j ! 
 
READINGS ON 
 
 AMERICAN FEDERAL 
 
 GOVERNMENT 
 
 EDITED BY 
 
 PAUL S. REINSCH 
 it 
 
 PROFESSOR OF POLITICAL SCIENCE IN THE UNIVERSITY OF WISCONSIN 
 AUTHOR OF "WORLD POLITICS," "COLONIAL GOVERN- 
 MENT," "AMERICAN LEGISLATURES," ETC. 
 
 GINN AND COMPANY 
 
 BOSTON NEW YORK CHICAGO LONDON 
 
COPYRIGHT, 1909 
 BY PAUL S. REINSCH 
 
 ALL RIGHTS RESERVED 
 89.4 
 
 (Efte satftcnaeum 
 
 GINN AND COMPANY PRO- 
 PRIETORS BOSTON U.S.A. 
 
INTRODUCTION 
 
 THE present collection of materials for the study of American gov- 
 ernment was suggested to the Editor by his own experience in studying 
 the processes of American government with a large university class. It 
 was apparent that students could derive great benefit from reading ex- 
 tensively in documentary sources, but the difficulty of obtaining access 
 to the latter even in a well stocked library proved so great that only a 
 very limited use could be made of this method. So it occurred to the 
 Editor that if a number of characteristic selections were to be made from 
 articles and statements written by representative men, a body of in- 
 formation could be brought together which would be exceedingly help- 
 ful not only to the student in course, but to the general reader who might 
 desire to inform himself somewhat in detail about the manner in which 
 public affairs are actually managed. 
 
 The materials contained in this book are selected almost without ex- 
 ception from the spoken or written work of men actually engaged in the 
 business of government, presidents, legislators, administrative offi- 
 cials, and judges. On account of their special value, there are included 
 a few articles by writers who do not have this particular qualification. 
 With this exception, the material is taken from the Congressional Record, 
 from official reports, messages, and public addresses. It is fashionable 
 to sneer at the Congressional Record as a congeries of undigested and 
 uninteresting material pouring itself out in liberal volume for the benefit 
 of an occasional country editor. But while there may be few constant 
 and faithful readers of this formidable document, it nevertheless consti- 
 tutes a valuable record of able thought upon the public problems of the 
 day. The debates of Congress, it is true, suffer from various drawbacks. 
 In the Senate the legal and juristic side of public action is given perhaps 
 too great a predominance. The question most frequently asked is " what 
 can we do under the constitution," rather than " what is the wisest policy 
 for a great nation to pursue." It is, of course, not to be expected that 
 Senators should be experienced in all the detailed pursuits and interests 
 that at present call for federal legislation. They are, however, nearly 
 all capable of dealing with the legal aspects of the matter. This consti- 
 tutes the common meeting ground of discussion, and so it is not surpris- 
 ing that questions of policy are in the Senate usually treated in the terms 
 of legal thought and of constitutional limitation. But with this qualifica- 
 
 71893 
 
iv INTRODUCTION 
 
 tion in mind, the reader may judge for himself of the value of Senatorial 
 discussions and of the grade of ability displayed by the participants. 
 
