenly and ut- terly to pieces, as the old Tay Bridge did under the storm of December, 1879. The fact that it is very strong and all knit tightly into one fabric, while enabling it to stand firm under small oscillations or disturbances, may aggravate great ones. For just as the whole bridge collapses together, so the Rigid Constitution, which has arrested various proposed changes, may be overthrown by a popular tempest which has gathered strength from the very fact that such changes were not and under the actual conditions of politics could not be made by way of amendment. When a party grows up clamouring for some reforms which can be effected only by changing the con- stitution, or when a question arises for dealing with which the constitution provides no means, then, if the constitution can- not be amended in the legal way, because the legally pre- scribed majority cannot be obtained, the discontent that was debarred from any legal outlet may find vent in a revolution or a civil war. The history of the Slavery question in the United States illustrates this danger on so grand a scale that no other illustration is needed. The Constitution of 1787, while recognizing the existence of slavery, left sundry ques- tions, and in particular that of the extension of slavery into new territories and States, unsettled. Thirty years later these 54 READINGS IN CIVIL GOVERNMENT matters became a cause of strife, and after another thirty years this strife became so acute as to threaten the peace of the country. Both parties claimed that the Constitution was on their side. Had there been no Constitution embodied in an instrument difficult of change, or had it been practicable to amend the Constitution, so that the majority in Congress could have had, at an earlier stage, a free hand in dealing with the question, it is possible though no one can say that it is certain that the War of Secession might have been averted. So much may at any rate be noted that the Consti- tution which was intended to hold the whole nation together, failed to do so. There might no doubt in any case have been armed strife, as there was in England under its Flexible Con- stitution in 1641. But it is at least equally probable that the slave-holding party, which saw its hold on the government slipping away, hardened its heart because it held that it was the true exponent of the Constitution, and because the Consti- tution made compromise more difficult than it need have been in a country possessing a fully sovereign legislature. Two opposing tendencies are always at work in countries ruled by these Constitutions, the one of which tends to strengthen, the other to weaken them. The first is the growth of the respect for the Constitution which increasing age brings. The remark is often made that if husband and wife do not positively dislike one another, and if their respective characters do not change under ill-health or misfortune, every year makes them like one another better. . . . So a na- tion, though not contented with its Constitution, and vexed by quarrels over parts of it, may grow fond of it simply be- cause it has lived with it, has obtained a measure of prosperity under it, has perhaps been wont to flaunt its merits before other nations, and to toast it at public festivities. The magic of self-love and self-complacency turns even its meaner parts to gold, while imaginative reverence for the past lends it a higher sanction. This is one way in which Time may work. But Time also works against it, for Time, in changing the social and material condition of a people, makes the old politi- DEVELOPMENT OF THE CONSTITUTION 55 cal arrangements as they descend from one generation to an- other a less adequate expression of their political needs. No- body now discusses the old problem of the Best Form of Gov- ernment, because everybody now admits that the chief merit of any form is to be found in its suitability to the conditions and ideas of those among whom it prevails. Now if the con- ditions of a country change, if the balance of power among classes, the dominant ideas of reflective men, the distribution of wealth, the sources whence wealth flows, the duties expected from the administrative departments of government, all be- come different, while the form and constitutionally-prescribed methods of government remain unmodified, it is clear that flaws in the Constitution will be revealed which were previ- ously unseen, and problems will arise with which its arrange- ments cannot cope. The remedy is of course to amend the Constitution. But that is just what may be impossible, be- cause the requisite majority may be unattainable ; and the op- ponents of amendment, entrenched behind the ramparts of an elaborate procedure, may succeed in averting changes which the safety of the community demands. The provisions that were meant to give security may now be dangerous, because they stand in the way of natural development. 11. THE DOCTRINE OP IMPLIED POWERS. That this rigidity in our Constitution has not resulted more dis- astrously, that the Constitution has been able at all to weather the revolutionary changes in political and industrial conditions that have taken place since its adoption, is due to the fact that it has been repeatedly stretched and enlarged by the informal process of judicial interpretation. This has been done under the guise of what is termed "implied power." One of the earliest instances of the ap- plication of this doctrine and the one which became the basis for all such instances thereafter was the case of McCulloh vs. Maryland, in which Chief Justice John Marshall spoke as follows: [1819]. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pur- suance of the constitution, form the supreme law of the land, 56 READINGS IN CIVIL GOVERNMENT " anything in the constitution or laws of any State, to the contrary notwithstanding. ' ' Among the enumerated powers, we do not find that of estab- lishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confedera- tion, excludes incidental or implied powers; and which re- quires that everything granted shall be expressly and mi- nutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and de- clares only that the powers, "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people"; thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instru- ment. The men who drew and adopted this amendment, had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the pro- lixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be de- duced from the nature of the objects themselves. That this idea was entertained by the framers of the American consti- tution, is not only to be inferred from the nature of the in- strument, but from the language. Why else were some of the limitations, found in the 9th section of the 1st article, in- troduced ? It is also, in some degree, warranted by their hav- ing omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering DEVELOPMENT OF THE CONSTITUTION 57 this question, then, we must never forget, that it is a constitu- tion we are expounding. Although, among the enumerated powers of government, we do not find the word "bank," or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pretended that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may, with great reason, be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to fa- cilitate its execution. It can never be their interest, and can- not be presumed to have been their intention, to clog and em- barrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be raised and supported. The exigencies of the nation may require, that the treasure raised in the North should be transported to the South, that raised in the East conveyed to the West, or that this order should be reversed. Is that construction of the constitution to be preferred which would render these opera- tions difficult, hazardous, and expensive ? Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrument, when grant- ing these powers for the public good, the intention of im- peding their exercise by withholding a choice of means? If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; 58 READINGS IN CIVIL GOVERNMENT nor does it prohibit the creation of a corporation, if the ex- istence of such a being be essential to the beneficial exercise of those powers. . . . But the constitution of the United States has not left the right of congress to employ the necessary means, for the ex- ecution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added that of making "all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof. " . . . The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execu- tion. This could not be done by confining the choice of means to such narrow limits as not to leave it in the power of con- gress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a con- stitution intended to endure for ages to come, and, conse- quently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the prop- erties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies vhich, if fore- seen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. If we apply this principle of construction to any of the powers of the government, we shall find it so per- nicious in its operation that we shall be compelled to discard it. The powers vested in congress may certainly be carried into execution, without prescribing an oath of office. The DEVELOPMENT OF THE CONSTITUTION 59 power to exact this security for the faithful performance of duty, is not given, nor is it indispensably necessary. The dif- ferent departments may be established ; taxes may be imposed and collected; armies and navies may be raised and main- tained; and money may be borrowed, without requiring an oath of office. It might be argued, with as much plausibility, as other incidental powers have been assailed, that the con- vention was not unmindful of this subject. The oath which might be exacted that of fidelity to the constitution is pre- scribed, and no other can be required. Yet, he would be charged with insanity who should contend, that the legislature might not superadd to the oath directed by the constitution, such other oath of office as its wisdom might suggest. So, with respect to the whole penal code of the United States. Whence arises the power to punish in cases not pre- scribed by the constitution? All admit that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of congress. The right to enforce the observance of law, by punishing its infrac- tion, might be denied with the more plausibility, because it is expressly given in some cases ; congress is empowered ' ' to pro- vide for the punishment of counterfeiting the securities and current coin of the United States," and "to define and pun- ish piracies and felonies committed on the high seas, and offenses against the law of nations." The several powers of congress may exist, in a very imperfect state to be sure, but they may exist and be carried into execution, although no pun- ishment should be inflicted in cases where the right to punish is not expressly given. Take, for example, the power "to establish post-offices and post-roads. ' ' This power is executed by the single act of mak- ing the establishment. But from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to pun- 60 READINGS IN CIVIL GOVERNMENT ish those who rob it, is not indispensably necessary to the es- tablishment of a post-office and post-road. This right is, in- deed, essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punish- ment of the crime of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offenses is certainly conducive to the due ad- ministration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment. The baneful influence of this narrow construction on all the operations of the government, and the absolute impractica- bility of maintaining it without rendering the government incompetent to its great objects, might be illustrated by nu- merous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced, without hesitation, that the power of punishment appertains to - ereignty, and may be exercised whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise. If this limited construction of the word "necessary" must be abandoned in order to punish, whence is derived the rule which would reinstate it, when the government would carry its powers into execution by means not vindictive in their nature? If the word "necessary" means "needful," "req- uisite," "essential," "conducive to," in order to let in the power of punishment for the infraction of law, why is it not equally comprehensive when required to authorize the use of means which facilitate the execution of the powers of gov- ernment without the infliction of punishment? . . . We admit, as all must admit, that the powers of the gov- ernment are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that dis- DEVELOPMENT OP THE CONSTITUTION 61 cretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but are consistent with the letter and spirit of the constitution, are constitutional. 12. THE INTERPRETATION OF RIGID CONSTITUTIONS. In the following selection Mr. James Bryce points out clearly both the danger and the necessity of the judicial process of amendment as well as the practices of several other countries in this particular : A well-drawn Rigid Constitution will confine itself to essen- tials, and leave many details to be filled in subsequently by ordinary legislation and by usage. But (as already observed) even the best-drawn instrument is sure to have omitted some things which ought to have been expressly provided for, to have imposed restrictions which will prove inconvenient in practice, to contain provisions which turn out to be susceptible of different interpretations when cases occur raising a point to which the words of those provisions do not seem to be di- rectly addressed. When any of these things happen, the authorities, legislative and executive, who have to work the Constitution find themselves in a difficulty. Steps seem called for which the Constitution either does not give power to do, or forbids to be done, or leaves in such doubt as to raise scruples and controversies. The authorities, or the nation itself, have then three alternative courses open to them. The first is to submit to the restrictions which the Constitution im- poses, and abandon a contemplated course of action, though the public interest demands it. This is disagreeable, but if the case is not urgent, may be the best course, though it tends to the disparagement of the Constitution itself. The second course is to amend the Constitution; and it is obviously the proper one, if it be possible. But it may be practically im- 62 READINGS IN CIVIL GOVERNMENT possible, because the procedure for passing an amendment may be too slow, the need for action being urgent or because the majority that can be secured for amendment, even if large, may be smaller than the Constitution prescribed. The only remaining expedient is that which is euphemistically called Extensive Interpretation, but may really amount to Evasion. Evasion, pernicious as it is, may give a slighter shock to pub- lic confidence than open violation, as some have argued that equivocation leaves a man's conscience less impaired for fu- ture use than does the telling of a downright falsehood. Cases occur in which the Executive or the Legislature profess to be acting under the Constitution, when in reality they are stretching it, or twisting it, i. e., are putting a forced construc- tion upon its terms, and affecting to treat that as being lawful under its term which the natural sense of the terms does not justify. The question follows whether such an evasion will be held legal, i. e., whether acts done in virtue of such a forced construction as aforesaid will be deemed constitutional, and will bind the citizens as being legally done. This will evi- dently depend on a matter we have not yet considered, but one of profound importance, viz. : the authority in whom is lodged the right of interpreting a Rigid Constitution. On this point there is a remarkable diversity of theory and practice between countries which follow the English and coun- tries which follow the Roman law. The English attribute the right to the Judiciary. As a constitutional instrument is a law, distinguished from other laws only by its higher rank, principle suggests that it should, like other laws, be inter- preted by the legal tribunals, the last word resting, as in other matters, with the final Court of Appeal. This principle of referring to the courts all questions of legal interpretation may be said to be inherent in the English Common Law, and holds the field in all countries whose systems are built upon the foundation of that Common Law. In particular, it holds good in the United Kingdom and in the United States. As the British Parliament can alter any part of the British Con- stitution at pleasure, the principle is of secondary political DEVELOPMENT OF THE CONSTITUTION 63 importance in England, for when any really grave question arises on the construction of a constitutional law it is dealt with by legislation. However, the action of the courts in con- struing the existing law is watched with the keenest interest when questions arise which the Legislature refuses to deal with, such, for instance, as those that affect the doctrine and discipline of the Established Church. So in the seventeenth century, when constitutional questions were at issue between the King and the House of Commons, which it was impossible to settle by statute, because the King would have refused con- sent to bills passed by the Commons, the power of the Judges to declare the rules of the ancient Constitution was of great significance. In the United States, where Congress cannot alter the Constitution, the function of the Judiciary to in- terpret the will of the people as set forth in the Constitution has attained its highest development. The framers of that Constitution perhaps scarcely realized what the effect of their arrangements would be. More than ten years passed before any case raised the point; and when the Supreme Court de- clared that an Act of Congress might be invalid because in ex- cess of the power granted by the Constitution, some surprise and more anger were expressed. The reasoning on which the Court proceeded was, however, plainly sound, and the right was therefore soon admitted. Canada and Australia have fol- lowed the English doctrine, so the Bench has a weighty func- tion under the constitutions of both those Federations. On the European Continent a different view prevails, and the Legislature is held to be the judge of its own powers under the Constitution, so that no court of law may question the authority of a statute passed in due form. Such is the rule in Switzerland. There, as in most parts of the European Continent, the separation of the Judiciary from the other two powers has been less complete than in England, and the defer- ence to what Englishmen and Americans call the Rule of Law less profound. The control over governmental action which the right of interpretation implies seems to the Swiss too great, and too political in its nature, to be fit for a legal tribunal. It 64 READINGS IN CIVIL GOVERNMENT is therefore vested in the National Assembly, which when a question is raised as to the constitutionality of a Federal Statute or Executive Act, or as to the transgression of the Federal Constitution by a Cantonal Statute, is recognized as the authority competent to decide. The same doctrine seems to prevail in the German Empire, though the point is there not quite free from doubt, and also in the Austrian Mon- archy, in France, and in Belgium. In the Orange Free State, living under Roman-Dutch law, the Bench, basing itself on American precedents, claimed the right of authoritative in- terpretation, but the Legislature hesitated to admit it. American lawyers conceive that the strength and value of a Rigid Constitution are greatly reduced when the Legislature becomes the judge of its own powers, entitled after passing a statute which really transgresses the Constitution to declare that the Constitution has in fact not been transgressed. The Swiss, however, deem the disadvantages of the American method still more serious, for they hold that it gives the last word to the judges, persons not chosen for or fitted for such a function, and they declare that in point of fact public opin- ion and the traditions of their government prevent the power vested in their National Assembly from being abused. And it must be added that the Americans have so far felt the diffi- culty which the Swiss dwell on, that the Supreme Court has refused to pronounce upon the action of Congress in "purely political cases,'* i. e., cases where the arguments used to prove or disprove the conformity to the Constitution of the action taken by Congress are of a political nature. Returning to the question of legislative action alleged to transgress the Constitution it is plain that if the Legislature be, as in Switzerland, the arbiter of its own powers, so that the validity of its acts cannot be questioned in a court of law, there is no further difficulty. But where that validity can be challenged, as in the United States, it might be supposed that every unconstitutional statute will be held null, and that thus any such stretching or twisting of the Constitution as has been referred to will be arrested. But experience has shown that DEVELOPMENT OF THE CONSTITUTION 65 where public opinion sets strongly in favour of the line of con- duct which the Legislature has followed in stretching the Con- stitution, the Courts are themselves affected by that opinion, and go as far as their legal conscience and the general sense of the legal profession permit possibly sometimes even a little farther in holding valid what the Legislature has done. This occurs most frequently where new problems of an adminis- trative kind present themselves. The Courts recognize, in fact, that "principle of development" which is potent in poli- tics as well as in theology. Human affairs being what they are, there must be a loophole for expansion or extension in some part of every scheme of government ; and if the Consti- tution is Rigid, Flexibility must be supplied from the minds of the Judges. Instances of this kind have occurred in the United States, as when some twenty years ago the Supreme Court recognized a power in a State Legislature to deal with railway companies not consistent with the opinions formerly enounced by the Court, though they disclaimed the intention of overruling those opinions. 13. THE PRESENT MEANING OF THE CONSTITUTION : THE STRICT VIEW. The importance of this question of judicial extension of the Con- stitution has greatly increased during the last few years because of the development of large industrial enterprises and the consequent appearance of difficult problems of corporate management. Shall Congress be enabled to deal with these great problems'? If so, by what process? Manifestly the framers of the Constitution contem- plated no such industrial or economic questions as now confront the country. Must the Constitution, then, be amended when each new situation arises, or may its meaning be so understood as to warrant the exercise of powers appropriate to the central government under any situation 1 ? Each of these positions has its advocates, their views standing in sharp contrast to one another. Professor Henry Wade Rogers of Yale University holds to the strict view and states the case as follows: [1908]. A disposition has manifested itself to ignore the canons of constitutional construction which have heretofore guided the 66 READINGS IN CIVIL GOVERNMENT courts of this country, and to establish a new theory which shall give to the Constitution that quality of elasticity which is the characteristic of the common law. The Constitution is itself beginning to be regarded by some of our people as an antiquated document which has been outgrown, and which established a government that was democratic in name but anti-republican in fact. An antipathy is expressed to the limitations of power which the Constitution has imposed iiinl which the Fathers reverenced and deemed necessary. These tendencies are found to some extent in both of the great par- ties and in all sections of the country. The tendencies are in- creasing and they should be earnestly opposed and strenu- ously resisted. It is not surprising that, among eighty-five millions of people, theories of government should be advanced which are false, visionary and mischievous. But the expres- sion of such views need not occasion any serious apprehension. The American people, in their final judgment, are not likely to go wrong, or consent that reckless innovation shall proceed unchecked. The foundation principles of our institutions are not to be undermined and destroyed. . . . In one of his speeches, Mr. Secretary Root has said : "It is useless for the advocates of State rights to inveigh against the supremacy of the constitutional laws of the United States or against the extension of national authority in the fields of necessary control, when the States themselves fail in the performance of their duty. The instinct for self-government among the people of the United States is too strong to permit them long to refute anyone's right to exercise a power which he fails to exercise. The govern- mental control which they deem just and necessary they will have. It may be that such control would better be exercised in particular instances by the government of the States, but the people will have the control they need either from the States or from the National Government, and if the States fail to furnish it in due measure, sooner or later constructions of the Constitution will be found to vest the power where it will be exercised in the National Government." In other words, centralization of power in the nation is to be accomplished not by amendment of the Constitution depriving States of rights which are now theirs under the DEVELOPMENT OF THE CONSTITUTION 67 Constitution, but they are to be deprived of those rights by construction and interpretation. The revolutionary character of these utterances will be better understood if they are read in the light of the principles laid down by the leading author- ity on American Law. In his great work on Constitutional Limitations, Mr. Justice Cooley says: "A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as to make a different rule in the case seem desir- able. ... A court or Legislature which should allow a change in public sentiment to influence it in giving to a written Constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty. . . . What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances require. The meaning of the Constitution is fixed when it is adopted, and it is not different at any subsequent time when a Court has occasion to pass upon it." This, it should be needless to say, is the doctrine of the Supreme Court. That Court has lately said : "The Constitution is a written document ; as such its meaning does not alter. That which it meant when adopted, it means now. . . . Those things which are written within its grant of power, as those grants were understood when made, are still within them; and those things not within them remain still excluded. ... As long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers." To be told by men in high authority that the Constitution is to be changed by construction and interpretation, so that it shall mean something different from what it says and from what it has always been understood to mean, and from what it was intended to mean by those who framed and adopted it, is evidence of an extraordinary disregard of the accepted principles of courts and commentators. The proposal to discard the idea that the constitution al- ways means the same thing, and to adopt the theory that the courts shall by construction make it mean what the people 68 READINGS IN CIVIL GOVERNMENT want it to mean or what the exigencies of the occasion may seem to require it to mean, is in effect to propose that the Supreme Court shall have the power, by a vote of five to four, to amend the instrument according to their views as to what it is desirable it should mean. This power the courts are to have in order to give elasticity to the Constitution. The Con- stitution points out the method by which the people are to amend it when, in their judgment, it needs amendment. But as the people have not made much use of the amending power, it is concluded that instead of requiring a change in the Con- stitution to be ratified by the Legislatures of three-fourths of the several states, as the framers provided, it will be much the simpler and easier way just to permit the Supreme Court to make the change by construction, even though it be by a five to four vote, so construing the words used in the instru- ment as to give them, not the meaning which those who framed and adopted the instrument meant them to have, but the mean- ing which the majority of the court may think that the people at that particular time most approve. To secure the approval of five of the judges of the Supreme Court may be less troublesome than to secure the approval of the Legislatures of thirty-four states. But any theory of construction which makes the Constitution mean what a majority of the people think at a given time it should mean, is certainly not in ac- cordance with the law and the prophets. A Federal judge of an inferior court, in a paper read before the American Bar Association at Portland in August last, argued in support of this new theory. But as Mr. Justice Harlan of the Supreme Court of the United States has said, those who hold to this theory are "happily, few in number. " Continuing, Justice Harlan declared that "such theories of constitutional con- struction find no support in judicial decisions or in sound reason, least of all in the final judgments of that tribunal whose greatest function is to declare the meaning and the scope of the fundamental law." DEVELOPMENT OF THE CONSTITUTION 69 14. THE PRESENT MEANING OP THE CONSTITUTION: THE LIBERAL VIEW. On the other hand, Judge Charles F. Amidon of the United States District Court for South Dakota, holds that the Constitution must be constantly given new meanings to meet new conditions as they arise: [1907]. At this time when constitutional questions are being dis- cussed with unusual zeal, it has seemed to me worth while to bring before us in a single vision both these aspects of our constitutional life. They have seldom been looked at together, but in debate each side has put forward the one or other ac- cording to its immediate needs. They embody the progressive and conservative forces of the nation. To give over the en- tire field to either would be equally disastrous. If we accept the notion that our constitution is absolutely rigid and change- less, our government becomes a kind of legal Calvinism, logic- ally perfect, perhaps, but wholly unfit for life. The national growth would be cramped and arrested, and confined to a purely historic mould. The dead hand of the past is oppres- sive when laid upon property, but becomes the worst form of tyranny when laid upon the powers of government. On the other hand, if we exalt our constitutional practice to be the only rule of conduct, all the benefits of written constitutions are swept away. The government becomes solely a control by the majority. Oblivious of the wisdom of the past, it is ruled by the passions and prejudices of the hour. The na- tion has been wiser than the partisans of either our theory or our practice. In utter disregard of nice logical consistency, it has insisted upon combining them both, and in their union has found that mingling of flux and permanence which consti- tutes the living principle of every great historic nation. Of late we have heard quoted again and again, from the Bench and from the platform, the language of Chief Justice Taney in the Dred Scott case, that the constitution "Speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its 70 READINGS IN CIVIL GOVERNMENT framers." The only objection to that fine phrase is that it is not true. The exact contrary would be nearer the truth, viz. : That not a single distinctive word or phrase in the constitu- tion has the same meaning to-day which it had when that in- strument came from the hands of its framers. Such language is as reprehensible from that side of the controversy as on the other side are the words of the impassioned phrase-maker referred to by Senator Knox in his very able address at Yale. With a practical and rapidly progressive people like ours, the Pharisaical doctrine that the nation exists for the constitution instead of the constitution for the nation, can never obtain permanent acceptance. The constitution performs its chief service when it holds the nation back from hasty and pas- sionate action, and compels it to investigate, consider and weigh until it is made sure that the proposed action does not embody the passion of the hour, but the settled purpose of the years. A changeless constitution becomes the protector not only of vested rights but of vested wrongs. As Bacon says, "He that will not apply new remedies must accept new evils, for time is the greatest innovator. ... A froward reten- tion of custom is as turbulent a thing as any innovation. " A constitution which fixedly restrains a people from correcting their actual evils becomes associated in the popular mind with the evils themselves. When it performs that role, as ours once did, it becomes in the estimation of reformers a * * compact witli hell, ' ' and enlightened statesmen appeal from its provisions to a "higher law." But it is now insisted with a zeal such as has not been heard since John Taylor of Caroline, that if the constitution is to be changed it must be done in the manner which the instrument itself provides for its amendment. To say that, however, is to say that it shall not be changed at all, for we are taught by. a century of our history that the constitution can no longer be thus amended. Since 1804 more than two thousand amend- ments have been proposed. Many of them have been the sub- ject of much public discussion, have found a place in party platform ; some have received the requisite vote of one branch DEVELOPMENT OF THE CONSTITUTION 71 of Congress; but with the exception of the war amendments, all have failed of adoption. The vast enlargement of our country has made the method of amendment provided by the fathers far more difficult than they contemplated at the time. They also believed that they had forever foreclosed the possibility of government by party, and the inauguration of that system has made the plan which they devised unworkable; for any amendment which is pro- posed by one party encounters the opposition of the other. If objection does not exist to the subject matter, it is called forth by partisan considerations. No amendment, therefore, is pos- sible except when one party controls the legislatures of three- fourths of the states, and a two-thirds majority in Congress. This condition has not existed since the early part of the last century, nor is it ever likely to occur again. But probably the greatest force opposed to constitutional amendment is the fear of radicalism by the large business in- terests of the country. The wave of socialistic tendency which is now sweeping over all western nations has greatly added to this alarm. Property knows that it is safe under the consti- tution as it is. There is a very general understanding that formal amendment is impossible. Every year that goes by without such a change strengthens that understanding ; but if its power were once broken by an actual amendment, it is im- possible to foresee the forces that might be set in operation. Hence with business interests it is the fact of amendment that controls, and not the subject matter. It is not only true that the constitution cannot be amended in the method which it provides, but that such a change is neither needed nor best. Formal amendment is not suitable to bring about those slight but steady modifications of funda- mental law which adapt it to the progressive life of the nation. It is far too violent a remedy for that purpose. The constitu- tion has been and ought to be accommodated to the ever- changing conditions of society by a process as gradual as the changes themselves. Like the Kingdom of Heaven, amend- ments such as these come not by observation. No political 72 READINGS IN CIVIL GOVERNMENT prophet can say of them, Lo, here ! or Lo, there ! As the re- sult of more than a hundred years of experience the nation has become acquainted with this process of amendment and is satisfied with it. It must now be accepted as a part of our frame of government of equal validity with the constitution itself. But if the constitution is changed by interpretation will it not be entirely swept away by the process ? We hear much of this argument in terrorem. In the minds of its advocates the constitution is a kind of St. Rupert's drop, so fragile that if its elements be disturbed in the slightest degree, the entire combination will explode. Experience tells us that it is made of sterner stuff. After a century of such interpretation by which the instrument has been so altered that Mr. Ford tells us its authors would not know it, it is to-day performing its functions with far greater vigor than during the period fol- lowing its adoption. Being a great instrument of government it cannot be read in the library. As the late Justice Miller stated to a company of judges and lawyers at St. Paul a short time before his death: "The great questions of constitutional law are not to be finally settled by nine men, however wise, taking them off into a room and reading and studying about them. That is the way we start the process. We place the decision the best we can, according to that light, and then see how it works in its actual application to the national life. Very frequently that illumination shows us that we have gone far to one side of the true line. With this instruction of ex- perience we place the next case on the other side and observe its application and so on, from time to time adding to our thought and study the results of experience and observation, we finally evolve the true solution by a process of exclusion and inclusion. The meaning of the constitution is to be sought as much in the national life as in the dictionary. ' ' In our constitutional theory we habitually assume that the provisions of the constitution have but one meaning, and that plain and precise. But this is not its real character. As Marshall declares in McCulloch vs. Maryland, "Its nature DEVELOPMENT OF THE CONSTITUTION 73 requires that only its great outlines should be marked, and its important objects designated. ... It was intended to en- dure for ages to come, and to be adapted to the various crises in human affairs." An instrument of such a character must necessarily leave a wide latitude for construction. The fact that the Supreme Court in constitutional cases so frequently stands five to four, each division assigning weighty reasons for diametrically opposite views, shows plainly how much the con- stitution in actual application is a matter of interpretation. Now that questions of government are becoming so largely economic, the majority of our so-called constitutional cases turn not upon the interpretation of the instrument itself, but upon the construction of the living conditions to which it is to be applied. ADDITIONAL READINGS 1 The Nature of the Federal Government, Bryce, J., Ameri- can Commonwealth, I, 32-37. 2 The Federal Union, Woodburn, J. A., The American Re- public, 60-93. 3 Enumerated and Implied Powers, Tiedeman } C. S., The Unwritten Constitution, 129-44. 4 The Rigid Constitution, Higgins, H. B., Political Science Quarterly, XX, 203-22. CHAPTER IV RELATIONS BETWEEN STATE AND FEDERAL GOV- ERNMENTS 15. NEW FIELDS FOR FEDERAL, LEGISLATION. Since the adoption of the Constitution commerce has developed to a degree and in a way undreamed of in that day and has be- come inextricably involved with the domestic industry of the several states. Hence Congress in regulating interstate commerce and carry- ing out other provisions of the Constitution has been led to the enactment of measures which a century ago, if they could have been foreseen at all, would very probably have been thought, under the conditions then existing, to have been proper subjects for State con- trol. The extent to which the National Legislature has gone or is likely to go in this direction is very well illustrated by the record of measures considered at a recent session of Congress: [1900]. In the President's last annual message there were no less than eight specific recommendations involving the exercise of new functions, or the assumption of new tasks, by the Federal Government. And if a list were compiled of the suggestions made along the same line by bills now before Congress or resolutions of public bodies leaving out "freak" bills and constitutional amendments it would probably be twice as long. Railroad rate-making happens to be the most conspicuous proposal just at present. This is one of the things the National Government is asked to do because, unless it under- takes the task, it will not be performed at all. The States could not secure the same results even if they co-operated to the full. The same may be said, of course, regarding the proposed regulation of express companies and national super- vision of insurance. Other measures widely differing in 74 STATE AND FEDERAL RELATIONS 75 subject matter, fall into the same general class, because they propose that the government shall do something not done by anybody at present, or at least not done efficiently. Such for instance are the protection of Niagara Falls in which the Federal power over boundaries is invoked the preser- vation of the Great Lake fisheries by international agree- ment, and Commissioner Sargent's much- discussed scheme for deflecting the stream of immigrants to those sections of the country where they are wanted. Next may be classed the proposals which are urged on the ground that the Federal Government should step in merely to give the several states a chance to regulate their own affairs. These, for the most part, grow out of changed con- ditions. Centers of production and consumption have come to be so far apart, transportation so easy, and travelling so incessant, that local regulations, once amply sufficient, have been found in many lines, to be little better than farcical. The Pure Food bill owes much of its backing to the fact that a State with good food laws is now at the mercy of one with bad laws or none, which can flood it with impure products; the prohibition communities never cease asking for con- gressional action that will undo the "original package" deci- sions and help the State authorities to stop liquor in transit the moment it crosses the line. . . . Finally should be mentioned those instances in which national action is urged chiefly to secure uniformity of system in some department. The practical restriction of naturaliza- tion to the Federal Courts, is one example, and another the partly completed extension of national trade-mark legis- lation, while the national child-labor law, strongly pushed by a state labor commissioner recently, though without citation of the constitutional provision which would authorize it, is a type of the many benevolent measures so advocated. Efficiency has come to be the controlling argument in most of these cases. Our National Government has a way of getting things done not economically, perhaps, but effec- tively that the States simply stand by and envy. The 76 READINGS IN CIVIL GOVERNMENT illicit liquor-seller who defies the sheriff and the Chief of Police, would not dare to run for a week without paying his Federal tax. The present advocacy of Federal control as a general panacea is really not so much an indication of chang- ing Constitutional views, as a tribute to the relatively effec- tive way in which power is applied from Washington. 16. THE CONSTITUTION AND THE NEW FEDERALISM. That this extension of the powers of the central government is in violation of the true spirit of the Constitution and is dangerous to republican institutions is the belief of many writers upon this sub- ject. Professor Henry Wade Rogers gives clear expression to this view in the following article: [1908]. The founders of the Republic established the Constitution upon the fundamental principles of the absolute autonomy of the States, except in respect to the interests common to the entire country. They realized to the full extent that upon no other principle would it be possible to maintain a republican government over a country even as large as ours then was. Once the question was whether the States would destroy the National Government. Now the question seems to be whether the National Government shall be permitted to destroy the States. It was the fear that that question might sometime arise which led Samuel Adams and John Hancock in Massachusetts, George Clinton in New York, and Patrick Henry in Virginia to withhold for so long their assent to the ratification of the Constitution. But, under the Constitution, the States are as indestructible as the Union. The Constitution looks to an indestructible Union composed of indestructible States. Actual abolition of the States is impossible. There are, however, forces in operation which seek to reduce the States to administrative departments like those of France. There is an increasing tendency to regard a State as a mere geographical expression, rather than a political division of the country. There ought to be, in STATE AND FEDERAL RELATIONS 77 every part of our country, not only a revival of knowledge of the Constitution, but a careful study and weighing of the opinions of the Fathers as they found expression in the de- bates in the Convention which framed the Constitution, and in the Conventions in the several States which ratified that instrument. There is a constitutional and wholesome doctrine of State rights the maintenance of which is of the utmost impor- tance to the continued welfare of the Republic. In the name of State rights certain extreme and disorganizing views were at one time promulgated, which the country received with disfavor. In our day, nullification is recognized as folly and secession as a crime. But it has been said that, because this folly and this crime were committed in the name of the State rights it would be folly to infer that the name may not have a good meaning and represent a useful thing. If the Government is to endure, the people must stead- fastly maintain two essential and fundamental principles; the first is, that the National Government possesses all the powers granted to it in the Constitution either expressly or by necessary implication; and the second is, that the States possess all governmental powers not granted to the General Government or reserved to the people. We are threatened with a revival of Federalism Federal- ism that is more extreme and radical than the leaders of the old Federal party ever countenanced. The argument pro- ceeds on the assumption that the States have failed to perform their duty properly, so that great evils have grown up which the States cannot or will not remedy, and from which we should have been free if only the Federal Government had possessed the authority and not the States. That the evils exist is conceded. That the States have not done their full duty is also conceded. But that the Federal Government would have done better is a mere assumption, and one I am not prepared to accept. Congress has now in the Territories and District of Columbia all the powers which the State Governments possess; yet the legislation respecting 78 READINGS IN CIVIL GOVERNMENT the corporations which Congress has enacted has not been bet- ter than the legislation of the States on the same subject. The laws of Congress have not secured publicity of accounts, nor prevented over-capitalization and stock-watering, and an adequate system of inspection has not been established over Federal corporations. The Union Pacific Railroad with which Congress has been concerned, had, upon its reorganization in 1897, a share capital of $136,000,000, which at market price was worth only $54,000,000, showing an estimated over- capitalization of $81,330,000. Congress has provided for the examination of National Banks. But the inspection of National Banks is not superior to the system which Massa- chusetts has established for the inspection of its State banks. The laws of Massachusetts regulating insurance companies is as good as, and in some respects better than, that which the advocates of a Federal law endeavored to get Congress to enact a year or two ago. And about the same time the Presi- dent was declaring in messages to Congress that the States were incompetent to deal with the problem of ir.surance the State of New York, under the guidance of its present Gov- ernor, enacted an admirable piece of legislation, superior to that which a president of a New Jersey insurance company, himself a Senator, was seeking to impose upon Congress, under the fallacious assumption that insurance was inter- state commerce, the Supreme Court of the United States to the contrary notwithstanding. During the present year, the same State, under the direction of the same Governor, has enacted a Public Utilities law which, as a piece of con- structive legislation intended to curb the public service cor- porations, is in advance of anything which has come from Congress respecting the corporations it has created, or over which it has control as the legislature for the Territories or the District of Columbia. The tendency to take their domestic affairs from the con- trol of the State is shown by the agitation in favor of a national incorporation law. It is assumed that the power to regulate commerce includes the right to regulate the corpora- STATE AND FEDERAL RELATIONS 79 tion which is engaged in commerce. But if, under its power to regulate commerce, Congress can assume control over all corporations which engage in interstate commerce, it is difficult to see why it has not an equal right to assume a like control over all partnerships that do any interstate busi- ness, as well as over all individuals whose business is of a similar nature. In this way Congress can take to itself juris- diction over a very large part of the business of the country, withdrawing from the control of the States what has always been supposed to be within their peculiar province, and work- ing a fundamental change in the character of the Govern- ment itself. It may be very seriously questioned whether the mere fact that a corporation or a partnership is engaged in interstate commerce affords any sound legal reason for assuming that Congress has the right to exercise an exclusive jurisdiction over every such corporation and partnership or individual who engages in interstate commerce, even though the interstate commerce may be but a part of the business of guch corporation or partnership, as they may be likewise engaged in intrastate commerce. So that if the regulation of corporations is a regulation of interstate commerce it may be a regulation of intrastate commerce as well. If Congress has jurisdiction over every corporation which to any extent engages in interstate commerce, what is there to prevent Congress from declaring that the vast properties which these corporations control shall not be taxed by the State Governments without the consent of Congress? The States cannot tax National Banks except to the extent author- ized by the national banking laws. If all corporations en- gaged in interstate commerce are to be compelled to incor- porate under a national incorporation law, why may not Congress prohibit the States from taxing such corporation or the properties which they own ? It is nothing to the pur- pose to say that Congress would never exercise the power. The fact that it could exercise the power, and might some- time do so to a greater or less extent, is one not lightly to be lost sight of, as these corporations own a very large por- 80 READINGS IN CIVIL GOVERNMENT tion of the wealth of the country, the withdrawal of which from the taxing power of the States would be most mischie- vous, crippling the power of the States and imposing new burdens of taxation on the individual citizen. The disposition to extend the power of Congress beyond its constitutional limits and unduly to dimish the proper legislative authority of the States is further exemplified in the passage by Congress in 1906 of the Employer's Liability Act. Congress assumed that, under its power to regulate commerce, it could pass the act and apply it to all employes of common carriers engaged in interstate commerce, even though such employes rendered no service in the transportation of interstate commerce, such as engineers of local trains, section hands, mechanics in car and machine shops and clerks in offices. The Supreme Court in the Employer's Liability cases declared the law unconstitutional and denied the contention of the Attorney-general that where one engages in interstate commerce one thereby comes under the power of Congress as to all his business and may not complain of any regulation which Congress may choose to adopt. The extremes to which advocates of the New Federalism go is shown in the proposal to enact the Beveridge child-labor law and make it applicable throughout the United States. The Supreme Court has decided that the power to regulate commerce does not confer power to regulate manufactures, as commerce and manufactures are not synonymous. But the advocates of the bill asserted that the Government has the power to shut out from interstate business any article manufactured in violation of the Act. To assume that Con- gress can do this is to assume that it can regulate the hours of labor, the wages paid and the prices charged by any factory in the United States for goods which are to find their way into interstate commerce. To assume that the Congress has any such power is to assume that American statesmen and American lawyers for a hundred and twenty years have not understood the Constitution of this country aright. The excuse made for bringing a bill of this kind before STATE AND FEDERAL RELATIONS 81 Congress was that the States had not discharged their full duty in the matter. But if half the States have not enacted a child-labor law, they are no more delinquent than Congress. No one questions that Congress has a Constitutional right to make such a law applicable to the District of Columbia and for the Territories. It has, however, never done so, and the same condemnation which its advocates pronounce upon the States which have failed to enact such laws is applicable to the Congress for a similar neglect within the limits of its unquestioned jurisdiction. Undoubtedly there should be such a law in each State, and one already exists in a majority of the States. Until recently, it had always been supposed that the Federal Government had no possessive title to the water flowing in navigable streams, nor to the land composing their beds and shores. It had not been thought that Congress could grant any absolute authority to anyone to use and occupy such water and land for manufacturing and industrial purposes. The theory has been that the Federal Government controlled navigable streams for the single purpose of preventing obstruc- tion to navigation. The States have granted the use of these streams for power or irrigation purposes, and their action has always been understood to be subject to be reviewed by Congress, but only to the extent of determining whether that which the States had authorized would consti- tute an interference with commerce. Now, apparently un- mindful of an impressive line of decisions of the courts which assert the doctrine that the waters of a river and the waters of the arms of the sea belong to the States and not to the Federal Government, the President recently sent a message to Congress asserting a right in the General Government to exact tolls for the use of the waters in navigable streams, and of his intention to veto all bills granting water-power rights which do not authorize the President or the Secretary concerned to collect such tolls as he may find to be just and reasonable. A Republican Senator properly characterized the doctrine as "the most far-reaching and over-reaching 6 82 READINGS IN CIVIL GOVERNMENT claim of power that was ever made in a government. ' ' And, he added: "The Kings and Emperors claim no such rights in their lands." 17. STATE VS. FEDERAL CONTROL. The reasons impelling the Federal Government to enter into and assume control of what Professor Rogers holds to be the proper sphere of State legislation are thus set forth by Judge Charles F. Amidon: [1907]. There never was a time when the interpretation of the constitution required a more careful consideration of living conditions than to-day. Within the last fifty years economic forces have been introduced into our life that are as revolu- tionary of pre-existing conditions as the introduction of gun- powder was of the state of feudalism. Seward's statement in the debate of 1850 that "Commerce is the god of boundaries and no man now living can tell its ultimate decree" is far more true at present than when it was uttered. When the constitution was adopted the unit of our social and business life was the commonwealth. With the exception of the foreign and coasting trade, the commerce and industry of each state was confined to its own borders. The union was political instead of industrial or commercial. To-day our industry and our commerce are national. They are made aware of state lines only by conflicting and often narrowly selfish enactments. The unite of commercial and industrial organization extend to many states, often to the entire nation. Instead of being required to obey one master, busines- compelled to obey many. Coincident with this enlargement of business enterprise to embrace different states, has occurred a revolution in state activity. During the first half of the Nineteenth Century the doctrine of laissez-faire was the fun- damental principle of government. The state left commerce and industry to private control. To-day that is all changed. Government is now present in all lines of business. When the state regulated but little, business was not much con- STATE AND FEDERAL RELATIONS 83 cerned who did the regulating. But now that all govern- ments are competing in their zeal for regulation, whether one government or many, the nation or- the states, shall do the regulating, becomes a matter of paramount importance. These changed conditions in our actual life compel a recon- sideration of our divided governmental authority to see what now belongs to the nation, and what to the states. The problem is not the same as it was ; it cannot be answered by reading history or studying precedents. The new condition has manifested itself most conspicuously in two fields, the railroad and the interstate industrial cor- poration. At the beginning the railroads were local. There was a time when in making a shipment of freight from New York to Buffalo, at least three different bills of lading were required. Now five great systems embody more than three-fourths of the total mileage of the country, and the work of consolidation is still in progress. There are no longer state roads, but all are instruments of interstate commerce. Actual statistics are wanting but persons in a position to know are of the opinion that the local business of the rail- roads does not exceed fifteen per cent, of their entire traffic. In a case tried in one of our western states a few years ago, it was judicially found that the local business there involved amounted to less than three per cent. In the face of these conditions, it is impossible to maintain over common carriers the manifold control of the different states and the federal government. There is no way in which local business can be separated from through business. The same road-bed serves both ; both are carried in the same train and by the same crew. Back of every schedule of rates prescribed by government is the question, are those rates reasonably compensatory? Under our present system that question as to state rates must be decided solely upon local business, and as to interstate rates solely upon interstate business. The court cannot look to the entire traffic in judging of the reasonableness of either. While it is possible to ascertain what revenue is derived from 84 EEADINGS IN CIVIL GOVERNMENT each class, it is absolutely impossible thus to distribute the cost of operation and maintenance. The evidence upon that subject is wholly speculative and conjectural, consisting entirely of opinion testimony given by parties having a vital interest in the result of the litigation. In actual operation the railroads do not, and cannot keep the two kinds of com- merce separate. Why then should the law attempt to divide that which in actual life is a unit and indivisible? . . . It is vain to appeal to states, as did Secretary Root in his New York address, to subordinate local advantage to the gen- eral welfare. Our whole history is a confirmation of the state- ment of Mr. Pinckney in the constitutional convention that "States pursue their interests with less scruple than indi- viduals. " They exhibit all that lack of conscience charac- teristic of those who exercise delegated power. As Justice Miller points out in his lectures on the constitution, had it not been for the dominant authority of the central govern- ment, the general welfare would have been as completely sacrificed to local selfishness under the constitutijn as it was under the articles of confederation. What states require is not exhortation but authority. The situation in the field of industry presents the same general features. To abolish local control over matters ex- tending outside of the state was the origin not only of the article conferring power on the national government to regu- late commerce among the states, but also of those provisions which forbid states to lay imposts or duties on exports or imports, and which secure to the citizens of each state the privileges and immunities of citizens of the several states. These restrictions were placed in the constitution not so much that men might be free, as that national commerce and indus- try might be free. They have been largely nullified in actual life by the fact that business is now carried on by corporations instead of persons. When the constitution was adopted only twenty-one corporations had been formed in the United States. These were mainly for the construction STATE AND FEDERAL RELATIONS 85 of canals and turnpikes. There was but one bank and two trading companies. . . . As business agencies corporations had no part either in life or thought, consequently they had no place in the constitu- tion. The Supreme Court has held that they are not citizens within the meaning of the Fifth Amendment, and that each state may either wholly exclude them, or impose as conditions of their entering or remaining in the state such terms as local policy or interest may suggest. The result is that business which was intended to be free, has in fact become subject to local authority. The abuses of corporate organization and management have heretofore commended this exercise of local control. Ultimately, however, we shall become increasingly aware of its injustice and folly. Business cannot be con- ducted in this century except through the agency of corpora- tions; but the very enlargement of that agency has caused industry, the same as commerce, to overleap the bounds of states, and thus become subject to governments whose only interest in them is that of the publican. "Federal," "National," ''Union," "United States," "International," "American," these terms find a place in the names of the corporations that are carrying on our large business enter- prises and are not mere high-sounding titles, but are truly indicative of the scope of the business conducted. They have taken national titles because their business is national and international. While engaged in the prepara- tion of this paper I employed three young men in different libraries to examine and summarize state laws passed since 1890, directed against foreign corporations solely upon the ground of their alienage. My purpose was to institute a com- parison between laws of that character now in force, and discriminatory statutes passed by the several states under the articles of confederation. But the mass of material turned in by these investigators was so great as to surpass any leisure at my command for its study and classification. The reports, however, leave no room for doubt that the laws now in force 86 HEADINGS IN CIVIL GOVERNMENT are both more vicious in character and varied in form than were those of the earlier period. At that time discrimina- tion was confined in the main to taxation by states having ports of entry against those who had them not. To-day they embrace not only double, and frequently manifold taxa- tion, but the thousand forms of regulation which recent governmental activity in the field of business has developed. A condition which was then deemed sufficient to cause the framing and adoption of the constitution ought now to be adequate to compel the exercise of the power which the con- stitution vested in the federal government for the very pur- pose of controlling such conditions. How far may the national government go in the control of those matters which have become in fact national? The situation fits exactly the terms of the resolution passed in the convention that framed the constitution, and which was the source of all the powers and restrictions embodied in that instrument. It presents a case "to which the separate states are incompetent and in which the harmony of the United States may be interrupted by the exercise of individual legis- lation.'* As to railroads there is no more reason why they should be subject to a divided authority than there is in the case of navigation. There will, of course, be in the one case as in the other, local matters that can be best dealt with by local authority. But as to all that affects them as com- mercial agencies, whether that commerce be local or inter- state, the railroad is a unit; its activities are national, and it ought to be subject solely to national authority. Divided control is inefficient in protecting the public, and grossly un- just in the burdens which it places upon the carrier. Dur- ing the last winter there were passed in the states west of the Mississippi River one hundred and seventy-eight statutes dealing directly with transportation and its instrumentalities. The number of such statutes now in force throughout the entire country extends well into the thousands. They are conflicting, oppressive, inefficient. They seldom represent intelligent investigation, but in the main have had their origin STATE AND FEDERAL RELATIONS 87 in agitation, often in popular frenzy. State legislatures have not yet learned that due process of legislation, like due process of law, proceeds upon inquiry, and legislates only after hearing. Protection to the public and justice to the carrier alike unite in the demand for a single govern- mental control. The power under the commerce clause of the constitution is plain. The decisions of the Supreme Court have placed that subject beyond the realm of controversy. If the railroad as an instrument of commerce can only be dealt with justly and efficiently by a single authority the federal government may assert and maintain its exclusive jurisdiction. Regulation is now inefficient because divided. If the federal government shall take exclusive control, it will then be responsible alone for such a control as shall be both efficient and just. Public opinion will have a single point for its direction, and will not be dissipated among many con- flicting authorities. The subject does not demand separate rules for the separate states. Their action refutes such a doctrine. By the legislation of the past winter Virginia and Ohio, Pennsylvania and Minnesota are combined in the same passenger rate, though they vary as five to one, in density of population and travel. The subject is national, and the federal government with its national outlook can by organized investigation and accumulated experience best acquire the skill and knowledge necessary for its just and efficient regula- tion. . . . Our great corporations are now national in their character and national and international in the scope of their opera- tions. To regulate their formation is one of the most direct and efficient means of regulating their activities. For forty- five states to create corporations and the national govern- ment to regulate their most important business cannot fail to result in inefficiency and conflict. Hitherto interests to be regulated have found advantage in the dual form of authority. It has enabled them to assert whenever either authority attempted their regulation that the power properly belonged to the other authority. We have now arrived at a state of 88 READINGS IN CIVIL GOVERNMENT knowledge and publicity which makes this kind of shuffling impossible. The nature of the subject to be regulated and not the shifting desires of the interests concerned must determine the place of authority. Our first great conflict between the states and the nation was waged over the subject of banking and finance. No sooner were we started under the constitution than the need of a national agency in that field was discovered. But the local jealousy of the states prevented its establishment for more than seventy-five years. During that period we were subject to all the injury and confusion erf wild-cat banking under state authority. Banking and finance, however, were not more national at that time than commerce and industry have now become, and the same conflict is again presented in this new field. We can get along with divided authority to-day on these subjects just as we got along with state bank notes. This nation can stand almost anything. But it is the duty of government in the exercise of its power to create con- ditions which are not simply tolerable, but those which are most conducive to the general welfare. A uniform authority in the field of interstate commerce and industry will be found as beneficent to-day as it was discovered to be in the field of finance and banking as the result of our first economic conflict. The problem of regulating these affairs has attained its present magnitude largely because the federal government has neglected to exercise its constitutional power over the subject in the course of its development. Until the interstate com- merce act was passed in 1887 the negative power of the courts was the only federal control. Even by them till 1886 the states were sustained in their authority over interstate as well as domestic rates of carriers. The truth is that the national government has so long neglected its powers under the com- merce clause of the constitution that now, when it tardily takes up its duties, it is charged by the states with usurpation. STATE AND FEDERAL RELATIONS 89 18. THE STATES AND THE FEDEEAL GOVERNMENT. Another view of the relation between the States and the Federal Government and a possible solution of the difficulty is suggested by President Woodrow Wilson. Speaking of the problem of States Rights, he says : And now the question has come upon us anew. It is no longer sectional, but it is all the more subtle and intricate, all the less obvious and tangible in its elements, on that account. It involves, first or last, the whole economic move- ment of the age, and necessitates an analysis which has not yet been even seriously attempted. Which parts of the many- sided processes of the nation's economic development shall be left to the regulation of the States, which parts shall be given over to the regulation of the federal government? I do not propound this as a mere question of choice, a mere ques- tion of statesmanship, but also as a question, a very funda- mental question, of constitutional law. What, reading our Constitution in its true spirit, neither sticking in its letter nor yet forcing it arbitrarily to mean what we wish it to mean, shall be the answer of our generation, pressed upon by gigan- tic economic problems the solution of which may involve not only the prosperity but also the very integrity of the nation, to the old question of the distribution of powers between Congress and the States? For us, as for previous genera- tions, it is a deeply critical question. The very stuff of all our political principles, of all our political experience, is involved in it. In this all too indistinctly marked field of right choice our statesmanship shall achieve new triumphs or come to calamitous shipwreck. The old theory of the sovereignty of the States, which used so to engage our passions, has lost its vitality. The war between the States established at least this principle, that the federal government is, through its courts, the final judge of its own powers. Since that stern arbitrament it would be idle, in any practical argument, to ask by what law of abstract principle the federal government is bound and restrained. Its 90 READINGS IN CIVIL GOVERNMENT power is "to regulate commerce between the States," and the attempts now made during every session of Congress to carry the implications of that power beyond the utmost boundaries of reasonable and honest inference show that the only limits likely to be observed by politicians are those set by the good sense and conservative temper of the country. The proposed federal legislation with regard to the regula- tion of child labor affords a striking example. If the power to regulate commerce between the States can be stretched to include the regulation of labor in mills and factories, it can be made to embrace every particular of the industrial organ- ization and action of the country. The only limitations Con- gress would observe, should the Supreme Court assent to such obviously absurd extravagancies of interpretation, would be the limitations of opinion and of circumstance. It is important, therefore, to look at the facts and to under- stand the real character of the political and economic materials of our own day very clearly and with a statesmanlike vision, as the makers of the Constitution understood the conditions they dealt with. If the jealousies of the colonies and of the little States which sprang out of them had not obliged the makers of the Constitution to leave the greater part of legal regulation in the hands of the States, it would have been wise, it would even have been necessary, to invent such a division of powers as was actually agreed upon. It is not, at bottom, a question of sovereignty or of any other political abstraction; it is a question of vitality. Uniform regulation of the economic conditions of a vast territory and a various people like the United States would be mischievous, if not impossible. The statesmanship which really attempts it is pre- mature and unwise. Undoubtedly the recent economic development of the country, particularly the development of the last two decades, has obliterated many bound- aries, made many interests national and common, which until our own day were separate and local; but the lines of these great changes we have not yet clearly traced or studi- ously enough considered. To distinguish them and provide STATE AND FEDERAL RELATIONS 91 for them is the task which is to test the statesmanship of our generation; and it is already plain that, great as they are, these new combinations of interest have not yet gone so far as to make the States mere units of local government. Not our legal conscience merely, but our practical interests as well, call upon us to discriminate and be careful, with the care of men who handle the vital stuff of a great constitu- tional government. The United States are not a single, homogeneous community. In spite of a certain superficial sameness which seems to impart to Americans a common type and point of view, they still contain communities at almost every stage of develop- ment, illustrating in their social and economic structure almost every modern variety of interest and prejudice, following occupations of every kind, in climates of every sort that the temperate zone affords. This variety of fact and condition, these substantial economic and social contrasts, do not in all cases follow state lines. They are often contrasts between region and region rather than between State and State. But they are none the less real, and are in many instances per- manent and ineradicable. . . . The remedy for ill-considered legislation by the States, the remedy alike for neglect and mistake on the part of their sev- eral governments, lies, not outside the States, but within them. The mistakes which they themselves correct will sink deeper into the consciousness of their people than the mistakes which Congress may rush in to correct for them, thrusting upon them what they have not learned to desire. They will either them- selves learn their mistakes, by such intimate and domestic processes as will penetrate very deep and abide with them in convincing force, or else they will prove that what might have been a mistake for other States or regions of the country was no mistake for them, and the country will have been saved its wholesome variety. In no case will their failure to correct their own measures prove that the federal government might have forced wisdom upon them. 92 READINGS IN CIVIL GOVERNMENT 19. EXTRADITION OP FUGITIVES FROM JUSTICE BETWEEN THE STATES. Under authority granted by the Constitution, Congress in 1793 passed a law providing for the extradition of fugitives from justice. This law is still in force and Mr. J. S. Wise thus explains its his- tory and operation: Pursuant to this obligation the Congress has enacted statutes providing for the extradition from one State to an- other of fugitives from justice. These Federal statutes control the demand, and statutes have been passed in all the States providing measures in accordance with the Federal laws. In the first case of extradition presented to the Supreme Court, the prisoner was indicted in Canada and requisition was made by the Canadian government on the governor of Vermont, who undertook to deliver him. He applied for a habeas corpus on the ground that such a delivery could only be made to a foreign government on a requisition upon the United States, and that the United States would not, as had been shown by its action in another case, honor the requisi- tion because there was no treaty. The Vermont court dis- missed the writ, and the Supreme Court, by a divided court, sustained the action of the State Court. In another case it was held to be the duty of the governor of one State, on the demand of the governor of another State, and the production of the indictment, duly certified, to deliver up a fugitive from justice ; that the function of the former is merely ministerial, and that he has no right to exercise any discretionary power; that he is under moral obligation to perform the compact of the Constitution, Congress having regulated the manner of performance; but that no law of Congress could coerce a State officer to perform his duty, and a motion for a man- damus against the governor was denied. And again it was held that the Federal statute demanding surrender of a fugi- tive from justice found in one of the States or Territories, to the State in which he stands accused, applies to Territories STATE AND FEDERAL RELATIONS 93 as well as States and embraces every offense known to the law, including misdemeanors. In one case a man charged with crime in Kentucky fled to West Virginia. A requisition issued for him. While the governor of West Virginia was considering his extradition the man was seized in West Virginia, forcibly abducted to Kentucky, and there held for trial. He instituted proceed- ings seeking to have himself returned to West Virginia. The Supreme Court held that there was no mode provided by the Constitution or laws of the United States, by which Federal authority could restore him to West Virginia. And a fugitive returned to a demanding State has no im- munity from other indictments against him by the State from which he fled, after he is returned. But the Supreme Court has said that to extradite a man on one charge and try him on another is dishonorable. The governor of a State, upon whom demand is made for the surrender to another State of a citizen who is charged with being a fugitive from justice, may refuse the requisition if it be satisfactorily shown to him that the accused was not in the State at the time the alleged offense was committed, or since, for in that case the fact that he fled from justice is negatived. From the foundation of the government and notwithstand- ing the absolute power of Congress to regulate the terms of surrender of fugitives, the governors of States have been dis- posed to show independence on this subject of honoring re- quisitions. In the days of slavery it was difficult to secure the surrender of fugitive slaves, and impossible to secure the surrender of persons charged in a slave State with having aided slaves to escape and having then themselves fled. . . . In some States the executive, before honoring the requisition of the governor of the demanding State, claims the right to examine the indictment upon which the demand is based, and to determine whether it is in due form, or to decide whether it charges an offense punishable under the laws of the demand- ing State, which is equivalent to deciding a demurrer to the 94 READINGS IN CIVIL GOVERNMENT indictment; and even to hear testimony to determine the question of probable guilt or innocence. A notable instance of this is the case of a recent governor, indicted for com- plicity in the murder of his political rival, who, having fled first to one and then to another State, was demanded by the authorities of the State from which he fled, of the authorities of both States in which he sought asylum, but has been pro- tected from delivery. Perhaps, in the instance cited, it was best so, but the better opinion is that if a crime is charged and demand is made, in due form, accompanied by an exem- plified copy of the indictment, the duty of the executive upon whom the demand is made is to surrender the accused to the demanding State, whether he may think him properly or im- properly indicted, innocent or guilty, leaving the questions of the sufficiency of the indictment and his guilt or innocence to be determined by the lawfully constituted authorities of the demanding State upon his trial there. ADDITIONAL READINGS 1 Federal Control of State Governments, Willoughby, W. W. f The American Constitutional System, 111-21. 2 Federal and State Powers, Ibid., 135-53. 3 Inter-State Relations, Ibid., 272-90. 4 The Working Relations of the National and State Gov- ernments, Bryce, J., American Commonwealth, I, 325-41. 5 The Increased Control of State Activities by Federal Courts, Moore, C. A., Proceedings of the American Political Science Association, V, 64-73. CHAPTER V THE RIGHTS AND IMMUNITIES OF CITIZENSHIP 20. CITIZENSHIP IN THE UNITED STATES. When the Federal Constitution was drawn up no clear definition of United States citizenship was made. Citizenship in some one of the States, of course, antedated citizenship in the United States and it was uncertain to which authority the citizen owed primary alle- giance, the State or the United States. This remained the situation until the adoption of the fourteenth amendment. The effect of this amendment upon citizenship in the United States is explained in the following paragraph by Mr. Wm. L. Scruggs: Our first attempt at a constitutional definition of the phrase "Citizen of the United States/' was made after a somewhat stormy experience of about eighty years. I allude, of course, to the Joint Resolution of the 39th Congress, of June 16th, 1866, proposing what is now known as the Four- teenth Amendment. It was subsequently ratified by the req- uisite number of States; and, on the 21st July, 1868, was officially proclaimed as an integral part of our fundamental law. The first section of that Amendment declares, that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside/' And, in due course, each of the particular States, conforming to this definition, so amended their codes as to declare, in substance, that "all citizens of the United States, residing in the State, are citizens of the State," thus excluding, by plain implica- tion, all who are not citizens of the United States. This has been characterized as "a revolution in our form of government." It was not quite that. But it was a turn- 95 96 READINGS IN CIVIL GOVERNMENT ing point in our constitutional and political history, and marked the advent of a new era in the evolution of American citizenship. Up to that time, we searched in vain for some clear and authentic definition of the familiar but doubtful phrase, "Citizenship of the United States." It could be found neither in our fundamental or statutory law, nor in any of the decisions of our Supreme Court. Nor could it be derived from the concurrent actions or ruling of any two of the co-ordinate departments of the Government. In its ele- ments and its details, citizenship of the United States was as little understood, and as much open to speculative criticism, in 1861, as it was in 1787. For more than three-quarters of a century, it had been an adjourned question whether a per- son could be a citizen of the United States at all except as he was such incidentally, and then only in a limited or quali- fied sense, by reason of his being a citizen of one of the par- ticular States. It was, therefore, an open question whether the ultimate allegiance of the citizen was due to the State or to the general government. Indeed, Mr. Calhoun and other ex- ponents of the so-called "Jeffersonian" theory of the Consti- tution, had gone so far as to contend that there was "no such thing as citizenship of the United States per se"; that a per- son born and living in the District of Columbia or other Ter- ritory of the Union, although in the United States and sub- ject to its jurisdiction, was not, in reality, a citizen of the United States! And, absurd as this proposition now seems,' it had never been fairly met by any adverse decision of our Supreme Court. The Fourteenth Amendment settled, as it was intended to settle, this vexed question at once and forever. It established a citizenship of the United States that is wholly independent of State lines. It thus created a central authority command- ing the common obedience of its individual members, and, for the first time, made us a nation in fact as well as in name. A person may now be a citizen of the United States without being a citizen of any one particular State; but by no con- ceivable combination of circumstances, can he be a citizen BIGHTS OF CITIZENSHIP 97 of one of the particular States till he is first a citizen of the United States. 21. RIGHTS AND IMMUNITIES OP CITIZENSHIP. The subject of rights of citizenship in the United States is com- plicated by the fact that these rights have their source in and depend for their guarantee upon two governments, the State and the Fed- eral. The following selection from Mr. J. S. Wise will help to make clear the development of these rights and the relation of the two sources from which they are drawn: When we come to a study of the Declaration of Inde- pendence itself we find a reassertion of principles concerning the equality of men, their unalienable rights, that government is instituted to secure those rights, that it derives its just powers from the consent of the governed, and the right of the people, when it becomes destructive of those ends, to alter or abolish it and institute a new government. After declaring that long established governments should not be changed for light and transient causes, it proceeds to arraign the British government for a long train of abuses and usurpations. We may gather, from the enumeration of those abuses, the following claims made by the revolutionists con- cerning the rights, privileges, and immunities of citizens. 1. The right of representation in the legislature, a right inesti- mable to them. 2. The right to have representative bodies assembled at usual and comfortable places convenient to the depository of their public records. 3. The right to have frequent sessions of the legislature. 4. The right to have a system of naturalization laws. 5. The right to have an independent judiciary. 6. The right to oppose a multitude of offices. 7. The right to oppose standing armies in time of peace. 8. The right to have the civil power superior to the military power. 9. The right to resist quartering of armed troops among them, 10. The right to trade with the outside world. 11. The right to a voice in taxation. 7 98 READINGS IN CIVIL GOVERNMENT 12. The right to trial by a jury of the vicinage. 13. The right of local self-government. . . . Let us first examine the rights of citizens as citizens of the States; for these clearly antedate whatever rights they pos- sess as citizens of the United States, by a period equal to that which elapsed between the acknowledgment of the inde- pendence of the thirteen independent colonies by Great Brit- ain, and the formation of the Union by the States themselves. No State in the Union has ever sought to embody in one written chart a full expression of all the rights, privileges, and immunities of its citizens. Nor will the attempt now be made. On this subject we shall content ourselves with the language of Mr. Justice Washington, construing Section 2 of Article IV, of the Constitution of the United States, which provides: "Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." He said: "The inquiry is, What are the privileges and immunities of citi- zens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens' of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fun- damental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject, nevertheless, to such restraints as the govern- ment may justly prescribe for the general good of the whole." Mr. Justice Miller, in the Slaughter-House Cases, said, with reference to this observation of Mr. Justice Washington: "The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted." We have already seen that during the period in which the RIGHTS OF CITIZENSHIP 99 States co-operated under articles of confederation, the rights, privileges, and immunities of their citizens were derived ex- clusively from their respective States, and that the power of the United States did not extend to the control of the indi- vidual, save in a few limited and specified cases; and that as then constituted the United States did not attempt to grant or guarantee to the individual citizen any rights, privileges, or immunities, save to citizens of one State in another State. "When, upon the adoption of the Federal Constitution, Fed- eral power operated directly upon individual citizens of the United States, the number of Federal guarantees of their rights was extended also. These guarantees were the neces- sary correlatives of the specific powers granted to the Federal government, and are the supreme law of the land on the sub- jects to which they refer. But it by no means follows from this that the Federal gov- ernment is supreme concerning all the rights, privileges, and immunities of the citizen. On the contrary, while it is su- preme in its sphere and possesses ample authority to enforce the powers expressly delegated to it by the Constitution, it is only a government of delegated and limited powers, and the States, in forming it, expressly retained and reserved in themselves the absolute control, direction, and sovereignty over their citizens concerning a vast residuum of rights, priv- ileges, and immunities which, prior to the adoption of the Constitution, they had regulated exclusively. For instance, it has never been contended that the Constitution, as orig- inally framed, created in the Federal government any power to establish any code of municipal law applicable to the States composing it, regulative of all private rights between man and man in society, or that Congress may usurp the powers of State legislatures concerning such legislation. The Supreme Court of the United States has repeatedly taken occasion to point out that no such power exists, either under the original Constitution or by virtue of any of the amend- ments. As we shall see later, a vast amount of litigation which has arisen under the constitutional amendments has 100 READINGS IN CIVIL GOVERNMENT been based upon a confused notion that the XIII, XIV, and XV Amendments in some way altered and extended the gen- eral scope of Federal powers, even to the point of effecting this fundamental change. But an unbroken line of Federal decisions has denied that such a change in the organic struc- ture of the Federal government was either contemplated or effected by the amendments, and points out that the legisla- tion which Congress is authorized to enact under the amend- ments is not general legislation upon the rights of citizens, but only certain corrective legislation, if such be necessary, to counteract State legislation prohibited by the amendments upon special subjects named in the amendments. When we come to examine the multitudinous decisions of the Supreme Court on questions which have arisen under the amendments it will be seen that the cases have for the most part not originated in any alleged act of the Federal govern- ment invading the sphere of State action, but upon the con- tention made by citizens of the States that Federal powers, as enlarged by the amendments, are much more f ar-reaching and restrictive upon State powers than the Federal courts themselves have been willing to admit. The decisions ren- dered by the Supreme Court have in an overwhelming ma- jority of cases been against the broad effect of the constitu- tional amendments as authorizing extended Federal powers, or as restricting State powers, contended for by the citizens; and they declare unanimously the continuing power of the States, notwithstanding the amendments, to regulate exclu- sively the rights, privileges and immunities of citizens upon the matters in issue, subject only to the particular limitations named in the amendments. 22. RIGHTS OF CITIZENSHIP UNDER THE FOURTEENTH AMENDMENT. The following extracts from recent decisions by the Supreme Court of the United States will serve to amplify the statement made in the preceding selection that the effect of the War Amendments was not to destroy the control exercised by the States over the great RIGHTS OF CITIZENSHIP 101 body of civil rights. In the famous Civil Rights cases decided in 1883, in which the Civil Rights Act of 1875 was held unconstitutional, the court said: Until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment nor any proceeding under such legislation, can be called into activity ; for the prohibitions of the amendment are against States laws and acts done under State authority. Of course, legislation may, and should be, provided in ad- vance to meet the exigency when it arises; but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, State laws, or State action of some kind, adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty and property, denning them and providing for their vindica- tion. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty and property (which include all civil rights that men have), are by the amendment sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case; and that, because the denial by a State to any persons, of the equal protection of the laws, is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizens, but corrective legislation, that is, such as may be necessary and proper for counter- acting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may 102 .LADINGS INF CIVIL GOVERNMENT commit or take, and which, by the amendment, they are pro- hibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character. And again, in the Slaughter House cases in which the authority of the United States was invoked to prevent the Legislature of Louisiana from making certain regulations to govern the slaughter- ing business in New Orleans, the Court held that no such authority had been conferred upon the United States by the amendments in question: [1873]. It would be the vainest show of learning to attempt to prove by citation of authority, that up to the adoption of the recent amendments, no claim or pretense was set up that those rights depended on the Federal government for their ex- istence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the State such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declara- tion that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Fed- eral government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion BIGHTS OF CITIZENSHIP 103 any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judg- ments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But, when, as in the case before us, these con- sequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our insti- tutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers, heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal government to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt. We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legis- latures of the States which ratified them. Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State govern- ments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State 104 READINGS IN CIVIL GOVERNMENT can abridge, until some case involving those privileges may make it necessary to do so. But lest it should be said that no such privileges and im- munities are to be found if those we have been considering are excluded, we venture to suggest some which owe their ex- istence to the Federal government, its National character, its Constitution, or its laws. One of these is well described in the case of Crandall v. Nevada. It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, "to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justices in the several States." And quoting from the language of Chief Justice Taney in another case, it is said "that for all the great purposes for which the Federal government was established, we are one people, with one common country; we are all citizens of the United States/' and it is as such citizens that their rights are supported in this court in Crandall v. Nevada. Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privileges of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not EIGHTS OF CITIZENSHIP 105 citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State. . . . 23. THE WRIT OP HABEAS CORPUS. One of the most cherished rights of English and American citizens and one of the greatest bulwarks against an oppressive government is the right of Habeas Corpus. A good idea of the importance of this right and of the circumstances leading to its recognition in Eng- land whence it was brought to America may be gained from the fol- lowing description by Professor C. C. Crawford: "The right to personal liberty as understood in England," says Dicey, " means in substance a person's right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification." Since the seventeenth century, the right to the writ of Habeas Corpus has been justly regarded as the most effective among the guarantees of personal liberty. In brief the legal process is this: a court of competent jurisdiction, upon application, issues a writ to an officer or to any person holding another in custody, commanding him to bring the prisoner before the court at once and show the reasons for his detention. If in the judgment of the court the charges do not justify such detention, the prisoner is discharged. But if they are con- sidered adequate, and the offense is bailable, he is released upon furnishing suitable bail; otherwise he is remanded to prison. To the English people is due the credit for having created this most effective remedy for infringement upon per- sonal liberty, although it has now been adopted with various modifications in nearly all civilized countries. The tendency of legal writers has been to obscure the origin and develop- ment of the writ of Habeas Corpus behind a mass of vague generalities, extolling the liberty of the English subject. In the absence of a careful and detailed history of the writ, it is 106 READINGS IN CIVIL GOVERNMENT the purpose of this article to outline the principal changes through which it has passed to become the chief safeguard of personal liberty. The right to the writ of Habeas Corpus is ascribed by many to the famous statute bearing that name passed by Parliament in 1679. But this act merely corrected certain important defects and abolished many abuses of a practice long known at Common Law. On the other hand, many legal writers have endeavored to find in articles 36, 39 and 40 of Magna Charta, a recognition of the principles involved in the writ of Habeas Corpus. Although the last two clauses declare that rights of justice and personal liberty will not be vio- lated, they cannot as they stand be made to imply the writ of Habeas Corpus. . . . It was not until near the close of the Tudor period that the people began to demand more effective guarantees against the exercise of the arbitrary powers of the crown over per- sonal liberty. . . . Thus as early as 1592, at least, Habeas Corpus was established as an independent writ to test the validity of imprisonment. But as yet it afforded no relief when the commitment was made in consequence of a warrant from the crown or the Privy Council. . . . The Commons were not content to leave the matter in this state. In the course of a long and heated discussion, they passed a unanimous resolution on April 3, 16'28, denying the right of the king, the privy council, or anyone, to imprison or detain a freeman without a legal warrant setting forth the reasons for detention and affirming the right of every man confined to prison, even under the express command of the king or the council to demand and obtain a writ of Habeas Corpus. This resolution was made the basis of an important part of the Petition of Right, passed by Parlia- ment of May 27th. After quoting 39 Magna Charta and a portion of 25 Edw. II, C. 3, the Petition continues: "Divers of your subjects have of late been imprisoned without any cause shown, and when for their deliverance they were brought before your justices by your majesty's writs of Habeas Corpus BIGHTS OF CITIZENSHIP 107 and there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but they were detained by your majesty's special command, signed by the lords of your privy council, and yet were returned back to their several prisons without being charged with anything to which they might answer according to the law. They, therefore, hum- bly pray your Most Excellent Majesty . . . that no free- man in any such manner as is before mentioned, be impris- oned or detained. ' ' After a vigorous protest, the king signed the petition on June 7, 1628, thereby giving it the force of law. . . . One of the charges preferred against Clarendon in the articles of impeachment of 1667 was, "That he hath advised and procured divers of his majesty's subjects to be impris- oned against the law . . . thereby to prevent them from the benefit of the law." Whether this charge were true or false, it is certain that cases arose between 1660-79 in which the prisoner suffered great hardship because of unsettled points in the practice of Habeas Corpus, and it appears that the administration took advantage of these defects for po- litical purposes. The Shaftesbury and the Jenks cases were certainly of this character. The reasons for Shaftesbury 's commitment to the Tower by the Lords on February 16, 1677, have been mentioned. On June 27, 1677, Shaftesbury was brought before the court of King's Bench by an Alias Writ of Habeas Corpus. The return stated merely that the prisoner was held in custody by order of the Lords for "high contempt committed against the House." In spite of a vigorous protest by Shaftesbury 's counsel, the court held that since the commitment had been ordered by the king's highest court, the court of King's Bench had no jurisdiction in the matter. He was remanded and not released until late in the following February upon order of the Lords themselves. The case was clearly one of political oppression. It is significant that Shaftesbury was later the author of the Habeas Corpus Act as passed in 1679, 108 READINGS IN CIVIL GOVERNMENT and it has been said, without definite proof, that he drafted the Act while in prison at this time. A more direct influence upon the passage of the Habeas Corpus Act was brought to bear by the Jenks Case in 1676. Francis Jenks, a linen draper, and a member of the Com- mon Council of London, in a speech at Guildhall on June 24, 1676, charging the French with the destruction of England's foreign shipping, and calling attention to the danger to the Protestant religion, moved for a petition to the king to sum- mon a new Parliament. It will be remembered that Parlia- ment had not convened for fifteen months. While Jenks seemed to have voiced the sentiment of the majority present, his speech, which was really mild in tone, was reported in a greatly magnified form to the Lord Chief Justice. Upon June 28th, Jenks upon summons appeared before the king in council and was committed by that body to Gatehouse. For some time the keeper denied Jenks a copy of the warrant of commitment, as he said he had been forbidden to give him one. On the day following the arrest, Jenks' friends offered bail. The Secretary, however, refused to accept it until he had first laid the matter before the Council. The Lord Chief Justice was then petitioned for a writ of Habeas Corpus. That dignitary declining to hear precedents, refused to act during vacation of court. On June 30th the Chancellor de- clared that he had no authority to grant a writ of Habeas Corpus until the Chancery met on July 6th. No action was taken at that or any subsequent meeting. Later the Chan- cellor refused to grant a writ of Main-prise, on the grounds that it was an obsolete form. In the meantime the Coun- cil had met, but the Secretary informed Jenks that the king had said that the question of bail must come before the Coun- cil in the form of a petition. On July llth, Quarter Ses- sion refused to take action as the case did not appear on the calendar. Finally, late in August, after the Secretary, Chan- cellor and Chief Justice had denied several other petitions on one excuse or another, the king ordered that bail be ac- cepted. RIGHTS OF CITIZENSHIP 109 The case caused much excitement in and out of Parlia- ment. As early as April, 1668, a bill "to prevent refusal of Habeas Corpus" had been reported in the lower house and read the first and second time. In February, 1674, "An act for the speedy relief of persons detained for criminal mat- ters," was passed by the Commons, but apparently no action was taken by the Lords. A similar fate awaited another bill in June, 1675. In March and April, 1677, the Lords themselves had originated and passed through the second reading, ' ' An act for the better security of liberty of the sub- ject," but it was dropped. Finally, in the spring of 1679, after a long series of compromises and joint conferences, the Habeas Corpus Act was passed by both houses and signed by the king on May 27th. On the day that the king signed the bill he dissolved Parliament. It has been suggested that pending the new election, Charles II had approved the meas- ure to gain popular support. According to the provisions of 31 Charles II, C. 2, any person detained for crime, "unless for treason and felony plainly expressed in the warrant of commitment," or anyone in his behalf, has the right to demand a writ of Habeas Cor- pus of the courts of King's Bench, Common Pleas, Chancery or Exchequer, or of any of the judges of the same, if the above courts are not in session. The existing law provided the remedy when the appeal was made to the court. But in case the appeal was made to the judges personally, the Habeas Corpus Act required that on view of a copy of the warrant of commitment, or the oath of two witnesses that such a copy had been denied, he issued at once a writ of Habeas Corpus to the one holding the prisoner in charge, commanding him within a period not less than three nor more than twenty days, depending upon the distance, to bring before the judge the body of the prisoner and show reasons for his detention. Within two days after the prisoner was presented, the judge was obliged to bail or remand him in accordance with the provisions of the law for the particular offense. If the judge to whom the proper demand was made refused to act in accord 110 READINGS IN CIVIL GOVERNMENT with the intent of the statute, he was made liable to a forfeit of 500 pounds to the aggrieved person. If the gaoler refused a copy of the warrant of commitment within six hours after the demand had been made, or transferred the prisoner into the custody of another except in obedience to a legal process, or failed to make a proper return to the writ of Habeas Cor- pus within the time specified, he was liable to a forfeiture of 100 pounds to the aggrieved person. Once released on a writ of Habeas Corpus, the defendant was privileged against fur- ther arrest for the same offense. Although those " commit- ted for high treason, plainly and specially expressed in the warrant of commitment, " were denied the writ of Habeas Corpus, conviction must be had no later than the end of the second session of the court after arrest ; but in the failure of such conviction the prisoner must be discharged. ADDITIONAL READINGS 1 Citizenship, Willoughby, W. W., The American Consti- tutional System, 241-9. 2 Citizenship in the United States, Tiedeman, C. S., The Unwritten Constitution, 91-109. 3 Citizenship of the United States, Richman, I. B., Political Science Quarterly, V, 104r-23. 4 Rights of Citizenship under the Fourteenth Amendment, Willoughby, The American Constitutional System, 180- 89. 5 Suspension of the Habeas Corpus During the War of the Rebellion, Fisher, S. G., Political Science Quarterly, III, 454-85. CHAPTER VI POLITICAL BIGHTS AND DUTIES 24. THE NATURE AND EXTENSION OF THE SUFFRAGE. Is the suffrage a natural right? Should it be extended to all citi- zens? What is the tendency of modern political history on these points? These questions which constantly present themselves to students of civil government are answered by Professor W. W. Wil- loughby in the following paragraphs : 1 The most striking feature of the present day is ... the development of popular control of government. By its own inherent nature one step in democratic progress leads to a further one. There is always present to the, party in power the temptation to broaden the franchise for the sake of the popular support that it will thus obtain. The time will al- ways come, when, wisely or unwisely, this temptation will be yielded to. "When a nation modifies the elective qualifica- tion," says De Tocqueville, "it may easily be foreseen that sooner or later that qualification will be entirely abolished. There is no more invariable rule in the history of society ; the farther electoral rights are extended, the more is felt the need of extending them; for after each concession the strength of the democracy increases, and its demand increases with its strength. The ambition of those who are below the appointed rate is irritated in exact proportion to the great number of those who are above it. The exception at last becomes the rule, concession follows concession, and no stop can be had short of universal suffrage." A striking demonstration of the above rule is seen in the i Selections 24 and 76 are reprinted from Willoughby, W. W., The Nature of the State, by special permission of MacMillan and Company. Ill 112 READINGS IN CIVIL GOVERNMENT steady widening of the suffrage in England during the last fifteen years. The same tendency is at work in the mon- archies of Europe, though not yet carried to the same extent, the last conspicuous triumph of this principle being the modi- fication of the electoral qualification in Belgium in 1894. The history is the same in our own country, where the tend- ency has been so strong as to prevent even decent restric- tions upon the voting power of the newly landed and igno- rant aliens who yearly crowd in thousands to our shores. A step once taken in this direction is seldom if ever re- traced. The suffrage once broadened, its subsequent restric- tion seems almost impossible. Such a step requires a forti- tude and disinterestedness on the part of the parties in power such as history has shown them seldom to possess. . . . It is a fair prediction, then, to say that the world is to see in the future a continued advance in democracy and popular government. This being so, we are led to consider what ef- fect this development will have, when taken in conjunction with other changing conditions, upon good government and general prosperity. Side by side with this movement that is hurrying the civ- ilized world towards democracy is the increasing pressure that is brought to bear by the augmenting complexity of so- cial and industrial relations for the State constantly to widen the scope of its activities. Will the union of these two tend- encies give us good government f A unanimously affirma- tive answer is by no means given to this. 4 'If I am in any degree right/' says Sir Henry Maine, "popular government, especially as it approaches the demo- cratic form, will tax to the utmost all the political sagacity and statesmanship of the world to keep it from misfor- tune." . . . "The nations of our time," says De Tocque- ville, "cannot prevent the conditions of men from becoming equal, but it depends upon themselves whether the principle of equality is to lead them to servitude or freedom, to knowl- edge or barbarism, to prosperity or to wretchedness." It must be ever remembered that the decisive point in the POLITICAL EIGHTS AND DUTIES 113 success of a popular government lies in the quality of its voting citizens. Of what use is it to perfect governmental forms and methods if the constituency be incapable of their proper management? There are those who would go so far as to have us believe that the exercise of the suffrage is an inherent inalienable right of the free-born citizen. It does not need to be said that it is not. It is a political privilege, and is founded only on law, and a claim to its extension to all individuals has not even that moral or utilitarian basis that supports the demand for an equality in those so-called natural rights which we discussed in a former chapter. The citizen is endowed with right of suffrage, in order that by its exercise the good of society may be maintained, and it is for society to determine to what extent, and by whom, and under what conditions this power is to be used. Amiel strikes the vital point, when he says in his Journal that "the pretension that every man has the necessary qualities of a citizen sim- ply because he was born twenty-one years ago, is as much as to say that labour, merit, virtue, character and experience are to count for nothing; and we destroy humility when we pro- claim that a man becomes the equal of all other men by the mere mechanical and vegetative process of natural growth." 25. THE EFFECT OF THE FOURTEENTH AND FIFTEENTH AMEND- MENTS UPON THE SUFFRAGE. The Constitution of the United States left the determination of the right to the elective franchise, even in Federal elections, to the several States. But the fourteenth and fifteenth amendments placed certain restrictions upon the power of the States in this particular. Mr. Wm. L. Scruggs discusses these restrictions: How did the Fourteenth Amendment affect the status of the suffrage question ? It did not materially change it. It did not take from the State the power to fix the qualifications of electors, nor fasten upon us the pernicious doctrine of uni- versal suffrage. It prohibits the State from making or en- forcing any law "abridging the privileges and immunities of citizens of the United States. " But what are we to under- 8 114 READINGS IN CIVIL GOVERNMENT stand by the words "privileges and immunities?" They did not come into the Constitution with the Fourteenth Amend- ment. They had been there, in Article IV., more than three- quarters of a century before that Amendment was ever dreamed of. And our judicial tribunals had uniformly held that they relate, not to the right of suffrage at all, but only to the natural or personal rights inherent in citizenship, of which the right to vote was not one. The only clause in the Amendment that bears upon the suffrage question is in section two, which relates to the ap- portionment of representatives among the several States. The apportionment is based on population. But "when the right to vote is denied to male citizens of the United States twenty- one years of age," the number of representatives is to be pro- portionately reduced. It is to be reduced "in the proportion which the number of such citizens bears to the whole number of citizens" of that age residing in the State. But the ques- tion naturally arises, Whence comes the right of citizens of the United States to vote ? Not being a natural right inherent in citizenship, it can come only by a State law; for only in a Territory, not yet admitted to Statehood, can it come by act of Congress. And in neither case is there any constitutional obligation to grant the right. The only consequence to the State in not granting it is, fewer representatives in the lower House of Congress, and in the College of Electors for Presi- dent and Vice-President the number of Senators not being affected thereby. And this, so far from being a loss to the State, might be a positive advantage. For experience has abundantly shown, that it is not the number, but the ability and character of its representatives, that gives the State con- sideration and influence in the councils of the nation. No political contrivance can annul the divine law by which one wise man counts for more, in deliberative assemblies, and in the affairs of the world generally, than any number of fools. But it is said that the Fifteenth Amendment practically nullifies this section of the Fourteenth; that it assumes "the right of citizens of the United States to vote" to be a vested POLITICAL RIGHTS AND DUTIES 115 right; that it gives Congress the power to enforce this as- sumption ; and, consequently, that it takes from the State its ancient prerogative of fixing the qualifications of electors. It really does nothing of the kind. It declares, simply, that "the right of citizens of the United States to vote shall not be denied or abridged," by either State or nation, "on ac- count of race, color, or previous condition of servitude ' ' ; and it gives Congress the power to enforce this provision for im- partial suffrage by "appropriate legislation." There is an assumption only of the potential right to vote. There is no assumption of a vested right to vote. The potential right to vote can become actual only by a law of the State, or in a Territory by a law of Congress. There is no mandate that the actual right shall be conferred in either case. The only mandate is that, in conferring it, the grant must be impartial as between black and white citizens. The plain import of the Amendment, therefore, is that when the right to vote is granted, it must be impartially granted ; but it is always com- petent to the State (or to Congress, as the case may be) to declare that "when." Six of the Southern States have recently, by changes in their fundamental law, restricted the suffrage by a literary and property qualification. Any resident citizen of the United States, black or white, who owns a certain amount of prop- erty and who can read and write the English language, may vote. No citizen, black or white, who does not measure up to this standard of qualification, can vote. The only excep- tions are found in what are known as "the grandfather" and "the veteran" clauses. The so-called "grandfather clause" provides that all, whether black or white, who could vote in 1866, and their direct male descendants, may vote, provided they shall register prior to a certain date. The so-called "veteran" clause provides that all, black and white, who served in any war of the United States, or in the war be- tween the States, may vote on the same conditions. The time for such registration has already expired in most of those States. It will expire in all, save one only, on the 1st of 116 READINGS IN CIVIL GOVERNMENT January next, 1 and it will expire in that one a few years later. So that the exceptions, whether wise or foolish, are only tem- porary provisions. And, whatever may be said of these ex- ceptional and temporary provisions, the general and perma- nent provisions are certainly not open to objection. They are neither illegal nor unjust. The Fifteenth Amendment is not violated by them. Every State is free to fix its own standard of suffrage, provided it applies to all alike. It is no injus- tice to a citizen to withhold from him the ballot until he shall have accumulated, say, three hundred dollars' worth of prop- erty and learned to read and write the language of the coun- try. It may be thought expedient or inexpedient ; but it vio- lates no vested right, either under the law of nature or the fundamental law, so long as the conditions apply equally to all citizens. 