Oiy / f "^ ^ <^ll.^t>0 /: y/^ UNIVERSITY OF CALIFORNIA AT LOS ANGELES Gift of Mrs. -^eonora B, Lucas GOVERNMENT IN STATE AND NATION GOVERNMENT IN STATE AND NATION BY J. A. JAMES, Ph.D. PROFESSOR OF HISTORY IN NORTHWESTERN UNIVERSITY A. H. SANFORD, M.A. PKOFESaOB OF HISTORY AND GOVERNMENT, STATE NORMAL SCHOOL LA CROSSE, WISCONSIN REVISED EDITION t I NEW YORK CHARLES SCRIBNER'S SONS 1911 Copyright, 1901, 1911, bt CHARLES SCRIBNER'S SONS • •• \ ii 1 PREFACE V The subject-matter herewith presented partially rep- ^ resents the plan pursued by the authors as teachers of civil %<^ government for a number of years in secondary schools. A study of the actual methods by which the affairs of gov- ernment are conducted gives constant interest to the work, and consequently the practical side has been emphasized. Many problems besides those presented in the supplement- ary questions may be worked out from the official re- ports. %/» Scarcely a month passes without the appearance in the ^ more noted magazines of articles on phases of govern- mental activity which have permanent value. No attempt has been made to give references to all of this material which has appeared during the past ten years. The ability of the reader has been kept constantly in mind and the inten- tion has been to refer only to such articles as would be of value to students in high schools, academies, and normal schools. We are under especial obligation to teachers who have used the first edition of the book for their helpful sugges- tions on desirable modifications. 5G554 CONTENTS PAGE V Preface, Some Suggestions to Teachers, xi Introductory Chapter, x>" PART I LOCAL GOVERNMENT PAGE CHAPTER I. — Town and County Government, 1 II. — State Governments, 9 III. — State Governments (Continued), 18 IV. — City Government, 26 v.— Elections and Party Government, 43 VI. — Public Finances, 54 VII. — Judicial Trials, 62 VIII.— Charitable and Penal Institutions, .... 70 IX. — Educational Systems, 78 X.— The Exercise of the Police Power, .... 85 XL — Labor Legislation, 93 vii vifi CONTENTS PART II THE NATIONAL GOVERNMENT CHAPTER PAGE XII. — Steps Leading to Union, 97 XIII. — The Constitutional Convention, 106 XIV. — Organization op the Legislative Department, 121 XV. — Powers and Duties of the Separate Houses, 138 I. Impeachment, 138 II. The Quorum, Journal, and Freedom of Speech, 140 XVI. — Procedure in Congress, 145 XVII. — National Finances, 162 XVIII. — The Power of Congress over Commerce, . .174 XIX. — Money of the United States, 181 I. Metal Money or Coin, 181 II. Paper Money, 184 XX. — Other General Powers op Congress, . . .191 I. Power of Naturalization, 191 II. The Postal System of the United States, . . 193 III. Copyrights and Patents, 196 IV. Piracies and Felonies, 199 V. Military Powers of Congress, 199 VI. Location of the Capital 203 VII. Implied Powers, 204 CONTENTS ix OBAPTEK PAGE XXI. — Powers Denied the United States and the Several States, 208 XXII. — The Executive Department, 213 XXIII. — The Election of a President, 222 XXIV. — Powers and Duties of the President, . . 233 XXV. — The Cabinet and the Executive Depart- ments, 244 XXVI.— The Judicl\ry, 261 XXVII. — Relations between the States and between Federal Government and the States, 271 XXVIII. — Territories and Public Lands, 274 XXIX. — Amendments to the Constitution, .... 288 XXX. — The Relations of States and Nation, . . 296 XXXI. — Some Features of International Law and Arbitration, 301 APPENDICES PAGE A. — Constitution of the United States of A-merica, 308 P>. — Articles of Confederation, 324 C. — Reference Books, 333 INDEX, „ . . , 337 SOME SUGGESTIONS TO TEACHEES We trust the following observations may be of value to teachers in the use of this book, and at the same time an- swer certain questions which we are assured will arise. 1. There are but few questions given on the subject- matter of the text, for each teacher will doubtless prefer to present the topics in his ovm way. While some of the dis- cussions and many of the suggestive questions are intended to make students realize more completely their duties as citizens, many more having a local bearing w^ill occur to teachers. "Topical outlines" are omitted, for by the aid of the marginal topics students will be able to make out- lines for themselves which will be of vastly greater mter- est and value. 2. All teachers may not care to use the parts of the book in the same order, and the arrangement is such that either Local (Part I) or National Government (Part II) may be studied first. In the work on local government, it is not expected that the student will learn all of the different prac- tices found in the various States, but that he will compare them with those of his own State. 3. There are more supplementary questions and refer- ences, doubtless, than can be used by any one class, but this will give the teacher an opportunity for selection. A number of the references may be used each day by assign- ing special problems to individual students. 4. It is scarcely to be hoped that all the books and mag- azines mentioned will be found in any high-school library, but the need for supplementary reading is being met xi xii SOME SUGGESTIONS TO TEACHERS through the rapid increase of public libraries. Great care has been taken in selecting the books which are given in Appendix C, and by adding a few of these each year a work- ing library on the subject of Civics may soon be secured. Many of the reports issued by the government may be read- ily obtained by applying to your Congressman or to the government officials. 5. Some teachers may have difficulty in securing the pe- riodical literature. In nearly every village there are per- sons who have subscribed for these magazines for a number of years and would be willing to present them to the school library. INTRODUCTORY CHAPTER NEED OF GOVERNMENT The control of our actions by some kind of government precedes our earliest recollections; this we have constantly experienced in the family and in school. Wherever men live in commmiities they are imder political government; their relations with one another must be regulated by well- understood rules in order that they may live and conduct business in security. By means of political government, also, communities find it convenient to increase the com- forts of life, as in the building of good roads and streets; they furnish themselves with the means of education and culture through schools and libraries. For such purposes the government of town, village, and city is of the first im- portance. But business and political relations exist among communities, as well as among individuals. Consequently, our local governments must be supplemented by organiza- tions that cover larger areas and include many communi- ties; therefore the county and State governments are formed. For the same reasons, and also for reasons of which we learn in the study of United States history, a gov- ernment for the United States became a necessity at the very beginning of our National life. In these various political organizations the plan of gov- ernment is the same. In the first place, there is always the law-making body, prescribing the regulations to which men must subject themselves if they are to live together in har- mony. Again, because laws do not enforce themselves, xiii xiv INTRODUCTORY CHAPTER officers are selected to see that these provisions are carried out. Finally, since men frequently disagree as to the meaning of laws, and because there are always those who wilfully violate them in order to secure some personal ad- vantage, courts are established in which the laws are in- terpreted and offenders are judged. We have, then, the three departments of government — legislative, executive, and judicial. The system of local government to which you are ac- customed did not grow up spontaneously, nor was it es- tablished arbitrarily. There are reasons to be found in history and in the nature of the environment which explain many of its details. The same may be said of our State and National systems. In consequence, we shall find it advantageous to trace briefly some historical origins of government in our country. Again, it is evident that no system of human government is perfect. In every com- munity the defects of laws and their non-enforcement are familiar topics of discussion, while the failures of State and National governments at certain points are no less con- spicuous. These are the problems to which our attention will be directed in the course of our study. For the most part, however, it will be our task to study government as it now exists in town and city. State and Nation. AVe shall look backward into history only when this is necessary for the understanding of our present forms and practices. We shall look forward to the solution of a few of the simpler problems that now confront us. A study of the deeper origins and of the more profound problems must be postponed to the years of advanced work in col- lege. PART I LOCAL GOVERNMENT CHAPTER I TOWN AND COUNTY GOVERNMENT When, in the seventeenth century. Englishmen made The origin settlements along the Atlantic coast, some form of local govern-'*"^ government became an immediate necessity. They adopted consequently the political usages to which they had been accustomed at home, selecting those offices and forms of procedure that seemed best adapted to their needs and surroundings. Because natural conditions and the ideas of the settlers varied considerably in the different col- onies, we find several varieties of local government grow- ing up. But since these local governments were all es- tablished by Englishmen, and, moreover, by Englishmen of very similar habits and social grades, we find, on the whole, great similarity in their fundamental features. The most marked differences are seen in a comparison New Eng- of local governments in New England and in Virginia. cStion^.'*' The settlers of New England found themselves upon a coast indented by many bays and harbors; the country was hilly and the soil stony; streams were abundant but generally small, rapid, and unfit for navigation; the sea abounded in fish and the forests yielded excellent timber. These physical conditions hindered the rapid spread of population over large areas and offered many inducements 1 TOWN AND COUNTY GOVERNMENT The town type: meetings, officers, and func- tions. Origin of \'ir>;iiiia local gov- ernment. for the gathering of the inhabitants into towns. More- over, this tendency was in accord with the wishes of the Puritans. They desired, above everything, to foster the religious life of the little church communities into which they grouped themselves. They believed that all settlers should take an active part in worship and in the govern- ment of the church, and that consequently all should live within a short distance of the meeting-house. Under these circumstances the New Englanders put into practice those features of the ancient English township government that were best suited for governing their little towns. Once a year, or of tener, the voters assembled in town meeting to elect officers and to engage in general discussion of town affairs. Here taxes were levied, and the support of the poor, the maintenance of highways, church, and school were provided for. The officers of the town were the se- lectmen, a board having general oversight of town affairs, the treasurer, clerk, constables, school committee, assessors, fence-viewers, and frequently many others. The remark- able features of New England towTi government were the freedom with which all matters of public interest were dis- cussed in the town meeting, and the care with which all affairs of government were guarded by officers and people alike. Early in the history of the Massachusetts Bay Col- ony towns were grouped into counties, and justices were appointed who held court in the towns of each county. Scarcely any but judicial matters were intrusted to the county government. The centre of political life in New England was the town, hence we have here the town or township type of local government, A very different type of local government was developed in Virginia. If we contrast the physical geography of this section with that of New England we see how every in- ducement favored the scattering of population and the de- velopment of great plantations. The influence of tobacco TOWN AND COUNTY GOVERNMENT 3 cultivation and of slavery was in the same direction. Since the desire for individual gain prompted most of the settlers, there were no strong ties tending to bind the people into compact communities. There were scarcely any towns in Virginia. Consequently the settlers were driven to select those features of English local government that were best adapted to their sparse settlements. The local organization corresponding to the town of The vestry. New England was the parish. The vestry, a group of officers originally elected by the members of a church, was given control of matters relating to the church and the poor. Other functions of local government were placed The county in the hands of the county court, a body composed of jus- tices originally appointed by the governor of the colony. The county court administered justice, but it also had im- portant legislative functions, for it levied taxes for county purposes, maintained highways, and exercised general con- trol over such affairs of local government as were not in charge of the vestry. Its authority extended over the county, which was sometimes divided into two or more par- ishes. The other important county officers were the sheriff The county (who, besides being a court official, was county treasurer) ^^^' and the lieutenant, or commander of the militia. The original method of appointment in both vestry and county court was changed so that members came to be chosen in each case by the body itself. We may note three points of contrast between the two Contrasts systems of local government described above. (1) The the two • t » tVDGS. principal functions of government (taxation, education, care of roads, public safety, etc.) were exercised in New England by the to\\ms, and in Virginia by the counties. (2) In Virginia the conduct of local government was in the hands of a limited body of prominent men, while in New England the mass of voters participated more freely. (3) In New England the deputies sent to the colonial as- TOWN AND COUNTY GOVERNMENT The result of these differences. The town- ship-county type: location and di- vision of powers. The origin of local govern- mpnt in the West. sembly were selected from the towns, while the members of the Virginia assembly (the House of Burgesses) were sent from the counties. The New England type of local government gave the people much practical political education, while that of Virginia developed a class of intelligent, public-spirited leaders. These facts are of great consequence in colonial history, especially in that period when resistance to the English Government made Massachusetts and Virginia leaders in the Revolution. The middle Atlantic colonies present a medium in cli- mate, soil, and physical structure between the extremes of New England and Virginia. This is also true of the meth- ods of settlement and the occupations of the people. Sim- ilarly, the type of local government developed in these col- onies seems to be a compromise between the two types that we have been considering. It has been called the mixed or township-county system of local government. Like New England, the middle colonies had both townships and coun- ties, but there was a much more equal division of powers between these units. At the same time, the county was not so important as in Virginia. In New York the town- ship was more prominent than the county, while in Penn- sylvania county officers performed the most important functions. The colonial systems above described have been much modified. In New England it has been found convenient to enlarge the functions of the county and to diminish those of the town. In Virginia and throughout the South the township has become an increasingly important organiza- tion. Still, in each of these sections the system of local government now in use bears the stamp of its origin. In the Western States, the character of local government has been greatly influenced by the origin of the settlers. The general trend of population, as it moved westward TOWN AND COUNTY GOVERNMENT 5 from the thirteen original States, was along parallels of latitude. Consequently, in the South we find the county type prevailing. Nowhere, however, does the pure to^Ti type exist, for the Northern States all have the mixed sys- tem. These States may be divided into two groups ac- cording as the tovm. or the county is given more extensive functions. The States in the first group (Michigan, Illi- nois, and Wisconsin) have been influenced by the examples of New England and New York. In these States there is the annual to^Ti meeting of voters, where officers are elected and matters of town government are discussed. We have here the form of a pure democracy. A town The super- board has general charge of to^sTi affairs. This group of States is also distinguished by the nature of their county boards, which are composed of supervisors elected in the various towns, villages, and wards. This supervisor sys- tem of county government originated in New York, in colonial times. In the second group (Ohio, Indiana, Kansas, Missouri, The com- Nebraska, Colorado, Oregon, and California) the county form. is of more importance in local government. There is no town meeting. A town supervisor (or board of super- visors or trustees) exercises some powers that would be exercised by the to^^Ti meetings in other States. But here the county board exercises more of such functions; it has extensive powers over the poor, health, highways, taxa- tion, etc. Unlike the county board in the other group of States, it is composed of members elected at large* or from districts of the county. They are few in number and are called commissioners. In all the Northern States there is a group of other town officers besides the supervisors — clerk, treasurer, assessor, constables, and various minor officers and boards. The * That is, each voter of the county may vote for the entire number of commissioners that are to be elected at any election. 6 TOWN AND COUNTY GOVERNMENT county is the basis of court organization; so there is a judge, a sheriff, and a clerk of the court. Frequently we find several counties grouped into a district or circuit throughout which a single judge holds court sessions. In some cases taxes are collected by the sheriff, but gen- erally there is a county treasurer. Other county officers, most of whom are elected by the voters, are the superin- tendent of schools, the register of deeds, or recorder, the surveyor, and the coroner. Villages. As population becomes dense in certain localities, vil- lages and cities are organized. Village government is sometimes entirely distinct from town government; some- times it is united with the latter for general purposes, though sustaining its own officers for special purposes. In either case the governing body is a board with an executive head, generally called the president.* Cities. Cities have governments similar in general plan to those of villages; but there are more officers and their functions are more extensive. The conditions of city life give rise to new problems of government to which we shall give at- tention in a separate chapter. Such, in bare outline, is the organization of local gov- ernment in the States to-day. In the actual processes by which local government is carried on, towns, villages, and cities (or divisions of cities called wards) are regarded as di- visions of the county. Counties are themselves divisions of the State. Now, there are some activities of government in which the local units alone are concerned, as in the main- tenance of roads, streets, and bridges, and the care of the poor. But in many important matters the processes merely begin in the local units and are completed by the action of State officials. For example, taxation and election proc- * Various terms are in use. In Pennsylvania there is the borough with a burgess at its head. In Virginia the corresponding organization is the town, with a mayor as executive officer. TOWN AND COUNTY GOVERNMENT 7 esses involve both local and State governments. The same is true, in many cases, of the administration of justice and the maintenance of school systems. Hence, it will be nec- essary to take a general view of State government before considering how these operations are carried on. Supplementary Questions and References 1. The history of local government in the colonies: James and Sanford, American History, 92-98; Thwaites, The Colonies, 55-58; Fisher, The Colonial Era, 60, 99, 167; Channing, The United States of America, 37-38; Wilson, The State, 449-458; Lodge, A Short History of the English Colonies, 48-59, 58-59, 414-417; Hart, Formation of the Union, 11-13; Bryce, American Commonwealth, 589-593; Bancroft, History of the United States, I, 285-286, 449. 2. For descriptions of local systems as they are at present, see Bryce, I, chapters 48 and 49; Wilson, The State, 524-538; Beard, American Government and Politics, 638-655. 3. Make a study of a town: (1) With a map, as to its location, size and shape.* Compare with other towns in the same county. (2) What officers has the town ? For what terms are they elected ? How are they paid ? What general duties does each have ? Is the town board a legislative or an executive body? (3) Is there a town meeting ? If so, what business does it transact ? Did you ever attend one? 4. Study the organization of a village government. In what respects does it differ from the town government? Why? 5. What is the area and population of the county in which you live? What is the county seat? Have you visited the county buildings? Who has charge of them? 6. How many townships are there in your county? Estimate the total number of local officers. How many counties are there in your State ? Are they generally regular or irregular in shape ? Compare counties of other States. (See Atlas.) * In the West, the Congressional township, as determined by the United States Land Survey, frequently determines the boundaries of the town. See. pp. 280-282. 8 TOWN AND COUNTY GOVERNMENT 7. Make a list of your county officers, the length of term and salary of each. What are the principal duties of each ? 8. Is the county board elected on the commisssioner plan or the supervisor plan? 9. To which type of local government does the system of your State most nearly conform ? Account for its origin. CHAPTER II STATE GOVERNMENTS As town and county governments in the thirteen colo- The general nies were modelled upon ideas and practices derived from colonial England, so the central government of each colony took ments. form upon the plan of England's central government. And this plan may be seen to-day in the governments of our States and in that of the United States: all have the division into three departments — legislative, executive, and judicial — the legislature generally being composed of two branches. There were many variations among the colonies in the de- tails of government, but at the time of the Revolution there was one important point of Hkeness: viz., each had an elective representative assembly. Moreover, it had be- come established in practice that the assembly should leg- islate upon matters affecting the internal welfare of the colony, and especially that it should exercise the vital func- tion of levying taxes. Thus was erected in each colony the form of a free government, while the habit of self- government became established through the neglect of England to interfere seriously with the powers exercised by the colonial assemblies. We may further analyze colonial governments by classi- Classifica- fying them upon the basis of the method by which the gov- colonies, emor obtained his office. There were three forms: Re- publican, the people electing the governor (Connecticut and Rhode Island); Proprietary, the governor appointed by the proprietor (Maryland, Pennsylvania, and Delaware) ; Royal, the king appointing the governor (the eight remain- ing colonies). 9 10 STATE GOVERNMENTS How State The Revolution transformed the colonies Into States, the consiuu- tioris came new State governments being formed in 1776 and the next about. ° ^ ^ ^ few years.* One of the first steps in this process was the formation of written constitutions. It was natural that these should be framed in the new States, because the colonial assemblies and officers had become accustomed to exercising their powers under the superior authority of their charters. So in each State a written constitution seemed necessary as a fundamental law, outlining the framework of State government. The constitution of a State, then, is its supreme law, so far as purely State au- thority Is concerned. All laws must conform to Its pro- visions ; all officers take oaths to support it. It is the duty of the State judiciary to see that official acts stand in conformity with it. Oriain of The States admitted into the Union after the adoption of the siitutions. Federal Constitution (1789) used that instrument as a model to some extent. But still greater was the influence of the old State constitutions upon the settlers from the East who were so rapidly building the new commonwealths of the West. So, while the constitutions of all the present States show, by their great simi- larity, their common origin, there are variations that may be traced backward along lines of westward migration to their sources in the original States. Tonstitu- State constitutions have generally been made in State conven- corrven- tions composed of delegates chosen for that purpose. In some lions. States new constitutions have been made in this way to super- sede old ones. When an entirely new constitution has not been considered necessary, amendments have been adopted; these have been framed either by the State legislature or by a State con- vention. In most cases, whether in the adoption of a constitu- tion or of an amendment, a vote of the people is an important step in the process. f So it may be said that State constitutions proceed from the people. * James and Sanford, American History, 157, 158. Connecticut and Rhode Island continued their charters in force as constitutions. t This was not the case in tlio adoption of their constitutions by the thirteen orii,'inal States (except Massachusetts); nor in the adoption of new constitutions by South Carolina, Mississippi, and Louisiana. STATE GOVERNIVIENTS 11 The contents of State constitutions may be grouped Analysis of under three heads. (1) The Bill of Rights, which is pat- constitu- temed after the earliest State constitutions and the first eight amendments to the Federal Constitution. By these provisions the fundamental civil rights of citizens are se- cured, such as the right of free petition and assemblage, fair trial by jur}% exemption from unjust searches and seizures, freedom of religious worship, and freedom of speech and of the press. (2) The outline of the frame of government, showing the organization of the legislative, executive, and judicial departments, with general provi- sions as to their powers and the manner in which they are to be exercised. (3) Miscellaneous provisions. In recent years there is a marked tendency to increase the number of subjects treated in the State constitutions and to make more detailed regulations. Some new consti- tutions are of much greater length than the old ones, and are really general laws rather than mere frames of government. The purpose of these provisions is to limit the powers of the State legislatures. State constitutions confer all the law-making powers Legislative upon the legislatures. These bodies do not attempt to exercise all such powers, but delegate local authority to other legislative bodies in school districts, villages, towns, cities, and counties. The county board and the city council, for example, are legislative bodies, but they de- rive all their powers from general or special laws framed by the State legislature. State legislatures are invariablv composed of two houses Organiza- ^ " . tion of — the Senate and the House of Representatives or Assem- state bly. The first of these houses has a smaller number of tu'res. members than the second; the members have longer terms than in the lower house, and the qualifications for membership may be higher. INIembers of the legislature are chosen from districts, and the redistricting of a State 12 STATE GOVERNMENTS The com- mittee system. How laws are en- acted. Restric- tions upon legislat- ures. is made necessary at stated times by the shifting of popu- lation. This is done by an apportionment act. An es- pecially unfair apportionment is called a "gerrymander" (see pp. 134-135). In all but a few States the sessions of the legislature are biennial. ISIethods of procedure are quite similar in all legislatures. A proposed law is called a bill. When a bill is introduced in either house, the presiding officer (usually called the Speaker in the lower house, and the President in the upper) refers it to a committee. Standing com- mittees are appointed in both houses, to each of which bills upon a certain subject are referred. This arrange- ment facilitates business and gives opportunity for more full consideration of the bills. A committee has almost absolute power over the bills in its charge — to amend them, to substitute new bills in their places, or to keep them. They may take testimony and hear arguments upon the bills. When they report back a bill to the house, they recommend either its pas- sage or its defeat, and usually the house follows the recom- mendation. Only a few of the important bills are fully debated in either house. After passing one house a bill is taken to the other, where reference to a committee and other procedure follows as in the first house. A bill that passes both houses goes to the governor for his signature, when it becomes a law. He may, however, veto the bill; then it must pass each house again by a larger majority (usually two-thirds) if it is to be enacted into law. No State constitution attempts to give a list of the powers of the State legislature, but there is always a list of limitations upon its authority and upon the privi- leges of its members. These restrictions may be grouped under several heads. (1) They may limit the length of sessions and the method of paying members. (2) Special, local, and private legislation are prohibited upon certain influence in govern- STATE GOVERNMENTS 13 subjects (such as city and corporation charters) and care- fully guarded upon others. (3) All financial legislation, such as taxation, and the borrowing and appropriation of money, must be enacted under close limitations. Besides the restrictions upon legislatures mentioned The legis- lative above, many other constitutional provisions and laws have lobby. been enacted having the same effect. (1) The practice of lobbying has been placed under strict control. Persons who attend sessions of a legislative body for the purpose of using influence looking toward the passage or defeat of certain bills are called lobbyists. IVTany good measures are made possible in this way; but most of the bad meas- ures are the result of successful lobbying. It is in this way that the agents of corporations and " special Corporate interests" have at times worked their will in legislatures. Es pecially when campaign contributions have been made by these ii^ent business interests (see pp. 51-52) they have demanded favorable legislation as a reward. Members of legislatures have been tempted by bribes or threatened with ruin. So privileges have been voted that were worth millions of dollars, to the entire neglect of pubhc welfare. At times legislators have introduced bills that threatened to injure the business of a corporation, for the purpose of securing from it payment for defeating these very bills. This is called blackmail. Corporate influence in government is a power "for which our language contains no name. We know what aristocracy, autocracy, and democracy are; but we have no word to express government by moneyed corporations." (2) Other laws provide the severest penalties for bri- bery and blackmail in connection with the passage of laws. (3) In some States the giving of passes by railroads has been prohibited, as tending to influence legislation. The enactment of the laws mentioned above indicates an What is increasing lack of confidence in legislatures. The people go^era^ cannot entirely shift the blame for this condition upon ^^^ their representatives, since, through elections, they can 14 STATE GOVERNMENTS Represent- ative gov- ernment. The Ref- erendum. The Initia- tive. Propor- tirinal rep- resenta- tiuD. themselves determine the character of their law-makers. We are accustomed to speak of our system as government "by the people"; but it is only in town and school- district meetings that all the voters assemble and legislate directly; and even these meetings do not exist in all sec- tions of the country. Generally, therefore, law-making is a function of representative bodies, which are the vil- lage and county boards, city councils, State legislatures, and the National Congress. Hence we have not a pure, but a representative democracy, or a republic. This will be "government by the people" only if our representa- tives reflect accurately the opinions of a majority of the people. One way of testing this question is through the "Ref- erendum." This consists of the requirement that when a certain number of citizens petition for it, a law must be submitted to the people for ratification or rejection. The idea of the referendum is in use in local governments when the people vote upon such questions as the issuing of bonds, the licensing of saloons, or the adoption of munici- pal ownership. But there is now a demand for its use with reference to any law passed by a legislature, upon the plan stated above. Another device intended to make legislatures repre- sent the people more accurately is the "Initiative." If a certain per cent, of the total number of voters petition for a law, it must be considered by the legislature ; or, it may be placed before the people for acceptance or rejec- tion, without the intervention of the legislature. The adoption of the initiative and referendum brings about "direct legislation" in the matters to which they refer. By "Proportional Representation" is meant the dis- tribution of the members in a legislative body among the political parties in the same proportions as the voters are distributed. Frequently, one party has a number of repre- STATE GOVERNMExNTS 15 sentatives that is entirely out of proportion to its voting strength. This is because we elect representatives from districts. If the voters of two parties are quite evenly distributed throughout a State, one party may have a majority in so many districts that the voters of the other party will not be adequately represented. Numerous devices have been proposed to correct this matter, but none is in general use. It is interesting to think of forty-eight State legislatures The wide at work simultaneously upon the same general problems state laws, of public welfare. Their laws touch the interests of the people most directly; for we come into contact with the laws of the National government, passed by Congress, in comparatively few ways. But the most important business and social relations of life — buying and selling, holding, leasing, and inheriting property; the domestic relations of husband and wife, parent and child; the regulations necessary to make the people secure in health and comfort — all these fall within the sphere of State gov- ernment. "Space would fail in which to enumerate the particular items of this vast range of power. To detail its parts would be to catalogue all social and business rela- tionships, to set forth all the foundations of law and order." Now, there are two aspects in which we may regard this Diversity mass of State laws. (1) Each State may fit its laws to formity of peculiar local conditions. This is one of the admirable features of our system of government. (2) But too much diversity is an evil. There are some subjects upon which greater uniformity is desirable, especially in matters of business law. This is because an increasing number of business men and corporations have interests in more than one State. Numerous State legislatures have enacted uniform codes covering certain branches of commercial law. 16 STATE GOVERNMENTS Supplementary Questions and References 1. James and Sanford, American History. Origin of the As- sembly in Virginia, 45; in Maryland, 47-48; in Plymouth, 53; in Massachusetts, 56-58; in Connecticut, 61-62; in Carolinas, 78; in Pennsylvania, 81. General discussion of colonial govern- ments, 133-134; 136-138. 2. For fuller information concerning colonial governments, see Fisher, Colonial Era, 208-211; Sloane, French War and Revolution, 10-12; Thwaites, Colonies, 58-63, 192-193, 271- 277; Hart, Formation of the Union, 5-10, 13-17, 80-81; Fiske, Critical Period, 65-69; Channing, United States of America, 26-36, 84-85; Wilson, The State, 458-469. 3. Did colonial governors have the veto power? Hart, 9. What was the governor's power over sessions of the colonial legislature ? Thwaites, 59. What were the relations of colonial legislatures to royal governors? Fisher, 209-210. 4. Were any State constitutions formed before July 4, 1776? Channing, 84—85. How long did Connecticut and Rhode Island keep their charters as constitutions? Why was this? Chan- ning, 36. 5. What is the history of the framing of your State consti- tution ? Were the framers influenced by the example of another State? Compare the Declaration of Rights with Amendments I-VHI of the U. S. Constitution. Why should these provisions be included in both State and National constitutions? 6. From your State constitution and legislative manual get facts concerning the State legislature — its composition, sessions, officers, etc. Why have two houses in the legislature? Do you think members of the legislature should be required to live in the districts they represent? 7. What are the rules governing apportionments in your State? Was the last apportionment fairly made? 8. What is the process by which laws are enacted? Can you give reasons for the existence of the committee system? 9. In what ways does the constitution place limitations upon the State legislature? Give reasons for each of these limitations. STATE GOVERNMENTS 17 Do they indicate popular distrust of the legislators? If so, for what reasons? Who is responsible for this condition? 10. For general discussions of State constitutions and govern- ments see Bryce, I, chapters 36, 37, 38, 40; Beard, American Government and Politics, 445-452. 11. State legislatures are discussed in Bryce, I, chapter 40; Beard, chapter 25; Atl. Mo., 94 : 72S-739. 12. Direct Legislation, the Initiative and Referendum, Wil- son, The State, 310-312, 326-327, 488-490; Bryce, I, chapter 39; Beard, 461-469; Arena, 35 : 507-511; 36 : 52-54 600-603; 38:288-295; 39:131-141; Atl. Mo., 97:792-796; Indept., 57 : 1277-1278; 64 : 1191-1195. 13. Popular Government in Oregon, N. Am. Rev., 184 : 69- 74; Indept., 68 : 1374-1378. 14. The Corruption of Government by Corporations, Arena, 30 : 55-68; Bribery, Its Cause and Cure, Indept., 55 : 829-832 15. The Belgian System of Proportional Representation, Arena, 50 : 591-597. 16. A Lobbyist for the People, World's Work, 15 : 9599-9601; Corporations and the Public, Outlook, 85 : 71-77; Justice to Corporations, ibid., 88 : 118-120; Punishing Corporations, ibid., .88 : 862-867. CHAPTER III STATE GOVERNMENTS (Continued) Executive We have sccn (p. 9) that the powers of State governments of the fall under three great departments — legislative, executive, and judicial. In the preceding chapter the legislative function was discussed. The execution of the laws of a State is vested in (1) local officers; these, besides execut- ing the laws of to^Tis and cities, also carry out the pro- visions of general State laws upon such subjects as elec- tions, taxation, and the trial of cases in courts. (2) There are also State executive officers — the governor, secretary of state, attorney-general, treasurer, and numerous others. Besides these, there are often boards and commissions. In most States there is a lieutenant-governor who is the presiding officer of the State Senate, but who otherwise has few duties to perform. Like the governor, he is elected by the people for a term varying in length from one to four years. Duties The powers and duties of the governor may be stated governor, under scvcral heads. (1) He reports to the legislature upon the condition of the State, and recommends legis- lation. (2) He has power to convene the legislature in special session. (3) In nearly all States a bill must have his signature before it becomes a law. He may delay or defeat its passage by his veto. (4) The power of pardon- ing, or of lessening the punishment of criminals, is gener- ally vested in the governor. In a few States pardon boards have been created, either possessing this power or sharing it with the governor. (5) He appoints some minor State officers and frequently the members of boards 18 STATE GOVERNMENTS 19 and commissions. Confirmation by the Senate is some- times required in these appointments. The governor him- self is often a member ex-oficio (that is, by virtue of his office) of these boards. Besides these specific duties, constitutions require the Executing governor to see that the laws are faithfully executed. Under this power the governor supervises the work of such State officers as are subordinate to him; and he has power also to punish by removal some of the local officers, such as mayors and sheriffs, when he considers that they have not performed their duties. If, however, the authori- ties of any locality are unable, because of riot or other public disorder, to carry on the ordinary operations of government, they may appeal to the governor to assist them in the execution of law. This he does by means of The the State militia, of which he is commander-in-chief. The ™'''''*" presence of a military force may enable the civil officers to restore order, or the commanding officers of the militia may temporarily supersede the civil authorities. In some States the number of State executive officers, Adminis- besides the governor and lieutenant-governor, is so large office're. that these, with the various boards and commissions, are grouped together into the administrative department. The secretary of state keeps public records, including official acts of the governor and acts of the legislature. The State treasurer keeps the money of the State. The attorney-general gives legal advice to State officers, and is lawyer for the State in certain cases. The superintendent of schools, or board of education, administers State laws regulating schools, teachers, and school money. The au- ditor or comptroller has duties in connection with State finances. No money can be paid out of the treasury without his order. Other officers or boards control the charitable and penal institutions of the State, and supervise the execu- 20 STATE GOVERNMENTS Boards and com- missions. How the public wel- fare is guarded. tion of the law upon certain subjects, such as health, railroads, labor, insurance companies, agriculture, mines, public works. It is customary, also, to have boards of examiners who issue certificates to persons competent to practise medicine, law, pharmacy, or dentistry. Diplo- mas of graduation from professional schools of good repu- tation are accepted as equivalent to these certificates. The protection and welfare of citizens depend in no slight degree upon the administration of law Ijy these officers. By their action, abuses in a county jail or poorhouse may be cor- rected; an unsound insurance company may be compelled to withdraw from the State; factory hands may secure safe and comfortable rooms in which to work; a contagious disease may be checked; local officers may be compelled to furnish better school facilities or teachers. Even the pleasure of citizens is frequently provided for through fish commissioners, who plant fish in the rivers, and park boards, who preserve forests and streams from injury. We have now seen that law-making in the State is primarily a function of the legislature, and that much authority to legislate upon local affairs is given to town, village, and county boards and to city councils. We have seen also that these laws are enforced by local officers and by the State officers whose duties have just been dis- cussed. The third department of State and local govern- ment is the judiciary. In each State of the Union there is a complete system of courts for interpreting and apply- ing local and State laws. At the head of the judicial system there is a supreme court, or court of appeals, to which cases may be taken from lower courts for final decision. The highest court is usually composed of several judges, and its jurisdiction covers the entire State. It may either confirm or reverse the decisions of lower courts, or it may order a new trial of a case. At the bottom of the judicial system there STATE GOVERNMENTS 21 are justice courts for hearing cases of minor importance arising in the town, village, or city. Justices of the peace preside over these courts.* Between the highest and the lowest courts there is always one and sometimes there are two or three grades of courts. Each is given jurisdiction within a certain district and over a certain class of cases. Each possesses, in addition, the right to review and con- trol the proceedings and processes of lower courts. Fre- quently probate business, the settlement of the estates of deceased persons and related matters, is given to a separate court called the probate court.f In large cities a distinct series of courts becomes necessary. Important changes have come about since the estab- lishment of the older State governments in the appoint- ment and tenure of judicial officers. At that time judges were appointed by governors or elected by legislatures, and their terms were for life or during good behavior. With few exceptions judges are now elected by the peo- ple for comparatively short terms. Many writers con- demn this change, claiming that it has resulted in lower- ing the standard of ability and integrity among judges. It is said that popular elections make it possible for men of strong political following, not necessarily the ablest and most upright, to secure places upon the bench. Others claim that appointment of judges and life tenure are undemocratic; that the present methods are neces- sary to secure complete popular government. The judi- cial, no less than the other branches of government, it is said, should be brought, through elections, into frequent contact with the popular will. Some general facts concerning State and local officers are worthy of brief notice. Popular election, rather than appointment, is the rule in local units and for the most * In cities the terms "police courts" and "police justices" are used, t la New York this is the Surrogate's Court. Judicial systems of the States. Popular election and short terms of judges. Frequent elections. 