 The House of Representatives is in an unfavorable position as a 
 forum of argument. In the Senate there is constant debating, a con- 
 stant meeting of minds, a persistent hammering out of policies and 
 legal theories. In the House real debates are rare. When great meas- 
 ures are up for discussion, the time allotted is usually so short that the 
 individual speakers can do no more than merely indicate their line of 
 thought; moreover, the bulk of time is usually taken up by fencing for 
 parliamentary position under the rules, rather than by a discussion of 
 the merits of the legislation. Very thoughtful and valuable speeches are 
 indeed written by members of the House, who often welcome any op- 
 portunity to get them into the Record. Thus a member may take ad- 
 vantage of five minutes falling to him in the discussion of the Diplomatic 
 and Consular Appropriation Bill, to deliver himself of a speech upon the 
 iniquities of the tariff or upon the desirability of further restrictions to 
 emigration. During the last session of Congress the distribution of the 
 President's message was made a question of debate almost until the 
 end of the session. Whatever the member lacks time to say in the three 
 or five minutes allotted to him he may, nevertheless, print in the Record, 
 or he may even obtain leave to print a speech no part of which has ever 
 been delivered on the floor of the House. That such arrangements 
 defeat the spontaneity of discussion will be evident. Yet there are many 
 able and experienced men in the House, who occasionally do get an 
 opportunity for an actual discussion of public policies; and even the 
 speeches which are written for partial delivery are frequently worth 
 reading. The discussions which take place under the five-minute rule 
 in Committee of the Whole, when appropriation bills are under con- 
 sideration, are unfortunately often characterized by a somewhat petty 
 sedulity in matters of detail. It is somewhat discouraging to have great 
 measures, upon which the national welfare depends, disposed of in a two 
 hours' debate, while nearly the same time may be given to the question 
 as to whether the salary of a clerk in some department shall be $1,100 
 or $1,300. However, notwithstanding all these disadvantages and draw- 
 backs, the debates in the House are often very valuable and informing. 
 
 In this collection special attention has been given to the procedure 
 in the House of Representatives and in the Senate. Congressional pro- 
 cedure is, indeed, highly technical, but it is most desirable that the 
 nation should thoroughly inform itself upon this matter. The proce- 
 dure in the National Legislature ought to be such as would facilitate 
 the discussion of really important national problems and would en- 
 courage and bring forward those men who are truly representative of 
 the people and of their common interests. It is very questionable whether 
 the methods of procedure now prevailing sufficiently subserve these 
 purposes. 
 
INTRODUCTION v 
 
 The collection before the reader has been confined to material illus- 
 trating the actual working of the American government in our day. It 
 may, indeed, be said that for a thorough study of American government 
 a knowledge of the historical development of political institutions is in- 
 dispensable. Yet it is equally essential that there should be a clear con- 
 ception of what is actually being done at the present time. On account 
 of the limitations of space and in order to preserve the unity of the col- 
 lection, purely historical accounts have not been admitted. For similar 
 reasons there have been excluded purely legal arguments and contro- 
 versial discussions of suggested reforms. But some discussions of a legal 
 nature have been admitted because they served directly to illustrate the 
 actual workings of the government. To reveal actualities rather than 
 historical developments or future tendencies is the purpose of this col- 
 lection. From this point of view, much critical matter has been included, 
 for the reason that opposition serves to make us conscious of many facts 
 which otherwise we might have overlooked. Thus the details of the 
 centralized organization in the House of Representatives would not 
 have become matters of public knowledge but for the opposition which 
 this system has evoked. Of course, in the use of such material the 
 reader will exercise caution, making allowance for the heat of party con- 
 troversy, and forming his own conclusions as to how far the views of 
 the individual writer or speaker may have been colored by a specific 
 political purpose. 
 
 Though the Editor has aimed to steer clear of purely partisan dis- 
 cussions, it appeared impossible to exclude everything tinged with a 
 party bias without reducing the collection to a neutral and inane level. 
 It is exactly the personal equation in discussion and argument that lends 
 value when backed by character and experience. In order to feel at 
 home in the actual world of political thought and action, the student 
 should be familiar with the controversial methods that he will encounter 
 at every turn, he should be trained in distinguishing political fact 
 from political opinion. However, in most of the important matters dealt 
 with in this collection the principle of party allegiance may be regarded 
 as non-essential. The details of House procedure have been attacked 
 by men of all political faiths. Men of all parties have been united upon 
 the necessity of public control of corporations. As a matter of fact, of 
 recent years, controversies in our legislative bodies have rarely taken 
 on the form of pure party action. 
 