26. THE POSITION OF THE FEDERAL COURTS WITH REFERENCB TO THE RIGHT OF SUFFRAGE. Since the adoption of the fourteenth and fifteenth amendments a great number of cases involving the suffrage have been brought into the courts based largely on the assumption that in some way these amendments extended the suffrage to all citizens. The tend- ency of the decisions of the Supreme Court in these cases is thus summarized by Mr. J. S. Wise : In the first case which arose under the XIV Amend- ment involving the right of suffrage, the Supreme Court was very positive in its statement that the right of suffrage was derived exclusively from the States; that it was not an inci- dental privilege or immunity of Federal citizenship before the adoption of the XIV Amendment; that the XIV Amendment did not add to the privileges or immunities which it undertook to protect; that suffrage was not even coextensive with State citizenship ; that neither the Con- stitution of the United States nor the XIV Amendment made all citizens voters; and that a provision in the State con- stitution limiting suffrage to male citizens did not violate the i This was written in 1903. POLITICAL RIGHTS AND DUTIES 117 Federal Constitution. In the next case in which suffrage was considered it was declared that the XV Amendment conferred no right to vote, and that it merely invested citi- zens of the United States with the right of exemption from discrimination against them (in the exercise of suffrage) by reason of race, color, or previous condition; but that the power of Congress to legislate at all concerning voting at State elections rests on the XV Amendment, and can be ex- ercised only by providing punishment when the wrongful refusal is because of the race or color of the voter. In the case of U. S. vs. Cruikshank, it was said, referring to the two cases above: "The Constitution of the United States has not conferred the right of suffrage upon any one, and the United States have no voters of their own creation in the States." . . . In sundry other cases recently decided, the effort has been made to induce the Supreme Court to consider the claims and to redress the wrongs of persons who alleged that they had been unlawfully deprived of suffrage; but the court has refused to entertain jurisdiction, declaring that the questions raised are political and call for redress which can be given only by the legislative and executive departments of the gov- ernment. . . . While this has been the attitude of the Supreme Court upon suffrage questions, sundry States have been legislating upon the subject in such a way, that, on one pretext or an- other, large bodies of citizens, who had exercised the right of suffrage uninterruptedly for many years under pledges given to Congress by the States, when they were restored to their relations in the Union, that their suffrage never would be curtailed, have been deprived of their right to vote. Despairing of obtaining any relief from the Federal judi- ciary, the attempt has been made to transfer the controversy to the House of Eepresentatives. In the 58th Congress (1903-1905) contests were made up from the State of South Carolina in the House of Representatives, which, by the terms of the Constitution, is made the sole judge of the 118 READINGS IN CIVIL GOVERNMENT elections, returns, and qualifications of its members. (Arti- cle I, Section 5, Clause 1.) The issue thus presented chal- lenged the right of any of the sitting representatives of South Carolina to hold their seats because of alleged viola- tions of the Constitution of the United States in the State constitution and the laws regulating suffrage under which they were elected. The issues were squarely presented and called for a decision by the House; but the committee on elections made a report in which it stated that the cases in- volved grave constitutional questions, which, if decided in favor of the claimants, would go to the very foundation of the State government of South Carolina and would perhaps affect not only her representation, but that of the other States; that the House should hesitate about taking a step which might be so far-reaching in its consequences, until the legal questions involved were decided by the courts intrusted with the duty of constitutional interpretation, and that the courts might more safely be relied upon for correct decision than a transitory and ever-changing unprofessional body like the House of Representatives. And so the matter of suf- frage rests; the courts declining to pass upon it as a political question, and Congress insisting that it is a judicial ques- tion. . 27. THE EDUCATION OF VOTERS. With the suffrage as widely extended as it is in the Uniied States there must necessarily be thousands of voters who, whether able to read or not, go to the polls without any adequate understanding of the questions at issue in the election. Now, since it is practically im- possible to withdraw the suffrage, once granted, and since intelligent voting is of the essence of good government, how may this ignorant electorate be instructed in the art of government, and the issues so simplified and brought home to the individual voter that he may cast his ballot knowingly? In the following selection Mr. George H. Haynes discusses two measures by means of which the State of Oregon is attempting to solve this problem: [1907]. The first of these laws the new law regulating primary elections is intended to secure for the voter information as POLITICAL RIGHTS AND DUTIES 119 to the political aims and principles of the men for whom his suffrage is asked. The information is to be given by the would-be candidates themselves. Each man seeking nomina- tion for office, from that of governor down to that of county clerk, in order to get his name upon the nominating ballot, must sign and file with the proper official a petition stating his residence, declaring himself to be a registered voter of the specified party, and pledging himself that, if nominated, he will accept the nomination and not withdraw, and that, if elected, he will qualify as such officer. Then follows, in the model petition set forth in this statute, the section which constitutes its unique feature : If I am nominated and elected, I will during the term of my office (here the candidate, in not exceeding one hundred words, may state any measures or principles he especially advocates, and the form in which he wishes it printed after his name on the nominating ballot, in not exceeding twelve words). Every candidate is thus made the builder of his own plat- form. Now platform-building, as the committee on resolu- tions of many a political convention will sadly testify, re- quires delicate carpentry; yet this law takes the job away from the political carpenters' union and turns it over to any candidate who can wield a hammer and saw wood. But let this non-union laborer rejoice with trembling and build with care ; for if his planks be too wide or too narrow, if they be ill-matched or not securely spiked down, he must lay the blame of his downfall not to the work of others, but to the unstable footing erected by his own unskilled hands. And if the making of a platform is difficult and fraught with dangers, what shall be said of an attempt to compress the platform into the dimensions of a foot-stool ? Who has not wrestled over the phrasing of a telegram, because only ten words will go for a quarter? The Oregon aspirant for office is limited to twelve words, and in this compass he must indi- cate his political creed, his favorite policy or his scheme of patriotic service. He must try to find for his platformette a phrase which shall serve as the rallying cry of his cam- 120 READINGS IN CIVIL GOVERNMENT paign, and which can not be turned against its author; for what shall it avail him to fire a shot heard "round the state" if his projectile prove of the boomerang order ! . . . These provisions in the primary election law make it pos- sible for the voter to favor the candidate who puts him- self most straightforwardly before the people in his personal statement. The other innovation which Oregon has introduced is much more far-reaching in its recognition of the state's educational function in preparing the voter for his task; it aims to put into his hand the data for making up his mind upon measures which are to be voted upon. This is a matter of no slight moment in a community where frequent recourse is had to the people for the enactment of laws. The provision in question is a part of the statute regu- lating the use of the initiative and referendum. It was first enacted in 1903, and has been suggestively modified by the legislature of the present year. Other states have recognized it as a duty to furnish free text-books to pupils from the lowest primary grade up through the high school. Oregon has decided to furnish a free text-book to her adult pupils who are at the same time her rulers. The secretary of state is made the compiler and distributor of this text-book. The law makes the following provisions : The secretary of state shall cause to be printed in pamphlet form a true copy of the title and text of each measure to be submitted (at the next general election) with the number and form in which the ballot title thereof will be printed on the official ballot. The person, committee or duly authorized officers of any organization filing any petition for the initiative, but no other person or organiza- tion, shall have the right to file with the secretary of state for printing and distribution any argument advocating such measure. . . . Any person, committee or organization may file with the secretary of state, for printing and distribution, any arguments they may desire, opposing any measure. . . . But in every case the person or persons offering such arguments for printing and dis- tribution shall pay to the secretary of state sufficient money to pay all the expenses for paper and printing to supply one copy with POLITICAL RIGHTS AND DUTIES 121 every copy of the measure to be printed by the state; and he shall forthwith notify the persons offering the same of the amount of money necessary. The secretary of state shall cause one copy of each of said arguments to be bound in the pamphlet copy of the measures to be submitted as herein provided, and all such measures and arguments to be submitted at one election shall be bound to- gether in a single pamphlet. All the printing shall be done by the state. . . . The title page of each argument shall show the measure or measures it favors or opposes and by what person or organization it is issued. When such arguments are printed he shall pay the state printer therefor from the money deposited with him and refund the surplus, if any, to the party who paid it to him. The cost of printing, binding and distributing the measures pro- posed, and of binding and distributing the arguments, shall be paid by the state as a part of the state printing, it being intended that only the cost of paper and printing the arguments shall be paid by the parties presenting the same, and they shall not be charged any higher rate for such work than is paid by the state for similar work and paper. Not later than the fifty-fifth day before the regular gen- eral election at which such measures are to be voted upon, the secre- tary of state shall transmit by mail, with postage fully prepaid, to every voter in the state whose address he may have, one copy of Buch pamphlet ; provided, that if the secretary shall, at or about the same time, be mailing any pamphlet to every voter, he may, if prac- ticable, bind the matter herein provided for in the first part of said pamphlet. How does the scheme work? There has as yet been no opportunity to test the new provisions that have been em- bodied in the law this year; but the general election of 1906 found the plan in operation in its main features, at least, and the results throw some light upon the problem. In that election there were presented to the people of the entire state ten separate measures proposed by initiative petition and one which had been proposed by referendum petition. In some of the counties there were also local initiative propositions. When it is stated that these meas- ures formed the tail-piece to a ballot on which were the names of 86 candidates for 27 offices, there can be no ques- tion that this was the Oregon voter's busy day; but our present concern is not with the voting, but with the prep- aration for it, with the voter's special education for this 122 READINGS IN CIVIL GOVERNMENT service. The text-book had been distributed months before election day. Nine of the measures were sent out to the voters unaccompanied by any arguments, no one apparently being sufficiently interested to go to the trouble and expense of defending or attacking them. On these matters, then, the state distributed no opinions, but it did put into every voter's hand the precise propositions. Each of these meas- ures had a title-page in prescribed form, which told, also, precisely how the measure would appear upon the ballot, for example: PROPOSED BY INITIATIVE PETITION. For Equal Suffrage Constitutional Amendment. Vote Yes or No. 302 Yes. 303 No. The proposed laws varied in length from one-third of a page to ten pages, each page containing about 350 words. . . . The one measure which was presented to the voters accompanied by arguments was a so-called " equal suffrage amendment" to the state constitution. With this were bound up a seven-page argument in its favor, issued by the "Oregon Equal Suffrage Association," and a twenty-three page argument against the amendment, issued by the " Oregon State Association Opposed to the Extension of Suffrage to Women." Each of these pamphlets presented a forceful array of arguments; in fact, it would not be easy to find elsewhere in so few pages a more cogent statement of both sides of this question than was here placed in the hands of every Oregon voter, two months before the election. The vote upon this question stood: Yes, 36,902; No, 47,075. The text-book for this election, then, comprised about sixty pages of copies of proposed laws and of political dis- cussion. Had these pamphlets been sent out by mail, as is to be done under the existing law, the postage on each would have been three cents, making a total of about $4,300 POLITICAL RIGHTS AND DUTIES 123 for placing them in the hands of all the voters of the state. It is evident, therefore, that the supplying of free text- books to voters is a somewhat costly enterprise. Whether it is worth while or not depends upon its results. An Oregon correspondent, who during his first year or two of residence in the state had been distinctly of the opinion that the people would not show enough interest or intelligence to make a success of direct legislation, spent the weeks before this election in a little hamlet on the western slope of the Cascades. He writes : I was greatly interested in the attitude of the people. At the gen- eral store (and post-office) there was an impromptu debating society, and men and measures were discussed with pungency. . . . There was distributed a good amount of literature (the text-book), giving clear statements as well as partisan arguments concerning the different measures. Sample ballots were distributed also. There can be no question of the fact that the voters were much interested, and the more intelligent ones had a sense of responsibility which made them express themselves with a good deal of emphasis. When election day came, the fact of the people's inter- est was convincingly shown. The total number of votes cast was 99,445. The initiative measure which called for most discussion was the suffrage amendment, and upon this 84 per cent, of the voters expressed their opinions. On the question of taxing the gross earnings of public-service corporations 77 per cent, voted ; while even the one of these questions which evoked least interest received the votes of 64 per cent. The average vote in law-making and constitu- tion-amending was 74.5 per cent. The high ratio which these votes bear to the votes cast for state officers is in contrast with the ratio in many other states. In Massachu- setts, in 1896, there was referred to the people a proposed change from annual to biennial elections; not more than 73 per cent, of those who had voted for governor, and less than 58 per cent, of the registered voters of the state, expressed an opinion upon this question. Even in Switzer- land, the home of the referendum, this same indifference is 124 READINGS IN CIVIL GOVERNMENT to be found. "At national referenda, which excite a greater interest, the average proportion of voters who go to the polls is less than sixty per cent., and no law has ever been ratified by a majority of the qualified voters." In the future working of the law it may prove necessary to place some restrictions upon the publication of material submitted for the voters' text-books. Who is to decide what shall go into such pamphlets? At present the secretary of state is charged with the duty of compiling them. Appar- ently he has no discretion in the matter; he must cause to be printed and distributed any matter that may be filed with him by one party in favor of a given measure, and by any number of parties in opposition thereto, provided only the interested parties stand ready to pay for the printing and paper necessary to supply every voter of the state with a copy. . . . To discriminate between that which is and that which is not proper material for the state to put in the hands of its voters would be a delicate and perhaps dangerous task; but it is not clear that such discrimination may not prove desirable. Certainly there would be no impropriety or unfairness in the state's placing a limit upon the amount of printed matter which it will distribute for any one organiza- tion or upon any one measure. Indeed, such a limitation might prove a favor in disguise, since the effectiveness of campaign documents is ordinarily in inverse proportion to their bulk. In these devices for the official publication and free distri- bution of political information and argument, is Oregon setting the pace for the campaigns of education of the future? The writer is not a convert to the idea that the increased use of the initiative and referendum in America is desirable. He not only believes that, in such varied com- munities as our states, the representative system has distinct advantages over direct democracy, but he would have mem- bers of the legislature genuine representatives, not mere delegates with ears to the ground. But if the work of law- POLITICAL RIGHTS AND DUTIES 125 making is to be transferred from legislative chambers to voting-booths, he is convinced that, in placing political infor- mation in every voter's hand, Oregon is not trying a freakish experiment but rather is pursuing the only sane course. In our great scientific associations for example, in the American Society of Civil Engineers with its more than 4,000 members there is sent to every member, to serve as a basis for his vote, a precise statement of proposed changes in the constitution or by-laws and a stenographic report of the debate at the society's meetings. In our legislatures, state and federal, every measure that is to be voted upon lies in print upon each member's desk, and every such document is kept up to date; yet it is both the member's opportunity and his duty to be present, to listen to and to participate in the most thorough-going discussion of legislative projects. Such sources of information are not available to the average voter. In time it will be recognized that faith in direct legislation rests on a very shaky foundation unless the state places before each vote, as it has always placed before each member of a legislature, the means of informing him- self upon every question which he is to take part in de- ciding. This will mean no slight burden of work and expense. But what educational expenditure by the state will bear more directly upon the safe-guarding of the state's own inter- ests? For years there have been allowed to each member of Congress seeds to the value of about $225, to be sent at the expense of the government to the people in his district. The theory has been that by the unloading of these un- solicited and miscellaneous assortments of seeds upon the farmers throughout the land scientific agriculture would be promoted. Is it not quite as logical that the state provide for the free distribution of seeds of political thought? The cost would be less ; and it is reasonable to hope that the seed thus distributed would show quite as great germinating and productive power as has been shown by that sent out from Washington. In the solution of the problem of the educa- 126 READINGS IN CIVIL GOVERNMENT tion of the voters, for states that are adopting direct legis- lation, Oregon leads the ways. 28. THE RESPONSIBILITY OF CITIZENSHIP. It has been said that what the country needs is not more voters so much as more active and intelligent voting. The duty of the citizen to the state and the service which he ought to be willing to render to the state in return for the protection and other benefits which the state confers upon him is the subject of the following se- lection from an address by Governor J. W. Folk : In no direction is the need greater for patriotic energy and earnest effort than in advancing the public welfare. In a government such as ours, which rests on the people, every man should take an active interest in the selection of those who represent the people in official capacity. The need is for more men actuated by the public good, instead of those in politics for revenue only. I do not mean the need for men in public office alone, but for those in private life, for it should not be forgotten that it is as essential to good government for private citizens to discharge the responsibili- ties resting upon them as it is for the faithful carrying out of official obligations in the public service. Many men are eager to go to war and give up their lives for their country, but will not take the trouble to vote in party primaries in which governmental policies have their birth. A vote on the day of some general election is not enough to meet one's civic obligations. Under our system political parties are necessary, for it is through political parties that men come to an agreement on public policies, and make known their principles and intentions. Party policies are inaugurated and party tickets are conceived in the first meetings of ward, township, or county, or in the primaries to select delegates to conventions. Not only should a good citizen be patriotic on primary and election days putting the public good always above mere party advantage but he should live for his country and state every day. The man who lives for his country is as true a patriot as he POLITICAL EIGHTS AND DUTIES 127 who dies for his country. Patriotism abides not alone in the roar of cannon, amid the din and clash of arms, but in the every-day duties of civic life. . . . The people can overthrow civil evils whenever they want to and can have a government as good as they themselves make it or as bad as they suffer it to become. There is hardly a community in this country where the law-abiding people are not in the majority. They are usually quiet, however, while the other side are so vociferous as to deceive some into the idea that they are stronger than they are. The power of corruptionists is obtained through the indifference of good citizens. Bad citizens are united, good citizens are divided. That is the trouble. If good citizens could be induced to join hands in patriotic endeavor, the bad would be shorn of their strength and be powerless to accomplish anything. Law-breakers are always organized and work while good people sleep, but once the latter are aroused they are invincible. The government of the nation, State, and city rests upon the active morality of the average individual. In propor- tion as that morality is strong the government is good; when the average morality is low, the government must be inferior. When good citizens attend to their civic duties, their civic energy is represented in good officials ; when they are careless, their slothfulness is represented by corrupt officials. The character of government depends entirely upon the will of the majority, and no government is better than a majority of its voters. . . . To arouse the people and make them exercise their civic duties is a matter of supreme importance. In a monarchical form of government all authority is in the crown and dele- gated to those beneath. Civic indifference there is not fraught with such grave consequences. In a republic like ours, each individual is a constituent part of sovereignty; each man is one seventy-nve-millionth of a sovereign on the throne of American manhood. This may seem small but it marks the distinction between the citizen and the subject. 128 READINGS IN CIVIL GOVERNMENT Some may think if the government were left entirely to you public evils could not exist. But you have a portion of the responsibility now. If you are unfaithful in part, would you be more faithful with all? . . . If each citizen were to leave the remedying of public wrongs to some one else, nothing would be accomplished. The State protects the citizen, and the citizen must protect the State, politically as well as financially, and his civic duties are as morally binding as his taxes. If each man were to think that he is only one among many and that it is un- necessary for him to pay taxes because there will be plenty without him, the State would be bankrupt if it could not enforce payment. If every man were to reason that among so many his influence for good is not needed, then the State would be bankrupt politically and we would have a govern- ment of the few with wealth enough to purchase official favors. There is sometimes too much of a disposition on the part of some to allow others to do the face-sweating in civic affairs while they do the bread-eating. Our govern- ment in theory gives more rights than any other, but some think so little of their obligations to the general welfare that they are often indifferent to being robbed as long as they do not feel the effects directly and are among the many. ADDITIONAL READINGS 1 Political Duties and Political Rights, Woodburn, J. A., Political Parties and Party Problems, 220-32. 2 American Domestic Problems, Abbott, L., The Rights of Man, 216-50. 3 Some Causes of the Stability and Success of our Dual System of Government, Landon, J., Constitutional His- tory and Government of the United States, 303-28. 4 The Strength of American Democracy, Bryce, J., American Commonwealth, II, 59-1-606. PART II THE FOKM OF AMERICAN GOVEENMENT CHAPTER VII THE HOUSE OP REPRESENTATIVES 29. THE SPEAKER OP THE HOUSE OP REPRESENTATIVES. The central figure in the House of Representatives is, of course, the Speaker. At the beginning of our government the Speaker was merely an impartial presiding officer, as is the Speaker of the House of Commons to the present day, and not necessarily the member of the dominant party with the longest congressional career or great- est influence. He did not acquire the exclusive power to appoint committees until the Fourth Congress, but after that event, and largely because of it, his influence steadily increased. In 1890 Speaker Reed devised a new rule for counting a quorum and broke up filibustering by refusing to entertain dilatory motions. He was at once denounced as a "Czar" and the Speaker has since then often been called the "Autocrat of Congress," the "absolute arbiter of the destinies of all legislation." In the following selec- tion Mr. Asher C. Hinds, for many years Clerk at the Speaker's Table, describes the Speaker's position since the days of Mr. Reed and explains why it is necessary for him to have such large powers : [1909]. One familiar with the procedure of the House for the last fifteen years cannot be otherwise than surprised at the con- fidence of the assertions that the House has ceased to be either a deliberative body or an efficient legislating body. 9 129 130 READINGS IN CIVIL GOVERNMENT Those who know well its practice will rather believe that no other legislature of its size, as to membership and quorum, has a system equaling it in fairness, liberality and efficiency. On the great questions of revenue and appropriations, which are the first questions among all free peoples, its system is famous for the unrivaled manner in which it con- centrates searching and intelligent deliberation on every item, without discrimination between members as to party or length of service. And its more formal debates are regulated with equal liberality and fairness. The statement that no member speaks without securing prior consent of the speaker has hardly a shred of truth by which to hang. The speaker recognizes for debate, it is true, and there is no appeal from his recognition because the house cannot afford time for such a process; but the speaker recognizes, in the great majority of instances, not arbitrarily, but according to cer- tain usages which have the force of rules. And these usages secure recognition to those members who, by the arrangement of committees and business, are presumably best informed on the subject for and against the pending proposition. Of course every egotist in the House may not intrude himself into the first place in every debate. A system that per- mitted this would be intolerable, although it would please the egotists and would cut off one very noisy source of criticism. But even as it is no egotist suffers from the tyranny of the modest men. The story is frequently told, and used as a conclusive argument, that Mr. Speaker Reed thanked God that the House was not a delibera- tive body. It was true that he did once give utterance to such an expression, but it was when someone told him of a senator who had spoken four or five hours to the empty seats of his disgusted colleagues, and proposed to continue the performance on the next day. The Speaker was thankful that the hour-rule, which, by the way, had then existed for fifty years, did not permit such a performance in the House. It was one of the great aims of Mr. Speaker Reed, as those who knew him can testify, to restore to the House that THE HOUSE OF REPRESENTATIVES 131 orderly, intelligent deliberation which the fathers had known, and which the violence of the filibuster had impaired. He overthrew the filibuster, and as the passions of that conflict subsided, the old deliberation gradually returned. In the last twelve years, under normal conditions, the House has been a real deliberative body. When abnormal conditions arise; as they did at the end of the first session of the six- tieth congress, the majority are obliged to declare a form of martial law in order to do the business necessary for the supply of the government. But such conditions are wholly exceptional and have arisen only two or three times in twelve years. The demonstration that the modern speaker is a normal, and not an abnormal, example of the speaker of the Consti- tution, does not, however, answer the criticism that too much power is given him by the rules. At this point it is necessary to guard against a confusion of ideas. The man whom the representatives of the people choose as their chief will ordinarily be a man of great personal influence. The elec- tion of speaker is not like a popular election, where the voter's knowledge of the candidate is derived second-hand. Most of those who elect a speaker know him personally, from intimate association and observation on the floor of the House. The politician who cultivates reputation, by judicious posing and advertising, will hardly advance far in the House, unless he be one of the rare individuals of his kind who have the actual character to go with the reputation. On the other hand, the blunt, honest man, who values the truth above the praise of men, and is willing to risk popularity in doing his duty, always commends himself strongly as his fellows come to know him in the struggles and contentions of the great hall. The influence of character is one of the greatest powers in politics. Hence, the one who is chosen speaker will always be powerful in his own right, so long as the speaker is chosen after the manner of our American fathers, as a leader of the House. If leadership is to be placed elsewhere in the body, the strong man or men of the 132 READINGS IN CIVIL GOVERNMENT House will gravitate to the new depository, and the speaker, having become a mere presiding officer, will undoubtedly de- generate in character and influence. The great source of the speaker's power is the function of appointing the committees, which he has exercised for more than a hundred years. All propositions are referred to the committees for consideration and report. Members may refer bills to committees with great freedom, but if a com- mittee fails or declines to report, the member may not move to discharge the committee for the reason that the regular order of business includes no place for such a motion, and a demand for the "regular order" shuts it out. It is prob- ably necessary that this be so, for if the member might move to discharge a committee, the House would be con- fronted with a possibility of more than twenty thousand of such motions, since a vast number of bills are referred to committees. The House is not powerless, however, against an obstinate or neglectful committee, as the motion to dis- charge a committee may be adopted by majority vote on being reported by the committee on rules, which is composed of the speaker and four other members. This grasp of the committees on the business of the House is the main citadel of the speaker's power so far as it is dependent on the rules. The main element of it is the appointing power, since the discharging power is lodged in a committee, wherein his authority is necessarily consider- ably modified. But the appointing power is far from absolute. In a new Congress there will not ordinarily be vacancies in more than a third of the places on any committee, and on the important committees, where the strongest men are gathered, the proportion is usually less. It is a usage not often dis- regarded that a man once appointed to a committee remains there until promoted to a more desirable post. Mr. Sereno E. Payne has served on ways and means, which is the great- est committee of the House, for twenty years, and Mr. John Dalzell has been on the same committee for eighteen years. THE HOUSE OF REPBESENTATIVES 133 This illustrates the permanency of tenure, which does not change with changes of party control in the House. It is manifest that, with these conditions existing, it is very diffi- cult for a speaker to make up a committee according to per- sonal whim, or "pack" it, as the phrase goes. He can and always does aim to add to each committee new men who will continue the committee in certain general policies favored by his party. In other words, he acts as the responsible agent of party government. During the last six years, Mr. Speaker Cannon has permitted the minority leader to name the minority members of the committees, thus restricting still further his own opportunities for moulding the sentiment of the committees. . . . It is not conceivable that the House of Eepresentatives will ever permit the efficiency of party control and party responsibility to be impaired by any irresponsible method of selecting its committees. Is there any better method than by placing the duty on a speaker, who must perform it in full view of the House and the nation, with no possibility of evading the responsibility? The only other alternative would be to have the appointments made by a committee, which would necessarily operate in practical secrecy, and wherein each member might, when challenged, shift responsi- bility to his fellow, so that the House and the nation could never locate it definitely, except after laborious inquiry. The power of the speaker, as it is related to the commit- tee on rules, is much overestimated. When a committee has once reported a bill, that bill is in the hands of the House. The speaker and the committee on rules are alike powerless to prevent its consideration and passage. They may acceler- ate its progress by reporting a special order, and they do this for a few bills, perhaps a dozen out of a thousand or more at a session of congress. The committee on rules exercise the function as responsible party agents; and in modern practice the special order has, in fact, taken the place of the party caucus. There was once a great outcry against "King Caucus." That is heard no more, and in place of 134 READINGS IN CIVIL GOVERNMENT it we hear only denunciations of the committee on rules. The majority members of that committee inform themselves thoroughly of the sentiment of the responsible party in the House. If members of the responsible party feel that the committee on rules is not acting in conformity with the party sentiment, a caucus may be called on the demand of fifty members; and the committee would not think of disregard- ing the pronounced wish of that caucus. And at the recent organization of the House, the republican caucus specified the members who should be appointed to represent the party on the committee. This makes the committee on rules in theory what it has long been in practice. For the purpose of a large House of Representatives and a populous nation, could there be a better system? The responsibility for the organized efficiency of the controlling party in the House is placed on the speaker, a conspicuous officer of high character. If he betrays or mal-administers the trust confided in him and does not proceed according to the main lines of his party's policies, his party associates may replace him in the next congress. Indeed, it is possible at any time for a majority of the House to remove its speaker. It has several times removed its clerk or doorkeeper, who, like the speaker, are officers of the House under the constitu- tion. If the speaker is sustained by his party in the House in his organization of the committees, but that organization does not subserve the public will, then the people know at once where to put the responsibility, namely, on the responsi- ble majority party. It is of prime importance that a self-governing people should know readily and definitely where to place responsi- bility, and the present rules of the House further this pur- pose admirably as to the great questions at issue. As to the minor questions, it is not so easy to fix responsibility, because the speaker, in framing the committees, usually fills only the vacancies in each new congress, and reaches the extent of his opportunities when he has provided for the main lines THE HOUSE OF REPRESENTATIVES 135 of party policy. All other systems of arranging committees must necessarily have the same limitations as to minor questions. To a thoughtful man the query naturally arises: "If the present system is so excellent, why are the speaker and the rules criticised so constantly?" The answer is simple. Having a considerable degree of power as to directing the House in the main lines of his party's policy, the country and many members of the house assume that he may be equally potent as to every minor and local question. Possibly he might for a short time and for a limited number of questions. But as he is the leader of his party in the House, his every act commits or compromises that party. Hence it is wiser to leave the minor and local ques- tions to be passed on, first by the committees to which they are referred under the rules and then, if the committees endorse them, by the House itself. The House may pass any bill which a committee has reported ; and the rules give the speaker no power to prevent. But the minor and the local matters are usually of great importance to the political prospects of a few members, and of so little interest to the whole House that it is often beyond the power of their friends to muster the votes to get action on them. Hence the speaker is importuned constantly to as- sist the member to get unanimous consent to set the rules aside and force consideration by a short cut. The speaker, being responsible for the great lines of policy, especially for the sum- total of expenditures, must be very cautious about entering into these arrangements. And when he refuses, the member, if he be human, makes haste to write his constituents that he could pass the bill if the speaker would give the opportunity. The bill usually involves the expenditure of national money in a way very desirable to the member's constituents; and they unite with him in denouncing the speaker and the rules. Sometimes the work affects several districts, or even several States, thus giving greater body and momentum to the criti- cism. 136 READINGS IN CIVIL GOVERNMENT At the first of the present session certain changes were made in the rules, one of which permits bills to be placed on a calendar for unanimous consent. This calendar is to be called twice a month and will enable members to get their bills be- fore the House without supervision of the speaker. The effect of the arrangement will be to relieve the speaker of an irk- some and dangerous responsibility and distribute it among the members. It may diminish the speaker's power in the House somewhat ; and it will certainly relieve him of a source of unpopularity in the country. Several other changes were made at the same time, includ- ing the establishment of a Calendar Wednesday, when the House will be forced to consider certain business which it has hitherto been neglectful of, preferring to go on with the great, essential bills and then adjourn. Some of the new business will consist of general and public measures which have perhaps been unduly neglected ; but much of it will be of local and per- sonal concern, bringing charges on the treasury for advantage of localities. Another charge makes it easier for the minority party in the House to obtain record votes on propositions of legislation which it may desire to put forward. The effect of the recent changes as a whole is to take away from the speaker certain functions and vest them in the mem- bers, and to restrict somewhat the House 's power to go at any time to any matter of business on its calendars. Members who desire to get action on bills of interest to their constitu- ents rather than of general interest will be relieved. The House will also be forced to act on some bills of national in- terest which it would prefer to let go to a more convenient season. 30. THE RULES OP THE HOUSE. Mr. John Dalzell, a member of the committee on rules, gives the following account of the methods by which the House proceeds in the enactment of legislation: [1908]. The rules of the National House of Representatives are not the conception of any one man or set of men; they are not THE HOUSE OF REPEESENTATIVES 137 the product of any one Congress or of any combination of Congresses; they are an evolution, the outgrowth of the par- liamentary experience, necessities and exigencies of all the hundred years and more of our Congressional life. The book of rules contains no rule that had not a reasonable necessity for its adoption in the first instance and has not a like necessity for its continuance now. As a whole the rules are so made as to render possible the most expeditious accomplishment in the wisest way of the legislative business of our ninety millions of American people. There have been two revisions of the rules within the last thirty years. In the Forty-sixth Congress (1880) the rules were revised under the direction of the Committee on Rules, consisting of Speaker Randall and Messrs. Stephens, Blackburn, Garfield and Frye. The changes then made consisted mainly in drop- ping a number of rules that by reason of changed conditions had become obsolete, in consolidating a number of others and changing their arrangement, and in the introduction of a very few new rules. . . . The rules then adopted remained in force until the Fifty- first Congress (1890), when they were revised by the Com- mittee on Rules, consisting of Speaker Thomas B. Reed, Messrs. McKinley, Cannon, Carlisle and Randall. By this revision, out of the total number of forty-seven rules, twenty- nine were allowed to remain unchanged, and in the remain- ing eighteen such changes as were made were only formal, except in four fundamental particulars. These related to (1) dilatory motions, (2) the counting of a quorum, (3) the num- ber which should constitute a quorum in Committee of the Whole, and (4) the order of business. This last revision was found necessary in order to carry out the announced objects sought to be attained by the revision of 1880, viz. : "Economy of time, order and the right of a majority to control and dis- pose of the business for which it is held responsible." Prior to this last revision, under then existing rules, the practice known as filibustering had grown to such an extent as to waste much valuable time and to threaten the power of 138 READINGS IN CIVIL GOVERNMENT the majority to deal with the business of the country. By the use of the privileged motions "to adjourn to a day cer- tain," and "to take a recess," and the practice on the part of members of remaining silent and refusing to vote, thus breaking a quorum, it was in the power of the minority at any time effectually to obstruct the passage of any legislation. A motion to adjourn to a day certain was subject to two amendments, on each of which as well as on the original mo- tion the yeas and nays could be ordered. The same was true as to the motion to take a recess; these motions could be re- peated without limit and thus days could be consumed in useless calls of the roll. In point of fact, in the Fiftieth Con- gress on one occasion the House remained in continuous ses- sion eight days and nights, during which time there were over one hundred roll calls on the iterated and reiterated motions to adjourn and to take a recess and their amendments. On this occasion the reading clerks became so exhausted that th-y could no longer act, and certain members possessed of large voices and strenuous lungs took their places. If this was not child's play it would be difficult to define it. Then again, when a measure to which the minority objected was likely to pass, the yeas and nays would be ordered. The objecting minority members, sitting in their seats, would fail to respond when their names were called, and when the count was made it would appear that there was no quorum present to do busi- ness and thus the measure would fail. It seei.is now strange to realize that many eminent men acting as Speakers of the House maintained that for this manifest evil no remedy ex- isted. It remained for the Speaker of the Fifty-first Con- gress, Thomas B. Reed, the greatest parliamentary leader in the history of the English-speaking people, to make an end of this manifest absurdity. He declared that physical presence and constructive absence was impossible; that the quorum called for by the Constitution was a present and not a voting quorum; and so, on a certain historic occasion, he added to the names of those voting the names of those present and not voting and announced the result accordingly. He has no THE HOUSE OF REPRESENTATIVES 139 greater glory than that the principles he announced and put into practice have not only been endorsed by the Supreme Court of the United States, but also by his partisan foes when they came into power in the House, and by the practical re- sults which recent years of wise legislation unobstructed by foolish tactics have put on the statute book. Under present rules the motion to adjourn to a day certain and the motion to take a recess are not privileged, and furthermore the Speaker is not allowed to entertain any dilatory motion. If a quorum has been ascertained by actual count to be present, a measure voted on passes or fails 'in accordance with the re- corded vote, whether all members have voted or not. In the Committee of the Whole 100 now constitutes a quo- rum instead of a majority of the whole House. This is in the interest of the expedition of business. Bills are not introduced by filing and not by presentation in the open House, and thus much time is saved. Business once entered upon is continued until completed, instead of as under prior rules being limited to a certain time for its consid- eration and then not having been concluded being sent to the graveyard of the calendar of unfinished business. In the last Congress (59th) there were 386 members (in this Congress there are 391), and there were introduced a ( total of bills and resolutions numbering 27,114. It goes with- Jout saying that not all of these bills could be considered nor could all of these members have a hearing. Theoretically every member of the House is the equal of every other mem- ber; every constituency is entitled to equal recognition with every other constituency, but practically there cannot be 391 Speakers; there cannot be 391 chairmen of Committees, nor equal recognition for debate given to 391 members. The real purpose, then, to be accomplished by the rules is the se- lection from the mass of bills introduced those proper to be considered. There is no limitation on the right of a member to introduce bills; as many as he likes and of whatever char- acter he pleases. Every bill introduced goes to an appro- priate committee for consideration, and whether or not it gets 140 READINGS IN CIVIL GOVERNMENT upon a House calendar for action depends upon its being re- ported by the committee. It may never be reported, and, of course, if not reported can never be considered in the House. In the last Congress, of the 27,114 bills and resolutions intro- duced there were 7,839 reported; the others remained in the pigeon-holes of the various committees. Of the bills re- ported, 7,423 were considered and passed. Bills when reported go upon certain calendars of the House, according to the character of the bills. 1. Revenue and appropriation bills. These are few in num- ber, not to exceed perhaps twenty. They come from the Com- mittee on Ways and Means, whose office it is to provide revenue for the Government, and from the Committee on Ap- propriations, and from the several committees having to do with the maintenance of the Government in its various arms, such as the Naval Committee, the Military Committee and others. These bills when reported go to a calendar known as the Union Calendar, but they are highly privileged, as they ought to be, for without their passage the Government wheels would stop. They can be called for consideration at any time. They take precedence of all other bills, and the Speaker has no alternative but to recognize the member calling them up. These bills are considered, not in the House, but in Commit- tee of the Whole; the Speaker leaves the chair and another member takes his place. 2. Another class of bills are such as relate to some public purpose, but carry no appropriation, such, for instance, as bridge bills and the like. To a large extent bills from the important committees on the Judiciary and on Interstate and Foreign Commerce are of this class. These bills go on the House calendar and are entitled to consideration in the morn- ing hour. There being no privileged bills for consideration, the morning hour is the regular order. The Speaker must call the committees in their alphabetical order, and then the chairman of the committee which has the call is entitled to recognition by the Speaker as of right. The House then pro- ceeds to the consideration of such bill reported by the commit- THE HOUSE OF REPRESENTATIVES 141 tee in question and then on the House calendar as the chair- man calls up, and continues its consideration until a vote is had, subject only to a possible interruption at the end of sixty minutes, to which I will refer hereafter. But even if inter- rupted its consideration is continued thereafter, when busi- ness of that character is in order, until it is finally disposed of. 3. In addition to public bills such as I have enumerated, some carrying an appropriation and others not, there is an- other class of bills, the most numerous of all private bills providing for the relief of private individuals or corporations. These have a calendar of their own called the private calen- dar, and are in order on every Friday of each week. They are, generally speaking, bills from the Committee on Claims, from the Committee on War Claims and from the Committee on Pensions. As to these bills the Speaker has no inde- pendent right of recognition. When addressed by the chair- man of the appropriate committee on a Friday he must rec- ognize him, and unless the House declines to consider these bills the Speaker must leave the chair and nominate a member to preside in his place. In the last Congress there were re- ported 6,834 private bills, 6,624 were passed, leaving 210 un- disposed of. There is another class of bills that, like private bills, have a day of their own under the rules, viz., District of Columbia bills. As is well known, there is no right of suffrage in the District of Columbia, and the Senate and House act as its Select and Common Councils. District of Columbia bills are in order on two Mondays of every month. As to these bills, again the Speaker has no alternative but to recognize the Chairman of the District Committee when, on his allotted day, he calls up his business. 4. A fourth class of bills provide for various matters of public concern and are such as involve a charge upon the Treasury. These go to the Union Calendar and when consid- ered must be considered in Committee of the Whole. At the end of the morning hour (sixty minutes) a motion may be made to go into Committee of the Whole for the consideration 142 READINGS IN CIVIL GOVERNMENT of bills on the Union Calendar or for the consideration of some particular bill thereon. This motion the Speaker is bound to entertain. Then a large part of the business of the House is done wholly outside of the rules by unanimous consent. Some gentleman, for instance, arises in the House and, being rec- ognized by the Speaker, asks ' * unanimous consent for the pres- ent consideration of the following bill." Unless objection is made the bill is considered and voted on. It is in connection with this practice and because of it that autocratic power is without any reason ascribed to the Speaker. But the rules have nothing at all to do with this. The applicant for rec- ognition asks that all rules be set aside. To this any member of the House may object. Why should complaint be made if the Speaker exercises his right of objection by refusing to recognize an applicant for recognition in any particular case? Because he is Speaker he is no less a member of the House ; no less a Representative of his Congressional District. If he were on the floor he could interpose an objection to any request for unanimous consent. Should he be less able to in- terpose that objection because he is in the chair? Certainly not. That the Speaker's power in this regard is only in the last analysis, that of a member may easily be illustrated. During the latter part of the Fifty-fourth Congress, when Mr. Reed was Speaker, there was a member from Nebraska named Kem who announced that he would object to any considera- tion of bills by unanimous consent. After the announcement, on the first day, the Speaker's room was crowded, as usual, with applicants for recognition. Mr. Reed promised to do the best he could, but recalled to his applicants Kern's threat to object. Still members persisted, one of them was rec- ognized, and Kem objected. The next day the throng at the Speaker's room was not so great, but still of large propor- tions. Members had faith that Kem would not persist. Again Mr. Reed promised to do his best ; again recognition was had and again Kem objected. On the third day the Speaker's room was deserted, while an anxious throng surrounded the THE HOUSE OF REPRESENTATIVES 143 desk of Mr. Kern, and from that time on, Kem being per- sistent, the Speaker had peace ; Mr. Kem was the autocrat, and the business of the House proceeded under the regular order. There is no doubt that a great many measures of question- able character are passed by unanimous consent. Members cannot keep the run of all bills reported and are loth to object, both because ignorant of the merits of the particular measure proposed and because they may have measures of their own to be considered and they fear a reciprocity of ob- jection. In a majority of cases the only real intelligent ob- jection made to measure proposed for unanimous consent is that made by the Speaker, who has had opportunity to ex- amine, as was his duty, the bill. On two Mondays in every month and during the last six days of a session a motion is in order to suspend the rules and pass bills, which requires for its adoption a two-thirds vote of a quorum. The object of this rule, of course, is to expedite business by getting rid of bills to which two-thirds of the House are agreed. But the demands for recognition to move to suspend the rules are so far in excess of any possible power of grant upon the Speaker's part that he is confronted by the embarrassing ne- cessity of making a choice. There is no doubt that he per- forms his unpleasant duty with due regard to his obligation to the public service. It is manifest that even under the methods provided by the rules for the consideration of all classes of business there must necessarily be measures of great public importance that, for one reason or another, cannot be reached in the regular order of business. These are provided for by special orders reported by the Committee on Rules, which consists of the Speaker, two members from the majority and two from the minority. Like the rules themselves, the Committee on Rules is made the subject of much unjust criticism. Autocratic power is ascribed to it. But it must be recognized first that the existence of such a body is a necessity, and second, that the only power it exercises is the power of the House. The Committee on Rules does not dictate, it simply suggests. Its 144 HEADINGS IN CIVIL GOVERNMENT report is of no consequence until it has been adopted by a ma- jority. The fact that the committee's reports are uniformly adopted, so far from being any evidence of undue authority or power on the part of the committee, is evidence of the discretion of the committee in recognizing and making possi- ble what the House wants to do. The real temper of the House upon any question at any given time, it may be as- sumed, is better known by the Committee on Rules than by any one else. The committee, so far from being the master, is the servant of the House. Of the 7,423 bills considered last year, only 24 were brought forward by the Committee on Rules. . . . Early in our history unlimited debate was resorted to to prevent legislative action, and the result was the adoption of the previous question in the House. According to Mr. Cal- houn it was adopted ' ' in consequence of the abuse of the right of debate by Mr. Gardenier, of New York, remarkable for his capacity for making long speeches. He could keep the floor for days." But Mr. Gardenier was only a type, and the adoption of the previous question marks the first step in our Congressional history taken by the majority toward securing its right to rule. The next step was the adoption of the hour rule, pursuant to which a member of the House is confined to the use of one hour in debate. With each decennial apportionment the House of Repre- sentatives increases in numbers. As the numbers increase the importance of the individual member decreases and the influ- ence of a few increases. What the remedy for this growing evil is I do not undertake to predict or what new or modified rules may become necessary. But under present conditions the rules of the House of Representatives are as efficient as present wisdom and past experience have been able to devise, "to subserve the will of the Assembly rather than to restrain it, to facilitate and not to obstruct the expression of its de- liberate sense." THE HOUSE OF REPKE SENT ATI VES 145 31. THE PUBLIC AND THE CONGRESSIONAL COMMITTEE. There are now more than sixty standing committees in the House of Representatives. Mr. Bryce in his American Commonwealth makes the following points in criticism of the committee system: It destroys the unity of the House as a legislative body; it cramps debate; it lessens the harmony of legislation; it reduces responsibil- ity; it throws power into the hands of the chairmen of the leading committees ; and it gives facilities for the exercise of underhand and even corrupt influence. Referring to the last item, Mr. L. G. McCon- achie in his book on Congressional Committees shows how the committees perform their work and what influences lessen the op- portunities for corruption : A number of forces have counted against secrecy, or worked for larger and larger publicity. The lobbyist has not always been sure of his man; now and then the Eepresentative has exposed him in open House ; and to the heavy penalties of the law ; beginning with such a case in 1795, an attempt to bribe the chairman of a Committee on Land Offices with shares of western lands, these bright examples of legislative esprit de corps have had occasional manifestation. The earliest form of publicity for committee proceedings came, both in England and America, through the printing of their reports. From the beginning this practice has obtained in the House more and more fully, and journalists continually send to the great newspapers notices of such reports as they think will be of interest. All reports of committees of whatever description, including those of minorities, must be printed. A recent amendment of the rules corrects, to a large extent, abuses which had grown up in connection with conference reports, by providing that they shall be detailed and explicit as to changes in bills agreed upon by the managers. Each Congressman is entitled to one copy of every printed document. Committee sessions are always open to members of the House. The more important committees have become so large that opportunities for cabal are much lessened. With the reporter going the rounds for interviews, with a diversity of interests represented by committeemen from many States, with a minority on the 146 READINGS IN CIVIL GOVERNMENT watch, and quick to report to the House and to the public, with the gossipy confidences which pass among public men, and the easy evasions of that antiquated precedent which forbids any mention of committee proceedings in House de- bates, with the filibuster whose athletics have sometimes called the attention of the country to iniquitous measures publicity has generally got in some degree its due, though often too late. Tendencies past and present point to the desirability and perhaps it is not too strong an inference to the inevitable- ness of a full publicity for committee work. The committee hearing is the most hopeful sign. No feature of Congres- sional legislation is more interesting. It is a happy device for gleaning information and gauging public opinion. It is growing in favor, and perfecting its development. A com- mittee at the outset of its session's work will schedule fifteen or twenty days for presentation of arguments upon one of its prominent measures by outsiders. This testimony is caught by the stenographer's pencil, and presently appears u printed and indexed booklet, which serves as the principal text for the committee's action. Before the daily meeting of the House, from 10:30 in the morning until noon, is a usual period for the hearing. The first comers at such a meeting are naturally those who expect to present their views before the committee. They are strangers in the city and the Capi- tol, and come, it may be, from distant parts of the Union. They find themselves in a large, square room with frescoed dome, from which the sunlight streams downward over a swinging chandelier. Shelves of books and maps mounted for convenient reference line the walls. There are easy sofas, a home-like fireplace surmounted by a fine mirror, and other objects of convenience or comfort. Diagonally across the room extends the great, solid committee table, bordered by ample cushioned chairs, and laden with thick files of the bills which await action. A hum of conversation hushes when the chairman, the first committeeman to arrive, takes his seat at the head of the table. The visitors are introduced by their THE HOUSE OF REPEESENTATIYES 147 home Congressman, although he is not a member of the com- mittee. Proceedings begin with a few of the committeemen present, and others drop in one by one, the minority mem- bers being the greatest laggards. Upon the Congressman who has introduced his constituents the chair will probably be- stow the honor of managing the floor, including the order of the programme, the introduction of speakers, and the equitable division among them of the one hour and a half for 'debate. Each advocate or witness stands in turn at the foot of the table facing the chairman, and strives earnestly to impress his views upon the auditory, subject all the while to a fire of cross-questioning from those who choose to interrupt. An important general appropriation or tariff bill may be the theme. Perhaps these invaders of the Congressional halls rep- resent rival towns in a fast developing and somewhat lawless mountain region of West Virginia, where the establishment of a new Federal court has become necessary; or they are the spokesmen of contending religious sects, who urge or oppose the introduction of the name of Deity into the Constitution of the United States; or they stand for two great clashing industries, filled cheese and oleomargarine against butter and full-cream cheese, the grievance of the quiet, self-respecting American cow against the pushing, unscrupulous American porker, the conflict of Vermont meadows with corn and cotton fields of Illinois and Georgia. It is a revelation to the onlooker, an indispensable key to the puzzles of that vast onward sweep of legislation in the full arena of the House. Here he sees the headsprings of law. Here is the despised secret lobby hopefully transforming into the open and fair voice of all who desire to be heard. From every class and occupation the influences come. Ministers of the gospel and labor dele- gates touch elbows. The physician and the expert of science contribute their testimony. Clerks and other officials of long experience in government answer the call for information. The judge, the old soldier, the merchant, come burdened with the letters, the affidavits, and the carefully prepared addresses of distant fellow-citizens and comrades. There are readings 148 READINGS IN CIVIL GOVERNMENT of newspaper articles, echoes from numerous conventions, in- dorsements of labor organizations, amendments for pending bills suggested by produce exchanges, even voices from for- eign lands. It is the point of mutual touch between two fully developed standing committees, the one maintained by some voluntary association of the people for the purpose of influencing legislation, the other established by Congress to ascertain and supply the needs of society in the way of new laws. While the private advocate is delivering before the committee his careful and labored argument, the legislator leans forward with eyes and ears all eager attention; for afterward, when the bill comes up in the House, he will re- hearse the committee hearing in a broader, somewhat drama- tized way. 32. AN APPORTIONMENT BILL. The Constitution provides that Representatives shall be appor- tioned according to population and that a census shall ba taken < ten years for that purpose. The following Act was passed in ap- portioning Representatives on the basis of the census taken in 1910 : Be it enacted by the Senate and House of Representatives in Congress assembled. That, after the third day of March, nineteen hundred and thirteen, the House of Representatives shall be composed of four hundred and thirty-three members, to be apportioned among the several States as follows : Alabama, ten; Arkansas, seven. . . . Sec. 2. That if the Territories of Arizona and New Mexico shall become States in the Union before the apportionment of Representatives under the next decennial census they shall have one Representative each which Representative shall be in addition to the number four hundred and thirty-three. Sec. 3. That in each State entitled under this apportion- ment to more than one Representative, the Representatives to the Sixty-third and each subsequent Congress shall be elected by districts composed of a contiguous and compact THE HOUSE OF REPRESENTATIVES 149 territory and containing as nearly as practicable an equal number of inhabitants. The said districts shall be equal to the number of Representatives to which such State may be en- titled in Congress, no district electing more than one Repre- sentative. Sec. 4. That in case of an increase in the number of Repre- sentatives in any State under this apportionment such addi- tional Representative or Representatives shall be elected by the State at large and the other Representatives by the dis- tricts now prescribed by law until such State shall be redis- tricted in the manner provided by the laws thereof and in accordance with the rules enumerated in section three of this Act; and if there be no change in the number of Representa- tives from a State, the Representatives thereof shall be elected from the districts now prescribed by law until such State shall be redistricted as herein prescribed. Sec. 5. That candidates for Representative or Representa- tives to be elected at large in any State shall be nominated in the same manner as candidates for governor, unless other- wise provided by the laws of such State. Sec. 6. That all Acts and parts of Acts inconsistent with this Act are hereby repealed. 33. THE HOUSE OP REPRESENTATIVES AND THE HOUSE OF COMMONS. In the following article Mr. H. A. Herbert, formerly Secretary of the Navy, points out the differences in procedure between the House of Representatives and its English prototype the House of Commons: [1894]. The reasons why the debates in the American House are not as fully reported and as keenly followed by the public as those of the House of Commons, and- why the party in power in the House of Representatives has not and never can have any great leader who represents the government in every measure and upon whom all eyes are centred as they now are upon 150 READINGS IN CIVIL GOVERNMENT Gladstone or as they have been upon Disraeli or Charles James Fox or William Pitt, are fundamental. "The Government," as in England they call the Ministry, with the Prime Minis- ter as chief, sits in the House of Commons; it matures and offers all important bills, and upon the success or failure of these it must stand or fall. Upon any signal defeat it goes out of power, and so every debate in the House of Commons is watched with somewhat of that lively interest with which, in America, we follow the progress of a presidential election. With us the defeat of a particular bill means simply the de- feat of that measure. The consequences, whatever they may be to the party in power, are not immediate. The people have selected their officials for fixed terms. They have reserved to themselves the power, at the next elections, to vote upon the whole record made by a party, "confidence 7 ' or "want of con- fidence " and they are not watching to see what new " govern- ment " Congress is to give them. The Executive and Con- gress are, under our Constitution, so distinct and separate that there is nothing to bind them together in the maintenance of a common policy except allegiance to a common party. The power of these ties is, or ought to be, great, as there is not much hope for the future success of a party if its legis- lators and its executive are at odds with each other; but this is all there is of it. In the English House of Commons executive officers are present to answer questions, to explain their policies and to defend them. With us, as no executive officer can sit or vote or speak, either in the Senate or the House, the President must rely upon his party friends to defend his acts. From the nature of things he cannot have any one man, either in the House or the Senate, to defend him at all times and on all questions. Attacks upon the administration are made without warning. The constant effort is to surprise. If the assault is upon the dealings of the government with the Indians, as a rule, members of the Committee on Indian Affairs, who have the necessary information, come to his rescue ; if on the man- agement of the navy, the Naval Committee, or, on matters re- THE HOUSE OF REPRESENTATIVES 151 lating to the army, the Military Committee must defend him. In England the Ministry sitting in the House of Commons, fully equipped to explain their policies, and having upon their shoulders the affirmative of every great issue, are represented by the Premier or some other of their number. Under such a system a great government leader on the floor of debate is not only possible, but he is a necessity; but with us such a leader cannot exist. No single member can be like an Eng- lish minister, caligatus omnia. Presidents have generally had special friends on the floor of the House, and quite often some prominent member has been known as the mouthpiece of the Executive, speaking his sentiments, now and then, with more or less of authority ; but a leader in the English sense, such a leader as our public prints and even our public men are often found deploring the need of, the parliamentary history of our country does not mention. Henry Clay was a great leader on the floor of the House, but he was not a government mouth- piece. Thad Stevens was a leader in the stirring times of the Civil War, and still more during the days of reconstruction, but he only stood for a leader on one idea at a time on the prosecution of the war while it lasted, and on granting suf- frage to the negro in the days of reconstruction. He was never known during the war as the special representative of the President, and in his reconstruction measures he boldly trampled under foot the policy that Mr. Lincoln had formu- lated and President Johnson was endeavoring to execute. A minority leader, however, in the House of Representa- tives is possible within limits. It is not difficult to unite members who are animated by a common desire to turn a party out of power and we need not go far to seek in our history for opposition leaders. Mr. Randall, although he was out of sympathy with the majority of his party on the great question of the tariff, was nevertheless, for a time, the ac- knowledged leader of the Democrats in opposition; and Mr. Reed was the undoubted leader of the Republicans from 1885 to 1889. But except the Speaker, Mr. Cleveland during his administration had no friend on the floor upon whom he could 152 READINGS IN CIVIL GOVERNMENT look as leader of the House; and Mr. Harrison certainly was in no better plight. Bills, before they are put upon their passage, especially those that deal with the great questions of taxation and ap- propriations, must be formulated after careful study and preparation. This work "the Government" does for the House of Commons, most of it during the recess of Parliament, and this body can therefore get itself down to the work of legislating almost immediately after it comes together. The House of Representatives must formulate its own bills, and this it can only do through committees. When Congress con- venes and the House elects its speaker, he sets himself to the task of dividing it into fifty-six standing and select commit- tees. This requires time. When committees are organized, they must perfect and report upon the bills or subjects re- ferred to them, and this requires still more time. Govern- ment reports are to be read, witnesses examined, figures studied and compared, information to be acquired from the departments, and then the form and nature of the reports and bills are to be decided upon. As a rule to which there are few exceptions, the members of the great committees labor with unremitting zeal and fidelity. Duty impels them, and they know, too, the temper of the public. If, for example, a majority has been elected to increase subsidies, every subsidy- seeker knows just what he wants and he fails to see why Con- gress does not give it and go home. If on the other hand the majority chosen favors a reduction of taxation, one portion of the public is importunate for immediate relief, while the other is shouting through the press that Congress is depressing busi- ness by "tinkering with the tariff/' Nobody understands this impatience better than a member of the House, who or- dinarily has, in the necessity of looking after his own interests, business and political, at home, still another incentive to haste. There are several well-known instances of members breaking down, some of them dying outright from overwork, as did Haskell of Kansas, Burnes of Missouri, and probably Randall of Pennsylvania; but the work of such men is done THE HOUSE OF REPRESENTATIVES 153 in the privacy of the committee-room, and while it is going on the public is usually clamoring about the delays in legisla- tion. Inasmuch as in England the Ministry prepares every im- portant bill, the claim made by Englishmen may be true that the laws passed at any one session are more harmonious and consistent than they can be without any common supervision. In the earlier days of the republic, when the legislation of Congress was confined within narrow limits, our own laws had, in a great measure, such supervision. One committee, the Ways and Means, had jurisdiction over all questions of finance, taxation, and appropriation, but now no single com- mittee could possibly perform all this work. The interests embraced in the legislation of Congress have multiplied even more rapidly than population, and the jurisdiction originally exercised by the Ways and Means Committee has been dis- tributed among many other committees. In England the majority represented by the Ministry ask no counsel of the minority in framing bills. The mi- nority never see the bills until reported and ready for the action of the House of Commons. With us the minority is fairly represented on every committee. The Speaker, parti- san though he be, is expected to act with the utmost impar- tiality in apportioning the opposition to all the greater stand- ing committees, and, as a matter of fact, having no friends among them to whom he is indebted for his seat, he is gener- ally more just to the opposition in the makeup of committees than he is to his own party. One single case is remembered of a speaker who was said and believed to have told his friends that he had put the opposition where they could do the least possible harm. That Speaker was a failure; this treat- ment of his political opponents was his first stumbling- block. . . . It is not intended in this article to assert that the com- mittee system is perfect, but only to maintain that under our form of government the House of Representatives must neces- sarily have committees of its own members to prepare legis- 154 READINGS IN CIVIL GOVERNMENT lation, and that the system at present existing is not subject to the grave objections urged against it. It is true that the members may trust committees too implicitly, but the same objection would seem to lie against a system of parliamentary government where the ministry must be followed implicitly in every important measure, the penalty of a defeat of the gov- ernment, in every such case, being the immediate loss of every seat and another appeal to elections. In one respect the House of Commons always appears to advantage when compared with the House of Representatives. The spectator, looking in upon the latter, sees a desk before each member, and unless upon occasions of extraordinary interest he finds perhaps a majority engaged in writing letters, reading newspapers, clapping for pages, etc., and he is quite likely to go away with the impression that Representa- tives generally do not know or care what is being done, whereas in the House of Commons there are no desks, no reading, or writing, or clapping for pages only those are present who wish to listen. The advantage, however, is not so great as it appears to be. Under both systems members who have not heard the debate are on hand, when a division comes, to vote with their parties, and certainly those who have been brought by a "whip" into the House of Commons are no better prepared to vote intelligently than those who in our House have been sitting by, listening perhaps to the debate by snatches. The truth is not to be ignored that, whatever be the system and however large may be the legislative body, a few men will control the business. In the House of Com- mons one committee the Ministry controls everything. With us the several great committees control in turn. The American practice of having desks and permitting members to read and write was defensible before Representa- tives voted themselves clerks, as they very properly did in the last Congress, as it was impossible for them to do their necessary correspondence without utilizing the hours of the session. Now it is hoped that in the near future desks will be removed, as nothing detracts so much from the respect THE HOUSE OF REPRESENTATIVES 155 the public ought to entertain for the House as the ragged appearance it ordinarily presents to the visitor. ADDITIONAL READINGS 1 Recent Developments in Congressional Procedure, Reinsch, P., American Legislatures and Legislative Methods, 42- 70. 2 The House at Work, Bryce, J., American Commonwealth, I, 142-53. 3 Impeachments, Hinsdale, B. A., The American Govern- ment, 170-5. 4 Parliamentary Obstruction in the United States, Lodge, H. ., Nineteenth Century, XXIX, 423-8. 5 Making Laws at Washington, Nelson, H. L., Century Maga- zine, XLII, 169-84. 6 The Speaker and His Power, Taylor, H., North American Review, CLXXXVIII, 495-503. 7 Speaker as Premier, Hart, A. B., Practical Essays in Amer- ican Government, 1-20. CHAPTER VIII THE SENATE 34. POPULAR ELECTION OF SENATORS. (a) The Constitution originally stipulated that Senators were to be chosen by the State Legislatures. This mode of election was not an unqualified success. Concerning it Mr. George H. Haynes, in his book on The Election of Senators written prior to the adoption of the amendment providing for the election of Senators by the people, offered the following criticisms and suggestions : * How senators shall be chosen, has become a question which the people of the United States must frankly face. For, that the phrases of the Constitution have long since ceased accurately to describe, still less to determine, the process of their election, no one can doubt who has noted how senators in recent years have reached their office, or who has grasped the import of the movement, which, during the past thirty years, has taken on different forms, has employed different means and methods, but has ever kept the same spirit and aim a determination that the Senate of the United States shall be made responsible to the people. . . . Meantime, a vast deal of ingenuity has been devoted to attempts to reach popular control of senatorial elections by some other route than the amending of the Constitution. While the form of election by the legislature is retained, its spirit has been radically changed. There is not a State in the Union to-day where members of the legislature proceed to the election of a senator with that enlightened independ- ence, that freedom of individual discretion in the choice from which the fathers anticipated such beneficent results. Everv- i Reprinted by special permission of Henry Holt and Company, 156 THE SENATE 157 where the legislators approach the task under the dominance of party, and in every State where one well-disciplined party is in power, the result of the election is a certainty even before the legislature convenes. Not only has party spirit claimed this election for its own, but the party's choice for senator is often made before the members of the legisla- ture are elected, and is obtruded upon that body by the state convention. Already, in about a third of the States, either under party rules, or in accordance with the explicit pro- visions of state law, direct primaries name the candidates, and wherever a strong party is supreme, this nomination is tantamount to an election. Even in the most conservative States, the movement for the direct primary is making dis- tinct progress. In four States, provision is made for a popular "election," carried out under the supervision of officials, not of the party, but of the State; an election as complete in all its details and formalities as is that of the governor, yet which is as void of legal power to bind the legislature in the real election of senator as would be the resolutions adopted by a boys' debating society. What, then, is the outcome to be? That depends not a little upon the temper and action of the Senate itself. If senators have foresight enough to discern the cloud while it is yet but the size of a man's hand, the gathering tempest of discontent may be averted. For, in comparison with a rule-ridden House that has ceased to be a deliberative body, a Senate that gave evidence of feeling itself responsible to public opinion, and of striving to discover and serve the country's broader interests, might so win the people's confi- dence that agitation for change in its mode of election would lose its force. But is legislative election under present con- ditions calculated to yield a Senate capable of such self-re- generation? If, on the other hand, the Senate continues for a few years more arrogantly to refuse the people an oppor- tunity to pass upon the mode of their election; if, mean- time, relying upon the impregnable defense built about their office by legislative election, senators persist in neglecting 158 READINGS IN CIVIL GOVERNMENT or perverting measures of the utmost public concern, while not a few of them are devoting their best energies to the protection of private interests; if state legislatures, heed- less of the earnest and manifold efforts made by the people to bring them to a sense of their high responsibility to the State in the selection of senators, persist in using their free- dom of choice, not for the selection of the best man, but of men whose presence in the Senate is a disgrace to the State and a menace to popular government then the new century will still be young when the people will find themselves forced to make choice between two alternatives; either they must redouble their efforts to force the new wine of democracy into the old bottles of the elective process prescribed by the Constitution, or, frankly casting aside that ancient mode of election as outworn, for better, for worse, they must take the choice of senators into their own eager, strong, but unskilled hands. But the teaching of both theory and experience is that without amendment of the Constitution, genuine popular control over senatorial elections cannot be effectively realized. It needs no repetition of such experiences as the Oregon fiasco of 1903 to afford convincing proof that the indorse- ment of senatorial candidates by state conventions, their nomi- nation by direct primaries, even their " election" by an over- whelming majority of the vote of the people, may count absolutely for naught in influencing the real election at the hands of a legislature ruled by party bosses, or rent by fac- tions which this very election has brought into being. In the very State where popular control of senatorial elections is most needed, the best laid schemes for its realization have proved futile. . . , The grounds which the framers of the Constitution ad- vanced for their belief that the election of senators by legis- latures would produce beneficent effects upon the Senate as a lawmaking body have for the most part become obsolete. Legislative election in other departments has passed entirely out of vogue and out of practice. It was not to be thought of THE SENATE 159 that the framers of the constitution in the latest great federal state, the Australian Commonwealth, would follow ancient American precedent in this regard. If it is claimed that the change to popular election would remove a great bulwark against centralization in the organized resistance of the state legislatures, the reply is that no other influence has conduced so directly to the subordination of state and local govern- ment to the national party organizations as has this process of electing senators, and legislatures thus dominated are lit- tle likely to impose sentiments opposed to centralization upon the senators of their choice. The protest that under popu- lar elections the Senate would fail to secure representation of the States as such, is academic and fallacious. The state legislature is but the agent; the body of voters, the princi- pal. The governor personifies the State in most of its deal- ings with other States and with the national government; he certainly is no less the representative of the State by virtue of his deriving his authority directly from the people than he would be if he were elected by the legislature. No logical principle underlies the assumption that only election by the legislature can authorize a man to represent the state- hood of Massachusetts, or of New York, in the Senate of the United States. As to the improvement which popular election would bring to the quality of the Senate, it is best not to entertain too optimistic anticipations. It cannot be denied that the lower- ing of the tone in the Senate in recent years is not to be attributed solely to the method of election which in form has remained unchanged but to general influences which have lowered and commercialized American politics through- out the system. Popular elections would present no insuper- able barrier to the demagogue and to the corruptionist. In- deed, it is a debatable question, whether he would not find his path easier and more direct than at present. Moreover, the shortening of senatorial careers which the history of other elective offices shows would be an almost inevitable consequence of popular election would tend seriously to im- 160 READINGS IN CIVIL GOVERNMENT pair the Senate's prestige and power. The chief grounds for hope that popular election would, nevertheless, improve the tone of the Senate, are three: (1) No candidate could secure the election unless he possessed the confidence and could enlist the support of a plurality at least of all those sufficiently interested to take part in a great national elec- tion. (2) In the openness of the direct primary, and in the publicity for the weeks preceding a popular election, the people would have ample opportunity for passing a far more correct judgment upon senatorial candidates, than is possi- ble in the murky atmosphere which often surrounds an elec- tion in the legislature. At present, the case is closed as soon as a candidate, who may never have been thought of before, can negotiate a majority from some few score of leg- islators; under popular elections every candidate's record and qualifications would be under discussion for weeks be- fore the election, and if the popular verdict proved to be not in accord with the evidence, the blame could be shifted by the voters upon no one else. (3) Although the phrase- maker, the demagogue, or even the corruptionist or corpora- tion tool, might capture a seat in the Senate, democracy would learn valuable lessons from such betrayals of confi- dence, and would correct its mistakes with more promptness and permanence than would a state legislature. The decisive advantages of the change to popular election of senators, however, would be found in its effects, not upon the federal government, but upon the individual States. However plausibly the apologist for the present system may argue that this very method of election by legislatures has remained unchanged since the time when it produced ideal results, and that, therefore, the causes of the present abuses must lie deeper than the mere mode of election, he cannot deny that our state legislatures have sunk to a deplorably low level, and that one of the most potent causes of this de- terioration which has unfitted the legislatures for the per- formance of this function, by what may seem like a paradox, has been the very exercise of it. The fact that this election THE SENATE 161 of an important federal official is devolved upon the mem- bers of the state legislature blurs the issues in the voter's mind, distorts his political perspective, makes him tolerant of much inefficient legislative service on the part of the man who will vote for his party's candidate for the Senate. To the legislature, as a body, it brings what is liable at any time to prove a task as difficult and distracting as it is in- congruous with normal legislative work ; to the State it brings interruption, it may be prevention, of needed legislation, the domination of all issues by the national political parties and the tyranny of the boss, who almost inevitably seeks to im- pose either some tool or his own venal, or at best, narrowly partisan self upon the commonwealth, as the "representative of its statehood" in the United States Senate. To be rid of this would be an achievement well worth the struggle, the earnest of far greater progress in the future. (b) The following joint resolution providing for the election of Senators by the people was submitted to the States by the 62nd Congress in 1911 and having been ratified by three-fourths of the States became part of the Constitution in April, 1913: RESOLVED ~by the Senate and House of Representatives of the United States of America in Congress assembled (two- thirds of each House concurring therein}, That in lieu of the first paragraph of Section 3 of Article I of the Constitution of the United States, and in lieu of so much of paragraph 2 of the same section as relates to the filling of vacancies, the following be proposed as an amendment to the Constitu- tion, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three- fourths of the States: 1 1 The Senate of the United States shall be composed of two senators from each State, elected by the people thereof, for six years; and each senator shall have one vote. The elect- ors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legisla- tures. "When vacancies happen in the representation of any 162 READINGS IN CIVIL GOVERNMENT State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Pro- vided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. "This amendment shall not be so construed as to affect the election or term of any senator chosen before it becomes valid as part of the Constitution." 35. THE COMMITTEES OF THE SENATE. In 1900 there were fifty-five standing and eight select commir of the Senate. Concerning the appointment of these committees and their procedure in transacting the business of the Senate, Mr. Brainard A very, formerly clerk of the committee on agriculture and forestry, writes as follows: Since 1840 it has been the practice for both caucuses of the majority and minority members of the Senate each to name a "steering committee, M composed of from five to nine Senators. These steering committees name for their respective caucuses a Committee on Committees which prepares a list of chairmen and a schedule for membership of all the com- mittees. In compiling these lists the rule of seniority of service has much to do with the assignment of committee chairmanships; the Senator having the longest period of consecutive service upon the committee is ordinarily entitled to the chairmanship of that committee, when the organization belongs to his party. Thus, we find States of the Union, which continuously return the same Senators to Congress, become, by this unwritten rule of seniority, possessed of the most important chairmanships, which fact naturally gives those States some advantage in directing the course of legis- lation. Of the entire Senate, the average number of standing com- mittees to which each Senator is assigned is six. Yet, many Senators have places on seven different committees; and at present, two Senators serve on eight committees. This is in THE SENATE 163 striking contrast with the practice in the House, where each member, as a .rule, is assigned to only one or two commit- tees, and rarely to three. It does not follow, however, that the Senator having the largest number of committee assignments is the oldest or the most influential. On the contrary, many Senators as they age in the public service drop some of their minor committee assignments, and confine themselves to a few of the most im- portant committees, where their efforts can be best applied and prove most effective. Rarely is it possible for a Senator to obtain assignment to two of the leading committees simultaneously. A notable exception to this rule is Senator Allison, of Iowa, who is chairman of the Committee on Appro- priations, the most powerful committee in Congress, and, also, is a member of the Committee on Finance, the committee next, perhaps, in importance. The slate prepared by this Committee on Committees is sub- mitted to the party caucus convened in secret session, and when ratified by a majority of the caucus, is forced through the Senate by a strictly party vote. Reorganization of com- mittees usually occurs at the beginning of a Congress, and attempts to change their organization have given occasion for celebrated political fights and compromises. The last com- plete organization of the Senate committees occurred in 1895. Neither the Democratic nor the Republican caucuses had a clear majority in the Senate, and the balance of power was wielded by six Populist Senators. The Republicans were enabled by a combination to possess themselves of the com- mittee chairmanships, but many of the committees were com- posed of a majority adverse to Republican policy. An illus- tration of this was afforded by the Committee on Finance, which, although presided over by a distinguished Republi- can Senator, reported favorably a bill for "the free and un- limited coinage of silver." The custom is for the dominant political party to name the committees so that each com- mittee shall have a majority in accord with its political faith. Thus, the Committee on Finance, with a membership 164 EEADINGS IN CIVIL GOVERNMENT of thirteen Senators, as at present constituted, is composed of eight Republicans and five Democrats, with a Republican chairman. But, an exception to this rule is found in several of the smaller non-political committees, some of which are assigned to leading Senators of the minority, out of respect for their long service in the Chamber. The Committee on Rules assigns one or more rooms to each committee. These committee rooms, for the most part, are located in the Senate wing of the Capitol, and are fur- nished much like private apartments. The old oblong com- mittee tables many of them historic boards have been gradually displaced, and the committee rooms more or less closely resemble private libraries, sumptuous with mahogany furniture, leather-covered chairs and handsomely bound books. Upon assuming the chairmanship, a Senator takes posses- sion of the room assigned to his committee, and during his chairmanship it remains not only the home of his committee, but his personal headquarters, whence he may direct the con- duct of political affairs in his State. Each committee is provided with a clerk, whose pay ranges from $1,800 to $3,000 per annum. Occasionally a committee has an assistant clerk, with pay at from $1,800 to $2,220, a messenger at $1,440, and a staff of other assistants, accord- ing to the importance of, and amount of work before the committee. Each bill has (as a matter of course) two readings in the open Senate, after which it is referred to the committee having jurisdiction of the subject-matter of the bill. Often questions of doubt exist as to which committee a given bill should be referred. The fate of a bill may depend upon what committee it comes before whether it must face a tribunal of friends, or of foes. A recent example is the bill now pending in the Senate, providing that a ten per cent, tax shall be imposed upon oleomargarine and its products. This involving a question of taxation, the Committee on Finance ordinarily would be entitled to consider the meas- ure; but the real purpose being to adopt a new agriculture THE SENATE 165 policy, i. e., that of destroying the trade in imitation butters by the imposition thereon of a prohibitive tax, carried the bill to the Committee on Agriculture. Questions as to the reference of bills are determined by the Senate, but rarely is there difficulty, since bills are cus- tomarily referred "appropriately referred" under the rule at the time they are introduced. In addition, all petitions, memorials, and papers relating to bills are sent to the appro- priate committee for consideration when the committee takes up the bill. After introduction and reference in the Senate Chamber, the original draft of a bill goes to the desk of the Secretary of the Senate, where a record of it is entered, and on the following day a printed copy is delivered at the room of the committee to which the Senate ordered the bill referred. The bill can then be said to be in the possession of the committee. After the clerk has docketed each bill and its accompanying papers, the usual routine is that all bills relating to an execu- tive department of the government shall be referred to the head of the department concerned. Thus, bills sent to the Military Committee are, under a standing order adopted by the committee, referred to the Secretary of War for recom- mendation. Upon the return of the papers the chairman usually assigns the bill to a sub-committee of his committee. These sub-committees are composed usually of from two to five Senators, who, more or less informally, discuss and amend the bill and draft their report. Both the bill and the report are presented at a meeting of the full committee, passed upon, and a report, either favorable or adverse, ordered to be made to the Senate. Oftentimes the minority of a com- mittee disagreeing with the majority, will file a "minority report, ' ' setting forth the reasons of their dissent. An individual Senator, by his ability and special aptitude for particular branches of legislation, is sometimes permitted by his colleagues upon the committee, to perform the func- tions of both committee and sub-committee. Thus, Senator Vest, of Missouri, a strong partisan in a Senate overwhelm- 166 READINGS IN CIVIL GOVERNMENT ingly opposed to him politically, possesses by courtesy of the Committee on Commerce, of which he is a member, the privilege of passing for that committee (except in cases where there is a contest) upon bills relating to the bridging of navigable waters of the United States a very important func- tion of Congress. Frequently, cabinet officers appear voluntarily, or by in- vitation, before a committee or sub-committee, to explain cer- tain legislation which they desire, and are interrogated by members of the committee. The chairman of a committee relating to one of the execu- tive departments is an important factor at the department. He is brought into close relations with departmental affairs and with the Secretary, and frequently becomes his constant adviser. This is especially true of committees which con- sider appropriation bills, and subjects more nearly executive than legislative. Officials of the departments concerned are careful not to incur the disfavor of the chairman or any of the members of the committee, iu each House oi Congress, upon which they depend for appropriations and for special legislation. The importance of this contact of the legislative with the executive departments of the government is forcibly illus- trated in the relations which the chairman of the Senate Com- mittee on Foreign Relations bears to the President and the Secretary of State, in formulating the foreign policy of the Administration. The Senate shares with the President the treaty-making power, which the Constitution declares to be a part of the law-making power. The Senate thus secures a general control over the foreign policy of the Administration. Treaties which have been signed are submitted to the Senate for ratification, and find their way to the Committee on For- eign Relations. It usually behooves the President to keep in touch with the majority in the Senate, and feel its pulse as to treaties in progress of negotiation. This is naturally done through the Committee on Foreign Relations, and its chair- man is often consulted in advance. THE SENATE 167i 36. THE FREEDOM OF DEBATE IN THE SENATE. The strict limitation of debate which the House has found it neces- sary to impose is in sharp contrast to the utter lack of restraint which prevails in the Senate. In the following selection, Professor Paul Reinsch refers to some extreme instances of the abuse of this privilege and points out the evil consequences which result from it: The principal characteristic though a negative one of the procedure of the Senate, is the total absence of all rules in any way limiting discussion. The use of the previous question was abolished early in the history of the Senate, and Clay's attempt to reintroduce it in 1840 did not succeed. Since then the Senate has come to look upon the complete freedom of discussion as its most cherished attribute, as indeed it does guarantee the dignity and importance of each indi- vidual member. The unlimited liberty and opportunity of speech has how- ever been repeatedly abused in the recent past, and turned to purposes not in harmony with the idea of rational delibera- tion. The silver senators were the first to make unduly extensive use of this freedom of debate to tire out the opposi- tion to their measures. Senator Carter's well-known per- formance, when, at the end of the session of 1901, by means of a harangue of thirteen hours, he defeated the river and harbor bill, did not subject him to severe censure, because that bill was not generally regarded as a wise measure. But his action, considering his motive to punish the Senate for not having given him a coveted appropriation for irrigation purposes would certainly not bear repeating very often without seriously discrediting the Senate. The latter was in fact the result, when Senator Quay, himself and by proxy, with interminable talk tried to shut out other measures and filibustered for his statehood bill. Nor did Senator Morgan 's probable conscientiousness in his objections to the Panama Canal free from censure his use of a like method. When Senator Platt of Connecticut poured forth everlasting dis- courses on Cuban reciprocity, it was with the incidental pur- 168 READINGS IN CIVIL GOVERNMENT pose of side-tracking tariff revision. Earnest, explicit, and thorough discussion of a measure has become a favorite method of the Senate for the postponement and defeat of other measures, an open attack upon which would be con- sidered impolitic. What Senator Carter did in 1901, the representative of South Carolina threatened to do two years later, in his successful attempt to force upon the Senate a claim of his state for $47,000, which, after deduction of a valid federal set-off as adjudicated by the proper authorities, actually amounted to 34 cents. This extreme instance of what Senator Vest called blackmailing the Senate, seems to have been the straw that broke the camel's back. It aroused a deep sense of indignation on the part of the House, lead- ing to the firm resolve not to submit to such tactics on the part of the Senate in the future. At the end of the session, after legislative measures have been subjected to extensive discussion in the Senate, and when little or no time remains for action in the House, the confer- ence committees meet to discuss the points of difference be- tween the two houses. At this time the representatives of the Senate are apt to use the inability of that body to close discussion as a cudgel to be held over the House of Repre- sentatives, in order to force it to accept the point of view of the Senate. Their arguments upon such occasions take the following form, "This is the best we can secure. Should introduce an enactment complying with the wishes of the House, it would inevitably be talked to death by certain sena- tors who are opposed to this measure. Therefore, if any ac- tion is to be had at all we must adopt the compromise pro- posed by the Senate." The repeated use of this argument finally drove the leaders of the House to remonstrance; after the incident of the claim mentioned above they made a decla- ration of independence. Under the rules of the House, gen- eral appropriation bills are not allowed to include changes of existing law. But the Senate has no such rule, and, in the words of Mr. Hull, "there is hardly a conference report adopted by the House that does not contain legislation which THE SENATE 169 could not have been brought in under the rules/' When in February, 1903, the Senate added to the army appropriation bill an amendment of the law concerning the retirement of of- ficers, it was pointed out that these provisions would have no standing under the House rules and Mr. Cannon declared, * ' In this body close to the people, we proceed under the rules. In another body . . . legislation is by unanimous con- sent/' But indignation rose to its full height, when the South Carolina claim had been forced down the unwilling throats of the powerless conference committeemen of the House. On this occasion Mr. Cannon made the following statement of remonstrance: 1 ' Gentlemen, know that under the practice of the House and ander the rules of the Senate the great money bills can con- tain nothing but appropriations in pursuance of existing law, unless by consent of both bodies. If any one of these bills contains legislation, it must be by the unanimous consent of the two bodies, and the uniform practice has been, so far as I know, the invariable practice has been with the exception of one amendment upon this bill, that when one body objected to legislation proposed by the other upon an appropriation bill, the body proposing the legislation has re- ceded. . . . "The House conferees objected, and the whole delay has been over that one item. In the House of Representatives, without criticizing either side or any individual member, we have rules, sometimes invoked by our Democratic friends and sometimes by ourselves each responsible to the people after all said and done by which a majority, right or wrong, mis- taken or otherwise, can legislate. 1 i In another body there are no such rules. In another body legislation is had by unanimous consent. In another body an individual member of that body can rise in his place and talk for one hour, two hours, ten hours, twelve hours. . . . ". . . Your conferees were unable to get the Senate to recede upon this gift from the treasury against the law, to the state of South Carolina. By unanimous consent another 170 HEADINGS IN CIVIL GOVERNMENT body legislates, and in the expiring hours of the session we are powerless without that unanimous consent. . "Gentlemen, I have made my protest. I do it in sorrow and in humiliation, but there it is ; and in my opinion another body under these methods must change its methods of pro- cedure, or our body, backed up by the people, will compel that change, else this body, close to the people, shall become a mere tender, a mere bender of the pregnant hinges of the knee, to submit to what any one member of another body may demand of this body as a price for legislation." It can admit of little doubt that in its opposition to the use of the liberum veto by individual senators, the House will en- joy the full sympathy and the hearty support of the Ameri- can people. Nor can the members of the Senate themselves desire that such a practice should become customary, for, though it would upon occasion give individual senators givjtt power, it would soon completely undermine the credit and authority of the Senate. It is a distinctly feudal principle, by which the desire of one man, however prominent, may de- feat the action of the State a principle similar to that which resulted in the political disasters and ultimate downfall of Poland. In the United States, great interests, struggling for feudal privileges, might be glad to entrench themselves be- hind the liberum veto of individual senators whom they con- trol. But the more statesmanlike influences in this body op- pose such a degradation; and they have not permitted the frequent abuse of this great* discretionary power, which has been confined generally to -the defeat of minor or local legis- lation. The danger, however, is present and calls for constant watchfulness on the part of the men whose aim it is to in- crease the true authority and dignity of the Senate. 37. THE USURPED POWER OP THE SENATE. Hamilton was of the opinion that the Senate would prove to be weaker than the House because it would not stand in such close re- lation to the people. In the course of events, however, the opposite has come to be true. Mr. James Bryee ascribes this result to the THE SENATE 171 circumstance that the Senate stands as a "center of gravity in the government, an authority able to correct and check on the one hand the 'democratic recklessness' of the House, and on the other the 'monarchical ambition' of the President. Placed between the two, it is necessarily the rival and often the opponent of both. The House can accomplish nothing without its concurrence. The Presi- dent can be checkmated by its resistance." That the Senate has taken advantage o*f this situation to usurp functions not conferred upon it by the Constitution is the opinion of Mr. A. M. Low: [1907]. Never did human ingenuity devise a more nicely balanced system of government than when the framers of the Constitu- tion allocated to the executive and to the legislature the ex- ercise of powers not to be infringed by the other; but like many things human the intent has been perverted. Every person familiar with the Constitution, the debates in the con- vention, and the writings of Madison, Hamilton, and Jay in The Federalist, must know that the purpose of the framers of the Constitution was to create a system of government by which the President should become neither the creature nor the controller of the legislature; and by vesting certain ex- clusive powers in the popular branch and certain other pow- ers in the Senate to provide that the line of demarcation be- tween the two houses should not be overstepped. What they feared and believed they had effectually guarded against was an executive who would become possessed of autocratic pow- ers; what they dreaded no less was a legislature that would reduce the President merely to a 'puppet a puppet to dance when Congress pulled the strings. Monarchical Europe and the Roman republics had warned them of the danger to the liberties of the people when the king was the source of all power, or when, in a republic, that power was usurped by a council or other elected body supposed to safeguard the peo- ple against the encroachments of the executive. . . . I have thus briefly sketched what my study of the Constitu- tion has taught me was the intent of its framers, and I now propose to show how this intent has been perverted. But before doing so let me summarize the broad principles of the Constitution. It was contemplated that there should be: 172 READINGS IN CIVIL GOVERNMENT First, an executive untrammeled by the legislature in the exercise of his constitutional rights. Second, a Senate which should supervise the executive so as to prevent the appoint- ment of improper or unfit persons to public office, or the mak- ing of treaties detrimental to national interests; and which should have co-ordinate powers with those of the House of Representatives except in legislation affecting " money bills. " Third, a House of Representatives that should have control over the national purse. How far have the American people departed in principle from the scheme of their Fathers T Perhaps the most important divergence, which is almost the most dangerous to the rights and liberties of the people and to the future of the republic, is the right arrogated by the Senate (which, I regret to say, has been ratified by the Su- preme Court) to control the purse, which in its broader sense means not only the right to make appropriations but the higher privilege to impose taxation. The Constitution pro- vides that all bills raising revenue shall originate in the House of Representatives; but the Senate has power to amend these bills. By this power of amendment the Senate has defeated the purpose of the Constitution, which was to retain the tax- ing power in the hands of the representatives of the people. The tariff, which is the great source of revenue, is no longer the creation of the House. The House passes a tariff bill, which the Senate proceeds to " amend" in accordance with its own views or the special interest represented by particular Senators. Surely when the Senate strikes out of a tariff bill passed by the House everything except the enacting clause, writes in a new bill, and returns it to the House with an ulti- matum that the House must either accept the Senate ' ' amend- ment " or no tariff bill will be passed, it is obvious that that particular bill has originated in the Senate, even though the constitutional form has been observed because its origin can be traced to the House. When we turn to the consideration of amendments made by the Senate to ' ' money ' ' or, as we now term them, * ' appropria- tion ' ' bills, they are so numerous that it is impossible to cata- THE SENATE 173 logue them. As a matter of practice appropriation bills are, almost invariably, initiated by the House; but the Senate re- gards the House bill not as a finality but as a " project" (to use the word applied by a Senator to describe a treaty sent to the Senate for ratification). In other words, the bill passed by the House is a scheme expressing the views of the House in regard to the disbursement of the public moneys, but of no more binding force than a recommendation made by the head of a department. It is notorious that the Senate almost in- variably increases the appropriations made by the House; it is equally notorious that in any contest between the House and the Senate it is the House that, nine times out of ten, has to yield to the Senate. . . . " Executive usurpation" has been a favorite theme of writ- ers and speakers (especially during the last few years) who, relying upon their rhetoric rather than their facts, have de- plored the growing power of the executive and longed for a return to the early days when the President respected the powers vested in the legislature. But, as a matter of fact, if there has been usurpation that of the President is trivial com- pared to that of the Senate. In the exercise of the two most important functions reposed in the executive the conduct of foreign relations and the power of appointment the purpose contemplated by the framers of the Constitution has been so thoroughly perverted by the usurpation of the Senate that the original relation existing between the President and the Sen- ate has been reversed. In dividing the responsibility for appointments between the President and the Senate that is, in making the presidential appointment subject to confirmation by the Senate it was in- tended to put in the hands of the Senate the power to prevent the President from making an improper appointment; but it was not intended that the Senate should be able to dictate the President's nominees. That possible assumption was scouted as preposterous. "It will be the office of the President," Hamilton wrote, 11 to nominate, and with the advice and consent of the Senate, 174 READINGS IN CIVIL GOVERNMENT to appoint. There will, of course (mark the words) be no exertion of choice on the part of the Senate. They may de- feat one choice of the executive, and oblige him to make an- other; but they cannot themselves choose they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very mo- ment they were assenting to the one proposed; because there might be no positive ground of opposition to him, and they could be sure, if they withheld their assent, that the subse- quent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen that the ma- jority of the Senate would feel any other complacency to- wards the object of an appointment than such as the appear- ances of merit might inspire, and the proofs of the want of it destroy." But Hamilton, wise man though he was, could not antici- pate a time when "the courtesy of the Senate" would put it in the power of a single Senator to defeat a nomination, nay, even more than that, to coerce a President into nominating a man of whom he did not approve. One has only to recall the contest between Cleveland and the Senate and that be- tween Harrison and the Senate, and to remember that Mc- Kinley as well as Roosevelt had to steer a very fine course to avoid shipwreck of their nominations, to become convinced that the Hamiltonian doctrine is archaic, and that that * ' com- placency" to which Hamilton referred instead of being in- spired by "the appearances of merit''' springs from self-in- terest. The relations between the President and the Senate are har- monious so long as the President defers to the Senate and the Senate is willing to pretend deference to the President; but any assertion of independence on the part of the President is bound to lead to a clash. Seeing only the results, but un- aware of the causes, certain superficial observers are fond of saying that the President can control the Senate because of the President's power of patronage, thus unconsciously voic- THE SENATE 175 ing the fear of Hamilton that "sometimes we are told that this fund of corruption is to be exhausted by the President in subduing the virtue of the Senate/' But the power of the President to appoint is a power exercised only by the permission of the Senate. The President is not a free agent in the exercise of the appointing power. Unlike the king of England he does not deal with one man, the responsible head of the majority party in Commons. The President must deal with ninety Senators. It would be "discourteous" to a Senator for him to appoint a man who is personally offensive to that particular Senator, quite irrespective of the reasons that animate that Senator. Virtually the Senate has now become the appointing power, although to save the shadow of the Constitution appointments are still made by the Presi- dent. Hamilton explained why the convention deemed it wise that treaties should be ratified by the Senate. The President was not to be given that absolute authority possessed by a sov- ereign in the negotiation of treaties that would enable the President to betray his country if he were venal, but at the same time he was to be given such latitude as would insure "that perfect secrecy and immediate despatch" which are sometimes "requisite." As showing the relation that Ham- ilton conceived would exist between the President and the Senate in the negotiation and ratification of treaties he said : "Should any circumstances occur which require the advice and consent of the Senate he may at any time convene them. Thus we see that the Constitution provides that our negotia- tions for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other." Once again we see how the spirit of the Constitution has been perverted by the assumption of the Senate. The Presi- dent negotiates a treaty ; but that treaty the Senate regards in the same light as it does an appropriation bill passed by the House. It is merely a scheme, a "project," an outline ex- 176 HEADINGS IN CIVIL GOVERNMENT pressing the views of the negotiators, which the Senate will accept or reject at its pleasure, and of recent years the Sen- ate has shown what amounts almost to a mania to amend treaties; and unless the President accepts the amendment a treaty that may have been the work of months of careful and intricate negotiations is wrecked. President McKinley, in his great desire to remain on harmonious terms with the Sen- ate, permitted that body a further and unconstitutional grant of authority. By the terms of the treaty with Great Britain relating to the tenure and disposition of real and personal property, possessions of the United States beyond the seas were to be permitted to adhere to the convention upon notice " being given by the representative of the United States at London, by direction of the President. " This the Senate amended to read * ' by direction of the treaty-making power of the United States, " which gives to the Senate the right to di- rect the American ambassador in London, for which no war- rant can be found in the Constitution. Jackson, jealous of his own prerogatives and the encroach- ments of the Senate, used this admonitory language in de- fining the line of division between the executive and legis- lative branches of the government. "The resolution of the Senate presupposes a right in that body to interfere in this exercise of executive power. If the principle be once ad- mitted ... the constitutional independence of the Exec- utive Department would be as effectually destroyed and its powers as effectually transferred to the Senate as if that end had been accomplished by an amendment to the Constitu- tion/' . . . The Senate now assumes the right not only to amend treaties, so that by the power of amendment it exercises the same control over the conduct of foreign relations as it does over the national purse, but also to be consulted in advance of and during the progress of treaty negotiations ; and if it is not consulted in advance it resents the implied imputation of presidential distrust. That "perfect secrecy and immediate despatch/' which Hamilton deemed requisite, are of course THE SENATE 177 impossible if the Senate must be consulted in advance; and even after the unofficial advice of the Senate has been taken, Senators are not precluded from reversing their judgment. The late Secretary Hay complained bitterly of certain Sena- tors opposing a treaty in the Senate the terms of which they had acquiesced in while that treaty was under negotiation. More than once I have heard Mr. Hay say that in dealing with foreign governments he felt as if he had one hand tied be- hind his back and a ball and chain about his leg, as he was always hampered by the Senate. 