22 STATE GOVERNIMENTS Two classes of officers. The short ballot. important State offices. Hence we have frequent elec- tions and a corresponding opportunity for popular in- terest in and control of local affairs. The number of State and local officers elected in this country is much larger than elsewhere. These officers may be classified under two heads: (1) Those whose duty it is to determine the policy of government; that is, to decide what is wise and beneficial for the public. Such officers are governors, mayors, members of legislative bodies, and judges. (2) There are many officers whose duties are quite exactly prescribed by law and who do not, therefore, exercise much or any discretion in the per- formance of them. Examples under this head are secre- taries, clerks, registers, treasurers, surveyors, auditors, at- torneys for governments, engineers, and police officers. It is contended that only the first group of officers should be elected; that those of the second group should be ap- pointed by the others and held responsible to them. The adoption of this idea would bring about the "short ballot" reform which is urged by the following arguments: 1, Many of the minor ofEcens now elected do not deserve, and as a matter of fact do not receive, public attention. 2. So large a number of candidates in an election confuses the voter, who cannot become acquainted with them. 3. These minor oflBcers are not subordinate to the more important ones, as they would be if appointed, hence their acts are not under strict supervision. When it is urged that the "short ballot" is undemocratic it is replied that a democratic government is one that is responsive to popular control, regardless of the number of officers elected and appointed respectively.* All important officers are required to take oath (or af- firmation) to "support the Constitution of the United * See also p. 37. The only officers of the United States government who are elected are President, Vice-President, and members of Congress. " The Ions 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 offices, usually only one. In Canada the ballot is less com- monly limited to a single office, but the number is never large." STATE GOVERNMExNTS 23 States and the constitution of the State of Oaths, and faithfully to discharge the duties of the office of salaries?'^ ." Officers who have considerable responsi- bility, and especially those in whose custody money is placed, are required to furnish bonds for the faithful performance of their duties. Compensation of officers is either by salary, by fees, or by a combination of both. The removal of State officers during their terms is gen- erally by process of impeachment. Appointed officers may be removed by the power appointing them, and in some cases local officers may be removed by the gov- ernor or by some other State or local officer. As we study the chapters that follow, it will be well to remember that the source of authority in local govern- The state ment is the State. The machinery of town, village, city, regulates" and county governments is created by State law, which p^o^were. endows them with all the powers they possess. At present there is a tendency toward the extension of State authority into local affairs by way of inspection and supervision, and even by complete State control. INIatters formerly left to local governments entirely are being put under State regulation, either partially or completely. We shall find this true in the stricter supervision of public health by State officials; also in the control, now given to State boards and officers, over penal and charitable institutions. It is thought by some that State authority might be ex- tended with advantage to the building of roads and the Should thorough supervision of school systems. The advantages tions^he"''' of State control are these: the most capable officers can be secured; the methods employed may be uniform throughout the State; and the best methods can be ex- tended to every section more rapidly than is possible when each local xmit has the duty of investigating and adopting new methods for itself. But centralization of power meets strong opposition 24 STATE GOVERNMENTS The benefit in most Communities; for the exercise of local powers bv of local I 1 1 • • • n , self-govern- iocal authonties IS a fundamental principle deeply planted in the minds of American citizens. From this stand-point it is urged that the conduct of local government should be placed in the hands of officers who are directly respon- sible to the people most concerned. There results a de- gree of interest and of participation in local government that brings to the people much valuable education in poli- tics. This problem — the right distribution of powers be- tween State and local governments — is one that deserves attention from citizens who expect to participate in the governmental operations next described. Supplementary Questions and References. 1. Write in parallel columns the titles, names, terms, and sal- aries of the executive and administrative ofBcers of your State. Make a list of the executive boards and commissions. Indicate whether these officers are elected or appointed. 2. Is the pardoning power wisely used in your State ? Has the governor had occasion to call out the State militia ? Why should the governor have the veto power? 3. The workings of the executive department in all its branches may be studied from the reports of officers that are printed by the State. 4. Are there in your State societies, semi-official in character, that receive financial aid from the State ? What is the purpose for which each society is organized? 5. Outline the judicial system of your State, giving the names of the courts, the composition, sessions, and jurisdiction of each. What are the terms and salaries of the judges? What are the names of the judicial officers in whom you are most interested ? 6. Do you favor appointment or election of judges? Short terms or life tenure? See Bryce, I, 504-51 1. 7. Is there a chancery court in your State? What matters STATE GOVERNMENTS 25 do chancery courts consider? What is included under the term "probate business"? 8. Obtain blank forms for ofRcial oaths and bonds. 9. Can you give instances of abuses arising from the fee sys- tem? In what cases is this system best? 10. How are vacancies filled in the various offices? 11. How would you proceed to bring about the removal of a certain officer for non-performance of his duties? 12. In most States, the building and maintenance of roads is purely a local function. Is this work successfully performed? Should the States aid in making good roads ? Forum, 32 : 292- 297. 13. The short ballot, Outlook, 92 : 635-639; 780-781; 829- 831; 971-972; 93 : 896-897. 14. Compare local government in the United States with the system of France. Wilson, The State, 214-223. Which do you prefer? 15. Make an outline of the three branches of government in your State on this plan: Government Legislative Executive Judicial State County Town 16. General accounts of State governments are found in Bryce, I, chapters 41, 42, 44, 45; Wilson, The State, 500-524; Beard, chapter 24. CHAPTER IV CITY GOVERNMENT » The The crowding together of people in large cities is the large cities, result of new industrial conditions that have come about in America since the beginning of the nineteenth cen- tury. The immense increase in the use of machinery driven by steam and electric power has made possible the modem factory system. Manufacturing is no longer a home occupation; its great establishments gather about them the workmen whose numbers swell the city popu- lations. Improvements in transportation methods and means of communication have developed commerce, and thus enhanced the importance of the city, which is the centre of commerce. Conditions The mere presence of large numbers of inhabitants life. within a limited area makes the conditions of human life in a city quite different from conditions in rural communi- ties. In the city we have the poor, the ignorant, and the vicious thickly populating wards adjacent to others where wealth and culture predominate. Contamination of air, water, and food threatens health on every side. Business life in a city is remarkable for the energy with which it is conducted, the enormous sums involved in its transac- tions, and the employment of workmen in great numbers. It is said that "in the jostling throngs of the city a care- less or vicious member of society has a hundredfold more opportunity to disturb the comfort and endanger the health and well-being of his fellows than in the country." Government must fit itself, both in the manner of its organization and in the execution of its functions, to these 26 CITY GOVERNMENT 27 conditions. We see, then, the necessity of government Citygov- ernmer ' '" compli cated. , 1111 rr- 1 • eminent is on a large scale, conducted by numerous oincers, and m- compii- voh Lag the raising and expenditure of vast sums of money. At the same time, we find the entrance of governmental regulation into the minute details of the citizen's life. We can hardly expect to have so much complicated politi- cal activity without correspondingly difhcult problems. City governments in the United States are organized The upon the general plan of the division of powers among legislative, executive, and judicial branches. But the details of municipal organization and administration are so various that a general description is almost impos- sible. The framework of a city's government is pre- scribed in a special charter granted by the State legisla- ture, or in a general State law. In the latter case some imiformity is secured among cities of the same size in the same State. The city legislature is regarded as the most important The part of its government. It may be composed of one or of two houses. The members are uniformly elected, gen- erally from wards; where there are two houses, the mem- bers of the upper one may be elected from the city at large. In size, city councils vary greatly. The members are sometimes salaried, but more frequently they serve without pay. The chief executive is the mavor, who is elected to The ofiice by the people. His term is most frequently one or two years, but the tendency is to make it longer. He sometimes presides over the meetings of the city council, and in most cities has the power to veto its ordinances. The executive and administrative powers of the mayor are much greater in some cities than in others. He is usually the head of the police department, and in this direction his authority is quite extensive. The judicial system of a city generally includes two mayor. managed. 28 CITY GOVERNMENT The kinds of courts: (1) the ordinary State courts (lustlce judiciary. i i> • • • and district or superior courts) ; (2) special city or police courts. The jurisdiction of the latter is usually confined to minor cases. Juvenile courts exist in many cities , Adminis- In a town or village government, the local board may partments. have oversight at the same time of public health, chari- ties, streets, sidewalks, and lighting. But as population grows more dense, these public interests increase in ex- tent, complexity, and importance until it becomes neces- sary to make provision for the separate supervision of each one. Each of these subjects, then, will be assigned to an adm.inisirative department. These departments will be few in small cities, but numerous in large ones. How they There are several ways in which administrative depart- ized and_ mcuts have been organized and managed. (1) In small cities, committees of the council undertake this work. (2) Separate boards or commissions composed of citizens not otherwise holding public offices may be the controlling bodies. Frequently such a commission or board will em- ploy an overseer to superintend work that is in progress under its direction. Both of these methods of controlling city departments have serious faults that will be mentioned later. (3) There is a tendency to place each department under a single head, and to have this officer appointed by the mayor. We have now reviewed the general plan of organization for the government of most American cities. How have our city governments worked ? On the whole, very poorly; indeed they have been regarded as the weakest part of our entire government system. But within recent years there have been encouraging signs of improvement. Some of the faults and failures of city government will now be considered and the remedies and steps in recent progress will be discussed. (1) One constant source of evil in our cities has been the CITY GOVERNMENT 29 mingling of State and National politics on the one hand City officers with city affairs on the other. Men have been elected to upon the city offices upon the basis of National issues; voters have party adhered to party tickets, regardless of the issues involved in city problems, or of the merits of candidates. The result has been the election of inefficient or dishonest officials. These men, being elected by party machinery, have paid their political debts by appointing unfit men as their subordinates, and by otherwise turning the business of the city to the advantage of those through whose efforts they were elected. One remedy for this situation is the separation of city indepen- and National politics in municipal elections. This is diffi- cult to accomplish. But if candidates are still nominated by the regular parties, then independent voting will often secure the best available officers. There has been a marked tendency in recent years for voters to cast their ballots independently of party affiliations. Another rem- edy suggested is a reduction in the number of city officers elected — the "short ballot" principle (see p. 22). (2) Not only party politics, but personal greed has often Evil influ- dictated the selection of city officers. Men have secured citygov- these positions by election or appointment when they saw opportunity for "graft" through the dishonest handling of public money. Or, when work was to be done for the city, these officers have been paid for using their influence in favor of contractors, who in turn make dishonest profits. Again, individuals and corporations wishing to secure privileges from city governments have spent money for the election of officers who would do their bidding. Such has been the practice of some who obtained franchises for street railways, lighting, and water supply plants. Shameful scandals have arisen in these ways when the mass of citizens, engrossed in their private affairs, have become indifferent to public business. Nothing but vigi- 30 CITY GOVERNMENT Lack of responsi- bility. The con- centration of all executive powers. Civil service reform. lance in the selection of officers and constant watchfulness in attention to municipal affairs will remedy the evils here mentioned. There are hopeful signs of progress in this direction in many cities of our country. (3) City governments may fail to work smoothly because of improper organization of city administrative depart- ments. When a committee or board is in control, there is difficulty in locating responsibility among its members; these are apt to shift the blame for bad management from one to another, and when responsibility rests upon several, no one feels its burden seriously. The remedy of placing each department under a single head is excellent in many cases. But if this head is ap- pointed by the mayor and confirmed by the council an- other difficulty arises; for neither of these authorities may be willing to assume responsibility for his conduct. Some authorities believe that the complete separation of admin- istrative departments (which really have executive busi- ness) from the legislative branch of the city government is the proper remedy: that the mayor should be given the entire appointing power and should then be held to com- plete responsibility for the conduct of the city's business. This is the plan of organization of most purely business enterprises, and its principle is being recognized in many city governments. Another step tending toward purity in the control of administrative departments is the adoption of the merit system for subordinate officers. These officers have merely routine duties, or those of a technical nature, and they should be selected upon the basis of examinations intended to test their fitness, and regardless of personal or political considerations. These officers should be retained during good behavior, instead of being turned out at each change in administration. Civil service reform, as it is called, tends to eliminate party politics from city government; it CITY GOVERNMENT 31 should help to place public interests above private, and to make methods of municipal government more business- like. (4) Reference has already been made to the opportimities Difficulties for evil that the density of population in a great city offers, cution of This condition is aggravated when the police department is inefficient, through lack of proper methods of selecting police oflBcers; or when politics (either party or personal) has such influence that it interferes with the strict per- formance of their duties. Police officers sometimes ex- tort money from law-breakers under threats of arrest, and criminals are forced to pay for protection. These bad conditions are partly accounted for by the indifference of honest citizens who may know of their existence. (5) The administration of a city's finances tests, to the Financial utmost, the quality of its government. The revenues and expenses of many cities exceed those of the States in which they are situated.* The raising and expenditure of these vast sums of money without the taint of fraud is very difficult. (1) When money is raised by taxation, we shall Taxation, see in a later chapter how, by the undervaluation and concealment of property, many persons escape their just burdens. Such abuses are more difficult to detect in cities than in rural communities, w^here business is con- ducted with less privacy. (2) The expenditure of public funds gives opportunity Theexpen- for the wrong use of this money. The citizens generally public do not vmderstand, and do not watch carefully, the proc- esses by which their money is applied to the objects of city government. This is because expenditures are made in such a great variety of ways, and because the machinery of city government is complicated. The officers who are * In 1908 the 158 largest cities of the United States (those having 30,000 population or more) spent a total of $450,000,000. The per capita expense of their governments was $16.81. 32 CITY GOVERNMENT responsible for the expenditure of money are frequently unknown to the tax-payer. These officers are more indif- ferent to the existence of abuses in connection with city finances, and the pressure of public opinion is much less direct than it is in rural communities. The table below shows the number of cities in the United States of more than 8,000 population for each census year, and the per- centage of the total population living in those cities. Number of cities Per cent. of total population Number of cities Per cent. of total population 1790 6 3.35 1860 141 16.13 1800 6 3.97 1870 220 20.93 1810 11 4.93 1880 286 22.57 1820 13 4.93 1890 447 29.20 1830 26 6.72 1900 545 33.10 1840 44 8.52 1910 1850 85 12.49 Why debts are con- tracted. / The grant- ing of powers to cities. The question of finances is most serious in cities of rapid growth. For here the extension of streets and other public improvements off'ers opportunity for advertising the city and so building up its business as well as increasing the value of its real estate. Consequently, there is always excuse, and frequently necessity, for the contraction of debts, and the proposition to issue bonds is easily carried by popular vote. In most States, limits have been set, either by law or by the State constitution, upon the amount of debts that cities may contract. (6) Attention has been called to the fact that all local governments derive their powers from the State. The city is a political corporation created by an act of the leg- islature. Two evils have arisen at this point. (1) The powers granted have not been ample enough, so that cities have found themselves unable to do things that seemed CITY GOVERNMENT 33 best for their welfare. (2) State legislatures have passed special laws granting particular cities their charters and have afterward legislated for these cities by special acts.* The corrective for this evil has been applied in a majority of States, where special legislation for cities is prohibited; cities must be organized and their powers must be defined by general laws. These laws apply uniformly to cities of the same class, as determined by their population. "Home rule" for cities, within the limits of these general laws, seems a reasonable demand. This demand will become The ques- more insistent as public opinion becomes better organized, home rule, and this will come as a result of increased attention paid by the mass of citizens to municipal affairs. This spirit of local self-government may even demand the right of the people to frame and adopt their own municipal char- ter; and this method of organizing a city, or of adopting a newer charter, has been followed in some instances. (7) The problem of municipal franchises is one of the Natural^ most difficult in the government of our American cities. It is generally recognized that because of the circumstances under which water, light, and transportation facilities are furnished, the industries that furnish these necessities tend to become monopolies, f Little or no competition between rival plants is possible. At one point these industries are different from other monopolies. * New York City has suffered greatly from this evil. A recent writer says: " The city of New York is governed from the State capitol. Scores of laws are passed every year relating to matters of purely local interest and of minor importance. A bill for a park in a densely populated portion of the city is introduced at Albany, and perhaps passed with little regard as to whether the city or the people of the locality desire its enactment. . . . This mass of legislation, which flows into Albany from New York and from every other city, overburdens the State legislature. If every bill of local interest were thoroughly considered, nothing else could be accomplished, and the interests of the State would be neglected." — Municipal Affairs, IV, 452, Sept., 1900. t See Ely, Problems of to-day, chapters 18 and 19. 34 CITY GOVERNMENT The grant- ing and pro- visions of franchises. How pub- lic service interests influence city affairs. "Stock watering.' enterprises: their operation involves the use of the city streets. Because the streets are public property, the right to construct and operate a plant is given in a franchise granted by the city council. A franchise is in the nature of a contract, the parties to which agree upon the obliga- tions assumed by each. An individual or a corporation obtaining a franchise agrees to furnish a certain quality of service. If this is not done, the penalty may be the forfeiture of the franchise. Practically, however, it has been found very difficult to enforce strict adherence to the terms of agreement, by legal procedure. The rates to be charged for service may or may not be stated in the fran- chise. If they are not, the patrons have little protection from extortion. The justice of fixing rates in a franchise depends upon the length of time for which it is to oper- ate. The growth of a city through a long term of years brings immense advantages to the industries that we have under discussion ; for the greater population can be served at only slightly increased cost to the owners of the plants. It is a consequence of these conditions that in many cities the operation of these plants has yielded excessive profits to their owners. Now, for securing by franchise the right to establish one of these public service plants men have been willing to invest large sums of money in the way of campaign contributions to control elections, and by bribery to control city councils. Again, the person or corporation already possessing a franchise often desires the extension of the time of its operation or of the rights granted by it. Social, business, and political pressure of every nature may be used to attain the desired end. The result is that public officers, instead of being public ser- vants, become the tools and agents of private interests. "When the rates or charges are excessive and dividends are large in consequence, corporations may resort to "stocic water- ing" as a means of concealing the true state of affairs. That CITY GOVERNMENT 35 is, new shares of stock are given away or sold at a nominal sum, generally to those who already own stock; so the per cent, of gain on each share is less, though the rate of profit on the money actually invested is still unreasonably high. Such being the conditions under which public service plants have been operated by individuals and corpora- tions, the question has been freely discussed, Should not the city itself own and control these industries, and fur- nish the service to the people at cost ? Two alternatives are presented: public ownership and operation, or strict control by city or State authorities. (1) It would seem that the degree of corruption attending Argu- the granting of municipal franchises is a strong argument Municipal for municipal ownership. (2) It may also be argued that °'"^^'^ 'P" since the city would not operate these plants for profit, rates could be made lower than under private ownership. (3) Municipal ownership is urged as the best means of awakening the interest of the people in city affairs. In opposition to this policy it is said (1) that the same Argu- corrupt influences that are used to secure franchises w^ould private be employed to bring about, through elections and appoint- ments, control of a municipal plant. Would not such a plant be operated for the political advantage of the party in power? (2) Private ownership, it is urged, would best secure economical management. The personal interest of obtaining profits would not operate to keep down ex- penses in the case of a municipal plant. (3) The advo- cates of private ownership point to some cases of failure where municipal ownership has been tried. They argue that the success of this plan in European cities is no cri- terion for our own country. On the other hand, statistics and testimony of successful municipal ownership are produced from some American cities. Those who do not accept municipal ownership as a desirable solution of the problem advocate various ways 36 CITY GOVERNMENT Methods of control of public utilities. Funda- mental problems in city gov- ernment. The com- mission form of govern- ment. of controlling the operation of plants under private or corporate ownership. The following regulations * are recommended : (1) No franchise should be granted for a longer term than twenty-one years. (2) The grantee should pay a fair price for the priv- ileges secured; and, in addition, a percentage on gross receipts. (3) At the end of the term, the franchise should revert to the public; the right of the city to acquire the plant, jvith or without compensation, being reserved. (4) The financial accounts of the grantee should be matters of public record, and should be open to exami- nation by an officer of the city. It may be apparent from the foregoing discussion of the problems and evils of city government that the funda- mental difficulties are two: (a) faulty organization, and (6) lack of the proper civic pride in the body of citizens. In the matter of organization, progress is being made to- ward less State interference with city affairs, civil service reform, and the concentration of power and responsibility in fewer officers. Within recent years the "commission plan" has been adopted in numerous cities. The essence of this plan is the abolition of the present division of legislative and executive functions; they are united in the hands of a small body of officers, which thus takes the powers of both mayor and council. Its adoption is now optional with cities in many States. This plan originated in Galveston, Texas, in 1901, and a modi- fication of it was soon afterward put into operation in Des Moines, Iowa. In Galveston a commission, composed of five salaried members (one being mayor), was elected at large for temis of two years. This body had both legislative and executive duties, * Adapted from " A Municipal Program," 127. CITY GOVERNMENT 37 each member being in charge of a department of the city gov- ernment. Superintendents were employed to oversee the work under the various departments. Among the arguments in favor of this plan are these: (1) Argumeata City government is chiefly a matter of administrative business, trains? rather than the laying down of general policies, which belongs this plan, to State and National governments. Good administration requires the concentration of power in the hands of a few persons, as in the case of business corporations; these per- sons should have the power both to determine and to execute the plans they consider wise.* (2) Under this concentration of power, responsibility is readily located. (3) A few men who are experts can be employed, at good salaries, to devote their en- tire time to city affairs. (4) A better type of city officers will thus be selected. (5) More civic interest will be aroused. In opposition to this view, it is claimed that : (1) Such great power should not be lodged in the hands of a few men. (2) Cer- tain parts of a city, or certain classes of people, would not be adequately represented. (3) This is a movement away from democracy. (4) It offers opportunity for corrupt men to do in- jury commensurate with their great powers. The adoption of the commission form is usually accora- Popular panied by the enactment of certain measures by which the officera. citizens may freely assert their will in important matters. Such means are the initiative, by which they may demand that the officers take action upon a certain subject; the referendum, by which the people may approve or reject measures that have been passed by the coimcil; and the recall — a device under which a certain number of voters may demand that an officer stand for re-election (against competitors, if any such appear) at any time during his term. The recall is based upon the idea, familiar in busi- The recall, ness affairs, that an employee should be held to account for questionable conduct at any time, regardless of the term of his appointment. It may be safely asserted that whatever plan of organi- * Those who advocate the "short ballot" believe in the commission plan of city government. See p. 22. 45o. 38 CITY GOVERNMENT The neces- sity for an active pub- lic spirit. Foreiscn population How cities nre extend- ing their functions. zation a city may adopt, its government will be efficient and pure only when an active public spirit directs the selection of good officers and holds them to high standards of action. The quality of this public spirit will depend upon the interest of citizens in city affairs. Doubtless the creation of a unified civic spirit is rendered very difficult by the presence in many cities of a variety of nationalities. But the final responsibility for bad government cannot be placed upon our citizens of foreign birth; nor even upon the ignorant and vicious classes. It may be fairly maintained that "there is not a city in the Union in which the honest, orderly, and industrious voters are not in a large majority." Citizens need, above all, to feel a unity of interest in good government. They need to feel the necessity of co-operation in civic improvement, private opinions and selfish interests giving way to public welfare. The attainment of this ideal is a matter of slow growth; and the new and unsettled conditions of rapidly expanding cities retard this growth. In the end, good city government will be brought about only by constant and patient attention to civic duty on the part of citizens. The growth within recent years of a better public spirit in cities is indicated by new conceptions of the possible services that a city government may render to the people. In addition to measures safeguarding public health through proper sanitation, cities have begun to establish public baths and systems of medical inspection in schools. Pub- lic parks and boulevards have long been recognized as proper means of providing for recreation; public play- grounds and gymnasiums are now being added. Many cities have regularly established an administrative depart- ment in charge of these means of recreation. School sys- tems and libraries, long the sole means of public education, are being supplemented by vacation schools, municipal art galleries, public lectures, and concerts. The need of CITY GOVERNMENT 39 proper opportunities for social life is being supplied by the use of school-houses as "social centres." Attention to the arrangement and architecture of city buildings and the beautifying of homes and streets, is another indication of the new civic feeling that is growing up in these times. Many of the reforms and improvements that have been Reform accomplished in city government are the results of study menta. and agitation undertaken by such organizations as the City Club of Chicago, the jSIimicipal Reform League of Boston, the IMunicipal League of Philadelphia, and the Good Government Clubs of New York. Numerous State leagues and the National IMunicipal League give oppor- tunity for discussion of municipal problems, besides spreading information by their publications. The public schools have a part to perform in fostering the newly awakened civic spirit of the times. Preparation for the performance of the citizen's duties is becoming an im- portant part of school work. Thus we see that the forces are at work which will ultimately solve the problems of city government. Similar industrial changes have caused the same rapid growth The gov- in European as in American cities. Between 1870 and 1890, European BerHn grew faster than New York, Hamburg faster than Bos- cities, ton, Munich faster than St. Louis. The general character of municipal government in European cities differs in several respects from that of our American cities. There the government occupies a place of greater importance. Its functions are more extended, covering besides the activities mentioned above municipal lodging-houses, markets, slaughter- houses, pawnshops, sa%ings banks, etc. Moreover, the terms of officers are longer and their tenure is more secure. Hence, office holding in some places comes to be a distinct profession for which training is required. In Germany mayors are fre- quently employed by one city after another as the heads of business corporations are in this country. Party politics plays less part in the affairs of European cities than in the United States; they have, consequently, less cor- 40 CITY GOVERNMENT ruption among city officials. The idea of a trained and perma- nent civil service is universal. Greater public interest and higher ideals of city government may be found in European cities. Supplementary Questions and References. Make a study of your (or a neighboring) city on the following points: 1. Economic reasons for its location and growth. 2. Time and circumstances of its incorporation. The original limits. Reasons for subsequent enlargement of the city. 3. The city legislature — name, number of members. How are they elected? For what terms? Are they paid? Do you think changes would be desirable in these respects? Can you make a general statement concerning the occupations and quali- fications of members? 4. The executive — title — term — salary. What are his powers of appointment? Has he the veto power? Should his powers be increased? 5. Judiciary — courts — officers — jurisdiction. 6. How many administrative departments are there? Are they under the control of committees, boards, or single heads? What is the relation of each department to the mayor? to the council ? Outline the work of each department. Does the pres- ent arrangement work successfully ? 7. Obtain a statement of the city's finances, showing receipts and expenditures. Is there a bonded debt? How is it man- aged ? Is there a sinking fund ? 8. What is the relation existing between this city and the State government? Would more "home rule" be desirable, or less? 9. How are the water, lighting, and street-car plants man- aged? Would you change the system? Do you favor the ex- tension of the city's functions in other directions? 10. What kinds of street pavement are used? What is the best kind? How much does it cost? 11. What method of garbage disposal is in use? How are the streets cleaned ? Are these methods effectual ? Can students CITY GOVERNMENT 41 in the public schools help in keeping the city clean? Can they do anything toward beautifying the city? 12. What is the organization of the police department? Can you recommend improvements? If an officer fails to enforce an ordinance, what course would you take to secure its enforce- ment? 13. Does your city have to deal with problems of the slums and tenement houses? Is there a large foreign-born element? Would you recommend any limitation of the suffrage? 14. Are independent or reform movements successful in this city? 15. What are the excellent features of the city's government? What are its faults? What reasons can you assign for its ex- cellencies and its failures? 16. Organize your class as a city council and pass ordinances that you think beneficial. 17. The most useful books on city government are the fol- lowing: Bryce, American Commonwealth, I, chapters 50-52; II, chapters 88, 89; Conkling, City Government in the United States; Wilcox, The Study of City Government; Devlin, Mu- nicipal Reform in the United States; Tolman, INIunicipal Reform Movements; Bliss, Encyclopedia of Social Reform; Riis, How the Other Half Lives; Howe, The City, the Hope of Democracy; Beard, American Government and Politics, chapters 27 and 28; Zueblin, American Municipal Progress; Rowe, Problems of City Government; Goodnow, City Gov- ernment in the United States. 18. For arguments for and against municipal ownership, see the following: Arena, 30 : 392-400; 504-509; 32 : 461^71; 33 : 361-369; Indept., 53 : 2632-2636; 55 : 93-96; 60 : 449- 452; 1153-1157; Outlook 82 : 504-511; Rev. of R's, 33 : 724- 725; 35 : 329-333. 19. The commission form of city government. Arena, 38 : 8-14; 144-149; Cen. Mag., 42 : 970; Indept., 63 : 195-200; Outlook, 85 : 834-835; 839-843; Rev. of R's, 36 : 623-624. 20. Civic beauty. Indept., 54 : 1870-1877; World's Work 11: 7191-7205; Rev. of R's, 38 : 355-357. 42 CITY GOVERNMENT 21. City playgrounds. Indept., 65:420-423; In Chicago, Outlook, 81 : 775-781. 22. Juvenile courts. Indept., 58 : 238-240; Rev. of R's, 33 : 304-311. 23. Fire protection in cities. Outlook, 88 : 681-693; Rev. of R's, 38 : 703-713. 24. European cities. Rev. of R's, 41 : 752-753; Comparison with American cities, Scribner's Mag., 40 : 113-121. German cities. World's Work, 15 : 9913-9920; Outlook, 83 : 618-620. 25. Articles upon particular cities. Brookline, Arena, 32 : 377-391; Detroit, Outlook, 91 : 206-216; Chicago, Outlook, 92 : 997-1013; New York, Rev. of R's., 40 : 594-601. 26. Miscellaneous. The ideal city. Outlook, 93 : 141-142; Better business methods. Rev. of R's, 37 : 195-200; Civic better- ment. Rev. of R's, 39 : 77-81 ; Smoke problem, Rev. of R's, 39 : 192-195; Citizenship in cities, Outlook, 82 : 271-273; City elections. Outlook, 89 : 371-375; Expansion of municipal ac- tivities, Arena, 33 : 128-134; Problems, Indept., 59 : 902-908; The budget, Outlook, 92 : 1048-1059; The menace of crowded cities, World's Work, 16 : 10268-10272. CHAPTER V ELECTIONS AND PARTY GOVERNMENT In the local and State governments of our country the Times of number of officers elected is very large and the terms of office are short; hence elections are of frequent occur- rence. Town, village, and city elections generally occur in the spring of the year, while State and county officers are elected at the same time with members of Congress, on the Tuesday after the first Monday of November in the even-numbered years. There are, however, some excep- tions to these general rules. Since suffrage qualifications are fixed by the different Sufifrage States,* there are many variations in details, though gen- tions. eral agreement prevails upon the fundamental require- ments. (1) The age at which a person may vote is uni- formly twenty-one years. (2) Manhood suffrage is usual, but a few States have granted full suffrage to women. In most States of the Union women vote at school elections. (3) It is usual to require a residence of six months or one year in the State where a person wishes to vote; also, a brief term of residence in the election district. (4) Full United States citizenship is required in a majority of the States. In the others a foreigner who has declared his intention to become a citizen is given the right to vote. The right of suffrage is withheld from certain classes of citizens, such as the insane and the feeble-minded, and * The National government controls suffrage in the States through Amendment XV of the United States Constitution; also, indirectly, through Article I, section 2, clause 1. Section 2 of Amendment XIV might, if it were enforced, act as a restraint upon the States in their re- strictions of the suffrage. See pp. 142-143. 43 44 ELECTIONS AND PARTY GOVERNMENT those who have been convicted of certain crimes. One hundred years ago there were property qualifications for voters in every State in the Union. The democratic movement of the first third of the nineteenth century swept these laws away. At present the payment of a tax is a requirement in a few States. An educational qualification has been fixed in a few of the Northern and in several Southern States. Woman suffrage. The question of full woman suffrage is attracting attention, partly as the result of agitation carried on in Great Britain, where women vote for all elective officers except Members of Parlia- ment and now demand the latter privilege. In most European countries, women have more or less limited privileges of voting; generally they must be property owners, have certain incomes or be engaged in business. In Australia and New Zealand they have full suffrage rights. Registra- tion. Within recent times great changes have taken place in the manner of conducting elections in the United States, as the result of efforts to check wide-spread election abuses. Among these abuses was "repeating"; that is, voters went from one polling place to another, voting at each. It was comparatively easy to commit this fraud in large cities; the enactment of registration laws has materially checked this evil. At a stated time before an election the voter must have his name and residence recorded with the election officials. The registry lists are published so that false registration may be detected. Such laws exist in a majority of the States, though their action is in some cases confined to the larger cities, and here the laws are some- times not strictly enforced. As each ballot is cast the voter's name is checked in the registry list. Voters who have failed to register may "swear in" their votes; that is, take oath that they are qualified electors. This opens the way to fraud and is consequently prohibited in the ELECTIONS AND PARTY GOVERNINIENT 45 large cities. In the main, it is recognized that registra- tion must be a feature of every good election system. Many other forms of election abuses were checked bv ^he Aus- •' " tralian bal- the adoption of the Australian ballot system, which now lot system, exists in all but one or two of the States. Under former election methods, each political party printed its own list of candidates, or the tickets might be printed by individ- uals. A variety of frauds might then be committed. A number of tissue-paper ballots were sometimes folded to- gether and cast as one ballot. Candidates could have ballots printed like those of the rival party with the exception of one or two names. Or, slips of gummed paper (called "pasters"), with the name of one candi- date, could be fastened upon the ballots. In these and similar ways ignorant and careless voters were often deceived. Hence we now have the official ballot, printed by the government, on which the names of all the can- didates must appear. Another essential feature of the Australian ballot system is secrecy. The ballots must be obtained from election officials within the election booth; screened shelves are provided to which the voter must im- mediately take his ballot and mark it. He must then fold and cast the ballot without communication with any but election officials. "Electioneering" is prohibited with- in or near a booth. Two forms of the official ballot are used, as illustrated below. (1) The original Australian ballot form. For Governor. Party, A. B Democratic. CD Prohibition. E. F Republican. For Lieutenant-Governor. Party. G. H Prohibition. I- J Republican. K. L Democratic. 