 The Case Method which has been used with great success in the study 
 of private and public law may be applied to the study of institutions in 
 general. The student should read a certain group of selections and then 
 reason out for himself the implications therein contained, analyze the 
 discussions and debates, separate the essential from the non-essential, 
 and avoid false analogies, making allowance for personal and political 
 bias. Thus he will arrive at his own conclusions, relying upon his own 
 
vi INTRODUCTION 
 
 judgment, as he must whenever confronted by the facts of the actual 
 world. This method has some great advantages over that of getting 
 ready-made conclusions from text-books, although it does not in the 
 study of political science supersede the latter. The process while irk- 
 some at the beginning will soon have the same exhilarating effect upon 
 the mind that brisk physical exercise has on the body. The Editor, in 
 the notes accompanying the selections, has avoided making summaries 
 or drawing conclusions. He has merely given the general setting of the 
 selection, and indicated its relation to other matters. In cases where 
 parts of articles are printed, the material omitted is usually historic or 
 of an incidental nature, while the part reproduced deals directly with 
 present day methods of government. 
 
 The Editor desires to make special acknowledgments to various pub- 
 lishers and authors who have permitted him to make selections from 
 articles or works, published or written by them. He desires in the first 
 place to mention the " Autobiography of Senator Hoar," published by 
 Scribner's Sons and Company, an admirable treasure-house of political 
 reminiscence, to be compared among recent books only to the Memoirs 
 of Carl Schurz. The same publishers have permitted the use of por- 
 tions of articles published in Scribner's Magazine, by Mr. Frank A. Van- 
 derlip on the Treasury, General W. H. Carter on the War Department, 
 Mr. S. P. Langley on the Scientific Work of the Government, and Gov- 
 ernor Magoon on the War Department. Secretary Root permitted the 
 use of his address on Local Self-Government of the States; and Judge 
 Charles F. Amidon, that on the Nation and the Constitution. Acknowl- 
 edgments are further due the following publications and writers : The 
 Atlantic Monthly, for articles by Mr. S. W. McCall, on the Power of the 
 Senate and on the Fifty-Ninth Congress; Judge F. C. Lowell, on 
 American Diplomacy; as well as Mr. A. P. Dennis, on Our Changing 
 Constitution. The North American Review permitted the use of articles 
 by Mr. A. Maurice Lowe, on the Oligarchy of the Senate, and Mr. 
 Albert D. Currier, on Government by Executive Rulings. The Political 
 Science Quarterly is entitled to acknowledgment for those by Mr. 
 Harold M. Bowman, on American Administrative Tribunals, and Mr. 
 A. P. Dennis, on the Democratic Convention of 1904; the Independent 
 for that by Mr. Albert Halstead on The President at Work ; the Outlook 
 for the article by Mr. Huntingdon Wilson, on the Foreign Service of the 
 United States. The Review of Reviews permitted the use of the article 
 by Mr. W. B. Shaw, on The Civil Service under Roosevelt, and of Mr. 
 Bowker, on the Post Office; McClure's Magazine of that by President 
 Cleveland, on The Government in the Chicago Strike of 1894; The 
 Forum, that by Mr. H. L. West, on the Senate; and the Michigan Law 
 Review, that on The Department of Justice by Professor J. A. Fairlie. 
 The Editor is further greatly obliged to the publishers of the New York 
 Evening Post for the permission to reproduce a number of valuable 
 
INTRODUCTION vii 
 
 articles and editorials from that journal. Two articles have been taken 
 from foreign Reviews, that by Professor S. J. McLean, on President 
 Roosevelt and the Trusts and by Mr. Frederic Harrison, on the In- 
 auguration of President McKinley. The Presidents, Senators, Repre- 
 sentatives, Judges and Government Officials whose careful and authori- 
 tative statements in Congressional debates and public documents form 
 the great bulk of this collection are also entitled to the personal thanks 
 of students of American Government for their lucid contributions 
 towards its description. 
 