38. A DEFENSE OF THE SENATE. Senator Henry C. Lodge is one of the most outspoken defenders of the powers which the Senate has developed in recent years. He thus explains the attitude of the Senate with regard to its constitu- tional rights and prerogatives: [1903]. "When the President of the United States shall meet the Senate in the Senate Chamber for the consideration of execu- tive business, he shall have a seat on the right of the chair." This is the rule at the present time, and although it is never put into practical operation it has importance not merely as embodying an unbroken tradition but as a formal recognition of certain constitutional principles of very great moment. By this rule are recognized the right of the Presi- dent to consult personally with the Senate, the position of the Senators as the President's only constitutional advisers and the equality of the Senate in the conduct of all executive business in which, under the Constitution, they are entitled to share. The right of the President personally to consult the Senate as a body involves also the correlative right of the Senate, in the language of the Constitution, to advise the President. To the Senate alone is given this right to advise the Executive. The members of the Cabinet are often loosely spoken of as the constitutional advisers of the President. They are, as a matter of fact, nothing of the sort. They are not created by the Constitution, but by the laws which the 178 HEADINGS IN CIVIL GOVERNMENT Constitution authorizes Congress to pass in order to carry out its provisions. The Constitution contemplates the establish- ment of executive departments, and says that the President may require the opinion in writing of the heads of such de- partments, but these departments can only exist by the pleas- ure of Congress and the President is not bound to consult their chiefs. A story is told of Lincoln 's submitting a propo- sition which he favored to his Cabinet. All were against it; "Seven nays; one yea," said the President; "the ayes have it, and it is so ordered. " Whether apocryphal or not the anecdote illustrates the distinction between the constitutional Senate and the statutory Cabinet. An adverse majority in the Senate cannot be overcome in that way, for the Constitu- tion gives the Senate power, and the law alone creates the Cabinet, whose members represent in the last analysis simply the policy and will of the Executive. The equality of tho Senate in executive business the last point recognized by the rule is shown by the care taken from the beginning to make it perfectly clear that the President is neither to preside over nor to share in the discussions of the Senate, but is to deal with them as an organized body under the guidance of their own presiding officer. Such being the theory of the Constitution, never abandoned since the beginning, the manner in which it has been worked out in practice shows at once the position of the Senate to- day. Since August, 1789, the President has uever consulted or sat with the Senate in person to consider executive busiu either in relation to nominations or to treaties. But while the inconvenience of personal consultation thus early was made apparent it became at once equally obvious that to hold no consultation with a body of constitutional advisers about nom- inations and treaties upon which they had the power to put an absolute veto would be at once dangerous and absurd. In 1789 Washington sent in the nomination of Benjamin Fishburn for the place of Naval Officer at the port of Savan- nah. He was rejected by the Senate. Fishburn had been an old soldier, and was well known to Washington, who was very THE SENATE 179 much annoyed by his rejection. When he sent in another name for the same place he transmitted a message to the Senate in which he said: " Whatever may have been the reasons which induced your dissent, I am persuaded that they were such as you deemed sufficient. Permit me to submit to your consideration, whether, on occasions where the pro- priety of nominations appears questionable to you, it would not be expedient to communicate that circumstance to me, and thereby avail yourselves of the information which led me to make them, and which I would with pleasure lay before you. Probably my reasons for nominating Mr. Fishburn may tend to show that such a mode of proceeding, in such cases, might be useful. I will therefore detail them." He then went on to give an account of Colonel Fishburn and the rea- sons which had led to his nomination. The motives which influenced the Senate in the rejection of Fishburn do not appear, but the passage which has been quoted from Washing- ton's special message demonstrates not only his belief in the need of consultation with the Senate about nominations, but the absolute necessity for it in order to prevent constant fric- tion between the Senate and the Executive. This case un- doubtedly led, therefore, to the practice which has been con- tinued to the present time of the President consulting with Senators in regard to appointments. As the Senate, after it has confirmed a nomination, becomes equally responsible with the President for the appointment, it is obvious that the right of consultation under the Constitution, which has already been defined, must be exercised in some w r ay. Thus it came about that informal consultations with individual Senators took the place of the cumbrous and inconvenient method of consulting the Senate as a body, and in this way the intent of the Constitution has been carried out. Nothing, therefore, is more inept than to criticise a President because he consults the Senators from a State in regard to an appointment in that State or from it. The Senators are his constitutional ad- visers. In some way he must consult them, and it is impos- sible that any President should be able to know enough about 180 READINGS IN CIVIL GOVERNMENT the men in forty-five States to enable him to appoint intelli- gently unless he could avail himself of the knowledge of those who represent the several States. The consultation of Sena- tors by the President, therefore, in regard to appointments, is nothing more than carrying out the intent of the Constitu- tion in the manner which practice has shown to be the only convenient one. The influence of the Senate in making ap- pointments is not increased thereby, except so far as the multiplication of officers has made it more necessary for the President to receive local information and depend for it upon the Senators more than was essential in the early days. All that has been done constitutionally is to substitute an in- formal consultation with individual Senators for the consulta- tion of the Senate as a body, which has been always rec- ognized as a constitutional right in the simple rule already quoted. . . . In regard to the other branch of the Senate's executive functions, the treaty-making power, the course of development has been much the same consultation of individual Senators, either directly by the President or through the Secretary of State by means of communication with the Committee on Foreign Relations, having been substituted for the old plan of counseling beforehand with the Senate as a body. The treaty-making power of the Senate is a large subject . . . but the results of more than a century of development in this direction may be briefly summed up. The Senate has the right, under the language of the Con- stitution, to advise beforehand that the negotiation be en- tered into, or the reverse. This right has been exercised on two or three occasions, but very rarely, and has usually been allowed to fall into abeyance, although circumstances may make its use necessary and desirable at any time. The Presi- dents have from time to time consulted the Senate prior to negotiation, and this right, although not often exercised, has been made use of at intervals down to the present day. The right of the Senate to amend has been always freely used at all periods of our history, and, of course, will continue to be THE SENATE 181 exercised, because it is the only method by which the Senate can take part in the negotiations, as the Constitution in- tended it to do. This summary of the history of the treaty-making power as exercised by the Senate shows that the Senate has not only not sought to extend its power over treaties unduly, or in doubt- ful directions, but that it has wisely allowed certain undoubted privileges to fall into abeyance and has contented itself with discussion and amendment when a treaty came before it, and with the informal consultations which it has been the prac- tice of most Presidents to extend to members of the Senate in regard to our foreign relations. This covers the relations of the Senate with the Executive in regard to its executive functions of confirming nomina- tions and of ratifying treaties. It only remains now to con- sider the relations of the Senate with the House, and there is only one point in the Constitution where the powers of either house are restrained. That is the clause which gives to the House of Kepresentatives the sole right to originate bills to raise revenue. In all other respects the Senate and the House are upon an absolute legislative equality. This right of the House thus given in the Constitution has, of course, never been questioned, nor has the right of the Senate to make unlimited amendments to bills to raise revenue ever been successfully contested, but the practice has grown up of allowing the House to originate not only bills to raise revenue but also the great appropriation bills which pro- vide for the expenditure of the public money. The Sen- ate has an undoubted right to originate any appropriation bill, large or small, and it frequently passes bills carrying an appropriation for some single and specific object, such as the construction of a light-house or of a public building, but at the same time the Senate has, without serious resistance, con- ceded to the House the sole right to originate the great ap- propriation bills, although its own right to originate such measures is the same as that of the lower branch. That this is a wise practice I think few persons will doubt, but it cer- 182 READINGS IN CIVIL GOVERNMENT tainly does not show on the part of the Senate a desire to usurp authority. Thus it appears that both in relation to the Executive and the House of Representatives the Senate has not sought to extend its constitutional powers, but has, on the contrary, refrained from the exercise of some undoubted rights and has allowed others to rest in abeyance. Yet there can be no doubt that it is equally true that the power of the Senate has grown enormously in the one hundred years and more of our his- tory. The influence of the Senate in legislation and in all departments of government is much greater than at the be- ginning, and far exceeds that of the House, but this is not due to any usurpations on the part of the Senate, as has been shown by the preceding review of the history of its constitu- tional functions. The increase in the importance, weight, and power of the Senate is due primarily to its inherent strength, and this strength rests upon the manner in which it was endowed by the framers of the Constitution. With equal authority in legislation, with executive functions which in- volve all appointments to office and all our foreign relations, it was inevitable that as the country and the government grew the power of the Senate should increase more largely than that of any other branch of the government, for the simple reason that its original opportunity for growth was greater. This increase of power in the Senate has undoubt- edly been stimulated by the fact that the rigid rules neces- sary in the lower branch had prevented the House from doing many important things which the Senate, with its easy methods of conducting business, could readily take up. Many matters from which the House excluded itself by its own rules were in this way thrown into the possession of the Sen- ate, which is a sure method of enhancing legislative power. In the same way, although the support of the entire Congress is necessary to a successful administration, no President can get on without the Senate, even if he has the House with him, because it is always within the power of the Senate, if it is so disposed, to namper the Executive without going into open THE SENATE 183 opposition, both in administration, through the officers, and in foreign relations, through its treaty-making power. Very naturally, therefore, Presidents are always anxious to be on the best terms with the Senators, who are their constitutional advisers, and for this reason as the Executive power has ex- panded with the growth of the nation and the extension of the government, the power of the Senate has gone hand in hand with it. The Senate is to-day the most powerful single chamber in any legislative body in the world, but this power, which is shown daily by the wide attention to all that is said and done in the Senate of the United States, is not the product of self- ish and cunning usurpations on the part of an ambitious body. It is due to the original constitution of the Senate, to the fact that the Senate represents States, to the powers conferred upon it at the outset by the makers of the Constitution, to its permanency of organization, and to the combination of legis- lative, executive, and judicial functions, which set it apart from all other legislative bodies. Without the assent of the Senate no bill can become law, no office can be filled, no treaty ratified. ADDITIONAL READINGS 1 The Powers of the Senate, Reinsch, P., American Legisla- tures and Legislative Methods, 86-106. 2 The Senate, Its Working and Influence, Bryce, J., Ameri- can Commonwealth, I, 111-23. 3 The Senatorial Caucus and Leadership, McConachie, L. G. t Congressional Committees, 338-45. 4 The United States Senate, Everett, Wm., Atlantic Monthly, XCVII, 157-66. 5 The Treaty-Making Power of the Senate, Bacon, A. 0., North American Review, 50212. 6 The Overshadowing Senate, Nelson, H. L., Century Maga- zine, XLIII, 499-509. 7 Election of United States Senators by Popular Vote, Bur- gess, J. W., Political Science Quarterly, XVII, 650-63. 8 Popular Control of Senatorial Elections, Haynes, G. H., Political Science Quarterly, XX, 577-93. CHAPTER IX THE PRESIDENCY 39. DEFECTS IN THE ELECTORAL SYSTEM. The method of election of the President and Vice-President caused many exciting debates in the Federal Convention. The plan finally agreed upon was believed to be the nearest approach to perfection to be found in the Constitution. - And yet no provision in the Con- stitution has more utterly failed to accomplish the purpose of its framers. Mr. J. H. Dougherty thus describes the practical work- ing of the electoral system and suggests a possible remedy for its defects: Whatever the origin of the electoral plan, its failure in purpose is clear. The idea of the elector as an over-lord is not consonant with democratic institutions, and our institutions while not democratic at the outset have become increasingly so. Nominally free in Washington's day, the electors never dreamed of resisting the sentiment that universally acclaimed the father of his country the first President of the new Union. In Adams' time there were one or two electors who asserted their constitutional prerogatives, but the majority obeyed the desires of party leaders, and since that period the search is vain for the theoretical elector of the Constitution. Party spirit has deposed him and made him its tool. That elector would render himself infamous who, accepting the office upon the only possible conditions upon which it would be conferred which tacitly bind him to obey his party's be- hests should employ it to defeat the will of those who placed him in it. An accomplished jurist and author, and a student under Joseph Story, writing in the North American Review for January, 1877, made the following striking reflections 184 THE PRESIDENCY 185 upon the remarkably scrupulous fidelity to a merely tacit ob- ligation always evinced by the electoral colleges : "For seventy-six years, that is, for nineteen presidential elections, no member of an electoral college has failed to vote for the candidate designated by his party, or been subjected to the imputation of be- ing open to any influences in that direction. Yet the party takes from the elector no written pledge, and indeed exacts no oral pledge. From the fact that he is nominated by his party as a presidential elector, the party having first designated whom it wishes to have made President, he comes under the implied obligation to vote for that candidate, and to disregard the obligation the Constitution in- tends to put upon him of selecting and voting for a President ac- cording to his own judgment. The number of electors who during this period have so kept faith with their parties must have been be- tween three and four thousand." Nevertheless there is the ever present possibility of a breach of trust. Treason may seem a remote contingency, yet in a time of great temptation there might come an electoral Bene- dict Arnold. It is in the face of all logic and experience to infer that, because no traitor has yet been discovered, a temptation of such peculiar subtlety will forever remain without a victim. The possible methods of disloyalty are so occult that it cannot always be known whether an elector has kept faith. In States where several electors represent- ing different parties have been appointed, an elector or a number of electors might resign, and thus give to the remaining members of the college the opportunity to fill the vacancies with their political friends; or a fraud might be perpetrated that would seem a mistake, by a failure to make a proper certificate or to obtain the prescribed authentica- tion ; or the transmission of the return required by the Con- stitution might in some manner be thwarted. The elector in the constitutional sense is an abortive organ- ism. He has no function to fulfill. But he is not merely functionless, he is dangerous. It is as true in the moral as it is in the material realm that any mechanism or organ that has ceased to perform its function is sure to work mis- 186 READINGS IN CIVIL GOVERNMENT chief, if not positive detriment. The famous phrase of the Constitution "the votes shall then be counted" has been like an apple of discord almost since the beginning of the Government. The authors of the Constitution probably intended the president of the Senate to do the counting, for in their eyes it was to be a simple computation or enumeration. As the fathers erred in failing to gauge the strength of the nascent democratic impulse, or in supposing that democracy would consent to renounce its prerogative of choosing a President, so they were equally mistaken in their assumption that counting would always remain a purely arithmetical process. It derogates little from their just claims to reverence to declare this portion of the noble edifice of the Constitution incongruous with the rest of the structure. . . . In these circumstances, the dictate of practical wisdom is to abolish the letter of the system altogether which might easily be done by a single amendment to the Constitution. If the people of the United States entertain to-day the repugnance to a vote for President and Vice-President by the people as a whole that was felt by the representatives of the small States in the convention of 1787, the theory of electoral representation might be preserved, and yet the peril- ous electoral machinery abolished. Each State might still have the electoral votes to which its representation in the United States Senate and in the House entitles it under the present Constitution. The useless and antiquated mechan- ism should, however, be discarded and the State, by an amendment to the national Constitution, be declared entitled upon the authoritative canvass of the popular vote to its proportional vote for President and Vice-President in a ficti- tious electoral college. The office of elector having dis- appeared, there would be no occasion for electors to convene in a State capital for the purpose of casting the vote of the State, and the State would be saved the attendant <>xprn\ and the possible loss of its vote if, for example, as happened in Wisconsin in 1857, the electors should be prevented by THE PRESIDENCY 187 an accident from convening on the day fixed by act of Con- gress. All contention over the ineligibility of electors would cease, and such an imbroglio as arose over the appointment of electors in Oregon in 1877 would never vex the nation again. We should not, it is true, be able by this change to prevent the recurrence of such a disgraceful proceeding as a fraudulent and iniquitous determination of a State can- vassing board, subversive of the actual popular vote, but we should get rid of many perils and perplexities of the present system. Or, if the people desired to return to the district system so largely in favor at an earlier epoch of our history, that could be as readily accomplished. The district system of voting was the essential change embodied in the amend- ments to the Constitution unsuccessfully proposed at differ- ent times by Benton, Van Buren, McDuffie, Morton, and Sumner. The Constitution provides that "the Congress may deter- mine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States." The difficulty which befell the Wisconsin electors in 1857 has been more than once men- tioned in these pages. Fortunately, the vote of Wisconsin was not decisive of the result, as Buchanan's election was assured whether the vote of that State was counted or rejected. The fathers wisely determined that the electoral colleges should meet on the same day, in order to forestall intrigues and machinations. But the vote of a State might be prevented by "act of God" on the appointed day and that vote might be essential to elect a candidate. While the Act of 1845 allows the States to authorize their electors to fill vacancies in the respective electoral colleges, it is not alto- gether unreasonable to imagine that all the electors of a State might perish in a common disaster, in which event there would be no survivor or survivors to elect members to the vacant seats in the board. . . . In 1824 the electors were chosen by popular vote, by dis- tricts and by general ticket, in all the States excepting Dela- 188 HEADINGS IN CIVIL GOVERNMENT ware, Georgia, Louisiana, New York, South Carolina, and Vermont, where they were still chosen by the Legislature. On March 13, 1825, the Legislature of New York established the district system, but not until it had first polled the senti- ment of the people by formally submitting the question to them. ^ The answer was so unequivocal as to dispel all doubt of the popular desire for an election by districts. The act provided for the appointment of one of the thirty-four presi- dential electors in each district by the voters, and authorized the electoral college not only to supply vacancies in its body, but also to appoint two additional electors corresponding with the two Senators from the State in the Senate of the United States. This law, upon the recommendation of Van Buren, then governor, was superseded in 1829 by the law establishing the general-ticket system. In 1828, Delaware and South Carolina alone adhered to the legislative system. After 1832 electors were chosen by general ticket in all the States excepting South Carolina, where the Legislature chose them up to and including 1860. The legislative mode of choice was adopted by Florida in 1868, and by Colorado in 1876, as prescribed by section 19 of the schedule to the con- stitution of the State, which was admitted into the Union August 1, 1876. The abandonment of the district became inevitable as the few States which had employed it began to realize the dis- advantages they suffered in comparison with the States that had adopted the general-ticket system. Since the vote of the State, when cast in solido, swung the whole of its electoral strength in favor of the candidate of one party or the other, every other State in which that party was ordinarily dom- inant would naturally follow such example and thereby en- hance the influence and importance of its leaders in party matters, and add to the prestige of the State itself. States under the control of the opposition could not afford to give their political adversaries such odds as would result from the division of their electoral vote by the continuance of the district system, while their enemies were casting their THE PRESIDENCY 189 electoral votes en bloc. Divide et impera was a maxim of no application to such contests. Hence the rapid adoption of the general-ticket system, which amounts in reality to a poll of States, and in which the voice of the minority is sup- pressed. One unhappy consequence is the creation in every State of a class of political leaders, often persons occupying no official place, whose influence in achieving party successes has made them potent in party councils and party appoint- ments. . . . One evil result of the general-ticket system is its destruc- tion of all incentive to the development of an opposition party organization in States in which one of the two great parties is constantly predominant. The district system or an apportionment system would probably have led to the formation of an antagonistic party and to active political work in districts which seemed to be auspicious fields of operation. In many of the Southern States in the decades preceding the Civil War there was no Whig or Republican organization, because such an organization had no chance of success in the State at large. The educational influence of discussion in district centres was altogether sacrificed and a potent factor against the tyranny of a majority party utterly lost. In a government by discussion (to borrow a phrase from the late Walter Bagehot) social and political develop- ment is seriously retarded; the injury which a community thus persistently dominated by one party sustains is almost incalculable. The baneful consequences of the general-ticket system were witnessed in less degree, during the free silver campaigns, in communities where the advocates of the gold standard, however numerous, had no chance of exerting a direct influence upon the choice of presidential electors, be- cause they were out-voted by the friends of silver. A system of voting that would permit the expression of minority views and hence give a more faithful picture of opinion through a State, would have more promptly checked unsound tendencies in finance. Government by majority was never intended to nullify minority sentiment; the general-ticket 190 READINGS IN CIVIL GOVERNMENT system not only renders such sentiment inactive, but tends altogether to repress it. In States in which opposing party organizations flourish and where each is alternately successful, what have been styled the " close'' States, the temptation to fraud receives powerful accession under the general-ticket system. Almost every critic of the electoral system has commented upon this obvious danger. A fraudulent ballot cast at a presidential election in New York, said an able writer, in 1873, "affects thirty-five electors, or nearly one-fifth of the whole number requisite to the choice of a President. In Rhode Island such a ballot affects only three electors, or less than one-sixtieth of a majority of the whole electoral college. Here is a direct bounty on the con- centration of fraudulent efforts of all kinds in the large States, whereby not only a vicious influence of fearful intensity is thrown into the scale of a national election, but all the local elements of corruption, ever sufficiently formidable in our most populous States, are powerfully reinforced;" Whereas "under the district system, on the other hand, a fraud upon the ballot box can affect but one elector, unless two electors at large should be chosen in each State, in which case but three electors at the most could be affected by a given fraud." It is hard to conceive of a system more easily adapted than the general-ticket system to the successful perpetration of fraud or offering more seductive inducements to its e mission. The closer the vote of a State, the more bitter is the struggle for party supremacy ; the keener the competition for success, the more insidious is the allurement to fraud and the easier its accomplishment, because it is necessary to purchase only a few voters in a particular section carefully chosen as the most promising field of nefarious operations. Thus the system framed by the convention of 1787, as now operated under the general-ticket plan, is doubly vulnerable to the attacks of fraud and corruption. Electors may be bribed. Certainly the electoral system offers leonine tempta- tion to bribery, and the general-ticket plan renders defeat THE PRESIDENCY 191 of the popular will by the fraudulent purchase of voters in a close State a simple and easy achievement for astute and dishonest politicians. The densely populated States, upon the general-ticket system, constantly tend to nullify the vote of the smaller com- monwealths. It has several times happened in the history of the nation that the State of New York has been the de- termining factor in a presidential campaign the "pivotal" State ; in fact, with the exception of the campaigns of 1868 and 1876, no election since 1856 has gone in favor of a party that has not carried New York. The tendency which has been so marked for two generations, and is increasingly evident, towards the concentration of people in large munic- ipalities, will make such States even more influential in the future, their big electoral vote more and more decisive, the temptation to fraud more seductive, and the profit from its successful perpetuation more certain. The smaller States in self-defense should co-operate to bring about the adoption of a juster system. If their influence is to be preserved, their remonstrance against the present method should be emphatic. New York to-day wields thirty-nine electoral votes, which is the equivalent of thirteen of the smallest States, and if, under the system at present in vogue, a transferred vote of five to six hundred will place it in the Democratic or the Repub- lican column and no greater change would have taken the State from Cleveland and given it to Blaine in 1884 the incentive to prostitution and abuse of the suffrage could not be rendered stronger; and even in an ideal community, where the purity of the ballot-box is untarnished, the vote of the big State, like that of the large stockholder, counts rather in a geometrical than an arithmetrical progression. A plurality or majority in one section may, it is true, at times be counteracted by one in another section, and thus the net result be a rude approximation to fairness, taking the coun- try as a whole; but this theory of averages may not work constantly, and the steady suppression of minority conviction in a State is an undisputed evil. 192 READINGS IN CIVIL GOVERNMENT 40. PARLIAMENTARY VS. PRESIDENTIAL GOVERNMENT. Under the Articles of Confederation the United States had no President no distinct executive department. All the power and functions of the central government were exercised by the Congress. When the Convention met which framed the new Constitution it was soon decided to change this and create three separate departments, the legislative, the executive and the judicial. But the question as to the proper relations between these departments was not so easily settled. Should the executive department be dependent upon and subject to the control of the legislature, or should it be an entirely independent and coordinate branch of the government? The signifi- cance of these differences and the character of the executive depart- ment finally agreed upon are clearly stated by Professor J. A. Wood- burn: The original " Randolph Plan," supposed to contain the backbone and skeleton of the Constitution, proposed that a National Executive be instituted to be chosen by the National Legislature. It was thought by some, notably by Roger Sherman of Connecticut, that the Executive should be nothing more than an institution for carrying the will of the legislature inte effect; that it should be appointed by, and be accountable to, the legislature. The legislature was to be "the depository of the supreme will of the society"; to make the Executive independent of the legislature was of the very essence of tyranny. The legislature was the best judge of the business which ought to be committed to the Executive department, and, consequently, of the number necessary to do this business. Therefore Sherman would not have the number of the Executive department fixed, but he would leave the legislature free to appoint one or more as experience might dictate; he would have the Executive en- tirely dependent upon the legislature. By this theory the legislature is the representative head of the body politic; it thinks and wills and decides. The Executive is but the hands and arms and feet to execute the will and decision arrived at. These views as to the relation between the executive and THE PEESIDENCY 193 the legislative branches of government serve to suggest the difference between the Parliamentary and the Presidential system of government between the English system and the American. When governments are classified according to the relation of the legislature to the Executive, they are either Parliamentary or Presidential. A Presidential Gov- ernment, like ours, is the form in which the Executive is independent of the legislature. Our President is independ- ent of Congress both in tenure and prerogative. Congress does not elect the President (except in an emergency), nor can it shorten his term, nor take away his constitutional powers, nor in any way remove him, except by impeachment for high crimes and misdemeanors. He was not made en- tirely independent of the legislature, but as nearly so as could be as nearly as would be safe for freedom and good govern- ment. Parliamentary Government is the form in which the Execu- tive is elected by and is dependent upon the legislature, in which the legislature has "complete control of the adminis- tration law. ' ' Under this form the legislature is the supreme determining will in the State, and the Executive is the agency to carry out that will. The legislature decides, the Execu- tive acts. Under this form of government the legislature creates the Executive and terminates it at pleasure, and the Executive can undertake no course and exercise no prerog- ative not approved by the legislature. Of course such con- trol of the Executive by the legislature implies either that the legislature consists of only one house, or that the houses are not co-ordinate that one is dominant in power and con- trol over the other. For instance, in England under Parlia- mentary government, the Commons is the chief power in the state, the dominant branch of the legislature, and as such it is the source of the Executive. The Ministry, or Cabinet, which is the executive branch of the Government usually called "the Government" is created by the party majority in the Commons; this Executive is responsible for its acts and policies to the Commons. If at any time a vote is passed 13 194 READINGS IN CIVIL GOVERNMENT in the Commons adverse to the Government or the Cabinet, the Ministry must either resign or dissolve Parliament and appeal to the country. If, in the election which follows, the people send up a Commons still adverse to the Ministry, the Ministry must resign and the Queen must call the leader of the opposition party to form a new Cabinet. Refusal on the part of the Ministry to resign and to permit the formation of a new Cabinet in harmony with the majority in the Com- mons, or refusal of the Queen so to reorganize the Ministry according to the mandate of the election would be equivalent to usurpation and revolution and might cause violent up- heaval and resistance. The Commons, or the dominant branch of the legislature, must control the Executive policy and acts of the Government. This is called Parliamentary government. It is also called Cabinet or Ministerial gor* m- ment, in contradistinction to Presidential government. Such is the theory of Cabinet government. But the practice of the system does not always correspond to the theory. It is to be remembered that Parliamentary govern- ment is a growth. It was never designed, or created, or established at any one time. It is a product of evolution. It grew from age to age. It changed from one generation to another, and has never been quite the same in its practical operation in any two periods of its history. In earlier times it was a privy council to the king, subject chiefly to his will a kind of royal cabal. Later, under the Hanoverian kings, it became an agency of the Whig oligarchy the rule of a few powerful families in the realm who controlled enough boroughs to enable them to control the Commons. George III attempted to make it an instrument through which the king should again actually govern. George III did not attempt to defy the Commons or to govern without it, as Charles I had done ; but by the corruption of boroughs, by means of his pensioners and placemen, he sought to con- trol the Commons. The " King's friends " were so numerous in Parliament that no party Minister could hold his placo. or THE PEESIDENCY 195 maintain a government, contrary to the king's will. But in spite of this last effort of a king to govern as well as to reign, Parliamentary government was maintained against the royal prerogative, and the Cabinet became, as it is now in theory, the Executive agent of the Commons. The Cabinet originates and proposes measures; the Commons is supposed to deliberate on these, to discuss them, and to decide on the proposals, accepting or rejecting as the sense of the Com- mons is pleased. But in practice to-day the Cabinet system presents another aspect. It is not the Commons which actually determines on measures, so much as the Cabinet itself. It is rare that a "Government" bill is discussed. The department that has it in charge generally forces the measure through by applying the party majority to its sup- port. Criticism is silenced by the knowledge that the meas- ure is the proposal of the Ministry whom the majority were sent there to support. A private member cannot obtain an opportunity for the discussion of a bill unless the Govern- ment wishes to have it so. Financial debates on the budget are becoming more and more formal every year, the Treasury department fixing the sum to be spent, and spending it, while the House concurs in practical silence. "In all departments of political life the Cabinet governs, and not the House of Commons, which, instead of governing, confines itself to ap- pointing, dismissing, and, on occasion, silently influencing the Cabinet." This has been called a gradual and "unconscious revolution." The talking Parliament had talked too much, until legislative business had become congested, and delibera- tion and debate came to be regarded as an intolerable inter- ruption to the serious business of the state, until now we have "Parliament practically controlled, guided and, in a sense, superseded by what was once its executive committee." While practice has made this accretion of power to the Cabinet a natural process, it is still true that the Cabinet is responsible, and it may be dismissed at any time if it goes contrary to the prevailing opinion of the nation as repre- 196 EEADINGS IN CIVIL GOVERNMENT sented in the Commons. The Cabinet is still merely the agency through which the democratic power of the nation is exercised. Now if the views expressed by Roger Sherman in the Con- stitutional Convention had prevailed, we should have had the English system of the responsible Ministry. Sherman was thinking of the Executive not as one person, but as several as an executive committee to carry out the governmental business determined upon a committee appointed by Con- gress and dischargeable by Congress. This would have made Congress the responsible supreme power in the nation. It would have closely united the executive and the legislative power and responsibility in one body. It would have con- centrated the powers of government instead of separating them, and under such provision, no doubt, something like the English Cabinet system would have grown up in America. It would have tended toward a more direct democracy in the Government producing a government more quickly responding to popular behests. Instead of this the framers of our Constitution established the separation of the depart- ments of government. Each department, the Executive and the Legislative, has its source in the people; each is elected by the people without the intervention of the other; each has its rights, duties, privileges, and prerogatives, assigned by the Constitution, and for the performance of these the two departments are answerable, not to each other, but to the peo- ple directly, and each is supreme under the Constitution and the sovereign power of the people in its own defined sphere. 41. EXECUTIVE SUPREMACY. The theory of the Presidential form of government which our Con- stitution establishes is that the executive and legislative depart- ments shall be separate and distinct. How has this worked out in practice? Have the two departments remained as distinct in fact as they are supposed to be in theory? Mr. James T. Young dis- cusses this subject in the following selection: [1904]. Twenty years ago the author of "Congressional Govern- THE PEESIDENCY 197 ment" declared that all the checks and balances of our po- litical system had failed to preserve the balance of power between the three departments of government, and that the result was Congressional supremacy. To-day we must ad- mit that these checks and balances are still unavailing but that we now live under a system of executive supremacy. Is this change due chiefly to factors of personality or does it correspond to new conditions in the social and economic life of a people? Is executive supremacy to be explained away by reciting the names Cleveland, Harrison, McKinley, Roosevelt or has something far more fundamental than a mere growth of personal influence taken place? Certainly the latter is true. Aside from the element of personality, four important causes have tended to produce the changed relations between executive and legislature : I. The growth in volume of government business. II. The rise of new public questions of a technical character. III. The popular demand for greater speed in government action. IV. The growing unwieldiness of large legislative bodies. I. Growth of the volume of public business. The present volume of governmental affairs is not explained by the necessary increase of population, the extension of the national boundaries or the development of new sections of the coun- try. While these have added their share, the great majority of governmental tasks have been occasioned by the develop- ment of the manufacturing and transportation interests of the country. This development has of necessity brought with it a division into separate, distinct economic classes and interests. The existence of these distinct groups has created two sets of demands, one for government action favorable to the group interests, the other for government regulation and restriction or supervision of the activities of the group. From both sides our governments are assailed with requests for action. With each step forward in the development of 198 HEADINGS IN CIVIL GOVERNMENT these industries and with each attempt on their part to secure a more profitable adjustment of their internal organization, some new form of public regulation or supervision is invoked and from this a marked increase of the volume of government business arises. The recent report of the Chief of the Bureau of Corporations in the Department of Commerce and Labor affords a notable instance of this process. In 1887 it was felt that the trusts were the result of railroad rebates. The Interstate Commerce Law of that year arose from this belief. In 1890 industrial combination had reached a point where it could supposedly be reached by a law prohibiting restraint of interstate trade. The Sherman Act resulted. In 1903 it was believed that the evils of over-capitalization might be reached by publicity and the government jurisdiction was again extended. In 1904 the Bureau established to secure publicity advocates the licensing of corporations engaged in interstate commerce and this brings into the forum of public discussion the question of the further extension cf govern- ment regulation. As a result of these and similar extensions of government power each Congress is now burdened with over 20,000 bills and resolutions. In the great volume of matters brought to its attention the legislative assembly can- not regulate in detail but is forced to enact outline laws, leaving to the executive the duty of filling in these outlines by regulations, orders and rules. The administrative side of the government is thereby charged with the duty of determining the content and the spirit of legislation within certain general limits. II. It has become a platitude to say that modern busi- ness is more complex than formerly. This trite saying is particularly true of governmental affairs. The problems which we now face do not admit of settlement by a popular vote. The standard of intelligence of our citizenship is doubtless rising, yet the voter is not capable of working out a plan of government regulation or control. The location of an Isthmian Canal, the reorganization of the army, the construction of a navy, the more rational THE PRESIDENCY 199 development of our postal facilities, the planning of systems of irrigation, the regulation of corporate finance, the control of railway rates and the management of our colonial depend- encies, are national questions of prime importance; but their settlement cannot depend upon a simple consensus of public opinion. They require rather the careful study of trained specialists and experts. If we examine the public problems brought up for discussion in the President's message it will be seen that they are pre-eminently industrial or commercial in character and that they are technical rather than popular. The numbers and importance of this class of public problems are growing by leaps and bounds a fact which necessarily brings into greater prominence the executive as the expert branch of the government. III. The demand for quick government. One feature of our economic conditions that has largely escaped the atten- tion of publicists, is the influence of means of communication upon government. This influence is indirect, but none the less powerful in its action. Better means of transport and communication not only create a general quickening in the pace of commerce and manufactures; they also involve a subtler change in the psychology of the people. Our inter- ests and our mental processes are reaching out beyond the narrower local environment and are becoming national and even cosmopolitan in scope. But by this same fact they move more quickly. We are intolerant of delay in business or government. The continued outcropping of lynch law in advanced communities is not always a sign of simple mob lawlessness, but is frequently an expression of our whole atti- tude towards the action of the State. Doubtless it were bet- ter that more deliberation might sometimes be exercised in public affairs ; but such is not the view of the people at large. Therefore the government must act and act quickly. But our legislative machinery was deliberately planned to secure slow action, while the executive is lightning-like in its swiftness. For illustration, a change in the method of interpreting and administering our immigration laws involves a newspaper 200 READINGS IN CIVIL GOVERNMENT article pointing to an evil in the present system, an official investigation lasting about three days, a report, and finally a telegram of instructions from Washington to San Francisco, New York or Philadelphia. A change in the laws themselves, on the contrary, requires the formation of a strong public sentiment, a session, two sessions or several years spent in compromises, amendments and discussion, and finally the passage of the bill in an amended or weakened form. Administrative action by its very quickness carries with it something of the arbitrary; certainly it is capable of serious abuse if not exercised with care, but in the main it satisfies the demands of the time and is growing rapidly in popular favor. This fact strikes us most forcibly in the national government because the centralization of power there is more impressive, but the principle holds equally true of our cities. With the construction of every trolley-line and the elevation of every telephone or telegraph wire, the possibility of and the popular demand for the swifter exercise of municipal authority is increased. Even in our commonwealths, the number of problems which cannot await the more leisurely treatment of the legislative assembly, but must be solved from day to day, is becoming so large as to occasion a shifting of power to the administrative officials. In leaving the discus- sion of this point it should be noted that a larger amount of human energy and attention is constantly being devoted to time-saving devices of all kinds. The demand for speed feeds upon itself and the influence of this demand upon the rela- tive positions of the legislative and executive departments may apparently be even stronger in the future than at present. IV. At first glance it might seem that the greater size of our legislatures is a national compensation for the increase in the public business; with more work to do we have more legislators to do it and the possibility of a greater division of labor. But large numbers in a legislative assembly means slower procedure and greater difficulty in transacting busi- ness. With each addition to our City Councils, State Legis- THE PRESIDENCY 201 latures and National Congress, the unwieldiness of these bodies becomes more apparent and the possibility of maintain- ing the present forms of legislation more difficult. . . . These four causes rather than the particular personality of the administrative chief, have called forth the system of executive supremacy. In the last analysis Congress and the President are keen competitors for the interest, the enthusiasm and the sympathetic approval of the people. In that earliest epoch of our national history when the minds of men were governed by the remembrance of former tyranny and the fear of a new despotism it was natural and inevitable that Ameri- cans should look to Congress for the protection of their liber- ties and the expression of their political beliefs. At that stage of the competition Congress, as the possessor of the qualities of deliberation, traditional jealousy of the executive and habitual care of the rights of the people, certainly deserved and received the first place in the confidence of the citizenship. But at present with the advent of the new conditions already outlined it would be strange indeed if the President were not awarded this preferment. The executive office stands emphatically for those qualities and characteris- tics which we now consider as typically American efficient, purposeful, definite, quick action. With this shifting of the relations between the two depart- ments of government there arises a series of important prob- lems which will have to be faced if executive supremacy is to be continued as a feasible and satisfactory system of gov- ernment. The first of these is the adjustment of the legal relations between the two departments. At present the legis- lative leadership of the administrator must be exercised through devious and indirect channels. The annual message is of insignificant value in this respect. It must be suppli- mented by the drafting of bills in the various administrative departments and the introduction of these bills through legis- lators friendly to the administration. The executive officers must appear before legislative committees and use what influ- ence they can to secure favorable action by these committees. 202 READINGS IN CIVIL GOVERNMENT The chief executive must form the personal and political friendship which will advance the legislative measures for which his administration stands, and to this end he must use his various powers and prerogatives. He must strive to create within the legislative body, by all of these indirect means, a sentiment of respect for the prestige of the adminis- tration. In short, the American President has all of the work which the British Prime Minister and the Cabinet per- form, but he is at present subject to all the hindrances of a system calculated on the needs of the eighteenth century. To do away with these anomalous and obstructive legal con- ditions is the problem of the immediate future. In the second place, there is the need of some system of administrative courts to protect the citizen from the arbitrary action of subordinate officials. If government regulation is to be extended with each step forward in our industrial and commercial development, there will be opened up an immense field of supervision, inspection, regulation and control, bring- ing the public official into close contact with the citizen in a thousand different ways. To increase the points of contact without increasing the friction is a difficult and delicate task. We already need judges trained in the distinctively adminis- trative questions of the government who can, by a speedy and inexpensive procedure, decide on points of dispute be- tween administrator and citizen in such a way as to main- tain the efficiency of the government and safeguard the rights of the individual. 42. THE POWERS OP THE PRESIDENT. The Constitution clearly vests in the President the appointing power but says nothing as to the power of removal from office. During the first administration and again in 1867 the right of the President to exercise this control over his subordinates was ques- tioned. The final settlement of this question and the administrative powers of the President in general are stated by Professor J. A. Fairlie as follows : * i Selections 42, 43 and 47 are reprinted from Fairlie, J. A., The National Administration of the United States, by special permission of MacMillan and Company. THE PRESIDENCY 203 In the first Congress the matter was thoroughly discussed. The bill for establishing a department of foreign affairs pro- vided that the head of the department should "be removable from office by the President of the United States. " Discus- sion at first arose in the House of Representatives on the question whether the President alone or the President and the Senate had this power under the constitution. Hamilton in one of the Federalist papers had stated that the consent of the Senate would be necessary to displace as well as to appoint. It was now urged that removal from office was part of the appointing power, that the Senate had by constitu- tional authority the same share in removals as it had in ap- pointments, and that it was unconstitutional to attempt to confer the power on the President. There was also some opposition to the clause on the ground that a President might abuse the power for partisan and political ends. In oppo- sition to this view, it was contended that the appointment and removal of officers are essentially executive acts; and that while the President's power over appointments was specifically limited by the constitution, there was no limita- tion on his power to remove. Madison supported the Presi- dent's power of removal; and replied to the charge that he might abuse the power, that wanton removal of meritorious officers would subject him to impeachment and removal from his own position. The motion to strike out the clause, which had been supported by those who favored Senate participa- tion, was defeated by a vote of thirty-four to twenty. It was next pointed out, however, that the clause did not rest the President's authority on the constitution, but at- tempted to confer the power on him by legislative enactment ; and it was urged that it was both useless and improper for the Congress to grant a power already conferred by the con- stitution. Accordingly, the original clause was withdrawn; and in another part of the bill a provision was inserted for filling vacancies, "whenever the said principal officers shall be removed from office by the President of the United States, 204 READINGS IN CIVIL GOVERNMENT or in any other case of vacancy." This was understood and accepted as a positive declaration that the right of removal was conferred on the President by the constitution. In the Senate there was strong opposition to the provision in the House bill, but eventually it was adopted by the cast- ing vote of the Vice-P resident. And during the same ses- sion of Congress, bills organizing the Treasury department and the War department, containing precisely the same pro- visions, were passed by both houses. This action took place in 1789. For 78 years the inter- pretation of the constitution then accepted was followed with- out question. Then during the quarrel between Congress and President Johnson an act was passed for the express purpose of preventing removals by the latter. This Tenure of Office Act of 1867 distinctly repudiated the construction formerly given to the constitution, but does not clearly assert whether the power of removal resides in the President and Senate under the constitution or that Congress has control over the subject. It declared that removals to be valid must be consented to by the Senate, that during the recess of the Senate the President could do no more than conditionally suspend an officer, and that only for good cause; and that he must report all suspensions for the approval of the Senate within twenty days after the beginning of a new session. Two years later, when President Johnson was succeeded by President Grant, the law of 1867 relating to removals and suspensions was amended by additional legislation. In the new statute, the President was permitted to suspend officers ' ' in his discretion," instead of only on certain specified grounds. Where the former law had provided that a suspended officer should resume his office if the Senate refused to concur in the suspension, the statute of 1869 simply provided that if the Senate refused to confirm an appointment in place of a suspended officer, the President should nominate another per- son for the office. This latter arrangement would seem to make the President's power of suspension equivalent to the power of removal, although the use of the word suspension THE PRESIDENCY 205 is somewhat equivocal. Evidently President Grant was not entirely satisfied, for in his first annual message to Congress he complained of the law of 1869. But as the President and Senate were now in political accord no difficulties arose ; and the statute was allowed to remain. Nor did any trouble arise until on the inauguration of President Cleveland in 1885, the President and the majority of the Senate were again politically opposed. During the session of Congress in the winter of 1885-6, the Senate delayed action for several months on a large num- ber of nominations made by President Cleveland to fill vacan- cies caused by suspensions during the preceding recess. Dur- ing this period the Senate endeavored to obtain from the executive departments information as to the causes of the suspensions, and this information the executive departments, under direction of the President, declined to furnish. The President claimed that suspension was a purely executive act with which the Senate had no concern. The senate asserted in a Resolution that it was "the duty of the Senate to refuse its advice and consent to proposed removals of officers ' ' when the documents and papers in reference to supposed official misconduct were withheld by the Executive. The President maintained his position ; and eventually the Senate confirmed the nominations to fill the vacancies. At the next session of Congress, an Act was passed repeal- ing the Act of 1869 amending the Tenure of Office Act of 1867. This Act of 1887 repealed the provision requiring the submission of suspensions to the Senate, and thus restored the original interpretation of the President's unlimited power of removal. According to the earlier and present construc- tion, the Tenure of Office Acts of 1867 and 1869 were uncon- stitutional, since they were based on the theory that Con- gress had the power to determine how removals should be made. It is true that soon after the passage of the Act of 1867, a circuit judge considered it constitutional, on the ground that Congress had full control over the question, and under 206 READINGS IN CIVIL GOVERNMENT the earlier system had practically conceded the right of re- moval to the President. But in the face of subsequent events, it may be doubted whether this dictum is the final judicial opinion on the question. Certainly in recent cases the Supreme Court has recognized an unlimited presidential power of removal in the face of statutory provisions similar to those which the state courts consider as limitations on the removal power of state gov- ernors. In one case it has been held that the President's power of removal applies to officers appointed for a definite term, before that term has expired. And in another case it has been held that the President's power is not restricted by an Act of Congress defining certain causes for removal. This latter case arose out of an Act of 1890 establishing the board of customs appraisers, which provided that the appraisers were to be appointed for no definite term, but could be removed by the President for ' * inefficiency, neglect of duty or malfeasance in office." This board of appraisers has been called a customs administrative court; and it seems to hav> been the intention to give its members a tenure approach- ing in permanence that of the national judiciary. In the states, a provision authorizing removals for certain causes, is regularly held by the state courts to require a statement of charges and an investigation by the removing authority. When, therefore, an appraiser named Shurtleff was removed from his position without notice of any charges or cause for his removal, he brought the question as to the legality of his removal before the judiciary. But the Supreme Court de- cided that the provisions of the Act did not restrict the Presi- dent's power of removal to the causes specified; but in addi- tion, the President had the power of removal at will, and that no notice or hearing was necessary. One important class of national officers the judges are excepted from the President's power of removal by the con- stitution. The provision that United States judges shall hold office during good behavior makes them irremovable except by the process of impeachment. But over all officers in the THE PRESIDENCY 207 executive branch of the government, the President's power of removal is beyond question. The extent to which the Presidents have exercised the power of removal is one of the most marked characteristics of Ameri- can administration. Advocated as a necessary means to en- able the President efficiently to discharge his duty to see that the laws are faithfully executed; the power has been used to make changes on a large scale at the beginning of every presidential term, and in connection with the four-year tenure for many positions it operates to secure an almost complete change in the administrative personnel, whenever there has been a political change in the executive. While Madison held that removal of a meritorious officer would be a just cause for impeaching the President, removals for the sole purpose of creating a vacancy for a political supporter have come to be a frequent occurrence. It must be noted, however, that the customs of removals for political reasons is a logical re- sult of the system of political appointments. . . . Although the authority to see that the laws were executed was clearly specified in the constitution, and the power of removal was recognized from the first as belonging to the President, the early statutes organizing the administrative services did not always acknowledge the President's power of direction. In some cases the power of direction was ex- pressly recognized, as in the acts organizing the departments of foreign affairs and of war; but in these branches of ad- ministration the President was given by the constitution more specific authority, which could not readily be overlooked. On the other hand, the Act of 1789, organizing the department of the Treasury, contained no reference to any presidential power of direction, and indicated that the administration of the finances was to be kept under the close supervision of Congress. The act provided that the secretary of the treasury should perform all such services relative to the finances as he should be directed to perform, while the context shows that the direction of Congress and not of the President was meant. Furthermore, the secretary of the treasury, unlike the other 208 READINGS IN CIVIL GOVERNMENT secretaries, was to make his report, not to the President, but to Congress. So, too, the Post-Office department was organ- ized without any reference to presidential control or direc- tion. The view thus negatively indicated that the President had but a limited power of direction, is more positively expressed in a judicial opinion in one of the United States courts as late as 1835 : "The legislative may prescribe the duties of the office at the time of its creation or from time to time, as circumstances may require. If those duties are absolute and specific, and not by law made sub- ject to the control or direction of any superior officer who is by law especially authorized to direct how those duties are to be per- formed, the officer whose duties are thus prescribed by law is bound to execute them according to his own judgment. That judgment cannot lawfully be controlled by any other person. ... As the head of an executive department he is bound, when required by the President, to give his opinion in writing upon any subject relating to the duties of his office. The President, in the execution of his duties to see that the laws are faithfully executed, is bound to see that the postmaster-general discharges 'faithfully' the duties as- signed by law; but this does not authorize the President to direct him how he shall discharge them." This opinion indicates the earlier conception of the Presi- dent's power of direction. But even before it was uttered, it had been effectively overruled by the action of President Jackson in forcing the secretary of the treasury to remove the government deposits from the United States bank. Not- withstanding the semi-independent position given to the secre- tary of the treasury by Congress, and although the control of government funds was given specifically to that officer; when Jackson determined that they should no longer be de- posited in the United States bank, he first transferred one recalcitrant secretary (McLane), and removed his successor, who also declined to act as the President wished, and finally secured one (Taney) who executed his wishes. There was strong opposition to this action on the part of the President, and the Senate passed a resolution of censure. But this did THE PRESIDENCY 209 not alter the situation. The President had demonstrated his authority, and established a precedent; and so long as the power of removal is not restricted, it is clear that the Presi- dent can in fact control the action of any administrative officer in the national service. Since the time of President Jackson's action, the larger scope of the presidential power of direction has come to be more clearly recognized. Congress has added to the specific grants authorizing the President to direct the executive de- partments. Attorneys-general have presented opinions as to the President's authority, couched sometimes in extravagant terms, while the Supreme Court has clearly indicated that the President's authority is not limited to the express terms of congressional statutes. Under existing statutes the President has specific and posi- tive authority to issue instructions and orders to the secre- tary of state, the secretary of war, and the secretary of the navy; to require the legal opinion of the attorney-general, and to cause even the secretary of the treasury to promulgate regulations for a special purpose. He has also express statutory authority to "call out the militia of any state or employ the land and naval forces to suppress rebellion against the United States, when the ordinary course of judicial pro- ceedings is in his judgment impracticable." But in addition to these and many other detailed duties and powers imposed by statutes, the President issues direc- tions and instructions in many cases not directly covered by any specific provision of the statutes. Thus he has used the army for the protection of the mails without express statutory authority. And he has authorized a guard for the protec- tion of a justice of the Supreme Court in the discharge of his duties. Such extra-statutory authority of the President has been repeatedly supported by the attorneys-general, and has been distinctly upheld by the Supreme Court. While the President thus has now a recognized and effec- tive power of direction over executive officials, this is exer- 210 READINGS IN CIVIL GOVERNMENT cised mainly on his own initiative, and he does not entertain appeals from or exercise a power of revision over the acts of officials on matters within their competence. In the opinion of various attorneys-general, the President has no power to correct by his official act the errors of judgment of incompetent or unfaithful subordinates, and there is no ap- peal to the President from the decision of the head of a de- partment in such cases. If this rule were not adopted the President would be overwhelmed with appeals on matters of detail and the transaction of public business would be seriously interrupted. Where, however, the question refers to the jurisdiction or competence of the subordinate officer, an appeal to the President has been allowed. ADDITIONAL READINGS 1 Treaties and Foreign Relations, Finley and Sanderson, The American Executive, 280-92. 2 The President, Bryce, J., American Commonwealth, I, 38- 52. 3 The Presidential Veto, Finley and Sanderson, The Ameri- can Executive, 206-17. 4 The Issues in Presidential Elections, Bryce, J., American Commonwealth, II, 213-19. 5 The Law of Electoral Count, Burgess, J. W., Political Science Quarterly, III, 633-53. 6 The Hampered Executive, Nelson, H. L., The Century Magazine, XLIV, 140-50. 7 The Presidential Office, Rhodes, J. F., Scribner f s Magazine, XXXIII, 164r-74. 8 Relations Between the Executive and Congress, Cleveland, G., Presidential Problems, 40-69. CHAPTER X THE EXECUTIVE DEPARTMENTS 43. THE CABINET. Professor J. A. Fairlie in the following selection gives a clear statement of the legal position and the functions of the President's Cabinet : In the discharge of his administrative functions the Presi- dent is assisted by a group of advisers known as the Cabinet, which has some resemblances and some points of difference to the cabinets in other governments. As is the general rule elsewhere, the President's Cabinet is composed of the heads of the principal executive departments, into which the national administration is organized. Like the British cabinet, it has no legal existence as a collective body. But, unlike the cabinets in countries having the parliamentary system of gov- ernment, neither the Cabinet as a whole nor the individual members, in the United States, are politically responsible for the acts of the chief executive. The President has full author- ity and sole responsibility; and his Cabinet is simply a con- sultative and advisory body to him, without any effective control over legislation. This situation is indicated by the fact that the members of the President's Cabinet are gener- ally called secretaries, instead of the more dignified title of ministers, which is used in most other countries. While the Cabinet as a body has no formal legal existence, its membership is in fact determined by the number of ex- ecutive departments in the national administration. These, departments have been created by congressional statutes, which relate strictly to their jurisdiction and powers. The constitution does not expressly provide what authority shall 211 212 READINGS IN CIVIL GOVERNMENT have this power of organizing the departments; indeed, it does not specifically direct the creation of such departments, although it recognizes their existence in two places. It per- mits the President to require the opinion in writing of the heads of the executive departments ; and it provides that Con- gress may vest the power of appointing inferior officers in the heads of such departments. The last cited clause speaks of "offices established by law," and this has been interpreted as giving to the legislature the organizing power. Moreover, not only are the departments in their main features created and established by Congress ; but also their internal organiza- tion, and the powers and duties of the various heads of sub- divisions are often regulated in detail by statute. Only rarely does a statute provide that the head of a department shall organize any particular sub-division. In other countries the internal organization of the depart- ments, and in continental Europe even the principal depart- ments, are established by executive order. This system has the advantage of flexibility, since it permits frequent changes to be made quickly to meet new conditions. The rigidity of an organization fixed by statute is not always conducive to economic or efficient administration. An illustration of this may be noted in the creation by statute of districts for the collection of customs duties. The districts as they now exist were established many years ago, and some of the ports formerly of importance have sunk into insignificance with changes in the lines of foreign trade. Secretaries of the Treasury have repeatedly reported this situation to Congress and recommended the abolition of the less important dis- tricts. But Congress has failed to act on these recommenda- tions, probably on account of the opposition of the members from the sections affected. Such matters could with advan- tage be left to administrative regulation ; while the legislative control over finances would effectively check any tendency to extravagance which might be feared from the administra- tive officers. . . . The number of Cabinet members is much smaller in the THE EXECUTIVE DEPARTMENTS 213 United States' national administration than in other impor- tant countries. This is due in part to the federal system of government, which leaves to the States such matters as educa- tional administration, the supervision over local government, and the regulation of manufacturing industry and of com- merce which does not cross state lines. But in some cases services performed by the national government are in this country organized as subordinate bureaus of one of the main departments, which in other countries are in charge of an official of cabinet rank. Such, for example, are the public works and colonies under the Secretary of War. Department secretaries are appointed by the President, "by and with the advice and consent of the Senate. " There have been, however, but a few exceptional cases where the Senate has attempted to exercise any control over the President's selections for these positions; and the power of appointment is practically exercised by the President himself. He is under no compulsion to choose the members of his Cabinet from the political party which controls the Senate, still less from the party which controls the House of Representatives. And each President is free to select his own advisers, without reference to those of his predecessor. Nevertheless, there are certain customs and limitations ob- served by the Presidents in their choice. Elected to his posi- tion by a political party, the President is confined in the choice of his Cabinet to the members of his own party. Washing- ton attempted to secure a Cabinet with representatives of different political views; but the attempt was not successful. Lincoln selected some men who had been democrats and some who had been whigs; but all had definitely attached themselves to the new republican party. Cleveland in 1893 appointed a former republican as Secretary of State; but he had sup- ported the democratic candidate at the preceding election, and was in no sense a representative of the opposing party. Several groups of members, chosen on different grounds, may generally be recognized in each Cabinet as finally or- ganized. Some receive their position as party leaders. If 214 READINGS IN CIVIL GOVERNMENT there is a well-marked division within the party, there will be some persons closely allied to the President, and usually some representatives of the opposing element. The Secretary of State has frequently been the strongest rival of the Presi- dent for the party nomination. Some members are selected largely because of their services in political campaigns, either past or prospective. Occasionally there will be a selection based mainly on administrative qualifications for the special department. And there are usually some persons in the Cabinet chosen by the President mainly on account of per- sonal considerations. Few of the Cabinet members are taken directly from Con- gress. Occasionally ex-Senators and ex-Members of the House of Representatives are appointed. But a Senator feels that his position in the Senate is more secure if he continues to occupy it; and that the longer tenure with the chance for re-election makes it a more influential post than that of de- partment secretary for not more than four years. Most of the representatives are not of sufficient calibre for the Cabinet ; while the few leaders who are also usually sure of their seats prefer the political and legislative work of Congress to the administrative service. One consideration of considerable weight is the representa- tion of different sections of the country. There is no rule requiring anything like a proportional distribution of the posi- tions; but it is felt to be advisable that each of the large divisions of the country should have a member in the cabinet. . . . In their collective capacity the department secretaries are known as the President's Cabinet. But this Cabinet, while in some respects resembling the cabinets in European govern- ments, occupies in fact a very different and much less impor- tant place in the government. Like the British cabinet, it is an entirely extra-legal body, authorized neither by the con- stitution nor the statutes, nor even any formal regulation or order of the President. But the British cabinet is at least THE EXECUTIVE DEPARTMENTS 215 an informal committee of the Privy Council, one of the oldest features of the British constitution, and is, moreover, the work- ing part of the Privy Council; while in this country the Cabinet is purely a voluntary association of the heads of the departments. Not only has the President's Cabinet no legal existence, it has no collective responsibility, and no control over the politi- cal and legislative work of Congress. In most European countries the members of the cabinet are the leaders of the majority in the legislature; and are the responsible directors of legislation. In the United States, the members of the Cabinet cannot be members of Congress; and by custom are excluded from speaking in either house, although they fre- quently appear before congressional committees. It has been proposed to give them seats and the privilege of speaking in Congress without a vote; and this action would doubtless in- crease their influence in legislation, but so long as they are chosen by the President without reference to the party major- ity in Congress they could not become the controlling factors. Even in administrative affairs, the Cabinet as a collective body has no legal control over the President or of any single member. If votes, resolutions or formal recommendations were passed, they would not legally bind the President in the slightest degree. It is a purely advisory body voluntarily consulted by the President; but the latter must himself make the final decision and assume full responsibility for all de- cisions. While it is necessary to recognize the less important posi- tion of the President's Cabinet as compared with the cabinets in such countries as England, France and Prussia, there is also some danger of underestimating its functions and in- fluence. Thus Mr. Bryce says: "The ministers meet in council, but have comparatively little to settle when they meet; . . . they are a group of heads of departments, whose chief, though he usually consults them separately, often finds it useful to bring together in one room for a 216 READINGS IN CIVIL GOVERNMENT talk about politics or to settle some administrative question which lies on the borderland between the provinces of two ministers. ' ' If this statement fully represented the work of the Cabinet, it would be difficult to understand the necessity for two regu- lar meetings of the Cabinet every week during the greater part of the year. Not merely matters involving more than one department, but most matters of first importance in the field of any department or of presidential action, are consid- ered and discussed ; and even in the field of legislation meas- ures that are to be officially recommended or privately urged either by the President or the secretaries are carefully gone over and an administration policy is usually worked out and adopted. In administrative matters, the Cabinet consulta- tions serve not only to avoid conflicting action by the different departments, but also to bring about in large measure a har- monious spirit of co-operation; and in both respects the national administration is much more effective than the dis- organized executive machinery in most of the states. In legislative matters, the influence of the Cabinet consultations necessarily depends on the party relations between the Presi- dent and Congress. When one or both houses of Congress is politically opposed to the President, comparatively little can be accomplished; but when the President's party has a majority in both houses, the administration policy will, un- less there are internal party dissensions, have large weight in the legislation enacted. . . . Each head of a department even in his own field is subject to the control and direction of the President. But from the causes which lead to the establishment of the departments this control cannot cover his whole field of action. The de- partments are created because there is more work to be done than can be effectively supervised by the President himself; and thus each secretary has a series of administrative powers and duties which they perform largely independent of the President. The constitution provided that Congress may grant to the heads of the departments the power to appoint in- THE EXECUTIVE DEPARTMENTS 217 ferior officials; and many laws have conferred this power, so that the greater mass of offices are filled by the appointment of the heads of the departments. The more important sub- ordinates are, however, appointed by the President and Sen- ate. Under the civil service law of 1833, a great number of minor appointments are restricted to candidates who have qualified themselves by examinations. It was early laid down by the courts that the power of removal was incident to the power of appointment. So whenever the heads of the departments have the appointing power, they have (unless there are express provisions in statute or executive regulation to the contrary) the power of removal also. Under the earlier conception of a head of a department in England and the United States, he was considered an official at the center of government with powers of appointment and removal, but he was not supposed to direct the actions of the subordinates in his department. The statutes of the legisla- ture entered into the most minute details as to the duties and powers of the subordinate officers, so that the need for central instruction and supervision was not felt. This situa- tion can be illustrated in the national administration by the collectors of customs. Though appointed nominally as sub- ordinates of the Secretary of the Treasury, the law did not recognize that they were subject to his instructions and direc- tions. It was not the practice to regulate their duties by administrative instructions, nor was there any custom of ap- pealing from the decision of a collector to the Secretary of the Treasury. But as the result of a century of development the national administration has become centralized in spirit and practice as well as in form. It is now recognized that the department secretaries stand at the head of a hierarchy of officials, with power to reverse or modify on appeal the decisions of inferior officers and to direct them how to act. In particular, the statutes now specifically provide for an appeal from a collector of internal revenue to the Treasury before the aggrieved party has any standing in court; and 218 READINGS IN CIVIL GOVERNMENT in the department of the Interior there is a well-developed system of appeals from subordinate officials to the secretary. The courts, too, have recognized that the head of a depart- ment may change the decision of a subordinate officer. Still further the heads of departments exercise a delegated ordinance power; and most of the executive regulations are in fact issued by the department concerned. The revised statutes authorize the head of each department "to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the dis- tribution and performance of its business, and the custody, use and preservation of the records, papers and property appertaining to it." Besides this grant to all the heads of departments, special ordinance powers are given to the heads of the particular departments. This ordinance power is, however, limited to that specif- ically conferred ; and where a regulation is issued not clearly based on legal authority, the courts do not hesitate to declare it void when its legality is contested in suits before them. But when Congress has delegated the power to issue such regulations, these when issued have the full force of a statute, upon private individuals as well as upon public officials. 44. CABINET AND CONGRESS IN THE ADMINISTRATION OP WASHINGTON. Although in theory the legislative and executive branches of our government are separate, in practice it has been found impossible to avoid some form of cooperation between them. This has been the more inevitable because the executive departments were not pro- vided for in the fundamental law but have been established by Con- gress, which may, therefore, to a certain degree control their activi- ties. The question as to this relationship arose at the very beginning of our government and the practice then established is the subject of the following article by Mary L. Hinsdale : However conclusive the proof that Congress did not admit the heads of departments to its debates during the formative period of the government, it cannot be denied that it coun- THE EXECUTIVE DEPARTMENTS 219 tenanced the principle involved, by passing the act to establish the Treasury Department, September 2, 1789. As is well known, this act includes a provision that the Secretary of the Treasury "shall make report and give information to either branch of the Legislature, in writing or in person, as may be required." There is no reason to suppose that the members of the First Congress saw in this any violation of that clause of the Constitution which enjoins that "no per- son holding any office under the United States shall be a member of either House during his continuance in office." It is true that the new Executive was regarded with sus- picion, so much so that James Madison, the leader of the House of Representatives, referring to the opposition which the attempt to secure the power of removal to the President alone was encountering, expressed the fear that the Executive would be the weak branch of the government. Moreover, the general impression of direct intercourse between the Executive and the Legislature was that it would be abused by the former power. Nevertheless, so far as the writer of this paper has been able to discover, the provision that the head of the Treasury Department might report in person, if so ordered, was not attacked in debate. Whether it was that attention was diverted from it by the onslaught against the provision that the Secretary of the Treasury should digest and report plans for the improvement of the revenue, and for the support of the public credit, wherein the constitutional right of the Lower House to orginate money bills was sup- posed to be threatened, or whether the Executive interest was strengthened for a new victory by the triumph it had lately scored, under Madison's leadership, on the subject of remov- als, the principle of direct intercourse had an easy triumph. On the day when this section of the bill was voted upon, June 25, Fisher Ames wrote to one of his political friends: "A puerile debate arose, whether the Secretary of the Treas- ury should be allowed to exhibit his reports and statements to the Legislature. The champions of liberty drew their swords, talked blank verse about Treasury influence, a min- 220 READINGS IN CIVIL GOVERNMENT istry, violation of the privileges of the House by giving him a hearing from time to time. They persevered so long and furiously that they lost all strength, and were left in a very small minority. The clause permitting this liberty passed. " The only result of this debate was to change the words ''digest and report" to "digest and prepare. " Everybody knows that, notwithstanding this provision, looking to direct communication between Congress and the Treasury, no Secretary of the Treasury has ever reported to Congress in person. Many persons suppose that jealousy of the powers of the Department caused the provision to be a dead letter from the beginning. What are the ascertainable facts about the matter? The House of Representatives, shortly before the adjournment of its first session, passed a resolution that the Secretary of the Treasury be directed to prepare a plan for the support of the public credit, and report the same at its next meeting. At the opening of the second session, the Speaker communicated a letter announc- ing that the Secretary of the Treasury was ready. Gerry, of Massachusetts, moved that the report be submitted in writ- ing; but of the five members recorded as taking part in the debate, Clymer, of Pennsylvania, was the only one who ex- pressed doubts as to the propriety of oral communication from so great an officer. Fisher Ames, the consistent friend of the Executive, thought that this particular report ought to be in writing; because the more permanent form was more likely to insure the responsibility of the Secretary, while at the same time it would be less liable to be misunderstood. This latter point was elaborated by Gerry in a closing speech. In a plan for supporting public credit, might be compre- hended every species of finance. Could the human mind re- tain with any degree of precision objects so extensive and multifarious upon a mere oral communication? These con- siderations alone ought to be sufficient to induce gentlemen to agree to this proposition of making the report in writing. With this it was decided that the first of Hamilton's great reports should be submitted in writing. THE EXECUTIVE DEPARTMENTS 221 It seems, from the foregoing facts, that the First Congress did not directly face the question of personal communication with the heads of departments in any of its debates. But the Second one met it squarely in a series of discussions that occurred on November 13, 14, 19 and 20, 1792. Inasmuch as it was the action taken on this occasion that has settled the practice of the government on this point, down to the present time, it is surprising that these debates have received so little notice. On November 13, 1792, while the House of Representatives was investigating the defeat of St. Clair's Indian expedition, the following resolution was introduced: "That the Secretary of the Treasury and the Secretary of War be notified that this House intend, on Wednesday next, to take into consideration the report of the committee ap- pointed to inquire into the causes of the failure of the late expedition under General St. Clair, to the end that they may attend the House and furnish such information as may be conducive to the due investigation of the matters stated in the said report." Eleven members spoke against the resolu- tion, and six in favor of it; and the debate was renewed six days later, November 19, on a resolution to call upon the Secretary of the Treasury to report a plan for the reduction of the public debt, no suggestion that he should come to the House in person being included. In both debates, Madison figured as the leader of the opposition, saying that to sum- mon the two Secretaries would introduce a precedent that would lead to perplexing and embarrassing consequences. Accordingly, he was decidedly in favor of written information. In his remarks against the resolution to call upon the Secre- tary of the Treasury for a plan to reduce the public debt, he set up a kind of defence for abandoning the role of chief supporter of the administration in the Lower House for that of leader of the opposition, by saying that in the infancy of the government it might be necessary to interpret the act establishing the Treasury Department with more latitude than was contemplated when it was passed but that he could see no necessity for it at present. The reason for Madison's 222 READINGS IN CIVIL GOVERNMENT change of front was that he was one of the newly-developed anti-Hamilton party. The policy of the Secretary of the Treasury had by this time forced the issue that differentiated the two great political parties. The opponents of a strong central government were particularly hostile to a strong Executive. This was the reason why the Second Congress was more chary of Executive privileges than the First. In general, the enemies of the Treasury policy opposed the resolution to summon the two Secretaries to the House of Representatives; but there was one notable exception. El- bridge Gerry, who had been the most pronounced enemy of the act to establish the Treasury Department, and an oppo- nent of the proposition to make the heads of departments removable by the President alone, said that he was surprised at the apprehensions that some gentlemen appeared to entertain of the measure to introduce the heads of depart- ments into the House ; for his part he had no such fears. The Secretaries would attend at the orders of the House merely to give such information as might be required, and not as members or ministers to influence and govern the determina- tion of the House. The closing words might imply that if the Secretaries were coming as ministers, Mr. Gerry would be opposed to it. But in the debate six days later he made it clear that he did not fear them even in this capacity: for, if the influence of the Secretary was formidable, he conceived that it would be much more dangerous if exerted against a committee than in the whole House. Yet Gerry appears to have been the only man to see that the proposed relation might work to the advantage of the Legislature. The motion to summon the two Secretaries was defeated. Secretary Knox thereupon sent a letter to the House allud- ing to his anxious expectation of some act which would enable him to attend at the examination upon which they were about to enter. The failure of the proposition had added to his solicitude. Accordingly, he felt himself called upon to ask of the justice of that body that some mode might be devised whereby he might be present during the THE EXECUTIVE DEPARTMENTS 223 inquiry. Nevertheless, the aggrieved Secretary, far from founding any claim upon the fact that he had already visited the House in session eight times, did not even mention it. The only action that the House took was to continue the select committee that had begun the investigation. The resolution to call upon the Secretary of the Treasury for a plan to reduce the public debt was carried. 45. DEPARTMENTAL DEALINGS WITH CONGRESSIONAL COMMITTEES. The members of the Cabinet having been denied the privilege of direct communication with Congress on the floor of the Houses, an indirect method of intercourse arose, viz.: communication between the departments and the committees. Mr. L. G. McConachie speaks as follows of the development of this practice: During Washington's Presidency members of his cabinet, notably Hamilton as Secretary of the Treasury, had a marked initiative in the preparation of bills of which the House soon became jealous. March 11, 1794, Madison wrote to Jeffer- son: "I forgot to mention in my last that the question whether the Ways and Means should be referred to the Secretary of the Treasury, as heretofore, or to a committee, lately came on, and decided the sense of the House to be regenerated on that point." Of his own action of Dec. 21, 1795, Albert Gallatin wrote: "My first step was to have a standing committee of Ways and Means appointed. That this should not have been sooner done proves the existing bias in favor of increasing as far as possible the power of the Executive branch." Feb. 2, 1797, Speaker Dayton ruled out of order a motion of Mr. Coit that the Secretary of the Treasury be directed to bring in a bill upon imposts and tonnage. While the direct connection of the Executive with the House, and every shadow of claim to the initiation of laws, was thus early cut off, it has always subsisted to a greater or lesser degree in a voluntary way with the com- mittees or with individuals as intermediaries. John Quincy Adams, as Monroe's Secretary of State, mentions several instances where members of Congress came to him to submit 224 READINGS IN CIVIL GOVERNMENT drafts of bills that he might suggest modifications or obtain for them the opinion of the President. Certain newspaper publications of 1837 throw interesting light upon the draft- ing of bills in the times of Jackson and Van Buren. The Atlas and other Boston papers reported Richard Fletcher, a member of the House Ways and Means, as declaring in a speech at Faneuil Hall during the summer recess: "The Chairman of the committee steps up to the White House, and there receives from the President or the Secretary of the Treasury such bills as they wish to have passed by the House. The chairman puts the bills in his pocket ; takes them to the committee without any examination; the majority of the committee approve them ; the minority can do nothing ; the bills are presented to the House, and received as the doings of the committee. " Upon the reassembling of Con- gress, Chairman Churchill C. Cambreleng of the Ways and Means published in the Washington Globe a reply to this and other charges of the Boston speech. "The usage from the commencement of the government," said he, "has been for the committee, through its chairman, to consult the head of the Department in regard to such measures as he may recom- mend for the consideration of Congress; for the Secretary to attend on, and confer with the committee, if invited, and to furnish drafts of bills embracing his own propositions, when requested to do so." He denied, however, the slavish acceptance of Executive measure "word for word, letter for letter, comma for comma"; cited in proof the history of several bills ; and presented in parallel columns the Secretary 's draft of one of them, with its modified form as reported from the Ways and Means. Recent examples of this practice are to be had in the presentation to the Ways and Means of suggested amendments to the Administrative Customs Act by Charles S. Hamlin, Assistant-Secretary of the Treasury, and in the comments on the Wilbur Filled-Cheese Bill sent in to the same committee by Henry E. Alford, Chief of the Dairy Division in the Department of Agricul- ture. There are many avenues leading from the Depart- 1 THE EXECUTIVE DEPARTMENTS 225 ments to the Capitol; what cannot find an entrance through the House comes in by way of the Senate. "It is a favorite scheme," says Chairman Cannon, "for Executive officers, when they cannot get appropriations recommended under the jurisdiction of one committee, to shift around, and submit estimates so that they will come in under another committee." Where a party has been in possession of the Presidency and the House at the same time, the influence of the Executive in the choice of the Speaker, and consequently in the com- position of the committees upon questions which divide the party into two wings, has often been direct and powerful. The contest of James K. Polk and John Bell for the Speaker- ship in 1835 is a case in evidence. Earlier, John Quincy Adams found his administration handicapped in its beginning by the organization of all the committees of Congress in favor of his beaten rival, Andrew Jackson. "I rather think that the House will be organized by the election of a Speaker who will consult the President and Cabinet in the appointment of the committees," says a correspondent of the New York Herald in 1853. Stephen A. Douglas, accord- ing to Henry Wilson, was put down from his committee chairmanship in the Senate at the bidding of Buchanan's administration. One committee of the House stands on a peculiar footing as regards relations with the Executive; namely, the Foreign Affairs. The trickery of the chairman of the Ways and Means, John Randolph, in failing to report on Jefferson's message with reference to the conduct of European belligerents, and in delaying the appropriation bills so as to prevent the purchase of Florida, and his punish- ment therefor, are cited elsewhere. Later, in 1819, when this same purchase was under more successful negotiation, the chairman of the Foreign Affairs seems to have attended a meeting of the Cabinet and set forth his views. In a debate on the deposing of Edward Everett from the chairmanship of Foreign Affairs, one speaker urged that the chairmen of that committee especially, and of other important House commit- tees generally, ought to be "men who were in confidential 15 226 READINGS IN CIVIL GOVERNMENT relations with the government"; and another speaker, ''that every committee of the House was the organ exclusively of the House, and as such it owed no duty elsewhere." Speaker Bell, defending himself against the charge of subserviency to Jackson on this occasion, declared that he had acted upon a principle which he had once heard enunciated by John Quincy Adams, to the effect that if ours is to be a practicable government, the several departments must be regarded not only as co-ordinate, but also as to a due degree co-operat i < . The same thought is expressed by The Nation in commenting upon the removal, after ten years of service, of Charles Sum- ner from the chairmanship of Foreign Affairs in the Senate, because of his opposition to General Grant 's desire for the purchase of San Domingo. The newspapers of June, 1896, noted as to the Cuban Question, the fact that President Cleveland had met the Foreign Affairs of the House, and satisfied it concerning his attitude upon the recognition of belligerency. 46. SHOULD MEMBERS OP THE CABINET HAVE SEATS IN CONGRESS? Since it is inevitable that there must be some kind of inter-com- munication and cooperation between the departmental heads and Congress, cannot some plan be devised by which this influence may be exerted more openly, publicly, and effectively than by the present method of communication between the secretaries and committees? In 1881 a report was submitted to the Senate by Senator Pendleton advocating the admission of the members of the Cabinet to seats in Congress. In the following selection Mr. Gamaliel Bradford up- holds the principle of this report in answer to the objections made by Mr. Freeman Snow: [1893]. The fundamental difference between the governments of Great Britain and the United States consists in this, that in the latter the Executive is a President, elected every four years by the majority of the whole nation. The interven- tion of presidential electors has become a mere form ; and the election by States, though it differs somewhat, does not differ greatly from a popular vote. The Queen of Great Britain THE EXECUTIVE DEPARTMENTS 227 reigns by hereditary descent, and is dependent for her posi- tion neither upon Parliament nor the people. As an offset to this the crown has been deprived of all but nominal power, though its influence is undoubtedly still considerable. The real executive, as Mr. Bagehot has clearly shown, is the ministry, which is in effect a committee of Parliament. When one ministry goes out, the leader of the opposition is invited by the Queen to form a new ministry. If he thinks he can command a majority, he invites certain other leading men to join him, which they will only do upon condition of his supporting them, so that if any one of them is defeated the whole ministry will resign. Every effort is therefore directed to maintaining the party majority, and how difficult this is, is shown by comparison of the groups and the constantly- changing ministries in France. It is a condition of unstable equilibrium. Our Cabinet officers, on the other hand, are the direct appointees of the President. So far from being irresponsible, they are jointly and severally, as well as absolutely, responsible to him. He can change one or all of them at his pleasure, subject only to the consent of the Senate, which has very rarely been, and under the circum- stances herein proposed, never would be refused, unless in very extreme cases. But the President is himself responsible to the nation, and therefore his Cabinet is so also. In other words, he appoints its members, subject to his responsibility to the majority of the nation. The Cabinet is, therefore, irresponsible only as regards Congress. It has its own separate responsibility to the people precisely as Congress has, but with this difference, that the constituents of the Cabinet are the majority of the whole nation, acting through the President, while the constituents of each Congressman are only the majority of his own district, and of each Senator only the majority of his own State Legislature. This fact of the separate and direct responsibility of both executive and legislature to the common arbiter and sovereign, the people, is of immense importance, and like nothing else in the world. From their responsibility to the President alone it 228 READINGS IN CIVIL GOVERNMENT follows that the members of the Cabinet need stand in no fear of Congress, or to resign in case of an adverse vote. If, indeed, the President felt that one or more members of the Cabinet had proved to be incompetent, he could, and probably would, change them at his pleasure. But, if otherwise, he could uphold them against any adverse majority in one or both Houses. The defeated member could either abandon the rejected measure under protest and appeal to the coun- try, or could modify it, still under protest, till the majority would accept it, or could drop the subject, and, content- ing himself with existing legislation, go on to something else till the verdict of the people was pronounced at the next election. But there would be no more necessity of his resigning than there is now. From the fact that both Con- gress and the Executive have a separate and independent responsibility to the people, as also from the much wider and more numerous constituency of the Executive, it would fol- low that Congress would be much less dominant and dic- tatorial in its relations to the Executive than it is at present, or than is the British House of Commons, or the French Chamber of Deputies. Nobody doubts that members of Congress are sensitive enough to any manifestation of the will of their constituents. The trouble is that with the present methods of government by the lobby and secret com- mittees, there is no opportunity for the formation or the expression of public opinion. But if one of the President's lieutenants, felt by every part of the country to be the agent of the whole, were to stand up in open Congress to express his views and plans upon any public question, and these were discussed by the press of the whole country, itself anxious to conform to and express public opinion, members of Congress would be exceedingly careful about factious opposition in the face of such a power as that. So long as a secretary could maintain the conviction of his purity and elevation of character, even though his ability was not of the highest, he would be safe from bullying and sure of respectful treatment. It would be only trickery or dishonest THE EXECUTIVE DEPARTMENTS 229 collusion with private interests, which ensure his speedy downfall. . . . Perhaps the best w r ay to discuss Mr. Snow's argument will be to take a concrete case, and trace its probable working; and the tariff, at once by its complexity and its universal national interest, offers a good example. Suppose that when Congress meets, the Secretary of the Treasury, by invitation of the House of Representatives, in accordance with the Pendleton Bill, should appear and take his seat near the speaker's desk. The first thing to be noted is, that it is not at all necessary that he should be a member of the House. He is simply an agent of the administration, having no vote, but presenting the wants of the treasury, and the effect of the existing tariff upon the financial interests of the coun- try. Observe, again, how different his position would be from that of appearing before a committee, say, of Ways and Means. The committee is not a place for debate. It does not care to argue with the secretary. With its inherent jealousy of the Executive, it does not care what he has to say. For form's sake, it listens to him, perhaps asks him a few questions, and then dismisses him and conducts its de- liberations and forms its decision upon motives which the country never sees or understands at all. But the House is the place for debate. Every word that the secretary said there would be reported, and his language and bearing dis- cussed in almost every newspaper in the United States. Mr. Snow cannot see how the President represents the whole country any more than Congress. The simplest appeal to fact shows that the President excites equal interest in Maine and Louisiana, in Wisconsin and Florida, in Virginia and California. The speaker and the Chairman of Ways and Means are perhaps the most important members of the House. But they represent each precisely one three-hundredth and fifty-sixth part of the country, and the rest of it, except from the point of view of party politics, cares very little what either of them thinks or says. . . . But we have left the secretary waiting, and it is time for 230 READINGS IN CIVIL GOVERNMENT him to speak. He rises in his place, and it is safe to say the speaker will recognize him without regard to party, greatly to the disgust of members who cannot get the same oppor- tunity. He does not embark upon a radical reform of the tariff, but proposes a few changes of detail, among others, for example, free wool, and makes those a pretext for a discussion of the whole subject. If a private member had made the same proposal it would be referred with a hundred others to the appropriate committee. The author would be divorced from his measure, and the latter would disappear, perhaps for months, and if ever heard of again, it would be as a part of an elaborate bill, prepared by the commit- tee, upon motives and considerations of which the country would know nothing. Mr. Snow would probably say that the secretary's proposal would be referred in the same way. But he is a very different individual. In the course of his speech he would insist respectfully but earnestly, upon the importance of immediate public discussion, and would close with submitting a resolution to that effect. Some members of his party, seeing the political capital to be made, would support the resolution. The opposition would at once see that with the secretary's speech published all over the country, it would be too dangerous to try to stifle it by reference to a committee, and that they had got to take the bull by the horns. They would be anxious as to the charac- ter of the debate. It would never do to let any blatant mem- ber who could catch the speaker's eye damage the party and the cause by displaying his ignorance. They would go into caucus to select their best man to conduct the debate, and in a general way the speakers to follow him. The House w r ould be divided into two organized and disciplined bodies under their respective leaders, ready to join battle in a discussion of principles before the whole country looking on with the most intense interest. Cannot Mr. Snow see how the "advice and suggestion " of the Pendleton Report might develop into something vastly more important, and that such THE EXECUTIVE DEPARTMENTS 231 are "the obvious advantages" which the author of that report pointed to but did not see fit to discuss? We will suppose that while the regular business of the session was going on this discussion was kept up for two or three months. The country, as a whole, would learn more and come to more definite conclusions than from all the effects of local writers and speakers, including members of Congress, in as many years, from which, indeed, it probably does not learn anything at all. There would be added the immense force of personality. Members would come before their constituents through their speeches and votes in a totally different light and have a chance of standing on their own feet, instead of being the mere nominees of a party conven- tion. The whole country would begin to take sides with the secretary and the President behind him on the one part, and the leader of opposition and his followers on the other. The elections would begin to take on a wholly different character. Suppose next that after a three months' debate a vote was taken, and the secretary's proposals defeated by a large majority. It would not be necessary for the Cabinet or even the secretary to resign. The President might say to the latter in private, "You have done well. Now help on the business of the session with tact and prudence, and we will see what another year may bring forth." Or he might conclude that the secretary was not up to his work, ask for his resignation privately, and invite the member of the same party who had been most prominent and effective in the debate to take his place, and any member would gladly resign (reserving his chance of subsequent re-election when out of office) for a post of such distinction as the Cabinet would then offer. These ramifications might be followed out indefinitely to meet possible objections, but there is one important considera- tion, that if the experiment did not work satisfactorily, the House at the end of the session would need only to rescind the resolution, inviting the presence of the Secretary and 232 READINGS IN CIVIL GOVERNMENT the present condition of things would be restored. The ques- tion presents itself, why a measure recommended unanimously by eight Senators from both parties as offering "obvious advantages, ' ' so easily tried and set aside if it fails, has never received the slightest attention from Congress. 