46 ELECTIONS AND PARTY GOVERNMENT For Assemblyman. M. N Republican. O. P Democratic. Q. R Prohibition. (2) The modified American form. State Officers Governor Lieutenant- Governor . . . . Member of As- sembly Democratic A. B. I. J. O. P. Prohibition CD. K. L. Q. R. Republican E. F. M N. S. T. Individual Nominations The canvass. More intelligence and care are required in the use of the first form; the second form favors the voting of straight tickets. In spite of these reforms in election methods and the devices for preventing fraud and bribery, there still exists a considerable amount of illegal voting. This Is possible in great cities, where there is a large floating population;* also in certain States, where the parties are nearly equal in strength. Corrupt election officials sometimes violate even the most carefully framed regulations of law. These officials are ordinarily selected from the two leading par- ties. Challengers, who also represent parties, are allowed to question the right of any person to vote. After the polls are closed, the counting of votes, or official canvass, takes place. Returns from the election precincts are sent to the city, county, and district can- vassing boards to be tal)ulated. The results are then sent to the State canvassing board. Each board has authority to decide which candidates are elected within * Hence the term "floaters" for purchasable voters. These may be "colonized," i.e., temporarily located in a certain ward for voting pur- poses. ELECTIONS AND PARTY GOVERNMENT 47 its jurisdiction. Certificates of election are issued to successful candidates, and thus the process of election is completed. An election is but the final step by which the voters express their judgment in selecting men for office. Two other steps, both vital in their importance, must be dis- cussed in gaining a view of the entire process: tnz., the making of nominations and the management of political parties. The work of nominating candidates, the conducting of Party ,. . , . II , -IP commit- pontical campaigns, and the general oversight oi party tees. interests in an election, are all in the hands of a series of committees organized in each of the political parties. Thus, each party has a local committee in every towTi, village, and ward. There are also, for each party, city committees for the management of party machinery in cities; county committees; a State committee, which controls campaigns and determines party policy in the State; and, finally, a National committee for the management of each National party organization. Besides these, there may be com- mittees for each State Senate and Assembly district, and for each Congressional district. All except the local com- mittees are appointed in the party conventions.* The two principal methods of making nominations are (1) the caucus and convention system and (2) the primary election system. Within recent years the latter has dis- placed the former in many of the States, for reasons that will be stated. A caucus, or primary, is a meeting at which all the The caucus voters of a party in a town, village, or ward may assemble. Before the election of town, village, and ward officers, caucuses will nominate candidates directly. For all but these local elections {i.e., for the nomination of county, * This account represents the party organizations as complete; they are not so in many parts of the country. or primary. 48 ELECTIONS AND PARTY GOVERNMENT Political conven- tions. Character- istics of the system. Defects of the system. State, and National officers) a second step is necessary; the caucuses choose delegates to conventions where these nominations are made. Thus, before a general election, we have county conventions for the nomination of county officers; various district conventions, where candidates are nominated to nm for the State legislature and for the National House of Representatives; State conventions, composed of delegates chosen at county or district con- ventions; and, finally, in years of presidential elections, there are still other series of caucuses and conventions, culminating in the great National conventions, where presidential nominees are selected. (See p. 216.) Besides nominating candidates for offices, the various conventions mentioned elect party committees and adopt party platforms. The platforms contain statements of party doctrine and pledges of party policies. One characteristic of the caucus and convention system is that the mass of voters participate in the process only in the town, \illage, or ward caucus. Elsewhere, they are represented by delegates or committees. In conventions of the largest units (State, Congressional district, and National conventions) the delegates are twice removed from the voters. Another feature of this system is its com- plexity. To nominate the various groups of officers in a "general election" year, two, and sometimes more, series of caucuses and conventions are held. Because of these facts, abuses have arisen in connection with this method of making nominations. Usually much less than one-half, and in many places less than one-tenth, of the voters attend the primaries. This is accounted for by the indifference of some, the ignorance of others, and the inability of still others to understand the complexities of this method of making nominations. Again, caucuses are in many instances capable of being manipulated by political leaders to suit their own ends. In the next place, there is no assurance that the delegates elected by a caucus will fulfil the wishes of ELECTIONS AND PARTY GOVERNMENT 49 a majority of the voters. This is especially true when conven- tions elect delegates to still other conventions. There is no way of holding a delegate responsible for representing accurately those who chose him. In conventions, then, skilful politicians may bring pressure to bear upon delegates to direct their votes from the line of public into that of private interest. This may be done by bribery, by the trading of votes, or by promises of business or political advantages. Because of these abuses, a demand arose that voters The select candidates direcihj, through the prhnary election sys- election tem, instead of indirectly through delegates.* Where this system prevails, nominating conventions are abolished. Any person who secures a certain number of signatures to a petition (or "nomination paper") can have his name placed upon the party ballot that is used at the primary election. On the day of this election, each voter may vote directly for the men whom he wishes to be his party's candidates for the various offices. The names of the men who receive the highest number of votes will be placed upon the official ballot used in the regular election. It is thought that through primary elections (1) candi- its advan- dates will more truly represent the choice of the mass of ^^^^' voters in a party; (2) that because they vote directly for candidates the voters will take more interest and partici- pate more freely in the nominating process; and (3) that it will be more difficult for men to further selfish ends through the manipulation of a few delegates. * "The movement was in part a democratic one, and was animated by a desire for wider popular participation in government. In this sense it was a part of a broad tendency in the direction of popular control over all the agencies of politics. The referendum, the initiative, the recall, and the direct primary are organic parts of a general growth of democratic sentiment, demanding methods by which more direct responsibility of the governor to the governed be secured. ... In the last ten years [1898-1908] about two-thirds of the States have enacted direct primary laws of various types. Some of these laws have been obligatory and others optional; some have been general in application and others merely local." — Merriam, Primary Elections, 69-70. 50 ELECTIONS AND PARTY GOVERNMENT Nomina- tion by petition. The work of political parties. In States having the primary election system, conven- tions are still held for the purpose of selecting party com- mittees and for the adoption of party platforms. Such conventions may be composed either of delegates or of the candidates already nominated. It will be noticed that both of the nominating systems dis- cussed above assume that candidates represent poUtical parties. When non-partisan candidates are desirable, then another method is in use — nomination by petition. Any person securing a cer- tain number of signatures to his petition may have his name placed upon the election ballot. This is done frequently in the election of judges and school officers, and is becoming more common in city elections. For voters more often break party lines upon city issues than was formerly the case. A part of the work of political parties is referred to in the preceding paragraphs. They are organizations of voters which (1) help to determine public policies through the adoption and carrying out (or refusing to carry out) party platforms; (2) they take charge of the nomination of can- didates for office; (3) they conduct campaigns in order to secure victory in elections; and (4) they constantly exert influence upon the conduct of the officers who make and execute our laws. It would seem that the sole object of a political party is the securing of certain policies in gov- ernment through the election of certain men to office; and that in the long run the government in the hands of the victorious party should reflect the views and follow the wishes of a majority of the voters in that party. But these theoretical propositions are subject to many modifications in practice. Unfortunately, the absorption of the voter in his private affairs makes him too often indifferent to the conduct of government. In the second place, the great body of voters in a party, even if they have the inclination, have very inadequate means of originating a policy or impressing their views upon men in office. The ELECTIONS AND PARTY GOVERNMENT 51 result is that the management of political parties falls into the hands of a comparatively feiv men. They urge policies upon voters; they select the men who become candidates; they conduct the machinery of campaigns ; and they either become the officers themselves or control those persons in office whom they have placed there. A few men can control a political party by thorough a few men organization. They have their subordinates in different control, localities, and these in turn have subordinates who carry out orders from their superiors. A thoroughly organized body of political workers who dominate a party rn this way is called a "machine." Its operations are generally directed by a "ring" or a "boss." Now, the motives that inspire the machine and the Machine methods it employs may be either good or bad. Organ- ization, leadership, and machinery are always necessary to secure harmonious action in bodies of men. But the opportunities for corruption in our party system are many; so that the politicians who will make freest use of corrupt means to gain their ends are very apt to succeed, when those who are less unscrupulous will fail. Conse- quently, the phrase "machine politics" is generally under- stood as referring to political methods that have little to recommend them, if they are not thoroughly bad. The work of parties cannot be accomplished without Corrupt the expenditure of money — sometimes the sums are many acis^. "^^ thousands of dollars. This is contributed by candidates, by private individuals, and by the representatives of busi- ness houses and corporations. Here is one important source of corruption in our government; for those who contribute with selfish ends in view, rather than from principle, expect rewards at the expense of public interest. So great have evils of this kind become that many "cor- rupt practices acts" have been passed intended to check them. Besides providing severe punishment for bribery 52 ELECTIONS AND PARTY GOVERN]MENT and the buying of votes, these laws require the publica- tion of campaign expenses by candidates. In some States cor|:)orations are prohibited from making campaign con- tributions. Limiting the amount that may be contributed or expended is another way of combating this evil. The voter's All sucli laws and all real reforms in the laws regulating dutv in .11. 11 T-i 1 1 • politics. parties and elections are excellent. But laws and consti- tutions merely indicate the form of our government; its spirit may be very different if the provisions of law are nullified in practice. Experience shows that this is very liable to happen wherever the mass of citizens become in- different to the conduct of public affairs. The voter can exert his influence in many ways, within his party, for good government. He can sometimes best serve his party by turning against it; for the fear of such independent action may restrain party leaders when nothing else will. Supplementary Questions and References 1. In your State — What are the times fixed for elections? The qualifications of voters ? The legal regulations governing registration — the ballot — provisions for secrecy — election officers — the oSicial can- vass ? 2. What method of making nominations is most usual in your State? Are other methods allowed? What are the advantages and disadvantages of each ? 3. Why are women given the right to vote in school, munici- pal, or financial matters only, in some States? 4. Do you believe in a property qualification for voters? An educational qualification ? 5. Find in a newspaper almanac the list of States that pre- scribe educational qualifications for voters; also, property tests. In what States have women been given full suffrage? 6. The laws of a number of States permit the use of voting machines. See Forum, 28 : 90-93. ELECTIONS AND PARTY GOVERNMENT 53 7. Follow in detail the steps leading to a general election in your State: (1) Notices of election — when and by whom issued. (2) Action of party committees. (3) INIethod of nomination of county and State officers and Representatives in Congress. (4) Party platforms. (5) Conduct of the campaign — raising and expenditure of money — distribution of literature — political speeches, etc. 8. Should women be given the full right of suffrage ? Atl. Mo., 96 : 750-759; 102 : 196-202; Forum, 43 : 264-268; Indept., 58:1309-1311; 68:686-089; N. Am. Rev., 183:484-498, 1272-1279; 186 : 55-71; 189 : 502-512; 190 : 158-169; 191 : 526-536, 549-558; Outlook, 82 : 167-178; 91 : 780-788; Rev. of R's, 36 : 479-482; 38 : 94-95; 39 : 626-627. 9. Negro suffrage. Atl. Mo., 88:433-437; 94:72-81; Indept., 55 : 2021-2024; Outlook, 87 : 529-531. 10. Nominating Systems and Primary Reform. Arena, 35 : 587-590; Forum, 33 : 92-102; 42 : 493-505; Outlook, 90 : 383-389; 91 : 426-428. 11. Ballot and election reform. Indept., 68 : 1020-1026; N. Am. Rev., 189 : 35-42. 12. Our party system is discussed in Bryce, II, chapters 53-75; Bliss, Encyclopedia of Social Reform; Beard, American Government and Politics, chapter 30. CHAPTER VI PUBLIC FINANCES Why taxes are neces- sary. Valuation of property. The operations of government cannot be carried on without the expenditure of money. To meet this expen- diture, those who are benefited by the protection and security that government affords must be taxed. More- over, as the functions of government are extended to in- clude the furnishing of conveniences and the maintenance of institutions that instruct and elevate the people, in- creased outlays of money become necessary, and, conse- quently, more extensive taxation. The raising and ex- penditure of public money is, then, a subject of the greatest importance. State and local governments raise money in various ways, the principal ones being by taxation and by borrowing. Methods of taxation will first be treated. (1) The general property tax. This form of tax exists in all the States. It is based upon the theory that each person's contribution to the support of government should be in proportion to the amount of property that he owns. The first step in determining the amount of taxes he shall pay is the placing of a valuation upon his property; this is done by local or county officers, called assessors. The assessment roll contains the name of each tax- payer, with a list of his property and its value. State laws usually require that this be full cash, or actual, value; but undervaluation is the rule rather than the exception. Since the amount of an individual's taxes depends upon the assessed value of his property, it is natural that prop- erty-owners should frequently think that their assess- ments are too high. They are accordingly allowed to 54 PUBLIC FINANCES 55 appeal to a local board, which has the power to review and correct assessment rolls by lowering or raising val- uations. The board may also add to the list of property recorded on the roll, and may strike out property that is illegally assessed. Now, just as there is difficulty in fixing satisfactorily the valuation of each individual's property, so a similar difficulty is experienced in adjusting valuations among the villages, towns, and cities. For the county and State taxes that each local unit must pay depend upon its total valuation. Each assessor is tempted to keep valuations low in order that his local unit may not be heavily taxed. To remedy this difficulty, a county board of equalization is provided, which has the power to raise and lower valuations, as shown in the assessment rolls. In some States this board may change individual valuations; in others simply the total valuation of each local unit. Again, we have a like difficulty in the next step of the process. The amount of taxes which the property-owners of a county will be called upon to raise for State purposes will depend upon the valuation of the property in the county. Consequently, county authorities are apt to think it incumbent upon them to see that their valu- ations are low, so that their State tax will be low. To correct this tendency toward undervaluation. State boards of equahza- tion have been established in many States, with power to re- view the county assessments and to place them on a basis of relative equality. The rate of taxation is determined in each local unit. To the total amount necessary for purposes of the local government is added its share of the State taxes that this local unit must bear. This sum is divided by the total valuation of all the property in the local unit. This gives a percentage which is the tax rate. Applying this rate to each person's valuation determines the amount of tax he is to pay. The property-owner pays taxes but once each year, and he seldom knows what share of his payment goes toward the support of each government that taxes him. In some States the payment is made to the local treasurer, Equaliza- tion of valuations. How the rate of taxation is calculated. Collection of taxes. 56 PUBLIC FINANCES Exemp- tions. How this system works injustice. and in others to the county treasurer or collector. When local treasurers collect taxes they deduct the amount raised for local purposes before sending the balance to the county treasurer. After the amount levied for county purposes has been kept out, the county treasurer sends the balance to the State treasurer, and thus the process is completed. The failure to pay taxes renders property delinquent. It may then be seized and sold. After taking the amount due for taxes and expenses, the remainder, if any, is re- turned to the original owner. Some descriptions of property are quite uniformly ex- empted from taxation; such are, all property belonging to Federal, State, or local governments, and the property of educational, religious, scientific, and benevolent associa- tions. In some States, also, a certain amount of the per- sonal property, such as the household furniture, of each property-owner is exempt from taxation. The faults found in the general property tax system are serious, (a) Undervaluation is very common and pro- duces great injustice. If, in a given community, all prop- erty were uniformly imdervalued, no injury would result; this would simply raise the rate. But certain individuals may secure, either through fraud or error, lower valuations than others having the same amount of property. Again, the man of small property is more likely to have his assess- ment placed near its actual value than is the man of wealth. The assessment of property is more accurate in farming communities than in cities. This places a heavy burden upon the farmer.* (6) Another evil of this form of taxation arises from the fact that personal property (jultc generally escapes taxa- tion. Property is divided into two classes: real estate, * It was estimated by a California commission on revenue and taxation that the farmers paid in taxes five times as much in proportion to their income as was paid by manufacturers. escapes taxation. PUBLIC FINANCES 57 which includes land and the fixtures thereon, as buildings Most and improvements; and personal, which includes all other pr^e^y property. Under the head personal property are placed furniture, clothing, jewelry, merchandise, farm products, live-stock, machinery, books and pictures, money, stocks, bonds, mortgages, notes, and credits. It is apparent that manv of these things have values that an assessor can- not easily ascertain by inspection; other articles mentioned in the list are easily concealed. As a consequence, the ap- pearance of personal property on the assessment rolls, and its assessment at values that are an}'where near actual value, depend upon the honesty of property-owners. In most States, assessors may, and in some States they must, take a sworn statement from each property-o\\Tier as to the actual value of his property; but this does not effec- tively correct the evil. Those who make complete re- turns are apt to be of the poorer class, besides trustees, administrators, and guardians who have legal control of property belonging to orphans, widows, and dependent persons; for the value of these estates is a matter of pro- bate court record. It is apparent that our general property tax places an unjust burden upon the poor, the rural classes, the honest, and the helpless. It was adopted at a time when the distribution of property was more equal than at present, and before the growth of large cities and great industries. These new conditions demand new methods of taxation; but no single, practical substitute has been discovered and put into operation. Public interest has been aroused upon this subject, however, and some of the methods of taxation next discussed are intended to correct the ine- qualities of the property tax. (2) The corporation tax. In a few States, a general cor- Corpora. poration tax is imposed which is a fixed rate on the capital stock, or the earnings, of all corjjorations doing business tion taxes. 58 PUBLIC FINANCES in those States. Again, the rules of taxation applied to different classes of corporations may vary in the same State. The taxation of railroad property by local authori- ties has been quite generally abandoned, on account of the inequalities of assessment under this plan. In some States a special board values all railroad property in the State; in others this property is not taxed, but instead a tax is laid on the gross earnings, mileage, or capital stock of these corporations. Telegraph, telephone, express, and insurance companies are also subject to special taxes based on gross receipts, mileage of wires, etc. Franchise (3) Franchise taxes are becoming increasingly common in the States. Individuals and corporations operating water, lighting, and street-car plants are considered as possessing valuable property in the right, vested in them by their franchises, of using the streets. This privilege, it is said, as well as their tangible property, is a source of their income, and so should be taxed. Reasons (4) Inheritance taxes are especially designed to reach tance taxes, the property of the very wealthy. It is believed that large fortunes result not merely from individual industry, but quite as much from the growth of the communities where they are accumulated. Hence the community should share in the distribution upon the death of the holder. Again, it is assumed that an undue proportion of these fortunes escapes the property tax; also, that their perpetuation in the hands of a few individuals is socially undesirable. This tax is easily collected, since probate court records state the amounts bequeathed. The rates are usually higher on collateral bequests, i. e., those de- scending to others than the immediate family of the deceased. In some cases, also, the rates become higher as the amounts bequeathed become greater.* * In a law of Wisconsin (1903) the rates vary from one per cent, to fifteen per cent., depending upon the degree of relationship and the amount inherited. California has a similar law. PUBLIC FINANCES 59 (5) The income tax exists in a few States, but its use is income being extended to others. It also is intended to reach the richer classes, since an exemption is always provided for the smaller incomes. Here, as with the inheritance tax, the rate should be made progressive, i. e., the larger the amount taxed, the higher the rate of taxation. (6) The poll tax, a fixed sum payable by male persons between certain ages, is collected in some States, though prohibited in others. (7) Licenses. The greatest amount of revenue is de- rived under this form of taxation from liquor dealers. In addition, auctioneers, showmen, peddlers, hackmen, and draymen often pay license fees. Besides the revenue gained, the governments find the license system advan- tageous as a means of controlling these occupations. (8) Government revenue is also derived by the exaction Fees, of fees for the performance of official services. These fees are frequently a perquisite of the officer performing the services; but many times it is found more economical to pay the ofiicer a salary and turn the fees into the public treasury. (9) In cities, we find the practice of levying special Special assessments upon property that has been enhanced in value ments. by virtue of some public improvement, as, the pavement of a street. This tax may be made to cover the greater part of the expense involved in making the improvement. Such are the various forms of taxation used by the State and local governments of this country. Two other sources of income are now to be noted: charges and borrowing. When a government owns property that is used by Charges. individuals or corporations, a charge is made that be- comes a part of public revenue. Under this head come the tolls collected for the use of roads, bridges, and docks; the income derived from the rent of land and water privileges; and the charges made for water, for lights, and 60 PUBLIC FINANCES Borrowing by States and cities. The appropria- tion of money. Auditing accounts. for street-car transportation when the plants furnishing these conveniences are owned by municipalities. The ordinary process by which a government borrows money is through the issuance of bonds. These are prom- issory notes bearing interest. It is customary to submit the question of issuing bonds to popular vote. The his- tory of the debts incurred by many States shows the lack of wisdom sometimes displayed in this matter.* The bonded indebtedness of cities reaches an enormous figure. This seems necessary in most instances in order that future generations may share in the expense of public im- provements which can be made most economically at the present time. Money brought into public treasuries by taxation and the other methods described is subject to appropriation by legislative bodies: town meetings, town boards, village and county boards, city councils, and State legislatures. Lack of wisdom, corruption, and extravagance may at- tend the making of appropriations by these authorities. Such abuses have brought about the enactment of consti- tutional restraints upon the character and amounts of appropriations that may be made. The debt limitations that are found in many State constitutions are similar restraints. The actual expenditure of public money is made either by committees of the legislative bodies just mentioned, or by executive and administrative officers. A good sys- tem of public accounts requires that these officers shall be directly responsible to the local governing board or to a special officer called comptroller or auditor. The accounts of every officer who handles i)ublic funds should be audited ; the sources of each part of the money received by him should be correctly acknowledged. He should pre- * The raf^e for internal improvements about 1830 furnishes an example. American History, 300, 311. PUBLIC FINANCES 61 sent vouchers, or receipts, for every amount expended, and each expenditure should be properly authorized by law. Supplementary Questions and References 1. In your State, (a) who assesses property ? (6) how are assess- ments equalized? (c) by whom and when are taxes collected? 2. What is the present rate of taxation in your locality ? What parts of this rate provide for local, county, State, and school taxes respectively ? To what extent is there undervaluation ? Does personal property bear its share of taxation? What remedies do you suggest for abuses that exist in these matters? What is fundamentally wrong? 3. What forms of taxation are used in your State besides the general property tax ? How does each operate ? Is it successful ? 4. Examine the financial reports of your local, county, and State officers to ascertain the sources of revenue and the pur- poses of expenditure. In each case, what is the process of audit- ing accounts? 5. For general descriptions of State taxation see Bryce, I, chapter 43; Beard, chapter 31; Encyclopedia of Social Reform, chapter on Taxation. CHAPTER VII JUDICIAL TRIALS Thus far in our study of government we have had in mind chiefly the processes by which laws are enacted, and executed or administered. If all men could agree upon the exact meaning of these laws, and if all were disposed to obey them, little more government than has been described would be needed. Because neither of these suppositions is true, another distinct department of government — the judiciary — becomes necessary. Civil cases. Cases arise through differences in the interpretation of law and through its violation. There are two kinds of cases, civil and criminal. When one party to a suit (the plaintiff) brings action against the other (the de- fendant) for the protection or enforcement of a private right, we have a civil case. Some common examples of civil cases are those involving questions of the fulfil- ment of contracts; the relations of employer and em- ployee; the possession of property; the collection of debts ; and the validity of deeds and mortgages. In a criminal case it is charged that a wrong has been committed, in most instances against an individual, but of such a nature that the public peace, dignity, and secur- ity are also affected. These criminal acts are defined by law, and penalties have been affixed to their commission. At the same time the injured person is generally entitled to compensation, or damages, for the wrong he has re- ceived. Because public interests suffer from the commis- sion of crime, the State is plaintiff in all criminal cases. Arrest. The methods of procedure in ordinary cases are very similar throughout all the States. In a criminal case, G2 Criminal cases. JUDICIAL TRIALS 63 formal complaint must first be made before a justice of the peace or other judicial officer. A warrant for the arrest of the supposed criminal will then be issued. The arrest may precede these steps if the criminal is caught in the act. If the crime charged is a minor offence, the trial may take place at once in the justice or municipal court. A more serious offence, however, must be tried in a higher court — the district, circuit, or superior court of the county. The constitutions of most States provide that no per- The grand son shall be held to answer for a criminal offence of a serious nature unless on presentment or indictment of a grand jury. In those States, the justice court merely examines into the evidence sufficiently to ascertain whether the accused shall be held until the next session of the grand jurv'. This is composed of from twelve to twenty-three citizens chosen by lot from the co»-mty. Its sessions occur at stated times and are secret. The district attorney presents to it e\'idence against persons supposed to have committed criminal acts, and witnesses are brought be- fore it, who are required to give evidence. If there is indictment probability of guilt in any instance, the person charged is indicted; that is, he is held for trial. He may be impris- BaU. oned, or released on bail. A bail-bond is signed by sure- ties, who agree to forfeit a certain sum of money if the prisoner does not appear at the trial. The arrest and examination of accused persons by a Present- . ment. local justice need not precede the action of the grand jury. The district attorney often produces evidence against per- sons who as yet stand unaccused; if the grand jur}' in- dicts them, they are at once arrested. The grand jury need not await the action of the attorney, but may proceed to investigate supposed cases of wrong-doing. If it con- cludes that certain persons should be brought to trial for offences, they are presented. 64 JUDICIAL TRIALS Petit and trial juries In some States the grand jury has been dispensed with, for ordinary cases, and all proceedings preliminary to the trial are conducted in a justice court, or other court inferior to the one having jurisdiction to try the case. These proceedings are called the preliminary examination. The lower court is given authority to decide, after hearing the evidence presented, whether the ac- cused shall be held for trial. In extraordinary cases, however, provision is made for calling a grand jury. For the trial of cases in the principal court of a county, a 'petit jury is provided. The juries are summoned by venire and are obliged to be in attendance at the court dur- ing its session. When a case requiring a jury is called, a trial jury is selected by lot from the list of petit jurors. As the names of these are drawTi, any juror may be chal- lenged by either party to the case. He will be excused by the judge from serving on the trial jury if good reasons are shown. Each side is allowed to reject a certain number of jurors without giving reasons; that is, by peremptory challenges. The drawing of names must continue until twelve are secured who are eligible to serve in the trial of this case. In the meantime, witnesses have been subpoenaed, and the case begins by the direct examination of its witnesses by the prosecution. They are cross-examined by the de- fendant's attorney, and the testimony of the defendant's witnesses follows. Then come the arguments of the lawyers. The judge charges the jury as to the law that applies in the case, and it then retires from the court to Verdict and decide what facts have been proved by the evidence. The judgment. . . , . verdict of the jury is followed by the judyment rendered by the court. If found guilty, sentence is pronounced against the prisoner, though the judge may, if the verdict grossly violates law or justice, set it aside. Execution of judg- ment is the carrying out of the court's decision by the sheriff or other executive officer. Throughout these proceedings the presumption favors The process of trial. JUDICIAL TRIALS 65 the innocence of the prisoner; the State must prove, be- Appeals, yond a reasonable doubt, that he is guilty. The judge decides legal questions that may arise concerning the con- duct of the trial. Either party may make objections to these rulings, and the defeated party may make its excep- tions to the court's decisions the basis for a demand for a new trial, or for an appeal to a higher court on vn-it of error. The supreme court, or court of appeal, examines the questions of law that are involved, and either confirms or reverses the decision of the lower court. A civil case is begun by complaint of the plaintiff against Trial of the defendant. A summons is issued, calling the defend- ant to appear in court and make answer to the complaint. Cases involving small sums of money are tried in justice courts, and here the trial is sometimes without a jury, or with a jury of only six men. Cases involving larger amounts are tried in the principal court of the county, where the procedure is quite similar to that described in a criminal case. In the execution of a judgment against the property of a person, the constable or sheriff has power to seize and sell all property that is not exempt. It is sometimes claimed by one party to a case that Change of the community where the case arises, or the judge before whom it is to be tried, is prejudiced to a degree that ren- ders an impartial trial impossible. A change of venue may then be granted; the case is carried to another court, or another judge is called in to preside at the trial. Many problems have arisen, in connection with the ad- The en- ... ».. T 1 11 • iii* forcement mmistration of justice, that demand the senous attention of lav.-. of citizens. Some of these we shall consider. (1) When the violation of law is a matter of common knowledge in a •community, and no one is accused and held to answer, who is responsible ? The basis of a warrant of arrest is a complaint, containing a specific accusation, and accom- panied by the statement of the complainant, imder oath, 66 JUDICIAL TRIALS Difficulties in law enforce- ment. The law's delays. that in his opinion the accused is guilty. Now, it is the sworn duty of officers to obtain the information upon which a complaint may be based, whenever they know or have reason to suspect that the law has been violated. If they persistently neglect this duty, the sentiment of the community should compel its performance. But at times the public conscience becomes so blunted that officers ac- cept or even extort payments from law-breakers for shield- ing them from punishment. Not officers alone, but any citizen may make a complaint. But private citizens, particularly those who are most anxious to see the strict enforcement of law, find it diffi- cult to discover sufficient evidence upon which to make a sworn statement. Besides, the prosecution of criminals by persons who do not directly suffer injury from the criminal acts, is likely to cause criticism that is distaste- ful and hard to bear. It is much easier for the average citizen to let such matters alone, and attend to his own private business. In the meantime, public funds may be stolen, or the health of the community threatened, or its youth put in danger of moral corruption — all for lack of a complaint, specific in its accusations, and supported by definite evidence. These reasons most frequently answer the question, "Why is not the law enforced?" At the bottom, it is a question of public conscience. In communities where a low moral standard prevails, a few determined leaders, willing to sacrifice time, labor, and comfort for the public good, have sometimes aroused the entire public to action. No service to the community could be more commendable than this. (2) Other causes for discontent with our judicial sys- tem arise in connection with court i)rocedure. There is sometimes the delay of justice through the postponement of cases for trivial reasons. Criminal cases may drag along for months until public interest subsides. In civil JUDICIAL TRIALS 67 cases a wealthy litigant may secure postponements until the resources of his poorer opponent are exhausted. (3) The course of a trial in its various stages and some- Technical- times the final decisions of judges are too often determined law! upon grounds that are purely technical. That is, the pro- cedure or the decision follows some arbitrary rule, rather than doing justice according to the facts in the case. Many criminals escape punishment in this way. (4) Much evil in trials comes from the sharp practices Legal com- indulged in by attorneys. These men are sometimes em- ^ "^'^ '°"^' ployed by those who can afford to pay the highest salaries, apparently for the purpose of finding loop-holes in the law and defeating its real purpose. This evil, as well as others mentioned, are possible partly because our legal system and our methods of conducting trials are unneces- sarily complicated. (5) Miscarriage of justice can in some cases be charged against judges, but this is quite exceptional. However, the short terms and small salaries of these officers subject them frequently to temptation. (6) Numerous evils have crept into the administra- The jury tion of the jury system. The local officers who make the ^^^ ^'"' original lists from which petit jurors are drawn, are sometimes influenced in the selection of names by politi- cal considerations or by the pressure of business interests. In this way a jury may be "packed" in favor of one of the parties to the suit. The old method of making jury some lists has been superseded in some States by the appoint- ment of jury commissions composed of prominent citizens of the county, who make the lists imder supervision of the court. Again, many citizens who are most competent to serve on juries, shirk the duty, giving trivial excuses or paying fines to escape performing the service. AVhen a panel of petit jurors is exhausted, talesmen are summoned from the by-standers — a practice which is apt to admit 68 JUDICIAL TRIALS Good features of the jury sj'stem. men who are wholly unfit for jury duty. Cases of direct jury bribery are, unfortunately, too common, especially in large cities. They are also very difficult to detect. Public opinion should be extremely intolerant of this crime. It is almost a universal custom to require unanimity in the decision of juries; * thus one man may cause a case to fail of decision. While this is generally considered a wise provision in criminal cases, it many times results in the defeat of justice. It will be noticed that many of the evils mentioned in connection with the jury system are accounted for by bad administration of its details. The central idea of the system — the participation of citizens in the legal process of determining justice — is of very ancient origin. It was brought from England by the colonists, embodied in their legal codes, and inherited by both State and National governments. The publicity which trial by jury gives to legal procedure, and the educational influence upon those who participate in its workings, are advantages of great weight in its favor. Moreover, it is so firmly fixed in our legal and social fabric that its abolition would be a most radical measure. This fact renders imperative the cor- rection of abuses, wherever they may be found, and the restoration of a pure ideal, in order that the jury system may not become a decadent institution. Lynch-iaw. No failure of government is more deplorable than the failure of justice. There have been^times when communi- ties, exasperated by the feeble efforts of officers and courts to bring violators of law to justice, have resorted to " lynch- law" as a remedy. This sets an example of lawlessness, the evil influence of which far outweighs any attendant good. * In Nevada, Utah, California, and a few other States, a decision may be rendered by three-fourths of a jury in a civil case. In Idaho, flve- sixths of the jury may render a decision. JUDICIAL TRIALS 69 Many legal controversies never appear in courts, be- Arbitra- cause they are adjusted between the parties concerned through the efforts of the attorneys. Other disputes are voluntarily submitted to arbitrators by whose decision the disputants agree to abide. If more cases could be settled out of court, much expensive litigation would be avoided, and the cause of justice would not suffer. Efforts have been made to establish courts of conciliation in some States, but with little success. Supplementary Questions and References 1. What guarantees are contained in the constitution of your State safeguarding the rights of accused persons? Are similar rights secured in all countries? 2. As illustrating the process of trial, obtain and fill out blank forms for complaint, warrant of arrest, search warrant, subpoena, venire, execution, indictment. 3. Is the grand- jury system the best method of bringing offenders to trial? 4. What is the established method of selecting petit jurors in your State? Can you suggest improvements? Visit a court while in session, and observe the selection of a trial jury; also^ the examination of witnesses. What fees are paid to witnesses and jurymen? 5. Find the meaning of the following terms: Damages, costs, stay of execution, injunction, certiorari, habeas corpus (see p. 209), quo warranto, mandamus. 6. Topics in this chapter are treated in Bryce, I, chapter 42; Beard, chapter 26. Encyclopedia of Social Reform. 7. President Taft. Delays and defects in the enforcement of law in this country, N. Am. Rev., 187 : 851-861; see also Outlook, 86 : 321-327. Arena, 32 : 471-480; Atl. Mo., 97 : 502-508; World's Work, 13 : 8221-8226. 8. The jury system. Rev. of R's, 37 : 607-608; Arena, 33 : 510-513. 9. The swiftness of justice in England, N. Am. Rev., 188 : 26-39. CHAPTER VIII The sup- port of paupers. Out-door relief. CHARITABLE AND PENAL INSTITUTIONS The support of the destitute falls first upon their near relatives; when this resource fails, public charity becomes necessary. Much the greatest part of public relief is given by local governments. Where the town system is strong, the work is in charge of the tovm board or of a special towTi officer. In the South the county commissioners, or other county officers, administer relief. In many States, particularly in the West, both town and county are interested. Two general methods of dispensing alms are practiced. (1) Out-door relief means the giving of aid at the home of the pauper. This is a convenient method in cases of temporary want, and in the relief of persons who are par- tially self-supporting. Many local governments make a practice of giving goods, or orders for goods, to paupers. In rural commimities, where the circumstances surround- ing every family are well known, this method of relief works satisfactorily. But in cities, and in the administra- tion of relief by county officers, it is possible for individuals to impose upon the public by securing aid when it is not deserved. The evil here is not only that of stealing from the public treasury, but also the evil of pauperizing the individual and the family. This is a place for investiga- tion and reform in many communities. Sentimental ideas of charity and loose business methods sometimes cause the harm of out-door relief to over-balance the good ac- complished. 70 CHARITABLE AND PENAL INSTITUTIONS 71 (2) In-door relief. Towns frequently pay for the sup- in-door . . , , relief. port of their poor in private houses; and paupers are sometimes bound out to service on contract. But alms- houses, or poor-houses, become necessary when the number of paupers is large. These are most usually maintained by counties and cities. When a poor-house is located on a farm, and when the inmates are kept employed in farming and other industries, these institutions become most help- ful, and may also be partially or wholly self-supporting. The establishment of a poor-house sometimes has the effect of decreasing the number of paupers who apply for aid from a county. Within recent years it has been generally recognized Dependent 11 • 1 -iiii children. that children should not be kept in poor-houses with adults, since such surroundings are exceedingly demoralizing to child-nature. There are often State schools for depend- ent children, where education and some form of industrial training are provided for the inmates. Cities also have parental schools. Efforts are made to secure the adoption of these children, when of suitable age, into families. For the sick and injured, medical attendance is pro- Hospitals. vided by local governments. In the cities, hospitals are maintained at public expense. The question of providing for the unemployed in times The of temporary distress is particularly difficult in the large ployed. cities. It seems necessary, at times, to establish free soup-kitchens and agencies for the distribution of food and clothing. Cities have sometimes provided employ- ment upon public works in such cases. It is often difficult to distinguish between the homeless The tramp . , , problem. seeker for employment and the professional tramp, who might rather be included among the criminal classes. But in most places both are treated in the same way; that is, they are fed at the back doors of homes where they apply for help. The local government frequently gives 72 CHARITABLE AND PENAL INSTITUTIONS Defectives. The insane. these vagrants food and lodging and then sends them on to the next town. Or, they may be arrested for vagrancy and sentenced to a term of imprisonment. Often the city or county keeps them during the winter in a poor- house or municipal lodging-house and releases them as warm weather approaches. None of these methods of treatment is satisfactory because no effort is made to test the vagrant's desire to obtain work, or to deter him from continuing to lead a life of laziness and dependence on charity. Cities that have established wood and stone yards, in which the applicant for assistance is compelled to earn at least a part of his support, find the number of tramps considerably decreased. The support of the poor seems, at first glance, one of the simplest operations of government, but we have seen that numerous difficulties are involved. How can we aid the deserving poor, and at the same time avoid making them less willing or able to support themselves? The same question is, or should be, prominent in all cases of private charity; for if charity is unwisely given, it pau- perizes the recipient and makes the evil we are trying to cure greater, rather than less. By the defective classes is meant the blind, deaf, and feeble-minded. These unfortunate persons are educated in public institutions. Public control of defectives is nec- essary on the grounds of education, public health, and public security. Because of the relatively small numbers included and the special treatment that is required, it is most economical for the State, rather than for the local governments, to care for them. Hence we have the ex- cellent State institutions for the blind, the deaf and dumb, the in.sane, and the feeble-minded. In no way can we measure the growth of the humani- tarian spirit during the nineteenth century better than by contrasting earlier with present methods of treating CHARITABLE AND PENAL INSTITUTIONS 73 the insane. Formerly they were regarded as criminals, confined in foul prisons, and brutally treated. Insanity is now regarded as a disease, and scientific treatment re- sults in the curing of a large proportion of the cases. Laws quite uniformly require judicial procedure for the committal of an insane person to an asylum. These in- stitutions are conducted either by the local or the State government. In State hospitals the conditions are most favorable for the treatment of those who should be under the physician's care. Within recent years a score of States have established The feeble- asylums for feeble-minded children, where they receive proper educational and industrial training. In a few States there are homes for epileptics. It was formerly usual to have each charitable insti- state ... , 11*1 jj? boards of tution of a State admmistered separately by its board or charities. directors or trustees. At present, however, central boards of charities exist in most States. These are of two kinds: (1) Advisory boards, that merely inspect and report recom- mendations, each institution having its own board of trustees. Such boards are most common, and are com- posed of unsalaried officers. (2) A board of control may administer the entire charitable system of the State, and appoint a superintendent for each institution. Such boards are also given power to inspect the construction and control of local poor-houses, jails, and asylums. The officers of these boards are salaried. The advantage of the system of central control is that through it the influ- ence of high ideals and scientific methods may be felt in the local institutions. Methods of punishing criminals have undergone great old meth- changes since the establishment of the older State gov- punish- emments. At the beginning of the nineteenth century the clipping of ears, branding with a hot iron, the stocks, and the pillory had not entirely disappeared. Prisons 74 CHARITABLE AND PENAL INSTITUTIONS Modem prisons. Release on parole. Reforma- tories. Were foul pens. But the barbarous mutilation and public exposure of early times have passed away, and prisons are now conducted with some regard to the health and comfort of the prisoners. Instances are found in the excellent provisions for securing the good health of the inmates; for it is recognized that an unsound phys- ical condition is often the foundation of a criminal nature. We now reject that theory of punishment which con- siders its only end to be retribution. The principle is generally accepted that for the protection of society the criminal must not be merely confined and punished, but reformed as well. Some practices introduced into State prisons indicate the progress of this idea. Prison libraries, reading-rooms, and study classes give convicts a chance for mental improvement. Very commonly, good conduct on the part of the prisoner will result in a reduction of his term of imprisonment. It has been urged that no fixed term of confinement should be set, but that the convict should be held in prison, until, in the judgment of the authorities, he is fit to be at large. This system is called the indeterminate sentence and has been generally adopted in reformatories, besides applying in some States to prison sentences. In some States the prisoner may be released on ]^arole or probation. He must find employment, avoid bad asso- ciations, and report periodically to a parole officer. Great evil is wrought through the association in prisons of first off'enders and persons of slight criminal tendencies with hardened criminals. For this reason we have State reformatories and industrial schools for boys and girls. Here they are given an cducati(m and taught useful trades. Recently, in some States, the younger and less hardened offenders among the men have been assigned to separate institutions where conditions are made as favorable as CHARITABLE AND PENAL INSTITUTIONS 75 possible for their reformation. If they show themselves incorrigible, they are returned to the State prison. Recent years have seen the growth in cities of juvenile juvenile courts. It is recognized that most children in committing illeffal acts are not intentionally criminal. The child's home, his training, and his environment are responsible for his misconduct. It results from misdirected energy which cannot find a proper outlet because of the lack of opportimity to play.* To arraign him in the police court is not only injustice, but may lead to further steps in a criminal career. "In the juvenile courts children are taken out of a purely criminal process and committed to one which is educational, and the court becomes part of the child-saving community." It is generally agreed that the confinement of prisoners with- Systems out occupation is both cruel and demoralizing. Several sys- faborf"" tems of prison labor have therefore been tried. 1. The lease system, common in some States, permits the sale of prison labor to the highest bidder. The prisoners may be employed either within or without the prison, and are subject to the control of their employers. In many instances they are employed in work- ing mines and quarries, living in penal camps, where one would scarcely expect to find them surrounded by the proper reforma- tory influences. 2. Under the contract system the labor is per- formed within the prison, under the usual prison discipHne. Some form of manufacturing is carried on, the contractors fur- nishing the foremen, the materials, and to some extent the tools and machinery. They pay a stipulated price for each day's labor performed by the prisoners. 3. The piece-price system leaves the work of prisoners under the super\dsion of prison officials, the contractors agreeing to furnish the materials and to pay a specified price for each piece of the finished product. 4. Under the public account system the State conducts the entire process of manufacture, as an individual might, disposing of the product on the market. * " Over half the arrests of children in New York city are for playing games — in the streets." Outlook, 97 : 135. 76 CHARITABLE AND PENAL INSTITUTIONS The pre- In the administration of charitable and penal laws we vention of ... crime and are at present concerned chiefly with relief, punishment, pauperism. •, » . and reformation. But the systems employed too often tend to perpetuate the evils we wish to cure. With the spread of more rational ideas concerning pauperism and crime, public attention must be directed toward the prevention of both. As population becomes more dense in the United States, the problems assume greater proportions. We have found State control the most satisfactory method of man- aging the greater part of the curative processes; it may be suggested that the proper preventive measures are largely matters for private and local support. But the further study of this subject comes more properly within the field of sociology than within that of government. Supplementary Questions and References 1. What methods of public and of private charity are em- ployed in your community? Is there careful examination into the merits of cases? Is there duplication of charities? Which, the public or the voluntary work, is on the whole more effective ? 2. What is your remedy for the tramp problem? See Rev. of R's, 37 : 20&-212; 39 : 311-316. 3. OutHne the system of State charities in your State. Can you suggest improvements? 4. Many old forms of punishment are described in Earle, Curious Punishments of By-gone Days. 5. What was the condition of prisoners at the beginning of the nineteenth century? McMaster, History of the United States, I, 98-104. When did prison reform come about ? Amer- ican History, p. 304. 6. What are the effects of exposing offenders to public gaze? 7. Do reformatories reform ? Outlook, 89 : 806-810. 8. What is the penal system of your State? Look up the re- ports of State oflBcers having charge of penal and charitable institutions. CHARITABLE AND PENAL INSTITUTIONS 77 9. The indeterminate sentence, Indept., 58 : 1052-1056. 10. For topics in this chapter see Encyclopedia of Social Re- form; Wright, Practical Sociology; Reports of Conferences of Charities and Corrections. CHAPTER IX EDUCATIONAL SYSTEMS School systems are mainly under local control. The district school system. The township system. The advantages of this plan. The maintenance of public schools is a function of the State governments. Though the National government has aided in this work, as we shall see, its authority does not extend over our systems of elementary and higher schools. The States have left the regulation of school affairs chiefly to the local governments — counties, towns, cities, and school districts; but they still exercise more or less control over the school systems. There is great variety of ar- rangements for the conduct of school government in the different States, so that a general description is almost impossible. Three types may, however, be distinguished. (1) ^Yhere the pure district type exists, each district supporting a single school, the chief authority resides in meetings of voters. These are similar to town meetings, but are held at a different time, since school business is kept distinct from town affairs. A small school board is elected, and school taxes are levied. (2) The town or township system gathers all the schools of a towTi under one authority; this may be a town meeting of voters for school purposes, or, districts may be retained as subdivisions of the town, with a school in each. The township school system has some points of advan- tage, since under it there are fewer schools and these can be better graded and equipped. Higher salaries and bet- ter teachers are other advantages. Sometimes the town- ship has but one school, centrally located. The difficulty of the school's distance from the homes of the pupils has 78 EDUCATIONAL SYSTEMS 79 been overcome in some States by the transportation of children at town expense. This is cheaper than the main- tenance of more schools, and the children gain advantage through being members of schools having larger attend- ance. (3) In the Southern States, the county is divided into school districts, and county officers direct school affairs. "Where the district and township systems exist, it is county usual (elsewhere than in New England) to have a county of schools." superintendent or board of education from whom teachers obtain certificates. These officers also exercise greater or less power of supervision over the schools of the county. In nearly ever}' State of the Union there is a State super- state intendent, or a State board of education, or both. ^Methods ^"p®"^®'**"- of selection and organization are various. The superin- tendent or the board has authority to interpret and enforce the general school laws of the State; and to supervise, in a general way, the school system. An additional function is "the higher and far more important work of directing educational movements, of instructing the people, and of creating public opinion and arousing public interest." In school affairs, as in other matters of local govern- City school . ,. X systems. ment, each large city has its peculiar system. In many cities, the school system is managed as a separate depart- ment, and its workings are almost independent of the central legislative and executive machinery of the city. There are special times for school elections, and the school ^ board is not responsible to either council or mayor. In other cases, different degrees of relationship exist between these authorities. School systems and courses of study are most highly developed in cities; here, too, equipments are most complete. Among the difficulties encountered in the management Politics in „„ . school of school systems, two may be mentioned. (1) The in- affairs, troduction of party politics into school affairs is inexcusa- 80 EDUCATIONAL SYSTEMS The confu- sion of business and profes- sional functions. ble. The popular election of county superintendents, for instance, has a tendency to make the office political, lather than professional. Often there is no educational qualification prescribed for this officer. The selection of members of the board of education in a city for political reasons may be detrimental to the best interests of the children. Another source of difficulty is the confusion of the business and the professional sides of school government. Boards of education are more competent to supervise business affairs, and so generally leave the determination of courses of study and methods of teaching to educational experts. But other professional affairs, such as the em- ployment of teachers and the selection of text-books, too often remain within the jurisdiction of the board. This body frequently acts under the advice of the superinten- dent of schools, but in other cases professional interests are subordinated to business or political considerations. Special features of school systems. The policy of establishing public kindergartens in cities is spreading steadily. Manual training, domestic science, and com- mercial courses are being adopted and trade schools have been introduced in some cities. Separate schools for truants and for backward pupils are features of a few city systems. In most States there are compulsory education laws, applying vmiformly to rural and city populations. High schools. Excellent systems of high schools have been developed in recent years. Those located in the large cities have their ovra courses of study and methods of management. But the high-school systems of villages and small cities have been fostered under uniform State laws. The people of the United States are lavish in their ex- penditures for public education. In the year 1909 the entire amount of money raised for the support of the com- mon schools was $381,909,526. EDUCATIONAL SYSTEMS 81 "Whence, it may be asked, was this enonnous revenue derived ? From several sources. (1) The greatest part, $259,000,000, came from local taxation. This emphasizes the fact, already noticed, that local governments have the largest share in the control of our common-school systems. (2) About $58,000,000 was derived from State taxation. The proportions of State and local taxes vary greatly in the different States. Some levy no State tax whatever for this purpose. Sometimes a certain per cent, is le\ied for school purposes on each dollar's worth of property in the State. This method of deriving school revenue is com- mendable because, in the poorer sections of a State, lack of revenue from local sources may keep the schools upon a low grade. The State school money can be distributed in such a way as to aid these poorer districts. (3) The amount of school revenue yielded from miscel- laneous sources, State and local, was $42,000,000. (4) Permanent school funds and rents form the fourth source of revenue— $22,000,000. The origin of these funds must now be accounted for. Origin of ... 1 p 1 school "When the States laying claim to the territory north of the funds. Ohio River and east of the Mississippi ceded their claims to the United States, Congress passed the "Land Ordinance of 1785" containing the following provision: "There shall be reserved the lot number sixteen of ever}' township for the maintenance of public schools within the said ter- ritory." * The same purpose is seen in that provision of the Ordinance of 1787 which declared that "Religion, morality, and knowledge being necessary to good govern- ment and the happiness of mankind, schools and the means of education shall forever be encouraged." Nowhere do we find better stated the ultimate purpose of public education. * American History, pp. 189, 280-281 ; Hinsdale, The Old Northwest, 259. 82 EDUCATIONAL SYSTEMS National land grants. Other aids to public Bchook. Higher education. The policy thus asserted was carried into execution whenever any State in which the United States owned lands was admitted to the Union. In each case section sixteen of each township was set aside for the support of the common-school system. Since 1848 each new State has received for this purpose both section sixteen and section thirty-six of every township. When, there- fore, these lands were sold to settlers, the proceeds were gathered into permanent school funds ; these were invested in interest-bearing securities, and the income derived therefrom is annually distributed among the schools. These funds have been increased in various w^ays. To most of the Western States Congress gave 500,000 acres of land, to be devoted, originally, to the support of in- ternal improvements. Some of the States have dedi- cated the proceeds of these lands to educational uses. ]\Iany States have received swamp and salt lands, which in some cases have gone to increase school fvmds. Since the National government owTied no lands in the original States, they have not been benefited by its generosity in the donation of lands. But many of these States have set aside their own wild lands and in other ways have estab- lished permanent school funds. The colleges and universities and technical schools of the United States number 493. Of these, the greater number are supported by endowments and donations from private sources. IMost States, particularly in the W^est, tax the property of their citizens to support State universi- ties. The Federal government has been as generous in the support of higher education as in the aid granted to the common schools. When the sale of lands in the Northwest Territory was authorized. Congress provided that not more than two complete townships (seventy-two square miles) of land should be given to each State therein erected for the support of higher education. Every new EDUCATIONAL SYSTEMS S3 State in which the United States owned land has reaped Federal aid. the benefit of this policy, some having received more than two townships. In some of the older States, these lands and the common-school lands were sold at very low prices. Bad management in this respect, and in the care of the funds thus established, has caused immense loss to these States. The newer States, profiting by this experience, have been more judicious. In 1862 Congress granted to each State of the Union, Agricui- and to each new State to be admitted later, as many times colleges. 30,000 acres of land as it had Senators and Representa- tives in Congress. The income of the funds arising from the sale of this land was to support colleges of agriculture and mechanic arts.* In 1887 each State was given $15,- 000 annually for the support of agricultural experiment stations. By a law of 1890 this amoimt was to be in- creased by $1,000 each year until the appropriation reached $25,000 for each State. This law pro^'ided that this money "shall be applied only to instruction in agricult- ure, the mechanic arts, the English language, and the vari- ous branches of mathematical, physical, natural, and eco- nomic science, with special reference to their applications in the industries of life and to the facilities for such in- struction." Technical schools are in this way aided in many States. In connection with the systems of higher education we Profes- find professional schools of various kinds. These in- schools. elude colleges of law, medicine, dentistry, pharmacy, veterinary medicine, and normal schools. Commercial and business courses are a feature in a large number of colleges, universities, and high schools. * American History, p. 389. 84 EDUCATIONAL SYSTEMS Supplementary Questions and References 1. Study the organization of the school system in your State, (a) What is the unit of school taxation? Of administration? Should these be larger or smaller? (6) What officers conduct school affairs? Can you suggest improvements in the system? (c) How is school supervision secured? Is it effective? In what ways does the State control the common-school system? (d) What are the laws of the State upon the subject of com- pulsory education? text-books? (e) Study the revenues and expenditures of your school system. Comparison with other States in different sections of the country is possible from the reports of the Commissioner of Education. (/) Ascertain the amount of Federal aid received by your State for education. 2. Students may get ideas for the graphic representation of educational statistics from the Report of the Commissioner of Education, 1897-98, pp. Ixxxvii-xcvii. 3. History of land grants for schools. Boone, Education in the United States, 88-93; Hart, Essays on American Govern- ment, 244-247. 4. Education in colonial times. American History, 94, 97, 98, 133; Commissioner of Education, 1896-97, II, 1165; McMaster, History of the United States, I, 24-27; Earle, Child Life in Co- lonial Days; Lodge, Short History of the English Colonies in America, 74-76, 464-467; Fiske, Old Virginia, II, 245-253; Boone, Education in the United States, 9-19. 5. Use of lotteries in support of schools. Boone, 87-88. 6. Recent educational progress. American History, 522-523; Eliot, Good Urban School Organization, Indept., 56 : 416-422. CHAPTER X THE EXERCISE OF THE POLICE POWER We are accustomed to associate with the word "police" Meaning the idea of a body of officers to whom the enforcement of term law is entrusted. But the legal significance of the word power. is much broader. In this sense we speak of the police power of a State as its system of internal regulation "by which persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State," i. e., of the citizens. It is assumed that all property of the State is held subject to those general regulations which are neces- sary for the common welfare. So, too, in the conduct of private business and in the family and social relations of life, citizens are not entirely free to determine their own conduct; but through its police regulations the State in- sures "to each the uninterrupted enjoyment of his o\\ti rights so far as is reasonably consistent with a like enjoy- ment of rights by others." * We are most familiar with the police regulations that are calculated to preserve public order and prevent of- fences against persons and property. A number of other mstances in which the police power is used will now be noticed. (1) Individuals are subjected to governmental control Health and ^ ' '' _ ., sanitation. for the preservation of public health. Until recent years, health and sanitary laws were matters of local govern- ment only; but at present State boards of health are almost universal. The establishment of these boards has * Cooley, Constitutional Limitations, 704, 706. 85 86 THE EXERCISE OF THE POLICE POWER Govern- mental activity in care of public health. Protection from danger. made the regulations upon this subject more uniform; at the same time the administration of laws has be- come more thorough. For popular ignorance and preju- dice often prevent the execution of adequate sanitary measures. This is especially true when contagious dis- eases prevail. Stringent regulations then become neces- sary for disinfection, isolation, and quarantine. Local boards of health exist in the cities, but they are not so common in rural districts. These boards are made sub- ject to control by State boards. In the interest of public health, private property may be declared a nuisance and removed or destroyed at private expense. Many cities have officers who inspect plumbing and appliances for sewage disposal. The chem- ical examination of water supplies reveals an important source of disease. A number of cities have forbidden ex- pectoration in street-cars and public places. The estab- lishment of hospitals and sanitariums for tuberculous patients has been begun in some localities. Health re- gulations also extend to the examination of horses and cattle and their condemnation when diseased. Recently much attention has been given to the inspec- tion of foods and of the places where food products are made.* Milk and dairy inspection is common. The analysis of canned and packed foods is necessary be- cause an increasing proportion of our foods are prepared in factories, instead of in the home. (2) The public is protected from danger in other ways than by these health regulations; for instance, by laws requiring that buildings containing halls for i)ublic as- semblages shall have doors that swing outward, and by laws compelling the erection of fire-escapes on tall build- ings. In cities, wooden structures may not be built * The National government has taken up this subject in its pure food laws. See p. 178. commerce. THE EXERCISE OF THE POLICE POWER 87 within the "fire limits" that are prescribed by ordinances. Private property may be destroyed to prevent the spread of fire. The law regulates certain kinds of business on the ground that carelessness might render them injurious to individuals or to the public. For this reason the sale of explosives, fire-arms, and poisonous drugs is accom- panied by legal restraints. So in the use of a public wharf or a market-place, the interests of the few must be subordinated to the welfare of the greater number. (3) The conduct of individuals upon public highways Travel and is subject to legal control; the law may fix the rate of speed and require vehicles to turn to the right. Travel by water is likewise regulated. The States declare cer- tain rivers and lakes within their limits to be navigable waters; these become highways, open to the public* Consequently, such matters as the conduct of vessels, the building of dams, bridges, and docks, are regulated under the police power of the States. (4) Persons and corporations are subject to police regu- Common lation because of the nature of the service they render, as in the case of the "common carriers." A common car- rier is "one who holds himself as a carrier, inviting employment by the public generally. The most familiar classes of common carriers are railroad companies, stage coach proprietors, expressmen, truckmen, ship-owners, steam-boat lines, lightermen, and ferrymen." Any per- son falling within this definition "is boimd to serve with- out favoritism all who desire to employ him, and is liable for the safety of goods entrusted to him, except by losses from the act of God or from public enemies, or unless special exemption has been agreed upon ; and in respect to the safety of . passengers carried he is liable to injuries * But if they are used in interstate or foreign traffic, they are subject to control by the Nationa' government. See p. 176. earners. 88 THE EXERCISE OF THE POLICE POWER The con- trol by States of public utilities. The conser- vation of natural resources. Restricted employ- ments. which he might have prevented by special care" (Cen- tury Dictionary). The most important common carriers are the railroads, and recently there has been a tendency to regulate them more stringently through State commissions. In some States these bodies have the power to fix the maximum rates that may be charged for freight and passenger traffic. Other public utility industries, such as those fur- nishing water, lights, and street-car services in cities are made subject to control by State authorities in some cases. The same may be said of telephone and telegraph com- panies. Legal restraints are imposed upon these busi- nesses, not only because they are in the nature of public industries, but also because they tend to become monop- olies, and hence may abuse their power. (5) Within recent years it has become apparent that our great industrial growth has resulted in the rapid ex- haustion of our natural resources — soil, forests, mines, and water-power; and that the supply of the products from some of these has passed into private hands. Hence has arisen the demand for the conservation, and for State con- trol, of the remaining resources that are still public prop- erty. This involves such projects as the making of forest reserves; the construction of reservoirs for irrigation pur- poses and for regulating the flow of rivers; the taxation of mineral products; the policy of leasing water-power sites, instead of granting them outright. Such measures, adopted by many of the States, show an interesting ex- tension of State functions.* It was to discuss the general subject of conservation that a conference of governors met at Washington in 1908. (See American History, 523.) (6) Certain employments and practices are forbidden or placed under restrictions because they are in them- ♦ The National government has entered upon a similar policy. See p. 286. THE EXERCISE OF THE POLICE POWER 89 selves immoral. The pursuit of gambling in its various forms falls under this head. The State interferes to prevent the infliction of cruelty upon animals because acts of this nature are immoral; and also because the moral sense of people is shocked by the sight or knowl- edge of their occurrence. Partly on the ground of the immorality of intemperance, and partly because of the dangers with which the public is threatened through this vice, the manufacture and sale of intoxicating liquors is the subject of State control. In the regulation of employments, for whatever rea- Licensed son, it is customary for the State to require licenses. ^Ets^ This is for the purpose of preventing persons from enter- ing these employments indiscriminately. Accompanying the license is a fee, the amount of which may be (1) sim- ply sufficient to cover the expense of inspection and regu- lation; or (2) it may be large enough to discourage or even to render impracticable the pursuit of the licensed business.* In its legal aspect, then, a business which is licensed is presumed to be legitimate, but to require regu- lation in order that the public may not suffer from abuses that may arise in connection with it. The laws regulating the manufacture and sale of intox- Liquor icating liquors are very numerous. Some of the most common of these prohibit the sale to minors, to intoxicated persons, and to habitual drunkards; also, the sale of liquors is forbidden on Sunday, on legal holidays, election days, and during certain hours of the night. The follow- ing restrictions are foimd in different States. There shall not be more than one saloon to a certain number of in- habitants. There shall be no saloon within certain dis- * The term "license fee" is often attached to taxes; e. g., the license fees paid under United States law on the manufacture and sale of liquors. The idea here is simply the gaining of revenue. Many States require license fees with the sole purpose of raising revenue. See p. 59. 90 THE EXERCISE OF THE POLICE PO\^TR tances of public schools, colleges, churches, or parks. Screens and all obstacles to a clear \'iew of the place where liquor is sold are prohibited. In some States liquor must be sold onlv with eatables or in connection with lods-ins:- houses and hotels. In other States liquor must be never sold under these conditions. The consent of the owners of property in the same block or near the saloon is some- times required. Liquor dealers are made responsible for damage caused by an intoxicated person who is kno'UTi to be dangerous when under the influence of liquor. Prohibitory The governmental regulation of this business has ex- tended in a number of States to the absolute prohibition of all manufacture and sale of intoxicating liquors. Prohib- itory laws "are looked upon as police regulations estab- lished by the legislature for the prevention of intemperance, pauperism, and crime, and for the abatement of nuisances."* Under the system of "local option" that exists in most States, each local government (to^\-n, village, and city) may settle the question of liquor selling for itself. Some- times "resident districts" in cities are given the privilege of excluding saloons. Recently "county option" has become an issue in many States. \Miere adopted, this gives the voters opportunity to refuse licenses in an entire county; but if the majority favor licensing, the local units may still vote to be "dry." f Enforce- The difficulties in the enforcement of prohibitory laws prohibition, may be grouped under several heads. (1) In certain localities, particularly in cities, we find the lack of pub- lic sentiment favorable to their enforcement. In these places officials have sometimes engaged systematically in the practice of fining or taxing saloon-keepers without attempting to enforce the prohibitory laws. (2) There is * Cooley, Constitutional Limitations, p. 718. t It is estimated that in 1909 two-fifths of the territory and almost one-half of the people of the United States were under prohibition laws. THE EXERCISE OF THE POLICE P0^\T:R 91 great difficulty in preventing the importation of liquors into prohibition States. (3) Since the use of alcoholic liquors for medicinal and mechanical purposes is exempted from the prohibition, druggists are licensed to dispense them under prescription by a physician or some similar regulation. This leads to eolation of the law, drug-stores sometimes becoming saloons in everything but name. (4) There are a multitude of de^"ices for evading prohibitory laws, many of which involve official perjury and corrup- tion. High license means the exaction of large license fees Higb for the purpose of discouraging the liquor business. The combination of local option and high license exists in some States. The fees are in some cases -SoOO or more. Saloons in cities may be required to pay more than those in towns of the same State, S 1,000 being not an unusual amoimt for the former. The granting of licenses is most frequently in the hands of the local governing board. Bonds, which are liable to be forfeited for non-compliance with the law, may be required of the licensee. Sometimes special commissioners are given charge of the entire matter of granting and re- voking licenses. The exercise of these powers by officers opens another avenue through which corrupt influences enter politics. The control of the liquor business by licensing authorities and by the police should receive the constant attention of citizens. In no other way will the enforcement of law be secured. (7) The insurance business and that of banking furnish state 1 . . •>, .1 ^ control of other mstances ot btate control exercised over private en- banking •> and terprises. Among the administrative officers of the State insurance, is the Insurance Commissioner. It is his duty to enforce the State laws that regulate the manner in which insur- ance companies shall conduct their business. The pro- tection of the public against fraudulent and careless busi- 92 THE EXERCISE OF THE POLICE POWER ness methods is seen also in the State banking laws. Inspectors are sent to investigate the condition and methods of banks that operate under State laws.* In a few in- stances laws have been enacted under which banks are obliged to contribute small sums annually to a guarantee fund; this fund is dra\\Ti upon in case any bank fails, as a source from which its depositors are reimbursed. This is called "the guarantee of bank deposits." Supplementary Questions and References 1. Make a list of the topics in this chapter upon which you know of some law in your State. Are these laws beneficial ? Are they enforced ? 2. Upon the recent industrial advance and changes in methods, see American History, 516-517, 520, 521, 523. 3. State control of water-power. Rev. of R's, 39 : 57-62; Soil erosion in the South, ibid., 39 : 439-443; Water-powers of the South, ibid., 41 : 68-76; New York's conservation of water re- sources, ibid., 41 : 77-87; Forestry in the States, ibid., 41 : 465-466. 4. The liquor problem and prohibition. Rev. of R's, 36 : 328- 334; 749-750; 37:468-476; 480-481; Arena, 33:134-142. In the South, Atl. Mo., 101 : 627-634; Outlook, 86 : 943-944; 947-949. 5. Railway regulation by States. Indept., 68 : 905-910 (Wisconsin); Rev. of R's, 34 : 346-347 (Texas); World's Work, 13 : 8333-8337. 6. Bank deposit guarantee in Oklahoma, Rev. of R's, 39 499-500; ibid., 37 : 340-347; Indept., 65 : 418-419. 7. Regulating the milk supply. Rev. of R's, 36 : 360-362 585-593. 8. The conference of Governors, Outlook, 89 : 138-140 145-148. * National banks operate under United States law. See p. 187. CHAPTER XI LABOR LEGISLATION The laws that fall under this designation are very similar in their general purpose to those through which the State exercises its police power. It will be conven- ient to consider these laws as grouped into several classes. (1) There are laws that relate to the age of workers Labor of and the hours of labor. Attention was early called to the Thiidren*"^ necessity for labor legislation because of the employ- ment of young children in factories and the long hours of service for women and children. State laws now quite generally prohibit the employment of these persons for more than ten hours a day, or sixty hours a week. The employment of children in factories and mercantile establishments is made illegal, though the age limit varies from ten to fourteen or sixteen years. Accompanying these laws are requirements that children be given a mini- mum number of months' schooling each year. There has been much agitation in favor of a legal eight-hour day for workmen. The employees of the National and of many State governments work under this rule. In private employment, freedom of contract is generally allowed for adult male laborers; but there are exceptional industries in which the law limits the number of hours, either for the benefit of the laborer, or for public safety. Mining and railway employment are examples of such industries. (2) The second class of labor laws specify the condi- safety and tions under which labor may be carried on. They regu- ^''^loyees. late the manner in which factory buildings shall be 93 94 LABOR LEGISLATION Wages. Trade unions. Strikes. Arbitration of labor disputes. constructed and ventilated; the lighting and sanitation of these buildings must conform to certain requirements. Under certain conditions, seats must be provided for employees. The hours for meals must be reasonable. Sweat-shops are prohibited. Steam boilers are inspected and engineers are examined. Machinery must be so placed and guarded that employees will not be compelled to work in dangerous situations. Mines, in particular, are subject to State laws intended to secure the safety of miners. (3) The relations of employers and employees, and of both to the public, form a very important but complicated subject of legislation. There are laws regulating the time for the payment of wages, and prohibiting the truck system. Other laws forbid blacklisting and boycotting. The liabilities of employers for damages, because of acci- dents in which employees suffer, are fixed in many States by legislation. Trades unions and their members have received legal protection in various ways; for instance, laws prevent the discharge of employees for the sole reason that they are members of these organizations. One of the most difficult subjects of legislation in this field is that relating to labor conflicts. Laws which under- take to control strikes and lock-outs are being supple- mented by others calculated to prevent these labor wars. In about one-half the States, boards of arbitration and conciliation have been established. These boards are em- powered to offer their services to aid in the settlement of disputes between employers and employed, and to inves- tigate and report facts concerning strikes. But nowhere in this country has the compulsory arbitration of labor disputes been made legal. When a strike occurs in a business that is a public utility {e. g., a street-car line), it would seem that the interests of the public should be guarded in such a way as to secure the continuance of the LABOR LEGISLATION 95 service by compulsory process, if necessary, until the dis- pute is settled. When damage to property or to business interests has been injunc- threatened by strikes, courts have granted injunctions which ^^°^^- forbid the strikers doing certain acts, such as damaging property or intimidating others who wish to work. When an injunction is Niolated, the judge who issued it may sentence the guilty person to punishment without a formal trial. By this means the acts of strikers were controlled. Much opposition has arisen to this method of dealing with these cases; it is called "govern- ment by injunction." The relations between workmen and their employers are The com- mon I3.W determined primaril}" by the rules of "common law." This is that body of law " which originated in the common wisdom and experience of society, in time became an established custom, and has finally received judicial sanction and affirmance in the decision of the courts of last resort."* It is found in reported de- cisions of courts and in legal text-books of established author- ity. But the new conditions of modern industrial life have rendered necessary statute laws which modify and supplement the rules of the common law. (4) The enforcement of labor laws is a duty of State and local officers: but in nearlv every State of the Union there have been created bureaus of labor having more or less complete powers over the administration of labor laws. In some cases the powers are merely those of col- lecting statistical information and of inspection in the ordi- nary sense of that term; in these ways much valuable in- formation concerning conditions of labor is made public. But the pow-er of enforcing labor laws is often vested in these bureaus, or in special officers called factory inspec- tors, who devote their time to this matter. (0) Looking toward the prevention of evils and con- flicts in the industrial world, we find the establishment, by city and State governments, of industrial and technical schools and the incorporation of manual training courses * Robinson, Elementary Law, 2; Dole, Talks about Law, 8. Labor bureaus. Industrial education. 96 • LABOR LEGISLATION in the common schools. For with the increased intelli- gence and skill of workmen will come increased respect for their rights, and more reasonable settlement of their relations to capitalists. Some laws have been passed, and others are under con- sideration, upon many important subjects relating to labor, besides those mentioned in this chapter. Such subjects are: old age pensions, employers' liabilities, industrial in- surance or compensation for loss due to sickness or in- juries. State employment bureaus, and the regulation of industries that are injurious to health of employees. Supplementary Questions and References 1. Find in the statutes of your State provisions regulating the employment of labor. Has your State an efficient system of factory inspection ? 2. When were the first factory acts of England passed? Gar- diner, History of England, 911, 927. 3. What value have the statistics that are collected by labor bureaus ? 4. What has been accomplished in your State toward the peaceful settlement of labor disputes? 5. The use of injunctions in connection with labor troubles. Indept., 65 : 348-351; 460^63. 6. Why are the economic functions of government increasing ? 7. Labor legislation. Stimson, Labor in its Relations to Law. By the same author, Handbook to the Labor Laws of the United States. 