47. CIVIL SERVICE REFORM. When Thomas Jefferson became President in 1801, he announced that his policy with regard to appointments would be to equalize the offices between the two parties and then to "return with joy to that state of things when the only question concerning a candidate shall be, is he honest? Is he capable? Is he faithful to the Constitu- tion?" It is needless to say that this happy "state of things" was never realized even by Mr. Jefferson himself. On the contrary, as the service grew in numbers, appointments were made more and more on purely political grounds until in the time of Andrew Jack- son the statement of William Marcy was nearer the truth, "to the victors belong the spoils." In the following selection Professor J. A. Fairlie describes the events leading to the adoption of the merit system and its effect upon the civil service: Entrance to subordinate positions in the national adminis- tration is now in large measure regulated by the Civil Service Commission, which also has important powers to prevent abuses in the administrative service. To understand the pur- poses and methods of the commission, it is necessary to note former conditions, and to trace the development of measures for improvement. Appointments to subordinate positions have been made from the beginning to the national government by the heads of departments, in most cases on the nomination of chiefs of bureaus or the principal local officials under whom the persons employed perform their duties. But the recom- mendations of members of Congress early became an impor- tant factor in securing positions; and with the development of party organization the influence of party managers came to be of great weight, especially in districts where the local member of Congress was not in political accord with the President. THE EXECUTIVE DEPARTMENTS 233 From the beginning there has been no definite term for such subordinate positions ; but they are held subject to the removal power of the appointing authority. There is no exact record of removals of employes; but it seems clear that at first the tenure in all cases was practically one of good behavior. The political removals from presidential offices by Jefferson was probably followed by removals of the same kind from minor posts. More certainly there were large numbers of political removals throughout the administrative service when Jackson became President in 1829. The total number in the first year of Jackson's term has been estimated at 2,000 out of 25,000 positions then under the national government. From this time, with the development of political removals from presidential offices, the same custom came to be more and more systematically followed for all grades of employes. It seems probable that removals from minor posts were always less in proportion than from the higher offices. But enough was done to disorganize and demoralize many branches of the administration with every party change in the presi- dency; and a good deal in the same direction at every new administration. A small step towards better conditions was taken in 1853, when the clerks in the department offices at "Washington with salaries from $1,300 to $1,800 were grouped into four classes; and it was provided that persons appointed to this "classified service" should be required to take an examina- tion conducted by an examining board in each department. These examinations were, however, limited to those previously selected for positions ; and often had no relation either to the candidates' ability in general or their qualifications for par- ticular posts. In 1864 provision was made for a small force of consular clerks appointed after examinations. After this time various attempts were made in Congress to secure the establishment of a permanent commission to control admission to the administrative service. President Grant supported this plan ; 234: READINGS IN CIVIL GOVERNMENT and in 1871 an act was passed authorizing the President to appoint a commission for this purpose. The commission, of which George William Curtis was chair- man, framed rules based on the principle of competitive examinations open to all applicants. But in two years the appropriation for the commission was defeated in Congress; and the new system had to be given up for the time. It was, however, established in a few of the largest local offices, such as the custom house and post-office in New York; and also, after 1877, in the department of the Interior by Secre- tary Carl Schurz. On the assassination of President Garfield by a disappointed office seeker, public opinion was aroused against the prevail- ing method of patronage appointments. But it was not until nearly two years later, in 1883, that an act was finally passed which forms the basis for the present system. This act was similar to that of 1871. It did not directly restrict removals, nor did it of itself establish a new system of controlling appointments. It provided for a commission of three persons, not more than two of the same political party, to be appointed by the President and Senate. This commis- sion was to frame rules regulating admission to positions in the classified service, which should become effective when promulgated by the President. The act also provided that the rules should require competitive examinations and proba- tionary appointments, to test the capacity and fitness of can- didates, but with a preference for members of the army and navy disabled in the service. It also prohibited recommenda- tions from members of Congress; required appointments to be apportioned to the states and territories on the basis of population, and restricted the levy of political assessments from government officials and employes. Under the rules first adopted competitive examinations were required for new appointments to some 14,000 positions in the department offices at Washington and the large custom houses and post-offices. Since then the number of competitive THE EXECUTIVE DEPARTMENTS 235 places has been steadily increased, partly by the growth of the government service, partly by new rules extending the com- petitive system to new classes of positions. The most notable increase was that made by the "blanket order" of President Cleveland in May, 1896. President Eoosevelt, who was a member of the commission for six years, has made impor- tant extensions and has greatly strengthened the merit system by other changes in the regulations. In 1904 there were 135,000 positions subject to competitive examinations, out of 280,000 positions in the executive civil service. The salaries for the competitive positions aggregate about two-thirds of the total expenditure of $180,000,000 for salaries. The non-competitive positions include the presidential offices, certain minor offices, employes whose duties are of an important, confidential or fiduciary nature, the 70,000 fourth class postmasters and laborers. The classified service is divided into seven main groups; the departmental service, the custom house service, the post- office service, the railway mail service, the Indian service, the internal revenue service, and the government printing service. The departmental and post-office services each in- clude more than forty per cent, of the total number of com- petitive positions; while the other five divisions together have less than twenty per cent. The Civil Service Commis- sion also groups the positions into eleven .classes on the basis of salary. About one-third of those in the classified service receive less than $720 a year ; another third from $720 to $1,200; and the remainder over $1,200. In 1903 there were 1,428 positions (including presidential offices) with a salary of $2,500 or more. Examinations of applicants for positions are held in every state and territory at least twice a year under the direction of the Chief Examiner of the Commission. Local boards of examiners have been selected from the government employes at each of the places where examinations were held; but since 1902 it has been the policy of the commission to consoli- 236 READINGS IN CIVIL GOVERNMENT date local boards in neighboring places and to establish civil service districts, conducting all the examinations in each district from a central point. There are hundreds of different examinations for the great variety of positions; but these may be grouped into three principal classes. For a considerable proportion of positions, such as janitors, firemen, apprentices, messengers, watchmen and the like, the examinations simply cover physical qualifications and experience, with no educational test. And as this class of employes change very frequently, nearly half of the new appointments each year are to such positions. The largest class of positions are those of a clerical nature, where the examinations require a good common school educa- tion, and sometimes for such places as stenographers, type- writers and bookkeepers technical training of a simple kind. More than half of the new appointments are to such positions. The third group consists of professional, scientific and technical positions, requiring a high degree of specialized training. This includes patent examiners, engineers, law clerks, and experts in many other lines. Not more than a tenth of the positions in the classified service are in this group ; and the new appointments are a much smaller propor- tion. Examinations for this class of positions cover the technical qualifications, training and experience, and for some of the highest posts the latter are the most important parts of the examination. Eligible lists of candidates who have passed the examina- tion for each kind of position are prepared, with disabled veterans ranking first, and others in the order of their grades on the examinations. Vacancies are filled by the selection of the appointing officer from the three persons standing high- est on the appropriate register, subject to the rules for the geographical apportionment of appointments. When a name has been passed three times it is dropped from the eligible list. Appointments are made first for a probationary period of six months ; and at the end of that time the probationer is either removed or receives a permanent appointment. THE EXECUTIVE DEPARTMENTS 237 For a time the rules governing the entrance to the service were evaded by the system of transfers from one office to another. Before a particular class of positions was brought under the competitive system, many political appointments would be made, in excess of the number of employes required. After the places were brought under the competitive rules, the additional appointees would be transferred to other com- petitive positions. Under the present rules, however, trans- fers are carefully regulated. Promotions are now governed by regulations for each branch of the civil service. These regulations provide for further examinations; but also consider the records of effi- ciency of the candidates, and in some cases seniority of service is given weight. In the earliest rules the only restriction in removals was a vague provision that they should not be made for political or religious opinions ; and no method was provided for enforc- ing this. President McKinley in 1897 established a rule that no removals should be made from the competitive service except for just cause and for reasons stated in writing, with notice given before removal. President Roosevelt supple- mented this in 1902 with an explanatory statement that "just cause" meant any cause not merely political or religious, which will promote the efficiency of the service ; and that em- ployes were not guaranteed a trial before removal. With the new system of appointments, which removes the incentive to removals for the purpose of creating a vacancy for a patronage appointment, there has been a great reduc- tion in the number of removals. Complete records are not available ; but in the railway mail service, where the removals almost equalled the whole number of employes between 1885 and 1889, there have been only two per cent, a year since the service has been made competitive. 238 READINGS IN CIVIL GOVERNMENT 48. RECENT PROGRESS IN THE MERIT SYSTEM. The following extract is taken from the Twenty-Fifth Annual Report of the Civil Service Commission: On June 30, 1908, the officers and employes of the execu- tive civil service numbered approximately 352,000. Of this number 206,637 are subject to competitive examination under the civil service rules, this being an increase of 12,305 as compared with the number for the previous year. In addi- tion to these classified employes there are about 6,500 laborers subject to examination by the Commission under the labor regulations. There are also 298 positions in the consular service subject to examination under regulations prescribed by the President. Of the 138,500 persons not subject to examination, 8,706 are presidential appointees, 6,846 of whom are postmasters of the first, second, and third classes; 54,312 are fourth-class postmasters; 12,500 are clerks at postoffices having no free-delivery service; 24,192 are mino/ employes, chiefly laborers on the Isthmian Canal work, and 31,500 are mere unskilled laborers in field services in the United States. . . . Abuses arising from partisan activity of office holders and political assessments continue to diminish. Very much has been gained in the restriction of such abuses during the year, even in the midst of the presidential campaign. The civil- service act declares that no person in the public service is for that reason under any obligations to contribute to any political fund or to render any political service, and every such person is forbidden to use his official authority or influence to coerce the political action of. any person or body. The rules, in affirming these provisions, forbid persons in the service from using their official authority or influence for the purpose of interfering with an election or affecting the result thereof, and prohibit discrimination by any per- son in the service in favor of an applicant, eligible, or em- ploye because of his political opinions. Under the orders issued by several of the Presidents, aiming at the correction THE EXECUTIVE DEPARTMENTS 239 of abuses arising from other forms of political activity, en- forcement of the 'rules was left to the heads of departments until June 15, 1907, when Rule I, section 1, was amended by adding the following prohibition, which gave the Com- mission jurisdiction over the improper activity of employes in the competitive service : Persons who by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express privately their opinion on all political subjects, shall take no active part in political management or in political cam- paigns. At the time this order was issued federal office holders had for so long taken an active part in politics that its universal and immediate enforcement was impossible. The Commission, however, on March 25, 1908, addressed a letter to the President which read in part as follows : The Commission, in recommending punishments for violations of section 1 of civil-service Rule I, has heretofore been guided by the fact that the rule was only adopted in June, 1907; and that, while the President's instructions prohibiting political activity on the part of competitive classified employes have been public ever since 1902, yet in actual practice the effective and thorough-going enforcement of the President's instructions in this connection has only dated from the adoption of the rule in June last, which gave the Civil Service Commission the right to investigate and report on charges of im- proper political activity on the part of those in the competitive classified service. For this reason the Commission has heretofore been lenient in recommending punishments. But a sufficient time has now elapsed for us to assume that the civil service rules are understood throughout the service, and we believe therefore that the time has also come for a somewhat greater degree of severity in the penalty inflicted, at least in aggravated cases. We recommend, therefore, that the several departments be requested to publish to their employes in the competitive classified service, the fact that any man violating the provisions of the rule in question renders him- self liable to punishment by removal. We desire that the subor- dinates in the several departments be acquainted with this recommen- dation so that in the event of any misconduct by them in future, the Commission may feel at liberty to recommend their removal. 240 READINGS IN CIVIL GOVERNMENT Accordingly each head of department issues an order call- ing the attention of employes to the provision of the rule and to what the Commission had said to the President. The heads of departments also issued the customary warn- ing against political assessments at the outset of the campaign. The issuance of these orders, the wide publicity given to the investigations made by the Commission, and the penalties imposed where it was found that employes had taken an unduly active part in political affairs, had a widely deterrent effect. The Commission is gratified in reporting that notwith- standing the intensity of interest in the campaign the instances of violation of the rules became noticeably less as the campaign progressed, both in number and in degree. It was inevitable that there should be much misunderstanding, both of the provisions of the rules and of the reasons for forbidding political activity. If unrestrained, many em- ployes, especially those who were appointed for political rea- sons, because of the selfish interests they have at stake, are tempted to make use of all the influence they possess or that their office gives to them to defeat the free choice of the people. The rule is in the interest of the employe, as it restores to him a real liberty of opinion and action and prevents his coercion in the interest of any party or faction. In the use of the power given to the Commission to investi- gate and report upon violations of the rule it is aimed to place whatever limits are defined equally upon the adherents of all parties, and that officers belonging to the party in power shall not be permitted to do things with impunity which are forbidden to members of the party out of power. The rule has been construed to forbid the use of official positions for the benefit of any of the parties into which the whole people are divided. As to restrictions on political activity of employes in purely local affairs, the policy has been to treat each case upon its merits rather than to establish inflexible rules. In case, for example, where a strict enforcement of the rule would result in placing an undesirable element in control of municipal affairs in the THE EXECUTIVE DEPARTMENTS 241 immediate vicinity of a navy-yard or station, the Commission has joined with the Navy Department in making an excep- tion so far as local municipal office-holding was concerned. In the course of its decisions upon complaints arising under the rule the following forms of activity have been held to be forbidden: Service on political committees; service as delegates to county, state, or district conventions of a political party, although it was understood that the employes were not "to take or use any political activity in going to these conven- tions, or otherwise violate the civil-service rules"; continued political activity and leadership; the publication of a news- paper in the interests of a political party; holding office in a club which takes active part in political campaigns and management; the circulation of petitions having a political object; service as a commissioner of election in a community where it was notorious that a commissioner of election must be an active politician; accepting nomination for a political office with intention of resigning from the competitive service if elected ; recommendation by clerks and carriers of a person to be postmaster; activity in local-option campaigns; service as inspector of election. Acting upon the recommendations of the Commission the departments have made removals in ten cases, have suspended from employment without pay two employes, have made reductions in salary in three cases, and in sixteen others have administered reprimands with a warning that a repeti- tion of the offense would result in removal. Other cases in which the Commission recommended punishment are still pending before the departments. Complaint was made that competitive employes in the customs service at Port Huron, Mich., had been required for a number of years and were still required to contribute a percentage of their salaries to be used for political purposes. This assessment was brought about under a system by which employes cashed their checks at a certain bank in Port Huron, and the cashier withheld a portion of the amount 16 242 READINGS IN CIVIL GOVERNMENT named in the check. The Commission investigated the matter and submitted its report to the President with the result that Lincoln Avery, collector of customs, was removed. It appeared that Charles A. Bailey, a special treasury agent at that port, was active politically and he was also removed. ADDITIONAL READINGS 1 The Executive Departments, Finley and Sanderson, The American Executive, 293-317. 2 The Cabinet, Bryce, J., American Commonwealth, I, 86-96. 3 The Navy Department and its Work, Marvin, W. L., Re- view of Reviews, XXXVI, 714-22. 4 The American Consul and American Trade, Osborne, J. B., Atlantic Monthly, XCIX, 159-70. 5 American Diplomacy, Lowell, F. C., Atlantic Monthly, XCVII, 1-7. 6 Six Years of Civil Service, Roosevelt, T., Scribner's Maga- zine, XVIII, 238-47. 7 Why Patronage in Office is Un-American, Lodge, H. C., The Century Magazine, XL, 837-41. CHAPTER XI THE FEDERAL JUDICIARY 49. TENURE OP OFFICE IN THE FEDERAL COURTS. Under the old Confederation there was no provision for a system of national courts. In creating such a system as a distinct branch of the government the framers of the Federal Constitution sought to make the judges who should compose it as independent of all out- side influences as was possible. They were to be appointed by the President and to hold their places during good behavior. The wis- dom of this latter provision is clearly demonstrated by Alexander Hamilton in the following paper taken from the Federalist: According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State constitutions, and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symp- tom of the rage for objection, which disorders their imagina- tions and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is cer- tainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince ; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power must perceive, that, in a government in which they 243 244 READINGS IN CIVIL GOVERNMENT are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the com- munity. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse ; no direc- tion either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judg- ment ; and must ultimately depend upon the aid of the execu- tive arm even for the efficacy of its judgments. . . . The complete independence of the courts of justice is pecul- iarly essential in a limited Constitution. By a limited Con- stitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. Some perplexity respecting the rights of the courts to pro- nounce legislative acts void, because contrary to the Consti- tution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discus- sion of the ground on which it rests cannot be unacceptable. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. THE FEDERAL JUDICIARY 245 No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal ; that the servant is above his master ; that the representatives of the people are superior to the people themselves ; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the con- struction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitu- tion is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascer- tain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitu- tion ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a supe- riority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their 246 READINGS IN CIVIL GOVERNMENT decisions by the fundamental laws, rather than by those which are not fundamental. . . . If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative en- croachments, this consideration will afford a strong argu- ment for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. . . . But it is not with a view to infractions of the Constitu- tion only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firm- ness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mis- chiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous inten- tion are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a cireu in- stance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister ex- pectations they may have disappointed, they must have com- manded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the THE FEDERAL JUDICIARY 247 foundations of public and private confidence, and to intro- duce in its stead universal distrust and distress. That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a tem- porary commission. Periodical appointments, however reg- ulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Execu- tive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a dis- position to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws. 50. THE CHARACTER OF THE GOOD JUDGE. Rufus Choate, the famous orator and advocate, was a firm be- liever in life tenure and selection by appointment as the best methods by which to secure competent and efficient judges. In supporting this principle before the Massachusetts Constitutional Convention in 1853, he thus describes the qualities which the ideal judge should possess : In the first place, he should be profoundly learned in all the learning of the law, and he must know how to use that learning. Will any one stand up here to deny this? In this day, boastful, glorious for its advancing popular, pro- fessional, scientific, and all education, will any one disgrace himself by doubting the necessity of deep and continued studies, and various and thorough attainments, to the bench ? He is to know, not merely the law which you make, and the legislature makes, not constitutional and statute law alone, but that other ampler, that boundless jurisprudence, 248 READINGS IN CIVIL GOVERNMENT the common law, which the successive generations of the State have silently built up; that old code of freedom which we brought with us in the Mayflower and Arabella, but which in the progress of centuries we have ameliorated and enriched, and adapted wisely to the necessities of a busy, prosperous, and wealthy community that he must know. And where to find it? In volumes which you must count by hundreds, by thousands; filling libraries; exact- ing long labors the labors of a lifetime, abstracted from business, from politics; but assisted by taking part in an active judicial administration; such labors as produced the wisdom and won the fame of Parsons and Marshall, and Kent and Story, and Holt and Mansfield. If your system of appointment and tenure does not present a motive, a help for such labors and such learning; if it discourages, if it disparages them, in so far it is a failure. In the next place, he must be a man, not merely upright, not merely honest and well-intentioned this of course but a man who will not respect persons in judgment. And does not every one here agree to this also? Dismissing, for a moment, all theories about the mode of appointing him, or the time for which he shall hold office, sure I am, we all demand, that as far as human virtue, assisted by the best contrivances of human wisdom, can attain to it, he shall not respect persons in judgment. He shall know nothing about the parties, everything about the case. He shall do everything for justice; nothing for himself; noth- ing for his friend; nothing for his patron; nothing for his sovereign. If on one side is the executive power and the legislature and the people the sources of his honors, the givers of his daily bread and on the other an individual nameless and odious, his eye is to see neither, great nor small; attending only to the "trepidations of the balance." If a law is passed by a unanimous legislature, clamored for by the general voice of the public, and a cause is before him on it, in which the whole community is on one side and an individual nameless or odious on the other, and he THE FEDERAL JUDICIARY 249 believes it to be against the Constitution, he must so declare it or there is no judge. If Athens comes there to demand that the cup of hemlock be put to the lips of the wisest of men ; and he believes that he has not corrupted the youth, nor omitted to worship the gods of the city, nor introduced new divinities of his own, he must deliver him, although the thunder light on the unterrified brow. This, Sir, expresses, by very general illustration, what I mean when I say I would have him no respecter of persons in judgment. How we are to find, and to keep such an one; by what motives; by what helps; whether by popular and frequent election, or by executive designation, and per- manence dependent on good conduct in office alone we are hereafter to inquire; but that we must have him that his price is above rubies that he is necessary, if justice, if security, if right are necessary for man all of you, from the East or "West, are, I am sure, unanimous. And finally, he must possess the perfect confidence of the community, that he bear not the sword in vain. To be honest, to be no respecter of persons, is not yet enough. He must be believed such. I should be glad so far to indulge an old-fashioned and cherished professional sentiment as to say, that I would have something of venerable and illus- trious attach to his character and function, in the judgment and feelings of the commonwealth. But if this should be thought a little above or behind the time, I do not fear that I subject myself to the ridicule of anyone, when I claim that he be a man towards whom the love and trust and affec- tionate admiration of the people should flow; not a man perching for a winter and summer in our court-houses, and then gone forever; but one to whose benevolent face, and bland and dignified manners, and firm administration of the whole learning of the law, we become accustomed; whom our eyes anxiously, not in vain, explore when we enter the temple of justice; towards whom our attachment and trust grow even with the growth of his own eminent reputation. . . . 250 READINGS IN CIVIL GOVERNMENT Give to the community such a judge, and I care little who makes the rest of the constitution, or what party ad- ministers it. It will be a free government, I know. Let us repose, secure, under the shade of a learned, impartial and trusted magistracy, and we need no more. And now, what system of promotion to office and what tenure of office is surest to produce such a judge? Is it executive appointment during good behavior, with liability, however, to be impeached for good cause, and to be re- moved by address of the legislature? or is it election by the people, or appointment by the executive for a limited term of years? To every system there are objections. To every system there are sound, or there are specious objections; objections of theory; objections of fact. Any man's ability is equal to finding, and exaggerating them. What is demanded of us is to compare the good and evil of the different systems, and select the best. Compare them by the test which I have proposed. See which will most certainly give you the judge you need, and adopt that. It may be cavilled at; even as freedom, as religion, as wholesome restraint, as liberty of speech, as the institution and the rights of property, may be cavilled at; but in its fruits, in its product, judged by a long succession of seasons, is its justification and its glory. 51. THE POWER OF THE COURTS TO DECLARE LAWS UNCONSTI- TUTIONAL. The highest power exercised by the courts in the United States is that of declaring legislative acts unconstitutional and therefore in- valid. The first instance of the exercise of this power by the Fed- eral Courts was in the famous case of Marbury vs. Madison de- cided in 1803. Chief Justice John Marshall delivered the opinion in this case and in doing so asserted the right of the court to pass on the validity of a law of Congress so positively and logically that his dictum has become firmly imbedded in our judicial practice. The question whether an act repugnant to the constitution can become the law of the land, is a question deeply inter- THE FEDERAL JUDICIARY 251 esting to the United States ; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamen- tal. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be per- manent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either- stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or for- gotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation com- mitted to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be con- tested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the con- stitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior paramount law, un- changeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. 252 READINGS IN CIVIL GOVERNMENT If the former part of the alternative be true, then a legis- lative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written constitu- tions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitu- tion, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Of, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must deter- mine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and THE FEDERAL JUDICIARY 253 the constitution is superior to any ordinary act of the legisla- ture, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the con- stitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is ex- pressly forbidden, such act, notwithstanding the express pro- hibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within nar- row limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written con- stitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection. The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises ? This is too extravagant to be maintained. In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? 254 READINGS IN CIVIL GOVERNMENT There are many other parts of the constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law? The constitution declares "that no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it, must the court condemn to death those victims whom the constitution endeavors to pre- serve? "No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the constitution is addressed espe- cially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a con- fession out of court, sufficient for conviction, must the con- stitutional principle yield to the legislative act? From these, and many other selections which might be made, it is apparent that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support. . . . Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, sup- posed to be essential to all written constitutions, that a law THE FEDERAL JUDICIARY 255 repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. 52. THE PROCESS AND EFFECT OF DECLARING LEGISLATIVE ACTS UNCONSTITUTIONAL. The power of the courts to decide as to the validity of legislative acts is one of the distinctive features of American constitutional law. The principles which guide the courts in exercising this power and the effect of a decision adverse to the validity of a particular law are clearly stated by Judge Emlin MeClain in the following selection: It is to be observed that this function of the courts is not the primary or the principal purpose of their creation and recognition as a department of government. Courts are created primarily to decide legal controversies; but in decid- ing such controversies it is necessary for them to determine what is the law as applicable to the particular case, and as incidental to the exercise of this function they may have to decide whether a statute or an executive act relied upon by one party or the other is valid, or whether, on the other hand, it is invalid because in excess of the power conferred upon the department which has attempted to act, or is in violation of some constitutional provision or limitation. It is a function of the law-making power to determine prospectively what shall be the law, and to express that deter- mination by adding to or modifying or repealing the exist- ing law by statutes taking effect from the time of their enactment. . . . The courts, on the other hand, decide cases submitted to them with reference to what the law was at the time the controversies to be determined arose, by which the rights of parties to such controversies are to be adjudged. Their principal concern is as to what is, or rather what has been, the law to the time of the decision, not what shall be the law for future cases. It is true that, having decided what the law is, the court will be likely in future cases to adhere to the views expressed 256 READINGS IN CIVIL GOVERNMENT in previous decisions, and the desirability of having the rules of law on which persons may act and rely stable and settled will incline the courts to adhere to their former decisions, which will be regarded as precedents in subsequent cases. But the act of the court in determining what the law is in a given case is not primarily for the purpose of ascertaining it for future cases, but in order that the case before it may be rightly decided. It is erroneous, there- fore, to speak generally of the judicial department as hav- ing power to interpret or declare the law as though it were especially created for the purpose of interpreting the con- stitution and the acts of the other departments of the govern- ment in order that the people shall be advised as to what they mean. It is assumed rather that the constitution and the law, both written and unwritten, are known, and that persons whose controversies come before the courts have acted with reference to the law as it existed and are bound to knowledge thereof; and the courts, therefore, on that basis determine only retrospectively what law applies in the settlement of controversies which have already arisen. Nevertheless, as a result of such determination, persons may in the future be guided and greatly assisted in following the law, by having reference to what has already been decided in previous cases. The preceding considerations lead to some other important conclusions as to the proper province of the courts, in pass- ing upon the constitutionality of statutes. First, it will always be borne in mind by a court that the legislative department, on whose authority the statute rests, is a co- drdinate branch with the judicial ; that there is no superiority as between them; that each is vested with power and dis- cretion within the scope prescribed for it by the constitution ; and therefore that an act of the legislative department is entitled to every presumption of correctness, and that to question its validity is the exercise of a very delicate and extraordinary power, to be resorted to only in the last ex- tremity and when the rights of the parties to the litigation THE FEDERAL JUDICIARY 257 are found necessarily to depend upon its construction. The courts then, instead of being zealous to interpret and deter- mine the validity of statutes with respect to their constitu- tionality, in order that the people may know and act accordingly, will discharge such duty with great reluctance and reserve, the importance of making the law clear for future cases being subordinate to that of leaving the legisla- tive department free in the exercise of its constitutional prerogative of law making. Moreover, the courts will enter- tain every presumption in favor of the validity of a statute called in question, and declare it to be invalid on constitu- tional grounds only where it is plainly and clearly in con- flict with the constitution. They will not pass upon such a question save in a case in which it is necessary to do so in order to adjudicate the real and substantial rights of the parties in that case; and they will avoid, if practicable, considering such a question except after full argument and a consultation in which all the judges of the court are present. Second, a court will avoid, if possible, setting up its own judgment as against the judgment of a co-ordinate branch of the government as to matters which are by the constitu- tion entrusted to the discretion of such co-ordinate branch. The diplomatic relations between this and foreign countries being exclusively within the control of the executive depart- ment, the determination by that department as to whether territory has been acquired from a foreign state so as to become a part of the United States will be conclusive on the courts, and they will not undertake to review the correctness or propriety of the determination. The legislative department having been vested with authority to levy taxes, the propriety of any particular tax as to its subject, amount, or the method of its collection; will not be questioned by the judiciary; but on the other hand, as private property rights are involved in the exaction of a tax, the courts will determine whether such exaction is within the scope of the taxing power, and whether the property is 258 READINGS IN CIVIL GOVERNMENT properly subject to taxation; and if a particular method of apportionment is directed by the constitution, the courts will say whether that method has been followed. Furthermore, as the two houses of Congress are made judges of the election and qualification of their respective members, and are author- ized to prescribe their rules and procedure, and punish their members for disorderly behavior by expulsion, no court will attempt to review or revise the action of either house in this respect, even though the question to be determined may in its nature be judicial. For instance, if a member should be expelled, no court could pass on the question whether the expelled member was guilty of the acts charged as a ground of expulsion. In other words, while the constitution is binding upon all branches of the government, the question whether it has been violated by the executive or legislative branch cannot be inquired into by the courts, except in a case of judicial cognizance, that is, a case coming within the jurisdiction which has been given to the courts by the constitution and the laws. It is to be assumed that the executive and legislative departments are as zealous in abiding by the con- stitution as are the courts, and that the requirements and limitations of the constitution will be carefully observed; and only when in the exercise of judicial power it becomes necessary to determine whether an executive or legislative act is valid will the courts enter into a consideration of the question whether the power granted in the constitution or the limitations imposed by it have been exceeded or infringed. Many questions of constitutional law, in the broad and proper sense of the term, can never come before the courts for final determination, because the action of the executive and legis- lative departments with reference thereto must, so far as any legal remedy is concerned, be conclusively presumed to be in accordance with the constitution. It is true that in Mas- sachusetts and a few other states the constitution authorizes the judicial department to give advisory opinions to the legis- lative and executive departments on application, but advisory THE FEDERAL JUDICIARY 259 opinions thus given have not the force of decisions and are not regarded as within the scope of judicial power. . . . The fact that the judicial department is limited to the determination of controversies properly arising in cases brought into the courts for adjudication, is to be carefully borne in mind in correctly understanding the result of a decision rendered by a court. Such a decision is conclusive as to the rights of the parties before the court, and also serves as a precedent which will have more or less weight in the determination of subsequent cases involving the same question. But the courts cannot repeal or annul a statute, nor dictate to the executive in any compulsory way what his action shall be. The effect of declaring, in a particular case, that a statute is unconstitutional is not to repeal the statute, but to determine in the case before the court that it will not be recognized as valid, and to furnish a precedent or authority for contending in similar cases where such a statute is brought in question, that it should not be recog- nized. The statute remains, nevertheless, on the statute books as an act of the legislative department, even though for the purpose for which it has been relied upon the court may have decided that it is not a part of the law of the land. The decision of the court is not that the statute shall thereafter be of no force and effect, but that it has never been a valid statute. While it may be proper that other depart- ments of the government shall yield great deference to the conclusions of the court on such a question, there is no method of compelling them to do so, and they must still be allowed to exercise their own discretion in such matter, sub- ject only to the presumption that if another case is presented to the judiciary department, involving the same question, the courts will adhere to the former decision. ADDITIONAL READINGS 1 The Organization of the Courts of the United States, Baldwin, S. E., The American Judiciary, 137-51. 260 READINGS IN CIVIL GOVERNMENT 2 The Working of the Courts, Bryce, J., American Common- wealth, I, 261-76. 3 Relation of the Judiciary to the Political Departments of the Government, Baldwin, S. E., The American Judi- ciary, 27-53. 4 The United States Supreme Court the Absolute Power, Pierce, P., Federal Usurpation, 197-237. 5 The Power to Declare Statutes Unconstitutional, Elliot, C. B., Political Science Quarterly, V, 22^58. 6 The Great Usurpation, Trickett, Wm., American Law Re- view, XL, 356-76. CHAPTER XII STATE ADMINISTRATION 53. THE DEVELOPMENT OF STATE CONSTITUTIONS. During the century and a quarter since the States declared their independence and formed governments of their own choice these governments have been subject to constant change until to-day they present a form quite different from that in which they were orig- inally cast. This development has been almost uniformly in the di- rection of enlarging the scope of the governor's authority and of limiting and checking that of the legislature. In the following se- lection Mr. James Bryce sketches the history of State Constitutions down to 1890 : * Three periods may be distinguished in the development of State Governments as set forth in the Constitutions, each period marked by an increase in the length and minute- ness of those instruments. The first period covers about thirty years from 1776 down- wards, and includes the earlier Constitutions of the original thirteen States, as well as of Kentucky, Vermont, Tennessee, and Ohio. Most of these Constitutions were framed under the impres- sions of the Revolutionary War. They manifest a dread of executive power and of military power, together with a dis- position to leave everything to the legislature, as being the authority directly springing from the people. The election of a State governor is in most States vested in the legislature. He is nominally assisted, but in reality checked, by a council not of his own choosing. He has not (except in Massa- i Selections 53, 55, 72 and 82 are reprinted from Bryce's American Commonwealth, by special permission of MacMillan and Company. 261 262 READINGS IN CIVIL GOVERNMENT chusetts) a veto on the acts of the legislature. He has not, like the royal governors of colonial days, the right of adjourning or dissolving it. The idea of giving power to the people directly has scarcely appeared, because the legis- lature is conceived as the natural and necessary organ of popular government, much as the House of Commons is in England. And hence many of these early Constitutions consist of little beyond an elaborate Bill of Rights and a comparatively simple outline of a frame of government, establishing a representative legislature, with a few executive officers and courts of justice carefully separated therefrom. The second period covers the first half of the present cen- tury down to the time when the intensity of the party struggles over slavery (1850-60) interrupted to some extent the natural processes of State development. It is a period of the democratization of all institutions, a democratization due not only to causes native to American soil, such as the supremacy in politics of the generation who had been boys during the Revolutionary War, but to the influence upon the generation which had then come to manhood of French republican ideas, an influence which declined after 1805 and ended with 1851, since which time French examples and ideas have counted for very little. Such provisions for the maintenance of religious institutions by the State as had continued to exist are now swept away. The principle becomes established (in the North and West) that constitu- tions must be directly enacted by popular vote. The choice of a governor is taken from the legislature to be given to the people. Property qualifications are abolished, and a suf- frage practically universal, except that it often excludes free persons of colour, is introduced. Even the judges are not spared. Many Constitutions shorten their term, and direct them to be chosen by popular vote. The State has emerged from the English conception of a community acting through a ruling legislature, for the legislature begins to be regarded as being only a body of agents exercising delegated and re- stricted powers, and obliged to recur to the sovereign people STATE ADMINISTRATION 263 (by asking for a- constitutional amendment) when it seeks to extend these powers in any particular direction. The increas- ing length of the constitutions during this half century shows how the range of the popular vote has extended, for these documents now contain a mass of ordinary law on matters which in the early days would have been left to the legisla- tures. In the third period, which begins from about the time of the Civil War, a slight reaction may be discerned, not against popular sovereignty, which is stronger than ever, but in the tendency to strengthen the executive and judicial depart- ments. The governor had begun to receive in the second pe- riod, and has now in every State but four, a veto on the acts of the legislature. His tenure of office has been generally lengthened; the restrictions on his re-eligibility generally re- moved. In many States the judges have been granted larger salaries, and their terms of office lengthened. Some constitu- tions have even transferred judicial appointments from the vote of the people to the executive. But the most notable change of all has been the narrowing of the competence of the legislature, and the fettering its action by complicated restric- tions. It may seem that to take powers away from the legisla- ture is to give them to the people, and therefore another step towards pure democracy. But in America this is not so, be- cause a legislature always yields to any popular clamour, how- ever transient, while direct legislation by the people involves delay. Such provisions are therefore conservative in their results, and are really checks imposed by the citizens upon themselves. . . . A few more observations on what the Constitutions disclose are needed to complete this brief sketch of the most instructive sources for the history of popular government which our cen- tury has produced documents whose clauses, while they at- tempt to solve the latest problems of democratic common- wealths, often recall the earliest efforts of our English fore- fathers to restrain the excesses of mediaeval tyranny. The Constitutions witness to a singular distrust by the peo- 264 READINGS IN CIVIL GOVERNMENT pie of its own agents and officers, not only of the legislatures but also of local authorities, as well rural as urban, whose powers of borrowing or undertaking public works are strictly limited. Even the judges are in some States restrained in their authority to commit for contempt of court, and three very recent constitutions contain severe provisions against abuse of his veto and appointing power by the governor, and against bribery offered to or by him. They witness also to a jealousy of the Federal government. By most constitutions a Federal official is made incapable, not only of State office, but of being a member of a State legisla- ture. These prohibitions are almost the only references to the National government to be found in the State constitu- tions, which so far as their terms go might belong to inde- pendent communities. They usually talk of corporations be- longing to other States as " foreign, " and sometimes try to impose special burdens on them. They show a wholesome anxiety to protect and safeguard private property in every way. The people's consciousness of sovereignty has not used the opportunity which the en- actment of a constitution gives to override private rights; there is rather a desire to secure such rights from any en- croachment by the legislature ; witness the frequent provisions against the taking of property without due compensation, and against the passing of private or personal statutes which could unfairly affect individuals. The only exceptions to this rule are to be found in the case of anything approaching a monop- oly, and in the case of wealthy corporations. But the "mo- nopolist" is regarded as the enemy of the ordinary citizen, whom he oppresses; and the corporation it is usually corpo- rations that are monopolists is deemed not -a private person at all, but a sort of irresponsible tyrant whose resources en- able him to overreach the law. Corporations are singled out for special taxation. Labour laws are enacted to apply to them only. A remarkable instance of this hostility to monopo- lies is to be found in the Constitution of Illinois of 1870, with its provisions anent grain elevators, warehouses, and railroads. STATE ADMINISTRATION 265 The newer constitutions of other Western States, such as Wisconsin and Texas, are not less instructive in this respect. Nor is it surprising that efforts should be made in some of the more recent instruments to strike at the combinations called " trusts." 54. RECENT TENDENCIES IN STATE GOVERNMENT. The last twenty years have witnessed a continuation of the changes in the relative powers of State governors and legislatures referred to in the preceding number. In addition other tendencies have appeared, such for instance as the provision for a larger par- ticipation in government by the people through the process of di- rect legislation. These recent tendencies are the subject of the fol- lowing article by Dr. W. F. Dodd, written in 1908: Because of the great mass of detail now introduced into most of our state constitutions and of the fact that they contain much matter of private law, frequent amendments have become necessary in order to adjust constitutional provisions to chang- ing conditions. The tendency to embody statutory matter in state constitutions continues, and the furthest point yet reached in this development is represented by the new consti- tution of Oklahoma. The adoption of new constitutions and the process of constitutional amendment have become active organs of legislation superior to the ordinary state legislatures. Extreme cases may easily be cited of provisions being in- serted in constitutions which might much better have been left to state legislation ; such, for example, as the provision of the Oklahoma constitution which prescribes the tests to be applied to determine the purity of kerosene oil, and a North Dakota amendment of 1904 changing the name of the state school for the deaf and dumb. It should be said, however, that the con- stitution recently adopted by the state of Michigan is an excep- tion to the general tendency in that it confines itself rather closely to matters which may properly be termed constitu- tional. For many years the processes of constitutional amendment 266 READINGS IN CIVIL GOVERNMENT have been growing simpler and easier. The increased com- plexity of constitutions makes frequent amendment necessary, and is forcing the simplification of the amending procedure. The amendment of state constitutions may now be accom- plished with little difficulty in most of the states, although the amending procedure is still extremely cumbersome in some states, as, for example, in New Hampshire and Illinois. . . . In the state governments there has been a continued devel- opment toward the increase of the governor's power and the diminution of the power of the state legislature. Although the state executive power is badly disintegrated there would seem to be a slight tendency to increase the governor's admin- istrative authority, both by statute and by constitutional pro- visions. The Virginia constitution of 1902 authorizes the gov- ernor to suspend executive officers of the state during the re- cess of the general assembly, the general assembly itself to de- cide at its next meeting whether the suspended officer shall be restored or removed. The governor of Oklahoma is given power to require information in writing under oath from all officers and commissioners of the state and from all officers of state institutions. By the Alabama constitution of 1901 and by the Michigan constitution of 1908 the governors are given increased power to require information in writing from the executive and administrative officers of these states. But it is with reference to legislation that the increase of the governor's power is most apparent. Ohio by an amendment of 1903 conferred the veto power upon her governor, leaving only two states Rhode Island and North Carolina which have no form of executive veto upon state legislation. Vir- ginia in 1902, Ohio in 1903, Kansas in 1904, Oklahoma in 1907, and Michigan in 1908, have conferred upon their governors the additional power to veto separate items in appropriation bills; there are now thirty-three states which confer this power upon their governors. With reference to the making of appro- priations Alabama also increases still further the executive power by authorizing the governor, auditor, and attorney-gen- eral of that state to prepare a general revenue bill, before each STATE ADMINISTRATION 267 regular session of the legislature, to be submitted to the legisla^ ture for its information. Ohio by amendment of 1903 confers upon its governor power to veto any section or sections of a bill presented to him and to approve other portions of the bill so presented, following in this respect the Washington constitution of 1889. The Ala- bama constitution of 1901 permits the governor to propose an amendment to remedy any feature of a bill which he does not approve, and if his proposed amendment is not adopted by the two houses, the bill to become law must be passed over the executive veto. The Virginia constitution of 1902 also gives the governor power to recommend the amendment of a bill if he approves its general purpose, but disapproves any part thereof, and in this state the bill if amended by the two houses or if they fail to amend it in accordance with the governor's recommendation, is again returned to the governor for his ap- proval or disapproval. Although the state governors in no case possess more than a limited veto, subject to be overcome by subsequent legislative action, it should nevertheless be borne in mind that appro- priation bills and other important acts are usually passed dur- ing the last days of legislative sessions when repassage over executive disapproval is practically impossible; the governor thus in many instances exercises what is equivalent to an ab- solute veto. A constitutional amendment adopted by Califor- nia in 1908 increases from ten to thirty days the time within which the governor may approve bills after the adjournment of the legislature, and is clearly intended to give him more time to consider legislation which must fail unless he does not ap- prove it. Wisconsin in 1908 increased from three to six days the time within which the governor must disapprove a measure in order to prevent its enactment, evidently for the purpose of giving him more time to consider legislation. The constitu- tional provisions extending the veto power have, it would seem, the very definite purposes of placing upon state governors a larger share of the responsibility for state legislative activities. The introduction of the initiative and referendum for state 268 READINGS IN CIVIL GOVERNMENT laws will, however, weaken the governor's power over legisla- tion. The constitutional provisions of South Dakota, Oregon, Montana, Oklahoma, and Missouri, and the proposed amend- ment in North Dakota, expressly provide that the veto power of the governor shall not extend to measures referred to a vote of the people; in Maine definite provision is made by which the governor's veto of measures initiated by petition may be overcome by the use of the referendum. The referen- dum in Maine, Oregon and Oklahoma, and the proposed refer- endum in North Dakota extend to sections or to parts of bills as well as to entire measures, and thus give to the people a revisory power over state legislation broader than that con- ferred upon the governors in any states except Washington and Ohio. Nevada by its amendment for the compulsory referendum, and Michigan in introducing the optional referen- dum apply the referenda only to laws enacted by the regular legislative organs of these states, and thus preserve the gov- ernor 's influence over legislation. The first state constitutions conferred almost the whole power of government upon the legislatures, but since the end of the American Revolution there has been a fairly constant movement away from legislative supremacy in the States. The distrust of legislatures has been to a large extent responsible for the extension of the powers of the other departments of government, and for the numerous specific limitations which have been placed upon the exercise of the legislative power. The diminution of legislative power has been brought about (1) by the assumption of legislative functions by constitu- tional conventions, and by the adoption of legislation through constitutional amendment; (2) by the extension of popular legislation through the adoption of the initiative, referendum, and recall; these institutions will almost necessarily reduce the already slight responsibility of state legislature; (3) by the extension of the governor's share in legislation, so that a large part of the responsibility may be fixed upon him for legislation that is enacted; (4) by the imposition of positive restrictions upon the power of the legislature, by the granting STATE ADMINISTRATION 269 to cities of control over their own governmental affairs, and by making legislative sessions less and less frequent. Mississippi in 1890 took the first step toward quadrennial sessions by providing for one regular session of the legislature every four years, and for a special session in the interval be- tween regular sessions, so as to make the sessions biennial, but with a definite limitation as to the subjects to be considered at the special session and as to its duration. Alabama in 1901 provided specifically for quadrennial sessions, and is the first state to provide that its legislature shall meet at such infre- quent intervals. In 1902 a proposed constitutional amend- ment for regular biennial sessions was defeated in Mississippi ; and in 1908 a proposed amendment for a return to biennial sessions was defeated in Alabama. The movement for less fre- quent legislative sessions will hardly turn backward, and the need for frequent sessions is disappearing with the enactment of ordinary legislation by constitutional amendment and re- vision, and with the adoption of the initiative and referendum as in Oregon where laws may be enacted without the participa- tion of the legislature. The restrictions upon local and special legislation have been brought about to a large extent by the abuse of legislative power, and will probably prove an advantage to the legisla- tures themselves by confining their attention to general meas- ures, whereas legislatures have in the past devoted a large part of their time to local problems which might much better have been left to the local governments. Alabama, Virginia, and Oklahoma specify in detail a number of subjects upon which local, special, and private legislation may not be enacted ; and such special legislation as may be enacted is subject to rules of procedure intended to prevent abuse. Special acts for the incorporation of cities have been forbidden in Alabama, Okla- homa, and Michigan. Virginia permits special legislation re- lating to the organization of cities and towns by a vote of two- thirds of all members elected to each house of the legislature. The Virginia constitution, besides forbidding special legisla- tion upon a number of specified subjects, also requires that in 270 READINGS IN CIVIL GOVERNMENT other cases general laws be enacted whenever they may be made applicable, but expressly leaves it to the legislative dis- cretion as to when special laws are needed, and is therefore not really a limitation upon legislative power. Oklahoma has a provision similar to that of Virginia, but does not expressly provide that the legislature shall have discretion to determine whether to act by special or general law. Alabama forbids the enactment of a special, private, or local law in any case already provided for by a general law, and makes the determination of this matter a judicial rather than a legislative question. The constitutional provision that "in all cases where a gen- eral law can be made applicable no special law shall be en- acted" was held in Kansas to mean that the legislature was vested with discretion to determine when a general law could not be made applicable ; it thus rested with the good faith of the legislature as to whether this constitutional provision should be observed ; an amendment to the Kansas constitution in 1906 leaves to the courts the question whether a general law may be made applicable. The Michigan constitution of 1908 does not enumerate in detail the subjects upon which special laws may not be passed, but provides that the legislature shall pass no local or special act where a general act may be made applicable, and the question whether a general act could have been made applicable is made a question not for the legislative determination, but for the decision of the counts. In Michi- gan local and special acts do not take effect until after they have been approved by a majority of the electors voting thereon in the district to be affected by such acts. . . . In concluding the discussion of state constitutional develop- ment during the past eight years, the most important tenden- cies may be summarized as follows: (1) The disappearance of the distinction in form of enactment between statutes and constitutional amendments in the states which have adopted the initiative and referendum. (2) The increase of popular control over state legislation through the spread of the initia- tive and referendum, and through the enactment of statutory matter by constitutional amendment. (3) The increase of STATE ADMINISTRATION 271 popular control in towns and cities through the granting to cities of power to frame their own charters, and through re- strictions placed upon state legislatures as to local and special legislation ; and through the introduction of the local initiative, referendum, and recall. (4) The slight increase in the power of the governor over the state administration, and the great increase of the governor's power over legislation. (5) The continued diminution of the power of state legislatures, through the adoption of methods of popular legislation, through express prohibitions upon legislatures with reference to special and local legislation, and through the increased power granted to the governor over legislation. (6) The ef- forts to subject public service corporations to more adequate control. 55. THE STATE GOVERNOR. Recent changes in State Constitutions have considerably enlarged the duties and powers of the governor. What the position of the governor was twenty years ago before these changes took place, and still is to a large degree in many States, is described by Mr. James Bryee in the following extract: Compare the Federal President with the State Governor. The former has foreign policy to deal with, the latter has none. The former has a vast patronage, the latter has scarcely any. The former has the command of the army and navy, the latter has only the militia, insignificant in ordinary times. The former has a postoffice, but there is no State postal-service. Little remains to the Governor except his veto, which is not so much an executive as a legislative function ; the duty of main- taining order, which becomes important only when insurrec- tion or riot breaks out; and the almost mechanical function of representing the State for various matters of routine, such as demanding from other States the extradition of offenders, issuing writs for the election of congressmen or of the State legislature, receiving the reports of the various State officials. 272 READINGS IN CIVIL GOVERNMENT These officials, even the highest of them who correspond to the cabinet ministers in the National government, are either mere clerks, performing work, such as that of receiving and paying out State moneys, strictly defined by statute, and usually checked by other officials, or else are in the nature of commissioners . of inquiry, who may inspect and report, but can take no independent action of importance. Policy does not lie within their province; even in executive details their discretion is confined within narrow limits. They have, no doubt, from the governor downwards, opportunities for job- bing and malversation; but even the less scrupulous are re- strained from using these opportunities by the fear of some investigating committee of the legislature, with possible im- peachment or criminal prosecution as a consequence of its report. Holding for terms which seldom exceed two or three years, they feel the insecurity of their position ; but the desire to earn re-election by the able and conscientious discharge or their functions, is a less effective motive than it would be if the practice of re-electing competent men were more frequent. Unfortunately here, as in Congress, the tradition of many States is, that when a man has enjoyed an office, however well he may have served the public, some one else ought to have the next turn. The reason, therefore, why the system I have sketched rubs along in the several States is, that the executive has little to do, and comparatively small sums to handle. The further reason why it has so little to do is two-fold. Local government is so fully developed that many functions, which in Europe would devolve on a central authority, are in all American States left to the county, or the city, or the township, or the school district. These minor divisions narrow the province of the State, just as the State narrows the province of the central government. And the other reason is, that legislation has in the several States pushed itself to the farthest limits, and so encroached on subjects which European legislatures would leave to the executive, that executive discretion is extinct, and the officers are the mere hands of the legislative brain, which STATE ADMINISTRATION 273 directs them by statutes drawn with extreme minuteness, care- fully specifies the purposes to which each money grant is to be applied, and supervises them by inquisitorial committees. It is a natural consequence of these arrangements that State office carries little either of dignity or of power. A place is valued chiefly for its salary, or for such opportunities of obliging friends or securing commissions on contracts as it may present though in the greatest States the post of attorney- general or comptroller is often sought by able men. A State Governor, however, is not yet a nonentity. In more than one State a sort of perfume from the old days lingers round the office, as in Massachusetts, where the traditions of last century were renewed by the eminent man who occupied the chair of the commonwealth during the War of Secession and did much to stimulate and direct the patriotism of its citizens. Though no one would nowadays, like Mr. Jay in 1795, ex- change the chief justiceship of the United States for the gov- ernorship of his State, a Cabinet minister will sometimes, as Mr. Folger did a few years ago, seek to quit his post in order to obtain the governorship of a great State like New York. In all States, the Governor, as the highest official and the depositary of State -authority, may at any moment become the pivot on whose action public order turns. In the Pennsyl- vania riots of 1877 it was the accidental absence of the Gov- ernor on a tour in the "West which enabled the forces of sedi- tion to gather strength. During the more recent disturbances which large strikes, especially among railway employes, have caused in the West, the prompt action of a Governor has pre- served or restored tranquillity in more than one State ; while the indecision of the Governor of an adjoining one has em- boldened strikers to stop traffic, or to molest workmen who had been hired to replace them. So in a commercial crisis, like that which swept over the Union in 1837, when the citizens are panic-stricken and the legislature hesitates, much may depend on the initiative of the Governor, to whom the eyes of the people naturally turn. His right of suggesting legisla- tive remedies, usually neglected, then becomes significant, and 18 274 READINGS IN CIVIL GOVERNMENT may abridge or increase the difficulties of the community. It is not, however, as an executive magistrate that a State Governor usually makes or mars a reputation, but in his quasi- legislative capacity of agreeing to or vetoing bills passed by the legislature. The merit of a Governor is usually tested by the number and the boldness of his vetoes; and a European enjoys, as I did in the State of New York in 1870, the odd spectacle of a Governor appealing to the people for re-election on the ground that he had defeated in many and important instances the will of their representatives solemnly expressed in the votes of both Houses. That such appeals should be made and often made successfully, is due not only to the dis- trust which the people entertain of their legislatures, but also, to their honour be it said, to the respect of the people for cour- age. They like above all things a strong man ; just as English constituencies prefer a candidate who refuses to swallow pledges or be dictated to by cliques. This view of the Governor as a check on the legislature explains why the Americans think it rather a gain than an injury to the State that he should belong to the party which is for the time being in a minority in the legislature. How the phenomenon occurs may be seen by noting the different meth- ods of choice employed. The Governor is chosen by a mass vote of all citizens over the State. The representatives are chosen by the same voters, but in districts. Thus one party may have a majority on a gross poll of the whole State, but may find itself in a minority in the larger number of electoral districts. This happens in New York State, on an average, in two years out of every three. The mass vote shows a demo- cratic majority, because the Democrats are overwhelmingly strong in New York City, and some other great centres of population. But in the rural districts and most of the smaller towns the Republican party commands a majority sufficient to enable them to carry most districts. Hence, while the Gov- ernor is usually a Democrat, the legislature is often Republi- can. Little trouble need be feared from the opposition of the two powers, because such issues as divide the national parties STATE ADMINISTRATION 275 have scarce any bearing on State affairs. Some good may be hoped, because a Governor of the other party is more likely to check or show up the misdeeds of a hostile Senate or As- sembly than one who, belonging to the group of men which guides the legislature, has a motive for working with them, and may expect to share any gains they can amass. 56. PUBLIC SERVICE COMMISSIONS. Among the problems of State government which have arisen dur- ing the last quarter of a century, none have pressed more constantly and prominently for settlement than that having to do with the proper regulation of public service corporations. Ever since the de- velopment of the newer forms of rapid transit, cheap transportation, and improved methods of lighting, the corporations which have fur- nished these services have been a thorn in the side of good govern- ment, both State and municipal. In 1906, the State of New York took a long step toward the settlement of this question by the pas- sage of a public service commission law. Similar laws have been passed recently in other States, notably Wisconsin, and still other States have such measure under consideration. In the following selection, Mr. T. M. Osborne, a member of the New York Commis- sion, appointed by Governor Hughes, referring to the law of that State, discusses the relation of public service corporations to the State in general: [1908]. To call this law a piece of radical legislation is to speak mildly ; it seems to mark an epoch in the history of New York State ; for the corporations affected by the stringent provisions of the law are among those upon which the whole structure of our present business system rests. Without the railroads modern commerce would be impossible ; without the street rail- roads our cities could not spread their vast populations out into their ever-growing suburbs, and social conditions would be completely altered ; gas and electricity are not merely essen- tial to our comfort, they are necessary to the existing order all of these public utilities are vital elements in the lives of every one of us, and a law which compels such a complete re- adjustment of their relations to the state on the one side and 276 READINGS IN CIVIL GOVERNMENT the public on the other is not merely radical, it is revolu- tionary. . . . When our great modern public utilities first came into being, they were not recognized as infant monopolies. When a man wished to build a railroad he was regarded only as a daring adventurer who was about to start a new and superior line of coaches on a strange private highway merely a new element of competition. It was the same with a gas company, gas being at first only a new-fangled light trying to prove its doubtful superiority over lamps and candles. Electricity was in its turn only a competitor of gas ; a street-car line a competi- tor of the more expensive cab company ; an interurban trolley a competitor of the railway. All these were merely new and comparative conveniences which science was putting within our reach, which we could trust private ownership to develop and which competition would regulate. The ordinary Ameri- can merchant or manufacturer, intent upon his own business and satisfied if he was making it pay, was also satisfied if he was getting from railroad, express company, telegraph, or telephone the service that his own particular business re- quired; and he was little inclined to question the right of in- vestors, who were bringing to him the business advantage of a very useful public service, to do what he himself was doing make as much money as possible on the investment. And while merchants and manufacturers were thus absorbed and the general public indifferent, what was originally a mere com- petitive public convenience was fast becoming a public utility ; and then, before we realized it, had become an absolute public necessity. We suddenly woke to find the business world strug- gling to readjust itself to new and strange conditions to the pressure of brutal bigness ; enormous railway systems, gigantic mergers, world-wide trusts, accumulators of fabulous millions ; the vast scale of the operations seemed in itself terrify- ing. . . . If it has taken us a long time to realize that public-service corporations are in their nature monopolistic, it is also taking us a long time to get over the idea that the safeguard of the STATE ADMINISTKATION 277 public is competition. Therefore, legislatures have chartered rival railroads and common councils have granted franchises to rival trolley, gas and electric companies; only to find that almost inevitably after a brief period of cut-throat competi- tion, with threatened failure to both companies, there was a consolidation, over-capitalization and relatively, if not actu- ally, higher charges ; and thus for the poor consumer the last state was worse than the first. In New York we seem at last to have waked up to the fact that in these public utilities there not only never has been any genuine competition, but from the nature of the case there never could be ; we are also learning that if justice is to be done to the public as well as to the corporation to the buyer as well as to the seller something else must be substituted in place of competition, and that something we are now to try in the shape of state regulation. The policy of state interference in any business is not one that we naturally take kindly to in this country ; and we have certainly not been hasty in trying it in New York State. So long ago as 1879, the Hepburn Committee investigation pointed out some of the evils of rebates and other railway practices as clearly as has ever been done ; yet it was 1906 be- fore the legislature took any effective action in regard to the matter ; and our municipalities as well as the state have been very slow to exert their powers. Of course, opinions will con- tinue to differ as to the advisability of state interference ; but in the judgment of those who read best the trend of the public mind, the time has gone by when there can be much dispute over the main contention; the only question is how far the state shall go. For the exact point where private action may best end, and the community itself should take hold, has cer- tainly not been discovered yet ; nor is it likely ever to be set- tled, for social conditions shift quite as rapidly as social ex- periments are made; and where can we draw the dividing line? Some lawyers will tell us that there is no dividing line in this particular matter, that there is no essential difference 278 READINGS IN CIVIL GOVERNMENT between a public-service corporation and any other, and that it is simply a question of public policy as to what business the state shall undertake to regulate, and what it shall leave with- out interference. Others will say that however hard it is to draw a dividing line, yet there is certain territory which is quite obviously on one side of the line, wherever the line may be, and certain territory quite as obviously on the other. Also it seems to be true that a certain business may stand on one side of the line in one generation and occupy the other side in the next. For many centuries it was public policy to subject the innkeeper to stringent regulation in the public interest; but with the growth of modern conditions it has ceased to be necessary, and a modern hotel company can hardly be classed as a public-service corporation. On the other hand, when a virtual monopoly in the supply of some necessity of life has come into existence, that business certainly is drifting over the line into territory where some sort of public regulation seems inevitable. All the businesses which are placed under the jurisdiction and supervision of the New York Public Service Commission are, more or less, monopolies depending upon some form of public grant or franchise. Not only are our railways great state highways, but the companies that own them own also the means of traversing them and of transporting goods along them. Our street railways occupy the public thoroughfares under exclusive grants from municipalities. The gas com- panies must get permission from the city to dig up the public streets, and electric-light companies to erect their poles. Ex- press, freight-line, and sleeping-car companies only supple- ment the work of the railway. Not one would be able to exist except for the public grant which is its foundation ; it is there- fore to the state that we must now turn for relief against the power of the monopolies which have been allowed to rise upon that foundation. When we come to a consideration of these franchises the first thing we find is, that, although in most cases the corpora- tion had paid nothing to the state or municipality for the fran- STATE ADMINISTRATION 279 chise, yet no sooner has the franchise been secured than it has been capitalized, often at an enormously inflated valuation, and the resulting securities have been marketed in the same way as those for which good solid cash has been paid. Now, as a matter of fact, the value of a franchise is very fluctuating a thing impossible to fix. The franchise of a non- existent railroad is of no inherent value; on the other hand, the value of the same franchise, after fifty years ' development of the road and growth of the communities about it, may almost exceed imagination ; but since the state has claimed the right to regulate rates, thus demolishing the theory that the railroad conducts a private business, the value of every rail- road franchise in the state as a basis for an issue of securities is very materially diminished if not obliterated. If the franchise is something of value, the state should cer- tainly not give it away ; if it is of no value, then the corporation should not capitalize it ; but to secure it for nothing and then capitalize it, is "special privilege" with a vengeance. The worst of the matter, however, is this, that when the corpora- tion proceeded to capitalize the franchise, upon the theory that it represented an asset upon which returns in the shape of dividends should be paid the same as if it were money in- vested in the enterprise the corporation was on the one hand receiving from the state a gift of more or less value, and on the other forcing the state to pay perpetual tribute upon the very thing it had given away to the tune of many times its actual value when the promoters were clever enough to "dis- count the future" in their issues of stock. When you come to dissect the matter and look it over coolly it does seem as if this were on the whole the most skillful confidence game which has ever been worked on the public; for the experienced financier after capitalizing his franchise, could unload the wa- tered securities on the "widow and orphan" and place the resulting cash in "gilt-edged" investments far removed from inquisitive legislators and public-service commissions. This is not saying and let this point be made quite clear that there have not been many noble and high-minded men 280 READINGS IN CIVIL GOVERNMENT connected with our public-service corporations; that the de- velopment of public utilities has not been of immense value to the community ; nor that they have not often been conducted with the highest motives of philanthropic enterprise. But it is an assertion that the theory underlying the treatment of the franchise was wrong and the system built upon it was bad; and that the time has now come to open our eyes and look facts squarely in the face. When we do so, we find that the right of the legislature of state or city to give away a franchise in perpetuity cannot be successfully defended. . . . A few words in closing as to the practical operation of the law in New York. The Commissions have been in existence only nine months and that is a short time for a revolution to be consummated; but already experience has shown the immense value of the law. Merchants and manufacturers have a powerful tribunal before which they can plead for justice and efficiency ; any individual with a well-grounded complaint against a corporation can have it brought to its attention by the Commission far more forcibly than he himself can bring it ; the issues of stocks and bonds by these corporations are for the first time subjected to rigid scrutiny, and it is safe to say that very little water will leak into such securities in the fu- ture in every way the rights and interests of the public are being safeguarded as never before, and the public is becoming aware of the fact. For the first time in their history these great corporations realize fully that there is a higher power above them a power to which the public can now appeal; they have been shorn of their ability to dispense life or death to businesses, to tyrannize over individuals, or to ignore the interests of the public for above them is the state, demand- ing justice and fair treatment for every one of its citizens and enabled to enforce its demands. It is only fair to add that on their part the corporations have shown both good sense and good temper in accepting the law graciously, and doing all in their power thus far in carry- ing out its provisions and the orders and requests of the Com- mission. Many a complaint never reaches the Commission; STATE ADMINISTRATION 281 the complaint is remedied by the corporation as soon as it is made known. In truth, the wiser among the corporation man- agers see plainly that the law will be their best defense against dangerous legislation ; that the Commission will stand as a bar- rier against injustice to the corporations on-the one hand, while it affords relief to the public against injustice on the other. It will lead to a safer and better condition of things all around the public will see that its rights are safeguarded, and demagogic appeals will lose their force and effectiveness; the corporations will be protected against destructive competition and blackmail, and assured of a fair return on honest invest- ment ; hence should result a return of public confidence in the securities of the corporations which ought in turn to be as good and conservative investments as any municipal bonds. There will be two classes of people, but I think only two who will suffer from the law those among the capitalists and pro- moters who are too greedy to be content with their fair share, who wish to reap where they have not sown; and the dema- gogues and agitators who will feel themselves cheated out of their best weapons of attack. But if both these classes could be put permanently out of business the world would be duly grateful. ADDITIONAL READINGS 1 The State Governor, Bryce, J., American Commonwealth, I, 531-4. 2 Appointment and Removal, Finley and Sanderson, The American Executive, 93-104. 3 State Administration in New York, Fairlie, J. A., Political Science Quarterly, XV, 50-74. 4 Public Service Commissions, Hatton, W. H., Osborne, T. M., and Hudnall, G. B., Proceedings of the American Political Science Association, IV, 287-323. 5 The Executive Power, Its Unity or Division, Finley and Sanderson, The American Executive, 29-47. 6 The Veto and Approval of Bills, Ibid., 72-82. 7 Townships in the Central States, Fairlie, J. A., Local Gov- ernment, 164-85. 8 The County, Ibid., 57-74. CHAPTER XIII STATE LEGISLATION 57. THE DEFECTS OP STATE LEGISLATION. The present tendency in State government is to limit the power of the legislature by placing restrictions upon its scope of authority in the State constitution and by enlarging the legislative and jul- ministrative powers of the governor. This has been due in no small degree to the exceedingly poor quality of the legislative prod- uct. In fact it is hardly too much to say, however unfortunate the circumstance may be, that the people have come to distrust their legislatures. In the following extract Professor Paul Reinsch points out some of the salient defects of State legislation : The excessive number of legislative enactments annually produced in the United States has been the subject of much severe comment; yet, when the organization of legislative bodies is considered, this over-activity seems but natural. All surrounding conditions are favorable to it; democracies are impatient of delays and eager for action; they desire to see things accomplished; moreover, they have not lost the early optimism with respect to the efficacy of legislative remedies. The individual legislator feels that his services will not be duly appreciated should he confine his activities solely to a careful weighing of proposed legislation and a critical atti- tude toward the projects of his associates. Some positive ac- tion will be demanded of him; even if he does not put his name to some piece of general legislation, there will be a large number of local interests in his constituency which must be looked after. As a result of these conditions, the amount of legislation produced in the United States in the alternate 282 STATE LEGISLATION 283 years, when the larger number of legislatures meet, is as- tounding in itself, and, when compared with the legislation of other civilized states, it indicates a crudeness of the legislative function, a lack of careful consideration, which are alarming. The number of legislative enactments passed in the states in a single year has exceeded fourteen thousand, covering in printed form some twenty to twenty-five thousand pages. Dur- ing the five years from 1899 to 1904 the total number of acts passed by American legislatures was 45,552. The political and social service which in our own system required this flood of enactment was in the principal European states performed by a few hundred statutes. Of these 45,552 enactments, 16,320 were public or general laws, while the remainder were special and local. . . . It is the prominence and the great amount of private and local legislation which constitutes the chief blemish of the American system. As we have already seen, the attempt has been made to cut down the amount of private legislation by specific and general constitutional prohibitions; and while some relief has resulted from this method, it has on the other hand led to the frequent use of shifty practices by which local legislation is given the form of general law, and thus, in addition to its inherent harmf ulness, has assisted in unsettling the stability of the legal system. The volume of legislation varies in direct proportion to the amount of special and local legislation passed. Thus in 1903, the state where legislation was most prolific was North Carolina, whose constitution con- tains practically no restrictions on local or private legislation, and whose governor possesses no veto power. The states in which measures prohibitory or restrictive of legislation have been taken, have as a result perceptibly lessened their legis- lative overflow. Alabama 's radical move in increasing the in- terval between regular sessions of the legislature to four years, was brought about by a very cloudburst of local legislation. The sessions of 1891 and 1901, passed approximately one law of general character to every eleven of private, local, or spe- cial application. In the latter session, out of a total of 1,132 284 READINGS IN CIVIL GOVERNMENT measures poured out from the legislative mill, only about 90 were general in nature. . . . In commonwealths, as in the national Congress, the worst phase of the localizing legislation appears not in the flood of local and special bills, but in the defeating, embarrassing, and mutilating of general laws in order to please a special interest. In the first place, the very volume of local measures with their peculiar importance to the individual legislator, subordinates vital interests to these special petty arrangements. As a result of this condition, the measures of most far-reaching impor- tance are crowded to one side, and receive passage perhaps, but not wise and concentrated attention. In its extreme, the lo- calizing tendency leads to a system of group representation. The liberum veto of senatorial unanimous consent finds a not distant analogy in the state legislator's frequent ability to de-' feat a measure objected to by the interests of his locality. The organs of local government themselves are the greatest suffer- ers from the excess of special legislation. The function of county or municipal home-rule is in some cases atrophied, and in every instance mutilated, by the constant interference of the state authority. Measures that favor one locality usually do so at the expense of sister communities. A factor which in- creases the likelihood of favorable action upon proposals for local legislation is the quite usual practice of referring such bills to the delegation from the locality whose interests are di- rectly affected by the measure in question. Matters like these are very rarely made subjects of party action, and by mutual arrangement meet with little or no opposition. The total prohibition of private and local legislation would not be feasible. The power to make such enactments must be lodged somewhere; and if extreme prohibition should be re- placed upon the legislature, the circumvention of the consti- tutional law would only be increased. Other methods of deal- ing with this problem are therefore at present favored by the men most conversant with the situation. The New Jersey con- stitution of 1876 provided that the legislature "shall not pass any act regulating the internal affairs of towns and coun- STATE LEGISLATION 285 ties," leaving this to the local boards. The result of this policy has been gratifying. While in the year preceding 1876 the average number of local laws passed by the legislature was over 300, in the years from 1876 to 1905 it stood at an incon- siderable total per year. A commission of the New York leg- islature in 1896, which had made a careful investigation of the defects in legislative methods, fixed upon private and local legislation as a chief source of abuse. It pointed to the Eng- lish system of private bill procedure as a model. Though for the time being this standard is unfortunately not achievable in the United States on account of special conditions, the commis- sion recommended some modifications of procedure which in principle are a part of the English system. Thus it would require measures dealing with local and special interests to be filed some time before presentation in the legislature, notice to be given to those likely to be affected by their operation, and counter-petitions to be received from adverse interests. In a number of states notice of certain private bills is already required by constitutional provision, by enactment, or by the rules of legislative procedure. Another suggestion of the commission is that private and local bills be placed upon a separate calendar, and that the expense of such legislation be borne by the parties interested. It is not surprising that under prevailing conditions the legislative product has lost in quality what it has gained in amount. When it has become physically impossible for a legislator to give a careful reading to all the legislative bills proposed, even should he use the entire working time of the session, it is of course hopeless to expect the due consideration, weighing, and sifting of all the measures. Instead of fulfilling the ideal of rationally and thoroughly considering all pro- posed legislation, the work of the legislator ordinarily re- solves itself to seeing that his own bills may receive a fair consideration, and to making such arrangements with other members that by mutual assistance their respective measures may have some chance of passage. In such arrangements the merits of individual bills are a minor consideration, the princi- 286 READINGS IN CIVIL GOVERNMENT pal point being to ascertain what members are for the pro- posed measure, and what they are able to do for other mem- bers in return for the assistance of the latter. It is therefore not surprising that our legislation should in general be hap- hazard, inconsistent, and often absolutely incompatible, and that there should be absent from it the effective correlation of new measures with the existing body of the law. Many statutes are intolerably confused and contradictory on account of the lack of logical acumen on the part of the framers, or on account of the use of that convoluted verbiage which has become the bane of legal pleading in so many states. Enactments are overloaded with detailed regulations of mat- ters which could much better be left to the executive agencies. They are often filled with repetitions and specifications prob- ably designed to safeguard the public, but, on account of their technical and involved nature, these render the legislative product obscure and full of passages which necessitate further legal interpretation. Sometimes the slipshod methods of the clerical employes are responsible for the uncertainty of stat- utes. Thus in the McKinley act the sections relating to the tobacco rebate were omitted, though Congress had passed them, and the President actually signed a different bill from the one that had passed Congress. In Alabama when certain important words had thus been omitted from a statute, the governor, after the adjournment of the legislature, summoned the committee chairman and inserted the phrase in the en- grossed copy. The whole process of engrossing is an anti- quated method which has profitably been displaced in Indiana by having the bills, as amended for a third reading, printed, so that mistakes can be readily discovered by the legislators upon examination before final passage. The principal source of confusion in the statute law is the practice of amendment without due regard to the new relations with other portions of the law, created by such amendments ; or the process of implied amendment by simply passing a measure contradictory to former legislation, with- out any serious attempt to bring the older and the newer STATE LEGISLATION 287 law into harmony with each other and definitely to super- sede a portion of the older law by the new enactment. Mr. Bishop in his "Statutory Crimes" has forcibly described and characterized this practice in the following language: "Some of the greatest difficulties occur where enactment has been piled on enactment where nothing is in terms repealed, but this year a statute is added to what was written last year, and so from year to year and while the later law plainly repeals in part the prior, by construction, it as plainly does not repeal the whole; yet, where the repeal begins and Avhere it ends, it is difficult to tell." Congress has often amended laws that were no longer in force, hav- ing been repealed before, or it has passed amendments en- tirely overlooking former amendments to the same statute. Laws already existing are frequently overlooked by the legislators and are re-enacted in more or less modified form. The confusion in the statute law of many states is even worse than in the federal law. The canal legislation of New York presents a labyrinth of almost hopeless and irra- tional intricacy. Year after year laws were passed in utter disregard of former enactments, and the administrative offi- cers of the state were left to decide for themselves what parts of the enacted laws were actually in force. With refer- ence to the laws concerning public improvements in New York City and Brooklyn, the New York Court of Appeals declared that enactments had been re-enacted, modified, and superseded so often that it was difficult to ascertain just what statutes were in force at any given time. If the high- est court of the state finds such difficulty, it may be imagined that to the ordinary citizen the confusion is hopeless, and that to the lawyer it means chiefly the opportunity for unending litigation. In 1893, the Pennsylvania corporation act passed in 1874 was made to include new corporations, but the amendments passed in the intervening years were not mentioned, and their validity and application were thereby thrown into doubt. The governor, though approving the measure on account of its general effect, severely criticized 288 READINGS IN CIVIL GOVERNMENT its structure. The Pennsylvania act of April 18, 1895, was drawn in such a slovenly manner that the interpretation given to it by the courts necessitated the passage of three curative statutes. The Pennsylvania legislature also made a clumsy attempt to revive certain local legislation by repeal- ing former repeals of such enactments. In Massachusetts the consolidation of two laws requiring the closing of different classes of drinking places at 11 and 12 o'clock, respectively, was, on account of the use of a semicolon, given the effect of closing all such places at the earlier hour. The Royer law, passed in Ohio in 1902, divested the Supreme Court of that state of the larger part of its appellate jurisdiction, an effect not contemplated by the legislators. When the consequences of the act were understood, for the purpose of remedying it a special session was called at an expense to the state of $50,000. The defects of the Illinois primary election law of 1905, which caused the state Supreme Court to declare it unconstitutional, also necessitated an extra session of the legislature. 58. THE PROBLEM OF INTELLIGENT LEGISLATION. State legislators and the voters who elect them being what they are, how may the legislative product be improved. Professor Ernst Freund suggests two very simple and practical expedients which will go far toward solving this problem: [1907], Given a legislature of average ability, fairly representa- tive in character, not exempt from political bias or popular prejudice, but willing on the whole to act according to the best of its lights, such a legislature as we now have, and shall have for many years to come; how can it be enabled to perform its task most creditably and most efficiently ? This problem has of course always engaged the attention of legislative bodies, their attention far more than that of the people at large, and it is important to inquire why, after a hundred years' experience and experiments, a satisfactory solution has not been found, and why it is that only now STATE LEGISLATION 289 the subject is beginning to arouse popular attention and interest. . . . The shortcomings of our present system may be said to be lack of responsibility, lack of expert advice, and lack of principle. 1. Responsibility. We know how much our jurisprudence has gained through the system of written opinions published in reports, through which the work of every judge of an appellate court is subjected to the scrutiny of the legal profession. But how can the responsibility for a bad piece of legislation be brought home to any one? Any member of the legislature may introduce any bill he pleases, and his doing so does not even necessarily mean that he assumes any responsibility for its form or contents. In the German reichstag it requires the support of fifteen members to introduce a bill that does not come from the government, and practically all privately initiated measures are backed by some political party. It has been suggested that it might be well to limit each member of a State legis- lature to a small number of bills, to induce him to exercise some care and discrimination. If this were regarded as trenching too much upon his privileges, he might at least be required, as a condition of having his bill considered by a committee, to state at whose request, at the instance of which interest or organization, he introduced a measure; still better, to furnish a memorandum of the purpose of the bill and explanation of its provisions, as is now common in the national legislature when a bill is reported favorably by a committee. This would ensure the correction of many errors and would tend to fix responsibility. The lobby as a recognized and regulated institution might be made to serve the same end. All this could be accomplished by rules of the legislature. The publication of bills in advance of their introduction would be even more desirable. The require- ment of previous notice exists with reference to special or local bills under constitutional provisions in about eight States. In England the law requires such previous notice 19 290 READINGS IN CIVIL GOVERNMENT for all rules of administrative bodies promulgated under statutory powers. In Germany the government publishes all important measures before they are presented to the legisla- ture. Such a requirement would hardly be practicable with reference to all public bills. But the practice might be adopted with advantage for so-called administration measures. While the executive cannot initiate legislation directly, he can do so practically through friendly members, and assume the political responsibility therefor. The practice is not uncommon now, and will probably grow in the future. It is not impossible that without any constitutional amendment, the course of events may create a virtual power of executive initiation of legislation similar to that enjoyed by European governments. The share of our executive in legislation at the final stage of the process is much larger than it is in most European States, but at present the sense of responsibility for its exercise is limited. While governors regard it as their duty to veto measures that are plainly unconstitutional or unwork- able, they generally yield to the legislature in matters of policy. A freer exercise of the veto power than is now com- mon, based upon looseness and faultiness of provisions, would however be tolerated not only by the people, but prob- ably by the legislature itself. In those States in which the governor has a considerable time after the adjournment of the legislature to examine bills passed at the end of the session (when the most impor- tant bills are usually enacted), such a function of censorship might be carefully and effectively exercised with beneficial results. 2. Expert Advice. There are two distinct kinds of advice that the legislature stands in need of, the first as to the con- tent of legislation, the second as to its legal form. As to the first, the theory is that the legislature is acquainted with the circumstances and needs of the people, just as the old jury was presumed to know of all open and STATE LEGISLATION 291 public occurrences within the country. But as a matter of fact, most of the information necessary for intelligent legis- lation cannot be acquired without special study or even special training. In the case of subjects generally recognized as technical the legislature naturally relies upon experts. Often the information comes from interested parties; but even if impartial, private advisers cannot be expected to have that sense of definite responsibility toward the legislature which a permanent official in England or Germany feels toward a secretary of state. Where the subject to be legislated on is one not supposed to be technical, the legislature commonly acts upon the vaguest impressions, reflecting popular beliefs and prejudices ; and it must be confessed that with regard to many of the most important social and economic conditions, no better information has in the past been available. As regards the correct legal form of expressing the subject- matter of legislative proposals, it is recognized that this is a task requiring technical learning. Giving due recognition to the large amount of painstaking legal work embodied in any volume of our session laws, and without magnifying the blunders that occur too frequently, it is obvious that a systematic plan of dealing with this aspect of legislation would bring a much needed improvement. The technical shortcomings of our statutes are chiefly due to the fact that they come from so many hands working without supervision and without a concerted plan. Each statute is apt to create to some extent an administrative machinery of its own, to have its own peculiar provisions for sanction and enforcement, to frame anew rules and principles applicable to already existing acts in pari materia. The multiplicity of separate provisions for separate statutes pro- duces disharmony and confusion, and unnecessarily encum- bers our law. What we need is something in the nature of the English clauses acts, or the great organic administrative legislation of Prussia and other German states, extended to the whole of our police legislation, so far as such work has 292 READINGS IN CIVIL GOVERNMENT not already been done by codifying acts and statutory revisions. A risk peculiar to our legislation is the number and uncer- tainty of constitutional requirements. With adequate knowl- edge and forethought many obvious and needless errors might be avoided. In many cases, however, it is necessary to try an experiment with full consciousness of the constitutional risk, and await the decision of the supreme court. The judg- ment of the legislature, as to what the Constitution permits, weighs next to nothing with the courts, judicial professions to the contrary notwithstanding. And this is largely due to the fact that the courts know that the legislative decision doea not represent thoroughly considered professional opinion. The constitution of the legislatures is unfavorable to a high quality of legislative work. It has not even the benefit of permanent organization; after brief and intermittent periods of activity the legislative offices are closed, and the papers and records are turned over to the secretary of state. In the absence of trained and permanent legislative officials, the continuity of legislative experience and tradition is at present only maintained by the practice of reappointing the same members to the same committees, session after session, provided they re-enter the legislature. The lack of permanent organization is the very negation of the one thing indispensable to careful legislation : the pro- fessional attitude of mind. This means training for the work, devotion to it, and a reputation at stake in its proper execu- tion, and without it high quality of workmanship is as un- likely in legislation as in any other work. It would of course be idle to expect that habit of mind of a political assembly; expert assistance to the legislature is therefore essential to any genuine improvement of legislative methods. The method in favor at present for providing such assist- ance seems to be the creation of legislative reference bureaus. This is due to the excellent work done in Wisconsin. In the long run probably a division of functions will be STATE LEGISLATION 293 necessary by which the work of the reference bureau will be devoted to the task of gathering data of a bibliographical nature, while the work of draftsmanship will be assigned to some official in close contact with the legislature. The collection of statutes, of bills, and of reference to cur- rent literature is already a prominent part of the work of the reference bureau, and when once such bureaus shall have been established in a number of States or the existing State libraries can be interested in the subject, they should be induced to unite in the establishment of some central bureau which should issue informal bulletins giving full information of current legislative movements in the several States. The work should further include the collecting and digest- ing of papers of legislative interest, that may be filed in the offices of the clerks of the legislature or of the secretaries of state. If funds can be made available for the purpose, every State should see to it that all executive documents bearing on legislation, especially veto messages or statements, that have been printed or preserved, should be published and the entire body of session laws indexed. It would further be well to digest and index the reports of State and city administrative officers and boards, which often contain most valuable points regarding the operation and enforcement of statutes. The collection of data other than bibliographical which are important for the information of the legislature, would fall beyond the province of the reference bureau. Nothing would be more important than the collection of judicial statis- tics, both civil and criminal, which so far has been entirely neglected in this country. For work of this kind, we must rely mainly upon the initiative and the example of the census bureau at Washington. As for the work of draftsmanship, provision has been made in a tentative manner in several States for expert assistance to the legislature. In South Carolina the attorney-general is the adviser of the legislature, and he may require the assist- 294 READINGS IN CIVIL GOVERNMENT ance of the State solicitors, for drafting bills. The law offi- cers of cities are likewise very commonly consulted or em- ployed in the drafting of ordinances. Law officers, however, hold their positions by political tenure for definite terms, and the same is generally true of their assistants. They are not therefore likely to acquire a suffi- ciently large experience in the technique of legislation, to de- velop anything like the office of the parliamentary counsel of the treasury in England. An office or position within the legislature itself would have the advantage of closest contact with the members, and it would therefore probably be most widely used. A commit- tee of the American Bar Association in 1886 recommended the appointment by the presiding officers of the two houses of a joint standing committee for the revision of bills, with power to employ counsel. In New York the two presiding officers may appoint three persons to draft bills at the request of the members or of committees. In Connecticut there is a clerk of bills to whom every bill favorably acted upon by a committee, before being reported to the legislature, must be submitted for examination. This is the only statutory pro- vision for compulsory reference in this country. The value of a statutory requirement is not to be underestimated, even though it be not directly enforceable. Much more impor- tant, however, is the tenure and status of the clerk or actual draftsman by whatever name he goes. The position should not be practically limited to one session of the legislature, as it is in Connecticut where the clerk of bills expects to advance at the next session to the place of engrossing clerk. The national house of representatives has the benefit of the services of two clerks whose positions, as at present filled, probably come nearer to representing the professional element in the legislative part of the government than anything else in this country; the clerk of the speaker's table, and the clerk of the committee on appropriations, both practically permanent and well paid officials. A clerk of the committee on judiciary or on enrollment or on bills in the third read- STATE LEGISLATION 295 ing (as in Massachusetts), who would work himself by faithful and intelligent service into the confidence of the house might develop into a legislative expert and something like a permanent parliamentary counsel. Practical permanence of tenure would be indispensable, and if the services of competent men are to be retained, that would involve adequate compensation. How the office of par- liamentary counsel is regarded in England appears from the fact that the first incumbent received a peerage on his retirement. No permanent improvement of the quality of legislation is possible without a staff of experts of high pro- fessional standing in that very branch of work. Their experience and authority would in course of time raise greatly, not merely the popular, but, what is just as impor- tant, the judicial estimate of the work of the legislature, and questions of construction and constitutionality would be less speculative than they are at present. 59. THE INITIATIVE AND REFERENDUM. (a) One of the agencies by which corrupt and inefficient State legislation may be checked and corrected is for the people to reserve the direct legislative power to themselves. The process by which this is accomplished, known as the initiative and referendum, has lately found its way into the constitutions of a considerable number of States. Dr. W. F. Dodd has thus summarized this development toward direct legislation up to the year 1909: The first constitutional provision for the initiative and referendum with reference to state laws was that adopted by South Dakota in 1898; Utah followed in 1900 with a con- stitutional amendment intended to obtain the initiative and referendum upon state laws, but the Utah amendment was not self-executing, and the legislature of that state has never enacted legislation to carry its provisions into effect. Since 1900 the movement for the initiative and referendum has grown rapidly. Oregon by its amendments of 1902 and 1906 has provided for the enactment of laws and constitutional amendments by the people without the participation of the 296 HEADINGS IN CIVIL GOVERNMENT legislature, and has also made provision for a compulsory referendum upon laws or upon parts of any laws enacted by the legislature. Nevada in 1904 established a compulsory referendum upon state laws, but did not adopt the initiative. Montana in 1906 adopted the initiative and referendum for state laws. Oklahoma in 1907 adopted the initiative and referendum for state laws and constitutional amendments, applying the referendum also with reference to sections, items, or parts of any act of the legislature. The greatest gains for the initiative and referendum have been made in 1908. During this year Maine has adopted the initiative and referendum for laws; Michigan has adopted the initiative for constitutional amendments and the referendum upon state laws, the use of the latter, however, not being compulsory upon popular petition, it being left entirely to the legislative discretion as to whether a law shall be submitted to the people for approval. Missouri has adopted the initiative and refer- endum with reference both to laws and to constitutional amendments. Until recently this movement has been confined to the states of the further west, but the most significant thing in the development of the present year has been the adoption of these more popular forms of government in Maine, Michi- gan and Missouri. (b) Of all the States that have attempted direct legislation, Ore- gon has so far met with the most favorable results. In June, 1902, the people of that State adopted the following amendment to Arti- cle IV of the constitution by a vote of 62,024 for, to 5,668 against: Section 1. The legislative authority of the state shall be vested in a legislative assembly, consisting of a senate and house of representatives, but the people reserve to themselves power to propose laws and amendments to the constitution and to enact or to reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than eight per cent, of the STATE LEGISLATION 297 legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the secretary of state not less than four monthsi before the election at which they are to be voted upon. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety), either by the petition signed by five per cent, of the legal voters, or by the legis- lative assembly, as other bills are enacted. Keferendum peti- tions shall be filed with the secretary of state not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the governor shall not extend to measures referred to the people. All elections on measures referred to the people shall be had at the biennial regular general election, except when the legisla- tive assembly shall order a special election. Any measure referred to the people shall take effect and become the law when it is approved by a majority of the votes cast therein, and not otherwise. The style of all bills shall be: "Be it enacted by the people of the State of Oregon. " This section shall not be construed to deprive any member of the legis- lative assembly of the right to introduce any measure. The whole number of votes cast for justice of the supreme court at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted. Petitions and orders for the initia- tive and for the referendum shall be filed with the secretary of state, and in submitting the same to the people he, and all other officers, shall be guided by the general laws and the act submitting this amendment, until legislation shall be espe- cially provided therefor. Sec. la. The referendum may be demanded by the people against one or more items, sections or parts of any act of the legislative assembly, in the same manner in which such power 298 READINGS IN CIVIL GOVERNMENT may be exercised against a complete act. The filing of a ref- erendum petition against one or more items, sections or parts of an act shall not delay the remainder of that act from be- coming operative. The initiative and referendum powers reserved to the people by this constitution are hereby further reserved to all local, special and municipal legislation of every character, in and for their respective municipalities and dis- tricts. The manner of exercising said powers shall be pre- scribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and refer- endum powers as to their municipal legislation. Not more than ten per cent, of the legal voters may be required to order the referendum nor more than fifteen per cent, to propose any measure, by the initiative, in any city or town. (c) The practical result of six years' experience with the initia- tive and referendum in Oregon is thus stated by Hon. U. S. U'Reu, one of the leaders of the reform movement in that State : The every-day use of a new piece of machinery under work- ing conditions is the best test of its value. Therefore I shall mention briefly some results of five years' use of the initiative and referendum in Oregon. The whole number of electors voting at general elections since 1902 varies from about 93,000 to 97,000. The number voting on measures is from 67 to 89 per cent, of the highest number voting for officers. The smallest majority by which any measure has been approved was 3,118 and the largest was 64,512. The smallest majority by which any measure has been rejected was 9,747 and the largest was 13,000. Woman suffrage and the local option law received the highest percentages of votes, showing that men do not vote on ques- tions they do not understand. Very few men confess igno- rance on either of these questions. The legislature of 1903 appropriated money to build a portage railroad on the Columbia River to extend the water transportation service. Railroad men circulated a referen- dum petition against the bill, whereupon the Portland cham- STATE LEGISLATION 299 ber of commerce resolved that if the petition was filed it would propose a maximum railroad rate bill by initiative pe- tition. The railroad's referendum petition was not filed. General Election, 1904. A primary nominating election law was proposed by initiative petition and enacted by the people. This law killed the political party bosses and destroyed their machines, both State and municipal, from constable to United States senator. Under its provisions the people selected two United States senators at the June election of 1906, and their choice was almost unanimously ratified by the legislature in twenty minutes ; the usual time under the old plan was forty days. There was no hint or charge of bribery, corruption or undue influence in any form. In June, 1904, a local option liquor law was proposed by initiative petition and enacted by the people. Under this law eight counties and many precincts in other counties have voted "dry." The liquor dealers made a savage and costly campaign against this bill; they tried to amend it out of ex- istence in the legislature of 1905, and again by initiative peti- tion before the people in 1906, but the last defeat was by three times the first majority. Most of the university and college counties and towns are "dry." The legislature of 1905 was controlled in many things by a combination of the representatives and senators from the six counties in which are located the State university, agri- cultural college and four normal schools. Three of the latter were created as a part of legislative bargains and log-rolling for United States senators or other equally useless purposes. There was and is much dissatisfac- tion with them on that account. They put their appropria- tions in the general appropriation bill for the maintenance of the State government, contrary to the constitution, but in accordance with the custom of many years, so that the gov- ernor would not veto it. The log-rollers attempted to put their appropriations beyond the people by attaching an emer- gency clause, but the governor told them he would veto the bill if they passed it in that form; for that reason only they 300 READINGS IN CIVIL GOVERNMENT abandoned the emergency clause, leaving the whole bill sub- ject to referendum petition. A referendum petition was filed, but thereafter neglected. No further contest was made against the appropriation bill and it was approved at the gen- eral election in 1906. But it stopped the practice of log- rolling many appropriations into one bill. The legislature of 1907 obeyed the constitution in that respect. General Election, 1906. The people approved four amend- ments to the constitution proposed by initiative petitions; ex- tending the reservation of the initiative and referendum powers to all local, special and municipal legislation; refer- endum against items, parts and sections of any bill ; granting home rule to cities and towns in all their municipal affairs, free from interference by the legislature and limited only by the constitution and criminal laws of the State; allowing one legislature to propose amendments to the constitution (the former provision required the proposal by two consecu- tive legislatures) and requiring the governor to decide and proclaim whether an amendment is adopted, following the Maine and Maryland constitutions in that respect; granting greater legislative power over the State printing and com- pensation therefor; enacted two corporation tax laws and an anti-pass law, but the latter was void because the enacting clause was forgotten. Proposed by Initiative Petition and Rejected* A constitu- tional amendment for woman suffrage ; a bill to sell the State a toll road for $24,000 on which the promoters were making a profit of $16,000; a bill proposed by the liquor dealers to amend the local option law. These measures were prepared by six different organiza- tions ; the State Grange had two, The People 's Power League five, and the others one each. In 1904, Portland granted a franchise to a new telephone company on municipal initiative petition. The city council had refused to grant it, though better terms were offered the city than ever before. STATE LEGISLATION 301 In 1907, the people of Portland, at their municipal election, voted on nineteen charter amendments and ordinances under their initiative and referendum powers. Most of the meas- ures were proposed by the council. A number of proposals for franchise grants have been abandoned since 1905 because of threats of the referendum. Many cities have amended or rejected proposed amendments to their charters, some of- fered by initiative petition and some by the city councils. The legislature of 1907, under its new power, submitted four amendments to the constitution; one to change the gen- eral election from June to the date of November congres- sional elections; one authorizing legislation for the improve- ment of the judicial system; one to increase the pay of legislators from $120 to $400 for a regular session and one to allow the people to establish State institutions at other places than the State capital. Four referendum petitions have been filed against acts of the legislature; one against a bill appropriating $100,000 to build armories; one against a bill denying the right of emi- nent domain to railroads which do not agree to carry State officers free of charge; one against a bill which would result in increasing the profits of the sheriff's office in counties of 50,000 population and over ; one against a standing appropria- tion of $125,000 for the State university. As to the latter, it is a positive expression of what used to be the very general feeling that those wanting the higher education should pay for it, and that the State does its full duty when it teaches the " three Rs." The appropriation is not the result of any- thing like previous log-rolling combinations, and is very mod- erate if the State is to maintain a university at all. It is to be hoped that this appropriation will be approved by a great majority of the voters, and a vigorous educational cam- paign is to be made for it. Initiative petitions are in preparation for constitutional amendments as follows: woman suffrage; exempting from taxation factories, machinery, and residence buildings, but not 302 READINGS IN CIVIL GOVERNMENT land or lots on which they are situated; authorizing enact- ment of laws for proportional representation and majority elections ; for the recall against public officers. Initiative petitions for statute laws: a bill for a salmon fisheries law; a bill instructing the legislature to elect for United States senators those candidates selected by the peo- ple at their general elections ; a corrupt practices law modeled on the British acts of 1883 and 1895, but also providing for the circulation of campaign literature partly at the public expense. It is probable that there will be fifteen important measures on the ballot for the voter's approval or rejection next June. Summary. The people have abolished party bosses and political ma- chines; made the liquor question and prohibition a purely local issue; increased the legislature's respect for the con- stitution; greatly injured, but not yet destroyed, the legis- lative log-rolling industry; taken municipal affairs out of the legislature; taxed some corporations that were dodging; in the matter of amendments to the constitution, greatly in- creased the power and responsibility of the legislature and governor; under the efficient leadership of prominent teach- ers of the State, the high schools are debating the nominating elections law, proportional representation, people's direct elec- tion of United States senators and other live problems in representative government ; for the first time in American his- tory the school teacher is taking his rightful place as an educator in the science of government, instead of being a vic- tim in the game of politics; the high schools of Washington are debating whether their State should adopt the initiative and referendum provisions of the Oregon constitution; the voters of the State and cities are taking an interest in their government far greater than ever before, and growing rapidly to the full measure of their power and responsibility. The people of Oregon have learned that to get the best re- STATE LEGISLATION 303 suits they must do their own governing every day. They know that government is human, not mechanical; that the election of good men for officers is not like winding a clock, which may be safely left to do its work, needing only to be wound again at set times. The voters of Oregon realize that government is rightly named the Ship of State ; the governing is like sailing a ship in this, that to steer a straight course they must hold the helm and control their officers all the time. There is fear of the initiative now among some of the men who helped to establish the system in Oregon, because the peo- ple could abuse the power. Officers have been known to abuse power. They say, What may the people not do? But fear is the only sign of such a danger. Capitalized vice, po- litical grafting, legislative log-rolling and corporate tax dodg- ing, thus far, are the only industries in Oregon to confess in- jury from the people's use of the initiative and referendum powers. It is probable that some day our initiative plan will be improved by allowing the legislature opportunity to offer a competing measure, both to be submitted to the people at the same election. Hon. Geo. H. Shibley of Washington, D. C., made this suggestion last year. But as to repealing either the initiative and referendum powers, there is only one opin- ion in Oregon. 60. PRIMARY VS REPRESENTATIVE GOVERNMENT. What is the significance of this widespread dissatisfaction with our legislative bodies and the growing movement toward a greater participation by the people themselves in the details of law-making? Does it indicate a general breakdown of representative government and a return to the ancient principle of primary democracy? In the following selection Professor J. W. Garner discusses the ques- tion as to how far the people may safely participate directly in government: [1907]. In determining the extent to which direct participation of the people in government is practicable or desirable, we must take into account their general intelligence, the character of 304 HEADINGS IN CIVIL GOVERNMENT the service which they are called upon to perform, and the resulting benefits considered from the standpoint both of ad- ministrative efficiency and social uplift. If the service con- sists merely in the selection of those public officials whose of- fices are political rather than administrative or judicial in character, there is a general concurrence of opinion that a wide popular participation may be safely permitted if the electorate possesses a fair degree of intelligence and virtue. This is so because no special knowledge derived from study, experience or discussion is required to perform the service intelligently and the resulting benefits to the electorate both through education and stimulation of interest in public af- fairs are of great importance. More important still such participation is necessary to preserve the popular character of the government and prevent it from becoming a bureau- cracy. . . . If the service of the elector consists in passing judgment upon the merits of untried legislative or administrative projects (as opposed to concrete results already attained), a higher degree of intelligence is, of course, required, in the absence of which there must be a loss of efficiency, though the moral and educational benefits to the electorate on account of being permitted to share in the service may outweigh the disadvantage. . . . But manifestly there is a point beyond which popular gov- ernment produces an inefficiency which is out of all propor- tion to the resulting educational advantages to the electorate. When this point is reached the primary system must yield to the representative system. An electorate of average intelli- gence may very properly be given a veto upon legislative projects of a simple and purely local character, especially if such propositions involve the imposition of extraordhiMry pecuniary burdens, but it is quite another thing to permit every dissatisfied class in the state to formulate legislative projects which are complex in character and general in scope, compel a referendum on their schemes and have them put into force upon an affirmative vote of an electorate a large propor- STATE LEGISLATION 305 tion of whom, from want of special knowledge are "incapable of expressing an intelligent opinion upon their merits. Government by the masses in their primary capacity rests on the theory that all men are specialists in a great number of fields, that the mass of ignorant voters, amounting to tens of thousands in the large cities, many of them foreigners re- cently naturalized and having little or no permanent interest in the community, are as capable of pronouncing judgment upon untried legislative projects or administrative policies as are trained and experienced legislators and administrators, and that they can not be swayed by prejudices or misled by demagogues. The late Mr. Justice Fitz James Stephen ex- pressed a truth which history has abundantly confirmed when he declared that government really done well requires an immense amount of special knowledge and the steady, restrained, and calm exertion of a great variety of the highest talents which are to be found. A recent illustration of the futility of submitting to the people measures of an administrative character which require special knowledge such as is possessed by only a compara- tively small portion of the population was afforded by the referendum in Illinois (November, 1906), on a proposition to empower the commissioners of the Illinois and Michigan Canal to sell certain lands belonging to the canal which were described in a certain joint resolution of a previous session of the legislature, the lands to be sold in accordance with the conditions set forth in the said resolution. The voters were left to find out as best they could where the lands were, why it was desired to sell them and what were the conditions of sale referred to in the joint resolution. Not one elector in ten was qualified to cast an intelligent vote on the proposition and it was too much to expect that they would go to the trouble of informing themselves of the merits of the measure through research or correspondence. They did the only nat- ural thing to be done under the circumstances, namely, ab- stain from voting on the proposition and accordingly, it was ao 306 READINGS IN CIVIL GOVERNMENT lost by default, though a large majority of those who voted on the measure voted in the affirmative. It is difficult -to see what is to be gained either by way of popular education, pub- lic control, or administrative efficiency through the employ- ment of the referendum on quasi-technical questions of this character when the judgment of the voter is limited to a sin- gle yes or no and when there are no practical means of esti- mating the merits of the measures submitted. A somewhat careful examination of the results of the workings of the referendum both in Switzerland and in this country, shows that the vote cast on referendal propositions has been with rare exceptions, distressingly small, thus raising the question whether after all the masses of the people are really interested in the demand for a wider extension of the referendum and whether, if granted, they would avail themselves generally of the privilege. The important constitutional amendment of 1891 establishing the initiative in Switzerland was adopted by a referendum in which less than half of the registered vot- ers participated, and it not infrequently happens that on propositions submitted by the cantonal legislatures, the vote in some communes falls as low as 15 and even 10 per cent, of the total. In the canton of Berne, of sixty-eight statutes which owe their existence to direct legislation, only eight were approved by a majority of the voters. In Zurich as many as 30 per cent, of the ballots cast are often blank and most of the laws enacted through the referendum so far have been carried by a minority of the voters. It is ridiculous, says Deploige, a native student of the referendum in Switzerland, to talk of legislation by the peo- ple when more than half of the citizens refuse to exercise their legislative rights. American experience with the referendum has in general shown the same indifference and apathy. Only in exceptional cases have constitutional or legislative proposals called out a vote equal to 50 per cent, of the total and in most cases it has been less. Owing to the common requirement that proposed constitutional amendments shall, in order to be STATE LEGISLATION 307 valid, receive a majority of the votes cast at the election at which 'the amendment is submitted, it has proved impossible to bring about needed constitutional changes in many of the States. To mention a few examples, by way of illustration, an important amendment to the constitution of Illinois, the need of which scarcely any one denied, was defeated in 1896 because only about one-fifth of those who voted for presi- dential electors cast a vote on the question of amendment. In November, 1906, a proposed amendment was submitted to the voters of Kansas and only 60,000 votes were cast on the proposition though more than 300,000 votes were polled by the head of the State ticket. Practically all attempts to amend the constitution of Indiana have resulted in failures on account of the indifference of the voters. In November, 1906, a much needed amendment to which there was little opposition, was submitted to the voters of that State and it had the singular fate of being voted on by only one-twelfth of the voters who went to the polls. Where a majority of those voting on the proposition to amend is sufficient to adopt, it sometimes happens that amendments are carried by a small minority of voters. This happened in Louisiana in No- vember, 1906, where several important amendments were adopted by a vote of one-sixth of the electorate. Experience with the referendum on State statutes and mu- nicipal questions shows less indifference on the part of the voters, but with rare exceptions, the abstentions are more numerous than the votes cast, so that the results often repre- sent the opinions of the minority rather than of the ma- jority. Of all the municipalities in the country, Chicago has had perhaps the most satisfactory experience with the referendum and the results there have been such as to encourage the belief that direct legislation within proper restrictions may be practicable under modern urban conditions. During the last five years, the electors of that city have been called upon to pass judgment on not less than fifteen propositions of State or municipal policy and in almost every case, an intelli- 308 READINGS IN CIVIL GOVERNMENT gent use has been made of their power. Furthermore, what is remarkable when compared with the experience of other cities, the proportion of votes cast on the various questions submit- ted aggregated in most cases about two-thirds of the total vote cast at the election and in a few instances the proportion was considerably larger, thus showing an absence of that popular indifference which in so many other places has led to a practical breakdown of the referendum. But for the most part, the questions upon which the referendum was taken related to municipal policies in which all classes of the people felt a deep personal interest, and since the vote in each case was preceded by a campaign of education by the advocates and opponents of the various measures submitted, it was not unnatural that large votes should have been polled. But where propositions were submitted which were semi- technical in character, which had a general rather than a local interest, and which were not elucidated by public debate and discussion, such for example, as the proposition to en- able the commissioners of the Illinois and Michigan Canal to sell certain lands, popular interest was slight and the propositions were defeated by default rather than by oppo- sition. We may conclude, therefore, that a limited use of the referendum may be desirable in the interest of popular con- trol and political education, but rarely for administrative efficiency. If applied to simple questions of public policy of a purely local character in which the masses of voters have a personal interest such as they have in the choice of public officers, the referendum may subserve a useful purpose both by way of restraint upon the government and by way of popular education and stimulation of interest in public affairs. But in general application to large districts and to general questions of legislative policy or to quasi-technical questions of an administrative character, the referendum has no place and can only lead to results which are worthless if not mischievous. On the whole, experience with the initiative and referen- dum shows that their use, particularly for the determination STATE LEGISLATION 309 of questions of administrative policy, should be restricted rather than extended. The growing disposition to take a referendum on every question of public policy upon which there may be a difference of opinion, strikes at the root of efficient business-like administration. The practice of taking a referendum on several questions at the same time at which an election of officers is held greatly complicates the election, confuses issues of policy with personal issues and leads to results which do not represent the popular will. This is the testimony of the election commissioners of Chicago where this practice has caused considerable dissatisfaction. To provide separate elections, however, in order to simplify matters and permit independent judgments on the measures submitted would, of course, add greatly to the expense of holding elec- tions in addition to the loss of time and the demoralization incident to an election. In most States there are already too many elections (Illinois is a notable example) and any propo- sition which contemplates an addition to the list is subject to serious objection whatever may be its merits in other respects. It is not at all unlikely that we shall soon witness a reaction against the present clamor for more direct government by the masses. The idea of the right of everybody to take part in public affairs by proposing laws for the good of the country has an attractive ring to it, but in practice, says Professor Lowell, it has not proved of value. The same judgment must be expressed with regard to the use of the referendum, except where it is employed in accordance with the restrictions and conditions indicated above. The representative system, with all its faults, will sooner or later come to be better appre- ciated as the glaring defects of direct legislation become more manifest. If there be one principle clearer than another, says Woodrow Wilson, it is this : that in business, whether of gov- ernment or of mere merchandise, somebody must be trusted. Power and strict accountability are the essential constituents of good government. Jefferson, whom the friends of the initiative and referendum never cease to quote in support of their schemes, saw that government was practicable only 310 READINGS IN CIVIL GOVERNMENT when carried on by a comparatively few men. There is a natural aristocracy, he said, founded on talent and virtue which seems destined to govern societies; and of all forms the best is that which provides for the introduction of this class into the government. Lecky in his Democracy and Lib- erty has pointed out the dangers of government by those whom he calls the "poorest, the most ignorant, the most incapable who are necessarily the most numerous." Such an idea, he says, "reverses all the past experience of mankind. In every field of human enterprise," he continues, "in all the competitions of life, by the inexorable law of nature, superiority lies with the few and not with the many, and success can be obtained by placing the guiding and controlling power mainly in their hands." ADDITIONAL READINGS I Procedure in State Legislatures, Reinsch, P., American Legislatures and Legislative Methods, 183-95. 2 Legislative Apportionments, Ibid., 196-213. 3 Intelligent Legislation, Hoyt, F. M., Proceedings of the American Political Science Association, IV, 10412. 4 Uniform Legislation in the States, Stimson, F. J., Annals of the American Academy of Political and Social Science, 1905, I, 829-64. 5 Over Production of Law, Coxe, A. C., Columbia Law Re- view, VI, 102-9. 6 The Initiative and Referendum in Oregon, Thacher, Geo. A., Proceedings of the American Political Science As- sociation, IV, 198-221. CHAPTER XIV THE STATE JUDICIARY 61. ELECTION AND TENURE OF STATE JUDGES. The practice of choosing State judges by popular vote which pre- vails in a large majority of the States is apt to bring the judiciary into politics, a result which every effort should be made to avoid. Fortunately there is a tendency to lengthen the term of years for which the judges hold office, and this by reducing the frequency of elections, tends to offset the ill effects of that mode of choice. Judge Simeon E. Baldwin discusses these points in the following manner: Thirteen States in all originally gave to the Governor the power either of appointing or of nominating the judges of the higher courts; fourteen gave their election to the legis- lature; the rest preferred an election by the people. If we compare the original practice in each State with its present practice, we find that there are now fewer in which the Gov- ernor appoints or nominates; fewer in which the legislature elects; more in which the people do. Legislative elections have been found 'to imply a system of caucus nominations, and have often led to a parcelling out of places among the different counties in which geographical considerations told for more than did fitness for office. In one State since 1880, the legislature has elected on the Governor's nomination. In practice they have never failed to act favorably upon it. Mississippi, which, in 1832, became a leader in the move- ment toward the choice of the judges by popular election, in her latest Constitution (of 1890) follows the plan of the United States, the Governor nominating and the Senate con- firming. The action of the confirming or electing body when un- 311 312 READINGS IN CIVIL GOVERNMENT favorable in any State has generally been unfortunate. It is apt to be affected by local or personal political influence to which the chief executive would be insensible. A large number of able men have thus, from time to time, been de- prived of a seat on the Supreme Court of the United States who would have added to its luster. In 1867 Massachusetts lost a Chief Justice of the first rank in this way by the defeat of Benjamin F. Thomas. The council refused, by a ma- jority of one, to confirm his nomination because, though of the same party with them, he was of a different wing. In most of the States the judges are now elected by the people. This makes the choice more a political affair. The nominations are made by party conventions, and gen- erally in connection with others of a purely political character. It also, in case of a nomination for re-election, places a judge on the bench in the disagreeable position of being a candi- date for popular favor at the polls and an object of public criticism by the political press. In 1902 a justice of the Supreme Court of Michigan was nominated for re-election. There was an opposing candidate, some of whose friends published a statement that in the nine years during which the justice had already served he had written opinions in 68 railroad and street railway cases of which 51 were in favor of the companies. He was re-elected, but some time afterwards this fact was reprinted in a local periodical accompanied by the remark that "we must con- clude that either the railroad and railway companies 4 to 1 had exceptionalfy good cases from the standpoint of law and justice or his Honor's mind was somewhat warped in their favor. . . . You can't expurge mental prejudice from judicial opinions any more than you can from the reasonings of theologians and atheists. ... To imagine a justice deciding a case against his personal interests is too great a stretch of imagination for us to appreciate." A less brutal but more dangerous attack, made in 1903 by a religious newspaper, illustrates the same evil. The Su- preme Court of Nebraska has decided that under their Con- THE STATE JUDICIARY 313 stitution the Bible cannot be used in the public schools. It was, of course, a pure question of the construction of a law, for the policy of which the court had no responsibility. The newspaper in question which, though published in the East, had some circulation in that State, printed this paragraph: "The Supreme Court judge of Nebraska who wrote the decision that the State Constitution prohibits the use of the Bible in the public schools is standing for re-election, and the fact that he made such a decision is not forgotten by the Christian voters. " In States the control of which by one of the great political parties is assured, the real contest is for the nomination, and here there is even more license for unfavorable comment on the judicial record of one who seeks it. In a Southern State there was such a struggle in 1903 for the nomination of the prevailing party for Governor. The person who then held that place desired it. So did one of the justices of the Su- preme Court. It is said that the friends of the former circu- lated a cartoon representing the five justices together as five jackasses, and another in which the justice whom they were trying to run off the field was caricatured in the act of set- ting aside a verdict in favor of a child injured by a railway accident. The two candidates subsequently met upon the platform for a joint discussion of the issues before the people. The Governor sharply criticised the character of the Su- preme Court. The judge caught him by the collar and was about to strike him when friends intervened, and an ex- planation of the remarks was made which was accepted as sat- isfactory. In the heat of a political campaign men do not always stop to measure words or weigh questions of propriety. The per- sonal character and public acts of an opponent are a legiti- mate subject of description and comment. Sharp attacks must be expected as a natural incident of such a contest, and by candidates for judicial office as well as others. The public record of all for whom votes are asked at a public election must be the subject of open criticism, or there would be dan- 314 READINGS IN CIVIL GOVERNMENT ger that unworthy men would succeed. To treat such obser- vations as have been quoted upon opinions previously written by a candidate for re-election, however unseemly or unjust, as a contempt of court would be indirectly to impair the right of free suffrage. . . . Political contests cost money, and if judges appear as can- didates for popular suffrage they are naturally expected to contribute to the expense. The other candidates on the same ticket do this, and if those nominated for the bench did not, somebody would have to do it for them, thus bringing them under obligations that might have an unfortunate appear- ance, if not an unfortunate effect. In New York, where some of the judicial salaries are higher than anywhere else in the country, and the terms for the highest places are long (four- teen years), it has been customary for those placed in nom- ination to contribute a large sum to the campaign expenses of their party. This is tacitly understood to be a condition of their accepting the nomination, and the amount to be paid is fixed by party practice. For an original nomination by the party in power, it is said to be about equal to a year's salary ; for a renomination half that sum may suffice. But a judge holding office by popular election must in any case owe something to somebody for supporting his candidacy. He is therefore under a natural inclination to use his power, so far as he properly can, in such a way as to show that he has not forgotten what his friends have done for him. There is always a certain amount of judicial patronage to be be- stowed. There are clerks and messengers, trustees and re- ceivers, referees and committees, perhaps public prosecuting attorneys and their assistants, to appoint. Other things being equal, no one would blame a judge for naming a po- litical friend for such a position. But as to whether other things are equal he is to decide. To the most upright and fearless man the danger of this is great; to a weak or bad man the feeling of personal obligation will be controlling. Justice Barnard of the Supreme Court of New York once observed on the bench that judges had considerable patron- THE STATE JUDICIARY 315 age to be disposed of at their discretion, and that for his part he had always succeeded in life by helping his friends and not his enemies. For this practice, among other things, he was impeached and removed from office; but how many judges are there who yield to this temptation without avow- ing it? ... Most of the old thirteen States in their first Constitutions provided that the judges of their highest courts should hold office during good behavior, or until seventy years of age. New York at first put the age of superannuation at sixty, but after losing by this the services of Chancellor Kent for some of his best and most fruitful years, postponed it to sev- enty. Georgia was the first to set the fashion of short terms. Her Constitution of 1798 provided that the judges of her highest court should be "elected" for three years, but that those of her inferior courts should be " appointed" by the legislature and hold during good behavior. The legislature construed this as allowing it to frame such a scheme of elec- tion as it thought best, and that adopted was for the House to nominate three, from whom the Senate elected one. In all but three States (Massachusetts, New Hampshire and Rhode Island) at the present time all judges hold for a term of years, and as a general rule those of the higher courts have longer terms than those of the inferior ones. The change from life tenure to that for a term of years was partly due to several instances which occurred early in the nineteenth century, in which it was evident that judges had outlived their usefulness. Judge Pickering of the District Court of New Hampshire lost his reason, and to get rid of him it be- came necessary to go through the form of impeachment. In 1803, Judge Bradbury of the Supreme Judicial Court of Massachusetts, who had been incapacitated by paralysis, was displaced in the same way, though only a few months before his death. In 1822, an old man who was the chief judge of one of the judicial districts of Maryland was presented by the grand jury as a "serious grievance," on account of his habitual absence from court. His physician certified that his 316 READINGS IN CIVIL GOVERNMENT life would be hazarded if he undertook to attend, but the natural answer was that then he should resign. At present, for judges of the State courts of last resort, the term in Pennsylvania is twenty-one years (but with a prohibition of re-election); in Maryland, fifteen; in New York, fourteen; in California, Delaware, Louisiana, Virginia, and West Virginia, twelve; in Michigan, Missouri, and Wis- consin, ten; in Colorado, Illinois, and Mississippi, nine. The general average is eight, although that particular number obtains in but seven States. In eighteen it is six. The short- est term is two, and is found in Vermont. It may be noted that the original rule in Vermont was to elect judges annu- ally. As compared with the terms of office prescribed at the middle of the nineteenth century, those of the opening of the twentieth are on the average decidedly longer. 62. JURY TRIAL. The following excellent description of trial by jury as prac- ticed in the several States is taken from Judge Emlin McClain's book on constitutional law: By some suitable means of procedure twelve person- secured for the trial of the particular case; they are usually required to be citizens of the state or United States, as the case may be, possessing full mental capacity and in the en- joyment of the faculties of seeing and hearing so that they may rightly and fully comprehend the evidence presented to them. It is usually required that they be selected from the class of persons who are entitled to exercise the elective fran- chise, but there is no necessary connection between the right to vote and the capacity to serve as juror. Some classes of persons are as a matter of public policy exempted from the obligation to serve on juries, such ex- emptions usually extending to physicians, lawyers, teachers, and public officers whose business or public duties are such as to be seriously interfered with to the public detriment if jury service is required of them. It is left discretionary THE STATE JUDICIARY 317 with the court to excuse in particular instances other persons who by reason of some special emergency would be unreason- ably inconvenienced or damaged by such compulsory service ; but mere interference with ordinary business or occupation is not regarded as just ground of excuse, for the citizen can be properly required to perform his public duties without regard to the effect upon his private interests. A juror to be qualified to sit in a case must be, however, not only generally qualified to discharge such duty, but he must also be qualified with reference to the particular case in which he is to sit ; that is, he must be substantially without bias or prejudice which would be likely to interfere with his rendering a fair and impartial verdict. Therefore one who has formed or expressed an opinion as to the merits of the case, or is so related to one of the parties that he is likely to be predisposed to favor him, or who occupies a position of hostility towards one of the parties which would predispose him to a decision hostile to such party's interests may prop- erly be excluded. The general and special qualifications of each particular juror are inquired into, and if for any reason he appears to be disqualified the party desiring that he shall not serve as a juror in the trial of the case interposes a chal- lenge for cause, and if the judge considers the objection to be well taken such person is not selected as one of the jurors. There may be special reasons why a person called as a juror would not be likely to render a fair verdict in a case between the parties, other than the general reasons just sug- gested, and it is usually provided that each party shall have a number of so called peremptory charges which he may ex- ercise for the purpose of excluding such persons from the jury as he desires to object to, although no legal reason for such exclusion is given. When twelve persons are secured against whom no valid objection is found to exist and to whom no peremptory challenge is interposed, these twelve persons are sworn to render a fair and impartial verdict in the case and become the jury for the trial. The jurors thus sworn hear the evidence which the trial 318 READINGS IN CIVIL GOVERNMENT judge permits to be offered. In determining what evidence is to be offered and considered the judge applies rules of law and the jury is authorized only to consider the evidence which is submitted to them. They have no right to take into account matters of fact not shown by the evidence, such as particular facts relating to the case which they know or be- lieve as of their own knowledge. They are to try the case under the direction of the court as to what testimony or facts are properly admissible as affecting the verdict which they shall render. Having heard the evidence submitted to them, the jurors are instructed by the judge as to the rules of law which they are to follow in reaching a conclusion from the evidence that is submitted, and they have no right to exercise their own judgment as to the rules and principles of law applicable to the case. The determination of the law is for the judge in the discharge of his legal duty. But the credibility of the witnesses and the weight of the evidence is for tho determina- tion of the jury in the exercise of their discretion, and the judge should not interfere with or control them in its exer- cise. In some states the statutes very specifically prohibit any comments by the judge as to the credibility of the witnesses or weight of the evidence; in other states and in the federal courts the judge may discuss the evidence for the enlighten- ment of the jury, though he cannot control the conclusions which they see fit to draw from the evidence properly pre- sented to them (Vicksburg, etc. R. Co. v. Putnam). After being instructed by the judge as to the law applica- ble to the case the jurors consider by themselves, without the presence of the judge or any other person, the evidence sub- mitted to them and the instructions given, and if they are able to do so they agree unanimously upon a verdict in favor of one party or the other. If they are unable to agree on a ver- dict then the case must be re-submitted in full before another jury, for according to the common law no verdict can be rendered one way or the other unless all the jurors concur therein. In some states there are constitutional provisions for THE STATE JUDICIARY 319 a majority verdict or for a verdict of a specified number of jurors more than a majority but less than all, but any such provision constitutes a modification of the common-law jury trial. The conclusion of the jury as to the facts reached under the direction of the court as to the law is a final and con- clusive determination of the case which the judge must rec- ognize and embody in the final judgment to be rendered by the court as the result of the trial. If it is manifest that the jury has not followed the direction of the judge in apply- ing the law, the verdict may be set aside by the judge and a new trial granted. If the judge is satisfied that in some essential respect there is no competent evidence to support the verdict of the jury, he may set it aside as not supported by the evidence. If the judge is satisfied that the jurors have rendered their verdict as the result of passion or prejudice and not through a full and fair consideration of the evidence submitted, he may set it aside on that ground. If the jurors have been guilty of some misconduct such as conversing with persons outside of court with reference to the merits of the case while it is being tried, or have allowed other persons to be present during their deliberations, or have heard state- ments by fellow-jurors as to facts not shown by the evidence and calculated to influence them in reaching a conclusion, or have determined the result otherwise than by a consideration of the evidence, as by casting lots to determine what their verdict shall be, then the judge will set aside their verdict for such misconduct. The result of setting aside the verdict is in all cases that a new trial is ordered. No irregularity on the part of the jury in reaching a verdict will justify the judge in rendering a decision for one party or the other. The judge may also set aside a verdict and grant a new trial if he is convinced that he himself has committed an error in material rulings on the admission of evidence or in instructing the jury as to the law. In criminal prosecutions the rule that the accused shall not be twice put in jeopardy for the same crime makes a verdict of "not guilty" con- 320 HEADINGS IN CIVIL GOVERNMENT elusive regardless of any error of law or misconduct of the jury, but if the verdict is against the accused then the same judicial discretion may be exercised by the judge as in a civil case in setting aside the verdict and granting a new trial. Constitutional provisions as to jury trial are in general ap- plicable only to courts of general jurisdiction.' Inferior courts may be provided for in which questions of fact may be tried before a jury of less than twelve, or even without a jury, the right of jury being sufficiently preserved in such cases if an appeal from the judgment of such a court to a court of general jurisdiction is provided for in which a jury trial may be had (Capital Traction Co. v. Hof). In limiting the re- quirements as to jury trial to cases where the value in contro- versy shall exceed twenty dollars, the intention evidently was to allow Congress to provide if it saw fit for the trial of petty cases in the federal courts without a jury; but as a matter of fact no provision is made for such trials. 63. PROBLEMS OP TRIAL BY JURY. The jury is a very venerable institution, the origin of which dates back to the twelfth century. But despite its long history and the veneration with which the jury is regarded by most lawyers, there are some who venture to criticise severely some of the practices which have grown up in this country in connection with jury trials. Among these critics is Mr. James E. Babb, who makes the following objections to present methods: [1907]. A theoretically perfect trial is no more to be expected by a jury than theoretically perfect government is to be expected in a democracy, unless the democracy be one ideally per- fected in intelligence and morality. From such trials and from such government we get the product, not of the most skilled, but only of the average man, the development and perfection of whom is the chief object of our institutions. We find, therefore, perhaps no more of error and wrong taking place in trials by jury than are found in our legisla- tures, executive and administrative officers. In the largest THE STATE JUDICIARY 321 sense, therefore, fundamentally the difficulties which we meet in the jury system are met in every department of government, and the fundamental remedy for these defects is the intelli- gence, morality and fidelity of the people, for which we must look to the home, the school and the church. No class can be immune from the effects of the votes of electors and jurymen. The production of a high grade of average man is our salva- tion. Coming directly to the machinery applicable to the jury system alone, the evils are a combination of defect in regula- tion and administration, and the chief of these, which in some instances is a defect of regulation, and in others of administration, is the desertion of jury duty. In many, and doubtless most, of the States men occupy- ing the higher positions in all lines of activity have suc- cessfully, and practically totally, evaded jury service, and from this class has come the main criticism upon jury trials. They seem to have overlooked the fact that the criticism aimed at others must necessarily rebound upon themselves; that if they had discharged their duties, almost every jury would contain upon it sufficient of them to pre- vent, in any case, a verdict representing in an extreme sense, class, corporate or social prejudice, or bias, or mis- conception of the evidence. While the law contemplates a fair distribution of jury service, it will be found that the officers having to do with its execution, find themselves under severe criticism if they force upon the jury list a man whose time is of unusual value, and at the same time these officers selecting such a man for jury service would receive additional criticism from the professional juryman, who has been watching for the place and who has thus been displaced. The officials having to do with the selec- tion of jury lists have found the burden of double criticism too much endangers success at the primaries and elections, and aided, as" well, by a spirit of accommodation, have drifted into the practice of passing over the names of those who would be offended at being called, and of placing upon 322 READINGS IN CIVIL GOVERNMENT the lists those who would consider the opportunity one of comfort, satisfaction and profitable employment, and occa- sionally, perhaps, there is always a possibility that consid- erations much more dangerous control the officer's discretion. In this way we have the chief cause of current failure in jury trials. This disloyal, and rather discreditable deser- tion of public duty has found excuse, not only in serious interference with important business duties, but in the almost barbarous, as well as unhealthful, treatment to which the juror in service is subject, also in the insufficient com- pensation which attaches to the service. The service is one, unavoidably, most arduous, and incon- venient. It comes of a sudden, it is so temporary as not to justify sufficient preparation for its interferences with other duties, and at times it subjects to a life practically of imprisonment. It is a duty, however, fundamental and essential and not to be evaded, any more than military service in time of war. This desertion of jary duty is similar to that of electors in failing to register and vote. In a popular government the discharge of these duties is vital and must be exacted. In time of war all expect, and readily submit to the propriety of the most instant and severe punishment of the smallest infractions of military duty. We have failed in the conception that there is ordi- narily as much of importance dependent upon the proper discharge of the duty of elector and of juryman as there is upon the discharge of picket and other military duty in the time of war. Our government never can meet its responsibili- ties until there is a common understanding and recognition that the duties of jurymen and electors are as sacred, as im- portant, to be enforced as instantly and with punishment as adequate, as that administered for the enforcement of military duty. This evasion of service has created and brought into existence the professional juryman. The difficulty must be reached by an amelioration of the conditions of jury service and the prevention of its further evasion. There is not in the realm of public questions any- THE STATE JUDICIARY 323 thing of more importance than this feature of the subject under consideration. Beneficial influences upon the bench and the bar would result from the improvement of the personnel of the jury box. Would not the judge and the lawyer, the witness and the client, be more attentive to their conduct and proceedings if they found in the jury box a representation of the intelligence, the wealth and the power in the community? Would not the bench, the lawyer, and the other participants in court proceedings be made to feel, from this class in the jury box, their open resentment of everything smacking of shystery or dilatoriness in the pro- ceedings of the court? In this way the questions in the discussion of which the public is arrayed, involving class and social and other strife and prejudice, would come up for consideration in the jury room when all classes were represented and the education and understanding growing out of the discussions there to be had, hand to hand and face to face, could not but help to bring about an easier solution of the refractory questions in our social, commercial and public life. The conviction is general among lawyers that many verdicts are rendered upon considerations entirely foreign to the evidence and law of the case. It is not unlikely that many verdicts have been produced by an indisposition of jurymen to be kept out all night, sleeping upon the floor or upon benches, in order to reduce the amount of damage or punishment that may be imposed upon some individual or corporation they dislike. There are many considerations that arise from the peculiarities of cases that are submitted to jurymen which give large opportunity for influence of collateral considerations, in the way of preconceptions, biases, prejudices and matters of expediency. The verdict of the jury is general in terms, rendering it impossible to deter- mine what considerations have produced it. In a number of the States statutes have been passed requiring jurymen in returning a general verdict to answer specific questions as to their findings on particular facts, such questions to be 324 READINGS IN CIVIL GOVERNMENT submitted by the court at the request of counsel for the parties, respectively. The courts have quite generally con- strued these statutes as leaving it discretionary with the trial court whether particular questions shall be submitted for answer by the jury. The trial courts have so uniformly exercised the discretion to refuse any such interrogatories, that attorneys have found it practically a waste of time to request the submission of special interrogatories. Tlu-r no practice that would tend more to eradicate improper considerations from the formation and rendition of verdicts than the practice of requiring jurymen to respond with answers to specific questions that may have been submitted to them. A jury that will drift away under a multitude of considerations from the merits of the case and render ,i general verdict from considerations entirely foreign to the merits of the case, will not fail, however, to respond cor- rectly and faithfully in answer to any specific question of fact or individual circumstance involved in the case that may be submitted to them for answer. When a general verdict is brought in with answers to specific interrogatories concerning material facts in the case, if the general verdict is found by the court to be contrary to the judgment which should be rendered upon the facts as specifically reported in answer to interrogatories, the court is then enabled to render a correct judgment in the case, e\en if it be in opposition to the general verdict which the jury may have returned. The objection to this practice is that it will for a number of years at least, until the practice has been reduced to a perfected system of rules, and possibly always, tend to occasion more new trials and more reversals in the supreme court. This, while a serious objection, is not deter- minative. The State cannot afford to allow injustice from erroneous verdicts from any consideration of mere conven- ience or expense. THE STATE JUDICIARY 325 64. THE JURY IN CIVIL CASES. It frequently happens that the Jury is unable to reach a verdict in the case submitted to them. How frequently and with what ill consequences this is the event, is discussed in the following article by Mr. A. C. Braxton: [1904]. A learned author, in a recent book on the jury system, declares that, as the result of the unanimity rule, "the number of mistrials is enormous. " An able writer, in a magazine article, published a year or so since, stated that "not less than 20 per cent, of important jury cases are abortive by reason of disagreement"; and, in a discussion in the recent Constitutional Convention of Alabama, it was stated that at least 25 per cent, of the cases submitted to juries in that State resulted in mistrials, because of their inability to reach a unanimous verdict. Any rule which produces even an approximation to such results, surely pronounces its own condemnation. It is absurd to presume that verdicts are the result of actual concurrence of opinion on the part of all twelve of the jurors. It is well known that, in every walk of life, it is practically impossible to find twelve men who will agree unanimously upon any given statement of fact, involving an appreciable complexity; and so-called "unanimous" verdicts, in contested trials, are, in nine cases out of ten, the result of an abandonment of their real views by more or less of the jurors. A curious investigator of such matters has pub- lished a statement that the probability of a unanimous verdict being honest and without compromise or concessions, is one in 500,000. The great inconvenience, expense and delay resulting from the unanimity rule in civil juries, could only be justified on the theory that the concurrent verdict of the entire jury is in- fallible; and yet, in permitting a verdict to be set aside as contrary to the evidence, the law allows the opinion of a single judge to override the judgment of this infallible tribunal, unanimously pronounced thus attributing to this one man 326 READINGS IN CIVIL GOVERNMENT more wisdom than to the mystic twelve on the jury, notwith- standing their unanimity ! By the unanimity rule, an opportunity is given to every stupid, corrupt or prejudiced man, who may accidentally get upon a jury, to effectually stop the wheels of justice. What better field of operation could the "jury-fixer" desire than one in which it is only necessary for him to successfully tamper with one man out of the twelve ? And the danger in this di- rection is no mere theoretical surmise. In 1899 an investiga- tion into the jury system of Chicago revealed the fact that seven bailiffs of the court were implicated, several of them being in the "regular hire'* of certain corporations. Twenty jurors, in their scramble to turn State's evidence, testified either that they had actually received money, or that they were offered it, to hang juries ; and doubtless there are many other palaces of justice outside of Chicago, which, if they could but speak, would unfold tales equally as shocking. How disastrous is it to the rights of the poor litigant, when he has expended his last farthing and exhausted his utmost efforts in presenting his cause for decision, to have the whole thing end in a miserable abortion without any verdict at all, because, forsooth, he was unable to do that which is required of no suitor before any other tribunal on earth that is, to convince every single one of his judges of the merits of his controversy ! The whole theory of civil trials is, that the facts need only be proven by a preponderance of evidence. The rule re- quiring the exclusion of all reasonable doubt applies only to criminal cases, and is based upon considerations which have no application to civil controversies. When, therefore, in civil cases, the law demands unanimity in the verdict, it is simply requiring of the jury, as a whole, a unanimity of acquiescence not required of the faculties of any member of the jury, as an individual. The unreasonableness of the unanimity rule in civil verdicts, the inconvenience and expense resulting from suoh a rule, and the unsatisfactoriness of its operation, all concur, THE STATE JUDICIARY 327 as much as in any requirement that could be devised, to make the civil jury system inefficient and unpopular. Sev- eral thoughtful writers are to-day contending that the entire jury system be abolished in civil cases, as unsuited to modern conditions. In several States statutory provisions have been enacted discouraging jury trials and accustoming the people to do without them; and many writers on the subject have pointed out the great danger to the maintenance of the civil jury system resulting from the blind adherence to this absurd rule of unanimity. Referring to this subject, the distinguished Dr. Leiber says : It is by no means certain, that without some change in this matter of unanimity ... the right of trial by jury, one of the abut- ments on which the arch of civil liberty rests, can be prevented from giving away in the course of time." The abolition of the unanimity rule is often opposed by those who assume that they cannot get justice before any jury, and that, when they are obliged to go before such a tribunal, they can only rely upon the one righteous man in Sodom to save them. The whole opposition to the majority rule on a jury rests upon the hypothesis that, in such bodies, virtue and intelligence are always in the minority; but this proposition cannot be admitted. It is certainly true that in some cases the minority will be found to be right and the majority wrong; but with juries, as with all other deliberative bodies, the rule is, that the majority, especially if a substantial majority, will be right and the minority wrong. It is to the interest of the Commonwealth that there be an end to litigation. Instead of having causes kept upon the docket, and tried, retried and tried again, thus keeping alive and strengthening neighborhood feuds, exhausting the litigants with expense, and burdening the people with double and triple jury service, it were much better that some cases should be decided wrongly, for ofttimes any decision is bet- ter than no decision at all. Should the error in the verdict be glaring, it can be set 1 328 READINGS IN CIVIL GOVERNMENT aside by the judge and corrected as is done now; and trial lawyers, instead of satisfying themselves, as is often done, with playing upon the prejudices of one or more jurors, in order to obtain a hung jury, will be obliged to address themselves to the more serious task of convincing the majority of the jurors in order to obtain a verdict. One of the common arguments in favor of the unanimity rule, is that it compels the jury to discuss the case and con- sider it more carefully, by reason of the length of time required to obtain unanimity; but, without admitting the sufficiency of this reasoning, the same end is fully accom- plished in those States where the unanimity rule has been abandoned, by the simple requirements that a majority verdict cannot be rendered upon less than four or six hours' consideration. If, after six hours' discussion, neither party in the jury can convince the other, it is reasonably certain that they could never really agree. The question then arises, whether the law should attempt to force ju^rs into a verdict against their judgment and conscience, or else have a miscarriage of justice a futile attempt by the litigants to have their dispute legally decided or whether it should be conceded that, with a jury, as with every other known tribunal, a majority, especially if a substantial one, should decide the case. It would seem that this should not be a difficult question to solve. 65. CRIMINAL PROCEDURE IN THE UNITED STATES AND ENGLAND. That many of the delays and mistrials which occur in administer- ing criminal justice in the United States are unnecessary is shown by Professor J. W. Garner in the following comparison with results attained and methods followed in England: [1909]. If we compare American methods of criminal procedure with those of England and the Continent we cannot fail to be impressed with the fact that the chief causes of the wide- spread popular dissatisfaction with our own system are its cumbersomeness, the slowness with which criminal trials are started and expedited, the importance which is attached to THE STATE JUDICIARY 329 technicalities and mere matters of practice at the expense of substantive justice and an altogether too wide latitude of appeal. Notwithstanding the constitutional guarantee of "speedy" trials, the dockets of the criminal courts nearly everywhere are so congested with cases that trials cannot be reached for months and sometimes for years. It was put in evidence before the New York State Commission on the Law's Delay in 1903 that on the 1st of November of that year there were 10,000 untried jury cases on the calendar of the first department of the supreme court of that state. The court was then three years behind with its work and it required from one and a half to two years to reach a jury trial in Kings County. The clerk of the superior court of Cook County, Illinois, informed the writer in April, 1907, that there were then pending 12,653 cases before the superior court and 18,828 cases before the circuit court, the former being more than a year behind with its business and the latter about two years in arrears. The Iroquois Theater fire case in Chicago may be cited as a typical instance of the delays in bringing cases to trial. The burning of the theater, which resulted in the loss of nearly six hundred lives, occurred on December 30, 1903. Two months thereafter the owner of the theater was indicted. The indictment was held under advisement for a period of three months by the court and finally quashed. On March 4, 1905, a new indictment was found and was held by the judge for a period of seven months and a half. Finally, in March, 1907, three years and four months after the com- mission of the offence charged, the case was brought to trial only to result in the release of the accused on a technicality. Such delays are not only a wrong to the accused, if he be innocent, but they always work an injury to society and often defeat the ends of justice itself. No deterrent is so powerful as swift and certain punishment. Long lapse of time be- tween the commission of an offence and the trial induces pity, causes loss of interest on the part of the public prosecutor and not infrequently renders conviction difficult if not 330 READINGS IN CIVIL GOVERNMENT impossible by the death of important witnesses, their removal from the jurisdiction of the court or from lapses of memory regarding material facts connected with the crime. . . . One of the most prolific sources of popular dissatisfaction with our methods of administering criminal justice is the practice of the appellate tribunals of reversing the decisions of trial courts upon technical errors and granting new trials to criminals who have already been convicted. Justice Brown hardly exaggerated the facts when, criticising the American practice of allowing appeals, almost as a matter of course, he recently remarked that the rendering of the ver- dict was only the beginning of the trial in serious criminal cases. The supreme court reports of all our states furnish ample evidence of the truth of Justice Brown's statement. We have reached a point where it is almost impossible to punish a criminal after a single trial, especially if he can command the service of able and ingenious counsel. Our judicial annals show that a large proportion of the criminals of this country who have been punished in recent years have had the benefit of at least two trials and convictions. It has been abundantly established by experience that postpone- ments and new trials more often result in defeating justice than in promoting it. It is well known that after the lapse of a certain period it is almost impossible to convict the worst criminal. After the first trial the very stars in their courses seem to fight for him. Public interest languishes or becomes indifferent, the pressure of outraged opinion which operates as a powerful stimulus to the prosecuting attorney ceases, witnesses die or forget material facts, the sense of responsibility on the part of jurors diminishes as the memory of the crime recedes in the past and the case is often aban- doned or the offender acquitted because public sentiment no longer seems to demand his punishment. The doctrine of some tribunals that error in the procedure of the trial court, however trifling and immaterial, is pre- sumed to affect prejudicially the rights of the accused and that consequently wherever such error is found it is the THE STATE JUDICIARY 331 right and duty of appellate courts to grant new trials, is doing more than anything else to multiply appeals, defeat the administration of justice and impair public confidence in the efficiency of the courts. Some of the instances of reversals on account of presumed prejudice arising from technical errors in the procedure of the trial court would, says Wigmore, one of the highest authorities on the law of evidence, seem incredible even in the justice of a tribe of fetish-worshipping Africans. Some of the trivial reasons that have actually been assigned by the appellate courts of our states for allowing new trials are the following: because the name of the State was abbreviated in the indictment; because the word "feloniously" was omitted from the indict- ment, although the evidence showed that the crime was com- mitted with felonious intent; because the indictment merely stated that the victim "did then die" instead of stating that he "did then and there die"; because the word "mali- ciously" was omitted from an indictment charging the accused with arson, although it stated that the offence was committed "wilfully and feloniously"; because "the indictment charged the defendant with "killing and murdering" instead of stat- ing that he "did kill and murder" (the word "did" being held essential to a valid indictment) ; because the indictment charged the defendant with intent to "kill or injure" instead of to "kill and injure"; because the words "person or human being" were omitted from the indictment. . . . In England until 1907, when a court of criminal appeal was created, no right of appeal in criminal cases was allowed, though, of course, the decision of a lower court could be reviewed upon writs of error. The Home Office was expected to correct judicial wrong in criminal cases by means of pardons granted to persons unjustly convicted. The advan- tage of the right of appeal in criminal cases for a long time seemed doubtful to the English, and they were led to intro- duce it only after a popular clamor following the terrible mis- carriage of justice in the case of the unfortunate Adolf Beck in 1904. The opponents of appeal pointed out that such a 332 READINGS IN CIVIL GOVERNMENT system was expensive, cumbrous, dilatory and ineffective; asserted that it would substitute the judgment of a court with only the record before it for the judgment of twelve men who meet the witnesses face to face and hear the testimony from their own lips, and declared that it would tend greatly to diminish the sense of responsibility of jurors, since their verdict would not necessarily be final. This view has not been without able supporters in America, though as yet the number has been small. President Taft, for example, in an address before the Yale Law School in 1905 asserted that: "If laws could be passed, either abolish- ing the right of criminal appeal and leaving to the pardon- ing power, as in England, the correction of judicial wrong; or, instead of that, if appeals must be allowed, then if a pro- vision of law could be enacted by which no judgment of the court below should be reversed except for an error which the court, after reading the entire evidence can affirmatively say would have led to a different verdict, ninety-nine reversals out of one hundred under the present system would be avoided. " In England the judge occupies a commanding position in the trial which is wholly denied to him in America. He is not only vested with large power in the selection of juries, but is allowed to review and sum up the evidence, sift out the immaterial from the material, put the evidence before the jury in intelligible and coherent form, and, if the jurors have been confused and misled by the arguments of counsel, to set them right before giving the case into their hands. There is really no danger in this principle, since it does not in the slightest degree take away from the jury its power to determine the question of fact, but only helps it toward an intelligent decision by a sifting and clearing-up process. In America, as Judge Grosscup has remarked, the judge is practically not allowed to take part in the trial of criminal cases. His position is that of an umpire or a moderator rather than a judge in any real sense. The truth is, the Americans have gone to the extreme in exalting the function THE STATE JUDICIARY 333 of the jury at the expense of the judge. There is still a wide-spread disposition as in Blackstone's day to worship it as a fetish and to look upon the judge with a sort of supersti- tious fear, though in nearly all the states the judges are popularly elected for comparatively short terms. Many eminent American jurists, among them President Taft, have complained of the position of impotency to which American judges have been reduced and have urged the restoration to them of some of the powers which they enjoyed originally at common law and which in England they enjoy to-day. In other respects the English methods of administering criminal justice are acknowledged to be decidedly in advance of ours. The New York State Commission on the Law 's Delay reported in 1903 that it was "profoundly impressed" with the English system of procedure and asserted that the English courts from having been the most dilatory in the world have become in recent years the most expeditious. The Commis- sion further declared that we * ' could not do better than adopt some of these modern methods of procedure which have been so thoroughly tested in England and have proved to work so well." The difference between the efficiency of the Eng- lish and American methods of procedure is well illustrated by the Rayner and Thaw trials. In each case the facts were very similar and the plea was the same, namely, insanity. In the Rayner case the trial was started within a few days after the offence was committed, the jury was selected within an hour's time, and the trial was completed and the murderer con- victed before the end of the first day. Thaw was brought to trial months after his crime was committed, and he was finally sent to an insane asylum after two trials which dragged through a period of a year and a half. Had he been con- victed, appeals, reversals and new trials would have fol- lowed, and ultimately the case would in all probability have been carried to the United States Supreme Court. In any case there is no reason for believing that he would have been punished, if at all, within at least three years after com- mitting his crime. 334 READINGS IN CIVIL GOVERNMENT The English Master of Judicial Statistics in the letter to Hon. Joseph H. Choate already referred to, describing the promptness and despatch with which trials are conducted in England, stated that twenty-three judges handle all the litigation of England and Wales with a population of about 32,500,000 and that they actually try and determine an average of 5,000 cases a year, or more than twice as many a* are tried by forty-three judges in New York and Kings Counties. As I write, July 1st, 1909, there lies before me a copy of news despatch which states that the English Court of Appeals has decided practically all the appeals that were on the docket at the beginning of the present term and that it is now disposing of cases that have been down for hearing less than five weeks. This seems wonderful indeed to us who are accustomed to a system under which our appellate courts are usually from one to three years behind with their dockets. There is no longer any excuse for the retention of our present system in the form which it has come to possess. It is totally inconsistent with the standard of civilization which we have attained in other fields, and especially with our reputation for doing most things more rapidly than any other people. It is refreshing to note that the most candid mem- bers of the bench and bar are beginning to take a more common sense view of the purpose of a judicial trial and are joining in the agitation for reform. ADDITIONAL READINGS 1 Justice and Police Courts, Fairlie, J. A., Local Govern- ment, 95-118. 2 The Laws Delays, Baldwin, S. E., The American Judiciary, 365-73. 3 The Organization of the Courts of the States, Ibid., 125- 36. 4 The Trials of Jury Trials, Coxe, A. C. y Columbia Law Re- view, I, 286-97. THE STATE JUDICIARY 335 5 Proposed Reform in Judicial Procedure, Deemer, H. E., Proceedings of the American Political Science Associa- tion, IV, 246-59. 6 The Administration of Justice, Taft, W. H., Green Bag, XX, 441-7. CHAPTER XV MUNICIPAL GOVERNMENT 66. HOME RULE FOR CITIES. No branch of American politics has been more severely or more deservedly criticised than the government of our cities. At the same time no subject has been studied and discussed more thoroughly dur- ing the last twenty years and in no direction have there been more hopeful signs of improvement. One of the besetting evils of city government has been its slavish subjection to the government of the State. In the following selection Mr. E. P. Oberholtzer points out the evils of too close State supervision and outlines the movement toward municipal Home Rule up to 1903: Another movement which is meant to prevent confusion, simplify the processes of government, and drive corruption from its sheltered haunts is the emancipation of cities from the State legislatures. I do not remember elsewhere to have read so intelligible a discussion of the incongruities and anomalies in our present system of making local boundaries, as that by Professor Patten. Lines have been drawn arbitrarily without the slightest regard for the temper or character of the popula- tion. Great industrial and maritime cities are thrown into agricultural States. Half the population may be settled per- haps on a few square miles of space in one corner of the State. With wholly different interests these two sections of the people, urban and rural, come together at the State capital, and in consequence the results are mutually disadvantageous. Neither section understands the needs or wishes of the other, and the effect is weakening, corrupting, and unwholesome for the political life of both the city and the State. How by prac- tical means they are to be separated, now that they are joined 336 MUNICIPAL GOVERNMENT 337 together, is a difficult question to decide. The State was pres- ent before the city. The city is an afterthought, and an after- growth. It has developed from the village, and while there was no little political friction between New York and Phila- delphia and the rural counties a century ago, the understand- ing is infinitely less to-day since the cities have grown to their present proportions. The State legislatures are in serious decline. They have lost much of their former title to public respect, and their powers have been curtailed in a variety of ways by the Consti- tutional Convention. Not a few of their ills and misfortunes spring from the lack of homogeneity in the population of the modern State. It is a grouping of diverse and discordant elements which work at cross purposes with each other. A partisan majority of one kind in the rural counties confronts a majority of a different kind in the city, and thus there is cordial and direct invitation of trading, bribery, ' ' log-rolling, ' ' "jamming," and other evils, now very familiar at the State capitals. The State legislatures have made themselves more and more meddlesome in the affairs of the municipalities. To settle some grudge, to "strike" vested wealth for large sums by means of blackmail, to reward party men for some political service, the legislature, without warning, passes a bill chang- ing the legal or institutional system of a city. The municipal government is a derivative creation it is the absolute creature of the State and the legislature, except as it has been limited by the Constitutional Convention, makes laws at will in refer- ence to cities. It grants the charter, amends the charter, and by "special" and "general" laws is almost everywhere free at each session to make, unmake, or remake the government of any municipality within the State, no matter what its wealth or size. That these arbitrary and evil attacks upon the rights of great cities are contrary to public policy needs no particu- lar demonstration. The disposition on the part of the legis- latures, for no honorable or necessary cause, suddenly to with- draw grants which they earlier had made and to abuse the privileges they enjoy in superintending the government of 338 READINGS IN CIVIL GOVERNMENT cities, has gone far to condemn absolutely the existing relation- ship and induce us to seek a safer system. Home rule for cities has become an imperative demand in all parts of the Union, and as a remedy for a certain class of ills, it is full of promise for the American municipality. It is not immedi- ately practicable to separate the city from the State and let it stand in independent and direct relationship with the na- tional government. It is considered feasible, however, in some States, to attempt to divorce the city and the legislature, a movement which while still rather new, has met with marked public favor. The elimination of the legislature closes at least one source of corrupt influence and dishonesty. If there is to be corruption, let it originate at home in the bosom of the people who are most concerned about it. The sage Ameri- can politician, who, in a partisan controversy over a seat, was informed that both contestants were "rascals," and who promptly inquired ' ' which is our rascal ? ' ' betrayed a prefer- ence that may profitably be recognized in city government. With home rule we need patronize only our own rascals, which is a blessing worthy of note. The only weapon with which to combat effectively the State legislature is the Constitutional Convention. It is true the legislature, in a season of virtue, may resign its powers over the cities by statute ; it may agree as in Louisiana to let the people frame their own charters, and amend those instru- ments at their own pleasure. When a charter is submitted to the citizens, and is adopted by a majority vote, it gains bind- ing force in any town or city, except New Orleans, which is expressly excepted from the provisions of the law. Such a grant, however, is wholly voluntary with the legislature, and the statute may at any session be repealed or changed. In many States the legislature without formulating its design in general statutory terms, submits local government acts and charters for the approval or rejection of the people of the dis- tricts to which they relate. Such a practice, while it is en- tirely praiseworthy, is likely not to prevail in regard to large cities. In the best case the legislature obeys its own will and MUNICIPAL GOVERNMENT 339 whim only its honor stands between to protect the cities, and it is this that has sometimes failed us. It is plain that the city needs a direct constitutional pledge and guarantee. Such a guarantee it secured in Missouri, in 1875, when a new constitution was adopted in that State, arid a scheme was devised for freeing St. Louis from the debauch- ing influence of the legislature. The convention took a radi- cal step. It introduced an entirely new principle into mu- nicipal government in America, and decided that the city henceforward might, free of the legislature 's interferences and restraints, frame its own charter. It might elect thirteen citi- zens to a Board of Freeholders, submit the charter which they should prepare to the people of St. Louis, when, if the latter approve, the instrument would become the supreme law of the city. On the initiation of the municipal assembly, the char- ter might later be amended with the assent of the people, and without consulting the legislature. A similar constitutional provision granting home rule to all the cities of Missouri, which should have or should later attain a population of at least one hundred thousand, led to Kansas City's adopting a Freeholders' Charter in 1889. Meanwhile the convention which met in California, in 1879, to prepare a new constitution for that State, sought to extend the same privileges to San Francisco; and a provision was made permitting any city in California of more than one hundred thousand inhabitants to elect a board of fifteen free- holders, and adopt its own charter. California, unlike Mis- souri, must submit her charters to the legislature, after they have been approved by the people. The legislature, however, must accept or reject them "as a whole, being without power of alteration or amendment/' In 1886, by an amendment to the constitution of California the limit of population was reduced from one hundred thousand to ten thousand, and in 1890 it was further reduced to three thousand, five hundred, so that all the cities of the State may to-day have home rule if they care to avail themselves of the opportunity to establish their own forms of government. Los Angeles, Oakland, Stock- 340 READINGS IN CIVIL GOVERNMENT ton, San Diego, Sacramento, Grass Valley, Napa, Eureka, Berkeley, San Jose, Vallejo, and Santa Barbara, followed each other rapidly in adopting Freeholders' Charters. San Fran- cisco, which the provision was designed especially to benefit, did not succeed in getting free from the State legislature until 1899. Again and again, freeholders were chosen to frame a charter for the city, but because of the relentless antagonism of a political clique to this reform, it was only at the fifth election, eighteen years after the first attempt was put forth, that a majority vote of the people was obtained in favor of a new body of fundamental law for San Francisco. These five elections were held in 1880, 1883, 1887, 1896 and 1898. While the legislature in California may at its pleasure refuse to ratify a city-made charter, in no case has it yet withheld its approval. The State of Washington, when it entered the Union, in 1889, brought with it a constitutional provision permitting cities of a population of twenty thousand or more to frame their own charters. The terms of the grant were practically the same as in California, except that the ratifying vote of the legislature was dispensed with. In consequence of this pro- vision Seattle, Tacoma, and Spokane now have Freeholders' Charters. The fourth State to adopt the system was Minnesota, which, by constitutional amendments approved in 1896 and 1898, worked out a modified plan of its own. In Minnesota there is no specified minimum limit of population for cities which may avail themselves of the right to the Freeholders' Charter. All cities and villages possess equal privileges. The Board of Freeholders is a permanently constituted body not selected by the people for a definite service, as in the other States, but appointed by the district judges for a term of six years. The only obstacle which has been met with in the pathway of the Freeholders' Charter is a serious conflict of authority between the new semi-independent city and the legislature. The State constitution declared that the city shall frame its own charter, but manifestly it may not secede from the State MUNICIPAL GOVERNMENT 341 or make rules or regulations for its own government, which place it outside the pale of control of the central state agencies, chief of which is the legislature. In Missouri it is specified that the "charter and amendments shall always be in harmony with and -subject to the constitution and laws of the State," while in California and Washington they must be ' * consistent with and subject to the constitution and laws." The legisla- ture, although in many States forbidden to pass special laws on a great variety of subjects, including city government, be- cause of its reckless abuse of the privilege, still finds a large field for its activity in the enactment of general laws. It re- sorts to many improper subterfuges. It constructs general "classes" in which but one city or county is a member. In California fifty-seven counties are divided into fifty-three classes. The opportunity for evil is as open and as great as before, and, whether legislation is nominally general or special, it is clear from the judicial opinions in Missouri, California, and Washington, that the legislature must and will exercise supervisory authority over all the territory under its jurisdic- tion in such matters as schools, streets, and the police system, and I am not convinced that any part of the State should be released from a central control on these subjects. The cities which have adopted Freeholders' Charters are not enjoying these extensive liberties. In many cases the constitutional pur- pose and intent of the reform have been violated flagrantly and the city is as completely as before at the legislature's mercy; for a charter, no matter how near at home its origin, which may be changed at will by an outside authority, is, when that outside authority is evilly disposed, not sensibly better than any other charter. Minnesota, taking to heart the lessons learned by Missouri, California, and Washington, has not deceived herself with dreams of free cities. While it is specified that the charters in that State shall be "in harmony with and subject to the constitution and laws of the State," it is also provided that the cities shall be divided into four classes, for which the legislature is expressly authorized to enact general laws, "paramount while in force to the pro- 342 READINGS IN CIVIL GOVERNMENT visions relating to the same matter included in the local char- ter." In no case shall a local charter or ordinance "super- sede any general law of the State defining or punishing crimes or misdemeanors." But of all the devices proposed as a means of protecting American cities from the undue interference of the legislature, the system recently adopted in New York State, is most likely to commend itself to careful students of municipal govern- ment. Even under Minnesota's modified form of the Free- holders' Charter, there is still no room for special legislation. As universal as the prohibition of this kind of legislation has become in the past quarter of a century, we are beginning to understand that, in the very nature of the case, special laws for localities are sometimes necessary. There are matters of local administration which cannot satisfactorily be brought under a general head. To find a system harmonizing this idea with the idea of home rule was reserved for New York. In that State, since the constitution was revised in 1894, the enactment of special laws, relative to cities is permitted by the legislature, but these laws as bills must be submitted to the municipal authorities of the community to which they relate. The mayor of the city receives the bill and appoints a time for a public hearing when objections to its passage may be pre- sented. He may veto the measure, although the legislature may pass it over his veto, in which case it is expressly de- clared in its title for the information of all whom it may con- cern that it was ' ' passed without the acceptance of the city. ' ' This constitutional provision legally opens the way to special legislation, while duly regarding the rights of the munici- pality. It is required that all special acts of this kind shall be referred to the, regularly delegated officials within each city, whose government is to be changed ; the constitution, however, recognizes the supreme authority of the legislature, the gov- ernor, and the other agencies, to which the general welfare has been committed by the sovereign people, when it provides a method for the enactment of the law in spite of possible petty local hostility. Thus, while some difficulties are put in the MUNICIPAL GOVERNMENT 343 way of special legislation for cities, it is not made wholly im- possible. The reference of the bill to the locality affected affords an opportunity for public discussion and should the measure be unworthy, it is reasonable to suppose that it could not be easily passed a second time, in the face of local disap- proval. Whatever the final outcome of this interesting con- test between the city and the State, it is plain that we are constantly moving toward results which promise soon to be more definite, and we may hope more satisfactory. Our better judgment tells us, and theory and experience enforce us in the opinion that the city, however great a de- gree of independence we may wish it to possess, cannot really be free of the legislature's supervising control. Many sub- jects must still be regulated by uniform laws, and political opinion has been very generally on the side of the legislature whenever conflict of authority has arisen between the city and the State. While constitutional checks and restraints upon the legislature are deserving of hearty encouragement, when these are not extreme and give promise of practical results, it must be always remembered that the only cure for the dis- graceful political ills which plague our cities is administrative agents of character and courage. This is the need in all branches of governments local, state, and national. Home rule will not be better than rule at a greater distance, if the agencies are not at hand to make good government possible. Paris, Washington, and other great capitals of the world, noted for the excellence of their public service, have scarcely a vestige of home rule. Their affairs are administered by the nation. The people of the city are without care or responsi- bility concerning the government. They enjoy the benefits of a superb system, in which they have no constructive part. But, while it is good men who are the prime requisites of good government, our present methods are in general poorly de- signed to bring forward such men. To put the farms against the cities, to look to the State capitals for laws that will be well adapted to the needs of the great populations of all de- grees of poverty and wealth, of all nationalities, and of the 344 READINGS IN CIVIL GOVERNMENT largest variety of employments, is a crucial mistake. Al- though our constitutional system seems to suggest no ready form of relief, some more rational alignment of the popula- tion into harmonious groups is to many of us what "a firm, wise, manly system of federal government " was to Robert Morris, in 1782, who, in speaking of such a government, said, "It is what I once wished, what I now hope for, what I dare not expect, but what I will not despair of." Is it too much to expect that we will, in the not too distant future, have cities which, simply organized and measurably free, will de- serve their liberties; that the American people, developing a civic pride and a sense of true local patriotism, will make their cities the peers of the old Grecian or the Italian and Hanseatic cities whose careers were so brilliant in the Middle Ages? 67. RESULTS OP HOME RULE. Since the preceding article was written the movement toward mu- nicipal self-government has spread to other States, notably Michigan and Oklahoma. That it has had a beneficial effect on city govern- ment is the opinion of Mr. M. R. Maltbie expressed in the following selection. [1905]. This scheme for municipal home rule seems to satisfy fully the cities that are working under it. Objections are raised to this or that detail, and not infrequently some minor change is advocated, but the fundamental principle is generally satis- factory. The vote upon amendments to the constitution has shown considerable opposition, but usually less than one-third of the total vote on the amendments, and I know of no in- stance where they have been defeated at the polls. Gener- ally, the opposition comes principally from the rural districts which distrust the ability of the cities to govern themselves, are reluctant to surrender their control and are fearful of a campaign of retaliation. When once adopted, however, the number of opponents rapidly decreases, and in the cities them- selves it is very small. In no State is it proposed to repeal the home rule provision and to return to the lees and husks of legislative rule. It is possible that the people are mistaken MUNICIPAL GOVERNMENT 345 and that their present condition is worse than their first, but it is undisputed that the cities having freeholders charters are satisfied with the general scheme of home rule. The character of the charters adopted seems to justify this view. The statement is frequently made by persons who have lived in various cities and have had an opportunity to com- pare freeholders charters with legislative charters that the former are noticeably better, that they more nearly conform to the best principles of political science, have greater unity and consistency, are better adapted to the needs of the locality, respond more quickly to local changes, etc. My own investi- gation confirms this statement, but there have been excep- tions. The champions of home rule do not claim that it has wrought a revolution in city administration or has brought the millennium. Municipal corruption has existed in St. Louis even under its freeholders charter. But political corruption has its source back of charters; they may assist, but they rarely cause it. However, a good charter is an aid to good government, and so far as it is often immeasurably so the system of home rule we are discussing has contributed its share. The long period in which it has been tested and the vary- ing circumstances under which it has been tried seem to indi- cate that its beneficial results are permanent and not transi- tory. It is founded on certain fundamental principles which are thoroughly sound. In the first place, the system fixes responsibility. Under legislative charters, the city excuses it- self for every misdeed, saying that as it does not make its own laws, it cannot be held accountable and that the fault lies with the legislature. The legislature replies that the city is to blame. When a city makes its own charter, such shilly- shallying is impossible. If its government is at fault, it has the exclusive power to remodel it, and it cannot shift the bur- den to another 's shoulders. It makes its own bed, and it must lie in it a theorem which conduces to the selection of a bet- ter bed. Responsibility is not only focalized but localized. State 346 READINGS IN CIVIL GOVERNMENT administration of municipal matters may centralize and definitely fix responsibility, but the persons in authority are out of each. They are not elected by the locality and they can neither be punished by it for mal-administration nor rewarded for efficiency a condition which leads to indifference, to laxity, and often to corruption. Under home rule, the condi- tions are exactly reversed. The officials are near at hand where they may be watched, every act made known, misdeeds punished, and efficiency rewarded. This applies with great force to charter-making and the satisfactory character of free- holders charters is largely due to the localization of responsi- bility. Home rule has also an educational value. The boy never learns to swim who refuses to enter the water. The city never learns to administer its affairs by being governed from the State capitol. Left to themselves, these western cities have made experiments and acquired valuable experience. They have adopted many ideas which are new to munic'.pal admin- istration ; some have failed and some have succeeded ; but the lessons have been well learned and the cities are wiser and stronger. The concentration of power has a stimulating as well as sobering effect. When legislative interference is removed, the city not only says, we are thrown upon our own resources and must take more care, but also, here now is our opportunity to achieve results; the State has expressed belief in our ability to govern ourselves; we will not disappoint it. Having the power to accomplish something and seeing at last the impossi- bility of having one 's efforts set aside by outside interference, men of ability and civic patriotism come to the fore. This, after all, is the immediate cause of the beneficial re- sults, for if good men are not elected as members of charter conventions, good charters will not be drafted. There have been exceptions, but generally speaking delegates to free- holders conventions have been selected from among the best men of the city. Party lines have been broken down and nom- inations made independent of party, or the best men of each MUNICIPAL GOVEKNMENT 347 party placed upon a union ticket. In elections, too, party lines have not been followed. Naturally, the men selected have been of a high type, a higher type than the members of the legislature. They have been chosen for a special purpose and with their special qualifications for this work in mind. The importance of the duty to be performed has made the selections of the best men imperative, and in turn it has at- tracted them, just as a constitutional convention attracts the ablest men of the State. Further, a charter convention gives its whole attention to one subject and not to a multitude of unrelated topics. Every point is given careful consideration, both within and without the convention. The States have benefited as well as the cities. By the re- moval of local matters from the jurisdiction of the legislature, special legislation has greatly been reduced. For several years prior to the adoption of the constitution of 1879, the legis- lature of California passed from 1,000 to 1,200 acts at each session. In the session of 1903, only 385 were enacted (for many years the number has not risen above 300) and of these only 19 related to city affairs. This decrease is not wholly due to the provisions for city-made charters, but in part to the general prohibition against special legislation of many kinds. But without the scheme authorizing each city to make its own charter, there would have continued to be a large number of local acts in one form or another, if we may judge from the experience of other States where they have adopted the prohibition against special legislation, but have not pro- vided for the formation of charters by the cities themselves. Primarily the city has benefited by this decrease in legis- lative interference, but not less than the State. It is now possible for legislators to give their full time and attention to matters of general interest. Heretofore, local matters ab- sorbed most of the session. As each member was continuously busy log-rolling on some local measure, he had little time for bills of broad character and general concern. It is unjust to blame the men themselves too severely, for their constituents and the local politicians besieged them constantly. If they 348 READINGS IN CIVIL GOVERNMENT rebelled or were indifferent, they were not re-elected. The locality was not wholly at fault either, for to secure the kind of government wanted, it was necessary to go to the legisla- ture ; there was no power vested in the city. The root of the evil was in the lack of home rule, and when it was granted, the legislature was free to do the work for which it was in- tended, viz., to enact general laws for the interest of the whole State. In principle the system in vogue in these western States is not new. In our early history the drafting of charters by the cities themselves through some well recognized local agency, such as the common council or a specially selected charter committee or convention, was the customary plan. Even in New York, where the legislature at such an early date as- sumed the prerogative of enacting numerous laws relating to purely local affairs, it was a well recognized principle until well into the last century, that a law altering the charter should not be passed when opposed by the city. Even later the principal acts that were passed without first seeking local approval were acts conferring power upon the city rather than restricting its functions. The last charter convention in New York was held in 1846, and the method it suggested for charter amendments proposals to be approved by a two- thirds vote of the members of each branch of the bicameral council and afterwards ratified by the people was almost identical with the method provided a generation later in the home rule scheme of Missouri. In the States which have suffered least from the evils of special legislation, the legislature has confined its activities to the enactment of very brief and general laws specifying in general terms only the principal features of municipal char- ters, leaving to the cities themselves the privilege of filling in the details and of altering them as local conditions changed. England, which is looked upon as the home of self-govern- ment, has pursued a similar course; and in France the cities likewise have been given wide discretionary powers. The practical difference between the "freeholders charters" MUNICIPAL GOVERNMENT 349 provided for in these five western States and this system is small. In each, matters of State interest are reserved to the central government. To the cities there is also reserved full power to deal with municipal matters in their own way. The principal difference is that under the English and French systems and the plan of enacting only very general laws, the legislative authority may interfere at any time and deprive the cities of all autonomy; while under constitutional home rule a field of municipal activity is set apart into which the State authorities may not come. It is merely the crystalliza- tion into constitutional law of the best practice in the United States and Europe a crystallization that has been found to be necessary to protect the rights of cities against the encroach- ments of the State legislature. In no country is the city made absolutely independent, but where some sort of control is nec- essary, administrative control has been substituted for legis- lative interference to the great benefit of all concerned. The recent tendency in the United States is in the same direc- tion. 68. COUNCIL GOVERNMENT VS. MAYOR GOVERNMENT. Another important recent tendency in American city government is the concentration of power in the hands of the mayor. The coun- cil is reduced in size, or from a bicameral to a unicameral body and shorn of its main functions, or is abolished completely, as in the cases of Galveston and Des Moines. That this development has been carried to an extreme and that the city council should be re- tained and rehabilitated is the belief expressed by Professor E. Dana Durand in the following article: [1900]. The most striking tendency in the recent history of Ameri- can municipal government is that toward increasing the power and responsibility of the mayor. There is scarcely an impor- tant city which has not modified its charter in this direction within the past quarter-century. The practically exclusive control which the city council formerly exercised over the ex- ecutive administration has been by gradual steps almost com- 350 READINGS IN CIVIL GOVERNMENT pletely taken away; while even what have always been con- sidered essentially legislative functions, especially those pertaining to the finances, have been in no small measure transferred to the city executive. At the same time, there has been a rapid centralization of the executive power itself. Heads of departments were formerly for the most part placed in office, or at least retained there, regardless of the will of the incumbent mayor; but by the most modern charters they are nearly all made appointive and summarily removable by him. In New York, Boston, Chicago, Cleveland and several other leading cities, the right of confirming appointments, the 1,-i-t- remaining means by which the council could exercise some di- rect control over the personnel of the executive, has now been abolished, while in other municipalities it is retained only as a concession to tradition and conservative influences. This great change in municipal organization, moreover, has not been, like so many others, brought about simply by thoughtless, partisan or corrupt legislative tinkering. While in many cases such influences have doubtless shared in the movement, it has yet met the approval though in differing degrees and according to different lines of reasoning of very many of those who have disinterestedly sought better munici- pal government. It has the sanction of such names as those of Seth Low, Gamaliel Bradford, Edmund J. James and Frank J. Goodnow. The latest and most authoritative utterance as to the relation of the council to the mayor is to be found in the report of the municipal program committee of the Na- tional Municipal League, published with the approval of the League in 1899. The committee does, indeed, maintain the desirability of rehabilitating the decaying city council, but urges that this body be confined strictly to legislative func- tions; while the probability is that the suggested methods of increasing its influence would prove relatively ineffective in practice. The proposed general municipal charter provides that the mayor shall have the sole power of appointing and removing all executive officers except the comptroller; and that he shall be given also the exclusive right to initiate appro- MUNICIPAL GOVERNMENT 351 priation measures, leaving the council only the authority to reduce items of the estimates submitted. Had the increase in the prerogatives of mayors not been accompanied by a very great weakening, often by the almost complete annihilation, of the power of our city councils, it would perhaps call for less comment. Could it be considered as having merely introduced that separation of powers which is the main principle of our constitutional law ; had city legis- latures retained a prominence corresponding to that still pos- sessed by Congress and state legislatures we should have no new problem in the science of politics. We should have sim- ply the old question, whether or not this system, with its checks and balances, is after all more advantageous than that which gives the ultimate control and responsibility to the representative body alone ; with the additional inquiry whether, granting the desirability of the separation of pow- ers in the higher grades of government, it is equally feasible and desirable in the city. But the actual standing of the city council is far different from that of our state and national legislatures. Already in many cities either the council has been deprived directly by statute of all save relatively insig- nificant powers, or in practice, despite the legal form of au- thority, its real influence has dwindled almost to zero. In both New York and Brooklyn, prior to their consolidation, we saw " a local elective legislature with practically no power"; while under the Greater New York charter the sphere of the council is apparently increased by little more than " certain obstructive powers, ' ' which are scarcely likely in actual work- ing to restore it to a position of influence. The council still retains in most cities the relatively unimportant function of making ordinances concerning the conduct of citizens as to nuisances, use of streets, etc. It still grants franchises, though often the executive participates very largely in this power. It still has some control over expenditure, although, under the new practice of giving the initiation of financial measures solely to the executive, the council has often ceased to have much real weight in determining the budget. Other powers 352 READINGS IN CIVIL GOVERNMENT than these, as regards either the broad policies or the details of administration, the council in many cities has almost none : the state legislature or the municipal executive has absorbed them all. Unless there shall be a turning in the tide, the once all-powerful city council seems likely to become a mere useless fifth wheel in the American municipal chariot. Some, indeed, of the friends of good city government have watched this emasculation of the council with regret and ap- prehension and have advocated measures, usually rather in- effective for restoring some of its pristine vigor. But others have seen in this process only the steady withdrawal of power from dangerous hands to place it in safer ones. The council is widely discredited. The name of alderman is used as if synonymous with "boodler" and " ward-heeler. ' ' "It is not entirely clear/' says Seth Low, speaking of New York and Brooklyn, "that either city would suffer under existing con- ditions by the abolition of its common council." Mr. Low utters this with something of a tone of regret, but others have boldly and cheerfully advocated this very step. Says one recent writer: Because legislative bodies are always inefficient administrators, it does not follow that administrators are poor legislators. ... It has yet to be shown that aldermen have ever filled a useful function in a modern American city. Doubtless this last is the position of an extremist, which would meet little endorsement. Nevertheless, the conspicuous facts of the great reduction of the power of the council, of the progressive degeneration of its character, of the growing dis- trust with which it is viewed, challenge consideration. They appear to demand a thorough study of the arguments which have been advanced in favor of the transfer of the centre of gravity of municipal administration from the council to the mayor. They confront us with such questions as these: Is this transfer of power consistent with democratic principles? If not, are we yet forced to it by the unripeness of our city populations for democracy? Is the movement a temporary MUNICIPAL GOVERNMENT 353 or a permanent one? If we have gone too far in taking a large part of properly legislative work from the council and giving it to the executive, can we partially retrace our steps and secure a practicable division of the legislative from the executive sphere? Can we prevent the council from swal- lowing the mayor, to use Dr. Albert Shaw's phrase, if we at- tempt to check the mayor in his process of engorging the coun- cil? If this .balance of powers be found impossible, is not perhaps the logical and democratic solution to be found in making a numerous representative body, rather than a single individual, the controlling and responsible authority in mu- nicipal government? We shall best be able to consider these questions, if we take up, one after another, the arguments which have been brought forward in favor of increasing the power and responsibility of the mayor. . . . The fallacy of the line of reasoning which we have been criticising is aggravated by the fact that, in pointing out the results which have come from centralizing power in the mayor, no account is made of the growth of public sentiment demand- ing better government and compelling the choice of worthier men for office men who would have made improvement in the administration under any form of organization. Flagrant abuses from time to time stir up the ' ' good citizens, ' ' who are always in the majority, if they will only act and act together. A wave of reform overturns with the same sweep forms and individuals ; for the American reformer is never content unless he tinkers the governmental machine at the same time that he puts new men in charge of it. The improvement which comes perhaps solely from the change of men is then attributed primarily to the change in form. That this is a fairly correct description of what has taken place in recent years in some American cities which have introduced the mayor system seems to be evidenced by the fact that the character of the gov- ernment has often been but temporarily improved after the change, or at least has fluctuated with the rise and fall of the reform spirit among the citizens. It is too early to judge finally the practical working of the system. Undoubtedly 23 354 READINGS IN CIVIL GOVERNMENT there has been some permanent increase in the interest of the people in municipal government and in their devotion to the civic welfare, and this fact will tend in itself to give us a higher level of city administration. But the path of one man rule is not all rose-strewn. Many bad mayors have got into power and, by the abuse of their immense prerogatives, have given administration scarcely equalled in extravagance, in- efficiency and corruption, during the worst periods of the earlier regime. Nor have the people always been able as they should have been, according to the theory of the one- man system by at once placing the blame where it belonged, to overthrow the unworthy ruler and establish an upright one in his stead. The untrammelled mayor, with his enormous patronage, his control of the election machinery, his ability often to conceal from the public the true character of his ad- ministration, has not unfrequently succeeded in securing re- election for himself or triumph for his ring. Only a few in- stances of the unsuccessful working of mayor rule can be cited from among the many whose existence any candid student of recent municipal history must admit. It must be confessed that Boston has for the most part elected efficient and upright mayors during recent years, but other cities have not been so fortunate. In New York City the prominence of the mayoralty has at times driven even Tam- many Hall to put up good men, such as Grace and Hewitt. But within this very decade, in the face of the growing re- form sentiment, that organization has elected to the mayor's chair for two successive terms an ' * illiterate and obscure man ' ' who filled all vacant offices with " adventurers of the lowest character ' ' ; while under the rule of his successor, also elected by Tammany, a legislative investigating committee unearthed in the police department scandals such as scarcely any other civilized city has ever known. The first election under the Greater New York charter resulted in the defeat of Seth Low, well known to have been the best mayor Brooklyn had ever had, by a man who has followed almost absolutely, in his ap- pointments and his general policy, the dictation of the Tarn- MUNICIPAL GOVERNMENT 355 many boss and whose connection with the Ice Trust has been by no means creditable. In Brooklyn the first election under its famous ' ' model char- ter" brought Mr. Low into the Mayor's chair, but for eight years after he left office ''mayors were elected, and appoint- ments were made by them, on party grounds"; while the administration of the city was "believed to be feeble and un- trustworthy, its public moneys and franchises to be unscrupu- lously wasted. . . . This last is the admission of a strong advocate of the mayor system, who insists that it was even then working well in Brooklyn, for the reason that the people knew precisely who was at fault, but who fails to show us why they did not straightway put better men into office. Philadelphia, too, since the great increase in the power of the mayor in 1887, has found it impossible, with perhaps a single exception, to elect good men to that office, while the character of the council has fallen lower than ever before. A state investigation, made in 1897, revealed many abuses favoritism and extravagance in letting contracts, interference by the police in elections and connivance by them in all sorts of violations of law, and above all, a complete undermining of the civil service reform system, this last evil being em- phatically corroborated by the secretary of the National Civil Service Reform Association. The recent attempt of the mayor and city officers to blackmail Mr. Wanamaker illustrates the character of the administration ; while the lease of the gas works in 1897 appears to have been accompanied by whole- sale corruption. Philadelphia's expenditures rose from $13,- 273,000 in 1887 to $23,491,000 in 1895. Similar, too, has been the experience of several smaller cities which have changed to the one-man system. Indianapo- lis, since the adoption of her centralizing charter in 1891, has not elected a single mayor who has obeyed the spirit, or even the letter, of the laws regulating the civil service. All ap- pointments have been made on strictly partisan grounds. Four years after Quincy, Mass., greatly increased the power of the mayor, Mr. Gamaliel Bradford, who had specially urged 356 HEADINGS IN CIVIL GOVERNMENT the change, was forced to confess that "extravagance of ex- penditure, local jobbing and caucus politics are as rampant as in any other city in the state." In Cleveland the mayor has abused his appointing power for the sake of aiding his own political ambitions. Nowhere, in fact, can the advocate of mayor domination, if he be candid, point to anything like thoroughly and continuously good administration where that system has prevailed. Temporary improvement has often fol- lowed a change to mayor rule; permanent improvement even has resulted in certain cases from doing away with the anom- alies and complexities of earlier charters; but the actual suc- cess of the centralization of power has fallen very far short of fulfilling the promises which were held out to us. 69. THE DBS MOINES PLAN OP CITY GOVERNMENT. In 1907 the General Assembly of Iowa adopted "an Act to pro- vide for the government of certain cities" in which were combined many of the newer features lately advocated for city government in the United States. The following selection contains the important provisions of the law: Section 1. [This law applies only to cities having a popula- tion of or exceeding 25,000 inhabitants.] 