8. What are blacklisting, boycotting, picketing, sweat-shops f See dictionaries and Encyclopedia of Social Reform. PART II THE NATIONAL GOVERNMENT CHAPTER XII STEPS LEADING TO UNION A NOTABLE fact presents itself as we consider the re- Colonial lations of the colonies prior to the Revolutionary war. There was a general indifference toward union, and it was only by slow and arduous steps that union was finally accomplished. This may be partially accounted for, if it be recalled that the early settlements were usually found scattered along the coast, each with its own harbors and interior waterways. Lack of roads, together with the primitive methods of travel then in use, rendered extended intercommunication wellnigh impossible. Besides, each colony had its own separate government, and different religious beliefs and practices tended to produce distrust and dislike among the colonists. There were, however, some strong bonds of sympathy. Their language and in- stitutions were mainly English, and they were interested in the development of liberal government. Again, a com- munity of interests was created in the necessity for pro- tection against their Indian, French, and Dutch foes. In general, it may be said that confederation was early brought about through the need for defence, but imion has been the fruit of long years of transformation and assimilation. 97 98 STEPS LEADING TO UNION The New England confedera- tion. Inter- colonial conferences between 1690 and 1754. Penn's plan of union, 1697. In 1643 the four colonies — Massachusetts Bay, New Plymouth, Connecticut, and New Haven — entered into a league ("for mutual help and strength in all our future concernments") known by the name of the United Col- onies of New England. This confederation was neces- sary, because the English government, then in the midst of the Puritan revolution, was unable to furnish the colo- nists protection against their Dutch, French, and Indian enemies. In the annual meetings of the commissioners, two being sent by each colony, questions pertaining to war, peace, and relations with the Indians were discussed. This central government possessed only advisory power over the colonies, and had no power whatever over the individual citizens. The confederation was finally dis- solved in 1684. During the intercolonial wars the colonists were in con- stant danger from attacks by the French and Indians. The meeting at New York in 1690 of commissioners from Massachusetts, Plymouth, Connecticut, and New York "to fix upon such methods as should be judged most suit- able to provide for the general defence and security and for subduing the common enemy," was the first of about a dozen such intercolonial conferences. Through these meetings, and especially by the co-operation of the forces of the various colonies in the army and the navy, social and religious prejudices were weakened and the senti- ment for union was stimulated. In 1697 William Penn presented to the Board of Trade a plan for the union of the colonies which, though not adopted, is of interest, for it contained the first use of the word "Congress" in con- nection with American affairs. The plans ])resented for the fifty years following were largely fashioned after this model. The Lords of Trade, knowing that a general colonial war, caused by French aggression, was inevitable, directed STEPS LEADING TO UNION 99 that a Congress, consisting of delegates from all the colo- nies, should assemble at Albany for the purpose of mak- The Albany ing a treaty with the Iroquois Indians and considering 1754. other means of defence. The suggestion was made in America that the commissioners should also draw up some plan for colonial union. This Congress, consist- ing of twenty-five of the leading men from seven different colonies, was an important advance toward union. A treaty with the Indians was secured. The Congress then adopted unanimously the resolution that "A union of all the colonies is at present absolutely necessary for security and defence." A plan of union, dra^-n up by Benja- min Franklin and loiown as the Albany plan, was also adopted. This plan provided for a Governor-General to be appointed by the Crown and a grand council to be composed of delegates elected by the colonial assemblies. The assemblies rejected the plan, for they objected to the presence of a royal officer. The English government did not approve the plan, for it was thought too democratic. Stirred by the various acts of the English government The stamp and especially by the passage of the Stamp Act, the Mas- gress, i765. sachusetts House of Representatives issued an invitation, to the other colonial assemblies, to send delegates to a general meeting. Nine colonies responded by sending twenty-eight men to the Congress which assembled in New York, October 7, 1765.* They were in session two weeks and during this time petitions to the English gov- ernment and a declaration of rights were formulated. This declaration is of importance in that it sets forth for the first time the united views of the colonists relative to questions which were to form the basis for revolution. The Congress declared the rights of the colonists to be the same as those of natural horn subjects of England. It is * Virginia, New Hampshire, Georgia, and North Carolina sympathized with the movement but did not send delegates. 100 STEPS LEADING TO UNION notable that here again representatives had assembled on the motion of the colonists themselves. An advanced position was taken by Christopher Gadsden of South Carolina, who asserted: "There ought to be no New England man, no New Yorker, knowTi on the continent; but all of us Americans." During the following year the Stamp Act was repealed. The First The poHcy of coercion was still continued by the Eng- Si"co"rf-° lish government, and finally the repressive acts of 1774 gress, 1//4 ^.^^^ passcd. Again Massachusetts, June 17, 1774, under the leadership of Samuel Adams, called for a congress of all the colonies and hastened the meeting through its committee of correspondence. Delegates from all of the colonies, with the exception of Georgia, assembled at Philadelphia, September 5, 1774. In this Congress, with- out legal status, its representatives having been chosen ordinarily by irregular congresses and conventions, there were again some of the most influential men in America. Resolutions were passed approving the action of jNIassa- chusetts in her resistance to the measures of Parliament, and a Declaration of Rights was prepared. In this Dec- laration was asserted the right of exclusive legislation in the colonial legislatures, limited only by the negative of " their sovereign in all cases of taxation and internal polity." An "association" was adopted, binding the colonists not to import or consume British goods after December, 1774, and not to export goods to England or her colonies after September, 1775. Congress advised the appointment of committees in every locality who should recommend that the colonists should have no dealings with persons who would not observe this policy. Such committees were quite generally organized. The Second The resolutions of the First Continental Congress had ta'rcon^-" little influence on the English government, and other urese, ,i . jjjcasures were quickly passed carrying out the policy of STEPS LEADING TO UNION 101 repression. Before the Second Continental Congress as- sembled, the battle of Lexington had been fought and the American forces were then holding Boston in a state of blockade. This Congress convened in Philadelphia, May 10, 1775, and continued in session, with adjournments from time to time, until March 1, 1781. All of the colonies were represented, and nearly all of Organiza- the delegates had been members of the First Continental Congress. Congress. The members sat behind closed doors and were enjoined to keep all matters of discussion absolutely secret. It was determined that each State should have one vote and that final authority on all questions should rest with a majority of the States assembled in the Con- gress. Like previous Congresses, this one was, at first, merely Authority an advisory body. It was expected that all matters would Congreaa. be reported back to the States for instructions, but the crisis had come and the situation compelled Congress to exercise sovereign powers. Congress at once took control of military affairs and Powers called Washington to the command of the army which it by^'^'^"'*^ created. It provided for a national currency; organized ""s""^^- a general post-office; and threw open American ports to the ships of all nations. It furth-^red union and indepen- dence by the appointment of a committee to formulate the ideas on independence then prevalent; and of another committee to prepare the form of confederation to be entered into. Between May 10, 1775, and July 4, 1776, the change in sentiment was rapid. King George III. refused to return a formal answer to their last petition and proclaimed the colonists "dangerous and ill-designing men." Heretofore, the colonists had striven for a union of thought and action, which they believed to be the best means to secure those rights which were every- where the heritage of Englishmen. When the result of 102 STEPS LEADING TO UNION The Dec- laration of Indepen- dence. The colo- nies made States. The Arti- cles of Con- federation. the last petition became known, October 31, 1775, there was no longer any hesitancy with regard to the course to be pursued. Henceforth, they were to gather additional inspiration as they strove to secure rights regarded as common to all mankind. These new views were em- bodied in the Declaration of Independence. Even before the adoption of the Declaration of Inde- pendence, Congress recommended, having been appealed to for advice by New Hampshire, South Carolina, and Virginia, that new forms of government should be estab- lished. By the year 1777 ten States had framed new con- stitutions. The problem of the relations between the general gov- ernment and the States was second in importance only to the problem of the winning of independence from Eng- land. The State legislatures were held in greater respect than was the Continental Congress. It became clear, then, to some of the leaders, that if union were to be pre- served, it would be necessary to have a government more effective than a revolutionary assembly. As early as July 21, 1775, Franklin had seen this need and had presented to Congress a plan for "Perpetual Union." Action was postponed by Congress, and Richard Henry Lee, the following year, offered in connection with his resolu- tion for independence another resolution for the drafting of the Articles of Confederation. On June 12, 1776, the day on which the committee was appointed to draw up a Declaration of Independence, Congress also named a committee, consisting of one member from each colony, to prepare a form of confederation to be entered into be- tween the colonies. The report of this committee was submitted one month later by its chairman, John Dickin- son. A year and four months, a most momentous period in the history of our country, was to elapse before the Articles, as amended, were adopted by Congress and STEPS LEADING TO UNION 103 submitted to the State legislatures for approval.* Three years and a half more elapsed before Maryland, the last State, ratified, March 1, 1781. The adoption of the Articles of Confederation marks Nature of one or the most miportant events m the history or the ment es- United States. While it must always be regarded as a weak instrument of government, we must not forget that the Continental Congress worked along entirely new lines, for never before had a confederation so extended as this been even proposed. That there should be a general desire for union, no matter how weak the tie, was of great significance. The Articles provided for a Con- gress to be composed of not less than two nor more than seven delegates from each State. Delegates were to be appointed as the State legislatures should direct. To each State was given one vote in Congress. The weaknesses in the government were mainly these : Defects in Congress might make the laws but could not enforce mln1°^^™* them. The general government had no power of taxa- tion, but was obliged to depend upon the State legislatures for necessary revenues. There was no separate executive to enforce and no judiciary to interpret the laws. No important resolution could be passed in Congress without the votes of nine States, and the Articles could not be amended except by the ratification of all the States. Con- gress acted on the States and not on individuals, but it had no power to coerce the States. "Its function was to advise, not to command." The fatal lack of organization in the government early Practical produced momentous results. While the war continued, rhTgo\?rn- union for self-preservation was necessary; but when peace ™®°*" ensued, the principle of local self-government in the States became more manifest, Washington saw the trend of * From July 11, 1776, to November 17, 1777. See American History, pp. 184-186. 104 STEPS LEADING TO UNION affairs, and in a circular letter to the governors of the sev- eral States, shortly before his resignation as commander of the army, expressed his views in the following words: "Unless the States will suffer Congress to exercise those prerogatives they are undoubtedly invested with by the Constitution, everything must very rapidly tend to an- archy and confusion. ..." Had this appeal been appre- ciated by the States, the condition of anarchy which fol- lowed would not have occurred. But the jealousy of the States for the central government continued to increase; the State interests became dominant, and that most dan- gerous period of our history, extending from 1783 to 1788, well called the "critical period," succeeded. It was ap- parent that the government under the Articles of Confed- eration was a failure and that the Nation was drifting rapidly toward anarchy and open rebellion. Fortunately in this darkest hour there came forward Washington, Franklin, Hamilton, Madison, and other leaders who were prepared, if need be, to make compromises, but who were determined to preserve the elements of union already secured. Supplementary Questions and References 1. For a discussion of the topics in this chapter see American History, chapter 12. 2. Who were the Lords of Trade, and what was their attitude toward the colonies? Why was the spirit manifested by the colonial governors a cause for co-operation between the colonies ? Why was Federal union hopeless? Fiske, American Revolution, I, 1-6. 3. Why were not the colonies of Rhode Island and Maine included in the New England Confederacy ? Fiske, Beginnings of New England, 155-158. 4. Read the Articles of Confederation of the United Colonies of New England. American History Leaflets, No. 7. 1. Rea- sons for "consotiation." 2. In what way were the apportion- STEPS LEADING TO UNION 105 ments of men and expenses to be made? 3. The numbers, qualifications, and authority of the commissioners? 4. The significance of the provision relative to fugitives? 5. Reasons for the dissolution of the league? Fiske, Beginnings of New England, 159. 5. For a summary of the intercolonial conferences see Froth- ingham, Rise of the Republic, 118-120; American History Leaf- lets, No. 14. 6. After reading the Albany Plan, give reasons for the state- ments made by Franklin. Old South Leaflets, No. 9. How were the members to be apportioned among the colonies? Give a list of the powers of the central government under this plan. Did it possess full power to make laws ? 7. Why were not all of the colonies represented? Fiske, The American Revolution, I, 21. 8. What was the origin of the Committees of Correspondence and how did they aid in unification? Sloane, The French War and the Revolution, 161, 162; Hart, Formation of the Union, 57. 9. How were the delegates to the Second Continental Congress appointed? What was the character of this Congress? Hart, Formation of the Union, 73, 74; Fiske, The Critical Period of American History, 92, 93. 10. Why was the adoption of the Articles of Confederation so long delayed ? Hart, American History Told by Contemporaries, n, 539-543; Fiske, The Critical Period of American History, 93, 94; Walker, The Making of the Nation, 6; Hart, Formation of the Union, 93-95. 11. Read the Articles of Confederation, Appendix B. 1. How was the Congress composed? 2. The number necessary for a quorum? 3. The powers of Congress? 4. Powers of the separate States? 12. What was the attitude toward union during the period 1783-1788? 13. Were there notable bonds of union even at this time? What other influences have increased this sentiment? Fiske, The Critical Period of American History, 55-63; Walker, The Making of the Nation, 7, 8. CHAPTER XIII THE CONSTITUTIONAL CONVENTION Events leading to the Consti- tutional Conven- tion. The meet- ing at Annapolis and its results. Among the many difficulties referred to in the previous chapter, there were constant disputes between Virginia and Maryland relative to the navigation of the Potomac River and of Chesapeake Bay. Finally, in March, 1785, three commissioners from these States, on the rec- ommendation of Mr. Madison, met at Alexandria, Va., for the purpose of considering the difficulties. They soon adjourned to INIount Vernon. While there, Washington proposed that they include in their report the recommenda- tion that there should also be a uniform system of duties and a uniform currency. It was seen, however, that if anything permanent in these matters was to be accom- plished, all of the States must join in an agreement. In January of the following year, Virginia invited the other States to send delegates to a convention at Annapolis to consider the condition of commerce and duties on imports. There were present at Annapolis, September 11, 1786, commissioners from Virginia, Delaware, Pennsylvania, New Jersey, and New York. Commissioners from some of the other States were on their way, but Maryland, Georgia, South Carolina, and Connecticut had appointed none. Nothing permanent could be accomplished with so few States represented; but before adjourning they agreed to a resolution framed by Alexander Hamilton which proposed a convention to be composed of commis- sioners from all the States to meet at Philadelphia on the second Monday in May, 1787, for the purpose of amending the Articles of Confederation. Copies of this resolution 106 THE CONSTITUTIONAL CONVENTION 107 were sent to all of the States and also to Congress. Not until delegates had been appointed by six States did Con- gress practically approve of the plan by recommending to the States a convention identical with the one already provided for by the Annapolis resolution. The remain- ing States, Rhode Island excepted, soon appointed dele- gates. The day fixed for the Convention was IMay 14, 1787, The . p 1 1 Federal but not until May 25 was there a quorum of delegates Convention, from seven States present at Philadelphia. The number of delegates to be sent by each State had not been specified; and in order that the States should have equal powers, one of the first standing rules adopted provided that the voting should be by States. Seventy-three delegates were appointed as members in this, one of the most memorable assemblies the w^orld has ever known, but only fifty-five attended. Twenty-nine of the number were university men. With but few exceptions, the men who had been particularly prominent in the days of the Revolution were present. Among them were Washington, who was unani- mously chosen President of the Convention, and Franklin, whose fame as diplomat and legislator was world-wide. Neither of these men took an active part in the debates, but their presence gave inspiration to the others and they ^ had untold influence at critical times. On May 22, while some of the delegates, in their fears peiesates of displeasing the people, were recommending half-way anee. measures, Washington gave expression to that sentiment which was to dominate in the future debates of the Con- vention. He said: "It is too probable no plan we pro- pose will be adopted. Perhaps another dreadful conflict is to be sustained. If to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work ? Let us raise a standard to which the wise and the honest can repair; the event is in the hand of God." 108 THE CONSTITUTIONAL CONVENTION Other signers of the Declaration of Independence present besides Franklin were Roger Sherman, of Connecticut; George Read, of Delaware; Elbridge Gerry, of Massachu- setts; Robert Morris, of Pennsylvania; and Chancellor Wythe, of Virginia. Virginia also sent George Mason, Edmund Randolph, and James Madison; Massachusetts, Caleb Strong, Nathaniel Gorham, and Rufus King. Delaware sent John Dickinson. Pennsylvania was repre- sented by James Wilson, the great jurist, and Gouvemeur Morris, "whose correctness of language" led him to be selected to prepare the final draft of the constitution; and Connecticut by Oliver Ellsworth, one of the greatest law- yers of the day, who afterward became Chief-Justice, and William S. Johnson, who became President of Columbia College. Among the other more notable members were Alexander Hamilton, of New York; Governor William Pat- erson, of New Jersey; Luther Martin, of Maryland; and the two Pinckneys and John Rutledge, from South Carolina. Notable John Adams and Thomas Jefferson were then in Eu- present. ropc, and Samuel Adams, Patrick Henry, and Richard Henry Lee disapproved of the Convention. Our knowl- The Convention lasted from May 25 to September 17, 1787. ConvMitioa? The members sat behind closed doors, and the charge of secrecy with regard to the proceedings was placed on them. The official journal was entrusted to Washington, who deposited it in the public archives in 1796. It was published in 1819 as a part of volume one of Elliot's Debates. We can gather little from the journal with regard to what was actually said by the mem- bers, but fortunately Mr. Madison, with an appreciation of the consequences of the Convention, decided to give as nearly as „ .. , possible an exact report of the proceedings. He wrote: "Nor "journal," was I imaware of the value of such a contribution to the fund of materials for the history of a Constitution on which would be staked the happiness of a people great even in its infancy, and possibly the cause of liberty throughout the world." These notes were purchased by the government from Mrs. Madison in 1837 for $30,000, and pubUshed for the first time in 1839. 50 THE CONSTITUTIONAL CONVENTION 109 The magnitude of the labor of the Constitutional Con- Plans and , 1 11 J • Tvr V > compro- vention can be understood only as we read in Madison s mises. notes the report of the discussions. The actual work of the Convention was begun on May 30, when it went into committee of the whole for the purpose of consid- ering a series of fifteen resolutions which had been pre- sented the day before by Governor Edmund Randolph, of Virginia. The plan of government set forth in them. The vir- known as the Virginia Plan, was largely the work of Mr. ^°'^ Madison. It was considered until June 13, and after certain amendments had been adopted was reported back favorably to the Convention. Among the most important provisions finally submitted were the following: (1) That a National government should be formed possessing supreme legislative, executive, and judicial powers; (2) that the legislative power should be vested in a Congress of two separate houses — a House of Delegates to be chosen by the people of the States, and a Senate to be elected by the House of Delegates; that the representation in both houses should be based on population or on contributions to the support of the government; and that the execu- tive should be chosen by both houses of Congress, and the judiciary by the Senate. This scheme had been fiercely attacked in the committee by the delegates from the smaller States, who desired to maintain equality of State representation. It was clear that if the plan proposed were adopted the government would pass into the hands of the large States. Frustrated in their desires, the small States agreed The New upon a series of eleven resolutions, known as the New pian. Jersey Plan, which were presented by Mr. Paterson of that State on June 15. They provided for a continuance of the government under the Articles of Confederation, which were to be revised in such a manner as to give to Congress the power to regulate commerce, to raise revenue, no THE CONSTITUTIONAL CONVENTION and to coerce the States. This plan had been agreed upon among the members from Connecticut, New York, New Jersey, Delaware, and Luther Martin, of Maryland. The New Hampshire delegates had not yet arrived. Con- necticut and New York were against a departure from the principle of confederation, wishing rather to add a few new powers to Congress than to substitute a National government. The Pinckney resolutions. Hamilton's views On the same day that Governor Randolph presented the Vir- ginia Plan, Charles Pinckney, of South Carolina, presented a series of resolutions founded on similar i^rinciples. It never received a separate consideration but had considerable influence on parts of the Constitution. On June 18, in the midst of the crisis as to whether a national or a federal government should be established, Hamilton made his celebrated speech in opposition to both plans. He wanted a highly centraUzed government. " Governors," "senators," and "judges " were, according to his view, to hold office during good behavior. The Vir- ginia vs. the New Jersey Plan For three days the contest waxed hot over the merits and defects of these plans. It was asserted by those who opposed the Virginia Plan that it would destroy the sov- ereignty of the States. They believed also that they did not possess the power to create such a government. Said Paterson: "I came here not to speak my own senti- ments but the sentiments of those who sent me. Our object is not such a government as may be best in itself, but such a one as our constituents have authorized us to prepare and as they will approve." To this sentiment Randolph replied: "When the salvation of the Republic is at stake, it would be treason not to propose what we find necessary." Finally the arguments of Madison, Wil- son, and King triumphed and the Virginia Plan was again presented to the Convention. The debates became even more heated than before, as resolution after resolu- THE CONSTITUTIONAL CONVENTION 111 tion was taken up. The critical time came when the clause which provided for proportional representation was reached. Luther Martin contended with great vehe- mence, "That the States, being equal, cannot treat or confederate so as to give up an equality of votes without giving up their liberty; that the propositions on the table are a system of slavery for ten States; that as Virginia, Massachusetts, and Pennsylvania have forty-two ninetieths of the votes, they can do as they please, without a mirac- ulous union of the other ten." Others claimed they would rather submit to a foreign power than be deprived of equal- ity of suffrage in both branches of the legislature. The The Con- Convention was on the verge of dissolution when Johnson, compro- of Connecticut, brought forward a compromise based on the different methods by which members of the two houses were chosen in that State. This provided that the House of Representatives should be composed of members elected on the basis of population, while, in the Senate, large and small States were to be equally represented. Finally, after eleven more days of discussion, this, the first great compromise, was adopted. The adoption of the compromise was virtually a victory for the Virginia Plan. When the smaller States were given an equal vote in the Senate, they no longer feared that they w^ould be absorbed, so they united with the larger States in giving yet greater powers to the general government. How was the number of Representatives to be deter- The second mined was another serious problem. It was agreed that fifths com- all free persons should be counted. There was little ob- jection offered to counting those persons bound to ser- vice for a term of years and to the excluding of Indians not taxed. The chief debate arose over the question whether the slaves should be included in the enumera- tion. The South Carolina delegates maintained that promise. 112 THE CONSTITUTIONAL CONVENTION The third compro- Influence of the com- promisea. slaves were a part of the population, and as such should be counted. Objections were made that slaves were not represented in the legislatures of that and other States, and, in consequence, ought not to be represented in the National legislature; also, that they were regarded in those States merely as property, and as such should not be represented. There was grave danger that the work of the Convention would fail at this point. Finally, a proposition was introduced to the effect that slaves were to be represented as "other persons," three-fifths of whom were to be counted. Another clause was inserted for the purpose of reconciling the non-slaveholding States to this provision: that "direct taxes should be apportioned in the same manner as Representatives." The third great compromise grew out of the question of the foreign slave trade. South Carolina and Georgia were anxious that this should be continued. This was opposed by the Northern States and by some of the South- em. On the other hand. New England members, es- pecially, because of their interest in commerce, feared the results which would ensue if each State was allowed to be independent in commercial matters. They wanted the general government to have complete control of commerce. But this was resisted by some of the Southern delegates, who thought that, by some act of legislation, the trade in slaves might be prohibited. Finally a compromise was agreed upon which gave Congress power over commerce but forbade any act which might prohibit the importa- tion of slaves prior to 1808. It was also agreed that a tax of ten dollars each might be laid on all slaves imported. While the Constitution may be said to be made up of a series of compromises, these three settled, for the time, the questions which were most vital, and rendered the further work of the Convention possible. It has been sometimes asserted that there should have been no half-way meas- THE CONSTITUTIONAL CONVENTION 113 ures on slavery; that had the question of slavery been settled at that time there need not have been a Civil War. But, as already noted, without compromises the work of the Convention must have failed, and political anarchy would have been inevitable, the results of which would have been even more disastrous than the effects of that terrible period of warfare between 1861 and 1865. The Constitution divided power among three practically some of independent departments of government, viz., the Legis- LatuTes'Sf lative, the Executive, and the Judicial. In place of the emment.^°** single house of the confederation there was to be formed a legislative body consisting of two houses. Experience had proved that a strong executive power was necessary to enforce the laws. It was finally agreed to entrust this power to a single person, the President. Hamilton characterized the lack of a judiciary, under Authority the confederation, as the crowning defect of that govern- govern- ment. The conviction that the Federal judiciary should ^Wished, constitute one of the three parts of the government was general in the Convention, and after a brief discussion provision was made for it. The Federal government, according to the Constitution, was no longer, as under the Articles of Confederation, to be the agent of or to be dependent upon the States, Its laws were to be im- perative, not advisory merely, and were to operate upon persons and not States. Certain significant powers were bestowed upon the National government, such as the right to tax; to regulate commerce; to make war and peace; to support an army and navy; and to coin money. The peculiarity of the new government lies in the division of powers between State and National authorities. The National government was to exercise certain powers enumerated in the Constitution. All other powers not prohibited by the Constitution to the States were to be reserved to the States or to the people. 114 THE CONSTITUTIONAL CONVENTION Signers of the Consti- tution. Madison's "Journal," 763. Ratifica- tion of the Constitu- tion. The final draft of the Constitution, prepared by Gouv- emeur Morris, was then submitted to the delegates for their signatures. Thirty-nine members, representing twelve States, affixed their names to the document, and on September 17 the Convention adjourned.* While the last signatures were being written, Franklin said to those standing near him as he called attention to a sun blazoned on the back of the President's chair: "I have, often and often, in the course of the session, and the vicissi- tudes of my hopes and fears as to its issue, looked at that behind the President, without being able to tell whether it was rising or setting; but now, at length, I have the happiness to know that it is a rising and not a setting sun." The Constitution was first submitted to Congress September 20, and the following day it became known to the people through the New York daily papers. For eight days the document was attacked by its opponents in Congress, but finally it was transmitted to the State legislatures to be sent by them to State conventions chosen by the people. This process of ratification was provided for by Article VII of the Constitution, as follows: Article VII. The ratification of the conventions of nine States shall he sufficient for the establishment of this Constitution between the States so ratifying the same. The period included between September 28, 1787, when Congress unanimously resolved to transmit the Constitution to the State legislatures, and June 21, 1788, the date when it had been ratified by the necessary nine States,! was one of the most critical in our history. Every- where the Constitution was violently attacked. Political parties in a truly national sense were formed for the * See Appendix A. t The State legislatures submitted the Constitution to State Con- ▼entions. THE CONSTITUTIONAL CON^^ENTION 115 first time. Those who supported the Constitution called themselves Federalists, and those opposed Anti-Federal- ists. In general, the opponents of the Constitution desired Argu- • PI-. 1 p 1 n^snts for more extensive powers for the States, and were to be found and against ,1 1 1 1-111 1 theConsti- iargely among the rural population and debtor classes, tution. Its advocates, the Federalists, were the men of wealth and the inhabitants of the manufacturing and commercial centres. Among the leaders who ably defended the views of the opposition, the Anti-Federalists, were Richard Henry Lee, Elbridge Gerry, George Clinton, and Patrick Henry. It was urged that the President would become a despot, the House of Representatives a corporate tyrant, and the Senate an oligarchy; that equality of representa- tion in the Senate was an injustice to the large States; and that there was no Bill of Rights. The views of the Feder- alists are well presented in a letter written by Washington, on his return from the Convention, to Patrick Henry, in which he says: "I wish the Constitution which is offered had been more perfect; but it is the best that could be obtained at this time, and a door is open for amendments hereafter. The political concerns of this country are suspended by a thread. The Convention has been looked up to by the reflecting part of the community with a solici- tude which is hardly to be conceived, and if nothing had been agreed on by that body, anarchy would soon have ensued, the seeds being deeply sown in every soil." Political letters, tracts, and pamphlets flooded the The country. The most noted articles in opposition were the "Letters from the Federal Farmer," prepared for the press of the country by Richard Henry Lee. No influence was more noteworthy in bringing about ratification than the series of political essays afterw'ard collected under the title of "The Federalist." They present the cause with such logic that to-day they are considered the best com- 116 THE CONSTITUTIONAL CONVENTION The Consti- tution in the State conven- tions. The new govern- ment put into operation. mentary on the Constitution ever written. Alexander Hamilton inaugurated the plan and wrote 51 of the 85 numbers. James Madison wrote 29 and John Jay 5. December 6, 1787, the ratification of the Constitution was secured in Delaware, the first State, without a dis- senting vote, and Pennsylvania, New Jersey, Georgia, and Connecticut quickly followed. Much depended on the action of the INIassachusetts convention. After pro- longed debate the delegates were induced to accept the proposition that amendments might be made which would take the place of a Bill of Rights, and adopted the Con- stitution by a vote of 187 to 1C8. The ratification of INIaryland and South Carolina soon followed, and the ninth State was secured by the ratification of New Hamp- shire, June 21, 1788. Virginia ratified, June 25, with a vote of 89 in favor and 79 opposed, and New York, July 26, with 30 affirmative votes and 27 negative. It was not until November 21, 1789, that North Carolina voted to accept the Constitution, while Rhode Island held out until May 29, 1790. When the ratification of the ninth State had been se- cured. Congress appointed a special committee to frame an act for putting the Constitution into operation. It was enacted that the first Wednesday in January should be the day for appointing electors; that the electors should cast their votes for President on the first Wednesday in February, and that on the first Wednesday of IMarch the new government should go into oi)eration. It was not until April 1 that a quorum was secured in the House of Representatives, and in the Senate not until April 6. The electoral votes * were counted in the presence of the two houses on April 6. The inauguration of President Washington did not take place, however, until April 30. * New York did not choose electors, and North Carolina and Rhode Island had not ratified the Constitution. THE CONSTITUTIONAL CONVENTION 117 Havin": considered some of the problems of the Con- Origin of 1 I'll 1 • !« 1 ''^^ Constl- vention and those connected with the adoption of the tuUon. Constitution, we next inquire as to the origin of this epoch- making document. The often-quoted words of Mr. Glad- stone, which have no doubt been misinterpreted, have been used to strengthen the view that the Constitution was the creation of the Convention. He said: "As the British Constitution is the most subtle organism which has pro- ceeded from progressive history, so the American Consti- tution is the most wonderful work ever struck off at a given time by the brain and purpose of man." An analysis of the Constitution shows that there are some provisions which are new and that English precedent has had an influence, but that the main features were derived from the constitu- tions of the States. INIany of the delegates of the Consti- tutional Convention had helped to frame these State constitutions, and all were familiar with their practical workings. Thus, the Convention was "led astray by no theories of what might be good, but clave closely to what experience had demonstrated to be good." * The fol- lowing familiar statement is an excellent summary: "Nearly every provision of the Federal Constitution that has worked well is one borrowed from or suggested by some State constitution; nearly every provision that has worked badly is one which the Convention, for want of a precedent, was obliged to devise for itself." With the exceptions of the constitutions of Pennsylvania and influence of of Georgia, all of the State constitutions, in 1787, provided for cong^ij^u! legislatures of two houses. The term "Senate" was used to tions. designate the upper house in Maryland, Massachusetts, New Princeton York, North Carolina, New Hampshire, South Carolina, and iv^i*;^. Virginia; and "House of Representatives" was commonly used for the lower house. The constitution of Delaware provided for the election of one-third of the senators every two years, and the New York constitution made provision for taking a census * James Russell Lowell, address of April 13, 1888. 118 THE CONSTITUTIONAL CONVENTION New features of the Constitu- tion. Authority and pur- poses of the Constitu- tion. The preamble. once in seven years for the purpose of apportioning the Repre- sentatives. As already noted, Connecticut furnished the ex- ample for equal representation of the States in the Senate and for proportional representation in the House of Representatives. In nearly all of the State constitutions, each House was given the power to decide the election of its members, make rules, publish a journal, and adjourn from day to day. "All bills for raising revenue must originate in the House" is found almost word for word in the Massachusetts and New Hampshire consti- tutions. The powers of President and Vice-President resemble closely those granted the governor and lieutenant-governor. Other important provisions were, no doubt, derived from the State constitutions, such as the process of impeachment, the veto power, the first ten amendments, and the President's mes- sage. Professor Alexander Johnston, in the article the substance of which has just been given, states that while a judicial system existed as a part of the State governments, the " great achieve- ment of the Convention was the erection of the judiciary into a position as a co-ordinate branch of the government." He says also that " the process of electing the President is almost the only feature not a natural growth." It was evidently the intention of the framers of the Constitution to found a government deriving its author- ity from the people rather than from the States. The purposes for which this was done are set forth in the fol- lowing enacting clause, commonly called the preamble: "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tran- quillity, provide for the common defense, promote the gen- eral welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitu- tion for the United States of America." This clause was attacked vigorously by the opponents of the Constitution, and especially in the Virginia and the North Carolina conventions. Said Patrick Henry: "And here I would make this inquiry of those worthy characters who composed a part of the late Federal THE CONSTITUTIONAL CONVENTION 119 Convention. ... I have the highest veneration for those gentlemen; but sir, give me leave to demand, what right had they to say We the people? . . . "Who authorized them to speak the language of, We the people, instead of, We the States? If the States be not the agents of this compact, it must be one great, consolidated. National government, of the people of all the States." It was argued, on the other hand, by Randolph, INIadison, and others, that the government under the Articles of Con- federation was a failure and that the only safe course to pursue was to have a government emanating from the people instead of from the States, if the union of the States and the preservation of the liberties of the people were to be preserved. Supplementary Questions and References 1. Consult American History, chapter 13, for additional ma- terial on the topics in this chapter. 2. Why was Annapolis selected as the place of meeting? Madison, Journal of the Constitutional Convention, 37. 3. For an account of Hamilton's resolution and its origin, see Madison's Journal, 37-41. 4. Was the calling of a convention to remodel the articles a new idea? Madison's Journal, 43-45. 5. W'hy did Congress, at first, object to the Hamilton resolu- tion? Fiske, Critical Period of American History, 217. 6. State the problems connected with the appointment of dele- gates in some of the States. McIVIaster, History of the People of the United States, I, 390-399. 7. For an account of the members of the Convention, see Hart, American History told by Contemporaries, III, 205-211. 8. For the contributions of the individuals and the classes of delegates, see Walker, The Making of the Nation, 23-27; Fiske, Critical Period, 224-229; McMaster, I, 418-423. 9. Why did not Hamilton take a prominent part in the debate 120 THE CONSTITUTIONAL CONVENTION before June 18 ? Give the chief points in his address of that date. Madison's Journal, 175-187. 10. What were the significant points made by Madison in his speech of June 19 ? Madison's Journal, 187-196. 11. Why did the New York delegates leave the Convention? Bancroft, VI, 259-260; Fiske, Critical Period, 254. 12. What was the attitude of the various members of the Con- vention toward the Constitution ? Who refused to sign ? Their reasons? Bancroft, VI, 364-367. 13. Discuss the peculiar conditions in Massachusetts. Give the arguments presented. Schouler, I, old ed., 59, 60; new ed., 66-68; Walker, 56-57; Fiske, Critical Period, 316-331. 14. How was the Constitution regarded in Virginia? Ban- croft, VI, 426-436; Walker, 58, 60; Schouler, I, 70-75; Fiske. Critical Period, 334-338. 15. In what way did Virginia influence New York? What was the attitude of the New York Convention toward the Con- stitution? Bancroft, VI, 455-460; Walker, 60, 61; Schouler, I, old ed., 66, 67; newed., 77-78; Fiske, Critical Period, 340-345. 16. a. What objections were offered against the Constitution in North Carolina ? Hart, American History told by Contemporaries, III, 251-254. h. What would have been the status of North Carolina and of Rhode Island if they had not ratified ? Walker, 73, 74; Hart, Formation of the Union, 132, 133. 