1 Sec. 2. [Upon the presentation of a petition, signed by electors equal in number to 25 per cent, of all votes cast for all candidates for mayor at the last preceding city election, the question of adopting this plan of government shall be submit- ted to the voters.] Sec. 4. In every such city there shall be elected at the regu- lar biennial municipal election, a mayor and four councilmen. If any vacancy occurs in any such office the remaining members of said council shall appoint a person to fill such vacancy during the balance of the unexpired term. Said officers shall be nominated and elected at large. Said officers shall qualify and their terms of office shall begin on the first Monday after their election. . . . i Sections enclosed in brackets are paraphrased. MUNICIPAL GOVERNMENT 357 Sec. 5. Candidates to be voted for at all general municipal elections at which a mayor and four councilmen are to be elected under the provisions of this act shall be nominated by a primary election, and no other names shall be placed upon the general ballot except those elected in the manner herein- after prescribed. The primary election for such nomination shall be held on the second Monday preceding the general mu- nicipal election. The judges of election appointed for the gen- eral municipal election shall be the judges of the primary election, and' it shall be held at the same time, so far as possi- ble, and the polls shall be opened and closed at the same hours, with the same clerks as are required for said general municipal election. . . . Sec. 6. Every such city shall be governed by a council, con- sisting of the mayor and four councilmen, chosen as provided in this act, each of whom shall have the right to vote on all questions coming before the council. Three members of the council shall constitute a quorum, and the affirmative vote of three members shall be necessary to adopt any motion, resolu- tion or ordinance, or pass any measure, unless a greater num- ber is provided for in this act. Upon every vote the yeas and nays shall be called and recorded, and every motion, resolu- tion or ordinance shall be reduced to writing and read before the vote is taken thereon. The mayor shall preside at all meetings of the council; he shall have no power to veto any measure, but every resolution or ordinance passed by the council must be signed by the mayor, or by two councilmen, and be recorded, before the same shall be in force. Sec. 7. The council shall have and possess and the council and its members shall exercise all executive, legislative and judicial powers and duties now had, possessed and exercised by the mayor, city council, board of public work, park com- missioners, board of police and fire commissioners, board of water-works trustees, board of library trustees, solicitor, asses- sor, treasurer, auditor, city engineer, and other executive and administrative officers in cities of the first class and cities act- ing under special charter. The executive and administrative 358 READINGS IN CIVIL GOVERNMENT powers, authority and duties in such cities shall be distributed into and among five departments, as follows: 1. Department of Public Affairs. 2. Department of Accounts and Finances. 3. Department of Public Safety. 4. Department of Streets and Public Improvements. 5. Department of Parks and Public Property. The council shall determine the powers and duties to be per- formed by, and assign them to, the appropriate department; shall prescribe the powers and duties of officers and em- ployes; may assign particular officers and employes to one or more of the departments; may require an officer or em- ploye to perform duties in two or more departments ; and may make such other rules and regulations as may be necessary or proper for the efficient and economical conduct of the busi- ness of the city. Sec. 8. The mayor shall be superintendent of the depart- ment of Public Affairs, and the council shall at the first regu- lar meeting after election of its members designate by majority vote one councilman to be superintendent of the de- partment of Accounts and Finances ; one to be superintendent of the department of Public Safety ; one to be superintendent of the department of Streets and Public Improvements; and one to be superintendent of the department of Parks and Public Property ; but such designation shall be changed when- ever it appears that the public service would be benefited thereby. The council shall, at said first meeting, or as soon as prac- ticable thereafter, elect by majority vote the following offi- cers: A city clerk, solicitor, assessor, treasurer, auditor, civil engineer, city physician, marshal, chief of fire department, market master, street commissioner, three library trustees, and such other officers and assistants as shall be provided for by ordinance and necessary to the proper and efficient conduct of the affairs of the city ; and shall appoint a police judge in MUNICIPAL GOVERNMENT 359 those cities not having a superior court. Any officer or as- sistant elected or appointed by the council may be removed from office at any time by vote of a majority of the members of the council except as otherwise provided for in this act. Sec. 9. The council shall have power from time to time to create, fill and discontinue offices and employments other than herein prescribed, according to their judgment of the needs of the city; and may by majority vote of all the members re- move any sueh officer or employe, except as otherwise pro- Vided for in this act ; and may by resolution or otherwise pre- scribe, limit or change the compensation of such officers or employes. . . . Sec. 11. Eegular meetings of the council shall be held on the first Monday after the election of councilmen, and there- after at least once each month. The council shall provide by ordinance for the time of holding regular meetings, and spe- cial meetings may be called from time to time by the mayor or two councilmen. All meetings of the council, whether reg- ular or special, at which any person not a city officer is admit- ted, shall be open to the public. The mayor shall be president of the council and preside at its meetings and shall supervise all departments and report to the council for its action all matters requiring attention in either. The superintendent of the department of Accounts and Finances shall be vice-president of the council, and in case of vacancy in the office of mayor, or the absence or ina- bility of the mayor, shall perform the duties of the mayor. Sec. 12. Every ordinance or resolution appropriating money or ordering any street improvement or sewer, or making or au- thorizing the making of any contract, or granting any fran- chise or right to occupy or use the streets, highways, bridges or public places in the city for any purpose, shall be com- plete in the form in which it is finally passed, and remain on file with the city clerk for public inspection at least one week before the final passage on adoption thereof. No franchise or right to occupy or use the streets, highways, bridges or public places in any city shall be granted, renewed or ex. 360 READINGS IN CIVIL GOVERNMENT tended, except by ordinance, and every franchise or grant for interurban or street railways, gas or water-works, electric light or power plants, heating plants, telegraph or telephone sys- tems, or other public service utilities within said city, must be authorized or approved by a majority of the electors voting thereon at a general or special election. . . . Sec. 14. [Provides for a civil service commission, fixes the power of this commission and determines the manner in which it shall act. Substitutes personal merit for political pull in securing and holding positions as employes.] Sec. 15. The council shall each month print in pamphlet form a detailed itemized statement of all receipts and ex- penses of the city and a summary of its proceedings during the preceding month, and furnish printed copies thereof to the state library, the city library, the daily newspapers of the city, and to persons who shall apply therefor at the office of the city clerk. At the end of each year the council shall cause a full and complete examination of all the books and accounts of the city to be made by competent accountants, and shall publish the result of such examination in the manner above provided for publication of statements of monthly expendi- tures. . . . Sec. 18. [This section establishes the right of recall, that is, provides the ways and means by which a dishonest or in- competent mayor or councilman can be removed from office by a vote of the people.] Sec. 19. [Provides for the initiative. If the council re- fuses to pass needed ordinances, the people can compel the passage thereof.] Sec. 20. [Provides for the protest and referendum. If any ordinance is passed by the council which is not satisfactory to the people, they have a right to reject it by vote.] MUNICIPAL GOVERNMENT 361 70. THE CITY MANAGER PLAN. In the following article Professor Herman G. James discusses some of the advantages of this latest development in American City Government: (1914) The first city in this country to provide for a city manager was Staunton, Virginia. There, however, the old mayor and council form of organization was retained. Some other cities since that time have provided by ordinance for the position of city manager without changing their form of government in other respects. The combination of commission government features with the city manager idea was not put into practice until after Staunton had made the first move. Yet certain authoritative bodies concerned with city government exclude from their definition and from the consideration of the history of the city manager movement the city which first employed a general manager, and give credit to Sumter, S. C., as being the first city manager city because it was the first to combine commission and manager. Now it does not seem quite clear that such a course is justi- fied. The general manager feature as introduced in Staunton and some other cities can show at least some of the advantages claimed for the city manager plan as defined by the authorities mentioned above, for instance the application of the principle of a single administrative head chosen not by the electorate, but appointed because of special knowledge and training. It would never do therefore to dismiss this original manifestation of the plan as wholly without merit. However, it is true that the city manager feature has a better chance of successful application in cities governed by a commission and most of the cities that are adopting the city manager plan now are doing so in connection with the com- mission feature, which, of course, retains its superiority over the old form of organization, whether the city manager is pro- vided or not. In speaking of the city manager plan hereafter therefore we shall have in mind the combination of the com- mission government and general manager ideas. A more important question than that of classifying the city manager plan with reference to commission government is the 362 READINGS IN CIVIL GOVERNMENT consideration of its merits and defects as compared with that form and the likelihood of its ultimately supplanting the pres- ent commission form entirely. One of the distinguishing features of commission govern- ment is the partitioning out of the various departments among the commissioners and the charging of each one with the re- sponsibility for the proper administration of his department. The commissioners are, it is true, collectively responsible as a commission, at least in theory, for the entire administration of the city. But in point of fact, both in the minds of the commissioners and in the opinion of the public, this collective responsibility is a very secondary matter. The real responsi- bility is an individual one attaching with regard to each de- partment to the commissioner in charge of that department. Now this feature of commission government is open to some very serious objections. In the first place, the work of look- ing after the administration of a city department is such that it requires considerable time and attention. This means that commissioners cannot be expected to give their services free. They must be paid a salary, therefore, as though they were ex- perts in their line. But, of course, real experts cannot be pro- cured for the salaries offered to commissioners, and, if ob- tainable, would not be gotten by means of popular election. The result is that the services of really competent men cannot be procured as heads of the administrative departments and the best that can be hoped for is to secure fairly representa- tive men without special training of any kind for their work. As though to make sure that no specially qualified man from an administrative point of view be chosen to the commission, most commission cities provide that commissioners be elected merely to the commission and then distribute the departments among themselves after election. In this manner five lawyers or bankers or business men might be chosen, instead of hav- ing men elected to particular posts with some regard to the diversity of needs to be met. In recent times the tendency seems to be somewhat in the direction of having commis- sioners run for particular posts, but, of course, that still leaves MUNICIPAL GOVERNMENT 363 us with the difficulties of popular choice of professional ad- ministrators. The results of this system are, of course, the same in commission government as they would be in a rail- road corporation which chose a board of directors consisting of corner grocerymen and then entrust the passenger de- partment to one, the freight department to another, and so on. This brings us to the second fundamental defect of com- mission government. Even if our municipal electorate were able and willing to be guided in its choice of commissioners solely by considerations of fitness for particular administra- tive posts, and even if they were willing to provide salaries large enough and terms of office long enough to procure the services of administrative experts, the system would still be open to very grave objections. Administration is that func- tion of government which demands for its proper exercise centralization of power and responsibility. The proposal in the national constitutional convention of 1787 to provide a plural executive was wisely rejected in favor of the single ex- ecutive plan. The result has been the centralization of the administration of the United States in the hands of the Presi- dent. Private business everywhere applies the principle and it is a curious fact that advocates of commission government, while stressing in their arguments for the new form of govern- ment the analogy between the city commission and the board of directors of a corporation, fail to take the further step and provide a counterpart for the manager of the corporation. From the administrative point of view an expert manager is much more important for a corporation than an expert board of directors. A railroad corporation might conceivably thrive under a board of corner grocerymen if only it had the proper kind of a manager. . A manager for a city, then, would not only present the pos- sibility of expert administration, which commission govern- ment practically excludes, but it would provide a unification and centralization of the administration which is now wholly lacking. It is true that the work of municipal administration can be roughly classified under five or six different heads, 364 READINGS IN CIVIL GOVERNMENT more or less clearly defined, but, of course, these departments cannot work quite independently of each other, since their spheres of operation inevitably intersect. The health depart- ment must co-operate, on the one hand, with the education department in the matter of school hygiene. It must work hand in hand with the police department in the matter of executing its administrative orders. It must consult with the department of public welfare in the matter of housing legisla- tion, public baths, etc. The department of public works must, in the same way, be guided by considerations of public health, safety and convenience in the provision of water and sewerage facilities, in the construction and maintenance of streets, and in the location of public buildings. All of the departments must be in close touch with the city attorney's office if they are not to be involved in legal and constitutional difficulties. Finally, the department of finance must have a certain juris- diction in all the other departments if accuracy and com- pleteness of accounts are to be insured. The instances in which no one city department can properly act alone in mat- ters apparently falling under its jurisdiction could be multi- plied without number. In fact, the difficulty would consist rather in discovering instances in which any city department could effectively act with entire disregard of all the other de- partments. Then, finally, there must be some central author- ity to act in matters of appointment, discipline and removal of subordinate officials, so that the service may be standardized and organized on a proper basis. That the evils resulting from this lack of administrative centralization are not purely theoretical is evidenced by the complaints voiced by persons actively engaged in the adminis- tration of cities as commissioners. The log-rolling tactics, working at cross purposes, duplication of work, gaps in the distribution of functions are features of commission govern- ment that are actually encountered and against which those most directly concerned have raised a voice in protest. It is interesting to note that Houston, Texas, has realized the dis- advantages from an administrative point of view of five co- MUNICIPAL GOVERNMENT 365 ordinate department heads and has given to the mayor a degree of authority which is quite unusual in commission-gov- erned cities. Indeed, it is hard to see how the mayor could be given any more power without practically destroying the very foundation on which commission government rests and returning to the mayor and council form with the single change of a reduction in the size of the council. So-called mayors in other commission cities have felt the very real need of greater administrative concentration. There must, then, it is clear, be a change from the principle of administrative co-ordination and decentralization now ap- plied in commission cities to a policy of centralization. This is exactly wherein the city manager plan is an improvement over the commission form in the very point in which the lat- ter was weakest, namely, on the administrative side. A gen- eral manager chosen by and responsible to the commission would do for municipal administration what the general man- ager does for business administration. The analogy is close and the soundness of the principle admits of no doubt. Administrative efficiency demands the greatest possible free- dom in the manager's power of appointment, discipline, and removal. Public protection against corrupt politicians de- mands a limitation of those powers. Between these two op- posing principles the proper path is not easy to find. It is clear, however, that until we have progressed much farther than we are at present in the development of a sound public opinion with regard to public offices, some sort of civil ser- vice merit rules must be applied, especially to city manager cities, in order to guard against the danger of machine control. While the danger of abuse of the administrative power of appointment and removal for party or selfish purposes con- stitutes, perhaps, the most serious danger of the city manager plan, it is not the one which will be so viewed by the general public. That word of universal taboo in this country, that anathema of the political demagogue, " undemocratic," has already pointed its reactionary and destructive finger at the new development. It is claimed that it is "undemocratic" to 366 READINGS IN CIVIL GOVERNMENT lodge all administrative power in the hands of a single indi- vidual, even though he be appointed and removed by the elected representatives of the people and though his adminis- trative powers be circumscribed by civil service merit regu- lations. It takes but little thought to show that a city man- ager thus at the mercy of the commission will have to make good with the electorate through energy and efficiency, coupled with the necessary amount of tact, if he is long to retain his position. He is, it is true, once removed from the improper political pressure brought to bear by a discontented minority whose personal interests are interfered with by an impartial and vigorous enforcement of the law. But who will say that the barrier thus set up against illegitimate influence is not a salutary one, or that the evident will of the law-abiding, decent element in the community cannot make itself effectively felt against the retention of a manifestly undesirable city manager. Democracy need fear no setback through the introduction of this new form of administration ; and efficiency, so long absent from the councils of democracy, can come into her own at last. Finally, the question has been raised whether or not the city manager plan, even if adapted to cities of medium size, could be made to work well in our largest cities of a million inhabitants and over. So far as some of the commission fea- tures are concerned there would seem to be some real need of modification. So, for instance, it is a fair question whether a commission of five, the usual number of representatives in commission cities, would be satisfactory for these larger cities. The principle of efficient administration is well served by a small governing body, whether the city be large or small. At the same time it is well to remember that city government, though much more largely business than is state or national government, is not without its important legislative problems in matters of municipal policy. For these matters it is de- sirable to have an adequate representative body and no doubt the commission might well be doubled or trebled over its nor- mal size for the largest cities. Closely connected with the matter of the cize of the com- MUNICIPAL GOVERNMENT 367 mission in our largest cities is the question of general ticket or district election. The practice of election on general ticket presents increasing difficulties the larger the area of election, since the labor and expense of conducting a campaign are greatly augmented. But, aside from that, it seems unques- tionable that some of our largest cities are made up of sev- eral geographic divisions which really have rather distinct needs and whose interests would, perhaps, better be con- served by a representative body in which these geographical divisions as such have representation. These questions, however, as was stated above, are not con- nected with the general manager features of city government. There is no reason why the efficiency of management should be destroyed by departing from the principle of a single ad- ministrative head in cities. This principle is fundamental whatever the size of the city; indeed, it may be said to in- crease in importance with the size and consequent complexity of the administrative service. There may be a need of an as- sistant city manager, or even of more than one, as in the largest German cities there are three burgomasters, but a single man- ager must still remain the head of the service. Predictions are, of course, dangerous, and it would be folly to attempt a prophecy as to the spread of the city manager plan in this country. But, if we may conclude from the rapid- ity of the spread of commission government that the Ameri- can municipal electorate has at last awakened to a realiza- tion of the importance of improving the machinery of city government, it seems safe to conclude that the superiority of the city manager plan over the ordinary commission govern- ment will not be any slower to receive recognition than were the merits of commission government over the old mayor and council form. ADDITIONAL READINGS 1 The City Council, Goodnow, F. J., City Government in the United States, 137-76. 2 Charter Making in America, Woodruff, C. R., Atlantic Monthly, CIII, 628-39, 368 READINGS IN CIVIL GOVERNMENT 3 The Bureau of Municipal Research, Bruere, H., Proceed- ings of the American Political Science Association, V. 111-121. 4 The Government of the Great City, Pedbody, W. R., Forum, XXXVI, 611-24. 5 Municipal Ownership of Public Utilities, Fairlie, J. A., Essays in Municipal Administration, 262-74. 6 The Relation of the City to Public Utilities, Rowe, L. S., Problems of City Government, 208-40. 7 Does Municipal Ownership Pay, Howe, F. C., The City the Hope of Democracy, 136-57. 8 The Control of Public Utilities, Wilcox, D. F., The Amer- can City, 52-90. 9 Public Control, Ownership and Operation, Zeublin, C., American Municipal Progress, 302-31. 10 Sanitation, Ibid., ch. IV. CHAPTER XVI PARTY ORGANIZATION 71. NATIONAL AND LOCAL PARTY ORGANIZATION. It is a common saying that modern popular government is party government. In no country is this more true than in the United States where so many offices are elective and there is so much for the party to do. Therefore, the party having much to do, provides an elaborate organization and it becomes increasingly inevitable that the same organization will be used for all elections local, State and national. In the following extract President Wilson states this point clearly: We have made many efforts to separate local and national elections in time in order to separate them in spirit. Many local questions upon which the voters of particular cities or counties or States are called upon to vote have no connection whatever either in principle or in object with the national questions upon which the choice of congressmen and of presi- dential electors should turn. It is ideally desirable that the voter should be left free to choose the candidates of one party in local elections and the candidates of the opposite party in national elections. It is undoubtedly desirable that he should go further and separate matters of local administra- tion from his choice of party altogether, choosing his local representatives upon their merits as men without regard to their affiliations. We have hopefully made a score of efforts to obtain "non-partisan" local political action. But such efforts always in the long run fail. Local parties cannot be one thing for one purpose and another for another without losing form and discipline altogether and becoming hope- lessly fluid. Neither can parties form and re-form, now for 24 369 370 READINGS IN CIVIL GOVERNMENT this purpose and again for that, or be for one election one thing and for another another. Unless they can have local training and constant rehearsal of their parts, they will fail of coherent organization when they address themselves to the business of national elections. For national purposes they must regard themselves as parts of greater wholes, and it is impossible under such a system as our own that they should maintain their zest and interest in their business if their only objects are distant and general objects, without local rootage or illustration, centering in Congress and utterly disconnected with anything that they themselves handle. Local offices are indispensable to party discipline as rewards of local fidelity, as the visible and tangible objects of those who devote their time and energy to party organization and undertake to see to it that the full strength of the party vote is put forth when the several local sections of the party are called upon to unite for national purposes. If national politics are not to become a mere game of haphazard amidst which parties can make no calculations whatever, systematic and disciplined connections between local and national affairs are imperative, and some instrument must be found to effect them.* What- ever their faults and abuses, party machines are absolutely necessary under our existing electoral arrangements, and are necessary chiefly for keeping the several segments of parties together. No party manager could piece local majorities together and make up a national majority, if local majorities were mustered upon non-partisan grounds. No party man- ager can keep his lieutenants to their business who has not control of local nominations. His lieutenants do not expect national rewards: their vital rootage is the rootage of local opportunity. Just because, therefore, there is nowhere else in the world so complex and various an electoral machinery as in the United States, nowhere else in the world is party machinery so elaborate or so necessary. It is important to keep this in mind. Otherwise, when we analyze party action, we shall fall into the too common error of thinking that we are analyz- PARTY ORGANIZATION 371 ing disease. As a matter of fact, the whole thing is just as normal and natural as any other political development. The part that party has played in this country has been both necessary and beneficial, and if bosses and secret managers are often undesirable persons, playing their parts for their own benefit or glorification rather than for the public good, they are at least the natural fruits of the tree. It has borne fruit good and bad, sweet and bitter, wholesome and corrupt, but it is native to our air and practice and can be uprooted only by an entire change of system. All the peculiarities of party government in the United States are due to the too literal application of Whig doctrine, to the infinite multiplication of elective offices. There are two things to be done for which we have supplied no adequate legal or constitutional machinery: there are thousands of officials to be chosen and there are many disconnected parts of government to be brought into co-operation. "It may be laid down as a political maxim that whatever assigns to the people a power which they are naturally incapable of wield- ing takes it away from them." They have, under our Con- stitution and statutes, been assigned the power of filling innumerable elective offices; they are incapable of wielding that power because they have neither the time nor the neces- sary means of co-operative action ; the power has therefore been taken away from them, not by law but by circumstances, and handed over to those who have the time and the inclina- tion to supply the necessary organization; and the system of election has been transformed into a system of practically irresponsible appointment to office by private party managers irresponsible because our law has not yet been able to devise any means of making it responsible. It may also be laid down as a political maxim that when the several chief organs of government are separated by organic law and offset against each other in jealous seclusion, no common legal authority set over them, no necessary community of interest subsisting amongst them, no common origin or pur- pose dominating them, they must of necessity, if united at all, 372 READINGS IN CIVIL GOVERNMENT be united by pressure from without; and they must be united if government is to proceed. They cannot remain checked and balanced against one another; they must act, and act together. They must, therefore, of their own will or of mere necessity obey an outside master. Both sets of dispersions, the dispersion of offices and the dispersion of functions and authorities, have co-operated to produce our parties, and their organization. Through their caucuses, their county conventions, their state conventions, their national conventions, instead of through legislatures and cabinets, they supply the indispensable means of agreement and co-operation, and direct the government of the country both in its policy and in its personnel. Their local managers make up the long and variegated lists of candidates made necessary under our would-be democratic practice; their caucuses and local conventions ratify the choice; their state and national conventions and declarations of principle de- termine party policy. Only in the United Stat3s is party thus a distinct authority outside the formal government, expressing its purposes through its own separate and peculiar organs and permitted to dictate what Congress shall under- take and the national administration address itself to. Under every other system of government which is representative in character and which attempts to adjust the action of govern- ment to the wishes and interests of the people, the organiza- tion of parties is, in a sense, indistinguishable from the organs of the government itself. Party finds its organic lodgment in the national legislature and executive themselves. The several active parts of the government are closely united in organization for a common purpose, because they are under a common direction and themselves constitute the machinery of party control. Parties do not have to supply themselves with separate organs of their own outside the government and intended to dictate its policy, because such separate organs are unnecessary. The responsible organs of government are also the avowed organs of party. The action of opinion upon them is open and direct, not circuitous and secret. PARTY ORGANIZATION 373 72. WHAT THE PARTY MACHINE HAS TO DO. The basis of the elaborate party machine and the army of poli- ticians that are required to run it is to be found in the large num- ber of elective offices for which the parties must make nominations. Mr. James Bryce describes this system in the following selection : * In Europe a citizen rarely votes more than twice or thrice a year, sometimes less often, and usually for only one person at a time. Thus in England any householder, say at Man- chester or Liverpool, votes once a year for a town councillor (if there is a contest) ; once in three years for members of a school board (if there is a contest) ; once in four years (on an average) for a member of the House of Commons. . . . Now compare the elections held to fill offices in the great State of Ohio, which is fairly typical of the middle or older "Western States. Citizens vote at the polls for the following five sets of offices. For simplicity I take the case of a city instead of a rural district, but the number of elective offices is nearly the same in the later. . . . This list shows a total of seven elections at the polls taking place, annually, twenty-one to twenty -six (according to cir- cumstances) taking place biennially, eight taking place triennially, two quadrennially, one quinquennially, one decennially giving an average in round numbers of twenty- two elections in each year. Of course this does not mean that there are twenty-two separate and distinct elections, for many of the State offices are filled up at one and the same election, as also most of the city offices at one and the same election. It means that there are, on an average, twenty-two different paid offices which a voter has annually to allot by his vote that is to say, he must in each and every year make up his mind as to the qualifications of twenty-two different persons or sets of persons to fill certain offices. As nearly all these offices are contested on political lines, though the respective principles (if any) of Republicans and Democrats i See above page 261, note. 374 READINGS IN CIVIL GOVERNMENT have no more to do with the discharge of the duties of the State and local offices than the respective principles of Methodists and Baptists, nominations to them are made by the respective party organizations. Candidates for all, or nearly all, the above offices are nominated in conventions composed of delegates from primaries. I cannot give the pre- cise number of conventions, but there must be at least seven or eight, although one or two of these will not be held every year. As the areas with their respective conventions overlap, the same primary will in each year send different sets of delegates to as many different nominating conventions, six or seven at least, as there are sets of offices to be filled up in that year. The number and names of the elective offices differ in different States of the Union, but the general features of the system are similar. Let us now take another illustration from Massachusetts, and regard the system from another side by observing how many sets of delegates a primary will have to send to the several nominating conventions which cover the local area to which the primary belongs. A Massachusetts primary will choose the following sets of persons, including committee-men, candidates, and delegates: 1. Ward and city committees in cities, and town committees in towns. 2. In cities, candidates for common council and board of aldermen ; in towns candidates for ten offices, i. e., selectmen, school committee ; overseers of poor, town clerk and treasurer, assessors of taxes, etc. 3. In cities, delegates to a convention to nominate city officers. 4. Delegates to a convention to nominate county officers. 5. Candidates for representatives to State legislature, or delegates to a convention to nominate the same. 6. Delegates to a convention for nominating candidates for State Senate. 7. Delegates to a convention for nominating candidates for State Governor's council. PARTY ORGANIZATION 375 8. Delegates to a convention for nominating candidates for State offices (e. g., Governor, Lieutenant- Governor, etc.). The above are annual. Then every two years 9. Delegates to a congressional convention for nominating candidates for representatives to Congress. Then every four years 10. Delegates to a district convention for nominating other delegates (corresponding to the members of Congress) to the national Presidential Convention of the party; and 11. Delegates to a general convention for nominating four delegates at large (corresponding to United States senators) to national Presidential Convention. In New York City, at the November elections, there are usually from one hundred and sixty to two hundred candi- dates for the various offices, even when the year is not one of those when presidential electors are chosen; and all these have been nominated at primaries or conventions. But I need not weary the reader with further examples, for the facts above stated are fairly illustrative of what goes on over the whole Union. It is hard to keep one's head through this mazy whirl of offices, elections, and nominating conventions. In America itself one finds few ordinary citizens who can state the details of the system, though these are of course familiar to profes- sional politicians. The first thing that strikes a European who contemplates this organization is the great mass of work it has to do. In Ohio, for instance, there are, if we count in such unpaid offices as are important in the eyes of politicians, on an average more than twenty-five offices to be filled annually by election. Primaries or conventions have to select candidates for all of these. Managing committees have to organize the primaries, "run" the conventions, conduct the elections. Here is ample occupation for a professional class. What are the results which one may expect this abundance of offices and elections to produce ? The number of delegates needed being large, since there 376 READINGS IN CIVIL GOVERNMENT are so many conventions, it will be hard to find an adequate number of men of any mark or superior intelligence to act as delegates. The bulk will be persons unlikely to possess, still more unlikely to exercise, a careful or independent judgment. The function of delegate being in the case of most conven- tions humble and uninteresting, because the offices are un- attractive to good men, persons whose time is valuable will not, even if they do exist in sufficient numbers, seek it. Hence the best citizens, i. e., the men of position and intelligence, will leave the field open to inferior persons who have any private or personal reason for desiring to become delegates. I do not mean to imply that there is necessarily any evil in this as regards most of the offices, but mention the fact to explain why few men of good social position think of the office of delegate, except to the National Convention once in four years, as one of trust or honor. The number of places to be filled by election being very large, ordinary citizens will find it hard to form an opinion as to the men best qualified for the offices. Their minds will be distracted among the multiplicity of places. In large cities particularly, where people know little about their neighbors, the names of most candidates will be unknown to them, and there will be no materials, except the recommenda- tion of a party organization, available for determining the respective fitness of the candidates put forward by the several parties. . . . Those who have had experience of public meetings know that to make them go off well, it is as desirable to have the proceedings prearranged as it is to have a play rehearsed. You must select beforehand not only your chairman, but also your speakers. Your resolutions must be ready framed ; you must be prepared to meet the case of an adverse resolution or hostile amendment. This is still more advisable where the meeting is intended to transact some business, instead of merely expressing its opinion; and when certain persons are to be selected for any duty, prearrangement becomes not merely convenient but indispensable in the interests of the PARTY ORGANIZATION 377 meeting itself, and of the business which it has to dispatch. "Does not prearrangement practically curtail the freedom of the meeting?" Certainly it does. But the alternative is confusion and a hasty unconsidered decision. Crowds need to be led; if you do not lead them they will go astray, will follow the most plausible speaker, will break into factions and accomplish nothing. Hence if a primary is to discharge properly its function of selecting candidates for office or a number of delegates to a nominating convention, it is neces- sary to have a list of candidates or delegates settled before- hand. And for the reasons already given, the more numerous the offices and the delegates, and the less interesting the duties they have to discharge, so much the more necessary is it to have such lists settled; and so much the more likely to be accepted by those present is the list proposed. The reasons have already been stated which make the list of candidates put forth by a primary or by a nominating convention carry great weight with the voters. They are the chosen standard-bearers of the party. A European may re- mark that the citizens are not bound by the nomination ; they may still vote for whom they will. If a bad candidate is nominated, he may be passed over. That is easy enough where, as in England, there are only one or two offices to be filled at an election, where these few offices are important enough to excite general interest, and where therefore the candidates are likely to be men of mark. But in America the offices are numerous, they are mostly unimportant, and the candidates are usually obscure. Accordingly guidance is welcome, and the party as a whole votes for the person who receives the party nomination from the organization author- ized to express the party view. Hence the high importance attached to "getting the nomination"; hence the care be- stowed on constructing the nominating machinery; hence the need for prearranging the lists of delegates to be submitted to the primary, and of candidates to come before the con- vention. 378 READINGS IN CIVIL GOVERNMENT 73. PRIMARY ELECTION LEGISLATION. One way to diminish what the party machine has to do is to take the nomination of candidates partly out of its hands by providing for a legal primary election of party candidates. Laws to accom- plish this have been adopted in a number of States during the last few years. In the following selection Professor C. E. Merriam dis- cusses some of the problems connected with legislation on this subject: [1907]. The widespread interest in nominating systems, particu- larly during the last ten years, has given rise to a great num- ber of problems new to American politics. These questions are puzzling the reformer, the practical politician, the law- maker and the judge. They are of absorbing interest to the student of political institutions and tendencies. It is the pur- pose of this paper to discuss only three of these problems, namely: the test of party allegiance, the formation of the platform under the direct primary system, and the majority required for nomination. As the party primary becomes more and more like an election, the more important does the question of party membership become. What constitutes a republican or a democrat? and how shall a satisfactory legal test be made? Originally this was a matter over which the party authorities possessed exclusive jurisdiction, and which they might regu- late and control in their discretion. The republican com- mittee decided what evidence was necessary to establish a right to participate in republican primaries, and the demo- cratic committee defined and determined the essentials of democracy. The abuse of this power in many cases led to legal regulation of the party test. The most frequent test required is an expression of intention to support the party candidates in the ensuing election, coupled with a statement of past support of or affiliation with the party. In Michigan the test includes a declaration of sympathy with the objects of the party. In New Jersey, the voter must state that ho supported a majority of the party's candidates at the last PARTY ORGANIZATION 379 election, and intends to support the candidates named in the primary. South Dakota requires previous support of the party, belief in a "substantial part" of principles of the party, and intention to support the candidates nominated. Pennsylvania requires a declaration that the intending voter supported a majority of the party's candidates at the last election. . . . As the question of party suffrage has occupied the attention of legislators for the last ten years, so the registration of party voters has become one of great interest. Starting with no lists at all, advancing to informal party lists, then on to the regular registration books used in the general elections, we find in the latest period the system of party registration introduced. A number of States have provided for such a system : Kentucky in 1892 ; New York in 1898 ; Nebraska in 1899 ; South Carolina in 1900 ; North Carolina and Connecti- cut in 1901; Maine and New Jersey in 1903; Iowa, Oregon and Vermont in 1904; and Michigan in 1905 are among the number. The character of these provisions is much the same in all States. At the time of registration the voter is given an opportunity of declaring his party affiliation, if any, which is then indicated in a column of the registry book. A list of party voters is then made up from these preferences, and this serves as their registry list for the ensuing primary election. In New York the declaration of affiliation is secret and the names are not disclosed until after the general elec- tion, when the lists are thrown open and in New York City are printed. . . . In a very few instances during this period, the party test has been abolished altogether. The California law of 1899 contained a provision which enabled the voter to cast a ballot for either party, without divulging his party preference. This clause was subsequently declared unconstitutional, however. A similar provision was contained in the Oregon law of 1901, which was also declared unconstitutional. The Minnesota law of 1899, provided for the open primary, but in 1901 this feature was abandoned. In the Wisconsin law 380 READINGS IN CIVIL GOVERNMENT of 1903, absolute secrecy of the ballot is secured, and the voter may vote for candidates of whichever party he may choose. Of course, he cannot vote with both parties at the same time. It is urged in favor of this plan that it protects the secrecy of the ballot; that it makes intimidation or undue influence impossible; that the requirement of a partisan test is both unnecessary and useless; and that the test of allegiance ex- cludes only the honest citizen while admitting the dishonest and corrupt. It is objected, however, that without some sort of party test, the responsibility of the party for the character of the nominations made or of the platform adopted is entirely broken down. Members of the republican party may assist in the nomination of weak democrats, or vice versa; and un- scrupulous leaders may readily transfer blocks of voters with- out regard to party lines. When a corrupt machine is threatened by the nomination of an aggressive reformer, it is possible to avert this menace by the use of available num- bers of the other machine. In these ways, it is held, the responsibility of the party may be completely destroyed, or, at any rate, seriously crippled, and reform movements may be made more difficult. On the whole, if any test is required, it would seem suffi- cient to exact from the voter a statement that he is in general sympathy with the principles of the party and that he intends to support its candidates generally at the next election. This eliminates the period of probation and permits the voter to pass freely from one party to the other as conditions or cir- cumstances change. The system of party enrollment or registration seems to lay undue stress on the rigidity of party organization, although this may be to some extent offset by liberal provisions for supplementary enrollment or change of party registration. The chief objections to this system would then disappear, but also its chief merit, namely, that of keeping out the unwelcome and unscrupulous invaders of the party. This illustrates very well the inherent difficulty in all tests, namely, that of letting down the bars for the honest, PARTY ORGANIZATION 381 independent voter without admitting, at the same time, the dishonest and the venal. It appears, then, that no solution of the problem of party test has yet been reached and that much more practical experience and much more mature reflec- tion will be necessary before the proper sort of a regulation can be devised. In framing direct primary laws, an important problem arises in connection with the formation of the party platform. With the abolition of the delegate convention, the representa- tive body of the party, how shall the declaration of party principles be drawn up? What shall be substituted for the present authority? How shall the declarations of such an authority be made binding? In local areas, where direct pri- maries have chiefly been tried and where differences in prin- ciple are rare, the question of the platform has not occasioned serious trouble. In larger districts, like States, however, the question becomes more important for, although distinct State issues are not so common as State campaigns, there are occasionally serious divisions of opinion in State elections and for such emergencies provision must be made in the law. Several answers have been given in the various States. In Wisconsin provision is made for the formation of a State platform by a candidates' convention. This body is made up of all the party candidates for State office and for the legislature, together with the hold-over members of the State senate. In this way members both of the legislative and the executive departments may be committed to a definite party policy, and this party policy formally presented as the platform. In Missouri the law provides for the formulation of the platform by the State central committee acting with the party nominees for State office, for congress, and for the legislature. In North Dakota the platform is framed by the State central committee with the candidates for State office. Still another method is found in Nebraska, where each county committee elects one delegate and the delegates so chosen meet and frame the party platform. In Texas another plan is provided. On petition of 10 per cent, of the party voters, 382 READINGS IN CIVIL GOVERNMENT any question of policy must be submitted to the voters of the State at the primary and, if approved by a majority, becomes a part of the platform of the party. It is also provided that no convention shall place in the platform or resolutions of the party they represent any demand for specific legisla- tion unless it shall have been submitted to a direct vote of the people and shall have been endorsed by a majority vote of all the votes cast in the primary election of each party. Provision regarding a party referendum was contained in the Oregon law of 1901. More commonly, however, the platform is formed by the candidate or candidates themselves. This is the general method employed in local campaigns throughout the South, and in the State campaigns of Washington and Oregon in the North. In the Oregon law, express provision is made for declaration by the candidate of the principles upon which he stands in not exceeding one hundred words and twelve words are permitted to be printed upon the ballot. But where no legal provision is made for such a declaration upon the ballot, the candidate may of course make such a statement the basis of his campaign. The shaping of the platform by the can- didate seems, all things considered, best fitted to survive. Where there is a serious difference of opinions as to policies, the platform is likely under any system to be shaped by the dominant groups and will be practically the program outlined by this faction in its fight before the primary election. Gen- erally such issues are as clearly and as sincerely defined during the primary as they would be in the platform framed by the convention, for it should not be forgotten that the average party platform is verbose and perfunctory and often serves no real purpose, since the elections are usually con- ducted upon the basis of national issues. Where there is no living issue of a local character, it is not likely that the question will be obscured or befogged because of the failure of the party convention to elaborate its position on other questions. In case definite machinery is provided, the Wisconsin plan PARTY ORGANIZATION 383 seems to possess some merit. The party program is made, under this system, by those who, if elected, are to carry it out; and the majority might reasonably be held to bind the minority. The platform is made after the candidates are chosen, however, and in case of an unwilling candidate, there would be no effective way of securing acquiescence in the program, either before or after the election. As compared with a platform framed either wholly or in part by the party committee, the candidate convention is far superior. Party committeemen are chosen to manage campaigns and conduct organization business, and not for their opinions upon ques- tions of public policy or their ability to frame statements of public policy. Under a system which provides for the selection of candi- dates by direct vote, the percentage of the total vote necessary for a choice is a subject of considerable importance. The common plan throughout the North and West is to require merely a plurality vote. The candidate receiving the highest number of votes is made the nominee. In the Southern States a clear majority is usually required and when no can- didate receives the necessary vote, a second primary is held, in which the two leading candidates participate. As another alternative, it may be provided, as in Illinois (1905) that in case no candidate receives a majority of all the votes cast, a convention shall then make the selection. In recent years, provisions have been made requiring the candidates to secure a minimum percentage of the votes cast; thus in Michigan, 40 per cent, is required, in Iowa 35 per cent. Under the Michigan plan, if 100,000 votes are cast, there is no nomina- tion unless some candidate receives at least 40,000 votes. If no choice is made then the convention must select the can- didate. Finally, a system of preferential vote has been advocated. Under this plan the voter indicates his first and second choices for the office and, in case no candidate receives a majority of first choices, the lowest candidate is dropped and his second choices are then distributed. This plan has been approved 384 READINGS IN CIVIL GOVERNMENT in Wisconsin by Governor LaFollette, but not accepted by the legislature. A modified form of it has been adopted by the State of Washington in 1907. Where there are more than four candidates for a State or congressional office, each voter is required to indicate first and second choice. If no candidate receives 40 per cent, of the total vote, second choices are then counted in and a decision reached in this way. . . . On the whole, it seems probable that the simple plurality will probably be adopted outside of the Southern States, where peculiar conditions prevail. Experience has shown that this is a satisfactory system, and that it neither destroys nor disrupts the party. The demand for a majority primary or a' minimum percentage is generally based on unfounded apprehension, rather than upon reason or experience. It ignores the fact that the number of candidates under the directed primary system is not ordinarily great and that where the number is large the custom soon teaches acqui- escence in the nomination of the leading candidate in the primary just as it does in the general election. Originally choice by majority vote only was the general rule, even in elections, but now a plurality is accepted and indeed never challenged. It is likely that the same process of development will take place in the party primary. 74. THE SHORT BALLOT. Another method of reducing the influence of the politician in elections and of enabling the voter to exercise an intelligent choice through his ballot, is to have fewer elective offices. For a few im- portant officers the average man can vote intelligently; for many unimportant officers he is very apt to vote blindly. In the following selection Mr. R. S. Childs shows how absurd and unnecessary it is to complicate our ballots with the names of so many inconspicuous men: [1909]. Starting at the broad base of our structure, the voters, we notice one unique phenomenon which is so familiar to us that we usually overlook it entirely that is, our habit of voting blindly. Of course intelligent citizens do not vote without PARTY ORGANIZATION 385 knowing what they are doing. Oh, no! You, Mr. Reader, for instance, you vote intelligently always! Of course you do! But for whom did you vote for Surrogate last time? You don't know? Well, then, whom did you support for State Auditor? For State Treasurer? For Clerk of the Court? For Supreme Court Judge? And who is your Al- derman? Who represents your district at the State Capitol? Name, please, all the candidates you voted for at the last elec- tion. Of course you know the President and the Governor and the Mayor, but there was a long list of minor officers be- sides. Unless you are active in politics I fear you flunk this examination. If your ballot had by a printer's error omitted the "State Comptroller" entirely, you would probably not have missed it. You ignored nine-tenths of your ballot, vot- ing for those you did know about and casting a straight party ticket for the rest, not because of party loyalty, but because you did not know of anything better to do. You need not feel ashamed of it. Your neighbors all did the same; my neighbors did. 1 . . . Ex-President Eliot, of Harvard, the "ideal citizen," confessed in a public address recently that he did it too. Philadelphia has even elected imaginary men. It is a typical and universal American attitude. We all vote blindly. The intelligence of the community is not at work on i CONFIDENTIAL CENSUS Data collected immediately after the election of 1908. Do you know the name of the new State Treasurer just elected? 87% said No. Do you know the name of the present State Treasurer? 75% said No. Do you know the name of the new State Assemblyman for this district? 70% said No. Do you know the name of the defeated candidate for Assemblyman in this district? 80% said No. Do you know the name of the Surrogate of this County? 65% said No. Do you know the name of your Alderman? . . . .85% said No. Do you know whether your Alderman was one of those who voted against the increase in the Police Force last year? 98% said No. Are you in active politics? 96% said No. 25 386 READINGS IN CIVIL GOVERNMENT any of the minor offices on the ballot. The average American citizen never casts a completely intelligent vote. This is not all the fault of the voter. To cast a really in- telligent ballot from a mere study of newspapers, campaign literature and speeches is impossible, because practically noth- ing is ever published about the minor candidates. The gossip around the local headquarters being too one- sided to be trusted by a casual inquirer, a deep-working per- sonal acquaintance with politics, involving years of experi- ence and study, becomes necessary before a voter who wants to cast a wholly intelligent ballot can obtain the facts. This is not the fault of the press. In New York City the number of elective offices in State, city, and county to be filled by popular vote in a cycle of four years is nearly five hundred. In Chicago the number is still greater. Philadel- phia, although smaller than either city, elects more people than either. No newspaper can give publicity to so many can- didates or examine properly into their relative merits. Plainly the voter is overburdened with more questions than he will answer carefully, for it is certain that the average citizen cannot afford the time to fulfill the unreasonable re- quirements that are now essential to intelligent voting. The voters at the polls are the foundation of a democracy, and the universal and incurable habit of voting blindly constitutes a huge break in that foundation which is serious enough to ac- count for the toppling of the whole structure. Let us see, then, if we can trace out a connection between blind voting as a cause and misgovernment as the effect. No one will deny that if nine-tenths of the citizens refrained from voting on election day, the remaining tenth would gov- ern all. And when practically all vote in nine-tenths igno- rance and indifference, about the same delegation of po\\< r occurs. A remaining fraction who do give enough time to the subject to cast an intelligent ballot take control. That fraction we call "politicians" in our unique American sense of the word. A politician is a "political specialist." He is one who knows more about the voter's political business than PARTY ORGANIZATION 387 the voter does. He knows, for instance, that the coroner's term will expire in November, and he contributes toward the discussion involved in nominating a successor, whereas the voter hardly knows a coroner is being elected. These poli- ticians come from all classes, and the higher intelligence of the community contributes its full quota. Although they are only a fraction of the electorate, they are a fair average selec- tion, and they would give us exactly the kind of government we all want, if only they could remain free and inde- pendent personal units. But the impulse to organize is irre- sistible. Convenience and efficiency require it, and the "organization" springs up and cements them together. Good men who see the organization go wrong on a nomination con- tinue to stay in and to lend their strength, not bolting until moral conditions become intolerable. Were these men not bound by an organization with its social and other non-politi- cal ties, their revolt would be early, easy and effective, and every bad nomination would receive its separate and propor- tionate punishment in the alienation of supporters. . . The essence of our complaint against our government is that it represents these easily contaminated political organiza- tions instead of the citizens. Naturally! When practically none but the politicians in his district are aware of his actions or even of his existence, the office-holder who refuses to bow to their will is committing political suicide. Sometimes the interests of the politician and the people are parallel, but sometimes they are not, and the office-holder is apt to diverge along the path of politics. An appointment is made, partly at least, to strengthen the party, since the appointee has a certain following. A bill is considered, not on its simple merits, but on the issue, "Who is behind it?" "If it is Boss Smith, of Green County, that wants it, what- ever his reasons, we must placate him or risk disaffection in that district." So appointments and measures lose their orig- inal and proper significance and become mere pawns in a chess game of politics which aims to keep "our side" on top. The office-holders themselves may be upright, bribe-proof men 388 READINGS IN CIVIL GOVERNMENT they usually are, in fact. But their failure to disregard all exigencies of party politics constitutes misrepresentative gov- ernment, and Boss Smith, of Green County, can privately sell his influence if he chooses, whereby the public is in the end a heavy sufferer. By the way, every factor in this sequence is a unique American phenomenon ! The long ballot with its variegated list of trivial offices is to be seen nowhere but in the United States. The English ballot never covers more than three of- fices, usually only one. In Canada the ballot is less com- monly limited to a single office, but the number is never large, and includes only offices that are of such importance as to at- tract close scrutiny by the public. To any Englishman or Cana- dian our long ballot is astonishing and our blind voting ap- palling. The politicians as a professional class, separate from popular leaders or office-holders, are unknown in other lands, and the very word " politician " has a special meaning of re- proach in this country which foreigners do not attach to it. And government of a democracy from behind the scenes by politicians in endless opposition to government by public opin- ion, is the final unique American phenomenon in the long bal- lot's train of consequences. The blind vote of course does not take in the whole ballot. Certain conspicuous offices engage the attention of all of us. We go to hear the speeches of the candidates for conspicuous offices; those speeches are printed in the daily papers and re- viewed in the weeklies; the candidates are the theme of edi- torials, and we need take no part in politics to be able to vote with knowledge on certain important issues. We would laugh at an attempt to control our vote on any of these questions where we have opinions of our own. With this independent intelligence always at work upon the major nominations, we secure a higher normal level of conditions. Aldermen we elect who do not represent us, and State Legislatures which obey the influences of unseen powers, but we are apt to speak effectively when it comes to the choice of a conspicuous officer like a President, a Governor, or a Mayor. For Mayor, PARTY ORGANIZATION 389 Governor, or President we are sure to secure a presentable figure, always honest and frequently an able and independent champion of the people against the very political interests that nominated him. We are apt to re-elect such men, and the way we sweep aside hostile politicians where the issue is clear shows how powerfully the tide of our American spirit sets toward good government when the intelligence of the com- munity finds a channel witness Roosevelt, Taft, Hughes, Deneen, Folk, and a host of mayors. . . . In an obscure contest on the blind end of the ballot, merit has little political value; but in the conspicuous contests, where we actually compare man and man, superior merit in a nominee is a definite political asset. 'Hence, in the case of an obscure nomination, the tendency is automatically down- ward; but in a conspicuous nomination (where all the voting is intelligent) the tendency is upward. We cannot hope to raise the political intelligence of our citizenship to a level where it will scrutinize the long ballot and cease to vote blindly on most of it. The mountain will not come to Mahomet; Mahomet then must go to the moun- tain. We must shorten the ballot to a point where the aver- age man will vote intelligently without giving to politics more attention than he does at present. That means making it very short, for if it exceeds by even a little the retentive ca- pacity of the average voter's memory, the "political special- ist" is created. A voter could remember the relative merits of probably about five sets of candidates, and could keep that many separate contests clear in his mind, but he would prob- ably begin to vote blindly on more than five. Also we must take all unimportant offices off the ballot, since the electorate will not bother with such trifles whether the ballot be short or not. Why, indeed, should fifty thousand voters all be asked to pause for even a few minutes apiece to study the relative qualifications of Smith and Jones for the petty post of County Surveyor? An intelligent citizen may properly have bigger business ! To be pictorial, let us see how a revised schedule of elec- 390 READINGS IN CIVIL GOVERNMENT tions might look if we put into the realm of appointive offices as many as possible of those which we now ignore. All county offices, many city positions, and the tail of the State ticket would thus be disposed of, and the ballots might look some- what like this (New York State titles) : First year. President and Vice-President (four years) Congressman (two years) City Councilman (two years) Second year. Governor (four years) State Assemblyman (two years) Third year. Congressman (two years) Mayor (four years) City Councilman (two years) Fourth year. State Senator (four years) State Assemblyman (two years) This is merely organizing the State and city as simply as the Federal Government. There is endless room for discus- sion on the details, and many other arrangements could be devised. This schedule provides for every office which must be kept within the realm of politics. It provides short bal- lots which every man would vote intelligently without calling on a political specialist to come and guide his pencil. On such a short ballot basis the entry of our best men into public life becomes possible. To-day the retired business man, for instance, who is willing to devote his trained mind and proven executive ability to the service of his city finds it dif- ficult to enter public life even as a humble alderman. He cannot win as an independent, for the voters do not distin- guish his voice in the political hubbub. He must get his name on the ticket of the dominant party, which can elect him regardless of whether he makes a fierce campaign or re- mains silent on every issue. In seeking this nomination, di- rect primaries will help him a little, but in the confusion at- tending the making of nominations for a multitude of offices he is again unable to attract much attention, and the " ma- chine" swinging its solid blocks of well-drilled voters to the support of some loyal old-time pillar of the " organization, " is likely to defeat him despite his manifest superiority of PARTY ORGANIZATION 391 character. His only hopeful resort is to go down into the unfamiliar and uncongenial shaded underworld of ward poli- tics, kotow to district leaders and captains whose social and business standing is perhaps inferior to his own, and satisfy their queries, "What have you done for the party?" and "What will you do for us?" Such procedure being at least distasteful and probably stultifying, his activities turn to- ward philanthropies and recreations. The city has thus re- fused his proffered services, has turned away the man who considered the office as an opening for civic usefulness in favor of one who probably wanted it as a good job. But if he be conspicuous as an important and almost soli- tary figure before his prospective constituents, such a candi- date can easily get a satisfactory hearing, and his superior merit will be an all-important asset to him. In such a sim- ple situation the "ward politician" has no function. Every ordinary voter is a complete politician too. The party boss- let who prates of "regularity" will find the voter replying with facts regarding the personality and principles of the candidate, and the discussion shifts to a new level. If the politician can win over the voter on that level well and good. That is leadership, not bossism, and is unobjectionable. ADDITIONAL READINGS 1 State Party Organization, Macy, J., Party Organization and Machinery, 96-110. 2 The National Committee, Ibid., 65-86. 3 Participation of the People in City Government, Goodnow, F. J., City Government in the United States, 109-36. 4 The Nominating Convention at Work, Bryce, J., American Commonwealth, II, 185-202. 5 Practical Working of the Direct Primary System, Mer- riam, C. E., Primary Elections, 117-132. 6 Are too Many Executive Offices Elective, Thompson, M. B., Michigan Law Review, VI, 228-36. 7 Presidential Leadership, Macy, J., Party Organization and Machinery, 25-42. PART III THE FUNCTIONS OF GOVERNMENT CHAPTER XVII INDIVIDUAL FREEDOM AND LAW 75. PERSONAL LIBERTY VS. GOVERNMENTAL AUTHORITY. Constitutional government implies that a certain limit be set to the interference by the government with the personal freedom of the individual. Of course there must be some interference by the government with what the individual may regard as his personal liberty or there could be no government; but it is equally manifest that there must be some fixed and positive limit to this interference else there is no personal freedom no constitutional government. Where shall this limit be fixed t What are the functions which the government must exercise in order to maintain its existence, and what are the powers from which the government must hold its hand in order that the freedom of the individual be not destroyed? John Stuart Mill in his Essay on Libeity, written some fifty years ago, is the champion of the liberty of the individual : The struggle between Liberty and Authority is the most conspicuous feature in the portions of history with which we are earliest familiar, particularly in that of Greece, Rome, and England. But in old times this contest was between subjects, or some classes of subjects, and the government. By liberty, was meant protection against the tyranny of the political rulers. The rulers were conceived (except in some of the popular governments of Greece) as in a necessarily antagonis- tic position to the people whom they ruled. They consisted of a governing One, or a governing tribe or caste, who de- 392 INDIVIDUAL FREEDOM AND LAW 393 rived their authority from inheritance or conquest; who, at all events, did not hold it at the pleasure of the governed, and whose supremacy men did not venture, perhaps did not de- sire, to contest, whatever precautions might be taken against its oppressive exercise. Their power was regarded as neces- sary; but also as highly dangerous; as a weapon which they would attempt to use against their subjects, no less than against external enemies. To prevent the weaker members of the community from being preyed upon by innumerable vultures, it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down. But as the king of the vultures would be no less bent upon preying on the flock than any of the minor harpies, it was in- dispensable to be in a perpetual attitude of defence against his beak and claws. The aim, therefore, of patriots, was to set limits to the power which the ruler should be suffered to ex- ercise over the community ; and this limitation was what they meant by liberty. It was attempted in two ways. First, by obtaining a recognition of certain immunities, called political liberties or rights, which it was to be regarded as a breach of duty in the ruler to infringe, and which, if he did infringe, specific resistance, or general rebellion, was held to be justifia- ble. A second, and generally a later expedient was the es- tablishment of constitutional checks; by which the consent of the community, or of a body of some sort supposed to rep- resent its interests, was made a necessary condition to some of the more important acts of the governing power. To the first of these modes of limitation, the ruling power, in most European countries, was compelled, more or less, to submit. It was not so with the second; and to attain this, or when already in some degree possessed, to attain it more completely, became everywhere the principal object of the lovers of lib- erty. And so long as mankind were content to combat one enemy by another, and to be ruled by a master, on condition of being guaranteed more or less efficaciously against his tyranny, they did not carry their aspirations beyond this point. 394 READINGS IN CIVIL GOVERNMENT A time, however, came, in the progress of human affairs, when men ceased to think it a necessity of nature that their governors should be an independent power, opposed in inter- est to themselves. It appeared to them much better that the various magistrates of the State should be their tenants or delegates, revocable at their pleasure. In that way alone, it seemed, could they have complete security that the powers of government would never be abused to their disadvantage. By degrees, this new demand for elective and temporary rulers became the prominent object of the exertions of the popular party, wherever any such party existed; and super- seded, to a considerable extent, the previous efforts to limit the power of rulers. As the struggle proceeded for making the ruling power emanate from the periodical choice of the ruled, some persons began to think that too much importance had been attached to the limitation of the power itself. TJiat (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people ; that their interest and will should be the interest and will of the nation. The nation did not need to be protected against its own will. There was no fear of its tyrannizing over itself. Let the rulers be effectually responsible to it, promptly removable by it, and it could afford to trust them with power of which it could itself dictate the use to be made. Their power was but the nation 's own power, concentrated, and in a form convenient for exercise. . . . The notion that the people have no need to limit their power over themselves, might seem axiomatic, when popular government was a thing only dreamed about, or read of as having existed at some distant period of the past. . . . In time, however, a democratic republic came to occupy a large portion of the earth's surface, and made itself felt as one of the most powerful members of the community of nations; and elective and responsible government became subject to the observations and criticisms which wait upon a great ex- isting fact. It was now perceived that such phrases as "self- INDIVIDUAL FREEDOM AND LAW 395 government," and "the power of the people over themselves," do not express the true state of the case. The ' ' people ' ' who exercise the power, are not always the same people with those over whom it is exercised, and the "self-government" spoken of, is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means, the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority: the people, consequently, may desire to oppress a part of their number; and precau- tions are as much needed against this, as against any other abuse of power. The limitation, therefore, of the power of government over individuals, loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein. This view of things, recommending itself equally to the intelligence of thinkers and to the inclination of those important classes in European society to whose real or supposed interests democ- racy is adverse, has had no difficulty in establishing itself; and in political speculations "the tyranny of the majority" is now generally included among the evils against which so- ciety requires to be on its guard. . . . In England, from the peculiar circumstances of our po- litical history, though the yoke of opinion is perhaps heavier, that of law is lighter, than in most other countries of Europe ; and there is considerable jealousy of direct interference, by the legislative or the executive power with private conduct; not so much from any just regard for the independence of the individual, as from the still subsisting habit of looking on the government as representing an opposite interest to the public. The majority have not yet learnt to feel the power of the government their power, or its opinions their opinions. When they do so, individual liberty will probably be as much exposed to invasion from the government, as it already is from public opinion. But, as yet, there is a considerable amount of feeling ready to be called forth against any at- tempt of the law to control individuals in things which they 396 HEADINGS IN CIVIL GOVERNMENT have not hitherto been accustomed to be controlled by it ; and this with very little discrimination as to whether the matter is, or is not, within the legitimate sphere of legal control, insomuch that the feeling, highly salutary on the whole, is perhaps quite as often misplaced as well grounded in the par- ticular instances of its application. There is, in fact, no rec- ognized principle by which the propriety or impropriety of government interference is customarily tested. People decide according to their personal preferences. Some, whenever they see any good to be done, or evil to be remedied, would willingly instigate the government to undertake the business while others prefer to bear almost any amount of social evil, rather than add one to the departments of human interests amenable to the governmental control. And men range them- selves on one or the other side in any particular case, according to this general direction of their sentiments; or according to the degree of interest which they feel in the particular thing which it is proposed that the government should do; or ac- cording to the belief they entertain that the government would, or would not, do it in the manner they prefer; but very rarely on account of any opinion to which they con- sistently adhere, as to what things are fit to be done by a gov- ernment. And it seems to me that, in consequence of this absence of rule or principle, one side is at present as often wrong as the other; the interference of government is, with about equal frequency, improperly invoked and improperly condemned. The object of this Essay is to assert one very simple princi- ple, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That prin- ciple is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self -protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to INDIVIDUAL FREEDOM AND LAW 397 prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reason- ing with him, or persuading him or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. 76. THE NON-ESSENTIAL FUNCTIONS OF GOVERNMENT. Professor W. W. Willoughby in his book on the Nature of the State distinguishes between "essential" and "non-essential" functions of government and holds that the state is justified in exercising the latter : * The refutation of the individualistic doctrines, . . . leads necessarily to the assumption that the State may, in certain cases, properly exercise powers other than those that are necessary for its mere existence and the maintenance of order. These other functions we term " non-essential " or "common welfare" functions. They include in general the economic, industrial and moral interests of the people. They are the activities assumed by the State, not because their exercise is a sine qua non of the State 's existence, but because their public administration is supposed to be advantageous to the people. They are such that if left in private hands would either not be performed at all, or poorly performed. The determination of just what powers shall be assumed by the State, is solely one of expediency, and as such lies i See above page 111, note. 398 READINGS IN CIVIL GOVERNMENT within the field of Politics or the Art of Government and not within the domain of political theory. For this reason we are not here called upon to discuss the utilitarian arguments pro and contra, upon which the public control of this or that inter- est is to be defended or opposed. In each instance the partic- ular circumstances of the case must determine whether or not the advantages to be derived from the public control in a par- ticular case are more than offset by the weakening of the self- reliance of the people, by the encroaching upon their persona] freedom, by the opening of the way to corrupt influences in government, or by the creating of precedents for the assump- tion of activities by the State that will be detrimental to the general interests. This is practically the rule followed by all modern civilized States. In accepting this broad utilitarian basis for the State's ac- tion, as including every activity that may in any way pro- mote the general welfare, the greatest latitude of individual opinion is permitted as to just what public functions will subserve this end. According to the weight given to the vari- ous arguments for and against State action one may differ little in practice from the limited policy dictated by the indi- vidualist, or from the extreme doctrine of the socialist or even the communist. The only point here insisted upon is that there is no a priori or fixed limit which can be placed to governmental activity, but that the assumption of each func- tion must rest upon its own utilitarian basis. . . . By a necessary course of events the trend has been towards the assumption by the State of new functions in the control and regulation of industrial life; and the same causes that have operated in the past will continue to have their effect in the future. As industrial society develops, and increases in coherence and complexity, the social interests those affect- ing the people in general will become more numerous and important, and enlightened utilitarianism will demand tlu subordination of individual interests to the general weal of the community. . . . It is not necessary to recite here the numerous and important instances during comparatively re- INDIVIDUAL FREEDOM AND LAW 399 cent years in which the State has widened her boundaries un- der the impelling influence of the causes which we have enumerated. If one were asked to characterize in a single sentence the development of government during the present century, it could not be better done than by describing such development as one wherein the purely political duties of the State have become progressively less important as compared with its other functions. In the United States, the extent to which matters of public interest are economic in character is especially apparent. With arduous labor, our enterprising news journals are able to arouse occasional excitement on the part of the people in regard to items of our foreign relations, but as a matter of fact, public matters of purely political import seldom arise. Matters connected with the maintenance of domestic tran- quillity, and defence from foreign aggression or wrong enter but slightly into our general thought. Our legislatures are mainly concerned with economic matters, such as the levying of proper import duties, with the control of trusts, with prob- lems connected with railroads, with interstate commerce, with the assessment of taxes, with the provision of proper circulat- ing currency, and the maintenance of sufficient banking facil- ities. The extent to which this movement has already gone is evidenced by a comparison of the history of the last century with that of the latter half of the present. Then, history was little but the record of purely political events; of wars, of treaties of offence and defence, of the settlement of dynastic or territorial disputes, of struggles of factions for the posses- sion of political power, and of the maintenance of public order. Now, the pages of our history, when they shall be written, will be largely filled with the record of industrial growth, the negotiations of commercial treaties, and of the de- velopment of this or that phase of economic life. . . . Now we may ask ourselves, whether or not the facts and the reasoning which have preceded, point necessarily to ulti- mate socialism ? To this a categorical answer cannot be given. 400 READINGS IN CIVIL GOVERNMENT They do point, undoubtedly, to an inevitable extension of the State's activities far beyond those at present exercised. But in considering the bearing of an increase in State activity upon this question, it is to be noticed that not every assump- tion by the State of a new function is a step towards so- cialism. This is a very important point. We have already made the distinction between essential and non-essential duties of the State. The assumption by the State of a power in this latter field is ordinarily termed socialistic, but not properly so. Further consideration shows that this analysis of govern- mental functions may be carried one step farther. The non- essential optional duties may themselves be grouped under two distinct heads, which may be termed " socialistic" and " non-socialistic ' ' respectively. The socialistic duties properly comprehend only activities which could be exercised by the people if left to their private initiative. Therefore, their as- sumption by the State, is, to that extent, a curtailment of the industrial freedom of the people. Examples of socialistic duties are the ownership and operation by the State of rail- roads, of canals or of telegraph lines; the ownership by the city of gas, water and electric light works, and the provision of model tenement houses for the poor by the public authori- ties. These, it will be seen, admit of private management, and, in fact, are, in this country, very generally attended to by private enterprise. Under the non-socialistic duties of the government are in- cluded those which if not assumed by the State would not be exercised at all. They are duties not essential to the State's existence, and yet, from their very nature, not likely or even possible of performance by private parties. Such duties as these are therefore not socialistic, because their public as- sumption does not limit the field of private enterprise, nor in any way interfere with private management of any sort of industry. As a rule, they are powers educational in char- acter rather than coercive, directive rather than controlling. Under this head come all those administrative duties that INDIVIDUAL FREEDOM AND LAW 401 are of an investigating, statistical character, and consist not in the interference with industry, but in the study of condi- tions and the diffusion of the information thus obtained. Work of this kind is that performed by the United States Departments of Labor and of Agriculture, by the Bureau of Education, the Fish Commission, the Coast and Geodetic Sur- vey, by the Decennial Censuses, etc. Public libraries and reading-rooms, boards of health, the provision of public parks, and certain branches of education also come under this head. Likewise of this character is that large class of govern- mental duties, that we have before mentioned, the exercise of which results in the raising of the plane of competition, rather than destroying it. Thus, when we consider closely, we see to what a very large degree the increase of governmental activity during the present century has been in this non- socialistic field. Furthermore, we discover that indications seem to point to this same field as the one to which the con- tinued extension of the sphere of the State will probably be largely confined. The effect of the exercise of these duties is not to check or even to regulate competition. Their purpose is not to interfere with the struggle for existence and the survival of the fittest, but to transform the environment, and, by diffusing sounder information concerning the character of the conditions and the nature of the forces with which man is surrounded, to render it possible for him either to harmonize his efforts with them, or to direct his strength and intellect to a modification of them. In fine, to increase his opportunities. In the field of socialistic duties, the greatest extension of the State's powers will probably be seen in the ultimate own- ership and operation by the State or municipalities of all those' industries termed "natural monopolies" the railroads, gas, water and electric light plants, street transit facilities, etc. Economists of the present school have generally advocated the public ownership of these "natural monopolies," and have laid stress upon the fact that, as they claim, socialistic prece- dents are not thereby established, basing this view upon the statement that it is only in this class of industries, which are 402 READINGS IN CIVIL GOVERNMENT not amenable to the healthy influence of competition, that there will ever arise the necessity for State management. This allegation served for a time as a fair argument, but the recent development of gigantic trusts, which have largely re- moved from competitive influences the production of a very considerable number of commodities whose production is not 1 ' naturally " monopolistic, has greatly weakened this economic distinction. As has been before said, this phase of industrial development is as yet so new, that it is not yet determined whether their influence will be ultimately for the public good or not. Should these capitalistic aggregates prosper and prove lucrative to their individual owners, but, from the ex- tent of their power of controlling trade, tend to exert an in- fluence detrimental to society at large state intervention would become a necessity. Should simply legislative control be found insufficient for their regulation, the assumption of the production of these commodities by the State itself would seem to be necessary, and this would be a very long step to- wards socialism. 77. GOVERNMENTAL ENTERPRISE IN THE NON-ESSENTIAL FUNCTIONS. The government of the United States has not been guided by the let-alone policy advocated by John Stuart Mill. On the contrary, it has followed a utilitarian policy and has already entered quite extensively into the field of what Professor Willoughby terms the ''industrial" or "general welfare" functions. That this is true is seen from the following statement by Mr. John Martin of the ''so- cialistic" activities of our government: [1908]. Democracy in this country has acted socialistically * and communistically to a degree which few Americans realize. From early days the individual liberty of the poor man to go without roads, to keep his children from school, to poison the streams with typhoid germs, to carry a gun and adminis- ter his own justice, or to sell liquor, has been restricted for the *Mr. Martin uses the word socialism in its broad sense to denote a wide range of activities beyond those that pertain to the individual. INDIVIDUAL FREEDOM AND LAW 403 common good by methods which are socialistic. Gradually the practical man, heedless of theories, faced by new prob- lems, has adopted in America more and more of the socialistic method until to-day it is a most important factor in local, state, and national life. Besides our international relations, the army, the navy, and courts of justice, the National Government now conducts the post-office, coinage, regulation of the currency and note-issue, ship-building, ship-repairing and its own banking. It lights the coast and deepens harbors and rivers with so much na- tional benefit that a strong movement is on foot for the ex- penditure of hundreds of millions in making a waterway from the Gulf of Mexico to the Great Lakes, and a still-water route on the Atlantic Coast. Recently private contractors broke down in dredging the new channel past Sandy Hook in New York Harbor. But the Government, reckless of the musty proofs that it could not possibly manage any business enterprise, went ahead with the work itself; and, before the estimated time had elapsed, ocean liners traversed the chan- nel. The National Government, furthermore, carries on and publishes its own researches in geology, meteorology, statis- tics, zoology and geography. Every one of these functions, including those of the army, navy and courts of justice, was in some countries at one time left to private enterprise and was financed by individual investments. . . . . In few of our larger activities are socialistic methods more in evidence than in the industries related to agriculture. The farming class constitutes the largest body of voters in Amer- ica, and industrially their work is the most important. For aiding them in their labors, a perfection of communism has been attained of which few Americans are aware. Whatever puzzling emergency confronts the farmer, he can summon expert aid to give him all that science and experience can fur- nish to enable him to meet it. The National Department of Agriculture, assisted by the State Department, stands ready to show him what crops to grow and how to grow them; what animals to breed and how to breed and tend them; 404 HEADINGS IN CIVIL GOVERNMENT what trees to plant and how to care for them ; how to produce the best butter and cheese, and the way to market them. This paternalistic department is responsible for the intro- duction into this country of sorghum, a crop now worth $40,- 000,000 a year; Durum wheat, worth $10,000,000 annually; alfalfa, one of our most important crops; the navel orange, worth many breakfast foods; Japanese rice and bamboo; the Corsican citron; the Indian mango; the Bohemian horse-rad- ish; the German brew barleys; Spanish almonds; French prunes; Chinese mustard, and Egyptian cotton. In three years, four thousand novelties have been brought to this un- suspecting land by a socialistic department. During last year, laboratories were established at Baltimore and at New Orleans for the purpose of examining and reporting upon the condition of any consignment of seed or grain, and an agent will be stationed at foreign ports to examine cargoes on their arrival from this country. Also outside of the United States exploration work is carried on. This has recently esulted in the introduction of a seedless hardy persimmon, a hardy wild apricot, a new hardy peach, soft-shelled walnuts, varieties of Chinese grapes, an edible fruited hawthorn, and edible kernelled apricots to mention only a few aliens which are being naturalized. The best known and perhaps the most valuable work which the Departments of Agriculture, federal and state, have done, is in overcoming the destructive pests and diseases which are constantly threatening our plants and trees. The ravages of the boll-weevil in the cotton of the South have been materially lessened by the recommended use of early-maturing, short- season varieties. Iowa in 1903 was alarmed by the yearly falling off in its corn crop to figures far below normal. Pro- fessor Holden, of the State Bureau, by means of exhaustive investigations, traced the evil to inferior seed; and careful selection of seed-corn soon restored the normal yield. The eradication of the little-peach disease in Michigan and New York and the peach-blight in California, the checking of bit- ter-rot in the apple, and the brown-rot diseases of peaches and INDIVIDUAL FREEDOM AND LAW 405 other stone-fruits are but a few of the countless achievements effected along these lines. Not many states but have felt the beneficent results of the work of the department's representatives. Dr. Knapp brought great prosperity to certain parts of Louisiana and Texas through a new kind of rice farming which he devel- oped. Professor Bolley has virtually eradicated oat-smut in Wisconsin, a pest which was costing that state millions of dollars a year. Professor Babcock discovered a simple ap- pliance for gauging accurately the richness of milk, which has been invaluable in putting the dairy upon a sound eco- nomic basis. With a true socialistic spirit, Professor Bab- cock refused to have this test patented, so it remained only another of the aids which a communistic department has given free to the American farmer. In the great semi-arid regions of the West, where the farmer is faced by the necessity of diverting water from the streams in order to irrigate his fields, water rights are of equal importance with land claims. During the early days, individualistic competition for water rights was the rule, but this practice was so fruitful of quarrels and lawsuits, and so altogether unsatisfactory, that state after state adopted col- lectivist principles in determining water distribution. Colorado was the pioneer state in providing for the dis- tribution of water by public officials, the state engineer being the head of the system. The state is divided into districts, each watered by its own streams. State officials measure the stream, gauge the supply, and' act as an earthly providence to the farmers. The commissioner of a district receives each morning by telephone a statement of the river under his con- trol, and is then prepared to go over the stream, regulating the headgates of the ditches as may be necessary and giving orders to the ditch managers. . . . The Reclamation Act, passed in 1902, provided for the collective construc- tion on an unprecedented scale of vast engineering works for the reclamation of desert lands. As a result of this Act, the arid regions of the West have been transformed 406 READINGS IN CIVIL GOVERNMENT The Roosevelt Dam now being built in Arizona will create a lake twenty-five miles long, and will bring into cultivation 200,000 acres of land. The Government has itself manufac- tured the cement and sawed the timber used in its construc- tion. In Wyoming the highest dam in the world is in course of erection, and in Colorado a river is being diverted by means of a six-mile tunnel through a mountain of solid rock. The mammoth Laguna Dam, which controls the Colorado River, a huge earth dam in South Dakota, with a ditch 140 miles long, the size of a ship canal; a unique system of pumps on floating barges in North Dakota, which lift water directly from the Missouri River these are but a few notable features of the work now in progress. Up to the beginning of last year the completed works in- cluded enough canals to stretch from Washington to Omaha some of them carrying whole rivers tunnels aggregating eleven miles in length, ninety-four large structures (such as dams), nearly four hundred miles of wagon road, over seven hundred miles of telephones, many cement and sawmills, and the topographic survey of an area greater than Massachu- setts and Rhode Island. The Reclamation Service is operat- ing nine locomotives and 223 cars, upon twenty-three miles of railroad, and five electric light plants which it constructed. As a result of this work, ten thousand people have taken up their residence in the desert. The construction now under way will serve to irrigate 1,598,000 acres, and the projects planned will add 3,270,000 acres more. Of the projects already approved, the approxi- mate total cost is $97,000,000. Yet so fertile is the irrigated soil that two crops will almost pay the total cost of the irri- gation system. An accurate account is kept of all expenses from the time that an irrigation project is undertaken. When the work is completed, each acre irrigated is assessed a pro rata of the total cost, and this the settler must pay in ten annual installments, without interest. This money is re- turned to the Reclamation Fund to be used over again. Before long, 600,000 farms, the homes for 3,000,000 people, INDIVIDUAL FREEDOM AND LAW 407 will have been reclaimed from the desert. As town popula- tions are more than double the population of their support- ing farm districts, it is safe to say that 10,000,000 people will presently be occupying these reclaimed lands. The construc- tion by a government of such a vast water system, to be sold piecemeal to thousands of farmers, and the continued owner- ship of the main works, with guaranteed water rights to each lessee and strict enforcement of regulations upon the co-operative associations of water users, constitutes perhaps the widest application of practical socialism on American soil. . . . Quite as interesting as Uncle Sam's projects to secure new advantages for his people, are his paternalistic efforts to con- serve those natural resources which are threatened through individualistic exploitation. He owns and operates a forest estate of fabulous value, "in the interest of the whole people," as an official report phrases it. Embracing about 150,000,000 acres, it is larger than the combined areas of Great Britain, Ireland, Greece, Switzerland, Belgium, Servia, Denmark, Costa Rica and Iceland, or equal to the area of the whole of New England, New York and West Virginia. By the ap- plication of successful business methods to the working of this estate, the gross receipts derived from it have beqn increased from $25,431 in 1902 to more than $1,000,000 in 1906. By protecting the forests against fire, by permitting the cutting of ripe timber under strict regulation, and by planting opera- tions on an extensive scale, the yield of the forest is ever in- creased and the threatening lumber famine postponed. The communistic activities of the Forest Service are not confined to the management of the Government's forest reserves. It co-operates with various states of the Union in the study of their forest resources and the elaboration of plans for devel- oping and protecting these resources. At present forestry is being applied upon a million acres of private woodland under plans prepared during the past four years by the Forest Service. During one year this active bureau has examined, in twenty-five different states, timber tracts aggregating 408 READINGS IN' CIVIL GOVERNMENT 2,000,228 acres. It co-operates with railroads in investigat- ing the present tie supply, the possibility of planting trees for ties and methods of prolonging the life of ties. Private lum- bermen have been shown by the results of the bureau's studies how to economize the rapidly diminishing supply of timber, and how to increase the turpentine flow in pines. Nine states have forest reservations. New York leads with a forest area of about a million and a half acres. Governor Hughes recommends its extension and the replanting of spruce and pine upon a large scale. In 1906, a charge for grazing in the forests was first es- tablished, to succeed the policy of free grazing. This was a most important step in the preservation of our national re- sources. Its logical outcome is seen in several states, includ- ing Texas, Wyoming and Washington, which have adopted a system of leasing state lands suitable for grazing. From this means alone Texas derived in 1902 a revenue of $457,656. The federal Public Lands Commission reported In favor of extending this leasing system to all the 300 million acres of public grazing land, which constitute one-fifth of the area of the United States. This recommendation is prompted by the abuses of the present pernicious system of free grazing, from which naturally and inevitably, overstocking results in the consequent ruin of millions of acres. The once free and open range of the West will soon be held in trust by a benefi- cent national government and managed in the interests of all the people its owners although the thriving cattle-kings de- mand to be let alone. . . . The Consular Service is a socialistic organization, with of- ficers in every important city of the globe, which serves as the eyes and ears of the manufacturers in the States. The functions of consuls have been very much extended within recent years. Their present duties consist in enlightening the people in their districts in regard to the superiority of Ameri- can products, and in encouraging and facilitating the importa- tion of such products into their districts. Possible buyers are invited to visit the consulates and examine the catalogues and INDIVIDUAL FREEDOM AND LAW 409 samples of American goods kept there for inspection. And American trade journals are usually kept on file by the consul for the use of foreign buyers. Further, each consul is required to furnish commercial information for official publication in America. Daily and monthly bulletins, issued free with Uncle Sam's usual communistic generosity, keep manufac- turers informed of the opening for their goods abroad. Each consul, is, in effect, a trade drummer, maintained by the com- munity for community advantage. It is his duty to bring to the attention of home manufacturers any opportunity to sup- ply machinery, electric power-plant equipment, motor boats, automobiles, etc. Only recently he has been instructed to furnish systematized lists of the merchants in his district who handle or might be induced to handle American goods. This information is indexed, and filed and, when complete, will constitute a business directory covering the world in every line of industry. Such a work could only be consummated through a strong Government bureau. For this work, the na- tion co-operatively provides, because the nation collectively benefits. In respect to the outright government ownership of public utilities, it is the municipality rather than the state or nation which has been most active. Municipal socialism is growing apace. From 1800 to 1900, public waterworks in the United States developed in round numbers from 6 per cent, to 60 per cent, of the whole number. Of the fifty largest cities in the United States, only nine are now dependent on private com- panies for their water supply. Some of the belated nine ap- pear to be on the point of changing to municipal ownership, and in practically all of them an agitation for such a change is in progress. Of the thirty-eight cities with a population of more than 100,000 only eight have private ownership. Of these, New Orleans will soon take over its waterworks, Omaha is hesitating only over the question of price. Of the thir- teen largest cities, only San Francisco, which ranked ninth before the earthquake, has a private supply. The municipal ownership of gas has not been tried on 410 READINGS IN CIVIL GOVERNMENT quite so considerable a scale. Still, the growth has recently been rapid. Whereas in 1890 there were only nine municipal gas plants in the United States, there are now twenty-five, not to mention eighty-four small places selling acetylene, gasoline, and natural gas. The largest municipal plants are at Holyoke, Duluth, Richmond, and Wheeling. Thirty smaller cities in the United States and Canada possess munici- pal gas works. Even more remarkable has been the recent ^development of municipal electric light plants. Of the plants that were started prior to 1899, only 11.4 per cent, were municipal, while 27.8 per cent, of the stations opened from 1896 to 1902 were of this kind. Seven large cities Chicago, Detroit, Al- legheny, Columbus, Seattle, Grand Rapids, Nashville have municipal electric light plants. In the smaller cities, where the profits of over-capitalization have been less tempting to financiers, municipal ownership is most* extensive. Alto- gether, no less than 1,055 places in the United States practice this bit of municipal socialism. In all these cases, on the word of the Commission of the National Civic Federation, the mu- nicipal plants for providing water, gas, and electricity, have done far better for the taxpayer and consumer than the private plants in anything like the same situation. Prices have been lowered and the plants paid for largely out of the earnings. ADDITIONAL READINGS 1 The Essential Functions of the State, Willoughby, W. W., The Nature of the State, 310-16. 2 Judge Made Law, Taylor, H., Green Bag, XVII, 563-5. 3 The Enforcement of the Law, Folk, J. W., Green Bag, XVII, 405-10. CHAPTER XVIII PROBLEMS OF TAXATION 78. DEFECTS IN THE GENERAL PROPERTY TAX. One of the main sources of revenue to the States has always been the general property tax. In fact, this form of taxation has been called "more thoroughly American" than any other. Nevertheless it has never been entirely satisfactory, and especially of late years it has been the object of many bitter and determined protests. In the following selection Professor E. R. Seligman points out its most salient defects: 1 [1890]. The defects of the general property tax may be discussed under five heads. 1. Lack of uniformity, or inequality of assessment. The property tax with us is an apportioned, not a percentage tax. According to the latter method the tax would be levied on the individual taxpayer by means of a fixed rate or per- centage of all property. According to the actual method the total amount to be raised by the state is first ascertained, and is then apportioned to the various subdivisions according to the appraised valuation in each. The final rate of taxation is obtained by adding the local tax to the state tax. The rate of taxation ought therefore to vary only with the local needs, and would indeed so vary if property were everywhere assessed uniformly. As an actual fact, however, this is far from being the case. In most of the commonwealths J;he tax laws provide for the assessment of property at its "fair cash value." And in all the states it is expected that the valua- tion shall everywhere be made at a uniform rate. Yet it is a i Selections 78 and 80 are reprinted from Seligman, Essays in Tax- ation, by special permission of MacMillan and Company. 411 412 READINGS IN CIVIL GOVERNMENT notorious fact that in scarcely any two contiguous counties is the property even the real estate appraised in the same manner or at the same rate. In regard to the manner, it frequently happens that corporation property, e. g. y the road- bed of a railway, is assessed in one county at an immense sum per mile and is treated in the adjacent county like a piece of grazing land. In regard to the rate, the assessors follow the practice sanctioned by local usage or decide by mere caprice. The official reports abound with complaints or open confessions that property is assessed all the way from par to one twenty-fifth of the actual value. In one county the property is listed at its full worth ; in the next county the assessment does not exceed a tithe of its value. That this is a glaring infraction of the fundamental rule of equality in taxation is apparent. As between counties it leads to under valuations which give an entirely fallacious view of the public resources. As between individuals it results in gross in- justice. A tax rate of a given amount on one may be double, quintuple or decuple the nominally equivalent tax on another. The first constitutional injunction that of uniformity of taxa- tion is flagrantly violated. Assessors are compelled openly to disregard their oath, or to incur certain defeat at the next election. There is no pretence of complying with the law. An escape from these evils has been sought in the creation of boards of equalization. A large number of common- wealths have attempted to correct the undervaluation of the county officials by giving a state board power to raise or lower the valuations (or in some cases the rate) in the hope of se- curing a substantial uniformity. But the effort has been very imperfectly successful. The composition of the boards is such as to render any comprehensive scrutiny of the county returns almost impossible. Even were the boards to be con- stituted in an ideal manner, the local jealousies and bicker- ings would still continue to prevent any just distribution of the burdens. The boards themselves confess that such dis- tribution is impossible under our present system. Boards of equalization are thus at best a mere makeshift, a clumsy and PROBLEMS OF TAXATION 413 cumbrous attempt to accomplish the impossible. In the dras- tic phrase of Mr. Townsend : ' * A people cannot prosper whose officers either work or tell lies. There is not an assessment roll now made out in this state that does not both tell and work lies." As long as this is true, boards of equalization are of little avail. 2. Lack of universality, or failure to reach personal prop- erty. This is a defect which, although the most flagrant, per- haps requires the least commentary ; for it is so patent that it has become a mere byword throughout the land. Personal property nowhere bears its just proportion of the burdens. And it is precisely in those localities where its extent and importance are the greatest that its assessment is the least. The taxation of personal property is in inverse ratio to its quantity. The more it increases, the less it pays. The rea- son is plain. So far as it is intangible, personal property escapes the scrutiny of the most vigilant assessor; so far as it is tangible, it is exempted in its chief form, as stock in trade, by every intelligent official. In the mad race for wealth it would be suicidal for the local assessors in large cities to as- sess the merchant's capital, with the sole result of driving it away to localities more favored by their financial officers. It is scarcely necessary to give figures to substantiate these state- ments. The tenth census of the United States asserts that from 1860 to 1880 the assessed valuation of real estate in- creased from $6,973,006 to $13,036,767, while that of per- sonal property decreased from $5,111,554 to $3,866,227. In California personal property was assessed in 1872 at 220 mil- lions of dollars, in 1880 at 174 millions, and in 1887 at 164 millions a net decrease in fifteen years of 56 millions. Real estate increased during the same period from 417 millions to 791 millions. Personal property paid 17.31 per cent., real estate 82.69 per cent, of the taxes. In Illinois the figures for 1888 are 20.18 per cent, and 79.82 per cent, respectively. In Cook county (Chicago), out of a total valuation of 210 mil- lions, personal property paid only 14 per cent. In New York the figures are as follows : 414 READINGS IN CIVIL GOVERNMENT Real Estate. Personal Property. 1843 $ 476,999 $118,602 1859 1,097,504 307,349 1871 1,599,930 452,607 1878 2,373,418 364,960 1888 3,122,588 346,611 The proportion paid by personal property has decreased steadily every year, until according to the last figures it pays but 9.99 per cent, of the state taxation, over against 90.01 per cent, falling on real estate. In New Jersey, in 1887, in one township the real estate was assessed at $272,232, the personal property at $591. In another the figures were $2,274,900 and $47,150 respectively! In New York the personalty was returned in one town at $5,000, in the adjoining but no more prosperous town at $700,000. These striking figures become ridiculous when it is remem- bered that in our modern civilization the value of personal property far exceeds that of real estate as understood by the taxing power. It is true that the legal distinction between real and personal property fluctuates in the various com- monwealths; but in the eyes of the assessors real estate gen- erally includes only land and the fixtures thereto, all the other forms of wealth being regarded as personal property. In California, indeed, the constitution of 1879 provides that mortgages of real estate shall be regarded and caxed as realty. The law of Massachusetts and Oregon is similar. But even if mortgages were counted as real estate, and even if (as is nowhere done) other certificates of ownership in realty were also counted as real estate, it would still remain true that personal property constitutes the greater part of the na- tional wealth. For personal property does not denote merely movable objects. It includes money, public obligations, and the vast mass of intangible property represented by securities of corporations, of which only a small portion are certificates of ownership in reality. Above all, personal property in- cludes the entire and ever-increasing annual products of agriculture and industry the gigantic mass of modern PROBLEMS OF TAXATION 415 wealth devoted mainly to consumption, but existing as the stock in trade of individuals. Even in our most western commonwealths, where the communities are still mainly agricultural, it is an acknowledged fact that the personalty exceeds the realty. The auditor of Washington tells us that if a true valuation could be reached it is "clear and incon- testable that the wealth of the territory in personal property, for the purposes of taxation, would largely predominate over that of real estate. ' ' And if this is true of the far West, how much greater must be the relative proportion of personalty in the busy marts of the East. Yet the more differentiated the industry and the more predominant the personalty, the less does the latter contribute to the public charges; until in the foremost state of the Union realty pays more than nine-tenths and personalty less than one-tenth. The taxation of personal property, I repeat, is in inverse ratio to its quantity. The more it increases, the less it pays. The general property tax thus sins against the principle of universality of taxation even more than against the princi- ple of uniformity. In the middle ages whole classes were exempt by express provision of the law; in our time and country whole classes are exempt by the inevitable working of the law. It is the law which is equally at fault in both cases. 3. Incentive to dishonesty. One of the worst features of the general property tax is that any attempt to enforce the taxation of personalty by more rigid methods results in evasions and deceptions. The property tax necessarily leads to dishonesty, and this for two reasons. In the first place, under our system whole classes of personalty are exempt from state taxation. The most familiar examples are im- ported merchandise in the original package; United States bonds, notes, checks and certificates; property in transitu; goods produced in another state sent on commission; deposits in savings banks, etc. The temptation for the taxpayer to convert his property temporarily into these classes is gen- erally irresistible. Not only does the law hold out to indi- 416 READINGS IN CIVIL GOVERNMENT viduals inducements to practice fraud, but it sustains them in its commission. Secondly, wherever any pretense is made of enforcing the tax on personalty, and especially where the taxpayers are required to fill out under oath detailed blanks covering every item of their property; the inducements to perjury are increased so greatly as to make its practice universal. The honest taxpayer would willingly bear his fair share of the burden; but even he cannot concede his obligation to pay other men's taxes. The only result of more rigid execution of the law is a more systematic and universal system of deception. Official documents tell us that " instead of being a tax upon personal property, it has in effect become a tax upon ignorance and honesty. That is to say, its imposition is restricted to those who are not informed of the means of evasion, or, knowing the means, are restricted by a nice sense of honor from . resorting to them." The tax commission of New Hampshire declares that ' ' the mere failure to enforce the tax is of no importance, in itself considered, in comparison with the mischief wrought in the corrupting and demoralizing influences of such legis- lation. The Illinois commission asserts that the system is " debauching to the conscience and subversive of the public morals a school for perjury, promoted by law." The Con- necticut commission maintains that the resulting "demoral- ization of the public conscience is an evil ot the greatest magnitude." The West Virginia commission tells us that "the payment of the tax on personalty is almost as voluntary and is considered pretty much in the same light as donations to the neighborhood church or Sunday-school." And almost every annual .report of the state comptrollers and assessors complains bitterly that the assessment of personalty is nothing but an incentive to perjury. 4. Regressirity. Taxes are progressive when their increase is more than proportional to the increase of the property or income taxed, i. e., when the rate itself increases with the increase of the property. Taxes are regressive when the rate increases as the property or income decreases. The general PROBLEMS OF TAXATION 417 property tax m its practical effects is regressive. For the tax on personalty is levied practically only on those who already stand on the assessor's book as liable to the tax on realty. Those who own no real estate are not taxed at all; those who possess realty bear the taxes for both. The weight of taxation thus rests on the farmer. In the rural districts the assessors add the personalty, which is generally visible and tangible, to the realty and impose the tax on both. We hear a great deal about the decline of farming land. But one of its main causes has been singularly overlooked. It is the overburdening of the agriculturist by the general property tax. What is virtually a real property tax in the remainder of the state becomes a general property tax in the rural regions. The farmer bears not only his share, but also that of the other classes of society. Thus official documents tell us that "the class of property that escapes taxation most, is the class of property that pays the largest dividends." And in general it may be said, with our state auditors, that "the property of the small owner, as a rule, is valued by a far higher standard than that of his wealthy neighbor. ' ' Or, as it is put by others: In every portion of the State we find the most unproductive prop- erty, and that of the lowest real value, assessed at the highest ratio. The rule holds good that those who have to battle hardest with life for subsistence, are compelled to pay the most onerous taxes on the real value of their property. It is no wonder that in their desperation the small farmers should cry out for the equal enforcement of the laws taxing personalty ; it is no wonder that they should attempt to stem the current in ignorance of the impossibility of the task: They have forgotten Walpole's saying, that it is safer to tax real than personal estate, because "landed gentlemen are like the flocks upon their plains, who suffer themselves to be shorn without resistance; whereas the trading part of the nation resemble the boar, who will not suffer a bristle to be pluckt from his back without making the whole parish to echo with his complaints. " 27 418 READINGS IN CIVIL GOVERNMENT 5. Double taxation. Double taxation is of two kinds: that which is prima facie double double taxation in itself and duplicate taxation arising from interstate complications. The second form will be omitted here, as it is not peculiar to the property tax but may arise in connection with almost any direct tax. The existing chaos on this point will be discussed in another article. I confine myself here to the first form. Perhaps the greatest weakness of our general property tax, and the one which has given rise to the most interminable discussion, is connected with the subject of debt exemption. On the one hand it is maintained that an offset should be made for all indebtedness, whether mortgage debt on real property or general liabilities on personalty. Individuals should be taxed on what they own, not on what they owe. To tax both borrower and lender is double taxation. This is the view of the Connecticut commission, and the practice of a few states accords with it. On the other hand the majority of American investigators assert that deduction for indebt- edness results practically in such injustice and deception as to be utterly unendurable. They therefore demand that there should be no offset of debts against property. This is the view of the Massachusetts and New Jersey commissions, and the practice in many states. Both these views are correct. To tax both lender and bor- rower for the same property is plainly double taxation, and therefore unjust. The fallacy of the contrary opinion con- sists in looking at the property rather than at the owner. What the state desires to reach is primarily the individual. It taxes his property simply because it considers this a test of his ability to pay. But his ability is manifestly reduced pro tanto by his debts. His true taxable property there- fore consists in his surplus above indebtedness. Otherwise one would be taxed for what he has, and another for what he has not. This is the view accepted by all European authorities. The only American scientist who holds to the contrary opinion, Amasa Walker, does so in a half-hearted PROBLEMS OF TAXATION 419 way; for he bases his view on utterly arbitrary data, con- fesses that much hardship will ensue, and finally concludes that the income-tax principle is the only just one. To tax both property and credits, both lender and borrower, is plainly incorrect in principle, and inequitable in practice. On the other hand it is equally true that deduction for debts is thoroughly pernicious in its operation. It is the universal testimony that no portion of the tax laws offers more temptations to fraud and perjury than this system of offsets. The creation of fictitious debts is a paying invest- ment. In the states where such deductions are permitted, attempts to obtain immunity from taxation in this way are universal and generally successful. And they are most suc- cessful in the case of property which already bears less than its share of the burdens. The great majority of officials cry out against debt-exemption as an utter abomina- tion. . . . If we sum up all these inherent defects, it will be no exaggeration to say that the general property tax in the United States is a dismal failure. No language can be stronger than that found in the reports of the officials charged with the duty of assessing and collecting the tax. "Whole pages might be filled with such testimony from the various states. 79. THE TAXATION OF SECURITIES. Among the problems of taxation none press more insistently for settlement than that having to do with the taxation of stocks, bonds and other intangible forms of wealth. The inequalities and unfair- ness which result from the attempt to apply the general property tax to this form of wealth are clearly set forth by Professor F. W. Taussig in the following selection: [1899]. The common mode of taxing securities in our states and cities is familiar enough. They are taxable like other property. The taxpayer is confronted with a formidable document, on which he is expected to set forth all his pos- sessions, from his house to his watch, from his stocks and bonds to the pennies in his pocket. On the basis of such a 420 READINGS IN CIVIL GOVERNMENT statement, whose accuracy must usually be averred under oath, he is supposed to be taxed on all his property at the same rate. The system seems to be simplicity itself; and prima facie it commends itself to the average man's sense of what is fit and just. What more right than that all should pay in proportion to their means, the rich more, the poor less? Securities are but one form of each individual's means, and take their place with the rest among taxable possessions. The actual operation of this system is no less familiar. In practice, the statement contemplated by law is rarely made. The levy of taxes takes place by some sort of estimate on the part of the tax assessors; and the very existence of tax- able property, outside of the real estate which all can see, is often a matter of guesswork. So far from being reached by taxation in the manner expected, securities are commonly not reached at all. The same story, with variations in detail but with the gist identical, comes from all quarters. The country grows apace, and wealth and numbers accumulate at a rate unexampled in the world's history. Corporate enterprises extend over a larger field, and the securities issued by them swell in volume, until the enterprises concerned sometimes burst with the tension. But the tax returns, if any one believed them, would indicate that personal property is barely holding its own nay, is commonly decreasing and that a veritable blight has fallen on this form of wealth. So completely are securities ignored in the taxing operations of many communities that they virtually drop out of sight; and the affairs of citizens and officials alike are arranged on the basis of virtually exempting them. Elsewhere spasmodic efforts are made at enforcement, vigor, conformity to the letter of the law, with relapse, before long, to the old condi- tions, and even at the best, with no results satisfactory either to the tax-gatherer or to the public-spirited observer. It may be fairly urged that the American public, when it accepts the facts of the situation and treats securities as exempt in fact though taxable in law, does better than under spasmodic and unsuccessful attempts at enforcement. But either result PROBLEMS OF TAXATION 421 means that contempt for law is bred, and that taxation accords with no defensible principle of justice. I will now lay down a proposition as to what I conceive to be the first step towards a reform in this demoralizing situation. That first step, in my judgment, is the exemption of securities from the ordinary form of direct taxation. It would, doubtless, be more politic, and might be more accurate, to phrase the proposal in the form of a demand, not for exemption from ordinary taxation, but for substitution of other taxes for those now levied. But we may as well take the bull by the horns and state frankly that the change must present itself first as an exemption, to be followed by further changes that will indeed redress the balance, but will still leave a situation in which other forms of property are heavily taxed, while securities as such are prima facie exempt. Such a demand must expect to meet a great hue and cry in some quarters and a natural repugnance in others. It will be proclaimed by demagogues, as well as by honest friends of social reform, to be a surrender to the tax-dodgers, a yielding to the plutocracy, a shifting of the burden of taxa- tion from those who can bear it easily to those who already have too much to carry. Even sober citizens, impressed with the growth of corporate wealth and the paper evidences of its ownership, may naturally hesitate to approve legis- lation that seems to put aside at least one mode of securing for the public a due share of the gains from great corporate enterprises. Let us now give our critical attention to the fundamental proposal which I have laid down, and to an explanation of the grounds on which it rests. We may begin by recalling some things fundamental in the working of taxation things obvious and familiar enough, but, like many that are obvious and familiar, often forgotten when their corollaries are under discussion. The mark of taxation proper is the absence of strict quid pro quo: it is the requirement of payment irrespective of 422 HEADINGS IN CIVIL GOVERNMENT anything got in return. In the books you will find much discussion, not always of an enlightening sort, as to whether taxes should be regarded as a payment for services rendered by the state; while, in conversation with the average intelli- gent citizen, you will often find it laid down as a matter of course that taxes are such a payment, rendered in return for the "protection" afforded by the state and not justifiable unless such protection be given. For the discussion of most phases of taxation, it suffices to point out there can be no measure of the services or protection rendered, and that we must perforce, adjust the payments on some other basis. If we could manage our taxes as we manage the allied, yet radically different, charges for postal service or water supply, a multitude of problems would be much simplified. If you refuse to pay your water rate, the city shuts off the water and (if I may use the phrase) washes its hands of you. If you do not put on your postage stamp, your letter does not go. But if you refuse to pay your taxes, the f remen still rush to save your house, the police safeguard your property, the sewers empty your drains, the schools instruct your children. These services continue to be rendered to you, whether you pay or no, not for your special benefit, but because for one reason or another they are deemed to pro- mote the welfare of all. . . . Evidently, the disposition to evade increases in ratio with the gain to be made. You have all heard the story of the lamented Col. Jim Fisk, to whom it was remarked that his lately deceased father had been ready to tell a lie for nine-pence. "No," said the ingenuous son; "but" (reflec- tively) "the old man would tell eight for a dollar." I will illustrate the obvious application to our subject by recalling experiences in other parts of the field of taxation. Income taxes, resting on a declaration by the taxpayer, have very different aspects, according to the rate at which they are imposed. A tax of two per cent, on incomes might be col- lected with reasonable approach to success ; but one of twenty per cent, would unfailingly yield a plentiful crop of lies. The PEOBLEMS OF TAXATION 423 income tax lately adopted in Prussia in many respects the most perfectly elaborated tax of the kind in any great state provides in general for a rate of something like three per cent., which may fairly be said to be not so high as to preclude successful administration. It is true that, with the local supplements that may be attached to it and with some other closely connected taxes, the effective rate in Prussia may rise much higher to six or eight per cent., or even more; and it is still an open question whether, in its total effect, this measure has not overshot the line of safety. In any case, in Prussia, as in other countries whose tax systems are cautiously and deliberately planned, an endeavor at least is made to avoid undue strain on the taxpayer. For this purpose an obvious device is to make the strain not too strong at any one point; to have divers moderate taxes at different points, rather than one heavy tax at a single point ; and to avoid, above all, weighty taxes whose amount rests, in the first instance, on a declaration by the taxpayer himself. Let us now turn from these general considerations to the situation in our American states and cities. I will refer, first, to the state of Massachusetts, because there the rates, as American rates go, are not excessive; the administration is generally honest ; the appearances at least of conformity to the law are maintained. The average rate of taxation in the state is, roughly, $15 for each $1,000 of property, or one and a half per cent, on the capital value. In the city of Boston the rate is usually $12 or $13 for each $1,000; in other cities it is as high as the average for the state, if not higher. The rate of return on sound securities is not over five per cent., and on well-known securities of unquestioned solidity it is less than four per cent. The state itself sells, at a good premium, bonds yielding but three and a half per cent. It is an easy calculation that the rate of tax on such securities, measured with reference to income, is not less than twenty-five per cent., is commonly as high as thirty per cent., and rises not infrequently to fifty per cent. No sane person, unless bent on an overturn of the entire social order, would 424 READINGS IN CIVIL GOVERNMENT seriously propose a formal income tax at such rates. Yet, by force of tradition, or from whatever cause, the law in Massachusetts calls on the taxpayer to step forth, enumerate in detail his possessions of this sort and be mulcted on a quarter or a third of his income for them. It is hardly necessary to say that, in fact, nothing of the sort is accomplished. While the more flagrant abuses which appear elsewhere are not met in the staid old commonwealth, this part of the tax system is no more satisfactory there than elsewhere. There is evasion; there is utilization of divers available loopholes of escapes; there is more or less conscious laxness by assessors; there is downright perjury when the screws are put on; and there is notorious failure to reach a tithe of the movable property which is in law subject to taxation. The late Judge John Lowell, who was chairman of a commission of inquiry on which I had the honor of sitting with him, summed up his impressions, at the close of some lively hearings, by remarking that ' ' taxation in Massachusetts was a system of confiscation tempered by favoritism/' In other states the situation is complicated by the effects of other anomalies in the operation of the tax laws, and, as I have just intimated, is sometimes fairly farcical. Intelli- gent foreigners, desirous of informing themselves as to the working of the fiscal aspects of our democracy, are amazed at the rates of tax which are mentioned to them. "An annual tax of $20 or $30, or even $40, for each $1,000 of capital? Surely not; you must mean $20 or $40 for each $1,000 of income; for such figures per $1,000 of property or capital mean fifty per cent, or more on the presumable income." The American finds himself suspected of the national trick of hoaxing when he repeats that such things really are. He explains, to be sure, that these seemingly unendurable taxes are so only in appearance. On real property, to which mainly they apply, the tax valuation is commonly but one- half or two-thirds of its salable value ; and a tax rate of $20 on the assessed value usually is, in substance, one of perhaps $10, $12 or $14 on the actual value rates which still seem PEOBLEMS OF TAXATION 425 wofully heavy to the European, but which at least are not incredible. As for the causes of these fictitious valuations and rates, our foreigner would need a long string of explanations. The relations of our states to the cities and other local bodies ; the practice of apportioning state taxes among these bodies according to the tax valuations of their property ; the tempta- tion for each city or town to escape with a small share of the state tax by making its valuations low; then, too, the natural tendency of valuations to sag, by imperceptible stages, as the elected assessors refrain from pressing with judicial inflexibility first on this citizen and then on that these factors would need to be descanted on, and another in the story of our fiscal difficulties would need to be opened. We cannot stop to digress so far. Suffice it to bear in mind that the rates at which the authorities demand taxes from many American taxpayers, perhaps from the majority, are, on their face, such as I have mentioned $20, $30, or even more, on each $1,000 of his possessions. Observe, now, how such a system bears, almost inevitably, on securities. As to land and buildings, they are brought within limits of comparative moderation by a more or less systematic process of undervaluation. The value of a parcel of realty, always a matter of some uncertainty and never subject to daily record, affords every opportunity for flexible treatment. So, too, the value of a merchant's stock-in-trade, of a manufacturer's machinery, of a farmer's cattle and implements these are largely matters of estimate and guess, and it is easy to make estimates universally moderate. But on the face of a security specific sums of money are always set forth ; and its selling value is commonly a matter of daily and familiar record "on 'change." If enumerated and valued for taxation at all, it cannot well be dealt with other- wise than by assessment at its actual worth. In the City of New York the tax rate is usually about $20 per $1,000 of value, land and buildings being commonly assessed at two- thirds or at one-half of their probable market price. Hun- dreds of millions, very likely thousands of millions, of 426 HEADINGS IN CIVIL GOVERNMENT securities are held by persons in that city, who, if they con- formed to the requirements of law and handed in lists of their taxable possessions, would be called on to turn over to the tax-gatherer about one-half of the income derived from these securities. In the large cities of the state of Ohio the nominal tax rate is even higher $25 per $1,000, and even more. In Ohio an extraordinary endeavor to enforce this impossible tax (for impossible it may be fairly called) has been made through a system of tax inquisitors, persons authorized to ferret out the possessions of citizens subject to taxation, and awarded a share in the plunder so secured. One knows not what feeling of revulsion is strongest at this spectacle; humiliation that a great free commonwealth should resort to the worst devices of despotism, indignation that the state should incite directly to blackmail and corruption, or amaze- ment that a cure for the evil should be really expected from a remedy so ingeniously designed to aggravate it. ... I turn to another aspect of our subject. Some of you will say: "True, these are deplorable facts; no doubt the common practice makes the system impossible of execution ; but is not the principle sound? May not better administration, and reform throughout, make the traditional methods tenable? Must we give up entirely the reasonable taxation of the well- to-do and the privileged because they now evade unreasonable taxes? These questions call for attentive consideration; ami I propose now to deal with them, pointing out the reasons why the existing system, even when reformed and white- washed, is not tenable, and why something fundamentally different should be devised to take its place. Securities have been spoken of hitherto as if universally subject to taxation. But this is not the case. In many states corporations are taxed, or at least, are meant to be taxed, on their entire property, and some or all of the securities issued by them are then dismissed from the tax- gatherer's ken. Thus, in the state of Massachusetts, corpora- tions organized under its laws are taxed (to make a summary statement) on the total value of their property as indicated PROBLEMS OF TAXATION 427 by the market value of their outstanding shares of stock; thereafter the shareholders who own such stock are no longer called on to contribute. In Connecticut, on a method similar in principle, railways are taxed on the total value of their outstanding capitalization stock and bonds together and the individual holders of these securities are no longer con- sidered. Some such method is coming into increasing use in the several states, where taxes on corporations are being levied more and more ; and the natural corollary the exemp- tion of the shareholders as such is slowly following. The advantages of this mode of taxing corporate property are obvious so obvious that there is quite as much danger of its abuse as of failure to use it. As to most corporations, the facts needful for a rigid assessment of taxes are easily procurable. The capital stock and the bonds outstanding, the gross income and the net income are often matters of public knowledge; and, where not so, can be ascertained by the tax-gatherer with comparative ease. One serious obstacle in the way of the ordinary taxation of the property or income of individuals is avoided. Since it is not material by whom or in what proportions the shares or securities of the cor- poration are held, there is no need of inquiry into what are regarded by individuals as their private affairs regarded as private by Americans more jealously than by any other people. We need not stop to consider what precise method of taxing the corporations is the best whether on the basis of capitalization of the total market value of securities, of gross earnings, of net earnings, or what not. No doubt different methods would be expedient for different classes of corpora- tions; but these are somewhat technical questions, which need not engage our attention. It may be noted, in passing, that a method which is susceptible of simple administration may be preferable to one more perfect in principle but less easy of management; and thus for example, taxation on the basis of gross earnings or of market value of securities may be better than taxation on the more equitable but more elusive basis of net earnings. Whatever method be used, the evidence of tax- 428 READINGS IN CIVIL GOVERNMENT able possessions is clearly more overt and more easily con- trolled than could possibly be the case as regards the individ- ual owners of the corporate securities. 80. THE CORPORATION TAX. If the general property tax is unsatisfactory, and especially if all that form of property represented by "securities" is not properly taxable as property, to what source is the State to turn for its rev- enue? One of the most prominent expedients, the one that has been most widely discussed and frequently employed, is to tax corpora- tions. But this tax, while recognized as sound in principle, is also one of the most difficult taxes to administer effectively and equitably. Many methods of levying the tax have been tried with varying suc- cess. Professor Seligman thus describes and criticises these several forms of the corporation tax r 1 [1890]. First, the general property tax, or the taxation of the corporate realty plus its visible and invisible personalty at its actual value. It will not be necessary to show the inadequacy of this method. All the actual reforms are away from this primitive plan. We have seen in a previous essay that the standard of taxation is ability to pay, and that this ability is no longer proportional to the general mass of property. The general property tax is to-day antiquated. When it is levied by the local assessors, it becomes especially unjust. Even when assessed by a separate st?te board it is inexact, and exhibits all the defects of the general property tax on individuals. We may conclude, with the railroad tax commission of 1879, that as a system it is open to almost every conceivable objection. The cost of the property , as a basis for taxation, is even less defensible than the value of the property. For no one would assert that the original cost of corporate property bears any necessary relation to the present value, much less to its present earning capacity. This method is so obviously un- just as to deserve no further mention. The capital stock at its market value. This plan is open i See above page 411, note. PEOBLEMS OF TAXATION 429 to several vital objections. The idea is that the market value of the stock will be practically equivalent to the value of the property, or, as it is put by some of our state courts, that the entire property of a corporation is identical with its stock. But as I have already observed, heavily bonded corporations would in this way entirely escape taxation. In such cases and they are the great majority the capital stock alone would not represent the value of the property. But secondly, even in the case of corporations without any bonded debt, the tax is unjust, because it does not necessarily bear any relation to the earning capacity. If a company without bonded debt pays dividends, then indeed the value of the stock is a fair index to earning capacity. Its value would represent the capitalized earnings. But if there are no dividends, the value of the capital stock is wholly uncertain and largely speculative, depending on the manipulations of the stock exchange. It frequently happens that non- dividend-paying stock fluctuates in value from thirty to fifty per cent, within one year. Clearly a method of taxation which in such large classes of cases bears absolutely no pro- portion to the earning capacity or productiveness of the property cannot be successfully defended. We can again agree with the railroad tax commission in their conclusion that the tax on the value of the capital stock is "clumsy and devoid of scientific merit," that it "would admit of evasions in a most obvious way" and that "it is impossible of any general application." The capital stock at its par value. This method is open to all the objections of the preceding and to many more in addi- tion. Moreover, it is peculiarly liable to evasion. Thus in New York it is a common practice for corporations to evade the organization tax of one-eighth of one per cent, on the amount of the capital stock, by issuing a nominally small capital, but selling it to the stockholders at a premium of several hundred per cent. The market value of the stock is at once many times the par value. The sole recommendation of the tax is the facility of ascertainment. But this does not 430 READINGS IN CIVIL GOVERNMENT compensate for its obvious defects. The par value of stock is certainly no gauge either of the real worth of the property or of its earning capacity. This is perhaps the least defen- sible of all the methods, and merits no serious consideration. The capital stock plus the bonded debt at tJte market value, or more logically still, the capital stock plus the total debt. The justification for adding to the value of the stock the value of all that the company owes, i. e., the funded and the unfunded debt, is the simple fact that the existence of this indebtedness makes the stock worth just so much less. The sum of the two elements is a far better index to the value of the property than the capital stock alone ; for it prevents the exemption of heavily bonded companies. This method is much preferable to any that has yet been discussed. And still it is open to some objections. Owing to the complica- tions of our interstate polity, the proceeds of the tax, in all cases where the stock and bonds of a corporation are owned outside of the commonwealth, will accrue not to the state of the owner's residence, but to the state where the corporate property is situated. Secondly, when the tax is on bonds as well as on stock it will be inadequate, because applicable only to the bonds owned by residents of the state. Thirdly and principally, in all those cases where the corporation pays no dividends and its stock nevertheless possesses a speculative value, the tax will not necessarily bear any relation to the earning capacity or productiveness of the company, for the reasons adduced above. In short, while this method is better than the taxation of capital stock, it does not avoid all the objections that have been urged against the latter. There remain thus only the taxes on earnings, business, dividends and profits. The gross earnings. This tax was the one recommended by the railroad tax commission. It possesses many undeni- able advantages. The tax is certain, easily ascertained, and not susceptible of evasion. But it has one fatal defect. It is not proportional to the real earning capacity. It takes no account of the cost, nor does it pay any regard to the PKOBLEMS OF TAXATION 431 expenses, which may be necessary and just. For example, when the cost of building a railroad is great, its gross earn- ings must be correspondingly large in order to enable its owners to realize any fair return on the investment. A tax on gross earnings does not recognize this distinction. It dis- criminates unfairly between companies, and makes a line built at great expense and with great risk pay a penalty for the enterprise of its constructors. Again, a gross earning tax takes no account of expenses. Of two corporations which have equally large gross receipts, one may be in a naturally disadvantageous position which increases unduly the cost of operation or management. Clearly its ability to pay is not so great as that of the rival company in possession of natural advantages. In short, the gross receipts tax is like the old tithe on land, the most primitive and the most unjust of all land taxes. For two pieces of land may yield the same product and yet, owing to difference in the expenses of culti- vation, may bring in very different profits to the owner. The very first development in all early tax systems is to replace the tithe by a tax on the value or the profits of the prop- erty. . . . The dividends or the capital stock according to dividends. The dividends tax, it may be said, is good so far as it goes. But it does not go far enough. It is indeed true that objections have sometimes been raised which are of little weight. Thus it has been contended that this tax fails to reach the profits which are not divided but simply put into a reserve fund. Some commonwealths have even sought to obviate this supposed difficulty by providing that the tax should apply to the dividends, whether declared or merely earned and not divided. But this objection is of no impor- tance. For even if the undivided earnings are not taxed, they go into the reserve or surplus fund. As this increases the corporate capital, it must in the long run lead to increased earnings on the larger capital. And as the surplus cannot be increased indefinitely, it will ultimately find its way to the shareholders as dividends, and thus become liable to the tax. 432 READINGS IN CIVIL GOVERNMENT Another objection which might be urged is that a corpora- tion may devote a portion of its earnings to new construction or to new equipment. This expense may be defrayed out of profits, instead of from the capital or construction fund. The dividends in such a case, it might be said, do not represent the actual earning capacity of the enterprise. But while this is true temporarily, the improvements made by the corpora- tion necessarily enhance the value of the property and lead to ultimately increased dividends. So that in the long run a tax on dividends would still reach the corporation. The real objection to the dividends tax is of quite a differ- ent character. The taxation of dividends is utterly inade- quate when applied to those corporations which have bonded indebtedness. One corporation may have only a capital stock with earnings or dividends of five per cent. Another cor- poration, with the same earnings, may have collected an identical amount of money, of which one-half, however, is represented by five per cent, bonds. A tax on dividends, while normally equal, would then be actually most unequal. The one corporation would pay just twice as much as the other. This objection has been recognized, but only once, in Ameri- can legislation. The United States internal revenue law of 1864 provided for a five per cent, (raised from three per cent, in 1862) tax, which, in the case of railroads, canals, turnpike, navigation and slackwater companies, was imposed on all dividends, as well as on all coupons or interest on evidences of indebtedness and on all profits carried to the amount of any fund. While in the case of those companies which were not presumed to have any bonded debt, like banks, trust companies, savings institutions and insurance com- panies, the tax was imposed only on dividends and surplus. The federal law, indeed, violated strict consistency in imposing a gross earnings tax also on transportation and on certain insurance companies. But the correct implication in the law was the inadequacy of a tax on dividends alone. In fact, the objections to the dividends tax are closely analogous to those that we found in the capital stock tax as over against PROBLEMS OF TAXATION 433 the tax on stock plus debt. It reaches only a part of the corporate earning capacity. We thus come finally to the tax on net earnings, or rather on net receipts, profits or income. Net receipts form the most logical basis for corporate taxation. The tax is not un- equal in its operation like the gross earnings tax. It holds out no inducement to check improvements, like the general property tax. It is just ; it is simple ; it is perfectly propor- tional to productive capacity. In short, it satisfies all the requirements of a scientific system. . . . If it should be desired to obtain a more exact definition of net receipts or income in the case of railroad companies, the following would be an economically sound method of pro- ceeding : Gross receipts consist of all earnings from transpor- tation of freight and passengers, receipts from bonds and stocks owned, rents of property and all miscellaneous receipts from ancillary business enterprises or otherwise. From these aggregate gross receipts we should deduct what are classified by the Interstate Commerce Commission as operat- ing expenses, that is, expenses for conducting transportation, for maintenance . of roadway, structures and equipment, and general expenses of management. But no deduction should be made for fixed charges, i. e., for taxes or for interest on the debt, nor should any deduction be allowed for the amount used in new construction, betterments, investments, new equipment or any of the expenditures that find their way into profit and loss account. The method here suggested would lead to the abolition of one of the greatest abuses of American railway management that of putting all possible expenses into the construction account. Our railways, for example, frequently fail to charge the maintenance and repair of their rolling stock to current expenses. When die equipment has become unserviceable, new stock is bought and charged to the construction or the profit and loss account. But in the meantime the nominal earnings of the railway will seem to have been large, and the managers will have reaped whatever temporary benefit they may have desired. The 28 434 READINGS IN CIVIL GOVERNMENT taxation of net profit in the sense that I have indicated would tend to check this practice, since deductions would be allowed for maintenance, but not new equipment. A tax on net receipts would possess not only a financial, but also a wider economic advantage. 81. THE INCOME TAX AMENDMENT TO THE FEDERAL CONSTI- TUTION. The question of levying a federal income tax was not abandoned when the law of 1894 was declared void. The recent movement toward tariff reform has witnessed an insistent demand for the re- enactment of an income tax law. When the tariff act of 1909 was under consideration an income tax was proposed and was abandoned only because it was found impossible to so frame the provision that it would not meet the fate of that of 1894. To avoid this difficulty and open the way for the future enactment of such a law, Congress thereupon adopted the following joint resolution which, having been ratified by three- fourths of the states, became a part of the Constitu- tion February 3, 1913; Resolved by the Senate and House of Representatives of tlic United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which, when ratified by the legislatures of three-fourths of the several States, shall be valid to all intents and purposes as a part of the Constitution : "Article XVI. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, with- out apportionment among the several States, and without regard to any census or enumeration. " ADDITIONAL READINGS 1 Direct and Indirect Taxation Compared, Ely, R. C., Taxa- tion in American States and Cities, 79-93. 2 Taxation of Incomes, Ibid., 287-311. 3 The Inequalities of the Direct Federal Tax, Bullock, C. J. Political Science Quarterly, XV, 470-81. CHAPTER XIX GOVEENMENT FINANCE 82. CONGRESSIONAL FINANCE. Since 1886, when the expenditures of the Federal Government be- gan to increase by leaps and bounds, Congress has often been charged with extravagance. A large part of the time of each Con- gress is, in fact, taken up with the business of discussing and ad- justing the several appropriation bills which provide for the ex- penditures of the enormous sums required to carry on the work of the various departments. Mr. James Bryce makes the following very just criticism of the manner in which this work is performed : - 1 The Secretary of the Treasury sends annually to Congress a report containing a statement of the national income and expenditures and of the condition of the public debt, together with remarks on the system of taxation and suggestions for its improvement. He also sends what is called his Annual Letter, enclosing the estimates, framed by the various depart- ments, of the sums needed for the public services of the United States during the coming year. So far the Secretary is like a European finance minister, except that he communi- cates with the chamber on paper instead of making his state- ment and proposals orally. But here the resemblance stops. Everything that remains in the way of financial legislation is done solely by Congress and its committees, the executive having no further hand in the matter. The business of raising money belongs to one committee only, the standing committee of Ways and Means, consisting of eleven members. Its chairman is always a leading man in the party which commands a majority in the House. This i See above page 261. note. 435 436 READINGS IN CIVIL GOVERNMENT committee prepares and reports to the House the bills needed for imposing or continuing the various customs duties, ex- cise duties, etc. The report of the Secretary has been re- ferred by the House to this committee, but the latter does not necessarily base its bills upon or in any way regard that report. Neither does it in preparing them start from an estimate of the sums needed to support the public service. It does not, because it cannot; for it does not know what grants for the public service will be proposed by spending commit- tees, since the estimates submitted in the Secretary's letter furnish no trustworthy basis for a guess. It does not, for the further reason that the primary object of customs duties has for many years past been not the raising of revenue, but the protection of American industries by subjecting foreign products to a very high tariff. This tariff, which was fur- ther raised in 1890, has brought in an income far exceeding the current needs of the government. Two-thirds of the war debt having been paid off, the fixed charges have shrunk to one-third of what they were when the war ended, yet this tariff remained till 1890 with few modifications, surpluses constantly accumulating in the national treasury, until in that year a, Pension Act was passed which increased expendi- tures so largely as almost to absorb even the growing surplus. The Committee of Ways and Means has therefore had no mo- tive for adapting taxation to expenditure. The former will be always in excess so long as the protective tariff stands, and the protective tariff stands for commercial or political reasons unconnected with national finance. When the revenue bills come to be debated in committee of the whole House similar causes prevent them from being scrutinized from the purely financial point of view. Debate turns on those items of the tariff which involve gain or loss to influential groups. Little inquiry is made as to the amount needed and the adaptation of the bills to produce that amount and no more. It is the same with ways and means bills in the Senate. Communications need not pass between the committees of either House and the Treasury. GOVERNMENT FINANCE 437 The person most responsible, the person who most nearly cor- responds to an English Chancellor of the Exchequer, or a French Minister of Finance, is the chairman of the House Committee of Ways and Means. But he stands in no official relation to the Treasury, and is not required to exchange a word or a letter with its staff. Neither, of course, can he count on a majority in the House. Though he is a leading man he is not a leader, i. e., he has no claim on the votes of his own party, many of whom may disapprove of and cause the defeat of his proposals. This befell in 1886, when the chairman of this committee, an able man, and perhaps, after the Speaker, the most considerable person in the Demo- cratic majority, was beaten in his attempted reform of the tariff. The business of spending money used to belong to the Committee on Appropriations, but in 1883 a new committee, that on Rivers and Harbours, received a large field of ex- penditure; and in 1886 sundry other supply bills were re- ferred to sundry standing committees. The Committee on Appropriations starts from, but does not adopt, the estimates sent in by the Secretary of the Treasury, for the appropria- tion bills it prepares usually make large and often reckless reductions in these estimates. The Rivers and Harbours Committee proposes grants of money for what are called "in- ternal improvements/ ' nominally in aid of navigation, but practically in order to turn a stream of public money into the State or States where each "improvement" is to be executed. More money is wasted in this way than what the parsimony of the Appropriations Committee can save. Each of the other standing committees, including the Committee on Pensions, a source of infinite waste, proposes grants of money, not knowing nor heeding what is being proposed by other com- mittees, and guided by the executive no further than the members choose. All the expenditures recommended must be met by appropriation bills, but into their propriety the Appropriation Committee cannot inquire. Every revenue bill must, of course, come before the House ; 438 READINGS IN CIVIL GOVERNMENT and the House, whatever else it may neglect, never neglects the discussion of taxation and money grants. These are dis- cussed as fully as the pressure of work permits, and are often added to by the insertion of fresh items, which members in- terested in getting money voted for a particular purpose or locality suggest. These bills then go to the Senate, which forthwith refers them to its committees. The Senate com- mittee on finance deals with the revenue-raising bills; the Committee on Appropriations with supply bills. Both sets then come before the whole Senate. Although it cannot ini- tiate revenue-raising bills, the Senate long ago made good its claim to amend appropriation bills, and does so freely, adding items and often raising the total of the grants. When the bills go back to the House, the House usually rejects the amendments; the Senate adheres to them, and a Conference Committee is appointed, consisting of three senators and three members of the House, by which a compromise is settled, hastily and in secret, and accepted, generally in the last days of the session, by a hard-pressed but reluctant House. Even as enlarged by this committee, the supply voted is often found inadequate, so a deficiency bill is introduced in the following session, including a second series of grants to the departments. The European reader will ask how all this is or can be done by Congress without frequent communication from or to the executive government. There are such communications, for the ministers, anxious to secure appropriations adequate for their respective departments, talk to the chairmen and ap- pear before the committee to give evidence as to departmental needs. But Congress does not look to them for guidance as in the early days it looked to Hamilton and Gallatin. If the House cuts down their estimates they turn to the Senate and beg it to restore the omitted items; if the Senate fail them, the only resource left is a deficiency bill in the next session. If one department is so starved as to be unable to do its work, while another obtains lavish grants which invite jobbery or waste, it is the committees, not the executive, whom the peo- GOVERNMENT FINANCE 439 pie ought to blame. If, by a system of log-rolling, vast sums are wasted upon useless public works, no minister has any opportunity to interfere, any right to protest. A minister cannot, as in England, bring Congress to reason by a threat of resignation, for it would make no difference to Congress if the whole cabinet were to resign, unless of course the con- gressmen most conspicuously concerned should be so palpably in fault that the people could be roused to vigorous disap- proval. What I have stated may be summarized as follows: There is practically no connection between the policy of revenue raising and the policy of revenue spending, for these are left to different committees whose views may be opposed, and the majority in the House has no recognized leaders to re- mark the discrepancies or make one or other view prevail. In the forty-ninth Congress a strong free-trader was chairman of the tax-proposing Committee on Ways and Means, while a strong protectionist was chairman of the spending Committee on Appropriations. There is no relation between the amount proposed to be spent in any one year, and the amount proposed to be raised. But for the fact that the high tariff has, until quite recently, produced a large annual surplus, financial breakdowns must have ensued. The knowledge and experience of the permanent officials either as regards the productivity of taxes, and the incidental benefits or losses attending their collection, or as regards the nature of various kinds of expenditure and their comparative utility, can be turned to account only by interrogating these officials before the committees. Their views are not stated in the House by a parliamentary chief, nor tested in debate by arguments addressed to him which he must there and then answer. Little check exists on the tendency of members to deplete the public treasury by securing grants for their friends or constituents, or by putting through financial jobs for which they are to receive some private consideration. If either 440 READINGS IN CIVIL GOVERNMENT the majority of the Committee on Appropriations or the House itself suspects a job, the grant proposed may be re- jected. But it is the duty of no one in particular to scent out a job, and to defeat it by public exposure. The nation becomes so puzzled by a financial policy vary- ing from year to year, and controlled by no responsible lead- ers, as to feel diminished interest in congressional discussions and diminished confidence in Congress. The result on the national finance is unfortunate. A thoughtful American publicist remarks, * ' So long as the debit side of the national account is managed by one set of men, and the credit side by another set, both sets working separately and in secret without public responsibility, and without in- tervention on the part of the executive official who is nom- inally 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 im- mense budget is rushed through without discussion in a week or ten days just so long the finances will go from bad to worse, no matter by what name you call the party in power. No other nation on earth attempts such a thing, or could at- tempt it without soon coming to grief, our salvation thus far consisting in an enormous income, with practically no drain for military expenditure. " It may be replied to this criticism that the enormous in- come, added to the fact that the tariff is imposed for pro- tection rather than for revenue, is not only the salvation of the United States Government under the present system, but also the cause of that system. Were the tariff framed with a view to revenue only, no higher taxes would be imposed than the public service required, and a better method of bal- ancing the public accounts would follow. This is true. The present state of things is evidently exceptional. America is the only country in the world whose difficulty is not to raise GOVERNMENT FINANCE 441 money, but to spend it. But it is equally true that Congress is contracting lax habits, and ought to change them. 83. THE UNDERWOOD TARIFF, 1913. The great revenue measure of the national government is the tariff law. This law is not enacted annually, as are the appropriation measures, but once adopted is allowed to stand until industrial or political changes necessitate a reform. Such an occasion arose in 1913 and, like a similar occasion in 1909, was considered of sufficient importance to warrant the assembling of a special session of Con- gress. In anticipation of this event the Committee of Ways and Means of the House and the Finance Committee of the Senate had been engaged almost constantly for several months in the collection of data from which the new tariff could be formulated. Public hearings were given by these committees which were attended by manufacturers and importers from all parts of the country and which resulted in the collection of an enormous mass of testimony and information regarding the effect of the several rates of duty upon various business interests. Upon the basis of the evidence thus collected, Mr. Underwood, Chairman of the Ways and Means Com- mittee, framed a bill which he introduced immediately after the assembling of the special session called by President Wilson on April 7. On May 9 the bill passed the House and went to the Senate, where, after four months' consideration and the addition of 676 amendments, it was passed on September 9. The measure was then sent to a Conference Committee which, having reconciled the differ- ences between the two houses, reported on September 29. The bill then finally passed the House on October 1, the Senate on October 2, and was signed by the President on October 3. The significant features of the law thus enacted are, the reduction of the duties levied from an average of 40.12 per centum in the Payne- Aldrich Tariff, to 26 per centum in the Underwood Tariff, this being a lower average duty than any since the tariff of 1857 ; a large increase in the free list including wool, sugar (after the expiration of three years), wheat, flour, meat, lumber, boots and shoes; and the inclusion of a tax on all incomes exceeding $3,000. The following extracts will serve to illustrate the manner in which the duties are arranged. Be it enacted ~by the Senate and House of Representatives of the United States of America in Congress assembled, That 442 READINGS IN CIVIL GOVERNMENT on and after the day following the passage of this Act, except as otherwise specially provided for in this Act, there shall be levied, collected, and paid upon all articles when im- ported from any foreign country into the United States or into any of its possessions (except the Philippine Islands and the island of Guam and Tutuila) the rates of duty which are by the schedules and paragraphs of the dutiable list of this section prescribed, namely: DUTIABLE LIST. Schedule A: Chemicals, Oil and Paints. 1. Acids: Boracic acid, % cents per pound; citric acid, 5 cents per pound; formic acid, iy 2 cents per pound. 12. Bleaching powder, or chloride of lime, Vio cen ^ P er pound. 66. Soaps: Perfumed toilet soaps, 30 per centum ad va- lorem; medicinal soaps, 20 per centum ad valorem; castile soap, and unperfumed toilet soap, 10 per centum ad valorem. 67. Soda: Benzoate of, 5 cents per pound. 68. Sponges: Trimmed or untrimmed but not advanced in value by chemical processes, 10 per centum ad valorem. Schedule B: Earths, Earthenware and Glassware. 71. Fire brick, magnesite brick, chrome brick, and brick not specially provided for in this section, not glazed, enam- eled, painted, vitrified, ornamented, or decorated in any manner, 10 per centum ad valorem. 73. Lime, 5 per centum ad valorem. Schedule C: Metals and Manufactures of. 119. Automobiles, valued at $2,000 or more, and automo- bile bodies, 45 per centum ad valorem. 120. Bicycles, motor cycles, and finished parts thereof, not including tires, 25 per centum ad valorem. 132. Muskets, air-rifles, muzzle-loading shotguns and rifles, and parts thereof, 15 per centum ad valorem. GOVERNMENT FINANCE 443 Schedule D: Wood and Manufactures of. 170. Paving posts, railroad ties, and telephone, trolley, electric-light and telegraph poles of cedar or other woods, 10 per centum ad valorem. 173. Chair cane or reeds wrought or manufactured from rattans or reeds, 10 per centum ad valorem. 174. Toothpicks of wood or other vegetable substance, 25 per centum ad valorem. Schedule E: Sugar, Molasses and Manufactures of. 177. Sugars, tank bottoms, sirups of cane juice, melada, concentrated melada, concrete and concentrated molasses, testing by the polariscope not above seventy-five degrees, sev- enty-one one hundredths of 1 cent per pound. . . . Pro- vided, That on and after the first day of May, nineteen hun- dred and sixteen, the articles hereinbefore enumerated in this paragraph shall be admitted free of duty. Schedule F: Tobacco and Manufactures of. 181. Wrapper tobacco, and filler tobacco when mixed or packed with more than 15 per centum of wrapper tobacco, and all leaf tobacco the product of two or more countries or de- pendencies when mixed or packed together, if unstemmed, $1.85 per pound ; if stemmed, $2.50 per pound. 185. Cigars, cigarettes, cheroots of all kinds, $4.50 per pound and 25 per centum ad valorem. Schedule G: Agricultural Products and Provisions. 186. Horses and mules, 10 per centum ad valorem. 192. Oats, 6 cents per bushel of thirty-two pounds. 195. Butter and butter substitutes, 2y 2 cents per pound. 196. Cheese and substitutes therefor, 20 per centum ad va- lorem. 215. Vegetables in their natural state, not specially pro- vided for in this section, 15 per centum ad valorem. Schedule H: Spirits, Wines and Other Beverages. 237. Brandy and other spirits manufactured or distilled 444 READINGS IN CIVIL GOVERNMENT from grain or other materials, and not specially provided for in this section, $2.60 per proof gallon. 242. Bay rum or bay water, whether distilled or com- pounded, of first proof, and in proportion for any greater strength than first proof, $1.75 per gallon. Schedule I: Cotton Manufactures. 251. Spool thread of cotton, crochet, darning, and embroid- ery cottons, on spools, reels, or balls, or in skeins, cones, or tubes, or in any other form, 15 per centum ad valorem. 252. Cotton cloth, not bleached, dyed, colored, printed, woven figured, or mercerized containing yarns the average number of which does not exceed number nine, ?V2 per centum ad valorem. 256. Clothing, ready-made, and articles of wearing apparel of every description, composed of cotton or other vegetable fiber, . . . made up or manufactured, wholly or in part, by the tailor, seamstress, or manufacturer, and not other \vise specially provided for in this section, 30 per centum ad va- lorem. Schedule J: Flax, Hemp and Jute, and Manufactures of. 272. Floor mattings, plain, fancy, or figured . . . in- cluding what are commonly known as China, Jr.pan, and India straw matting, 2% cents per square yard. 277. Shirt collars and cuffs, composed in whole or in part ^>f linen, 30 per centum ad valorem. Schedule K: Wool and Manufactures of. 291. Clothing, ready-made, and articles of wearing apparel of every description, including shawls whether knitted or woven, and knitted articles of every description made up or manufactured wholly or in part, and not specially provided for in this section, composed wholly or in chief value of wool, 35 per centum ad valorem. 298. Treble ingrain, three-ply, and all chain Venetian car- pets, 20 per centum ad valorem. GOVERNMENT FINANCE 445 Schedule L: Silks and Silk Goods. 317. Clothing, ready-made, and articles of wearing apparel of every description, including knit goods, made up or manu- factured in whole or in part ... all the foregoing com- posed of silk . . . not specially provided for in this sec- tion, 50 per centum ad valorem. Schedule M: Papers and Books. 322. Printing paper . . . suitable for the printing of books and newspapers, but not for covers or bindings . . . valued above 2% cents per pound, 12 per centum ad va- lorem. 329. Books of all kinds, bound or unbound . . . not specially provided for in this section, 15 per centum ad va- lorem. Schedule N: Sundries. 333. Beads and spangles . . . 35 per centum ad va- lorem. 336. Brooms, made of broom corn, straw, wooden fibre, or twigs, 15 per centum ad valorem. 354. Hats, bonnets, or hoods, for men's, women's, boys', or children 's wear, trimmed or untrimmed . . . composed wholly or in chief value of fur ... 45 per centum ad valorem. FREE LIST. That on and after the day following the passage of this Act, except as otherwise specially provided for in this Act, the articles mentioned in the following paragraphs shall . . . be exempt from duty. 425. Books, maps, music, engravings . . . which shall have been printed more than twenty years at the date of im- portation. 426. Books and pamphlets printed wholly or chiefly in lan- guages other than English; also books and music, in raised print, used exclusively by the blind, and all textbooks used in schools and other educational institutions. 446 HEADINGS IN CIVIL GOVERNMENT 441. Cash registers, linotype and all typesetting machines. 457. Coffee. 545. Meats: Fresh beef, veal, mutton, lamb and pork. 644. Wheat, wheat flour, semolina, and other wheat prod- ucts. 650. Wool of the sheep, hair of the camel, and other like animals. Section II. A. Subdivision 1. That there shall be levied, assessed, col- lected and paid annually upon the entire net income aris- ing or accruing from all sources in the preceding calendar year to every citizen of the United States, whether residing at home or abroad, and to every person residing in the United States, though not a citizen thereof, a tax of 1 per centum per annum upon such income, except as hereinafter provided. Subdivision 2. In addition to the income tax provided un- der this section (herein referred to as the normal income tax) there shall be levied, assessed, and collected upon the net income of every individual an additional income tax (herein referred to as the additional tax) of 1 per centum per annum upon the amount by which the total net income exceeds $20,000, and does not exceed $50,000, and 2 per centum per annum upon the amount by which the total net income exceeds $50,000, and does not exceed $75,000, 3 per centum per annum upon the amount by which the total net income exceeds $75,000, and does not exceed $100,000, 4 per centum per annum upon the amount by which the total net income exceeds $100,000, and does not exceed $250,000, 5 per centum per annum upon the amount by which the total net income exceeds $250,000, and does not exceed $500,000, and 6 per centum per annum upon the amount by which the total net income exceeds $500,000. B. . . . That in computing net income for the purpose of the normal tax there shall be allowed as deductions : First, GOVERNMENT FINANCE 447 the necessary expenses actually paid in carrying on any busi- ness, not including personal, living, or family expenses; sec- ond, all interest paid within the year by a taxable person on indebtedness; third, all national, State, county, school, and municipal taxes paid within the year, not including those assessed against local benefits . . . fifth, debts due to the taxpayer actually ascertained to be worthless and charged off within the year . . . seventh, the amount received as dividends upon the stock or from the net earnings of any corporation, joint stock company, association, or insurance company which is taxable upon its net income as hereinafter provided; eighth, the amount of income, the tax upon which has been paid or withheld for payment at the source of the income, under the provisions of this section. . . . That in computing net income under this section there shall be excluded the interest upon the obligations of a State or any political subdivision thereof, and upon the obli- gations of the United States or its possessions; also the com- pensation of the present President of the United States dur- ing the term for which he has been elected, and of the judges of the supreme and inferior courts of the United States now in office, and the compensation of all officers and employees of a State or any political subdivision thereof except when such compensation is paid by the United States Government. C. That there shall be deducted from the amount of the net income of each of said persons, ascertained as provided herein, the sum of $3,000, plus $1,000, additional if the per- son making the return be a married man with a wife living with him, or plus the sum of $1,000 additional if the per- son making the return be a married woman with a husband living with her; but in no event shall this additional ex- emption of $1,000 be deducted by both a husband and a wife ; Provided, That only one deduction of $4,000 shall be made from the aggregate income of both husband and wife when living together. . . . G. (a) That the normal tax hereinbefore imposed upon individuals likewise shall be levied, assessed, and paid annu- 448 READINGS IN CIVIL GOVERNMENT ally upon the entire net income arising or accruing from all sources during the preceding calendar year to every corpora- tion, joint stock company or association, and every insurance company, organized in the United States no matter how cre- ated or organized, not including partnerships; but if organ- ized, authorized, or existing under the laws of any foreign country, then upon the amount of net income accruing from business transacted and capital invested within the United States during such year. 84. COLLECTION OF THE REVENUE. The following description of the method of collecting the federal revenue is taken from Professor D. R. Dewey's "Financial History of the United States " : The collection of the revenue is divided between two branches of the treasury department one for customs duties, and the other for internal revenue taxes. The internal reve- nue service is organized into a separate bureau under a com- missioner of internal revenue, but the local customs officials report directly to the secretary of the treasury. The country- is divided into 121 customs districts, in each of which there is at least one port of entry, where are stationed the principal officer of the district, the collector of customs, assisted by sub- ordinate grades of officials, appraisers, including in a few of- fices, a naval officer and surveyors, and in all offices inspectors, special agents, etc. If commercial needs demand it, other ports of delivery are designated within the district, and at these subordinate officials are stationed. The largest port of entry is New York City, through which flows two-thirds of the whole foreign commerce of the United States. More than 5,000 persons are employed in the collection of the customs duties; and the annual expense of collecting this class of revenue is about 4 per cent, of the receipts. Inasmuch as foreign commerce has now become insignificant in many of the ports which were important a century ago when the dis- tricting was established, the expense of administration might GOVERNMENT FINANCE 449 be reduced if the customs districts were organized according to existing commercial conditions. In many of the districts the cost of collection exceeds the revenue collected ; at such places subordinate officers might well perform all the duties re- quired; but any attempt to deprive a State of an established administrative district with its attendant political preroga- tives strikes against local opposition, which is instantly re- flected in Congress. The method of entering an importation of foreign goods, including the appraisement and payment of duties, has gone through many variations, but is now briefly as follows: The initial step is the authentication of an invoice of the goods by the American consular officer in the district from which the foreign goods are exported to this country; the certificate must state the market or wholesale price in the country of ex- port; and the consular authentication is made in triplicate, one for the shipper to be used in making entry at the Ameri- can port, one is transmitted to the collector of the port of entry, and the other is filed in the consul's office. The in- voice is more than a formal declaration of value ; it must con- tain a description of the merchandise, with its cost, discounts, charges, etc. Armed with this certificate, upon arrival of the goods, the importer makes an entry; he submits a descrip- tion with the rates of duty which he considers applicable and pays into the custom house the gross amount thus computed; an immediate delivery of the goods is then granted, the gov- ernment retaining one package in every ten as a sample. These packages are sent to the public stores or appraisers' warehouses for examination; if the appraisement does not agree with the valuation made, a re-settlement is ordered, and if the proper valuation has not been declared by the importer, whether through ignorance or fault, severe penalties may be incurred. An excessive valuation by the shipper is never lowered, but an undervaluation is punished under the present law by the imposition of an additional duty of one per cent, upon the appraised value for each one per cent, that the ap- praisers' value exceeds that declared in the entry. Oppor- 29 450 READINGS IN CIVIL GOVERNMENT tunity is given to the importer who does not wish to use his goods at once, to deposit them under bond in a warehouse for not more than three years, and to defer the payment of the duties until withdrawal. The principal difficulty in the administration of the cus- toms for many years lay in the persistent practice of under- valuation. Some of the efforts to check this evil have already been discussed, but the difficulty long remained and has not yet entirely disappeared. The trouble was aggravated by the habit of consigning goods by foreign firms to agents in Amer- ica, so that the buyer and the seller were practically the same, and could agree on any valuation that pleased them. In 1885 Secretary Manning asserted that very extensive frauds were due to this agency system ; a foreign manufacturer would refuse to sell goods to other buyers, and then insist that no manufactured articles similar to those consigned to this coun- try were sold in his market, and hence that thare could be no market value at that place in the sense intended by law. Repeated decisions of the courts adverse to such juggling with the plain intent of the law did not put an end to frauds. Ingenious methods have been devised to evade the customs ; for example, when coverings came in free, articles of small value were enclosed in valuable coverings; sugar was arti- ficially colored so as to imitate standards which entered at lower rates of duty. One method was that of fictitious in- voice; articles were shipped by an agent of the American buyer in Paris to his agent in New York with a fictitious and fraudulent invoice; the buyer often persuading himself that he, as a passive recipient, was free from wrong or illegal be- havior. Even among honest merchants, the administration of the tariff since the Civil War has been puzzling, because of the increasing complexity in the schedules and consequent inequalities in classification and valuation. Where no open fraud was intended, there was great opportunity for entries which would defeat the express purpose of the tariff acts, es- pecially in the confusion created by the varying classification between "worsted" and "woollens," goods which as far as GOVERNMENT FINANCE 451 use was concerned, were becoming more and more identical, in 1886 it was stated that 90 per cent, of the silk importa- tions were as a rule undervalued; and so great were the apparent difficulties of securing an equal and just administra- tion of the law, that the Democratic secretary of the treas- ury, representing a party generally standing for ad valorem rather than specific duties, recommended specific duties on silks. Much litigation grew out of the frequent changes in classification ; and suits were entered much more rapidly than the courts could dispose of them. A special effort was made in 1885 to remedy some of these evils and simplify the administration, and a bill originally drawn by Secretary Manning became the basis of the so- called McKinley administrative act of 1890. The stringency of the provisions to prevent fraud was increased; additional penalties were provided for undervaluation, and the number of general appraisers was increased in order to correct inequali- ties in the appraisement at different ports. The appraisers were organized into boards or courts for the prompt settle- ment of questions of appeal. On a simple question of value, a board of three general appraisers is a tribunal of last re- sort, and this simple device has greatly expedited the cus- toms business. A further appeal to the United States courts lies only in case of alleged illegal or irregular procedure by the government officials in arriving at the valuation. On the equally important question of classification, another board of general appraisers acts as a judicial court, but in cases of this character, there is the right of appeal to the federal courts either by the importer or by the government. The administration of the internal revenue service does not at present involve many special difficulties, for questions of valuation and classification are easy to settle. Great and notorious frauds and scandals did spring up from the opera- tions of the Whiskey Ring, especially in the years 1872-1875, and high government officials were involved, but these were instances of bribery and defiance of law, and the corrupt prac- tices are to be interpreted as one of the symptoms of a de- 452 READINGS IN CIVIL GOVERNMENT based tone of business and political life, rather than a defect in the revenue system. At present the illicit distillation of whiskey is for the most part confined to the mountain dis- tricts of the South, where moonshiners operate on a small scale. The system has now been so long established that at- tempts to evade the tax, by illicit distillation or fraudulent packages, are rare. Under the jurisdiction of the commis- sioner of internal revenue are 63 district collectors, and a force of special agents who watch distilleries and ferret out frauds. 85. MUNICIPAL FINANCE ADMINISTRATION. The following description of the administration of the finances of cities is taken from Professor Fairlie's recent book on Municipal Administration : x The budget arrangements in American cities offer a wide variety, which it is impossible to reduce to any general state- ment. One distinguishing feature of the American arrange- ments is that the budgets are prepared by local officials subject to no administrative control, although there are legis- lative statutes regulating and restricting the total amount of municipal debt that may be incurred, special statutes making certain items of expenditure compulsory in particular cities, and in some cases statutes restricting the amount of the total tax levy. Of the variety of local budget methods, two con- trasting systems may be described : the council system, which was formerly universal, and the board of estimate plan. In the original council system the various spending depart- ments submit to the council estimates of the amount needed or wanted for the following year. These estimates are con- sidered either by a single appropriation committee, or by several committees ; and an appropriation bill is prepared, dis- cussed by the council, and passed subject to the mayor's lim- ited veto power. The final bill will usually vary widely i Reprinted from Fairlie, J. A., Municipal Administration, by per- mission of MacMillan and Company. GOVERNMENT FINANCE 453 from the department estimates, and the responsibility for the accepted budget rests with the appropriation committees or the council as a whole. This system has in many cities tended toward extravagance, since the members of the council have been more interested in securing improvements than in re- ducing taxation ; and it is on this account that there has been introduced in most of the large cities a board of estimate, or similar authority, with more or less power over the prepara- tion of the budget. The powers of this board are most ex- tensive in New York city. The board there has consisted of the mayor, the comptroller, the president of the department of taxes and assessments, the corporation counsel, and the president of the council all but one administrative officials, but officials not connected with any of the large spending de- partments. The mayor, comptroller, and president of the council were each elected by popular vote; the other two of- ficials were appointed by the mayor, so that the latter and his appointees could control the board. In 1902 a new or- ganization goes into effect. The presidents of the five bor- oughs into which New York is divided are admitted to the board; and the various members are given different voting strength. The elected members will control the board; but the borough presidents will be officers directly interested in expenditures on public works. To this board each department submits its estimates with comparative figures for the preceding year. 'Each depart- ment estimate is considered by the board after consultation with the head of the department, and the budget of expendi- tures is drawn up by the board and submitted to the munici- pal assembly. The assembly, under the charter of 1897, has no authority to increase any item in the budget, but may by a three-quarters vote decrease the amounts fixed by the board of assessment. Finally, the mayor may veto any item in an appropriation bill, and this veto can be overruled only by a five-sixths vote of all the members of each house. The total regular appropriations for the year being deter- mined in one way or another the process of determining the 454 HEADINGS IN CIVIL GOVERNMENT tax rate is comparatively simple. To the appropriations are added the amounts prescribed for interest on loans, for sink- ing funds, and for state and county taxes. From the total is deducted the estimates of revenue from property, fran- chises, industrial undertakings, licenses, fees and state grants. The balance is compared with the assessed valuation of taxable property for the city as determined by the assessors, and the rate necessary to yield the desired revenue is calculated. The assessors have two functions to perform: the valua- tion of the property, and the assessment of the tax to each property owner at the determined rate. The valuations of property are commonly supposed to be made each year; but in large cities it is impossible for assessors to visit and inspect even all the real estate every year, and valuations usually stand for several years unless there is some marked improvement. Personalty assessments are made largely by guesswork. The general rule of law is that personalty must be assessed at the domicile of the owner; but some forms of tangible personalty may be assessed at its situs, and the confusion of the law on this point gives rise to double assess- ments. Moreover, owners of personalty are allowed to "swear off" their assessments in bulk in many states. There is, however, very little opportunity for judicial re- view of the individual assessments. The valuations and tax assessments being made, the tax books are handed to the collector or receiver of taxes, who receives the payments from the taxpayers and turns the revenue over to the city treasurer. The amount received varies considerably from the total amount of the assessment. Small rebates are usually allowed for prompt payment, interest is charged on delayed payments, while there is always a number of delinquent taxpayers, whose taxes must be collected by special processes. The financial bookkeeping and auditing of accounts in all important American cities is carried out under the discre- tion of a comptroller, auditor, or controller, who is, in most GOVERNMENT FINANCE 455 cases, an elective officer. In Cleveland, Chicago, and Detroit, however, the official whose functions correspond to those of the comptroller is appointed by the mayor. The duties of the comptroller in most cases include other func- tions than that of auditing accounts. Generally he has some supervision over the entire financial administration, while in cities where the board of estimate system has been adopted he has a large influence over the budget. In New York the comptroller is the head of the finance department, and the chamberlain (treasurer) is simply the chief of a bureau in that department; more generally, however, the treasurer is a co-ordinate official to the comptroller. As auditing authority the comptroller's office examines and approves (or disapproves) all claims against the city; and payments are made by the treasurer only on warrants of the comptroller. This auditing system is in addition to the preliminary examination and approval of bills by the department concerned. In addition to the checking of accounts, the comptroller's bureau often does a large amount of inspection of work and supplies. On the other hand, the comptroller's audit and inspection does not always include the whole field of municipal expenditure. School boards very often have an independent audit, and in some cases police and other boards conduct the audit of their own accounts. The methods of keeping accounts in the different cities show the extreme of variety, and the total lack of anything like a general system. To a certain extent local differences require variations in the methods of municipal bookkeeping, especially for certain special and trust funds. But in America the variations go far beyond those made necessary. This lack of uniformity in accounting is one of the most serious obstacles in the way of a comparative study of municipal finances; while in most cases the reports of municipal comptrollers are in such a confused condition that even one well acquainted with the local conditions finds it difficult, if not impossible, to understand the financial situa- 456 READINGS IN CIVIL GOVERNMENT tion. In the Statistics of Cities prepared by the Depart- ment of Labor, an attempt is made to present the most important items for the cities of over 30,000 population. The figures given are determined after investigations by the agents of the department in the comptroller's books, and are presented in a much more intelligible fashion than in most municipal reports; but with the limited means at their disposal, and the fundamental absence of any general system in keeping accounts, there must remain considerable doubt as to the accuracy of the comparisons. 86. MUNICIPAL, FRANCHISES. One of the most difficult problems with which the cities of the United States are confronted is the proper management of their public utilities. And at the very heart of this problem is the ques- tion as to the policy of the city in regard to granting franchises. Shall they be given away, sold outright, granted for a short term of years, taxed, or exempted? Upon the proper solution of these questions depends to a large degree the happiness and welfare of the people. In the following selection Professor D. F. Wilcox dis- cusses these questions : * It is now well known that the franchises of a great city, under the conditions ordinarily imposed, are of enormous value. A franchise has value only in so far as it partakes of the nature of a monopoly in practical operation. Unless the monopoly element enters in some degree, the franchise is a mere license or permit. The movement for the taxation of franchises as real estate has gained considerable headway since it was put into practical operation in New York a few years ago. A franchise is undoubtedly a right to the use of land and should be classed along with landed property strictly. The taxation of franchises is in no sense a compensation for them. It is simply the taxation of a certain amount of very real property that is in private hands. Nevertheless, in i Reprinted from Wilcox, D. F., The American City, by permission of MacMillan and Company. GOVERNMENT FINANCE 457 bringing this class of property upon the tax rolls, when up to this time it has been as clearly and universally exempt as United States bonds, we take out of its value a sum equal to the amount of taxes annually paid capitalized at the normal rate of interest. For example, supposing that the city of Gasopolis twenty years ago gave to a company the , right to use the streets for the purpose of distributing gas to be sold at a maximum price of $1.00 per 1,000 cubic feet, the franchise to continue for forty years, subject to such regulations and conditions as may have been imposed when the charter was granted. Now suppose that the com- pany invested $100,000 in the construction of its gas-plant and distributing system, and is now able to pay a normal dividend upon $200,000 worth of stock. We should say that the franchise of the company under the existing condi- tions is worth $100,000. If we have been taxing only visible property, we have the gas company assessed for $100,000 only. That has been the condition under which the fran- chise was worth the other $100,000. If now we begin to tax the franchise as real estate, and put the whole $200,000 upon the tax rolls, we have taken away a certain amount from the value of the property. If the tax rate is 2 per cent., for example, the amount of taxes received on account of the franchise will be $2,000, and the franchise itself will be worth $2,000 per year less to its owners. If the normal rate of interest is 5 per cent., then the value of the fran- chise will have been diminished $40,000, which is $2,000 capitalized at 5 per cent. By bringing the franchise under the tax law, the government will thus confiscate 40 per cent, of the value of the franchise. Yet this is confis- cation only in the same sense that any new tax involves confiscation. Nevertheless, in this hypothetical case we should have the gas company assessed at $200,000 when its property, under the new condition involved in the taxation of the franchise at its previous value, has been reduced in value to $160,000. Under the circumstances, therefore, the franchise should be assessed at less than its previous value. 458 HEADINGS IN CIVIL GOVERNMENT If assessed at $71,428.57, its value will be brought down to exactly that amount, and the tax will be just. We must not be deluded, however, by the idea that by taxing a franchise we receive compensation for it. It would be absurd to>say that a grant of land by the govern- ment is not a gift, because the land is taxed at its full valua- tion after it becomes private property. If I sell my neigh- bor a house, he is not relieved from paying taxes because he bought the house. True, one of the conditions that fixed the price of the house was the general fact of its being property subject to taxation. And so if the city sells me a franchise and I pay full value for it under the condition that it shall be exempt from taxation, then if later the city taxes the franchise, in justice it should return to me, not the whole amount I paid for my special privilege, but just the difference in value between the franchise taxed and the fran- chise not taxed. The only possible excuse for giving away any franchise is the desire to " build up the country," to encourage the development of property for the benefit of the community and as a basis for future taxation. Upon this theory fran- chises were given away in the earlier history of most American cities. Indeed, new franchises are still given away on that theory in many cases, especially where the grant is made for the development of a new kind of public utility such as the distribution of heat and cold. This is precisely the same theory on which the United States has given away lands of great potential value to actual settlers. But for any city of considerable size now to give away a street railway, gas, or electric light, water, or telephone franchise on the same conditions under which similar fran- chises now have an immediate and real market value is, unless to be regarded as charity, a rank injustice, a governmental iniquity for what else is it to give to one the property of all? And, indeed, to sell a franchise on condition that it shall be exempt from taxation is a ruinous mortgaging of the future. For example, if the city of Gasopolis now sells GOVERNMENT FINANCE 459 a twenty-year franchise under condition of exemption from taxation, it will receive $100,000 in cash, which may be im- mediately devoted to some permanent public improvement requiring the expenditure of that amount. If, on the other hand, the franchise is sold subject to taxation, the city will receive only $71,428.57 down and will have to borrow the remaining $28,571.43 needed for the desired improvement. If the city pays S 1 /^ per cent, interest on this sum, it will amount to exactly $1,000 per year. On the other hand, the city will be receiving 2 per cent, in taxes on $71,428.57, which is the value of the franchise. This will amount to $1,428.57 per year, so that the city will be the gainer by $428.57 annually. . . . As I have said, the value of a franchise depends on the monopoly element in it. This may be expressed in the grant or may be simply the result of conditions which discourage or prevent competition. In the nature of the case a franchise for the establishment of a continuous line of fixtures in the street tends toward monopoly. It is open for a city to adopt one of two courses toward these privileges. First, the city may cultivate the monopoly features in order to raise a revenue from them. Or, second, the city by regula- tion may hold down prices or hold up the service to the point where the monopoly principle loses its venom, and the franchise has no value. Usually this question resolves itself into the question of a percentage of gross receipts for the city treasury or lower fares for the street-car passengers, lower tolls for the telephone patrons, or lower prices for the gas, water and electric light and power consumers. There is comparatively little clear thinking on this question in American cities, and every man answers it according to his instincts. If he is a large property owner, he is anxious to relieve himself of a portion of the burden of direct taxa- tion and favors selling franchise-monopolies so as to replenish the public treasury. If, on the other hand, he is poor or in very moderate circumstances, so that his street-car fare, his water rate, and his gas bill are a burden to him, he wants 460 READINGS IN CIVIL GOVERNMENT prices reduced so that he can get transportation, water, and light at cost. It is generally agreed that a consumption tax on the common necessities of life operates as a special burden upon the poor, and is therefore unjust and undemocratic. On this theory, then, democracy will insist that franchises for the supply of the common necessities of urban life must have their value regulated out of them in the interest of cheaper and better service. It is not inconsistent with this theory, however, to leave enough value in franchises to pay all the expenses incidental to their exercise. That is to say it may be proper to require street-railway companies to pay into the public treasury, in addition to any tax that may be levied on their property, a sum sufficient to reimburse the city for all extra expense in the construction and care of streets caused by the presence and activities of the street- railway business. The taxpayer has no claim to relief by means of the profits of public utilities except in so far as he furnished a street specially prepared for their fixtures. It is the user that makes a public utility profitable, and con- sequently he should get the benefit. . . . One method of receiving compensation for franchises, now often advocated, is by the provision in the grant that the grantees' plant and property in the streets shall fall to the city without compensation at the expiration of the fran- chise period. Such an arrangement for franchise grants is now optional with New York, Chicago, San Francisco, and some other cities in different parts of the country. Some of the provisions of the newer charters, especially those of western cities, are interesting and instructive. St. Paul and Portland, Oregon, represent two distinct policies with reference to public utilities. St. Paul does not permit municipal ownership of street railways or commercial light- ing plants. Nevertheless, close restrictions are put upon the grant of franchises. They require a three-fourths vote of all the members of each branch of the city council, and if vetoed by the mayor, they must receive a four-fifths vote for repas- sage. Every franchise must provide for the payment of at GOVERNMENT FINANCE 461 least 5 per cent, of the gross receipts into the city treasury. No exclusive franchises can be granted, and no franchise at all granted for more than a twenty-five-year period. Every franchise-holder is required to make an annual report to the city comptroller, showing in detail the financial statistics of his business for the preceding year. The council is for- bidden to grant any extensions of any kind to existing fran- chise companies except on their written agreement to exercise their present franchises under all the terms and conditions of the charter, including the payment of the percentage of gross receipts. The Portland charter grants to the city complete authority to own and operate public utilities. If franchises are granted, the power to tax them like other property cannot be bargained away. Grantees may be required to pay a per- centage of gross receipts in addition to all other forms of com- pensation, and must in all cases make financial reports to the city auditor according to forms prescribed by him. When- ever a franchise is applied for, the executive board, which I have described in a preceding chapter, is required to make an estimate of the value of the franchise on the basis of either a cash payment or an annual percentage of gross receipts. A recent act of California, applying to all cities which have not covered the same subject by home-rule charters, requires that when a franchise is petitioned for, the city council shall advertise for bids on the basis of a payment of 2 per cent, of the gross receipts after the first five years. When the bids are opened, any responsible party may raise the highest bid by not less than 10 per cent., and this bid may be raised in like manner. The franchise goes to the high- est bidder who is able to establish his good faith by prompt payment of the price offered. All these western laws are of too recent origin to have been tested very fully in their practical workings. Provisions for the sale of franchises are not confined to the home-rule charters of western cities. Even New York, 462 READINGS IN CIVIL GOVERNMENT the mother of American municipal improvidence and the ancient exemplar of the "piracy of public franchises/' has at last got a charter that protects in some fashion the remnant of public privileges still within the city's gift. The most common form of payment for street-railway franchises has been hitherto the assumption by the franchise-holders of certain special duties in the care of the streets. Baltimore was the wisest of all our great cities when the street railways came in, and required them to assume paving burdens that have amounted to millions of dollars. Philadelphia has also received a small part of the value of her franchises in street improvements made or paid for by the street railroads. This, however, is the old form of compensation which does not appear in immediate expenditure and does not satisfy the demand of the people nowadays for a cash payment into the city treasury in return for a valuable privilege. There is nothing especially wrong with the paving ta*, provided that the street railways pay in cash the extra cost to the city of paving between and near the tracks. This ought to be reckoned as a part of the cost of the business. The trouble comes where, as in Philadelphia, the franchise companies assume indefinite burdens, and, instead of paying the city for the paving work, do it themselves. Then the city does not know what it is getting for its franchises. This question of whether franchises should be sold or made valueless by regulation is closely allied to the question of policy in relation to public industries as revenue producers. It makes no difference in the principle whether the franchise is sold by the city or is operated for profit by the city. Municipal ownership and operation of all franchises is often held up as a possible and proper source of large net revenues to the city. If the theory suggested in a preceding paragraph is correct, then this idea of making public industries a source of net revenue to help pay the cost of the general functions of government is all wrong. Public utilities are undertaken by the city usually because they are matters of common necessity, and should be distributed to the people as cheap as GOVERNMENT FINANCE 463 possible. The transportation system of a city ought not to be operated on the principles of the "hold up" by our taking advantage of the necessities of travel to levy tribute upon the people. It ought rather to be conducted on broad principles with a view to performing the greatest possible social service within the limits of self -sustenance. If this policy were fol- lowed, an equilibrium between the tendency to lower fares and the demand for better service would be maintained at a point where the system would be fully self-sustaining and no more. The same should be true of municipal waterworks and lighting plants. ADDITIONAL READINGS 1 Local Finance, Fairlie, J. A., Local Government, 249-63. 2 Financial Administration of the City, Goodnow, F. J., City Government in the United States, 286-301. 3 The Revenues of the City, Howe, F. C., The City the Hope of Democracy, 262-79. 4 State Finance, Bryce, J., American Commonwealth, I, 512-27. 5 Biography of a River and Harbor Bill, Hart, A. B., Prac- tical Essays in American Government, 206-32. 6 The Growth of Federal Expenditure, Bullock, C. J., Politi- cal Science Quarterly, XVIII, 97-111. CHAPTER XX CUERENCY AND BANKING 87. THE RELATION OP THE UNITED STATES TREASURY TO GENERAL FINANCE. Since 1840 the United States Treasury has been conducted inde- pendently of the banks. That is, the government maintains a sys- tem of treasury vaults in which the government balances are kept instead of being deposited in banks. This system, known as the Independent Treasury, though devised prior to the establishment of our present National Banks has been maintained ever jinee. In the following article Mr. Lyman Gage, formerly Secretary of the Treas- ury, points out the illogical position the government has thus as- sumed by maintaining a treasury independently of its own system of banks: [1908]. The United States Treasury in its relation to the banking and financial interests of the country has occupied, since the creation of the national banking system, to go back no farther, an illogical not to say an unjustifiable position. By the National Banking Act, with its several amendments, the Government became sponsor for banking institutions now numbering more than 6,500. The rights, duties, qualifica- tions and responsibilities attached by law to all these institu- tions were fixed by the Government itself. Having brought these agencies into being, it virtually declared to the citizens of the land: " These are worthy agencies, and they deserve your confidence. For the faithful performance of the duties imposed upon them, and in the interest of your safety, we, the Government, will maintain over them a watchful and detailed supervision, disciplining those unfaithful to duty, while we will peremptorily suspend the power of any who 464 CURRENCY AND BANKING 465 shall prove unfit." Clothed with those high warrants and sanctions, the national banks as a whole have made successful appeal to the business world ; and these institutions now taken together are under money obligations to the people for a sum in excess of four thousand millions of dollars. What has been the practical attitude of the Government, as expressed through its Treasury and fiscal department, to the banking agencies it has thus endowed with life ? It can be set forth in a single paragraph. Never has the Government itself intrusted its financial interests to the safe-keeping of the agencies it has held out to the people as worthy of their respect and confidence. It has, indeed, on several and divers occasions, taken moneys from the Treasury hoard, and, under peculiarly exacting conditions, it has, for various periods of time, deposited a portion of these hoards with banking institu- tions ; but it has in no way conformed to the general method by which the banking agency is utilized by the business public. It has, in fact, persistently refused to receive from that portion of the public from which it derives its enormous revenues those instruments of credit, known as "checks" and "drafts," which constitute the real currency of commerce and trade. Separate, distinct and aloof from the ordinary financial and industrial life to which, through its revenues and disbursements, it stands closely related, it is persistent in exacting cash in hand from its revenue contributors ; while, on the other hand, it has distributed its payments in actual funds through its own special appointees. In all these particulars, it has been as if the banking agency did not exist, or, if existing, as if it were unworthy of Government use. The excess of its revenues, when excess there has been, was withdrawn from that public service to which through the banks it might have been applied. This, I say, was illogical. It might, indeed, have lain in the mouth of the great corporations such as railroads, the Standard Oil Company and other enormous handlers of money values to say to the Government: "Your ingenious so-called banking system does not commend itself to our 30 466 EEADINGS IN CIVIL GOVERNMENT respect and confidence. We believe neither in the people with whom we deal, nor in the banks you have created. Our revenues, however derived, must come to us in actual money. The device of checks and drafts, so convenient and economical to the people in their other affairs, does not appeal to us. Having the power in our relation to do so, we dictate the con- ditions. Our money, when received, we will lock up; and, in the natural financial intimacies of life, we will stand separate, apart and independent. We justify this action on the ground that your banking system is unsafe. ' ' Now, if it were excusable on this ground for these great corporations to take this arbitrary position which nobody will affirm it were inexcusable for the Government to do so, since the Government itself determined and decreed all the qualifications for safety and efficiency which its own creatures should possess. Was this course of action on the part of the Government necessary for just prudence as to the safety of its funds, or proper economy in administration of its affairs? In answer to the first half of this question, I affirm it to be the fact, demonstrated by careful and thorough examination, that had the Government employed the national banks in centres known as the "reserve cities," depositing with them its revenues, with some just proportion to or regard for the rela- tive capital of those various institutions, with no security from them whatever other than a first lien upon their assets, respectively, there would never have been a dollar of loss to the Government. If, on the other hand, the Government had required, in consideration for these moneys so deposited, an interest return by the banks of, say, two per cent, per annum, the Government would have realized from this source, up to the present time, a total revenue of something more than $70,000,000. As to economy of administration of the Treasury funds, there would also have been an enormous saving, since the elaborate machinery of the Sub-Treasury and Sub-Treasuries CURRENCY AND BANKING 467 need not have been employed. Nevertheless, the creator has steadily refused to employ its own agencies, while the rest of the business world, obedient to the law of economic advantage, has employed in its multifarious affairs the useful machine of banking-credit which the Government has thus rejected. To add piquancy to this contrast, it might be truthfully said that were the aforesaid large financial corporations to aban- don their present methods and adopt instead the example of the Government, and install, each for itself, an ' ' independent treasury" a cry of indignant protest would resound through the length and breadth of the land and rightly so, unless it be that our modern system of credit and credit machinery for the transfer of property and payment of accounts, etc., is a delusion and a snare. If the credit system can be thus characterized, the Govern- ment is, no doubt, justified in maintaining its own private purse independent of all things else. It is in that case equally true that every one controlling money values should adopt the same rules. In short, the National Banking Act should be repealed. We are not, however, ready to return to a method closely allied to primitive barter. Concede this, and then the Government is wrong economically and logic- ally wrong in its independent Treasury. The disturbing influence on general financial affairs of excessive money- hoarding by the Government has been too often described to require any detailed notice here. If, then, a vote were to be taken among those who have capacity to judge of things in their true relationships, I do not doubt that the proposi- tion to abolish the independent Treasury and substitute for it the use of banking agencies as they now exist would receive a preponderating vote. I may be wrong in this opinion. I myself would hesitate, however, to vote in the affirmative on that proposition. I should much prefer that the motion be "laid upon the table " until our banking system can be so amended that it shall be free, or comparatively free, from the perturbations which periodically beset us, bringing in as 468 READINGS IN CIVIL GOVERNMENT a consequence a partial or complete suspension of the bank- ing function upon which society depends for the regular ongoing of its business affairs. I need hardly say that the amendments to which I refer must be in the line of unification or centralization of power. The banking units, whose weakness as they now exist has been so often demonstrated, must receive strength by association together or with some superior commanding agency able both to exercise control and furnish effective support. A central bank or a Government bank of adequate capital properly organized for safety and efficiency is the sort of an agency to which I refer. Great Britain, France and Germany offer good models which we may profitably study. I would maintain the independent Treasury until such time as our banking system is so re-enforced ; because, in spite of the lack of logical reasons for its existence, it has been, and is now, in our imperfect condition, the only agency which can, or theoretically can, regulate and give to some extent a degree of steadiness to the erratic movement incidental to our financial and banking system as now operated. By its intervention, the Treasury on many occasions in the past, has averted threatened financial disaster. Given an always plethoric Treasury, directed by an infallibly wise ad- ministrator (one who has never yet appeared), it could, by timely deposits of these hoarded moneys, and by timely with- drawals of the same, in part or in whole, give steadiness and regularity where otherwise there would be irregularity, dis- location and panic. In these regards, the independent Treas- ury, when endowed with the needful power in money, can, and in my opinion has, to a degree served the purpose and discharged in a crude way the functions of a great Govern- ment or central bank. This service, crude as it has been, often entirely lacking through want of power, often badly di- rected through lack of wisdom, is a development not antici- pated nor foreseen in the laws establishing the independent Treasury. It illustrates an old truth often recognized that even out of evil good may incidentally come. Be the service CURRENCY AND BANKING 469 to which I have referred worth little or much, it cannot safely be counted upon as a valuable factor in the future. The present overflowing Treasury, through changed conditions, may, at no distant date, be in a state of exhaustion. A per- fect system of Government finance would, indeed, bring in each day from its sources of revenue a sum exactly adequate to meet its daily expenditures. We ought not, then, to retain permanently the independent Treasury for the sake of its ambiguous and uncertain control as an intermediary in our financial life, with which it should by right interfere to the smallest degree possible. My conclusion, then, is, first, that the independent Treas- ury should be abolished whenever and as soon as our present banking system, which has been demonstrated to be faulty, is corrected in the direction I have pointed out rather than described ; second, that the perfecting of our banking and cur- rency system so that it may at all times perform its impor- tant function in a safe and effective manner both for the Gov- ernment and for all the people is an end demanding the best thought and the most intelligent effort of financial stu- dents and political economists, and of all patriotic people who desire for their country what will best make for its eco- nomic welfare. 88. THE NATIONAL BANKS AND THE PANIC OF 1907. Financial crises have occurred from time to time in the United States with almost periodic regularity. Some have been more dis- astrous than others. But whatever the character of the causes that produce them or their effect upon business generally, they must in the very nature of the case bear an especial relation to the banking system of the country. In the following selection Mr. Wm. B. Ridgely, Comptroller of the Currency, shows how in the crisis of 1907 our National Banks failed to meet the emergency: [1908]. There has been no lack of warning indications of financial troubles. For the last ten or twelve years there has been an era of advancing prices and of great industrial, commercial and speculative activity, in all countries of the world. Cred- 470 READINGS IN CIVIL GOVERNMENT its were increased till the limit was reached in the amount of reserve money on which they must be based. For two or three years, it has been constantly more evident that there must be a slackening of the pace if we would avoid a general crisis in commercial affairs. As is always the case, when there is a demand for liquidation, it first manifests itself in the stock-market. For months, there has been a more or less steady decline in quotations. The difficulty in selling bonds became so great that many of the railways have had to raise money for their necessary expenditures through short-time notes instead of by the regular bond issues. Merchants and manufacturers of the highest credit have found it harder and harder to renew loans, and the rates have risen, steadily, for months. It was under such conditions that we approached the au- tumn crop-moving period, when there are always withdrawals of balances from the reserve cities. For a time, there was reason to hope that there might be no more than a gradual liquidation of credits which would not develop into a bank or commercial crisis. But, in October, the collapse of a highly speculative corner in stocks dealt in on the "curb" in New York not even listed on any regular exchange brought suspicion upon an old and well-established national bank. Examination showed this bank to be entirely solvent; but public interest had been aroused to such an extent that runs developed in New York city on several other banks and trust companies. Some of them were not prepared for co-operation and protection against the sudden demands, and a number of failures followed. In this emergency the Clearing-house banks of New York issued Clearing-house certificates for use in the payment of balances, and decided to suspend the shipment of currency to out-of-town banks. This example was followed by the cen- tral reserve banks and most of the other reserve cities, of ne- cessity precipitating a famine of currency and a serious bank crisis. The means of remittance and collection were almost entirely suspended. Individuals, corporations and even the CURRENCY AND BANKING 471 banks themselves drew and held all the money of any kind they could obtain. A curious feature of the situation was that there was more of a panic among the banks than among the people ; but the hardship was to business generally. Every class of business was interfered with, so that business opera- tions of every kind were curtailed. Factories have suspended, workmen have been thrown out of employment, orders have been canceled, the moving of crops has been retarded, ex- ports have fallen off at a time of the year when they should be at their highest. Another serious result has been the re- duction of the volume of foreign credits available just at the time when they are most needed to offset the large imports of gold which have been made. It was not the failure of a few banks which brought on the panic. It was the system which rendered a panic practically inevitable under certain conditions and they are conditions which can be many times repeated. It was not lack of con- fidence on the part of the people, but lack of confidence in the banks themselves. They were fearful that the reserve system would break down, and it broke down. They were fearful that a sufficient amount of currency could not be supplied to meet the demands -the demands were all made at once and there was not a sufficient amount to meet them. The remedy lies in improving the reserve system, so that the reserve de- posits of the banks shall be kept where they are always and certainly available, and in imparting to our currency system an element of elasticity, so that, when there comes a sudden demand for bank-notes, they can be supplied without obliter- ating the reserve. This can only be satisfactorily accom- plished through the establishment by the Government of a central bank of issue and reserve the system which is work- ing so satisfactorily in all of the great commercial centres of Europe. It would not only solve the two great problems of our banking system, but would also provide the machinery for conducting Treasury operations with the least disturb- ance. The real weakness of our present banking system is the 472 READINGS IN CIVIL GOVERNMENT result of the provision regarding reserve deposits, through which the reserves are piled up in central reserve cities, with- out a sufficient amount of actual cash reserve on hand, so that when an emergency arises the reserves are not reserves at all. It would help against embarrassment to add to the reserve required, all along the line; but the proper solution is to in- crease the amount and require all reserves to be held in a cen- tral bank organized for that purpose. The depositing bank would not only be sure that the funds were always available, but that, as long as it was solvent, it could go to the central bank and get any amount of cash needed on notes of its cus- tomers or other good security. With such a bank to depend on, no solvent bank need ever doubt its ability to meet all possible demands. The law concerning reserves, as it stands, requires that a minimum reserve of twenty-five per cent, on deposits be held in lawful money in the vaults of the central reserve city banks. The reserve cities must also keep twenty-five per cent, reserve, one-half of which may be on deposit in the central re- serve banks. Banks in all other cities are required to keep fifteen per cent., three-fifths of which may be on deposit in reserve or central reserve cities. With any lack of confidence, this system is necessarily a source of weakness instead of strength. Realizing upon what small margins they depend, each bank is, in self-defence, impelled not only to collect its loans, but to withdraw its reserve deposits. Deposits of $10,- 000,000, in country or non-reserve banks, call for a cash re- serve to be kept in those banks of only $600,000, with $900,- 000 on deposit in reserve city banks. These banks must have in their vaults only $112,500 of the amount, with the same amount on deposit in central reserve cities, where, in turn, there need be on hand but $28,125 representing it There is, therefore, but $740,625 in cash, kept, unloaned, anywhere, against this deposit of $10,000,000 in the country banks. Of this only $140,625 is outside the banks' own vaults. If there is a reduction in the deposits of the country banks, of $150,- 000, out of the ten millions, only one and one-half per cent., CUEEENCY AND BANKING 473 it calls for more cash than has been kept on hand in reserve banks for the whole ten millions. What wonder that the fall demand for $200,000,000 in currency, for crop-moving, always causes anxiety, and that when it is accompanied by a withdrawal of deposits and curtailment of credits, caused by uneasiness or distrust, the banks are forced to drastic measures in self-defence. There is nothing new in this situation. It has been known to all students of our banking and currency system, and has been written and talked about for many years. It has pro- duced panic after panic, and a stringency in the money-mar- ket every fall for forty years. It was wholly due to this that the crisis of October assumed the phase of a bank panic and spread over the country. There was no other reason at all why the banks as a whole should have become involved, and their business and that of all of their customers disturbed as it was. All that was needed to have prevented this was a proper system of credit bank-note currency and bank reserves, both of which would have been supplied by a central bank of issue and reserve. There would have been no scarcity of cur- rency, no derangement of domestic exchange and no panic among the banks or among the people. The only way in which bank-deposit credits can be prop- erly protected from sudden calls, when all banks may be in- volved at the same time, is by a system of note credits which can be at any time and immediately exchanged for deposit credits. They are essentially the same thing, and they should be daily, hourly, if necessary, convertible from one to the other. With such a system there is no inflation or expansion when a note is paid out, and no contraction when a note is re- turned. It makes no difference to the bank or to any one but the customer, who uses either at his option, whether the deposit remains in the bank as a credit to be checked against or is taken away in the shape of a circulating note. Our bond-secured bank-notes offer no help to a bank in sudden calls for deposits. They are a fixed currency, issued on the secured currency principle, as distinguished from the 474 READINGS IN CIVIL GOVERNMENT credit or banking principle. When issued they stay out in- definitely, only returning to be renewed \vlu-n worn out. It is only when the bonds for security can be borrowed or some Government deposit is obtained that they are of any value in meeting an emergency. It will not help the matter to in- crease the volume of bonds. It would only increase the vol- ume of rigid, unelastic notes. They would only be a power of expansion till they were issued. Then they would stay out, with no tendency to contraction when not needed. There would be no temporary expansion possible to meet the sudden demands of an emergency. We must have a note circulation which can change quickly and automatically in response to demands. Contractibility is quite as necessary as expansi- bility. Several of the panic reliefs which have at various times been suggested have good points. They would serve a purpose in quieting a panic after it is under way, but not in preventing it. The use of Clearing-house certificates by the banks has been found a very efficient means for their de- fence, and on many occasions has probably prevented a great number of bank failures during panics. But they are only half-way measures. They carry us no farther than to the inevitable conclusion that we should have a national and cen- tral bank of issue and reserve. Clearing-house certificates, which are really credit-notes on a large scale, should be is- sued by a central bank under Government authority. This would have none of the disadvantages of the other system, while it would have all of the advantages and many more besides. The real need is for something that will prevent panics, not for something that will relieve them; and the only way to attain this is through the agency of a Governmental bank. The experience of all other countries has demonstrated this. We shall surely have panic after panic till we learn the plain lesson which the others have learned and adopt the only effi- cient, scientific and proper means to protect our business in- terests. It is a matter of greater importance to the people at large than it is to the banks themselves. The banks devise CURRENCY AND BANKING 475 ways and means to stand together, with the aid of the Clear- ing-house, and by suspension or partial suspension of pay- ment to bridge over and avoid failure. But the other busi- ness interests of the country are left almost in a state of chaos. The machinery of domestic exchange suddenly stops. Collections and remittances are almost impossible. Manufac- turers are forced to suspend. Workmen are thrown out of employment. Business men are forced to fail through no fault of their own, There is no citizen of the United States who is not in danger of more or less loss and embarrassment. And worst of all is the long period of depression which fol- lows a panic, bringing suffering and privation to those who are in no way to blame. The thing which is absolutely essen- tial is a banking system with bank-notes which will be re- sponsive to the demands of business and will as readily con- tract as expand; with a system of bank reserves which shall be real reserves and always immediately available. 