17. For a good account of the first Presidential election and the inauguration of the new government, see Fiske, Critical Period, 346-350; Schouler, I, old ed., 74-86; new ed., 79-92. CHAPTER XrV ORGANIZATION OF THE LEGISLATIVE DEPARTMENT All legislative powers herein granted shall be vested in Article!, a Congress of the United States which shall consist of a Senate and House of Representatives. In the Constitutional Convention, Pennsylvania was a Congress the only State which objected to the resolution that a houses. legislative body consisting of two houses should be formed. The single house of the Confederation was regarded as a failure. It was believed that one house would form a check upon the other, and that there would thus be less danger of hasty and oppressive legislation. As already noted, the bi-cameral system existed in all of the States, Pennsylvania and Georgia excepted, and the names Senate and House of Representatives were also in common usage. The House of Representatives shall he composed of mem- Sert'°"j2, bers chosen every second year by the people of the several Term^of^ States, and the electors in each State shall have the qualifi- |^f^3»f J^ cations requisite for electors of the most numerous branch electors. of the State Legislature. It is somewhat difficult for Americans to remember that mem- Responsi- bers of Congress, although elected by the people or by the State members of legislatures, are not, in consequence, compelled to receive in- Congress, structions from their constituents. Each member is supposed to use his own best judgment on any question, and, like a mem- ber of the English House of Commons, ask: "\\Tiat is for the good of the Nation?" Personal views are frequently sacrificed, however, for party interests. ' Judge Cooley says on this question: "Their own immediate constituents have no more right than the rest of the Nation to address them through the press, to 121 122 THE LEGISLATIVE DEPARTMENT appeal to them by petition, or to have their local interests considered by them in legislation. They bring with them their knowledge of local wants, sentiments, and opinions, and may ■enlighten Congress respecting these and thereby aid all members to act wisely in matters which affect the whole country; but the moral obligation to consider the interest of one part of the coun- try as much as that of another, and to legislate with a view to the best interests of all, is obligatory upon every member, and no one can be relieved from this obligation by instructions from any source." * Amend- ment XV Represen- When the Constitution was framed, some of the State tatives . . • i i • i • • elected by Constitutions required a higher quahfication m voters for the people. ir.,.?., the upper house of their legislatures than m voters for the lower house. With the object of making the House of Representatives the more popular branch, it was de- cided to grant the right of voting for a Representative to any person who might be privileged to vote for a mem- ber of the lower house of the legislature of his State. The one limitation upon the freedom of a State to determine what these qualifications are, is given in Amendment XV: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servi- tude. This amendment was proposed by Congress in Feb- ruary, 18G9, and was declared in force March 30, 1870. It was intended to grant more complete political rights to the negroes recently declared, by Amendment XIV, to be citizens. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in Decem- ber, unless they shall by law appoint a different day. A Congress. Members of the House of Representatives are chosen for a term of two years, which period also determines Section 4, clause 2. * Cooley, Principles of CJonstitutional Law. 41, 42. THE LEGISLATIVE DEPARTMENT 123 the length of a Congress. This election is held, in all but three of the States,* on the Tuesday after the first Monday in November, of even-numbered years, and the term begins legally on March 4 succeeding the time of the election.! Except in the case of a special session, the members do not enter upon their duties until the first Monday of the following December, thirteen months after the election. Each Congress has two regular sessions. The first, Sessions of beginning in December of an odd-numbered year, is called the "long session," for its length is not determined by a definite date of adjournment. It usually lasts until the following midsummer and may not extend beyond the first Monday in December, the time fixed for the be- ginning of the next session. The second, or "short ses- sion," cannot extend beyond 12 m., March 4, the time set for a new Congress to begin. The President may con- vene Congress in special session. The first Monday in December of each second year is The meet- a notable day in Washington, for the formal opening of organiza- a new Congress brings thousands of visitors to the city. Congress. In the House of Representatives the organization must proceed as if the body had not met before. To the Clerk of the preceding House are intrusted the credentials of the members, and from these he makes out a list of the members who are shown to be regularly elected. At the hour of assembly he calls the roll from this list, announces whether or not a quorum is present, and states that the first business is to elect a Speaker. After his election the Speaker takes the oath of office. * Oregon holds its election on the first Monday in June; Vermont on the first Tuesday in September; and Maine on the second Monday in September. t The first Congress extended legally from March 4, 1789, to March 4, 1791. 124 THE LEGISLATIVE DEPARTMENT The Senate is a "continuing body" and no formal or- ganization is necessary. At the opening of a new Con- gress the Vice-President calls the body to order and the other officers resume their duties. After the President jjro tempore has been chosen, the newly elected members are escorted to the desk in groups of four and the oath is administered by the President of the Senate. Each house, when organized, notifies the other of the fact and a joint committee of the houses is appointed to wait upon the President and inform him that quorums are present and are ready to receive any communication he may desire to send. No person shall he a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not when elected be an inhabitant of that State in which he shall be chosen. A great diversity of qualifications for members of the State legislatures existed in the various State constitu- tions. With such differences of opinion, it was agreed to make the positive qualifications for members of the National legislature few and simple. They pertain to age, citizenship, and inhabitancy, and the opinion pre- vails that the States may not add others. It has been the belief in the United States that an inhabitant of a State has a deeper concern for the interests and represents the people of his State more completely than a stranger. Hence, a Representative is not only required to be an in- habitant of the State, but custom has decreed that he must also be an actual resident of the district which he represents. It sometimes happens in New York City, however, that an "up-town" resident is elected to repre- sent a "down-town" constituency. May the House refuse to admit a person duly elected and possessing the constitutional qualifications? This questibn arose section 2. THE LEGISLATIVE DEPARTMENT 125 in the 56th Congress in the case of Brigham Roberts, of Utah, and he was excluded on the ground that he was a polyg- amist. Section 2, Amendment XIV, which became a part of the Constitution July 28, 1868, contains the rule of ap- portionment which is now in operation. It declares that: Representatives shall be apportioned among the several Apportion- States according to their respective numbers, counting the Represen- /• ' 1 J • • tatives. whole number of persons m each State, excluding Indians not taxed. But when the right to vote at any election for ^™nt°xiv the choice of electors for President and Vice-President of the Unitpd States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Leg- islature thereof is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for par- ticipation in rebellioji or other crime, the basis of repre- sentation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole num- ber of male citizens twenty-one years of age in such State. When the amendment was proposed, negroes had been granted the right of suffrage in only a few States, and Congress believed that rather than have the number of their Representatives reduced the other States would also be willing to grant them complete political rights. Tennessee was the only Southern State which ratified the amendment, but since Amendment XV became a part of the Constitution before the next apportionment of Repre- sentatives was made, this section was not put into practical operation. Each State may still determine for itself who has the right to vote within its limits. (See page 43.) A few of the States, as Pennsylvania, require a property qual- ification, and about one-third require an educational qualifi- cation for voters. In Massachusetts he must be able to read 126 THE LEGISLATIVE DEPARTMENT Article I, section 2, clause 3. Original method of apportion- ment. the State constitution in the English language, and write his own name unless prevented by physical disability or was sixty years of age when the amendement went into effect. In Louisi- ana and South Carolina the voter must either be able to read and write or possess property valued at three hundred dollars. It has been claimed that the object of some of these amend- ments was not alone to exclude illiterate voters. In proof, it is shown that what has been called the "grandfather clause" in some cases dispenses with the educational qualification. This provides, as stated in the constitution of North Carolina, that "no male person who was on January 1, 1867, or at any time prior thereto, entitled to vote under the laws of any State in the United States wherein he then resided, and no lineal descendant of any such person, shall be denied the right to register and vote at any election in this State by reason of his failure to possess the educational qualifications prescribed." The question has arisen. Should not section 2 of Amendment XIV be enforced? for the various restrictions exclude thousands of adult male citizens from voting. Thus far no action has been taken, although the Republican party in the National platforms of 1904 and 1908 pledged itself to enforce this provision. The original method of apportionment was as follows: Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other per- sons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner at they shall by law direct. The number of Representatives shall not exceed one for every thirty thou- sand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Con- necticut five. New York six. New Jersey four, Pennsyl- THE LEGISLATIVE DEPARTMENT 127 vania eight, Delaware one, Maryland six, Virginia ten. North Carolitia five. South Carolina five, and Georgia three. The three-fifths rule was rendered void by the adoption of Amendment XIII, which abolished slavery. There were then no longer the "other persons." That part of the clause providing for the laying of direct taxes is still in force. Really the Southern States w^ere favored. In practical operation, while their direct taxes were increased, these were imposed only on five occasions, and the States of the South secured a large increase of Representatives. The Indians "not taxed" doubtless refers to those Indians who still maintain their tribal relations or live on the reservations. Their number, according to the census of 1910, was 129,518. A careful enumeration of the population of the United The States had not been made in 1787. In order to carry out this provision of the Constitution, the first census was taken in 1790 and there has been one every ten years since that time. The taking of the census and the com- pilation and publication of the statistics connected with it are under the supervision of the Director of the Census. The principal reports in the census are those on popula- tion, manufactures, and agriculture. On account of the establishment of a permanent census bureau, in 1902, the work of taking the census is now conducted with much greater economy and efficiency. According to the original method of apportionment, the num- The ratio ber of Representatives was not to exceed one for every 30,000 sentetion. people, and the House contained 65 members. Various methods were used in ascertaining the ratio of representation after each census imtil 1870, when the present sytem was employed for the first time. The House of Representatives, after March 4, 1903, accord- Apportion- ing to the reapportionment act of January 12, 1901, had 386 ^o°* °^ members as a minimum, the ratio being one Representative to 128 THE LEGISLATIVE DEPARTMENT Members from new States. Apportion- ment of 1911. 194,182 of the population. An effort was made to keep the num- ber at 357 as estabUshed by the reapportionment act of 1891, but no ratio could be found which would enable this to be done without taking from some of the States one or more of their present Representatives. The Representatives of States coming into the Union after the apportionment is made are always additional to the number provided for by law. Thus when Oklahoma was admitted five Representatives were added, making 391 members in all. According to the census of 1910, several States were entitled to additional members, but in order that no State should be re- duced, the House of Representatives passed a bill providing for an increase of 42 members. The new ratio would then be one Representative to 211,877 people. Effort was made to prevent this increase, for it was argued that the House had already become unwieldy, requiring great effort on the part of members to make themselves heard. The bill failed to pass the Senate at the regu- lar session but subsequently, at the special session, it was passed and became a law. The number of members in the House of Commons is 670; in the French Chamber of Deputies, 584; and in the German Reichstag, 396. Territorial delegates. Section 2, clause 4. Vacancies. Section 2, clause 5. New Mexico, Arizona, Alaska, Hawaii, and Porto Rico are each entitled to send one delegate and the Philippine Islands two delegates to the House of Representatives. These delegates have the privilege of speaking in the House but may not vote. When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies. When a vacancy occurs in the representation from any State on account of death, expulsion, or for other cause, it is made the duty of the Governor of the State in which the vacancy exists to call a special election in that district to choose a Representative for the remainder of the term. The House of Representatives shall choose their Speaker and other officers, and shall have the sole power of impeach- ment. THE LEGISLATIVE DEPARTMENT 129 The Speaker is always a member of the House.* The Officers other officers are the Clerk, Sergeant-at-arms, Door- House, keeper, Postmaster, and Chaplain, none of whom is a member of the House. The Clerk calls the House to order at the first meeting of each Congress, and acts as the pre- siding officer until a Speaker is elected. He keeps the record of all questions of order that arise, certifies to the passage of bills, and has charge of the printing of the House Journal. The Sergeant-at-arms sees that good order is preserved. The Senate of the United States shall be composed of two Section 3, Senators from each State, chosen by the legislature thereof for six years; and each Senator shall have one vote. This clause constitutes a part of the celebrated com- Number, promise between the large and the small States. There and term was also great diversity of opinion with regard to the Senators. number of members in the Senate and their apportion- ment among the several States. After equality of rep- resentation in this body was decided upon, there still re- mained the question as to the number from each State. Were there to be three or two ? Finally two, the smallest number of Representatives to which a State was entitled under the Confederation, was adopted. f Unlike the dele- gates in the Continental Congress, the Senators do not vote by States. The two Senators from a State may and often do vote on opposite sides of a question. Other questions arose such as: Were the Senators to be chosen by the legislature of each State; by the people of the States; or by the House of Representatives either directly or from candidates nominated by the State legislatures ? The reasons for the unanimous adoption of the first plan * For an account of the Speaker and his power in legislation, see pp. 175-177. t The Senate, 1911, contains ninety-two members; the English House of Lords 560, and the French Senate 300. 130 THE LEGISLATIVE DEPARTMENT seems to have been that it would connect the State govern- ments more closely with the National government, and that the powers of the States would not be unduly en- croached upon by the general government, Alexander Hamilton was in favor of choosing Senators for life or during good behavior. Terms of nine years, of seven years, of six years, of five years, of four years, and of three years were also proposed. Six years was thought to be most satisfactory, for it would secure permanence of governmental policy and responsibility in the Senators, and at the same time guard against the dangers of a life tenure in which desirable changes would be too much re- sisted. The modifications introduced by the next clause seem to have been intended to provide against any permanent combination among the members. gection 3, Immediatehj after they shall he assembled in consequence ciasses'of of the first election, they shall he divided, as equally as may he, into three classes. The seats of the Senators of the first class shall he vacated at the expiration of the second year; of the second class, at the expiration of the fourth year; and of the third class, at the expiration of the sixth year; so that one-third may he chosen every second year, aiid if vacancies happen by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legis- lature, which shall then fill such vacayicies. According to this provision, at the first session of the first Congress, the Senators were divided into three classes. Senators from the same State are always placed in sepa- rate classes, and the Senators from a new State are assigned in such a manner as to preserve the classification. The classes they are to enter is determined between them by lot drawn in the presence of the Senate. Thus, the Sena- tors from Utah were assigned to the two- and the four-year Senators. THE LEGISLATWE DEPARTMENT 131 classes, and neither of them served the full term of six years. A Senator appointed by the Governor of a State dur- ing the recess of the State legislature holds the office until the next meeting of the legislature, or, in case that body fails to elect his successor, until the end of the ses- sion of the legislature. If, after a Senator's term expires, the legislature fails to elect If the his successor, the question arises, may the Governor fill the joes neV vacancy by appointment? In several instances the Senate has ^ecia decided against this procedure, and the decision in another case in April, 1900, would seem to indicate that it proposes to carry out the precedent. No person shall he a Senaior tvho shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and loho shall not, when elected, he an in- habitant of that State from which he shall he chosen. Members of the Senate are ordinarily older than mem- bers of the House. They are men also who, as a rule, have been prominent in public affairs. National or State. Because of their training and the control by the Senate over treaties and certain of the appointments. Senators have been conceded greater political power than Repre- sentatives. The Vice-President of the United States shall be Presi- dent of the Senate, but shall have no vote unless they be equally divided. The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States. The officers of the Senate are President, Secretary, Chief Clerk, Sergeant-at-arms, Chaplain, Postmaster, Librarian, and Door-keeper, none of whom is a member of the Senate. The Vice-President of the United States is Section 3. clause 3. Qualifica- tions of Senators. Section 3, clause 4. President of the Senate. Section 3, clause 5. Other officers of the Senate. 132 THE LEGISLATIVE DEPARTMENT The President pro tempore. Oath of office. Section 4, clause 1. Power of Congress over the elections of Senators and Represent- atives. Method prescribed for the election of Senators. President of the Senate, but lias no vote "unless they are equally divided." He cannot take part in the debates nor appoint the Senate committees. These committees, as well as the other officers, are chosen by the Senate. Their duties are similar to those of the corresponding positions in the House. It is desirable, in the absence of the Vice-President, that the Senate shall have a presiding officer, and so at the opening of the session that body chooses from its own members a President 1:)^ tempore. He may vote on any question, but cannot cast the deciding vote in case of a tie. The Vice-President takes the oath of office when he is inaugurated. On the first day of the session he admin- isters the oath of office to the new Senators, who swear to support the Constitution and the laws of the United States. The times, places, and manner of holding elections for Senators a?id Representatives shall be prescribed in each State by the legislature thereof; hut the Congress mny at any time, by law, make or alter such regulations, except as to the place of choosing Senators. Congress did not exercise its authority in the election of Senators prior to 1866. ISIany disturbances had arisen between the houses of the legislatures over the mode of election, and an act of that year provided for the present uniform system as follows: The legislature chosen next before the expiration of the term of a Senator shall proceed to elect his successor on the second Tuesday after its organization. On that day each house must vote separately by a viva voce vote and enter the result on its journal. The two houses are required to meet in joint assembly at 12 m. the following day, when the results are read. If the same person has received a majority of the votes in both houses, he is elected. If no person have THE LEGISLATIVE DEPARTMENT 133 such majority, the joint assembly must take a viva voce vote and the person receiving a majority of such votes is elected, providing a majority of all the members elected to both houses are present and voting. Should there still be no election, the joint assembly must meet at noon on each succeeding day and take at least one vote until a Senator shall have been chosen. The procedure is the same in the case of a vacancy which has occurred before the legislature has assembled. When the vacancy happens during the session of the legislature, it must proceed in the same way the second Tuesday after receiving notice of the vacancy. The usual practice, however, in the States where direct nomination has not been adopted, is for the members of the different parties in the legislature to meet in separate caucuses and agree upon the candidates which they will present to the legislature. "Deadlocks" in the election of Senators have frequently oc- Popular curred. In 1S99, the legislature of Pennsylvania cast seventy- Senators nine ballots and finally adjourned without electing a Senator. The legislature of Nebraska, in 1901, voted for three months be- fore a Senator was elected. It is stated that at least half the States have, during the past fifteen years, suffered from dead- locks. At times also the votes of individual members in some of the legislatures have been secured by bribery. Because of these and other abuses the agitation in recent years for the election of Senators by popular vote has been more pronounced. The House of Representatives has passed the resolution a num- ber of times providing for an amendment to the Constitution which would secure the election of Senators by popular vote. More than two-thirds of the State legislatures have gone on record in favor of such a reform. But not until 1911 was this proposal to amend the Constitution reported to the Senate for favorable action. The vote on the resolution stood 54 in favor and 33 against. Thus the necessary two-thirds lacked four votes. Meantime, in a number of the States there has been the at- T^e tempt to get around the constitutional difficulty. The so-called Oregoa Oregon plan really provides for the direct election of Senators. 134 THE LEGISLATIVE DEPARTMENT According to this plan each party nominates its candidate in a primary election. The names of these candidates are then placed on the State ticket and are voted for at the general election. The person receiving the highest number of votes is declared to be the choice of the people. To make these steps effective, candidates for the legislature may be pledged, in their petition for the pri- mary, to vote for that candidate for United States Senator who has received the highest number of votes at the general election, without regard to their own personal preference. By such a process, it has happened that a Senator has been chosen of a different political party from that having the majority in the State legislature. Time and melhod of choosing Kcpresent- atives. Redistrict- ing the Slates. "Gerry- mander- ing." The time for the election of Representatives has been prescribed by Congress to be the Tuesday next after the first Monday in November of the even-numbered years. The Constitution provides that they shall be elected by the people. For many years there was variation in the practice of the States, some electing their Representatives by districts, others at large. Since 1842 Congress has re- quired the district plan. But a State receiving an addi- tional Representative, by a new apportionment, may elect him at large until the State is redistricted. The process of districting the States is under the con- trol of the State legislatures, and is usually performed during the first session after a new apportionment has been made, although some States are redistricted more frequently. The only restrictions placed upon the legis- latures are those contained in a Congressional act of Feb- urary 2, 1872, which provides that the districts shall be composed of contiguous and compact territory and con- tain, as nearly as practicable, an equal number of inhabi- tants. The desire to secure party advantage has often led to the manipulation of district lines in a most unfair manner. We have good examples of this method in the rcdistricting of some of the States after each census. Thus, portions THE LEGISLATIVE DEPARTMENT 135 of a State containing large numbers of voters of the oppos- ing party have been annexed to a district which could not be carried by the party having a State majority. Or at times territory, consisting either of one or more counties or a portion thereof, which had voters that could be spared by the majority party in one district has been united with some other district where the majority of their adversaries could thus be offset. Territory has been regarded as contiguous when it touched another portion of the district at one point. As a consequence, peculiarly constructed districts are to be found in some of the States, such as the "monkey-wrench" district of Iowa. When the Repre- sentative districts of a State have been in this manner the objects of political manoeuvring or when a similar system has been used in forming State legislative or judicial dis- tricts, the State is said to have been "gerrymandered." * The origin of the expression is described in the following: " So Origin of called from Elbridge Gerry, a leading Democratic politician in zander " Massachusetts (a member of the Constitutional Convention of Bryce, Amerioan 1787, and in 1812 elected Vice-President of the United States), Common- who, when Massachusetts was being re-districted, contrived a ^of ^ ' scheme which gave one of the districts a shape like that of a lizard. A noted artist entering the room of an editor who had a map of the new districts hanging on the wall over his desk, observed, 'Why, this district looks like a salamander,' and put in the claws and eyes of the creature with his pencil. ' Say rather a Gerrymander,' replied the editor, and the name stuck." Other writers have maintained that Mr. Gerry was opposed to this scheme. Supplementary Questions and References 1. What is the number of the present Congress? Give the times for the beginning and end of each session. 2. For a discussion on the time when Congress should convene, see Beard, American Government and Politics, pp. 248, 249. * City wards have also been " gerrymandered." 136 THE LEGISLATIVE DEPARTMENT 3. It is not required by law that a Representative should reside in the district that he represents, but it is an established custom. What are its advantages and its disadvantages? Compare with the English practice. Bryce, American Commonwealth, I, chap- ter 19, 186-190. 4. Do you favor an educational qualification for voters ? Why ? 5. Were the States mentioned on pp. 125-126 justified in the enactment of their suffrage laws? 6. Should section 2, Amendment XIV, be enforced? Rev. of R's, 22 : 273-275; 653, 654; 25 : 716-718; Forum, 31 : 225-230; Oudook, 70 : 791-792. 7. What are the points of likeness and of difference between the House of Representatives and the House of Commons? N. Am. Rev., 170 : 78-86. 8. How large is your Congressional district? Compare its area with that of other districts in your State. What is its pop- ulation? Compare this with the ratio of apportionment; also with the population of other districts in your State. Compare the number of votes cast for Representative in your district with the number cast in districts of other States in different sections of the country. How do you account for the variations ? See New York World Almanac. 9. Give the number of Representatives to which your State is entitled. Was the number increased in the last apportionment? 10. With the admission of New Mexico or of Arizona how many Representatives would be added ? How many Senators ? Why were these territories not admitted by the 61st Congress (1911)? 11. For "gerrjTnandering," effects, and remedy, see Outlook 97 : 186-193; Beard Readings in American Government and Politics, 219, 220. 12. For accounts of the method by which a census is taken, see American Census Methods, Forum, 30 : 109-119; Merriman, Census of 1900, N. Am. Rev., 170; Durand, Census of 1910, Rev. of R's, 41 : 589-596; 404^05. 13. What were the results of the Census of 1910; present pop- ulation; distribution of the population; and growth during the century? World's Work, 21 : 13838-13842. THE LEGISLATIVE DEPARTMENT 137 14. Who are some of the best known Representatives and Senators? For what reasons are each noted? 15. Who are the Senators from your State? W^hen was each elected ? 16. Give the names of the Speaker, and of the President pro tempore. 17. Should Senators be elected by the votes of the people? Beard, Readings in American Government and Politics, 226-233; Outlook, 97 : 351, 352; 389-392; Haynes, The Election of Senators (arguments for), 153-210; (arguments against), 211- 258; Rev. of R's, 42 : 133-140; Forum, 42 : 142-147; Indept., 63 : 847-851; 64 : 1311-1312; 66 : 267-268. 18. The power of the Senate, N. Am. Rev., 174, 231-244; Reinsch, Readings on American Federal Government, 146-155. 19. Ought there be an amendment to the Constitution pro- viding for uniform qualifications for suffrage ? Article II, section 4. Article I, section 2, clause 5. Section 3, clause 6. Section 3, clause 7. Who may be impeached. CHAPTER XV POWERS AND DUTIES OF THE SEPARATE HOUSES I. Impeachment. The President, Vice-President, and all civil officers of the United States shall be removed from office 07i impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. The House of Representatives shall . . . have the sole power of impeachment. The Senate shall have the sole power to try all impeach- ments. When sitting for that purpose, they shall be on oath or affinnation. When the President of the United States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States ; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and pun- ishment according to law. The term "civil officers" is here used in distinction from military and naval officers, who are tried for offences by courts-martial. Members of Congress may not be im- peached. It has been determined that they are subject only to the rules of the house of which they are members. What constitutes high crimes and misdemeanors has never been accurately defined, but they are understood 138 POWERS OF THE SEPARATE HOUSES 139 to be those offences of an official nature which the ordi- nary courts of law cannot reach ; such as, abuse of power, acceptance of bribes, or intemperance. The House of Representatives has the sole power to prefer The charges of impeachment. These take the place of the indict- ™iai.° ° ment in the ordinary criminal trial. The Senate has the sole power to try all impeachments. The Chief Justice of the United States must preside in the trial of the President, while in ordi- nary trials the presiding officer is the Vice-President or the President pro tempore. The manner of conducting the trial resembles that of a trial by jury. Each Senator is sworn to be impartial in his decision; managers from the House present the charges at the bar of the Senate; the accused may answer in person or through his counsel; and witnesses are examined. When all the evidence has been submitted, the Senate deliberates on the case in secret session. In order that impeachment may not be used for party purposes, it is provided that there shall be no conviction except by a two-thirds vote. During the progress of the trial, the officer impeached is permitted to per- form his regular duties. No action can be taken by the Senate other than to remove the convicted official from office and to disqualify him from holding any office under the United States. If the offence upon which the conviction is secured is one punishable by law, the person is liable to a regular trial in the courts. The President may not grant a pardon in cases of impeachment. Largely because of the cumbersome method of procedure, the number of impeachment trials has been small. These have been the following: Senator William Blount in 1799; Judge John Pickering of the United States Supreme Court in 1803 Judge Samuel Chase of the United States Supreme Court in 1804 Judge James H. Peck of the Federal District Court in 1830 Judge W. H. Humphries of the United States District Court in 1862; President Andrew Johnson in 1868; Secretary of War W. W. Belknap in 1876; Judge Charles Swayne of the United States District Court in 1904; Judges Pickering and Hum- phries were convicted. Judgment on convic- tion. Impeach- ment trials. 140 POWERS OF THE SEPARATE HOUSES Contested seats in the Senate. II. The Quorum, Journal, and Freedom of Speech. Section 5, Each house shall be the judge of the elections, returns, clausal. . . J J J ' » Determina- and qualifications of its own members, and a maioriiii of tiOn of 7 7 77 • 7 7- 7 17 member- cach shail Constitute a quorum to do business; but a smaller quorums, number may adjourn from day to day, and may be author- ized to compel the attendance of absent members, in such manner and under such penalties as each house muy pro- vide. It is obvious that the power to judge of the elections, returns, and qualifications of members of a legislative body, must exist somewhere. This right could not be better placed than in the houses constituting the legis- lative body, for by the exercise of this right the indepen- dence and purity of the houses are preserved. In the Senate the question raised in a contest usually applies to whether a Senator has been duly elected. Nu- merous cases have been tried upon the ground that elec- tions have been secured by bribery and corruption. Among the most noted contests was that which arose in 1911, over the report of the Senate investigating committee in the case of Senator Lorimer of Illinois, A majority of the committee reported that the charges of bribery had not been proven. In the discussion before the Senate it was maintained by the leading advocates for Mr. Lorimer's right to his seat in the Senate that purchased votes were not to be counted and that he had received a majority of unquestioned votes in the legislature. This view was characterized by the opposition as dangerous and alarm- ing. Finally, after a debate extending over many days in which the foremost Senators took part, the minority report, which a.sserted that Senator Lorimer, of Illinois, was not "duly and legally elected," was lost by the vote of 46 to 40. The outcome will doubtless do much to strengthen the demand for the election of Senators by popular vote. POWERS OF THE SEPARATE HOUSES 141 In the House the name of the person possessing the Contests in certificate of election signed by the Governor of his State is entered on the roll of the House, but the seat may still be contested. Many cases of contested elections are considered by each new House. Each of the cases when presented to the House consumes from two to five days which might otherwise be used for the purposes of legis- lation. The law provides that not more than $2,000 shall be paid either of the contestants for expenses, but even then, it is estimated, these contests cost the government, all told, $40,000 annually. When the decision is ren- dered by the House, the vote is, in most cases, strictly on party lines, regardless of the testimony. In view of these facts, it has been suggested that the Supreme Court should decide all contested elections. Fifteen members, including the Speaker, may be authorized Whateon- to compel the attendance of absent members. This is accom- quorumf plished as follows: the doors of the House are closed, the roll is called, and absentees noted. The Sergeant-at-arms, when directed by the majority of those present, sends for, arrests, and brings into the House those members who have not a sufficient excuse for absence. When a quorum * is secured the business is resumed. Each house may determine the rules of its proceedings, Section 5, punish its members for disorderly behavior, and, with the Rules and concurrence of two-thirds, expel a member. '^'^'^ The right to make its owti rules is usually intrusted to every assembly, and this power should be vested in the houses of the National legislature. But rules would be without value unless there were some means of punish- ment provided for those who disregard them. It is also desirable that, in extreme cases, there should be some method of redress. The two-thirds vote necessary to ex- pel a member seems wise in order that expulsion may * For the power of the Speaker in counting a quorum, see p. 176. 142 POWERS OF THE SEPARATE HOUSES Section 5, clause 3. The Jour- nal. The yeas and nays. Section 5, clause 4. Power to adjourn. not be ea.sily used in the interest of a faction or of a politi- cal party. Each House shall keep a journal of its proceedings and from time to time publish the same, excepting such parts as viay in their judgment require secrecy ; and the yeas and nays of the members of either House on any question shall, at the desire of one-fifth of those present, be entered on the journal. By means of the Journal, read at the opening of each day's session, the official record of the proceedings of Congress is made known to the public. The debates do not appear in the Journal, but are published each day in the "Congressional Record." Another means of keeping constituents informed on the position of their Representatives is through the re- cording in the Journal of the vote of each member upon the demand of one-fifth of those present. In voting by the "yeas and nays," the Clerk calls the roll of members and places after each name, "yea," "nay," "not voting," or "absent." The Senate rules specify this as the only method of voting. (Other methods of voting are indica- cated on p. 150.) Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. Without such a provision it would be possible for either House, by adjourning, to block effectually all legislation. If there is a disagreement between the two Houses with respect to the time of adjournment, the President may adjourn them to such a time as he thinks proper. He is also authorized by law to convene Congress at some other place than Washington, in case of the existence there of contagious disease or of any other conditions which would place life or health in jeopardy. POWERS OF THE SEPARATE HOUSES 143 The Senators and Representatives shall receive a com- pensation for their services to be ascertained by laio, and paid out of the treasury of the United States. They shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and going to and return- ing from the same ; and for any speech or debate in either House, they shall not be questioned in any other place. The question, ought compensation to be given mem- bers of legislative assemblies or should their services be regarded as honorary, gave rise to a heated discussion in the Constitutional Convention. INIembers of the State legis- latures were receiving salaries, but members of the English Parliament were not. Finally, the American practice pre- vailed, for it was thought that men of ability, though poor, might thus be enabled to enter the National legislature, and that the position might be made more attractive than that of membership in a State legislature. The compensation of Senators and Representatives from 1789 to 1815 was six dollars a day and thirty cents for every mile travelled, by the most direct route, in going to and return- ing from the seat of government. Prior to 1907, this amount was changed several times by act of Congress. The compensa- tion then agreed upon was $7500 per amium, with mileage. An allowance is also made each member for clerk hire and stationery. To many this seems a large salary, but the great expense of living in Washington renders the amount quite in- adequate. Many members make a financial sacrifice in accept- ing a sea.t in Congress. As already noted, a member of Congress may be pun- ished for an offence by the House to which he belongs. It is manifest that he should be free from arrest, except in case of treason, felony, and breach of the peace ; other- wise his district might, sometimes under false charges, be deprived of representation, and National legislation be interrupted. Section 6, clause 1. Compen- sation and freedom from arrest. Salaries paid Senators and Repre sentatives. Privilege from arrest. 144 POWERS OF THE SEPARATE HOUSES Freedom of Freedom of speech is quite as important in a repre- sentative government as freedom of person. This privi- lege extends to all utterances used in the course of leg- islation. Since all Congressional debates are published, it is held to apply to them also. Section 6, No Senator or Representative shall, during the time for Disquaiifi- which he was elected, be appointed to any civil office under hold other the authority of the United States which shall have been created, or the emoluments whereof shall have been increased, during such time ; and no person holding any office under the United States shall be a member of either House dur- ing his continuance in office. The purpose of this provision, which was discussed at considerable length in the Constitutional Convention, seems to have been to remove the temptation on the part of Congressmen to create offices or to increase the emolu- ments of those already existing in order to profit by such legislation. It was also thought necessary to guard against bargaining. The President, in order to secure certain legislation, might agree to appoint to offices thus created Congressmen who aided him. The exclusion of United States officials from seats in Congress was due to the desire of appeasing State jealousy, which asserted that the National government would secure an undue influence over the State governments. It is advocated, with good reason, that members of the Cabinet should be privileged to take part in the discussion of measures in Congress which pertain to their own depart- ments. Alexander Hamikon asked for this privilege, but it was refused because of the fears of his influence. The precedent thus established has always been retained. But since executive officers are often invited to present their views before committees of Congress, they may exert great influence upon legislation. CHAPTER XVI PROCEDURE IN CONGRESS The first step in the enactment of a law is the intro- duction of a bill. In the House of Representatives the bill, indorsed with the name of the member introducmg it, is placed in a basket on the Reading Clerk's desk. It is then referred to a committee by the Parliamentary Clerk. In the Senate, the member introducing a bill rises, is recognized, and asks leave to introduce it. FORM OF A BILL 56th Congress 1st Session H. R. 6071 [Report No. 376.] IN the House of Representatives Jan. 12, 1900. Mr. Loud introduced the following bill, which was re- ferred to the Committee on Post-Offices and Post-Roads and ordered to be printed. Feb. 19, 1900. Reported with amendments, referred to the House Calendar, and ordered to be printed. A BILL To amend the postal laws relating to second-class mail matter. 1 Be it enacted by the Senate and House of Repre- 2 sentatives of the United States in Congress assembled, 3 That mailable matter of the second class shall embrace 145 146 PROCEDURE IN CONGRESS The introduction and reference of bills take place during sessions of the Houses, but the bills do not come up for consideration until the committees report them back. The Before proceeding further with the history of a bill we system. must noticc a most important feature of Congressional machinery — namely, the committee system. Almost every deliberative body finds it convenient to intrust certain parts of its business to committees. When the assembly is large, and especially when the mass of business is great, com- mittees are absolutely necessary. After a committee has given consideration to any matter in its charge, it submits to the main body a report recommending whatever course of action it deems wise. The assembly may either adopt or reject this report. In Congress many thousands of bills are introduced in a single session. By far the greatest part of the work of Congress, therefore, must be done in committees. To these committees all bills must be re- ferred. The chairman of each committee and a majority of its members are selected from the party having a major- ity in the house where the committee originates. For many years it was the custom that committees in the House should be appointed by the Speaker; but in the first session of the 62d Congress (a special session meeting in April, 1911) a new rule was adopted under which all committees are elected. In the Senate, also, committees are elected; that is, the Senators of each party, acting in separate caucuses, select the members who are to serve on the various committees. In the 60th Congress 28,000 bills were introduced in the House and 9,500 in the Senate. In the next Congress there were 61 House committees, varying in membership from 5 to 19. In this Congress 33,015 bills were introduced in the House. In the 62d Congress the principal committees consisted of 21 members each — 14 Democrats and 7 Republicans. Among PROCEDURE IN CONGRESS 147 the most important standing committees of the House are the following: Ways and Means (the most important because it has charge of bills for raising revenues), Appropriations, Judi- ciary, Interstate and Foreign Commerce, Post-OfEces and Post- Roads, Military Affairs. The number of committees in the Senate was 72 in the 61st Congress. The names of a few are: Finance (corresponding to the Committee on Ways and Means in the House), Agriculture, Commerce, Foreign Relations, Indian Affairs, Railroads, Pubhc Lands. Both in the House and in the Senate, every member is on some committee, and some members have places on several committees. Over the bills placed in their charge, committees have Power of a great degree of control. "They may amend a bill as over bills. they please; they may even make it over so entirely that it is really a new bill, reflecting the views of the com- mittee rather than the views of the originator." The power of House committees to kill bills by refusing to report them was exercised for many years, until it was taken away, in 1910, by a new rule under which a majority of the House may discharge a committee from further consideration of a bill. It may then be brought before the House in spite of the committee's opposition. The influence of committees in determining what l^ws shall be passed is further shown by the following facts: (1) Their sessions are secret and their proceedings are sel- dom published. Committees frequently conduct "hear- ings," however, which are generally public, and at which testimony and arguments are presented by both friends and opponents of a measure. (2) Only a very small pro- portion of the bills referred are ever reported back to the House. (3) The House really deliberates upon only a few of the most important bills that are reported. It ac- cepts the recommendations of the committees as to the proper disposition of the great majority of these bills, and they are passed or rejected without question or de- 148 PROCEDURE IN CONGRESS bate. About five or ten per cent, of the measures intro- duced become laws, and only a small number of these are bills of importance. Responsi- Only in small measure, therefore, do we have, in the committees Housc, legislation by deliberation and debate.* The power intrusted to the committees is so great that nothing but the personal integrity of the Representatives can pre- vent its abuse. Corrupt influences may easily be brought to bear upon them, for there are always present in the "lobby" men w^hose sole aim is to influence legislation in this way. Since the committees are held responsible only in a slight degree for the business intrusted to them, the detection of such evils is very difficult. The When a bill is reported back to the House it is placed calendars. '^ , n ^ i < 1 President equivalent to the acknowledgment of that state as an and foreign * , 1 • J J- mmisters. independent nation. A minister may be rejected or dis- missed because he is personally objectionable; because there is no desire to recognize his state as sovereign; or for the reason that unfriendly relations exist between the two nations. Should the executive of one nation send to the minister of another nation, during a period of strained relations, that minister's official papers, it would be re- garded as equivalent to a declaration of war. 242 POWERS OF THE PRESIDENT Supplementary Questions and References. 1. What have been some of the most important treaties entered into on the part of the United States? 2. For the treaty made at the close of the Spanish-American War, see Rev. of R's, 18 : 258, 371, 515, 631; 19 : 11, 261, 262, 266, 267. 3. In what ways may a treaty be abrogated? Harrison, This Country of Ours, 140, 141. 4. May a President have many of the privileges of private life ? a. The President at Home, Harper's Mag., 89 : 196-203. h. Harrison, This Country of Ours, 177-180. 5. What are some of the official cares of the President? a. Our Fellow Citizen of the White House, Cen. Mag., 53 : 645-664. h. Harrison, This Country of Ours, 162-177. 6. Secure a copy of the last report of the Civil Service Com- mission and also Manual of Examinations for the Classified Ser- vice of the United States, Address, Civil Service Commission, Washington, D. C. a. How many persons are included in the civil service of the United States? h. What proportion of them are included in the classified service ? c. Does the Law of 1883 seem to have brought about satis- factory results ? d. What offices have been included in the extensions of the Civil Service Law? e. What is the nature of the questions given in the examina- tions? 7. The Fifteenth Annual Report of the Commission (pp. 443- 485) contains an account of the appointments and removals by the various Presidents from 1789 to 1883. Also an account of the growth of civil service reform in the States and cities of the United States, pp. 489-502. 8. May a man be fitted for political preferment and not be competent to pass an adequate examination? Atl. Mo., 65 : 443, 444. PO^YERS OF THE PRESIDENT 243 9. For other articles on civil service reform see: a. The Ci\al Service as a Career, Forum, 20 : 120-128. b. Lyman J. Gage, The Civil Service and the Merit System, Forum, 27 : 705- 712. c. Some Popular Objections to Civil Service Reform, Atl. Mo., 65 : 433-144; 671-678. d. "The Victor and The Spoils," Outlook, 93 : 850-851. e. " Civil Service Under President Roose- velt," Rev. of R's, 31 : 317-324. /. "Twenty-five Years of Civil Service Reform," Outlook, 84 : 799. g. Roosevelt, Present Status of Civil Ser%-ice Reform, Atl. I\Io., 75 : 239-246. h. The Purpose of Civil Service Reform, Forum, 30 : 608-619. 10. What was the Tenure of Office Act of 1867? Why did it become of great importance ? Is it still in force ? Wilson, Divi- sion and Reunion, 267, 270-271, 297. Harrison, This Country of Ours, 101-103. 11. What were the chief points discussed in the President's last annual message ? CHAPTER XXV THE CABINET AND THE EXECUTIVE DEPARTMENTS The The President's Cabinet comprises the Secretary of State, Secretary of the Treasury, Secretary of War, Attorney-General, Postmaster-General, Secretary of the Navy, Secretary of the Interior, Secretary of Agriculture, and Secretary of Commerce and Labor. These consti- tute the chief officials in the nine executive departments of our government. It was taken for granted that such departments would be formed, for the Constitution de- clares the President may require the opinions in writing of the heads of the executive departments, and again, that Congress may vest the appointment of certain inferior officers in the heads of these departments. But there was no thought in the Constitutional Convention of creating an institution whose members should meet regularly with the President and consult on matters outside of their own departments. The Cabinet, as a body, has no legal posi- tion as a part of the government. The different depart- ments have been created by acts of Congress and their duties are defined by law. The President is not obliged to take the advice of his Cabinet, although their views usually have weight with him. No official record is kept of the meetings.* * The following is taken from a conversation with President Hayes, reported by C. E. Stevens in his Sources of the Constitution of the United States, pp. 167-168. President Hayes said that he and other Presidents had occasionally acted independently of Cabinet advice; that the custom of the past had varied; and that some Presidents had been more in- fluenced by their Cabinets than others. He said that President Bu- chanan was much worried by his Cabinet because not strong enough to 244 THE CABINET 245 In 1789 the first Congress created the Departments of State, Formation War, and the Treasury, also the office of Attorney-General, partmenl^. President Washington's Cabinet consisted of the officials whom he appointed to fill these four positions. The Navy Depart- ment was added in 1798. Prior to this time naval affairs had been under control of the War Department. While a Post- Office Department was established in 1794, the Postmaster- General was not made a member of the Cabinet until 1829. In 1849, the Interior Department was created by grouping under it certain duties which had belonged to other departments. The Department of Agriculture was organized in 1862, and to it were assigned the duties appertaining to the agricultural interests of the country which had been performed through the State De- partment. It was not made a Cabinet position until 1889. In 1903, the Department of Commerce and Labor was author- ized by an act of Congress. It has been advocated and it would seem desirable that a Department of Education should be formed. Members of the Cabinet receive an annual salary of Salaries rr-iT c • 1 1 c ^■^'^ general $12,000.* The departments lumish an example or a organiza- splendidly organized system, ihat the busmess oi each depart- department may be more easily done, it is distributed among bureaus. The bureaus are again divided into divisions, and the divisions into rooms where the large number of clerks are to be found. At the head of each bureau is a commissioner, and of each division a chief. To complete the satisfactory working of the system, each clerk is made responsible to his chief of division; this chief, to his commissioner; and he, in turn, to the secre- tary, who is responsible to the President and to Congress. insist on his own will, but that President Lincoln had decided on his Emancipation Proclamation without consulting his Cabinet, and read it over to them merely for suggestion and amendment. On two occasions, he (President Hayes) decided and carried out matters against the wishes of the secretary of a department affected. * Mr. Knox receives SS.OOO owing to the fact that he was in the Senate when the increase in salary was made. See art. I, section 6, clause 2. Congress voted, in order to allow his appointment, that his salary was to be SS.OOO. 246 THE CABINET The Department of State Secretary of State. The Secretary of State is commonly called the head of the Cabinet. He is first in rank at the Cabinet table, and occupies the seat of dignity at the right of the President. Under the direction of the President, he conducts all negotiations relating to the foreign affairs of the Nation; carries on the correspondence with our representatives in other countries; and receives the representatives of foreign powers accredited to the United States, and presents them to the President. Through him, the President communi- cates with the Executives of the different States. He has charge of the treaties made with foreign powers, and nego- tiates new ones. He also has in his keeping the laws of the United States, and the great seal which he affixes to all Executive proclamations, commissions, and other official papers. He publishes the laws and resolutions of Con- gress, and issues and records passports. The Secretary of State has three assistant secretaries. There are seven bureaus in the department: Diplomatic, Consular, In- dexes and Archives, Accounts, Trade Relations, Rolls and Library, Appointments and Citizenship. Diplomatic Bureau. The United States, in common with other nations, sends repre- sentatives to the foreign capitals. They are the agents through whom the Secretary of State communicates and negotiates with other powers. Such affairs are conducted through the Diplo- matic Bureau. Our representatives at the courts of England, France, Germany, Russia, Italy, Austria, Mexico, Brazil, Japan, and Turkey are known as Ambassadors.* They receive a salary of $17,500 each. The social demands made upon our Ambassadors are great and they are also obliged to provide for their places of residence. The salaries paid are not sufficient to meet these necessary expenses and are small in comparison with those paid * In 1893, Congress provided that our representative to a foreign coun- try was to have the same ranli as the representative of that country sent to the United States. THE CABINET 247 by the European nations to officers of the same rank. Thus, the English Ambassador at Washirigton receives a salary of $32,500. Besides the EngUsh, the Germans, the Japanese, and some other nations have provided houses for their legations. Besides Am- bassadors, the other diplomatic representatives are (1) minis- ters plenipotentiary, envoys extraordinary, and special commis- sioners; (2) ministers resident, and (3) charges d'affaires. A Consul is sent by the United States to each of the Consular chief cities in the consular districts into which foreign countries are divided by our State Department. These Consuls, of which there are three grades, Consuls-Gen- eral, Consuls, and Consular Agents, look after the com- mercial interests of the United States in those districts. They care for destitute American sailors and protect the interests of our citizens in foreign countries. In some of the non-Christian nations, such as China and Turkey, the Consuls also have jurisdiction over all criminal cases in which any American citizen may be a party. The im- portance of such a service to the country is self-evident. The appointment of these officials was formerly secured under party pressure. According to the rule adopted in 1906, all vacancies in the Consular service are hereafter to be filled by promotion for ability and efficiency in the service or by the appointment of those who have passed the civil service examination. The Department of the Treasury The Department of the Treasury is the most extensive Secretary and complex of the Executive Departments. In general, Treasury. the Secretary of the Treasury has charge of the finances of the nation. He is required to prepare plans for the crea- tion and improvement of the revenues and the public credit and to superintend the collection of the revenue. He gives orders for all moneys drawn from the Treasury in accordance with appropriations made by Congress, and 248 THE CABINET The six auditors. The Treasurer. The Bureau of Engraving and Printing. submits an annual report to Congress which contains an estimate of the probable receipts and expenditures of the government. It is very important that the accounts of the govern- ment should be carefully scrutinized, and one of the six auditors connected with the Treasury Department must pass upon the accounts of every public officer who pays out money. Thus the auditor for the Treasury Depart- ment examines all accounts of salaries and incidental expenses of the office of the Secretary of the Treasury and all other offices under his immediate direction, such as the Treasurer and the Assistant Treasurers, Direc- tors of the Mint and Assay Offices. There are also auditors for the War, Interior, Navy and Post-office Departments and one for the State (and other Depart- ments). All of the money of the United States is under the care of the Treasurer. He receives and pays it out upon the warrant of the Secretary of the Treasury or a designated assistant, redeems the notes of the National banks, and manages the Independent Treasury System. This system renders the Treasury Department practically independent of the banks of the country. It includes the Treasury at Washington and sub-treasuries, each in charge of an As- sistant Treasurer, at Boston, New York, Philadelphia, Baltimore, Cincinnati, Chicago, St. Louis, New Orleans, and San Francisco. While the greater part of the money belonging to the government is found in these places, about 200 National banks have also been designated as public depositories. The Bureau of Engraving and Printing is one of the largest in the Department and employs about 1,600 peo- ple. It has been said that the products of this bureau, in the course of a single year, represent a sum equal in value to all the money in circulation in the United States; THE CABINET . 249 for here the engraving of the plates and the printing of all the United States circulating notes, bonds, revenue stamps, and postage stamps is done. The duties of the Comptroller of the Currency and Commissioner of Internal Revenue are discussed on pages 166 and 187. The Life Saving Service, under a General Superintend- The Life ent, is one of the most important branches of the Treas- Service. ury Department. More than 2,000 men are employed in the 273 stations, located generally at danger points on the oceans and the great lakes. Out of the 6,000 lives imper- illed in the year 1910 in the disasters on water, only 53 were lost. Of the 1,463 vessels of all kinds in peril, 1,407, with cargoes valued at over $10,000,000, were rendered assistance by the life-savers. This service is maintained at an annual expenditure of a little over $2,000,000. It has been estimated that 225,000 lives have been saved through this service since it was founded in 1848. The Supervising Surgeon-General superintends the Supervis- twentv-two marine hospitals where our sick sailors are SuVgeon- cared for; conducts the quarantme service oi the United States; and directs the laboratories for the investigation of the causes of contagious diseases. The Supervising Architect prepares the plans for gov- Supervis- emment buildings and superintends their construction. Architect. Military and Naval Affairs The President has never assumed command of the army in person, but has delegated his authority to officers whom he selects. The Secretary of War and Secretary of the Navy exercise this authority during the time of war. They, in turn, select other officers to assist them. The orders given by the President to any officer are strictly imperative. 250 THE CABINET Secretary of War. Commis- sary- General. Chief of Ordnance. Corps of Engineers. Chief Signal Officer. The Secretary of War has charge of the military affairs of the government under the direction of the President. He supervises all estimates of appropriations for the ex- penses of the department, for the purchase of all sup- plies for the army, and for its transportation. He has under his supervision the military academy at West Point; and all the National cemeteries. He has the oversight also of river and harbor improvements; and of the prevention of obstruction to navigation. All chiefs of the eleven bureaus are regular army officers. Food is supplied the army by order of the Commis- sary-General, and medicine by order of the Surgeon-Gen- eral; and arms are supplied by the Chief of Ordnance. The arms used are manufactured chiefly in the United States arsenals, which are under the control of the War Department. The arsenals at Springfield, Massachu- setts, and Rock Island, Illinois, manufacture rifles and carbines; and that at West Troy, New York, cannon and mortars. The Corps of Engineers is in charge of the Chief of Ensfineers. The duties of these officials are to locate and construct fortifications, military bridges, and light-houses; and to carry on the w^ork of the government for the im- provement of harbors and navigable rivers. The Chief Signal OflBcer supervises all military signal- ling, such as communicating messages from distant points by the use of flags, the heliograph, flashlights, and similar devices. He is also charged with the supervision of the construction and operation of all military telegraph lines. The United States militia ry academy. The United States military academy at West Point was founded in 1S02. The corps of cadets is made up of one cadet from each of the Congressional districts, one from each of the Territories and the District of Columbia, and one hundred from the United States at large. Prior to the year 1900 there were only ten cadets at large. The act of that year also provided that thirty THE CABINET 251 cadets were to be named by the President directly, and the re- mainder apportioned among the States. They all receive their appointments from the President, but it has become the cus- tom for the Representatives and Delegates to select those from the Congressional districts and the Territories. An appointment may be made after a competitive examination, which is the usual way, or without such a test, according to the wishes of the Representative. The cadet must be between seventeen and twenty-two years of age. Each receives $540 a year during the four years of his course. The course of study has for the principal subjects: mathematics, French, Spanish, drawing, tac- tics, physics, chemistry, geology, history, international and con- stitutional law, civil and military engineering, and the science of war. Upon graduation, the cadets are commissioned as second lieutenants in the United States army. In case there are more graduates than vacancies, those in excess are honorably dis- charged with the payment of one year's salary. The Department of the Navy The duties of the Secretary of the Navy pertain to the Secretary construction, manning, arming, equipping, and employ- Navy. ment of war-vessels. The work is distributed among the following bureaus: navigation, yards and docks, equip- ment, ordnance, construction and repair, steam engineer- ing, medicine and surgery, supplies and accounts. The chiefs of these bureaus are officers of the United States navy. The naval observatory at Washington is under the direction The United of the Secretary of the Navj'; also the naval academy at An- napoHs, established in 1846. One cadet is allowed in the naval academy for each member or delegate of the House of Representa- tives, one for the District of Columbia, and tea at large. Candi- dates for admission, at the time of their examination, must be between the ages of fifteen and twenty years. The nomination of a candidate to fill a vacancy is made upon recommendation of a Representative or Delegate, if made before July 1 ; but if no recommendation be made by that time, the Secretary of the Navy fills the vacancy by appointing an actual resident of the States naval academy. 252 THE CABINET district in which the vacancy exists. The President selects the candidates at large and the cadet for the District of Columbia. At the conclusion of the six years' course, two of which are spent at sea, the graduates are assigned in order of merit to the va- cancies that may have occurred in the lower grades of the line of the navy and of the marine corps. Cadets who are not as- signed to service after graduation are honorably discharged and are given $500, the amount they have received each year of their course at the academy. The Department of Justice Attorney- General. The Attorney-General is the legal adviser of the Presi- dent and of the heads of the departments. He supervises the work of all the United States District Attorneys and Marshals, and is assisted by the Solicitor-General. Unless otherwise directed, all cases before the Supreme Court and the Court of Claims in which the United States is a party are argued by the Attorney-General and the Solicitor- General. The law officers of the various departments are also under the direction and control of the Attorney- General. The Post-Office Department Postmas- ter-General. The Postmaster-General is at the head of this depart- ment. He appoints all of the officers of the depart- ment, with the exception of the four Assistant Postmasters- General and 6,900 Postmasters, whose salaries are not less than $1,000 and whose appointments are made by the President with the consent of the Senate. The Post- master-General may, with the consent of the President, let contracts and make postal treaties with foreign govern- ments. Universal Since 1891, the United States has been a member of the Uni- Unlon. versal Postal Union. By this Union over fifty distinct powers became parties to an agreement by which uniform rates of post- THE CABINET 253 age were agreed upon and every facility for carrying mails in each country was extended to all the others. There are four bureaus in the department, each in charge Bureaus of _, rr-i, . p the Post- of an Assistant Postmaster-General. 1 he appomtment ot office De- p , fy, .1 partment. postmasters; general management oi the post-othces with their clerks and carriers is under the direction of the first Assistant. The second Assistant looks after the transpor- tation of the mails; the third Assistant furnishes stamps and has charge of the finances; while the fourth Assistant among other duties superintends the divisions of rural de- livery and dead letters. The Department of the Interior The Interior Department, under the supervision of the The Secretary of the Interior, is one of the most complex and of the „ , , rr,, . . Interior. important of the departments, ihere are two Assistant Secretaries in the department, while at the head of the other offices are six Commissioners and two Directors. The Commissioner of the General Land Office has Commis- , ,. , 1 I. 1 1 sioner of charge of all the public lands or the government, and the General supervises the surveys, sales, and issuing of titles to this Office. property. (See p. 283.) The Commissioner of Education is the chief of the Commis- Bureau of Education. This bureau has charge of the Education. collection of facts and statistics relating to the educa- tional systems and to progress along educational lines in the several States and Territories, and also in foreign countries. The reports issued by the bureau are of great value to those interested in education. The Commis- sioner has advisory power only, except in Alaska. Here, he directs the management of the schools. The Commissioner of Pensions supervises the examina- Commis- tion and adjustment of all claims arising under the laws Pensions. of Congress granting bounty land or pensions on account 254 THE CABINET Commis- sionei- of Indian Affairs. of services in the army or navy during the time of war. That our government has not been ungrateful may be gathered from the report of the Commissioner for 1908, There were in that year 1,000,000 pensioners, to whom were paid approximately $155,000,000. Prior to 1871 the Indian tribes were treated as inde- pendent nations by the United States, but by a law of that year the general government was made the guardian of their interests. The Commissioner of Indian Affairs exercises a protecting care over these "wards" by direct- ing the work of the Indian agents and of the superin- tendents of Indian schools. Indian reserva- tions. Director of the Geological Survey. There are some 300,000 Indians on the 150 reservations which are situated in the various States and Territories. The lands of these reservations are held in common; that is, the ownership is tribal rather than individual. It is the policy of the govern- ment, however, to bring about the allotment of lands "in sev- eralty," and thus to encourage the Indians to adopt an agricul- tural life. The Indians are only partially self-supporting. Some tribes derive an income from funds which are the proceeds de- rived from the sales and cessions of their lands. The National government holds this money in trust for them, and, by direct appropriation, supplies the money, food, and clothing necessary to complete their support. The expenditures for the needs of the Indians in 1902 were $9,736,186. Over one-fourth of this sum was spent in their education in Indian schools, numbering nearly 300, which are under the direct control of the department. The Director of the Geological Survey has gathered much valuable information through the examination of the geological structure, mineral resources, and mineral products of the United States. He has charge, also, of the survey of the forest reserves. THE CABINET 255 The Department of Agriculture The duties of the Secretary of Agriculture are: "To acquire and diffuse among the people of the United States useful information on subjects connected with agriculture in the most comprehensive sense of that word." The activities of the department are along many lines, as indi- cated by the names of the bureaus and divisions. One of its most important services is performed in the Bureau of Animal Industry, which inspects the greater part of the meat products exported to European countries. The law providing for this inspection was necessary be- cause of the claim in European markets that diseased meats were shipped from the United States. An inspection is also provided for live animals intended for exportation and of animals imported. Much scientific work is also devoted to the study of the various diseases of animals. In like manner, the Division of Vegetable Physiology and Pathology is engaged in the study of diseases affect- ing trees, and that of Entomology in the investigation of injurious insects. Continuous advancement is being made by the gov- ernment toward placing the agricultural pursuits upon a more scientific basis. Thus, Congress, in 1901, recog- nized the value of the work done by changing the Divi- sions of Forestry, of Chemistry, and of Soils into bureaus. A Bureau of Plant Industry was also formed. Over $100,000 are expended each year by the Division of Seeds in the purchase of "rare and valuable" seeds, bulbs, and plants. These are distributed free through- out the country for the purpose of fostering the intro- duction of new and more valuable crops. Another important interest is carried on by the Office of Public Road Inquiries. Here experiments are made Secretary of Agriculture. Bureau of Animal Industry. Division of Vegetable Physiology. New bureaus. Division of Seeds. Public Road Inquiries. 256 THE CABINET Weather Bureau. with regard to the best system of road-making and the best materials to be used for that purpose. Through the Weather Bureau daily forecasts and warn- ings of storms are sent to over 50,000 different points; and storm signals are displayed at 300 places on our coasts. By its operation, millions of dollars are saved each year to the agricultural and maritime interests of the country. A recent decree of the Post-OfHce Department renders the reports of the bureau of still greater service. Slips of paper having the storm, frost, or other warnings printed on them are to be distributed by the rural mail carriers at the various houses in the districts affected. Secretary of Commerce and Labor. The Department of Commerce and Labor Because of the nature of the subjects assigned to this new department, it will rapidly become one of the most important of the departments. At its head is a Secretary. Strictly speaking, there have been only two bureaus created for the department, the others having been trans- ferred from the other departments. The new bureaus are those of Corporations and of Manufactures. The Commissioner of Corporations is expected to investigate the organization, conduct, and management of the business of corporations and other combinations engaged in inter- state commerce, and to see that all anti-trust laws enacted by Congress are enforced. The duties of the Commis- sioner of Manufactures, as defined by the law, are "to foster, promote, and develop the various manufacturing industries of the United States and markets for the same at home and abroad by gathering, compiling, publishing, and supplying all available and useful information con- cerning such industries and such markets, and by such other methods and means as may be prescribed by the Secretary or provided by law." THE CABINET 257 The President is given the power to transfer to the depart- ment those bureaus in other departments which are engaged in scientific or statistical work, the Interstate Commerce Com- mission and the scientific di\isions of the Agricultural Depart- ment being excepted. The oflSces which have been transferred are as follows: the Bureau of Statistics; Census and Immigra- tion Bureaus; Bureau of Foreign Commerce of the State De- partment; the Bureau of Standards of Weights and Measures; Bureau of Navigation and the Shipping Commissioners; the Steamboat Inspection Service; Fish Commission; Coast and Geodetic Survey; and Lighthouse Board. The Chief of the Bureau of Statistics collects and pub- The chief lishes the annual statistics on commerce.* ihese reports Bureau of are of such a character that they are invaluable to the President in the preparation of his messages; and they are used extensively by the Heads of Departments, mem- bers of Congress, and the public. Tariff laws, special legislation for particular industries, and all international trade treaties are also based on these compilations. The greatest demand is for the Annual Statistical Abstract, which presents in a condensed form the history of the com- merce of the United States for a number of preceding years. The Commissioner of Immigration superintends the TheCom- work done by the inspectors of immigrants.! Every im- ofimmi- migrant must imdergo a rigid examination in order to de- * Monthly reports are made by our Consuls on improvements in agri- cultural and manufacturing processes. These reports also give information regarding good markets for our products and of the best markets in which to purchase foreign products. Among scores of similar subjects, our Con- suls reported during one year on the following: Agricultural Machines in Russia; American Apples in France; American Boots and Shoes in New Zealand; Radium Industry; Wages and Cost of Living in Germany. t During the year ending June 30. 1910, there arrived in the United States 1,041,570 immigrant aliens. This was an excess of 289,784 over the preceding year; 191,049 could neither read nor write; 223,453 were Italians; 128,348 were Polish; and the other chief nationalities in order of numbers were Hebrew, German, English, Scandinavian; 24,270 were denied admission at the ports; 15,927 of these were thought likely to be- come a public charge; 3,033 had some communicable disease; and 1,786 were contract laborers. 258 THE CABINET Additional commis- sions and boards. termine whether he belongs to any of the prohibited classes. (See page 175.) It is also ascertained whether he is able to read and write and whether he has $50, or, if less, how much; 86 per cent, of all the aliens coming in 1910 had less than $50 each. Each immigrant pays a tax of four dollars, which sum is used to partially defray the expenses of the bureau. There have also been created at different times commissions and boards having executive functions, but which are not con- nected with any of the departments. They are as follows: the Civil Service Commission, described on p. 238; the Interstate Commerce Commission, described on p. 177; the Board on Geographic Names, and the Industrial Commission. Special officials and boards are in charge of the National Museum, the Bureau of Ethnology, the Library of Congress, the Government Printing Office, and the Smithsonian Institution. The Govern- ment Printing Office was established in 1861. Facilities for publishing the Congressional debates, reports of the executive departments, etc., have been greatly multiplied from year to year. Some 15,000 copies of the President's annual message and 12,000 copies of the abridgment of the message, 40,000 copies of the report of the Commissioner of Education, 54,000 of the Congressional Directory, and other reports in similar quantities are printed each year for free distribution. A large extension of the Government Printing Office was authorized in 1900 and $2,429,000 were appropriated for that purpose. It is said that this extension will constitute it the largest and best equipped printing establishment in the world. In 1829, James Smithson, an English scientist, gave some $500,000 to the United States for the purpose of founding at Washington, " an establishment for the increase and diffusion of knowledge among men." The Smithsonian Institution is nota- ble because of its Museum, which offers scientists such excellent opportunities for original investigation. THE CABINET 259 Supplementary Questions and References 1. Does the President select the members of his Cabinet from among former members of Congress ? Would this be desirable ? 2. Have the members of the Cabinet ever been allowed to ap- pear before Congress in the interests of their ovm departments? Would this be desirable? Wilson, Congressional Government, 257; Walker, The Making of the Nation, 92; Bryce, American Commonwealth, I, chapter 9; Atl. INIo., 65 : 771-772. 3. Who are now the heads of the executive departments? Were they prominent in National affairs before they were selected for these positions? 4. What reasons can you give for the belief that other depart- ments should be added to the Cabinet? 5. Give a list of the Presidents who have been Secretaries of State. How do you account for this policy in the first years of our government, and not at a later time? Name some of the other prominent Secretaries of State. 6. Who are our Ambassadors ? Can you give the name of any foreign Ambassadors in Washington ? See Congressional Direc- tory. 7. The methods by which our ministers are selected, take possession of their offices, and are presented at foreign courts are described in Curtis, The United States and Foreign Powers, 15-21. 8. The duties of ministers. Curtis, The United States and Foreign Powers, 22-26. 9. Ought our Ambassadors to be changed every four years? Our Need of a Permanent Diplomatic Service, Forum, 25 : 702- 711. 10. Are our Ambassadors given adequate salaries? Diplo- matic Pay and Clothes, Forum, 27 : 24-32; Curtis, The United States and Foreign Powers, 13-14. 11. From a consular report learn what the duties of a Consul are. Curtis, The United States and Foreign Powers, 30-33. 12. What is the Great Seal of the United States, and what is its use? Harrison, This Country of Ours, 199-200. 13. What is the particular work of the Marine Department; 260 THE CABINET of the Steam-boat Inspection Service; of the Marine Hospital? Lyman J. Gage, Organization of the Treasury Department, Cosmop., 25 : 355-365. 14. What is the work of the Bureau of Engraving and Print- ing? Spofford, The Government as a Great Publisher, Forum, 19 : 338-349. 15. What is the extent of our Merchant Marine? Should it be increased? Statistical Abstract of the United States, 1900, 437-450. 16. From the last report of the Bureau of Statistics find an- swers for the following: The expenditures of the government in the different departments; in what branches there was a large increase in 1899; value of merchandise imported and exported; amounts of corn, wheat, cotton, wool, and iron produced, im- ported, and exported; the chief nationalities of immigrants, and comparison of the total number with previous years. 17. Are our coasts well defended ? Harrison, This Country of Ours, 225. 18. For illustrated articles on Education at West Point and Annapolis, see Outlook, 59 : 825-837; 839-849. 19. How does the amount of money paid for pensions by the United States compare with that of other nations? Forum, 12 : 645-651. 20. Has the pension policy of our government been a wise one ? N. Am. Rev., 153:205-214; 156:416-431; 618-630; Cen. Mag., 42 : 179-188; 790-792; 46 : 135-140; Forum, 12 : 423- 432; 15 : 377-386; 439-451; 522-540. 21. For accounts of the new Congressional Library, see Cen. Mag., 53 : 682-711; Ad. Mo., 85 : 145-158; Cosmop., 23 : 10-20. CHAPTER XXVI THE JUDICIARY Alexander Hamiltox characterized the lack of a Lack of a • 1 c (• 1 judiciary ludiciarv as the crowning detect ot government under under the J -^ ® ® Confedera- the Confederation. Laws, he wrote, are a dead letter tion. The ,,,„,. . federalist, without courts to expound and denne their true meaning No. 22. and operation." Judicial powers were vested in the Con- tinental Congress or in the agents of that body. The conviction that the Federal Judiciary should constitute one of three independent parts of the government was general in the Constitutional Convention, and after a brief discussion, this was provided for as follows: The judicial power of the United States shall be vested Article in, n y^ 1 • 1 ' f • 7 section 1. in one Supreme Court, and m such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office. Congress carried out the provisions of this section by Judiciary passing the judiciary act of 1789. This act provided that the Supreme Court should consist of a Chief Justice and five Associates. District Courts and Circuit Courts were also created by it and their functions as inferior courts were defined. The Supreme Court, at present, consists of the Chief The Justice and eight Associate Justices. It holds one ses- Court. sion annually, at Washington, beginning on the second Monday in October and continuing until about May 1. 261 262 THE JUDICIARY Circuit Courts of Appeals. District Courts. By the law of 1891, nine Circuit Courts of Appeals were established for each of which a Circuit Judge was provided. The Circuit Courts of Appeals consist of three judges each, any two constituting a quorum. The judges eligible to sit in one of these courts are: the Supreme Court Judge assigned to the Circuit, the Circuit Judges, and the District Judges of that circuit. The territory of the United States has been divided into judicial districts, none of them crossing State lines and each having a District Court. Congres- sional Directory, 1911. Indian Territory, New York, and Texas have each four districts; Alabama, Pennsylvania, and Tennessee three each; Arkansas, California, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Mississippi, Michigan, Missouri, North Carolina, Ohio, Oklahoma, Virginia, Washington, Wisconsin, and West Virginia two each; and the remaining States have each a single district. New Mexico constitutes a district, likewise Alaska, Arizona, and Hawaii. Generally there is a judge for each district, but a single judge is at times assigned to two districts. United States District Attorneys and Marshals. A District Attorney and Marshal are appointed by the President for each District. The United States District Attorney is required to prosecute all persons accused of the violation of Federal law and to appear as defendant in cases brought against the government of the United States in his district. The United States Marshals, in general, perform duties connected with the enforcement of the Federal laws which resemble the duties of sheriffs under State laws. Circuit Courts. Established by the act of 1789, each Circuit Court was, at first, presided over by a Justice of the Supreme Court and a District Judge. The policy was to have as many Circuit Courts as there were Justices of the Supreme Court. It was not until 1869 that a Circuit Judge was provided for each of the nine circuits. By an act of 1911, in response to the agitation for a simplified Federal judicial system and greater expedition in the hearing of cases, THE JUDICIARY 263 the Circuit Courts were abandoned, judges of these courts were transferred to the Circuit Courts of Appeals. The Court of Claims was established in 1855 and con- sists of a Chief Justice and four Associates. It holds an annual session in Washington. Court of Claims. That the Judiciary should be independent of parties and of Terms and other influences cannot be questioned. Hence the wisdom of judge^^. ° the provision that United States Judges shall hold their offices during good behavior and shall receive a compensation for their ser\'ices which shall not be diminished during their continuance in office. The Constitution states that Judges of the Supreme Court shall be appointed by the President with the consent of the Senate. It has been interpreted that the Judges of the in- ferior courts are to receive their appointments in like manner. By an act of Congress of 1911, the salary of the Chief Justice was fixed at $15,000 per annum; that of Associate Justices, $14,500; and District Judges, $6,000. There is an allowance for expenses of judges not to exceed $10 a day. Any Judge who has reached the age of seventy years, and has served ten years, may retire on full pay for life. We are next to consider the jurisdiction of the sev- eral courts that have been described. The judicial power shall extend to all cases, in law and Section 2, equity, arising under this Constitution, the laivs of the United States, and treaties made, or which shall be made, under their authority; — to all cases affecting Ambassadors, other public ministers and Consuls; — to all cases of admi- ralty and maritime jurisdiction; — to controversies to which the United States shall be a party; — to controversies be- tiveen ttvo or more States; — between a State and citizens of another State; — between citizens of different States; — be- tween citizens of the same State claiming lands under grants of different States, and between a State, or the citizens there- of, and foreign states, citizens or subjects. In all cases affecting Ambassadors, other public minis- Section 2, ters and Consuls, and those in which a State shall be party, 264 THE JUDICIARY Bryce, American Common- wealth, I, 237-240. Extent of the judicial power. the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Con- gress shall make. Speaking of the position of the Supreme Court in our judicial system, Mr. Bryce says: "No feature of the government of the United States has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration and been more frequently misunderstood, than the duties assigned to the Supreme Court and the functions which it discharges in guarding the ark of the Constitution." A careful consideration of clause 1 of this section shows the wide extent of the powers of the United States Courts. It shows too the desirability of having all such cases under their jurisdiction rather than under the authority of the State courts. This jurisdiction applies to two classes of cases. One class has to do with the nature of the ques- tions involved, as in all those cases arising out of the Constitution, laws, and treaties of the United States, and admiralty and maritime cases. The other class of cases arises because of the parties to the suits, as. Ambassadors, Consuls, two or more States, citizens of different States, etc. state as plaintiff. The Fed- eralist, 81. The provisions here made, that the judicial power shall extend to controversies between a State and citizens of another State, and between a State and the citizens or subjects of a foreign state, were doubtfess intended to apply only to suits in which a Stateishould attempt, as plaintiff, to secure justice in a Federal Court. But, contrary to expectation, suits were early brought against some of the States by citizens of other States to enforce the payment of debts and other claims. In the notable case of Chisholm vs. Georgia in 1793, Chisholm, a citizen of North Carolina, began action against the State of Georgia in the Su- preme Court of the United States. That court interpreted the clause as applying to cases in which a State is defendant, as well THE JUDICIARY 265 as to those in which it is plaintiff. The decision was received with disfavor by the States, and Congress proposed the Xlth Amendment to the Constitution, which was ratified in 1798 and reads as follows: The judicial 'power of the United States sJmll not be con- Amend-^ strued to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign state. The Supreme Court has original iurisdiction in "all Original ,,,... J and cases affectino; Ambassadors, other public ministers, and appellate , ,, , ,, junsdction. Consuls, and those in which a State shall be a party. By original jurisdiction is meant that these cases may be begun m the Supreme Court. Other cases come to the Supreme Court from the inferior United States Courts or from the Supreme Courts of the States and Territories by appeal or by writ of error.