89. THE FEDERAL RESERVE BANK SYSTEM. In 1913 Congress created a new system of banks which was expected to correct the defects complained of in the preceding numbers. In the following article Professor E. E. Agger explains the principal provisions of this law: (1914) The factor most largely responsible for the peculiar or- ganization of the new system was the desire for the centraliza- tion of reserves. The plan adopted involves no absolute cen- tralization of reserves, but, rather, a district centralization with the possibility of effecting virtually complete centraliza- tion should the necessity therefor arise. The holders of the centralized reserves are to be banks spe- cially created for the purpose and known as Federal Reserve Banks. The law provides for from eight to twelve " federal reserve districts, ' ? in each of which is to be designated a ' ' fed- eral reserve city," in which the new banks are to be estab- lished. Each federal reserve bank may establish branches in other places in its own district, and also in other districts 476 READINGS IN CIVIL GOVERNMENT should the reserve banks of such other districts be for any reason suspended. Federal reserve banks are to be the banks of bankers. They must have a minimum capital of $4,000,000, which is to be subscribed in each district by the banks joining the system, al- though if the required capital cannot be obtained in that way, it is to be made up by public or governmental subscription. Membership is voluntary, and is open to state banks and trust companies as well as to national banks. As the federal reserve banks are primarily public rather than profit-making agencies, their annual dividends are lim- ited to six per cent, per annum. Any excess above six per cent, is to go, half to the surplus and half to the government, until the surplus reaches forty per cent., when the entire ex- cess is to accrue to the government. The amount so accruing to the government is to be used at the discretion of the sec- retary of the treasury, to strengthen the gold reserve behind the "greenbacks" or to retire outstanding United States bonds. In case of liquidation, whatever is left of the surplus after deducting items justly chargeable against it goes to the government. The dividends to the shareholders of the reserve banks are, however, cumulative. Co-ordinating and controlling the whole system is the * ' Fed- eral Reserve Board." It is made up of seven members. The secretary of the treasury and the comptroller of the currency are members ex officio. Five members are appointed by the President, by and with the advice and consent of the Senate. Not more than one member of the board can come from a single federal reserve district. At least two of the Presidential ap- pointees must have had banking or financial experience, but no member of the board may be an officer, director, or stock- holder of any bank. Except for the ex officio members, and for the first incumbents, whose terms will run respectively two, four, six, eight and ten years, the term of office will be ten years. But the President may remove members for cause. While the secretary of the treasury is the ex officio chairman of the board, the President is empowered to name one of his CURRENCY AND BANKING 477 five appointees as ''governor" and another as " vice-gov- ernor/' The governor and vice-governor are the chief execu- tive officers of the whole system. The federal reserve board is an unusually powerful super- visory and regulating body. It may suspend or remove any officer or director of a federal reserve bank; it may require the writing off by such bank of its bad debts; and may sus- pend a federal reserve bank or take it over for purposes of reorganization or liquidation. It may also readjust or abolish altogether the classification of central and reserve cities. The member banks are represented in the central manage- ment by a " Federal Advisory Council," made up of one rep- resentative from each federal reserve district, chosen by the board of directors of the federal reserve bank. This council meets quarterly at Washington and at such other times and places as it may choose. To effect the desired centralization of reserves the federal reserve banks are authorized to receive deposits from mem- ber banks, from the United States government, and, solely for exchange purposes, from each other. Deposits from private individuals may not be accepted. The secretary of the treas- ury is authorized to use his discretion in employing the fed- eral reserve banks as depositories for government funds. In view of the evils disclosed by the independent treasury sys- tem in the past, it is hardly conceivable that he will fail so to employ them when once the system is well established. Mem- ber banks, on the other hand, are required to keep a consider- able proportion of their lawful reserves on deposit in the fed- eral reserve banks. The exact proportions vary slightly for the central reserve city, the reserve city, and for the so-called "country banks"; but at the end of three years these pro- portions are respectively seven-eighteenths, six-fifteenths and five-twelfths, while an additional five-eighteenths, four-fif- teenths and three-twelfths, respectively, must be kept in the member bank's own vaults or in its federal reserve bank. While a minimum of one-third of the required reserves must be kept in the member bank's own vaults, from one-half to 478 READINGS IN CIVIL GOVERNMENT two-thirds of the total reserves will ultimately be centralized in the federal reserve banks. Let us now consider the provision made in the new law for insuring the " elasticity " of bank credit. This, as will be recalled, concerns the expansion and contraction of deposits and of notes in response to fluctuating demand. The expansion of deposits has never given serious difficulty. The elastic notes in the new system are known as " federal reserve notes.'* These are the obligations of the United States government itself. They are issued at the discretion of the federal reserve board, through the federal reserve agents, to the federal reserve banks. The federal reserve banks pay the notes on demand to the member banks, from which they reach, in turn, the general public. The denominations of the notes are five, ten, twenty, fifty and one hundred dollars. All the notes must bear the distinctive letters and serial numbers which have been assigned by the federal reserve board to the reserve banks responsible for their issue. They are receivable at par by the reserve banks and by the member banks, and also by the United States government for all public dues. They are not legal tender in payments to individuals ; but this will not seriously influence their general acceptability. They are redeemable in gold at the treasury at Washington, and in gold or lawful money at any of the reserve banks. Furthermore, they constitute a first lien against the assets of the reserve bank through which they are issued. Safer notes could hardly be imagined. Prepared notes are kept on hand in sub-treasuries or mints. The only formalities to be observed by the federal reserve banks in obtaining them are to have on hand the required re- serve and to turn over to the federal reserve agent an amount of collateral, made up of notes and bills accepted for redis- count, equal to the sum of notes desired. The federal reserve board may call for more collateral if that should be deemed necessary. The point is, however, that the major portion of the reserve banks' normal investments become thoroughly ac- ceptable cover for note issue. The transformation of credit CURRENCY AND BANKING 479 from deposit form into note form ought not, therefore, to be a matter of difficulty. To restrain note expansion within due bounds the federal reserve banks are required to hold a reserve in gold of forty per cent, against their federal reserve notes in actual circu- lation which are not already offset by gold or lawful money that has been turned over to the federal reserve agent for the purpose of retiring notes. A part of this gold reserve must be deposited with the United States treasurer. How large this part shall be is left to the determination of the secretary of the treasury, but it must in any case be not less than five per cent. But here, too, a more adjustable check is provided in the authority vested in the federal reserve board to grant in whole or in part, or to reject altogether, the application of a federal reserve bank for notes, and to fix the rate of interest on the amount that it does grant. The law contains a series of provisions designed to insure contraction of notes when demand falls off. The notes may not be counted as lawful money for reserve purposes either by member banks or by reserve banks. It is, therefore, to the interest of a member bank to deposit in its reserve bank as speedily as possible any and all of the federal reserve notes that it receives as deposits. The reserve banks, in turn, are not only specifically required to return each other's notes for redemption, but the paying out by one reserve bank of the notes of another reserve bank involves a penalty of ten per cent, of the amount so paid out. Consideration should now be given to the plan by which the new system makes the centralized reserves and the notes of the reserve banks available to the member banks. This is made possible by provisions for re-discounting. With the indorsement of a member bank, the federal reserve bank may discount for such member bank notes, drafts, and bills of exchange arising out of actual commercial transactions. The federal reserve board determines in general the character of such paper. But the statute provides that paper secured by agricultural products or other goods and merchandise is not 480 READINGS IN CIVIL GOVERNMENT to be considered ineligible for re-discounting. On the other hand, notes and bills covered by or put out for carrying stocks and investment securities, except notes and bonds of the United States government, are expressly declared ineligible. The ob- vious purpose of the discrimination against investment and similar paper is to discourage security speculation. This ap- pears needlessly harsh. Bills acceptable for re-discount may not run longer than ninety days ; but here, too, an exception is made in favor of the rural borrower, in that bills issued for agricultural purposes and those based on live stock may have a six months' maturity. The amount of these long-time bills, however, must be limited to such a percentage of the capital of the reserve bank accepting them as may be determined by the federal reserve board. In order to control the utilization of the advantages of the new system by banks which are un- willing to assume corresponding obligations, it is provided that, in applying for or receiving discounts, a member bank can act for a non-member only with the express permission of the federal reserve board. On the whole, therefore, it may be concluded that as long as a member bank keeps the required proportion of its reserves in lawful money in its own vaults, the question of obtaining hand-to-hand money or that of strengthening reserves is simply one of having on hand an adequate supply of bills acceptable for re-dis- counting. Centralization of reserves involves also a well -organized system of domestic clearings. This was not overlooked in planning the new banking system. As clearing involves the balancing of credits against debits, in the absence of direct relations between debtors and creditors the process can be exe- cuted only through the mediation of an agency standing be- tween them and acting for both. Hence, in the federal re- serve system the federal reserve board may in first instance require each reserve bank to act as a clearing-house for its member banks, and it may also permit the reserve banks, for exchange purposes, to carry accounts with each other. The reserve banks must receive at par all remittances drawn on CURRENCY AND BANKING 481 their own depositors that may be sent in for collection by mem- ber banks and other reserve banks. Furthermore, there is the interesting provision that one reserve bank may send as a credit to a second reserve bank remittances drawn against a third reserve bank or its member banks. The object of this provision is to permit three-cornered exchange whereby a given bank liquidates its indebtedness to a second bank by sending a credit payable at a third. The whole system of charges for such clearings is, in general, under the control of the federal reserve board. By implication, however, member banks may not charge their patrons more than the actual expense involved in collecting or remitting funds, or in sup- plying exchanges. To systematize the clearings between the reserve banks themselves it is provided that the federal re- serve board may act as the clearing-house for them or it may designate one of the reserve banks to act in that capacity. The basis of an effective clearing system has thus been pro- vided. Important provisions remain to be noted in connection with the foreign exchanges and the international movements of gold. Most of the foreign trade of the United States has here- tofore been financed by foreign bankers. The new system permits the home institutions to enter the field for this busi- ness. As noted above, member banks are allowed, within certain limits, to accept on commission drafts and bills of ex- change growing out of exports and imports, and these may be sold in the open market or ultimately re-discounted at the federal reserve banks. National banks with a capital and sur- plus of $1,000,000 or more may, with the permission of the federal reserve board, establish branches abroad. Similarly, the reserve banks, when duly authorized, may open accounts in foreign countries and may establish agencies for purchas- ing, selling and collecting bills of exchange bearing at least two names and maturing within ninety days. But the extent to which American bankers will be able to supplant the for- eigner will depend, of course, largely upon the acceptability of bills drawn in dollars. This will depend, among other 482 EEADINGS IN CIVIL GOVERNMENT things, upon the market rate of discount in the United States in competition with the rates abroad. If the new system suc- cessfully establishes American credit in the world markets, a large part of the tribute that American commerce now pays to foreign bankers will stay at home. ADDITIONAL READINGS 1 The Money Market, Pratt, S. 8., The Work of Wall Street, 174-99. 2 The Bank Statement, Ibid., 200-14. 3_The Credit System, Fender, W. A., Government Credit and Its Uses, 16-34. 4 The Nature and Function of Money, Scott, W. A., Money and Banking, 159-88. 5 The Greenbacks, White, H., Money and Banking, 130-63. 6 The National Bank System, Ibid., 372-84. CHAPTEB XXI REGULATION OF COMMERCE 90. THE POWER OP CONGRESS TO CONTROL INTER-STATE COMMERCE. The Constitution, Article I, Section 8, says: "Congress shall have power to ... regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Al- though this language seems to be perfectly clear, its interpretation has caused much difficulty because the methods and agencies of carry- ing on commerce are not the same now as when this commerce clause was written. In the following extract Mr. J. S. Wise speaks of the difficulties and summarizes a few of the principles followed by the courts in dealing with them : This exclusive power of regulating commerce was con- ferred upon Congress for a reason. It was the offspring of many short-sighted, vexatious, and discriminating regulations imposed by the States upon vessels from other States entering their ports, while they retained the power to legislate on the subject under the Articles of Confederation. The transfer of the subject to exclusive Federal control was made delib- erately after these embarrassing experiences. Nearly a hun- dred years ago the Supreme Court declared that it was doubt- ful whether any of the evils of weakness under the Articles of Confederation contributed more to the adoption of the Constitution than the conviction that ''commerce ought to be regulated by Congress." No clause of the Federal Constitution has given rise to more litigation than this so-called commerce clause. It was first interpreted by Chief Justice Marshall in Gibbons vs. Og- den } and its scope and legal effect have been under consid- 483 484 HEADINGS IN CIVIL GOVERNMENT eration in about two hundred and fifty cases since then de- cided by the Supreme Court of the United States. Many volumes have been written concerning the rights of citizens under this clause, and it would be beyond the scope of this work to set forth even an epitome of the decisions interpreting it rendered by the Supreme Court. We shall content ourselves with a statement of a few of the leading principles settled by the adjudicated cases, and the remark that the litigation has, for the most part, arisen out of acts of State legislatures, which have been challenged as invading the exclusive province of Congress to regulate interstate commerce, etc. The first important case arising under this clause was, as above stated, Gibbons vs. Ogden, and the last case of impor- tance decided by the Supreme Court is the celebrated so- called " merger decision/* involving the right of Congress, in the exercise of its power to regulate commerce, to pass laws forbidding the merger of corporations owning parallel and competing lines and engaged in interstate commerce. The master mind of Marshall in the first case announced the following fundamental principles, which remain undis- turbed : 1. That the grant of powers to Congress, in the particulars named, was not only absolute and embraced the power to regulate navigation, but was exclusive of any rights of States to legislate on the subject. 2. That it did not affect the right of the States to legis- late on purely internal commerce or to enact inspection laws and health laws, or purely police regulations. 3. That the laws last named "form a portion of that im- mense mass of legislation which embraces everything within the territory of a State, not surrendered to the general gov- ernment; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, etc., are component parts of this mass. REGULATION OF COMMERCE 485 No direct general power over these objects is granted to Con- gress, and consequently they remain subject to State legisla- tion." 4. But where the States, in the exercise of the powers last mentioned, enact laws which come in conflict with Federal laws regulating commerce, the acts of the State must yield to the laws of Congress. That the nullity of all such acts is produced by the declaration that the Constitution is supreme. Throughout all the multitudinous litigation which has fol- lowed arising under this clause the soundness of these prin- ciples has never been questioned. If the case has arisen upon a State statute the question has been, Does the State statute directly legislate on the forbidden subject? If so, it is void. Does it, although within the general scope of State power, in its effect regulate interstate commerce, etc. ? If so, it must yield to the exclusive power of Congress to control. If it be a mere regulation of inspection, or health, or exer- cise of the unquestioned police powers of the State, and its ef- fect on commerce be merely incidental and not determinative, then it is a law within the powers of the State. If the question has arisen upon a Federal statute, the first inquiry has invariably been, Is the law, fairly construed, a regulation of that class of commerce committed absolutely and exclusively by the Constitution to the regulation of Congress ? If so, it is a valid law, for the power to legislate is as broad as the grant of exclusive control. These questions have arisen in infinite variety and com- plexity, presenting new aspects in each successive case, and it is impossible to generalize them in this discussion. The opposing views in each case are the result of two theories which have given rise to most of the controversies between Federal and State authority, viz., on the one hand, the theory of broad latitudinarian construction of Federal powers, and, on the other, the theory of strict construction. Pursuing the one or the other of these theories, men of the highest intellect and character have, from the foundation of the government, been arrayed in opposition to each other upon every impor- 486 EEADINGS IN CIVIL GOVERNMENT tant question of construction that has arisen, and perhaps no more striking illustration of this irreconcilable conflict of views may be found in our whole judicial literature than in the earnest, almost angry, discordance of our Supreme Court in the last important decision on this commerce clause. But the constitutional inhibition does not prevent the States from enacting laws which prevent non-residents from engaging in certain classes of employments within their limits. Such, for example, is the right of a State to limit the right to fish and hunt within her borders to her own citizens. It has been held that the States did not invest the Federal government with any portion of their power and control over fishing and hunting within their borders; that the fish and shellfish and game in every State belong to, peculiarly and of right, and form part of the food supply of, the people in each State, and that it is within the police powers of the State, without any right of interference by Federal authority, to determine who shall and who shall not take the fish and game within her borders, and even to prohibit the shipping of the same beyond the limits of the State. Thus when a Virginia law punished a citizen of Maryland for tak- ing oysters from Virginia oyster beds, and he claimed that he was engaged in commerce, the Supreme Court sustained the State law, and denied the claim of license to fish in Virginia waters as a matter of commercial right. So, a law of Connecticut regulating the manner of taking game in that State and forbidding its exportation was held valid. The duty of preserving the game was declared to be a trust for her own people. And State laws prohibiting exhaustive methods of fishing in waters within State jurisdiction, or the use of destructive instruments, are within the powers of the State. 91. THE HEPBURN INTER-STATE COMMERCE ACT OF 1906. The increasing demand for a more thorough regulation of inter- state commerce led Congress in 1906 to enact a law which greatly EEGULATION OF COMMERCE 487 extended the scope of that of 1887 and enlarged the powers of the Commission. The important provisions of this Act are here given: Sec. 1. That the provisions of this Act shall apply to any corporation or any person or persons engaged in the trans- portation of oil or other commodity, except water and except natural or artificial gas, by means of pipe lines, or partly by pipe lines and partly by railroad, or partly by pipe lines and partly by water, who shall be considered and held to be common carriers within the meaning and pur- pose of this Act. . . . The term "common carrier" as used in this Act shall include express companies and sleeping car companies. The term "railroad" as used in this Act, shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease, and shall also include all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of persons or prop- erty designated herein, and also all freight depots, yards and grounds used or necessary in the transportation or delivery of any of said property; and the term transporta- tion shall include . . . the receipt, delivery, elevation and transfer in transit, ventilation, refrigeration or icing, storage and handling of property transported. . . . All charges made for any service rendered or to be ren- dered in the transportation of passengers or property as aforesaid, or in connection therewith, shall be just and rea- sonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful. No common carrier subject to the provisions of this Act, shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its em- 488 READINGS IN CIVIL GOVERNMENT ploy es and their families . . . (and certain other specified classes of persons). From and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, any article or commodity, other than tim- ber and the manufactured products thereof, manufactured, mined or produced by it, or under its authority, or which it may own in whole, or in part, or in which it may have any interest direct or indirect except such articles or commodities as may be necessary and intended for its own use in the con- duct of its business as a common carrier. Any common carrier subject to the provisions of this Act, upon the application of any lateral, branch line of railroad, or of any shipper, tendering interstate traffic for transporta- tion, shall construct, maintain and operate upon reasonable terms a switch connection . . . and shall furnish cars for the movement of such traffic to the best of its ability with- out discrimination in favor of or against any such ship- per. . . . The Commission may determine and prescribe the form in which the schedules required by this section to be kept open to public inspection shall be prepared and arranged and may change the form from time to time as shall be found expedi- ent. . . . The willful failure upon the part of any carrier subject to said Acts to file and publish the tariffs or rates and charges as required by said Acts, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof the corporation offending shall be subject to a fine of not less than one thousand dollars nor more than twenty thousand dollars for each offense; and it shall be unlawful for any person, persons, or corporations to offer, grant, or give, or to solicit, accept or receive any rebate, concession, or discrimination. . . . Every person or corporation whether carrier or shipper, who shall know- BEGULATION OF COMMERCE 489 ingly offer, grant, or give, or solicit, accept, or receive any such rebates, concession, or discrimination shall be deemed guilty of a misdemeanor, and a conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars: Provided, That any person or any officer or director of any corporation subject to the provision of this Act . . . who shall be convicted as aforesaid, shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. . . . Sec. 15. That the Commission is authorized and empow- ered . . . whenever ... it shall be of the opinion that any of the rates or charges whatsoever demanded, charged or collected by any common carrier ... or that any regulation or practices whatsoever of such carrier or car- riers affecting such rates, are unjust or unreasonable or un- justly discriminatory, or unduly preferential or prejudicial, or otherwise in violation of any of the provisions of this Act, to determine and prescribe what shall be the just and reason- able rate or rates, charge or charges to be thereafter observed in such case as the maximum to be charged. . . . All orders of the Commission, except orders for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force for such period of time, not exceeding two years as shall be prescribed by the Commission, unless the same shall be suspended or modified or set aside by the Commission, or be suspended or set aside by a court of competent jurisdiction. . . . Sec. 16. If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant . . . may file in the circuit court of the United States for the district in which he resides ... a petition setting forth the cause for which he- claims damages and the order of the Commission in the premises. Such suit shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order 490 READINGS IN CIVIL GOVERNMENT of the Commission shall be prima facie evidence of the facts therein stated. . . . The Commission may, in its discretion, prescribe the form of any and all accounts, records, and memoranda to be kept by carriers subject to the provisions of this Act. . . . Sec. 24. That the Interstate Commerce Commission is hereby enlarged so as to consist of seven members with terms of seven years, and each shall receive ten thousand dollars' compensation annually. . . . 92. THE SHERMAN ANTI-TRUST ACT OF 1890. While the regulation of railroad rates has been one of the most difficult problems with which Congress has had to deal in connection with interstate commerce, it is by no means the only one. Modern industrial development has tended strongly toward the formation of trusts great combinations of capital which have threatened to stifle fair competition. Congress considered that its power to regulate commerce enabled it to meet this situation and accordingly in 1890 it passed an anti-trust measure, the chief provisions of which are as follows : Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, Section 1. Every contract combination in the form of trust or otherwise, or conspiracy, in restraint of trade or com- merce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall mak.' any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeaner, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any person or per- sons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be REGULATION OF COMMERCE 491 punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punish- ments, in the discretion of the court. Sec. 3. Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any territory of the United States or "the District of Colum- bia, or in restraint of trade or commerce between any such Territory and another, or between any such Territory or Ter- ritories and any State or States or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor, and, on conviction thereof shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punish- ments, in the discretion of the court. Sec. 4. The several Circuit Courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act. . . . Sec. 6. Any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section one of this act, and be- ing in the course of transportation from one State to another, or to a foreign country, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure and con- demnation of property imported into the United States con- trary to law. Sec. 7. Any person who shall be injured in his business or property by any other person or corporation by reason of any- thing forbidden or declared to be unlawful by this act, may sue therefor in any Circuit Court of the United States, in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover three- fold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee. 492 EEADINGS IN CIVIL GOVERNMENT Sec. 8. That the word "person," or "persons," whenever used in this act shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State or the laws of any foreign country. Approved, July 2, 1890. 93. FEDERAL CONTROL OP TRUSTS. How far shall the Federal Government go in regulating trusts by carrying out the principles of the Sherman Actf That it has al- ready gone a great way and will in the future go further, is the view expressed in the following paper read by Mr. Tolcott Williams before the American Academy of Political and Social Science in 1908: A railroad corporation is regulated by the Federal Govern- ment, primarily not because it is engaged in interstate com- merce but because the regulation of interstate commerce is the national duty of Congress. It is not the relation of the railroad to this commerce which brings into action the Federal Government; but the relation of the Federal Government to interstate commerce which brings the railroad under federal regulation. Any other corporation which enters interstate commerce to an extent which renders its regulation neces- ,sary to the regulation of interstate commerce will for the same reason come under the scope and sweep of federal power. . . . This deep and assured conviction that Congress would finally legislate upon the great corporations and combina- tions, I found pervaded the conference on trusts called at Chicago in the last week of October by the National Civic Federation, to my connection with which I owe my presence on this platform, attending it as I did as a delegate from this state appointed by the governor. Possessing no substan- tive powers and in none of the customary or organic senses of the word representative, it included delegates appointed by the chief executive of most of the states in the Union REGULATION OF COMMERCE 493 interested in the subject, state officers and the counsel of the federal government engaged in the regulation of railroads and the prosecution of trusts, the counsel of many of the larger railroads and corporations, and delegates from the trade combinations, like the National Druggists' Association and labor unions, including the American Federation of Labor and various farmers' organizations. Such a body represents without being representative. Such a body, hav- ing no legislative responsibility and no party responsibility met for opinion and not for action, is, as every journalist comes to know, a better gauge of public sentiment at any given moment than bodies of real power and actual impor- tance. Having to act, these latter and their members must be careful of expression; but a conference like that which met in Chicago reflects and mirrors with great accuracy the average and widespread opinion of the day, before it crystallizes into law, when all can see the record and ex- pression of authoritative public opinion finally expressed in statutory form. No one could be a member of this body, meet its member- ship, share its deliberations and share in the work of secur- ing an unanimous expression of opinion from its diverse membership, without securing an invaluable impression of floating opinion. Such a conference, if its members come to a common opinion, expresses exactly and accurately what people would like to have, before the bulky cumberous and official action of national parties and the national legislature has acted and enacted law. The Chicago Conference on Combinations and Trusts of the National Civic Federation made perfectly clear what I believe is the settled purpose and resolution of the American people, that there shall be no combination without regulation. The decision of the Supreme Court on the Boycott in the Danbury hat case has put this popular resolution into judicial form, and the support and approval given this decision and the widespread opposition to any proposed legislation modify- ing or seeming to modify this decision shows how near it 494 EEADINGS IN CIVIL GOVERNMENT is to public conviction. Whether in capital or labor, whether in railroads or industrial corporations, whether in distribut- ing agencies, trade associations like the druggists' or fanners' association, combination without regulation will not be per- mitted by the American people. Combinations, to any size, any extent and any purpose not prohibited by law, the Amer- ican will accept. The mere size of anything never daunts him. He is used to big things. But combination which is not regulated he will not permit. The real choice is not whether there shall be regulation or not; but whether this regulation shall be by and through a criminal statute, the Sherman Anti-Trust Act of 1890, or through administrative regulation and supervision. The whole body of combina- tions, railroad and industrial, of labor and of farmer, of wholesaler and retailer, have no choice between regulation or not; but between the drastic operation of the criminal courts through this federal law and similar state statutes or reports to and supervision by orderly civil machinery. One or the other there will be, because combination without regu- lation our people and public will not permit. . . . The act of 1890, the Sherman Anti-Trust Act, is but one of a network of legislation covering all our states. Of vary- ing character these laws and the decisions and prosecutions over them have extended, as already shown, to every branch of trade. Little of what the common law permitted in com- bination in restraint of trade is left. How much even this was, the wise man will not too strictly define. What the cankerworm of federal law and its interpretation and ad min- istration has not destroyed, the caterpillar in the branching tree of state jurisdiction has eaten. If a combination in re- straint of trade lives at peace in this country, it is not without apprehension, and those called to a close acquaintance with the managers and the counsel of our great combinations in industry and transportation, know best their manifold anx- iety. I speak with knowledge when I record that in the past five years, the great and most conspicuous corporations in both fields, in and out of interstate commerce, have been REGULATION OF COMMERCE 495 solemnly advised that past decisions, state and federal, have only to be pushed to their full legitimate logical conclusion to challenge the security of any corporate combination from the United States Steel Corporation and the Pennsylvania Railroad down. No such "badge of sufferance" has ever been imposed by law on capital in modern history since the Jew was baited from York to Venice, by Plantagenet and Doge alike. Not in our history has there been on any sub- ject of mingled moral and economic, social and legal relations such general unanimous and universal exercise of the law- making, judicial and law-enforcing power since the legisla- tion from 1820 to 1860 on chattel slavery, and this was di- vided into two opposing purposes North and South. The national resolution that there shall be no combination with- out regulation enters every state, [and] controls federal laws, decisions and prosecutions. . . . It is a matter of common knowledge, that in the period of development in railroads, industries and distribution after the Civil War, from 1865 to 1881, when the first agitation began, railroads, without challenge, granted rebates, discriminated in rates, agreed on rate sheets and pooled their receipts, manu- facturers combined on prices and divided territory, whole- salers and retailers united to preserve the margin between wholesale and retail prices and refused goods to those who broke scheduled prices. These were all openly and publicly done for a score of years. These acts and this policy were accepted by the public. The records of more than one of our great corporations will show that counsel advised that these practices were legal. At least one railroad, a party to the notorious contract on oil freights with the Southern Improve- ment Company, was advised by its solicitor on that contract that it had a right to sell its transportation at different rates to different customers as freely "as a grocer sells sugar at different prices/' The whole range of methods now con- demned and prosecuted was accepted without interference by courts or legislatures for years. One reason for the extreme bitterness among capitalists over sixty years of age is that 496 READINGS IN CIVIL GOVERNMENT they find themselves pilloried and prosecuted for acts once the accepted path to railroad profits and business success. The prospect that the United States would reach the con- clusion and conviction on all these issues, to-day established in English law was, up to thirty years ago, stronger in this country than in England. . . . It is the fashion to treat the Sherman Anti-Trust Act of 1890 as if it were sporadic, passed without knowledge or con- sciousness of its scope and sweep. If this means that in 1890 no one expected to see railroad and industrial corporations which had been growing in power and might for twenty-five years, since the Civil War, brought under an absolute control which has shocked European and English financial opinion by its relentless penalties, this is perfectly true; but if any one imagines that this act did not respond to and express a national purpose as wide, deep and persistent as any in our history, he misreads the record. If the Sherman Act had been a mere accident, running counter to the deeper national pur- pose, the courts would have minimized it, as our courts have so often dealt with the legislative vagary of the day ; but as all know the crucial decisions on this and like laws by courts of last resort, at Washington and elsewhere, have had the precise quality that the law (up to the decision carrying a step farther the regulation or prohibition of competition de- stroying combination), had been such as to leave the court open to go either way. Uniformly, the corporation view has lost. This common action in both fields of our complex system and through the triple instrumentalities of each, never takes place and never can take place, unless something more fun- damental than opinion or even law is at work a primal na- tional instinct. When the National Civic Federation called its first confer- ence on trusts in 1903, it was impossible to secure from that gathering any common action. No resolutions were passed, because the general national purpose was not yet clear. The conference which met last October at Chicago was precisely such a body as might have been expected to break up again REGULATION OF COMMERCE 497 without result. It was heterogeneous, it had no common pur- pose of standard, and at heart half of its members had strong personal interests, through their connection with railroads, trusts, unions, granges, commercial associations and federal and state governments. If this body reached a common con- clusion, it is because the popular will is now clear as to the regulation of combination. The only error was in not seeing how universal and without exceptions their purpose was. It was generally accepted, and the committee on resolutions in- cluded men in each category mentioned, that railroad combina- tions could be permitted under the supervision of the Interstate Commerce Commission, that the great industrial corporations, ' ' Trusts, ' ' must be classified, and such as affected interstate commerce so as to affect its federal regulation must pass under the supervision of the Federal Bureau of Corpora- tions, that commercial associations, maintaining wholesale and retail discounts, must be given the common law rights vouch- safed them in the past, before the Sherman and state acts treated the protection of discounts as a restraint of trade, and that unions and granges, since they were not organized for profit, should be permitted combination in interstate com- merce without regulation and supervision. 94. THE ANTI-TRUST ACTS OF 1914. In 1911 the Supreme Court ordered the dissolution of the Stand- ard Oil and American Tobacco Trusts. But it soon became ap- parent that the public would gain no advantage from this victory unless some supervisory authority should prevent secret under- standings and unfair practices and secure real competition be- tween the companies into which these trusts had resolved them- selves. To accomplish this purpose Congress has enacted the two laws here outlined by Professor Henry R. Seager : (1915) The principal provisions of the Trade Commission Act are : (1) A Federal Trade Commission of five members, each to serve seven years at an annual salary of $10,000, is created to supersede the Bureau of Corporations. (2) " Unfair methods of competition in commerce are de- clared unlawful." 498 READINGS IN CIVIL GOVERNMENT (3) Prevention of such methods is made a chief task of the Trade Commission, which is empowered, when convinced that unfair methods are being used, and "that a proceeding by it in respect thereof would be in the interest of the public," to serve a complaint, hold a hearing, and order their discontinu- ance. If this order be not complied with, the Commission has power to appeal to a circuit court of appeals for an injunc- tion. This court reviews the case, limited as regards questions of fact by the provision that "the findings of the commission as to the facts, if supported by testimony, shall be conclusive." (4) The Commission is given power to investigate corpora- tions engaged in interstate commerce, other than banks and common carriers. (5) It may require from them annual or special reports and other information. (6) On its own motion, or at the request of the attorney general, it may investigate the manner in which decrees af- fecting industrial combinations are being carried out, and make public its findings, if it deems this wise. (7) It may investigate any alleged violation of the anti- trust acts upon the direction of the President or either house of Congress. (8) On the application of the attorney-general, it is re- quired to investigate practices or arrangements not in con- formity with the anti-trust acts, and to recommend readjust- ments which will bring about such conformity. (9) It is to make annual and other reports, holding invio- late, however, trade secrets and the names of customers. (10) It is to classify corporations and make rules and regu- lations for the carrying out of the act. (11) It is to investigate trade relations with foreign coun- tries. (12) On the request of a federal court, it is to act as mas- ter in chancery in advising as to the form which decrees of the court relating to industrial combinations should take, the ac- ceptance of such advice being, of course, discretionary on the part of the court asking for it. KEGULATION OF COMMERCE 499 (13) To accomplish these purposes the Commission is given full authority to secure by subpoena all necessary information, documents, testimony, etc., the penalty for failure to supply information or for destroying records being fines of from $1,000 to $5,000, and for delay in supplying information after thirty days ' notice, $100 a day for each day that the informa- tion is withheld. (14) Special penalties are provided for employees of the Commission who are guilty of giving out unauthorized infor- mation. The dominant note of this measure, therefore, is prevention rather than punishment. The Trade Commission is to inves- tigate and, by its own reports and the reports required from the industrial combinations under its jurisdiction, secure the publicity which many students of the problem believe will by itself put an end to dubious and unlawful practices. It is to co-operate with the attorney-general and the courts in securing and maintaining compliance with the requirements of the law. On its own initiative it is to determine when unfair methods are being used, and order their discontinuance. To make clear that this part of its work is preventive rather than puni- tive, the injunction is relied upon as the sole means of en- forcing orders of penalties in cases where its orders are dis- regarded and the offenders are adjudged guilty of contempt. The Clayton Act "an act to supplement existing laws against unlawful restraints and monopolies and for other pur- poses" is, by contrast, a penal measure. Made up as it is of material drawn from four or five bills that were at one time under consideration in different committees of Congress, it lacks the simplicity and unity of the Trade Commission Act. Its principal provisions are: (1) Price discriminations in connection with interstate com- merce are declared to be unlawful, "where the effect of such discrimination may be to substantially lessen competition or tend to create a monopoly. ' ' Provisos permit differences based on grade, quality, or the quantity sold, on the cost of selling or transportation, or when "made in good faith to meet com- 500 READINGS IN CIVIL GOVERNMENT petition." Also, the prohibition is declared not to prevent the selection of customers "in bona fide transactions, and not in restraint of trade." (2) Exclusive selling or leasing contracts, whether of patented or unpatented articles, whose effect may be to ' ' sub- stantially lessen competition or tend to create a monopoly" are also declared unlawful. (3) Damages due to acts in violation of these prohibitions, as well as the other prohibitions of the anti-trust acts, may be sued for and recovered threefold. (4) Final judgments or decrees in government suits under the anti-trust acts are made, under certain limitations, prima facie evidence in private suits, exception being made of con- sent judgments or decrees. (5) It is declared "that the labor of a human being is not a commodity or article of commerce" and that nothing contained in the anti-trust laws shall be construed to for- bid the existence and operation of labor, agricultural or horti- cultural organizations instituted for the purposes of mutual help, and not having capital stock or conducted for profit, (sic} or to forbid or restrain the individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations or the members thereof be held or con- strued to be illegal combinations or conspiracies in restraint of trade under the anti-trust laws. (6) The acquisition of stock in one corporation by another, or the combination of two or more corporations through stock- ownership, where the effect "may be substantially to lessen competition ... to restrain . . . commerce . . . or tend to create a monopoly," is prohibited. Provisos limit the application of this regulation in the case of common car- riers developing branch lines, of subsidiary companies, etc., and exclude existing corporate relations. (7) Somewhat complicated limitations are imposed upon in- terlocking directorates. The provision relating to industrial combinations prohibits any person, after two years from the approval of the act, from being a director in two or more cor- porations, any one of which has a capital of a million dollars REGULATION OF COMMERCE 501 or more, provided that the business carried on by such cor- porations be of such a nature ' ' that the elimination of compe- tition by agreement between them would constitute a viola- tion" of the anti-trust laws. (8) The same procedure created for the enforcement of the unfair-competition provision of the Trade Commission Act is prescribed for the enforcement of the above provisions of the Clayton Act, it being clearly indicated that Congress looks to the Trade Commission to serve the same purpose in con- nection with industrial combinations as does the Interstate Commerce Commission in connection with common carriers, and the Federal Reserve Board in connection with banks. (9) Violations of any of the penal provisions of the anti- trust acts by a corporation is declared to be also violation by the individual directors, officers or agents who have authorized, ordered or done the acts constituting such violation, render- ing them liable to the familiar penalties of the Sherman Act. It is too early to judge of the extent to which this enumera- tion of acts which henceforth shall be unlawful in the Clayton Act has changed the existing law. It will be observed that in specifying offences great care has been taken to exclude acts of the same kind which are free from the objection of tending to restrain trade or create monopoly. It thus still rests with the courts, aided by the Trade Commission, to determine when price discriminations, exclusive contracts, interlocking direc- torates, etc., are in violation of the anti-trust acts. That such acts were already regarded under certain circumstances as involving violation of the Sherman Law is well known to every student of the decisions. The legislation has, therefore, merely enumerated as unlawful certain lines of conduct which, even before the act was passed, had come to be viewed as possible evidences of a criminal combination. Such enumeration serves at least one useful purpose. It makes clearer the obligation resting on business men to avoid entanglements which may lead them into violations of the law. That they may not dis- regard this obligation, the expert services of the Trade Com- mission are at the same time provided. The net results should 502 READINGS IN CIVIL GOVERNMENT be fuller compliance with the law and less occasion for prose- cutions under it. ADDITIONAL READINGS 1 The Interstate Commerce Clause, Pierce, F., Federal Usur- pation, 369-305. 2 The Regulation of Railroad Rates, Knapp, M. A., Pro- ceedings of the American Political Science Association, I, 199-206. 3 Federal Usurpation, Williams, J. S., Annals of the Ameri- can Academy of Political and Social Science, XXXII, 185-211. 4 Governmental Interference with Industrial Combinations, Whitney, E. B., Proceedings of the American Political Science Association, I. 184-99. CHAPTER XXII ELECTIONS 95. THE CITY THE BATTLE-GROUND OF DEMOCRACY. Two underlying causes of corrupt elections and misgovernment, the political boss and the special privilege seeker, are thus discussed by Mr. Horace E. Deming: The political forces that resist every advance toward the attainment of government accountable to the people governed and make for the establishment of a government in the inter- est of a privileged few are nowhere so active or so powerful as in the city. The city itself creates the economic conditions that give these forces full play. The urgent needs of the city's community-life for water, transportation, light, tele- phonic communication, and similar communal services can only be met through governmental action. The men engaged in supplying these services are necessarily in the most inti- mate and constant contact with the city government, while the business interests and occupations of the vast majority of men bring them but rarely if at all into conscious relation with the government of the city in which they live. On the one hand, the satisfaction of urgent community- needs has created a class of special businesses which are made profitable by influencing governmental action; on the other, is the great mass of the citizens to whom any special effort to reach or influence a city official involves business loss. The enjoyers of special privileges have been constantly watchful of the conduct of city government and constantly active in securing the election and appointment of public officials favor- able to their business plans. The general body of the citizens 503 504 READINGS IN CIVIL GOVERNMENT secure under the constitution in their personal and property rights and absorbed in business callings and occupations that neither need special assistance nor invite any interference from the city government, have paid, at most, only so much at- tention to it as voting for their regular party candidates on election day might require and, perhaps, at times contributing to their party's treasury. The exploiters of the need for transit, light, and other pub- lic services have found in each city a natural ally in every man who desired some selfish personal advantage from its gov- ernment. The domination of the state legislature over mu- nicipal affairs brings to the state capital the franchise seekers from every city, there to work in congenial and unwholesome fellowship with every other special interest in quest of legis- lative largesses. Neither is the hunter of governmental bounty unknown in Washington. His insidious influence has been felt in every department of our government. The same cause, hunger for the enormously valuable special privileges at the disposal of government under modern economic condi- tions, has been active in nation, state, and city. The privilege-seeker has pervaded our political life. For his own profit he has wilfully befouled the sources of political power. Politics, which should offer a career inspiring to the noblest thoughts and calling for the most patriotic efforts of which man is capable, he has, so far as he could, transformed into a series of sordid transactions between those who buy and those who sell governmental action. His success has depended upon hiding the methods by which he has gained his ends. All the forms through which the voters are accustomed to ex- ercise their rights have been strictly observed. Untroubled by conscientious scruples, consistently non-partisan, he has welcomed the support of every party and been prompt to re- ward the aid of any political manager. Step by step he gained control of the party machinery. His fellow citizens have been in profound ignorance that he named all the candi- dates among whom they made their futile choice on election day. ELECTIONS 505 For a long time our real government had not been the one described in constitution or statute ; our electoral methods had long ceased to furnish a genuine opportunity for the expres- sion of the popular will; the actual government had passed into the control of an elaborate feudal system with its lords and overlords, each with his retinue of followers and depend- ents, all supported at the expense of the public ; yet the peo- ple were quite unaware that the ancient methods upon which they relied in order to have an effective participation in the conduct of the government and to secure public officials re- sponsible to them and actively concerned to protect the com- mon interest and promote the common good were rapidly be- coming mere shams. In every department of human affairs requiring the exhibi- tion of skill, the expert, sooner or later, inevitably becomes prominent. There was an insistent demand for the expert of every grade from the highest to the lowest in an undertaking involving so much knowledge of human nature, such mastery of detail, so much persistence of effort, and such adroitness as the conduct of government by purchase under the guise of the government by the people. In response to this demand came the "Boss," the expert who attended to the infinite de- tails and complications of party management and organiza- tion and supplied the public officials and thereby the kind of government the privilege-seeker desired. The boss was a distinct advantage to the class that throve by government favors. His real occupation was unknown to the people, and if at first they did not welcome his appearance they thought him nevertheless the natural and perfectly legiti- mate outcome of their accustomed political methods, a leader whom they could displace when he lost their approval. They did not realize his ominous significance. Gradually it began to dawn upon them that they could neither select nor elect him ; that he was not a person, but a system. The individual might disappear or be displaced, but the boss always re- mained. Not until his sinister figure was appearing in city after city and state after state and even in the United States 506 READINGS IN CIVIL GOVERNMENT senate, not until there was overwhelming evidence of a hier- archy of bosses, big and little, did there begin to be a general awakening of the people to the existence of a system wholly mercenary, reared upon the greed for special privileges and the sale of such privilege by the skilful manipulators of the political party-organizations. The issue has now been fairly made up between Special Privilege and Democracy, between government by purchase and government by the people. The contest will be a long one. It has already taken many forms and will assume count- less more. Its crucial battles will be in the city, for there the struggle between privilege and the common good is most con- stant and most intense. It is in the city that the victory of the one side or the other will be most far reaching in its con- sequences, for nothing is more certain than that the over- whelming majority of the inhabitants of the United States will be city-dwellers. This is already true of the Eastern states. The triumph of privilege in the city will mean, there- fore, that the vast majority of the American people have been made the subjects of government by purchase. And it will mean much more. The increasing domination in state after state of the city "machines" over the state organization of political parties foreshadows the outcome in state and in nation. If the fight of the people to put down government by pur- chase masquerading in the forms of democracy can be won in the city and a government accountable to the people set up in its stead, democracy will triumph in state and nation. If the people lose their fight in the city, they will lose it in state and nation. The city is the battle-ground of democracy. 96. REFORM OF ELECTION LAWS. During the last twenty-five years the plan of nominating candi- dates by direct primary election has held a large place in the minds of reformers desirous of freeing elections from boss control. Never- theless primary elections, though tried in a number of States, have not proved entirely satisfactory, there being a number of points in ELECTIONS 507 regard to the method of conducting the election which still remain to be settled. 1 But in the following selection, Professor Merriam points out that, aside from the imperfections in the methods em- ployed, primary elections cannot be relied upon solely to eliminate the boss and restore popular control: A study of primary election legislation shows that the de- sired results cannot be obtained until other and important political changes have been made. Unless primary laws are accompanied or followed by other developments of the politi- cal situation, comparatively little will result from the move- ment. No friend of direct nomination should indulge the pleasant dream that the adoption of a law providing for such a system will, of itself, act as a cure for all the present-day party evils. Disillusionment and discouragement are certain to follow in the wake of any campaign conducted on such a theory. It is necessary to understand that the political con- ditions are far too serious and far too complicated to be cured by so simple a specific. In the first place, it is not likely that the direct nominating system will achieve its full results until the number of elec- tive officers is materially reduced. Where thirty or forty offices are to-be filled at one primary, it is not probable that an intelligent choice will be made from the great number of candidates presented. The variety of qualifications required for the several offices, the multiplicity of candidates clamor- ing for recognition, the obscurity of many of these candidates, the possibility of "deals" and "slates," make the likelihood of proper selection somewhat remote. It is not probable the result will be any worse than that obtained under the con- vention system, but, on the other hand, it is not likely to be very much better in the case of the minor offices. . . . This simplification of the machinery of government may most easily be made by eliminating administrative offices from the elective list. There can be no good reason why such offi- cers as auditor, engineer, and surveyor, should be elective. An auditor must be accurate and honest, and there is no such i See above, page 378. 508 READINGS IN CIVIL GOVERNMENT thing as Republican auditing or Democratic auditing. Nor is there a Republican way, or a Democratic way, or a Prohi- bitionist way of administering the office of engineer. Cer- tainly there can be no form of surveying that could be char- acterized as Socialistic or Democratic or Republican. The true principle is that the people should choose all offi- cers concerned with the formulation of public policies. They need not choose men engaged in the carrying out of policies. Policy-framing or legislation is a matter upon which there may be differences of opinion, and men intrusted with the work of drawing up such plans must be elected by, and be immediately responsible to, the people. Regarding the execu- tion of policies once enacted into law, there is less room for difference of opinion. The making of law is partisan, but the enforcement of law should be non-partisan. Laws should not be administered in a partisan way, but efficiently and justly. Administration requires technical skill, and partisanship is destructive to its best development. If any administrative offices are to be selected by popular vote, the number should be confined to the chief executive officers, such as the mayor and the governor. If these officers are chosen by the people and given the duty of selecting and supervising other public servants on the administrative staff, the result is certain to be a higher degree of popular control than is now generally secured. This principle has been es- tablished in the federal government from the beginning, is now being adopted in our municipal governments, and few new elective offices are being provided in state and county government. We are coming to realize that what is needed is popular control over policies, with non-partisan, skilled, and permanent administration of these policies. While in London in 1907, I was greatly interested to see that, although the Moderate party in the London County Council had just won a sweeping victory, which placed it in power for the first time in sixteen years, no changes were made in the administration. The offices and committees of the Council were reorganized to give the victorious party the majority necessary to execute ELECTIONS 509 its policies, but the public servants whose duty it is to execute the policy of the Council remained undisturbed. Such a change may be denounced as undemocratic in spirit and tendency, but on second thought it will be seen that in- stead of weakening popular control over government the re- sult will be to strengthen that control. A system that imposes upon the electorate the choice of a mass of officials strengthens the hands of partisan or private interests at the expense of the public. With a smaller number of elective officers, the re- sults obtained under the direct primary system would be far more satisfactory than they can be under existing conditions. Public attention could be focused upon a few offices and a few candidates with better prospects than at present for the elim- ination of the undesirable and the survival of the fittest. Un- til this is brought about, the success of the direct nominating system must be seriously menaced. Another essential change is the return to the original form of the Australian ballot. The party emblem, the party circle, and the party column have nothing to do with the Australian ballot, and were engrafted on the system by American legisla- tures. In adopting the system, secrecy of the ballot was se- cured, but the party obtained the advantage of arranging party candidates in columns and permitting the voter to select a list of candidates by marking in the party circle. This me- chanical arrangement places a premium upon undiscriminat- ing voting, and often results in the election of unworthy and unfit candidates by sheer advantage of position upon the bal- lot. If the head of the ticket is elected, the others are likely to be carried along with the leader, regardless of their own merits. Fortunately this plan has not been applied to the conduct of nominating elections, where voting an organization slate with one mark might have worked great damage ; but the fact that this practice prevails in the regular elections throws its shadow back over the primaries. The knowledge that can- didates, when nominated, will be placed under the protection of the emblem or the circle makes the party, especially in dis- tricts where it is strongly in the majority, less careful in its 510 READINGS IN CIVIL GOVERNMENT choice of candidates than would otherwise be the case. It is only human nature to be less studious of the public wishes in a situation where a nomination is equivalent to an election, and where defeat even of the unworthy is a remote possibility. Ballot reform is, therefore, a necessary accompaniment of primary reform. The ballot in the regular election should be made up in the same form as the ballot in the primary elec- tion, with the party designation placed after the name of the candidate. Another requisite to the complete success of the direct nom- inating plan is the further extension and enforcement of the merit system. As long as an army of officials can be thrown into the field in support of a particular "slate," it will be difficult for the candidate, not so supported, to succeed. The odds are too greatly in favor of the regular army against the unorganized and undisciplined volunteers. Occasionally victory may perch on the banners of the straggling group of reformers and "antis," but habitually will rest upon the side of the well-disciplined army of office-holders. The honest and intelligent application of the merit principle to administrative appointments reduces the number of workers under the con- trol of a faction, and makes the support of the " slate'* far less formidable. If the group in power centers around some principle or policy, it will continue to be powerful and effec- tive in the primaries, even under the merit system ; but if the chief element of cohesion was public office, it will be far less vigorous than before. Patronage is not only the force that holds an organization together, but it is the strongest single element, and no practical politician is ever guilty of despising the power of appointing men to, and removing them from, office. There are, of course, many exceptions, but the general practice is for the appointing power to control the political activity of the appointee. When the office is obtained by merit, however, and not by favor, this sense of obligation on the part of the officer and of power on the part of the party ruler ceases. Hence the mobilization of an army for effective use in a primary campaign becomes far more difficult, and the ELECTIONS 511 opportunities for success on the part of the opposition cor- respondingly greater. To the extent that the merit system is not rigidly carried out, the effects, just indicated, do not fol- low. In any event, it is not to be presumed that civil service reform is a panacea. It is merely a palliative. It will ma- terially help, but cannot be relied upon to accomplish a com- plete cure for our political ills. The merit system merely abolishes the feudal tenure under which many officers now hold, and the obligations of service incident to that relation- ship. It will remove one handicap to an even race between candidates for a nomination. It is a serious question whether public appropriation should not be made to defray a part of the expenses of candidates in primaries. Already in most states all of the cost of the pri- mary election itself is paid from the public treasury. The payment of election judges, the printing and distribution of ballots and booths, the rent of polling-places, and other simi- lar expenditures incident to holding a primary are usually met from the public funds, although at the outset all such charges were covered by party assessments upon candidates. The government might also undertake to place in the hands of every voter in the given district a brief statement regarding the record and platform of each candidate. Such statements, prepared by the candidates' friends or critics, might be bound together and sent to every member of the party in the con- stituency interested. The expense would not be great, while the educational value to the public would warrant an appro- priation for the purpose. At any rate, the government might defray the cost of distributing such material. It might also be possible to allow candidates the use of certain public build- ings, such as schoolhouses, or perhaps to secure other meeting- places and permit their use by the several contestants. There is serious danger that under the present system the man with- out large means may find it almost impossible to enter the primary lists, or that he may incur obligations of a character that may interfere with his usefulness to the public. The candidate should not be subjected to the temptation of mort- 512 READINGS IN CIVIL GOVERNMENT gaging his future political conduct for the sake of securing the necessary campaign fund. After all such remedies have been considered, it is clear that no readjustment of the political machinery can be relied upon to produce ideal political conditions. It is a common American fallacy to conclude that when a constitutional amendment, or a statute, or a charter is secured the victory has been won and that the patriotic citizen may go back to the neglected plow. It is easier to secure ten men to fight desperately for good legislation than one who will tight stead- ily and consistently for efficient administration. Every stu- dent of politics knows, however, that there is no automatic device that will secure smoothly running self-government while the people sleep. Perpetual motion and automatic de- mocracy are equally visionary and impossible. The governor gauges the pressure of public interest and regulates his con- duct accordingly. The level of politics is in the long run the level of public interest in men and affairs political. Under any system the largest group of interested and active citizens will determine public policies, and will select the persons to formulate and administer them. The uninterested, or the spasmodically interested, the inactive and the irregularly ac- tive, will be the governed, not the governors. Neither primary legislation nor any other type of legisla- tion can change this situation. We may make it easier for the people to express their will ; we may simplify the government and render it more clearly and directly responsible, but this alone will not insure the desired result. We may remove ob- structions and hindrances and facilitate popular control, but we cannot do more. The direct primary system is, therefore, to be regarded as an opportunity, not as a result. It signifies the opening of a broad avenue of approach to democracy in party affairs, but not the attainment of the goal. ELECTIONS 513 97. THE CORRUPT PRACTICES LAW OF CONNECTICUT. One method of purifying elections and securing good government is to enact rigid laws prohibiting bribery and other corrupt prac- tices and prescribing the amount of and purposes for which money may be spent in connection with elections. The first law of this character adopted by any of the States was that of New York, passed in 1890. Since then at least twenty States have adopted more or less similar laws. The following extracts from the law of Connecticut enacted in 1909 sufficiently illustrate the character of this legislation: Sec. 2. The term "political committee" shall include every committee or combination of three or more persons to aid or promote the success or defeat of any political party or princi- ple in any election or to aid or to take part in the nomination or election of any candidate for public office. The term "treasurer" shall include all persons appointed by any politi- cal committee to receive or disburse moneys to aid or promote the success or defeat of any such party, principle, or candi- date. The term "political agent" shall include all persons appointed by any candidate, before any such election, caucus, or primary election, to assist him in his candidacy. No per- son shall act as any such treasurer or political agent unless, after his appointment and before the caucus, primary, or election for which he is appointed, a writing designating him as such treasurer or political agent shall be filed with the sec- retary of the state. . . . Sec. 3. Any person nominated as a candidate for public office, or a candidate for such nomination, may make a volun- tary payment of money to any treasurer or political agent for any of the purposes permitted by this act ; provided, however, that no person other than such a candidate shall, to promote the success or defeat of any political party or principle, or of any candidate for public office, or of any candidate for any nomination, within six months prior to any such election, make a contribution of money or property, or incur any liability, or promise any valuable thing to any person other than to a treasurer or political agent. Nothing contained in this act 33 514 READINGS IN CIVIL GOVERNMENT shall limit or affect the right of any person to expend money for proper legal expenses in maintaining or contesting the results of any election. Sec. 4. No person other than a treasurer or political agent shall pay any of the expenses of any election, caucus, or pri- mary election, except that a candidate may pay his own ex- penses for postage, telegrams, telephoning, stationery, print- ing, the advertising in or distribution of newspapers being excepted, expressage, and traveling ; but the provisions of this section shall not apply to non-partisan election and ante-elec- tion expenses paid out of the public moneys of the state or of any town, city, or other municipality. No contributions or payments or favors of any kind shall be made or offered by, or solicited from any private corporation or any judicial offi- cer, except judges of probate and justices of the peace, to pro- mote the success or defeat of any candidate for public office or of any political party or principle, or for any other political purpose whatever. Sec. 5. It shall be lawful for any treasurer or political agent, in connection with any election, caucus, or primary election, to pay the following expenses: (a) Of hiring public halls and music for political meetings, furnishing music, uniforms, ban- ners, or fireworks for political clubs or public parades, and advertising such meetings or parades; (b) of printing and cir- culating political newspapers, pamphlets, and books; (c) of printing and distributing ballots and pasters; (d) of renting rooms to be used by political committees; (e) of compensating clerks and other persons employed in committee rooms and at the polls, and of furnishing reasonable entertainment to such persons necessarily employed in committee rooms and at the polls, and to members of political committees of the same political party to which such political agent or treasurer shall belong; provided, however, that the word " entertainment" shall not be construed to include alcoholic or intoxicating bev- erages; (f) for the travel of political agents, committees, and public speakers and reasonable compensation to public speak- ers; (g) of necessary postage, telegrams, telephoning, print- ELECTIONS 515 ing, and expense charges; (h) of preparing, circulating, and filing petitions for nomination; (i) of conveyance of electors to the polls. No treasurer, candidate, or political agent shall incur any expense or liability or make any payment for any purpose not authorized by this act, and every liability in- curred and payment made shall be at a rate which is proper and reasonable and fairly commensurate with the service ren- dered. Sec. 6. Within fifteen days after any such election, every treasurer and every political agent shall file an itemized sworn statement with the officer with whom his designation was filed as aforesaid, which statement shall include the amount of money or property in each case received or prom- ised, the name of the person from whom it was received or by whom it was promised, the amount of every expenditure made or liability incurred, and the name of the person to whom such expenditure or promise was made, and shall clearly state the purpose for which such money or property was so ex- pended or promised, separating the expenditures for caucuses, primaries, and elections. If any money or property has been received from or has been paid, given, or promised to or by any person who was a candidate for any office, or a political treasurer, the title of the office which said person holds or for which he was a candidate shall be plainly given in the state- ment hereinbefore provided for. Any treasurer or political agent who shall fail to file such statement within the time re- quired shall be fined twenty-five dollars for each day on which he is in default, unless he shall be excused by the court. Twenty days after any election the secretary of the state or the town clerk, as the case may be, shall notify the proper prosecuting officer of any failure on the part of any treasurer or political agent to file such statement, and within ten days thereafter such prosecuting officer shall proceed to prosecute for such offense. . . . Sec. 9. The following persons shall be guilty of corrupt practices and shall be punished in accordance with the pro- visions of this act: (a) Every person who shall, directly or 516 READINGS IN CIVIL GOVERNMENT indirectly, by himself or by another, give or offer or promise to any person any money, gift, advantage, preferment, enter- tainment, aid, emolument, or any valuable thing whatever for the purpose of inducing or procuring any person to vote or refrain from voting for or against any person or for or against any measure at any election, caucus, convention, primary elec- tion, or general assembly; (b) every person who shall, directly or indirectly, receive, accept, request, or solicit from any per- son, committee, association, organization or corporation, any money, gift, advantage, preferment, aid, emolument, or any valuable thing whatever, for the purpose of inducing or pro- curing any person to vote or refrain from voting for or against any person or for or against any measure at any such election, caucus, primary election, or general assembly; (c) every person who, in consideration of any money, gift, advantage, preferment, aid, emolument, or any valua- ble thing whatever, paid, received, accepted, or prom- ised to the advantage of himself or any other person, shall vote or refrain from voting for or against any person or for or against any measure at any such election, caucus, or pri- mary election; (d) every person, other than the political com- mittees known as the national congressional, state, town, city, ward, and borough committees, who shall solicit from any can- didate for the office of elector of president and vice-president of the United States, of senator of the United States, of rep- resentative in congress, or of any state, county, probate, town, city, ward, borough, or school- district office, any money, gift, contribution, emolument, or other valuable thing for the pur- pose of using the same for the support, assistance, benefit, or expenses of any club, company, or organization, or for the purpose of defraying the cost or expenses of any political cam- paign or election; (e) every person who shall, directly or in- directly, pay, give, contribute, or promise any money or other valuable thing to defray or toward defraying the cost or ex- penses of any campaign or election to any person, commit- tee, company, club, organization, or association, other than to ELECTIONS 517 a treasurer or a political agent, but this provision shall not apply to any expenses for postage, telegrams, telephoning, stationery, printing, expressage, or traveling incurred by any candidate for office or for nomination thereto, so far as may be permitted under the provisions of this act; (f) every person who, in order to secure or promote his own nomina- tion or election as a candidate for public office, or that of any other person, shall, directly or indirectly, promise to appoint, or promise to secure or assist in securing the ap- pointment, nomination or election of any other person to any public position, or to any position of honor, trust, or emolument; provided, however, that any person may publicly announce his own choice or purpose in relation to any ap- pointment, nomination, or election in which he may be called to take part, if he shall be nominated for or elected to any public office; (g) every person who shall, directly or indi- rectly, by himself or through another person, make a pay- ment or promise of payment to a treasurer or political agent in any other name than his own, and every treasurer or po- litical agent who shall knowingly receive a payment or prom- ise of payment, or enter or cause the same to be entered in his accounts in any other name than that of the person by whom such payment or promise of payment is made; (h) every per- son who shall violate any of the provisions of section three, four, or five, of this act. Sec. 10. Every person who shall violate any of the pro- visions of this act, for the violation of which no other penalty is provided, or who shall be guilty of any corrupt practice, shall be fined not more than one thousand dollars, or impris- oned not more than two years, or both; provided, however, that this section shall not apply to violations of any of the provisions of section seven or section eight of this act. Any person who, whether officially or otherwise, donates or uses any money or other valuable thing belonging to a private corporation, for political purposes, or as director or stockholder votes for or sanctions such donation, shall be fined not more 518 HEADINGS IN CIVIL GOVERNMENT than one thousand dollars, or imprisoned not more than one year, or both. . . . Approved, August 25, 1909. 98. REPRESSION OP POLITICAL CORRUPTION. Although a considerable number of States have enacted corrupt practices acts it is the candid opinion of a careful student of the subject that these "laws have been largely dead letter laws on the statute book." J The obstacles in the way of the enforcement of laws against bribery and corruption, together with the methods by which these obstacles may be overcome are thus stated by Mr. Francis E. McGovern: [1907]. In the work of putting corruptionists behind prison bars the first and most indispensable requirement is an honest grand jury. Without the assistance of such an agency po- litical corruption has nowhere been successfully exposed. Whether in St. Louis, Minneapolis, Milwaukee, Grand Rapids, Green Bay, Boston, Buffalo, Pittsburg, Harrisburg or San Francisco, the story is everywhere the same. Whatever in this respect has been done anywhere, the grand jury has ac- complished. Nor is the reason why this should be so difficult to perceive. Wherever criminal actions may be begun by the filing of in- formations as well as by indictments, as is the rule now in many States, the prosecution of ordinary crimes does not re- quire the intervention of a grand jury. In larceny, embez- zlement, burglary and murder, in addition to the public wrong which constitutes the gist of the offense, there is also a private injury, peculiar to the person whose property has been stolen or embezzled, whose house has been broken into, or whose relative has been killed, as the case may be ; and as a rule the one who suffers this private injury will see to it that the ma- chinery of justice is set in motion and the crime punished. This is not so, however, in the case of bribery and other offenses involving corrupt conduct upon the part of public i Proceedings of the American Political Science Association, II, 171. ELECTIONS 519 officials. Here no one in particular suffers an injury peculiar to himself or different from that sustained in common by all persons living in the same community. The injury is inflicted upon the community as a whole; and here as elsewhere, the maxim holds true : ' ' What is every one 's business is no one 's business." No one as a rule is willing to take upon his own shoulders the responsibility of beginning the prosecution of such a crime. To start the wheels of justice moving some one or some body of men who represent the interest and the welfare of the entire community must act. The grand jury, an institution more venerable than the common law, as old, indeed, almost as civilization itself, is the means provided for the discovery of this species of crime. Through the grand jury the law of the State speaks in the name of the whole people, impartially denouncing crime wherever it may be found, vindicating innocence wherever it exists and de- fending liberties of the people from all unjust attack. Not only is the grand jury charged with the special duty of accusing those who have directly wronged the public, but it also has at its disposal the means for properly accomplish- ing this work. Without stating its reasons or outlining its purposes, it may compel the attendance of witnesses and the production of books and documents. It meets in secret and usually enjoins secrecy also upon all who appear to testify before it. Thus its action cannot easily be anticipated, in- fluenced, forestalled or frustrated, as proceedings before an examining magistrate may be ; for secrecy of procedure is the one essential prerequisite to the obtaining of legal evidence of this species of crime. Second only in importance to the employment of grand juries as a legal agency for the repression of political corrup- tion is the assistance furnished by immunity laws. Such statutes have been devised as substitutes for the constitutional privilege against compulsory self-incrimination, and while fulfilling this legal requirement also compel the disclosure of evidence of crime which otherwise would go unpunished. Bribery, which is far the most frequent offense involving 520 READINGS IN CIVIL GOVERNMENT political corruption, is essentially a crime of darkness. As a rule but two persons have knowledge of it, the bribe-giver and the bribe-taker. Of disinterested spectators there are none. Instead, the parties to a bribery transaction contrive to meet in secret, there arrange the details of their compact in private and leave behind no record or memorandum of it. Each is equally guilty, and each has the strongest motive, therefore, for concealing the crime. In the absence of an im- munity statute, for either to disclose the transaction may result in his own prosecution ; for in such case his admission of guilt can be used against him, while as to his partner in crime it would be mere hearsay, not evidence. Under these circumstances the punishment of this and kindred offenses has often been placed practically beyond the power of the law. To meet this situation and to enable those charged with the enforcement of penal statutes to cope with crime of the sort here under consideration, immunity laws have been enacted. If it be said that it is unjust that bribe-givers should be permitted to go free while bribe-takers are sent to prison, or vice versa, the answer is, that it is better that one of two guilty persons should be given immunity than that both should escape prosecution, and a crime which strikes at the very foundation of free institutions should go entirely unwhipped of justice. Favoritism has no place in the administration of such a law and is not a constituent element of it. Like the principle of self-defense, the immunity idea is based on the law of necessity and can never be justifiably invoked where suffi- cient evidence may be obtained without resorting to it. In the practical administration of this law, those who first tender evidence of offenses, such as are here under consideration, will ordinarily receive immunity from prosecution for their part in the transaction, simply because their proffer is first in point of time. Should two witnesses to the same trans- action offer to turn State's evidence at the same time as has occurred, an interesting race for the grand jury room ELECTIONS 521 is assured. Even in such a case, however, no serious diffi- culty can arise. The principal offender should be prosecuted and his victim given immunity upon testifying as required by law. Nor will the fact that one of these persons is a bribe- giver and the other a bribe-taker be of any significance or assistance in solving the problem. In one case, the bribe- giver may be the chief offender, and the bribe-taker one who, though fairly honest, has been tempted beyond his power of resistance. In another case, the bribe-taker may be the prin- cipal felon and the bribe-giver a business man of ordinary honesty who submitted to the exactions of those in power very much as the solitary, unarmed traveler submits to the de- mands of a highwayman. Questions such as these afford no legitimate place for dogmatism or theorizing. Each case must be considered and dealt with upon its own peculiar facts and circumstances. Effective as the immunity law thus is as a weapon in the hands of those engaged in the prosecution of official mis- conduct, it is even more powerful as a preventive of this species of crime. Wherever a statute of this sort exists, every person who plans or contemplates the commission of bribery is charged with notice that as soon as he attempts to put his unlawful intention into execution he will have placed himself at the mercy of his accomplice, who may at any time safely turn about and expose him. This considera- tion alone justifies the enactment of immunity laws, and well illustrates in this modern field of jurisprudence the wisdom of the ancient maxim, "an ounce of prevention is worth a pound of cure." Provided with an honest grand jury and armed with an immunity law, any community can, if it will, root out and expose political corruption so far as legal agencies are capable of uncovering and arraigning at the bar of justice crime of any sort. But the conviction and punishment of those arraigned is a far more difficult task. This is so from the very nature of the case. In bribery, for example, the testimony of the accomplice or partner in 522 HEADINGS IN CIVIL GOVERNMENT crime, when clear and convincing is always sufficient for indictment, but may prove inadequate at the trial. The de- fendant, whether guilty or innocent, can, if he will, oppose his oath to that of his accuser as to eveiy material circum- stance in the case and summon to his assistance from among his friends the full complement of witnesses who will swear to his former good character and unspotted reputation. It is true that sometimes there may be additional corroborate > facts upon the side of the prosecution; but ordinarily tlu> case will go to the jury upon the oath of the State's principal witness, in opposition to that of the accused. The situation of this witness, moreover, is not above criticism, nor can his credibility be placed beyond question. Of necessity he is a self-confessed criminal, whom, if his testimony be true, the immunity law alone keeps outside of prison bars. Then, too, there are always the presumption as to the defendant's inno- cence and the burden of proof resting upon the State to establish his guilt beyond a reasonable doubt. Under these circumstances is it strange that in many cases where good peo- ple are well satisfied there was guilt there should be acquittals at the close of jury trials ? In such cases, however, the mere fact of prosecution is not without significance. Though ultimately unsuccessful a pub- lic trial may have accomplished all or nearly all that a con- viction could. Here the facts are laid bare beneath the eye of the whole community, and public opinion draws its infer- ences from such facts quite independently of the verdict of the twelve men who happened to sit as jurors in the case. And, after all, the breaking up of a vicious system and the elevation of the standard of official honesty, not the punishment of any man or set of men, are the important things. In like manner great good may be accomplished and a real victory for honest government won, wherever official miscon- duct is even fairly, impartially and fearlessly charged with crime. In a country such as ours, public opinion is unques- tionably a mighty force. Anything which goes to mold it by ELECTIONS 523 arousing public attention and directing public thought to specific wrongs which threaten the State, is of the highest significance and value. The average person, moreover, who commits bribery, or any of the crimes which involve political corruption, suffers quite as much punishment as a conviction can impose before his case is even called for trial. Exposure and disgrace, the deserved estrangement of old time friends, the inevitable and almost unconscious suspicion of even his nearest kindred, his own remorse, heightened and intensified a hundredfold because of an awakened public conscience these are the things, more than prison stripes, which strike deepest into the heart and most mortally wound the pride of the average man who has risen in business or official station sufficiently high to have an opportunity or a motive for the commission of this species of crime. I speak now, of course, only of those who, though guilty in fact, cannot be or have not been convicted. That there are many such no well informed person can doubt. Mani- festly the great danger here, however, is that innocent men may be unjustly accused under circumstances which make it very difficult, if not impossible, for them completely to vin- dicate themselves. In such cases great and even irreparable harm may be done. The only safeguard against this possi- bility is the exercise of caution and sound judgment, equal care at all times for the rights of the accused and the State, and the prosecution of no one for a merely technical offense in which there is not also moral turpitude. In the work of prosecuting these quasi-political offenders serious obstacles, of course, are encountered, at every turn. From the beginning to the end, not only of each case, but of each campaign against official dishonesty, they line the road at almost every point. First in order of treatment, though possibly not of impor- tance, is incompetence, timidity and disloyalty on the part of prosecuting officers. An illustration of what I mean was recently furnished in this State in a case where a district attorney was removed from office by the governor because of 524 HEADINGS IN CIVIL GOVERNMENT his refusal to prosecute indictments for bribery which had been returned by the grand jury of his county. Fortunately instances of this kind are rare. But when they occur the gravity of the situation needs no comment. If the man who must bear the chief burden of this work is not equipped or lacks relish for his task, little indeed can be expected in the way of accomplishment. Next and more important among these obstacles are weak and perverse juries, both grand and petit. Some trial juries seem to be immune to evidence of crimes involving official dis- honesty and refuse to convict no matter how overwhelming the proof of guilt may be. Not to be outdone, grand juries have likewise refused to indict, although abundant evidence to warrant such action was submitted to them. It is matin- of current history that the law relating to the manner of selecting grand jurors in this State was recently changed be- cause it was found, at least in some localities, that grand jurors selected in the old way by aldermen and supervisors would not do their duty. Unfit jurors are attributable principally to two causes; lack of care, judgment, honesty and discrimination upon the part of those who make up the lists and the disinclination of good men, when selected, to serve. The latter cause is con- stantly operative. It is a familiar scene upon the first day of each term of court to see the strongest and most capable men upon the panel file up, one at a time, before the judge to present their reasons, good, bad and indifferent, why they should be excused from jury duty, and to witness the best material thus melt away under the kindly, good-natured, and obliging disposition of the judge. The witnesses called by the prosecution in actions involving political corruption often sympathize more with the defense than with the State and their disposition whenever possible to suppress evidence, distort facts and suggest defensive mat- ter is another obstacle to the successful prosecution of this class of cases. At the trial it is not unusual indeed to find the State's principal witness in league with the accused and ELECTIONS 525 willing to tell the truth only so far as he may be compelled to do so under fear of prosecution for perjury. . . . Another obstacle to reform along the line here proposed is hostile public sentiment. All men are opposed to dishonesty in the abstract and are willing to applaud an assault upon it undertaken in another city, county or State. But it makes a world of difference whose ox is gored. Outside of St. Louis the whole country approved Mr. Folk's conduct as cir- cuit attorney; but had he, upon the record thus universally applauded, sought renomination and re-election to that office, it is safe to say that the voters of St. Louis would have over- whelmingly and enthusiastically defeated him. The treat- ment his candidacy for governor received there shows this. Mr. Henry once told a Los Angeles audience that when he was engaged in prosecuting timber and land thieves in Oregon he came to visit his old home in San Francisco and found the whole city back of him in his work. But when he came to San Francisco and began his campaign there against graft, only a divided city was back of him. And it is so everywhere. Reform of ourselves or of our city is seldom either pleasant or popular. Besides, to assail political corruption, no matter where, is to throw down the gauntlet to the most powerful political and financial influences. It is only natural that these forces should resist the assault with all the power at their command and should even assume the offensive and in turn make war upon the agencies of the law engaged in the task of enforcing its penalties against them. Thus, venal newspapers will be enlisted in the contest and an under- current of hostile sentiment will be started, which, sooner or later, will manifest itself in mistrials, perverse verdicts, adverse rulings by trial judges and indefensible decisions by courts of last resort. Notwithstanding all these difficulties, however, political cor- ruption may be repressed by legal means. Recent history proves this. To doubt that in the future this history will be repeated is to doubt the permanency of free institutions and the capacity of a free people for self-government. 526 EEADINGS IN CIVIL GOVERNMENT 99. THE RECALL. The following selection gives the section of the charter of Los Angeles providing for the recall. This device for checking the mis- government of elective officials before the expiration of the terms for which they are chosen has been twice successfully employed in that city. In the last instance, the mayor of the city, after more than two years of his term had expired was forced from office be- cause he was about to turn the board of public works, having in charge the construction of a twenty-five million dollar aqueduct, over to political henchmen, and was permitting corruptionist influ- ences to gain control of the city administration. About two weeks prior to the date set for the recall election the mayor resigned. The election was, however, carried to a completion and the reform can- didate successfully installed. The charter provides as follows: Sec. 198c. The holder of any elective office may be re- moved at any time by the electors qualified to vote for a suc- cessor of such incumbent. The procedure to effect the re- moval of an incumbent of an elective office shall be as follows : A petition signed by electors entitled to vote for a successor to the incumbent sought to be removed, equal in number to at least 25 per centum of the entire vote for all candid for the office, the incumbent of which is sought to be removed, cast at the last preceding general municipal election, demand- ing an election of a successor of the person sought to be removed, shall be filed with the City Clerk; provided, that the petition sent to the Council shall contain a general state- ment of the grounds for which the removal is sought. The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number. One of the signers of each such paper shall make oath before an officer competent to administer oaths, that the statements therein made are true, and that each signature to the paper appended is the genuine signature of the person whose name purports to be thereunto subscribed. Within ten days from the date of filing such petition the City Clerk shall examine and from the great register ascertain whether or not said petition is signed by ELECTIONS 527 the requisite number of qualified electors, and if necessary, the Council shall allow him extra help for that purpose, and he shall attach to said petition his certificate showing the result of said examination. If, by the Clerk's certificates the petition is shown to be insufficient it may be amended within ten days from the date of said certificate. The Clerk shall, within ten days after such amendment, make like examination of the amended petition, and if his certificate shall show the same to be insufficient, it shall be returned to the person filing the same, without prejudice, however, to the filing of a new petition to the same effect. If the petition shall be found to be sufficient the Clerk shall submit the same to the Council without delay. If the petition shall be found to be sufficient the City Council shall order, and fix a date for holding the said election, not less than thirty days nor more than forty days from the date of the Clerk's certificates to the Council that a sufficient petition is filed. The City Council shall make or cause to be made publica- tion of notice, and all arrangements for holding of such elec- tion; and the same shall be conducted, returned, and the result thereof declared, in all respects, as are other city elec- tions. The successor of any officer so removed shall hold office during the unexpired term of his predecessor. Any person sought to be removed may be a candidate to succeed himself, and, unless he requests otherwise, in writing, the Clerk shall place his name on the official ballot without nomination. In any such removal election, the candidate receiving the highest number of votes shall be declared elected. At such election if some other person than the incumbent receives the highest number of votes, the incumbent shall thereupon be deemed removed from the office upon qualification of his successor. In case the party who receives the highest number of votes should fail to qualify within ten days after receiving notifica- tion of election, the office shall be deemed vacant. If the in- cumbent receives the highest number of votes he shall con- tinue in office. 528 READINGS IN CIVIL GOVERNMENT ADDITIONAL READINGS 1 Party Finance, Macy, J., Party Organization and Ma- chinery, 218-29. 2 The Boss, The Party and The System, Howe, F. C., The City the Hope of Democracy, 92-112. 3 Party Methods, Shaw, A., Political Problems of American Development, 145-53. 4 Elections and their Machinery, Bryce, J., American Com- monwealth, II, 142-53. 5 The War Against Bossdom, Ibid., 166-74. 6 The Present State of the Ballot Laws in the United States, Luddington, A., American Political Science Review, III, 252-61. INDEX Abbott, L., 15. Agriculture, work of Department of, 403-405. Aldrich Act, 476. Amendment, of Articles of Con- federation, 39, 40, 43; of Fed- eral Constitution, 51, 70, 71; process of difficult, 54, 156; of State constitutions, 265, 266. Amidon, C. F., 69, 82. Anti-Federalists, oppose adoption of the Constitution, 44-46. Appeals, criminal, in the United States, 330; in England, 331. Apportionment of representatives, 148. Appropriations, national, method of making, 437, 439. Articles of Confederation, 31-39; defects in, 39-44, 46. Avery, B., 162. Babb, J. E., 320. Baldwin, S. E., 311. Ballot, the short, 384-391; the Australian, 509. Bank, central, plan of, 478-479; advantages of, 479-482. Bank currency, 473, 481. Bank of the United States, power of Congress to charter, 56, 57. Bank reserves, 471-473. Banking, national, 464, 468. Board of Estimates, municipal, 453. Bradford, G., 226. Braxton, A. C., 325. Cabinet, English, 150, 193, 194, 214. Cabinet government, 193, 194. Cabinet, organization of, 211-214; powers of, 214-218; relation of to Congress, 218-223, 226-228; to committees, 223-226; to the President, 227-228. Candidates, nomination of, 374; great numbers of, 371, 386, 388, 389, 507. Cannon, J. G., 169. Childs, R. S., 384. Choate, R., 247. Cities, powers of, 362; democracy in, 503. City Council, decline of, 349, 351- 353. Citizenship, definition of, 95, 96; rights of, under the Declaration of Independence, 97, under the 14th Amendment, 96, 100, 101- 105 ; protected by the States, 98- 100, 101, 102, by the Federal Government, 103-105; responsi- bility of, 126-128. Civil Rights Case, 101. Civil Service Commission, creation of, 234; twenty-fifth annual re- ^pprt of, 238. Civil Service Examinations, 234- 236. Civil Service, reform of, 233-234; classification of, 235. Clearing-house banks, 470. Clearing-house certificates, 470, 474. Bribery, difficulties of conviction Clinton, G., 44. for, 518, 521. Bryan, W. J., 26, 29. Bryce, J., 51, 61, 145, 170, 215, 261, 271, 273, 435. 529 Commerce, regulation of, 78, 79; national character of, 82-86; States not able to assume con- trol of, 86-88; States should 530 INDEX share in control of, 90-91; power to regulate interstate, 483-485, 492-497; control of State, 485-486. Commerce, Court of, recommend- ed, 499. Commission Government, in cities of Iowa, 356. Committee on Rules, of House, 133, 143; of Senate, 164. Committee on Ways and Means, 223, 435. Committees, of House, 145-148; of Senate, 162-166; relation of Congressional to heads of de- partments, 223-226. Commons, J. R., 21. Congress, powers of, 56-61 ; power of increasing, 74; danger of too great power of, 77-81 ; power of to regulate commerce, 484, 492-494. Congressional Government, 196. Conservation of resources, 407. Constitutional government, origin of, 10; meaning of, 11-15; dis- tinct from self-government, 19. Constitution, English, 62. Constitution, Federal, ratification of in New York, 44; amendment of, 51, 70, 71; amendment of difficult, 54, 156; construction of by Marshall, 56-61, 250-254; ? resent meaning of, 65-67, 69- 0; strict construction of, 67- 68, 76-81; loose construction of. 69-73, 82-87 ; fundamental character of, 245, 251, 252; power of courts to interpret, 253. Constitutions, State, history of, 261-265; amendment of, 265, 266; recent changes in, 265- 270. Constitutions, written and un- written, 52; danger of too rigid, 53-55; interpretation of the rigid, 61-65; interpretation of the written, 251, 252. Consular service, 408-409. Conventions, nominating, great number of, 374; management of, 376. Cooley, T. M., 67. Corporation tax, 426; advantages of, 427 ; methods of assessing, 428-433. Corporations, national character of, 84-85, 87; federal incorpora- tion of, 78, 79, 500-501 ; federal regulation of, 487, 490, 492, 494-497. Corrupt Practices Act of Connecti- cut, 513. Corruption, political, suppression of, 518-525. Courtesy of the Senate, 174, 178- 179. Court of commerce, recommended, 499-500. Court of customs appeals, estab- lished, 447. Court, Supreme, attitude of to- ward trusts, 493, 496 (see also Supreme Court). Courts, criminal, procedure of, in the United States, 228-232; in England, 232-234. Courts, independence of, 246; power of to declare acts un- constitutional, 244, 245, 250- 254; method of interpreting law, 255-258. Crawford, C. C., 105. Credit Currency, 473. Credit system, 467. Currency, elastic, 473, 481. Customs districts, 448. Customs duties, collection of, 448- 450; evasion of, 450-451 (see also Tariff). Dalzell, J., 136. Declaration of Independence, and self-government, 15-17; rights held under, 97. Deeming, H. K, 503. Democracy and Liberty, 310. Democracy and privilege, 506. Department, of Treasury, 219- 220; of Agriculture, 403-405. INDEX 531 Departments, heads of should have seats in Congress, 226- 232. Depositories, national, 475-476. Des Moines Plan of Government, 356. De Tocqueville, Alexis, 111. Dewey, D. R., 448. Direct legislation, value of, SOS- SOS, 309. Dodd, W. F., 265, 295. Dougherty, J. H., 184. Durand, E. D., 349. Election of judges, 312-314. Election of senators, attempts to change, 156-160; advantages of popular, 160-162. Elections, multiplicity of, 273- 275; primary, 378-384; reform of 507-512; regulation of in Connecticut, 513-517; in Los Angeles, 526; in Oregon, 118- 124. Elective officers, reduction of, 386- 391, 507-509; recall system for, 526. Electoral system, defects in, 184- 191. Electors, presidential, district sys- tem of choosing, 188; evils of the general ticket system of choosing, 189-191. Executive supremacy, federal, causes of, 196-200; significance of, 200-202. Extracdtion, 92-94. Fairlie, J. A., 202, 211, 232, 452. Federalism, present day, 77, 80. Federalist, The, 171, 243. Federalists, urge the adoption of the Constitution, 46-50. Filibuster, 137, 167. Finance, defects in congressional, 435-440; municipal, 452-455. Folk, J. W., 126. Forest service, 407-408. Fourteenth Amendment, 95, 96, 101, 113, 116. Franchise, municipal, taxation of, 456; value of, 459; sale of, 461. Franchise, public utilities, nature of, 278-279. Freeholder's Charter, 339, 340, 341, 342, 345, 348. Freund, E., 288. Functions of government, basis of, 397-398; essential and non- essential, 400. Gage, L., 464. Garner, J. W., 303, 328. Gerry, E., 222. Gibbon vs. Ogden, 483. Government, distinguished from state, 7 ; special training re- quired for, 305, 310; by igno- rant, danger of, 310; proper sphere of, 396-397; essential and non-essential functions of, 397-402. Government ownership, 409-410. Governors, State, extension of powers of, 263; administrative powers of, 266; legislative powers of, 266-268, 274; com- pared to the President, 271- 272; general powers of, 273. Habeas Corpus, writ of, origin, 105-109; Act of 1679, 109-110. Hamilton, A., 39, 41, 44, 46, 243. Harlan, J. M., 68. Hart, M. K.,_7. Haynes, G. H., J18, 156. Heads of DepaftnientSj- federal, president's control ov^r, ^207- 210; powers of, ^l 5-218; aH T mission to congress"" proposed in Washington's administration, 219-222; admission to Congress advocated, 226-231. Hepburn Act, 486. Herbert, H. A., 149. Hinds, A. C., 129. Hinsdale, M. L., 218. Home Rule, municipal, develop- ment of, 336-342; vs. State control, 343 ; constitutional provision for, in California, 339, 532 INDEX in Missouri, 339, in New York, 342; advantages of, 344-349; law providing for in Iowa, 356. House of Commons, 149. House of Representatives, debate in, 129-131, 144; rules of, 136- 144; committe s of, 145-148; compared to House of Commons, 149-154. Hughes, C. E., 26, 30. Implied powers, doctrine of, 55. Income tax, 433. Income tax amendment, 434. Incorporation, federal act for op- posed, 78, 79; federal, recom- mended, 500-501. Independent Treasury, evils of, 465, 466-469, 475. Initiative and Referendum, de- velopment of, 295-296; in Ore- gon, 120-123, 296-298; results of in Oregon, 298-303; failure of, 305-308; limitations of, 309. Interstate commerce, limited view of, 77-81, 89-91 ; broad view of, 82-88; power to regulate, 483- 485, 492-497, 499. Interstate Commerce Act of 1906, 486. Interstate Commerce Commission, enlarged, 490; appeals from, 497-498. Immunity laws, 519. Jefferson, T., 232. Judges, federal, term of, 243; du- ties of, 245-246; character of, 247-250. Judges, State, appointment of, 311; evils of election of, 312- 314; term of, 315-316; power of in criminal trials, 332. Judiciary, power of to interpret the Constitution, in the United States, 62; on the Continent, 63; character of, 243, 244. Jurors, selection of, 316, 317; in- struction of, 318. Jury duty, desertion of, 321-323. Jury trial, description of, 316- 319; constitutional provision for, 320; defects in, 320 defects in civil, 325-328; delays in criminal, 328-329. Landon, J., 44. Law, delays of, 328-329, 333. Laws, courts to decide constitu- tionality of 250-254; how de- clared void, 255-258; effect of declaring void, 259. . Leacock, S., 3. Lecky, W. E. H., 310. Legislation, federal, extension of, 74-76; quality of, 77-78. Legislation, State, restrictions on specal, 269-270; defects in, 282- 288 ; volume of local and special, 283-285; confusion in, 286-288; improvement of, 288-295. Legislative Reference Bureaus, 292, 293, 294. Legislatures, State, power of de- creased, 263, 268; power over cities, 337-338, 340-342. Lieber, Francis, 327. Liberty, Mill's Essay on, 392; growth of, T92-396; under popular government, 394-395 ; proper sphere of, 396-397. Lodge, H. C., 177. Loose Construction, 55-61, 69. Los Angeles, Charter of, 526. Low, A. M., 171. McClain, E., 255, 316. McConachie, L. G., 145, 223. McCulloh vs. Maryland, 55, 72. McGovern, F. E., 518. Madison, James, 39, 219, 221. Magna Charta, 10. Maine, Henry, 112. Maltbie, M/R., 344. Marbury vs. Madison, 250. Marshall, J., 55, 72, 250, 483. Martin, J., 402. Mayor government, development of. 349; limitations of, 352-353; failure of, in New York, 354, in INDEX 533 Brooklyn, 355, in Philadelphia, 355. Merit system, adoption of, 234; recent extension of, 338-42; ad- vocated, 510. Merriam, C. E., 378, 507. Mill, J. S., 392. Miller, S. F., 72, 84, 98. Municipal government, recent tendency of, 336-342, 349-350. Municipal programme, 361-366. Municipal problems, study of, 366- 367. Municipal finance, 452-455. /Municipal ownership, growth of in the United States, 409-410; policy as to, 459, 462. Nation, definition of, 7-9. National Banking Act, 464, 467. National Banks, 475, 478. National Civic Federation, 492. National Municipal League, re- port of, 350; program of, 361. Nationality, growth of, 9; in the United States, 19. New York, public service commis- sion law of, 275. Oberholtzer, E. P., 336. Oklahoma, constitution of, 265. Oregon, primary elections in, 118- 120; education of voters in, 120-125; initiative and referen- dum in, 296-303; election of senators in, 299, 302. Osborne, T. M., 275. Panic of 1907, 469-471. Panics, prevention of, 474. Parliamentary government, 193- 195. Parties, local and national, 369- 370; duties of, 371; organiza- tion of, 372, 376; corruption of, 504-506. Party machine, the, 373. Party, membership in, 378 ; pri- mary registration in, 379; pri- mary tests, 379-380; platforms, 119, 381-383. Payne-Aldrich Tariff Act, 441. Pendleton Report, 226, 230. Platform, party, 119, 381-383. Political corruption, repression of, 518-525. Politician, the, methods of, 376, 386-388, 504. President, may sit in Senate, 177; recent growth in power of, 196- 202; power of removal of, 203- 207; power of direction of, 207- 210. Presidential government, 193, 196. Primary elections, in Oregon, 118; legislation on, 378-384; limita- tions of, 507, 512; cost of, 511. Public Service Commissions, 275, 278, 280. Public Service corporations, mo- nopolistic character of, 276-280. Public utilities, ownership of, 409-410, 459-462; corruption in, 504, 505. Railroad rates, regulation of, 487- 490. Recall, the system of, 526. Reclamation Act, 405. Reclamation service, 406. Reed, T. B., 129, 130, 138, 142. Reinsch, P., 167, 282. Removals, in civil service, presi- dent's power of, 203-207; under Jackson, 233. Representative government, origin of in England, 21-23; growth of in America, 24-25; compared with primary government, 303- 310. Representatives, duty of, 26; re- lation to the people, 27-30; ap- portionment of federal, 148. Revenue bills, federal, origin of, 172, 181; defective method of passing, 435-437. Revenue, federal, collection of cus- toms duties, 448-450; evasion of customs duties, 450-451; collec- tion of internal, 451. Ridgley, W. B., 469. Rigid constitution, 52, 53, 61. 534 INDEX Roberts, G. E., 475. Rogers, H. W., 65, 76. Root, E., 66, 84. Rules of the House of Representa- tives, development of, 136-139; present working of, 139-144; Speaker Cannon on, 169. Rules of the Senate, 165, 166, 168. Scruggs, W. L., 95, 113. Secretary of the Treasury, reports to Congress, 219, 220; presence in Congress opposed by Madison, 221 ; favored by Gerry, 222. Self-government, meaning of, 17- 19; how acquired, 19-21. Seligman, E. R., 411, 428. Senate, committees of, 162-166; freedom of, debate in, 167-169; power of over money bills, 172, 173, 181; control of appoint- ments, 173-175, 178-180; treaty- making power of, 175-177, 180- 181; growth of power of, 182- 183. Senators, federal, legislative elec- tion of opposed, 156-160; ad- vantages of popular election of, 160-162; election of in Oregon, 299, 302. Sherman Anti-Trust Act, 490, 494. Slaughter House Case, 98, 102. Socialism, tendency toward, 399, 401; growth of in the United States, 402-410. igociety, distinguished from the state, 7. Sovereignty, definition of, 6-7. Speaker of the House of Repre- sentatives, control of debate by, 129-130; character of, 131; ap- pointment of committees by, 132, 133; and the committee on rules, 133, 143; powers of legiti- mate, 134-136, 142. State constitutions, history of, 261-265; recent, 265-270. State, definition of, 3-5; sphere of action of, 397-398. State regulation of public utili- ties, 276-280; of industry, 398- 401. States Rights, 77; danger of pres- ent, 84-86. State sovereignty, 89. , Strict construction, 65. Suffrage, danger of extension of. 111-113; under the 14th and 15th amendments, 113-115, llf.- 118; in the Southern States, 115-116; the Supreme Court on, 116-118. Supreme Court, attitude of, to- ward the Constitution, 67-68; toward the rights of citizenship, 100-104; toward the suffrage, 116-118; toward trusts, 493, 496. Taft, W. H., 497. Taney, R. B., 69, 104. Tariff Act of 1909, 441-448. Tariff, maximum and minimum, 446, 447 ; Philippine, 447. Taussig, F. W., 419. Taxation of corporations, 426; ad- vantages of, 427 ; methods of as- sessing, 428-433. Taxation of franchises, 456^459. Taxation of incomes, 433-434. Taxation of property, lack of uni- formity in, 411; evasion of, 413; dishonesty in, 415; regressive forms of, 416; double, 417. Taxation of securities, methods of, 419-420; exemption from, 421, 426-427; evasion of, 420; rates of excessive, 423-426. Taxes, basis of, 421-422. Tenure of Office Act, 204, 205. Treasury Department, organiza- tion of, 207, 219. Treasury, United States, policy of, 464-466. Treaties, 175-177, 180, 181. Trusts, prohibition of, 490-492; Chicago conference on, 492, 493. U'Ren, W. S., 298. Verdict of jury, can be set aside, INDEX 535 319; character of, 323-324; evils of unanimous, in civil trials, 325-328. Veto, governor's power of, 267- 268; under the initiative and referendum, 297. Vote, the intelligent, 126; the blind, 384-388; the independent, 390. Voters, education of, 118-126. Ways and Means, committee of, 223, 435. Wilcox, D. F., 361, 456. Williams, T., 492. Willoughby, W. W., Ill, 397. Wilson, W., 9, 19, 89, 369. Wise, J. S., 92, 97, 116, 483. Woodburn, J. A., 192. Young, J. T., 196. UNIVERSITY OF CALIFORNIA LIB: BEl; THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW Books not retiin - tine of 50c per volume after the third <1 to $1.00 IK : '">t in application is made before MAR 18 I DK 27 iff | APR ? 1947 20m-ll,:20 /?< YB 08286 UNIVERSITY OF CALIFORNIA LIBRARY