* In these cases the Supreme Court is said to have appellate jurisdiction. It is diflBcult in brief space to define minutely the province of each court. The following accounts, therefore, give only a general description. The Circuit Courts of Appeals are given final jurisdiction in jurisdic- certain cases appealed to them from the District, such as those inferior arising under the patent, revenue, and criminal laws, as well as ^9J:'J'^?^ admiralty and other cases in which the opposing parties to a Courts of suit are an alien and a citizen, or are citizens of different States. 26 Statutes The Supreme Court has thus been partially relieved from an |?,gLarge, over-crowded docket. But jurisdiction in these cases may be assmned by the Supreme Court if it desires to do so. The jurisdiction of the District Courts embraces criminal District cases, admiralty cases, bankruptcy proceedings, suits for penalties, and the hke. The jurisdiction of cases formerly in the Circuit Courts was transferred to the District Courts when the Circuit Courts were discontinued. These courts had original jurisdic- * A writ of error is defined to be "a process which removes the record of one court to the possession of another court, and enables the latter to inspect the proceedings, and give such judgment as its own opinion of the law and justice of the case may warrant." 266 THE JUDICIARY Court of Claims. 10 Statutes at Large, 612. Territorial Courts. The right of jury trial. Section 2, clause 3. Amend- ment V. tion in patent and copyright cases; in cases brought by the United States against national banks; and in ordinary civil actions, where the amount involved, exclusive of interest and costs, was at least $2,000. Where the amount is less, the case must be tried in a State court. ' The Court of Claims is composed of a Chief Justice and four Associate Justices. Claims against the Federal government, pension claims excepted, are heard by this court. The judg- ments of the Court are referred to Congress and appropriations are made to cover them. The Courts of the District of Columbia and of the Territories are under the control of Congress, but are not Federal Courts. Judges of these courts are appointed in the same manner as other United States Judges, but their appointment is only for a term of four years. The right of trial by jury in all criminal cases had been insisted upon by Englishmen for centuries prior to the formation of our Constitution. There were two branches to the system, the grand and the petit juries. Each performed the same duties as they do now. The Constitution provides that The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crime shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. This clause was attacked by the opponents of the Constitution in the State conventions. It was believed that the Constitution did not furnish adequate safeguards against unjust prosecutions. Because of this agitation. Congress, in its first session, proposed the following Amend- ments, which were duly ratified by the several States: No person shall be held to answer for a capital, or other- wise infamous crime, unless as a presentment or idict- ment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be sub- THE JUDICIARY 267 jeet for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a vntness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. In all criminal prosecutions, the accused shall enjoy the Amend- right to a speedy and public trial, by an impartial jury of the State and distinct wherein the crime may have been commmitted, which district shall have been previously ascer- tained by law, and to be informed of the nature and cause of the accusation; to be confronted with the ivitnesses against him; to have compidsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his de- fence. hi suits at common law, where the value in controversy Amend- shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re- examined in any court of the United States, than according to the rides of the common law. Excessive bail shall not be required, nor excessive fines Amend- imposed, nor cruel and unusual punishments inflicted. Authorities have had difficulty in giving an exact defi- infamous crimes. nition of an infamous crime. That given by Judge Cooley Cooiey, ° . Principles is the most satisfactory. He says: "But the punishment ofConsti- • • 1 11 1 • p tutional of the penitentiary must always be deemed infamous, and Law, 291. so must any punishment that involves the loss of civil or political privileges." A grand jury consists of from twelve to twenty-three Grand men. " They are sworn to inquire and present all offences committed against the authority of the National govern- ment Muthin the State or district for which they are im- panelled, or elsewhere within the jurisdiction of the Na- tional government. They sit in secret and no accusation can be made by them without the concurrence of at least twelve. After hearing the evidence, if the grand jury 268 THE JUDICIARY Rights of the accused. Right of eminent domain. concludes that the accusation is not true they write on the back of the bill, "not a true bill" or "not found." The accused, if held in custody, is then given his freedom, but he may again be indicted by another grand jury. If the grand jury decides that the accusation is true they then write on the back of the bill, "a true bill" or "found." The indicted person must be held to answer the charges made against him.* The accused must be given a public and speedy trial before an impartial jury, known as the petit jury, con- sisting of twelve men from the district wherein the crime was committed. The decision must be unanimous be- fore a verdict can be rendered. The accused is given a copy of the indictment in which the nature of the accusa- tion is clearly set forth and is granted time in which to prepare for his defence. Equally just and significant are the provisions that he shall be confronted by the witnesses against him; may compel the attendance of witnesses in his favor; and may employ counsel for his defence. In case he is not able to pay for his own counsel the judge appoints one whose services are paid for out of the public treasury. If the verdict has been rendered by a jury and the judgment pronounced, the accused cannot be again brought to trial on the same charge. The right of "eminent domain" is properly vested in the government. By this right private property may be taken for public uses after the payment of a just price. The rights guaranteed the accused by these Amendments are chiefly derived from the principles of the common law. (See p. 95.) Treason Treason has always been regarded as one of the worst of under the offences and is punished by the severest penalties. Under the common i- j r- law. early common law, it rested with the judges to declare what acts * For the grand jury system of some States and definition of indict- ment and presentment, consult p. 63. THE JUDICIARY 269 were treasonable. Judges became mere tools in the hands of despotic rulers and were induced to declare certain conduct treasonable which had not previously been so regarded. In the time of Edward III, the English Parliament attempted to pro- hibit these abuses by giving a definition of treason. The sub- stance of two of the five articles of this statute were made a part of our Constitution in the following: Treason aqainst the United States shall consist only in Article iii. . , . n ' , .7 • • sections, levying war against them or m adhering to their enemies, clause i. giving them aid or comfort. No person shall be convicted of treason of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment Sectioii 3. of treason, but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted. Parties to a conspiracy cannot be considered traitors who are „ ,11 !■ ,1 • traitors. until they have actually assembled men lor the carrymg out by force of some treasonable purpose. "All persons who then perform any act, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered traitors. And one is adherent to the enemies of the coun- ^"{Jl^y;,^^ try, and giving them aid and comfort, when he supplies °/^^°f^'^*^;j; them with intelligence, furnishes them with provisions or 288. arms, treacherously surrenders to them a fortress and the like." Supplementary Questions and References 1. What are the names of the members of the Supreme Court at present? See Congressional Directory. 2. How large is the district in which your home is located? Who are the judges? See Congressional Directory. 3. Under what conditions may a case be appealed from the Supreme Court of the State to the United States Supreme Court? Bryce, American Commonwealth, I, 232-234. 270 THE JUDICIARY 4. How is the fact, that conflicts between the authority of the Federal and the State Courts do not arise, accounted for ? Bryce, I, 238. 5. Are the United States Courts influenced in their decisions by politics? Bryce, I, 265-267. 6. Describe the influence of John Marshall as Chief Justice. a. John Marshall, American Statesman Series, chapters 10 and 11. h. Bryce, I, 267. c. Lodge, John Marshall, Statesman, N. Am. Rev., 172 : 191-204. d. John Marshall, Atl. Mo., 87 : 328-341. 7. Show how the development of our Constitution by interpre- tation has been brought about. Bryce, I, 376-385. CHAPTER XXVTI RELATIONS BETWEEN THE STATES AND BETWEEN FEDERAL GOVERNMENT AND THE STATES Full faith and credit shall be given in each State to the Article iv. public acts, records, and judicial proceedings of every other State. And the Congress may by general laics prescribe the TTianner in which such acts, records, and proceedings shall be proved, and the effect thereof. The citizens of each State shall be entitled to all the priv- Section 2. ,. .. /••• "7 in clause 1. lieges and immunities of citizens m the several States. A person charged in any State with treason, felony, or Section 2, other crime, who shall flee from justice, and be found in an- other State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. No person held to service or labor in one State, under the Section 2, 7 7 /■ • • T 7 71 " j» clause 3. laws thereof, escaping into another, shall m consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. The Constitution was intended to form a more com- state records plete bond between the States. This union would be weakened and give rise to endless litigation and injus- tice were the legislative acts, records, and proceedings of the courts of one State not given the same credit in every State as in that where they originated. Legisla- tive acts are made authentic by having the State seal affixed. The record of a court is "proved" through the signature of the clerk and judge and affixing of the seal of the court where there is one. 271 272 RELATIONS BETWEEN THE STATES Fugitive criminals. Justice Miller on the Consti- tution, 637, 638. Section 4. Protection of the States by the Na- tional gov- ernment. Protection against invasion. Extradition is the delivering up to justice of fugitive criminals by the authorities of one State or country to those of another. The necessity for such a regulation is evident, for a criminal from justice might easily escape into a neighboring State. "The responsibility of deter- mining whether the person demanded is a fugitive from the justice of the demanding State rests with the Executive of the State or Territory in which the accused is found. The case of the demanding State should be presented in some official form; either by official copy of an indictment, or by a complaint under oath. The right to demand sur- render and the obligation to comply with the demand ex- tend to all crimes and offences made punishable by the laws of the State where the offence was committed; but if the Governor of the State in which the accused is found refuses to surrender him he cannot, through the judi- ciary, be compelled to deliver him up." The privilege of extradition between nations is secured by treaty re- lations. The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence. It was natural that the Constitution should guarantee to the States the form of government with which the framers of that instrument were most familiar and which would be most in keeping with the Federal union they hoped to see established. Any protection afforded a State against invasion sig- nifies the protection of the Nation. Since the States are forbidden to keep troops and ships of war in time of peace, they must, if invaded, be dependent upon the gen- eral government. In such a case the President has been authorized by law to use the army and navy of the United violence. RELATIONS BETWEEN THE STATES 273 States, or call the militia into service, to furnish the needed protection, even if the State has not applied for aid. Each State is supposed to possess the power of enforc- Protection ing its o\\Ti laws, and is of right protected in the exercise domestic of this prerogative. In case of an insurrection, the State militia is sent by order of the Governor to suppress it. But should they fail to restore order, the legislature, or the executive (when the legislature cannot be convened), applies to the President for military aid. If the uprising has interfered in any way with the carrying out of the laws of the Nation, the President may, at his discretion, send troops to suppress it without having been asked to do so by the legislature or the Governor. There was a notable illustration of this point during the time of the Chicago riots, in July, 1894.* * See American History, p. 493. CHAPTER XXVIII TERRITORIES AND PUBLIC LANDS The Northwest Territory. The power to govern Territories. Article IV, section 3, clause 2. When the Constitution was adopted, the National gov- ernment possessed a vast tract of land lying north of the Ohio River and extending to the Great Lakes and the Mississippi River.* This region had been owned by several of the original States (viz., Massachusetts, Con- necticut, New York, and Virginia) ; but their claims were conflicting and each finally agreed to cede its portion to the general government. This occurred during the period of the Confederacy. Although entirely without legal authority to do so under the Articles of Confedera- tion, Congress established a Territorial government for the "Territory of the United States lying north and west of the Ohio River," by the enactment of the Ordinance of 1787. The first Congress under the Constitution re- enacted this Ordinance, and thus entered at once upon the government that it has since maintained over the Territories of the United States. Congress exercises this power by virtue of the authority expressly delegated to it in the following clause. The Congress shall have power to dispose of and make all needful rides and recjidations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall he so construed as to prejudice any claims of the United States, or of any particular State. First the Northwest Territory, and later the various parts of it (Ohio, Indiana, etc.), were governed as Ter- * For a fuller treatment of the topics that follow, see American His- tory, 184-190. 274 TERRITORIES AND PUBLIC LANDS 275 ritories; afterwards, when the Louisiana purchase, the Mexican cession, and the Oregon region were acquired, Territories were organized there. The Territorial form of government was an intermediate stage preparatory to the admission of new regions as States. The government of Hawaii corresponds in most re- Territorial spects to that which existed ahnost since the foundation of govem- . , . . ment. the government in the continental Territories. The execu- tive is a governor appointed for four years by the President, who also appoints a Secretary. The administrative officers — Treasurer, Auditor, Attorney-General, Superintendent of Instruction, and others — are appointed by the Governor and Senate of Hawaii. The judiciary consists of judges ap- pointed by the President. The Territorial legislature has two houses, the Senate and the House of Representatives, the members of which are elected, from districts, by popu- lar vote. The legislature resembles a State legislature in its control of Territorial affairs; but its laws may be modified or entirely annulled by Congress. In this way Congress maintains its complete authority over the inter- nal policy of the Territory. The people have no voice in National affairs, but they elect a delegate to Congress, who may debate but not vote. Alaska is regarded as an " unorganized territory." The execu- Alaska, tive officers are the Governor, Attorney-General, and Surveyor- General, the last acting as Secretary of the Territory. The judiciary consists of three district judges. All these officers are appointed by the President and Senate. There is no legis- lature. Congress enacted, in 1900, a complete code of civil laws for Alaska. In the government of Porto Rico, the President appoints the Porto governor and administrative officers. The lower house of the ^^^'^' legislature is elected, while a part of the members of the upper house are elected and a part are appointed by the President. The government of the Philippine Islands resembles that of The Phil- Porto Rico. There is a Commission of nine members: the 'PP'"^®^* Governor, four heads of departments, (Americans) and four FUi- 276 TERRITORIES AND PUBLIC LANDS The Panama Canal Zone. Cuba. pinos. All are appointed by the President, with the consent of the Senate. This Commission constitutes the upper house of the legislative body; the lower house or assembly is elected from certain districts of the Islands where the people are considered capable of political action. Qualifications for voting include both property and literary tests, either English or Spanish being accepted in the latter case. The entire group of islands is divided into provinces. In some of these the people exercise local self-government; in others there is military government under the United States army. In many cities the government is similar to that in American cities. The United States owns scattered islands, Tutuila of the Samoan group,* Guam, Midway, Wake, and others, which have no regularly organized governments. The Panama Canal Zone f is governed by the Isthmian Canal Commission, consisting of seven men appointed by the Presi- dent. The Commission has charge of the construction of the canal, and to one of the Commissioners is given the duty of governing the Zone. The Commission is subordinate to the Department of War at Washington. Cuba is not a possession of the United States but may be re- garded as a dependency. Our government is given the right (by treaty with Cuba) to take control of Cuban affairs under certain circumstances, as when foreign troubles, disorder in Cuba, or financial difficulties make it necessary. This was done in the years 1906-1909. Cuba is a Republic in government. The power to acquire territory. By what authority has the United States acquired the territory that was not in its possession in 1789? This question, arising for the first time in connection with the Louisiana purchase, was of vital importance. It has been argued that section 3 of Article IV applies only to the territory belonging to the United States at the time of the adoption of the Constitution; and that, consequently, ac- quisitions were made not by virtue of any power dele- gated to the United States in the Constitution, but rather by virtue of the fact that the United States is a nation. * See American History, 504. t Ibid., 516. TERRITORIES AND PUBLIC LANDS 277 and so entitled to exercise this sovereign power as any other nation might. But it is not necessary to make this contention. There is the highest authority, the Supreme Court speaking through its greatest Chief Justice, for hold- ing a different view. This is found in a decision of Chief Justice Marshall, who said, "The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty." The circumstances attending the acquisition of Porto The power Rico and the Philippines, and the peculiar character of in their inhabitants, gave rise to grave Constitutional prob- Territories 1 . , . 1 1 TT • 1 (-< ^^'^ posses- lems concemmg tneir government by the United States, sions. Similar questions had previously arisen in relation to the government of the Territories, especially questions in- volving the power of Congress over slavery.* After the Spanish war the power of the Federal government in the new acquisitions was determined by a series of decisions rendered by the Supreme Court in the "Insular Cases." In brief, the court decided that our Territories and pos- sessions "belong to" but are not a "part of" the United States. Their inhabitants are not citizens of the United States until made so by act of Congress. Congress is unrestricted in its power of legislating for the Territories and possessions by provisions of the Constitution. For example, the provision that all duties shall be imiform throughout the United States does not apply to the in- sular possessions. Tariffs have been levied against goods coming into the United States from them. So Congress has practically a free hand in determining what laws and forms of government are best adapted to the people of our possessions. Its policy so far has been to allow self- government to the extent that the people seemed ready for it. * See American History, 333, 360, 362. 278 TERRITORIES AND PUBLIC LANDS The admission of Terri- tories to statehood. Article IV. section 3, clause 1. The power of Congress. We have so far considered the Territories as in a state of greater or less dependence upon the National govern- ment. Under what conditions and in what way may these relations be changed ? The admission of Territories into the Union as States was contemplated before the adop- tion of the Constitution, for the Ordinance of 1787 pro- vided that the Northwest Territory should be divided into States, and these were guaranteed admission into the Union. Doubtless, the framers of the Constitution re- garded statehood as the ultimate destiny of all territory then belonging to the United States. This idea became the policy of the government in its treatment of the Loui- siana purchase and the Mexican cession. In the case of Alaska, and especially since the addition of the insular possessions, questions have arisen regarding the policy that is to be pursued. Are Hawaii, Porto Rico, and the Philippines ever to be erected into States? Or, are they ultimately to be granted their independence, if they de- sire it? That the power to admit States belongs exclusively to Congress is evident from the language of the Constitution. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction, of any other State; nor shall any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress. A Territory cannot claim admission as a Constitutional right if Congress finds obstacles that seem to it insuper- able. Nor is there any rule as to the population that a Territory should have before admission. Congress has often been guided in the exercise of this power by political considerations alone. After a Territory has applied for admission into the Union, two different methods have been pursued to complete the proc- TERRITORIES AND PUBLIC LANDS 279 ess. (1) Congress has passed an "enabling act"; the Territory Methods of then framed a constitution, which was submitted to Congress st^es""*^ for approval. (2) The Territory has frequently taken the first step by electing a convention which framed a constitution; with this in hand, the Territory' then applied to Congress for admis- sion. In either case, before giving its approval to the admis- sion of a State, Congress must see that the constitution submitted contains nothing that is inconsistent with a republican form of government. (See p. 272.) In addition, Congress has sometimes required the Territory to conform to certain conditions respect- ing boundaries, lands, and other matters. cessions. The "territory and other property belonging to the western United States" (see p. 274) includes more than the govern- mental divisions called "Territories" and "possessions." The United States owns vast tracts of land that are situ- ated not only in these Territories but also in many of the States. This land is regarded as property or public do- main, and its disposition falls within the power of Con- gress under the clause a part of which has just been quoted. In the years following the adoption of the Constitu- tion, North Carolina, South Carolina, and Georgia fol- lowed the example of the Northern States and ceded to the general government their claims upon territory ex- tending westward to the Mississippi River. This was the region where the States of Tennessee, Alabama, and Mississippi have since been formed. As the United States came into possession of the western territory, all unoccu- pied lands * (except certain portions reserved by the origi- nal States for their own use) became the property of the National government. The same is true of all unoccu- pied lands in the Louisiana purchase and in all subse- quent acquisitions of territory. So that the United States has become the possessor of many millions of acres. Its * By this is meant lands not then in the possession of Europeans. The Indian claim to the lands was partially recognized by the govern- ment; it acquired full title from the different tribes by purchase or by conquest. See American History, 100, 308, 473-474. Govern- ment survey. 280 TERRITORIES AND PUBLIC LANDS policy in dealing with this vast property has been of the greatest consequence in our history. In the thirteen original States there was no uniform system of land survey, but each tract of land was sur- veyed as necessity required, generally after settlement had been made upon it. The tracts were of very irregu- lar shapes. The boundary lines, usually starting from some natural object, were measured by rods or chains, running in certain directions as ascertained by the use of the compass. This method of survey is still in use in the Eastern States. According to a law of 1785, a uniform system of "rectangular" survey was applied to all lands belonging to the United States.* This survey has pre- ceded settlers and has to some extent influenced the meth- * American History, 188. TERRITORIES AND PUBLIC LANDS 281 od of settlement and the nature of local government throughout the West. The lands surveyed have been di- vided into townships six miles square. For the boundaries of townships the law requires the use of north-and-south and east-and-west lines. To secure starting points from Figure 1. Correctlpn LV HI n R.I W. Base ^ Line\ B.I E. a in IV Line which to run these lines, it was necessary to designate certain meridians as Principal Meridians and certain par- allels as Base Lines. The map indicates the location of Principal INIeridians and Base Lines in the States north of the Ohio River. Starting, then, from any Principal Meridian, the tier of townships directly east is called Range I; the other ranges are numbered east and west of that Meridian. Counting also from the Base Line, the townships are num- bered 1, 2, 3, etc., both north and south. It thus be- comes possible to locate precisely any particular township by a simple description: e. g., township 5 north. Range VII east of the first Principal Meridian. The convergence of meridians causes the townships to 282 TERRITORIES AND PUBLIC LANDS become less than six miles wide from east to west as the survey proceeds northward from any Base Line. This necessitates the running of standard parallel lines, or correction lines, at frequent intervals to be used as new Base Lines. To still further facilitate the sale and description of lands the law provides for exact methods of subdividing Figure 2. — Six Miles Square. Figure 3. — One Mile Square. 6 5 4 3 2 1 7 8 9 10 11 12 18 17 16 15 14 13 19 20 21 22 23 24 30 29 28 27 26 25 31 32 33 34 35 36 NWi NiNEi SEi NEi Si the township into sections, one mile square, numbered as in Figure 2. Each section is subdivided into rectangular tracts Icnown as halves, quarters, half-quarters and quarter-quarters. The designations of these divisions are by abbreviations and fractions. (See Figure 3.) The number of acres in each tract is easily computed. The rectangular system of survey has been a great aid in the subdivision and location of farm lands; it greatly reduces the number of boundary disputes; it determines very largely the location of country roads. Moreover, the Congressional township has become, in a great many instances, the area within which the political township or TERRITORIES AND PUBLIC LANDS 283 town has been organized. This towTi, however, need not coincide with the Congressional toTvuship; it may be greater or smaller in area. Upon the admission of Territories into the Union, the Land '■ grants ownership of the public lands does not pass to the new made to States, but remains with the National government. Ihe States cannot interfere with the disposal of this land, nor can they tax it. On the other hand, the National govern- ment has pursued a most liberal policy in making grants of land, in large tracts, to the States for various purposes. This is the way in which the school lands of the States were acquired. (See pages 81-82.) Swamp and saline lands, besides other tracts, have been freely given to States to aid in the construction of roads, canals, and other public improvements. But the largest part of the Nation's domain has been The^saie of retained and sold or given away by the government to lands. land companies, railroad companies, and settlers. At present, land may be obtained through the General Land Office (Department of the Interior) either by direct pur- chase or under the homestead laws. Before 1820, the minimum price of land was $2.00 per acre; the price was then reduced to $1.25. Some lands may still be purchased at that rate, while others are held at $2.50 per acre. The public domain of the United States open to settlement com- prises (1910) 711,986,409 acres. This does not include lands located in Alaska, and in our new insular possessions. The great- est part of these lands are situated in the Rocky Mountain and Pacific Coast States and Territories; a large share are arid and can be brought under cultivation only by irrigation, if at all. Under the homestead law, "any citizen of the United States, T^^home- or any person who has declared his intention of becoming such, who is the head of a family, or has attained his majority, or has served in the army or navy in time of war, and is not already the proprietor of more than 160 acres of land in any State or Territory, is entitled to enter a quarter section (160 acres), or any less amount of unappropriated public land, and may acquire 284 TERRITORIES AND PUBLIC LANDS Railroad land granta. Arid lands. Various reserva- tions. title thereto by establishing and maintaining residence thereon, and improving and cultivating the land for a period of five years."* Many of the Western railroads (notably the Northern Pacific, Union and Central Pacific, and Southern Pacific) have been given immense tracts of land, amounting in the total to more than 150,000,000 acres. These grants consist of alternate sections lying within wide strips that cross the western part of the coun- try, along the lines of the several railroads. A considerable part of their land has been sold by the railroad companies to actual settlers. A large part of the public domain is arid. In 1902, Congress enacted a law providing that the proceeds from the sales of pub- lic lands in certain States and Territories should be expended by the National Government in the construction of irrigation works. The establishment of this poHcy marks an era in the develop- ment of our Western States. Under this law great irrigation dams, reservoirs, and canals have been constructed and large areas of public land are being made cultivable and are being sold to settlers. Some of the States are following the same policy, while others are draining swamp lands. Many large tracts of land have been retained by the general government as reservations; these are not open to settlement. The forest reserves are intended as a protection for the sources of great rivers. Several National parks (including the Yellow- stone and the Yosemite) preserve, for the common good of all, regions of great scenic beauty and scientific interest. Reservoir sites have been reserved in several localities, with a view to the establishment of future irrigation systems. Great tracts of land, located in many States, are preserved as Indian reservations. Military reservations comprise the tracts lying adjacent to West- ern military posts. Checking the waste of natural resources. The policy of our Government in granting and selling its public lands has greatly aided Western settlement, but it has been accompanied by enormous waste and much fraud. Individuals and corporations have acquired large tracts and have held them for speculative purposes. Moreover, little attention was paid until recent years to the other resources of the land besides the soil — timber. * American History, 389, 441. TERRITORIES AND PUBLIC LANDS 285 minerals, and water-power sites. Great tracts of forests have been destroyed by fire, timber has been wastefully cut, and other large tracts have come into private hands, while the supply of timber in the country is rapidly dimin- ishing. Hence Congress has begun the policy of setting aside forest reservations. These not only conserve the tim- ber, but also help to regulate the flow of rivers. Thus the the washing of soil from hill-sides is checked. Mineral deposits on public lands are no longer to be sold at low prices with the land. Such land may be with- drawn from entry, and the deposits may later be leased to individuals for working upon the payment of a royalty to the Government. Water-power sites are also being with- drawn from sale, and the Government should in the fu- ture prevent their falling permanently into private hands; for the gradual exhaustion of our coal supply will render water-powers of increasing value. The fundamental principles involved in the policy of The policy conservation * are two: (1) The people should derive just vaUon!^"^" compensation for the sale of the public natural resources, and they should retain ownership of such as may become monopolies; (2) it is the duty of the present generation to care for the welfare of future generations by conserving, rather than allowing the waste of these natural resources. The conservation movement was given impetus by President The Roosevelt when he called the Conference of Governors, which f^'ovemors' . Conierence. met first m 1908 and agam in 1910. The continuance of these meetings may result in their having great influence over State and National affairs; and so they may become in reality a part of our government, though entirely outside the authority of law or Constitution. * For facts concerning the activity of States in this direction, see p. 88. See, also, American History, 523. 286 TERRITORIES AND PUBLIC LANDS Supplementary Questions and References 1. What were the circumstances under which the Northwestern States ceded their lands? Hart, Formation of the Union, 107- 109; Fiske, Critical Period, 187-199; Hinsdale, Old Northwest, chapters 11-14. 2. What were the admirable features of the Ordinance of 1787? Walker, 39-40; Fiske, Critical Period, 203-207; Hins- dale, Old Northwest, chapters 15-16. The Ordinance itself is found in Old South Leaflets, No. 13. 3. By which method is the land of your State surveyed? Obtain the surveyor's description of a piece of land in your locality. What States do not have the United States survey? Why not? Are there reservations in your State? The map published by the General Land Ofl^ce shows, in detail. Prin- cipal Meridians, Base Lines, land offices, and reservations. 4. Wanted: A government for Alaska. Outlook, 94 : 431- 440. 5. The first Filipino assembly and its work. N. Am. Rev., 188 : 521-525; Oudook, 88 : 175-179. 6. The present government and the future of the Philippines. World's Work, 16 : 10655-10656; Outlook, 90 : 450-456; 91 : 75-82. 7. Preparing the Moros for government. Atl. Mo., 97 : 385-394. 8. Fortifying Panama Canal. Rev. of R's, 39 : 732-733. 9. What is the matter with our land laws? Atl. Mo., 102 : 1-9. 10. National irrigation projects. Indept., 62 : 1079-1085; 64 : 1172-1178; Rev. of R's, 37 : 689-698. 11. Uncle Sam's wood lot. Indept, 64 : 1374-1377; Forest Reserves, ibid., 60 : 667-671; Timber Frauds, World's Work, 15 : 9588-9593; National Forestry, ibid., 15 : 9739-9757. 12. Conservation. Atl. Mo., 101 : 694-704; Indept., 64 : 946-952; Outlook, 87 : 291-294; 93 : 770-772; Rev. of R's, 37 : 585-592; 39 : 317-321. 13. Government control of water power. Outiook, 88 : 582- TERRITORIES AND PUBLIC LANDS 287 584; Rev. of R's, 41 : 47-48; Public Coal lands, Rev. of R's, 35 : 303-304. 14. The Governors' Conference. Indept., 64 : 1374-1377. 15. Relations with Cuba. American History, 503-504. 16. What, if any, organized Territories exist on the continent? What were the last Territories to be made States ? CHAPTER XXIX AMENDMENTS TO THE CONSTITUTION Article V. Methods of proposing amend- ments. Ratifica- tion of amend- ments. As already noted, it was practically impossible to amend the Articles of Confederation. The conviction was general, therefore, in the Constitutional Convention that some plan should be adopted by which the Consti- tution might be made to conform to the requirements of future conditions, as well as guard against changes too easily secured. Article V provides for amendments as follows: The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Con- stitution, or, on the application of the legislatures of two- thirds of the several States, shall call a convention for pro- posing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratificatioyi may be proposed by the Congress; provided . . . that no State, without its con- sent, shall be deprived of its equal suffrage in the Senate. Amendments to the Constitution may thus be proposed in two ways: by a vote of two-thirds of both houses or by a National convention called by Congress for that purpose on the application of two-thirds of the State legislatures. The convention method has never been used in proposing amendments to the Constitution. Amendments may also be ratified by either of two meth- ods: by the legislatures in three-fourths of the several States, or by conventions in three-fourths thereof. When 288 AMENDMENTS TO CONSTITUTION 289 Congress has proposed an amendment, it has designated that the ratification should be by the State legislatures. The method used in proposing and in adopting amend- ments seems the best, for the bodies called upon to act may be easily summoned. The most permanent part of the Constitution was se- Permanent , . . ^ t{ r> • L i -x feature of cured through the provision that no btate, without its theConsti- consent, shall be deprived of its equal suffrage in the Senate." One of the chief arguments against the Constitution was Bill of that it did not contain a Bill of Rights, and consequently it was asserted that the rights of the individual citizen could not be maintained. As already noted (p. 116), some of the States were induced to ratify the Constitu- tion, even with this omission, providing they were given the privilege of recommending amendments. One hun- dred and eighty-nine propositions in the nature of amend- ments, many of them being repetitions, were presented by the various States to the first Congress. Seventeen amend- ments, largely selected from these, were proposed by the House of Representatives. Twelve were agreed to by the Senate and ten were ratified by three-fourths of the State legislatures. The first ten amendments are frequently re- ferred to, therefore, as "The Bill of Rights." More than 1,700 amendments to the Constitution have been Number of proposed in an official way. Nineteen of these have been pre- ^^ts.' sented to the State legislatures for ratification and fifteen only- have received the requisite three-fourths vote. These amend- ments have now the same force as the original Constitution. Congress shall make no laio respecting an establishment Amend- of religion, or prohibiting the free exercise thereof; or Freedom of abridging the freedom of speech or of the press, or the right speech,' of the people peaceably to assemble, and to petition the gov- assembly. emment for a redress of grievances. 290 MIENDMENTS TO CONSTITUTION Amend- ment II. Right of keeping militia. Amend- ment III. Quartering of soldiers. Amend- ment IV. General warrants. The religious intolerance characteristic of the colonies and the presence of so many different sects doubtless led to this de- cree, by which the National government should be forever free from the disturbances which would follow should Congress have been given the right to set up a National religion. Our govern- ment, unlike that of many European nations, grants the greatest liberties, provided it can be shown that what was said or pub- lished was true and the facts were made known with good mo- tives and for justifiable ends. After many contests in English history, the "right of petition" was finally assured in the Decla- ration of Rights of 1688. The principle was reasserted in many of the State constitutions, and, although inherent in a republi- can form of government, it was thought desirable to establish the right by making it a part of the Constitution. A ivell-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. The necessity for having a militia has been referred to on page 202. Fear of a monarch was genuine, and it was believed that the militia would form a ready defence against any usurpation of power on the part of the Presi- dent. No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. The English authorities maintained the right of "bil- leting soldiers" upon the colonists in time of peace, and this grievance was one of the causes of the American Revolution. It was maintained that "a man's house is his castle," and that he was justified in resisting all in- trusions of this nature. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. A]mexd:\ients to constitution 291 This Amendment, like the preceding, grew out of the desire to check any tendency on the part of the govern- ment to trample on the rights of personal liberty and private property. It was believed that the English au- thorities had disregarded these rights when they issued and strove to enforce the carrying out of the obnoxious Writs of Assistance.* The enumeration in the Constitution of certain rights Amend- shall not he construed to deny or disparage others retained Rights' 7,7 J retained by by the 'people. the people. Many clauses of the Constitution have in them an enu- meration of certain personal rights retained by the people. Among these rights are the privileges of the writ of habeas corpus and of the right of trial by jury. Since all personal rights could not be thus enumerated. Amendment IX was evidently intended to apply to those not so designated. The powers not delegated to the United States by the Con- Amend- stitution, nor prohifnted by it to the States, are reserved to Powers ' the States respectively, or to the people. the states. A motion was made when this Amendment was beino^ discussed in Congress that the words "expressly dele- gated" be used. It was made to appear in the discus- sion that the Amendment, as given, was intended as an interpretation of the Constitution, and that, since it was impracticable to enumerate all of the powers of the gen- eral government, some must of necessity be implied, (See pp. 204-205.)t The Emancipation Proclamation granted freedom to all the slaves in the States then in rebellion. Delaware, Kentucky, Tennessee, Missouri, Maryland, and parts of Virginia and Louisiana do not appear in this list. Slaves * Amendments V, VI, VII, and VIII have been discussed under the Judiciary, on pp. 266-267. tAmendment XI has been taken up under the Judiciary, pp. 264-265; Amendment XII has been considered in connection with the election of President and Vice-President, pp. 222-223. 292 AMENDMENTS TO CONSTITUTION Amend- ment XIII, section 1. Section 2. Amend- ment XIV, section 1. were held in these States, and slavery still had a legal right to exist in thera. Congress desired to settle the question, and February 1, 1865, proposed the Xlllth Amendment to the Constitution. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist vnthin the United States, or any place subject to their jurisdiction. Congress shall have power to enfoire this Article by ap- propriate legislation. The wording of the Amendment is almost the same as that which pertains to slavery in the Ordinance for the Northwest Territory of 1787 and the Wilraot Proviso. After it was ratified by sixteen free States and eleven of the former slave-holding States, the requisite three- fourths, Mr. Seward, then Secretary of State, declared it to be a part of the Constitution of the United States, December 18, 1865. Amendment XIV was proposed by Congress, June 16, 1866, as a part of the general plan for Reconstruction. The Southern States were not to be regarded as a part of the Union until they should ratify it. 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. No State shall make or enforce any law which shall ahi-idge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any per- son within its jurisdiction the equal protection of the laws. The first section has already been partially discussed on page 191 under the question, Who arc citizens? The "privileges or immunities" of the section doubt- less refer to the rights of the freedmen which had been defined by the Civil Rights Act of April 9, 1866. By amend:ments to constitution 293 this act, the "freedmen were to have the same rights in privileges every State and Territory of the United States to make nities of , . , . . citizens. and enforce contracts; to sue, be parties, and give evi- story, c