 The Editor also desires to express his obligation to Mr. William L. 
 Bailey and to Professor R. B. Scott, for looking over the proofs. 
 
CONTENTS 
 
 I. THE PRESIDENT. Page 
 Frederic Harrison, The Inauguration of President McKinley, 
 
 1900 i 
 
 Albert Halstead, The President at Work 5 
 
 II. POWERS OF THE EXECUTIVE. 
 
 From a Speech of Senator Rayner 10 
 
 From a Speech of Representative Towne 15 
 
 Debate on the War Power 22 
 
 Grover Cleveland, The Government in the Chicago Strike of 
 
 1894 32 
 
 III. THE EXECUTIVE AND CONGRESS. 
 
 James A. Garfield, on the Executive and Congress .... 47 
 
 Senator Dolliver, on the President 50 
 
 Representative Adams, on the Executive 58 
 
 Senator Rayner on Congress and the Executive 60 
 
 Representative John Sharp Williams' Remarks 63 
 
 President Cleveland on the Transmission of Official Papers 65 
 
 Discussion of Requests for Information 67 
 
 IV. THE TREATY-MAKING POWER. 
 
 Senator Rayner on the Treaty-Making Power ...... 79 
 
 Speech of Senator John C. Spooner on Treaties 81 
 
 Speech of Senator Bacon 92 
 
 Senator Hoar on Diplomatic Appointments 124 
 
 V. THE SENATE. 
 
 Henry Litchfield West, The Place of the Senate in Our 
 
 Government 127 
 
 S. W. McCall, The Power of the Senate 135 
 
 A. Maurice Low, The Oligarchy of the Senate 146 
 
 Senate Procedure. Obstruction on the Currency Bill, 1908 . 155 
 
 The Committee Work* of Senators 173 
 
 Senate Secret Sessions 179 
 
 Senatorial Maiden Speeches 183 
 
 Discussion on Printing Speeches in the Record 185 
 
 VI. SENATE AND HOUSE CONFERENCE COMMITTEES. 
 
 Report on the Railway Rate Bill 189 
 
 The Army Appropriation Bill, 1902 202 
 
 Mr. Cannon's Remonstrance, 1903 204 
 
 The Currency Bill of 1908 205 
 
 From the Senate Debate on the Currency Bill 220 
 
x CONTENTS 
 
 Page 
 
 VII. THE ORGANIZATION AND RULES OF THE HOUSE OF REPRESENTA- 
 
 TIVES. 
 
 The Procedure of Organizing the House 223 
 
 Defense of the Rules 236 
 
 Criticism of the Rules, April 5, 1906 244 
 
 Representative Cushman on the Rules 250 
 
 Representative Cockran on the House Procedure 252 
 
 The Committee System 257 
 
 Tactics of the Opposition. Account of the Opposition 
 
 Movement 265 
 
 Representative J. S. Williams Announces his Policy .... 271 
 
 Report of a Special Rule, April 4, 1908 273 
 
 Discussion on the Bridge Bill, May 13, 1908 276 
 
 Remarks of Representative Clark 285 
 
 Congress Again Debating, 1902 288 
 
 Influence in Congress, 1906 290 
 
 Slipshod Legislation, 1903 293 
 
 General Leave to Print 296 
 
 VIII. FINANCIAL LEGISLATION. 
 
 James A. Garfield on Revenue Bills 299 
 
 Annual Statement of Appropriations 301 
 
 Review of Appropriations on Behalf of the Minority . . . 309 
 
 Divided Authority and Appropriations 317 
 
 Debate on an Appropriation Bill % 320 
 
 Special Rule on the Legislative, Executive, and Judicial Ap- 
 propriation Bill 333 
 
 Mr. Tawney on Urgent Deficiencies 348 
 
 Representative Littauer on Appropriations 351 
 
 Representative Gillett, on the Influences in Legislation 
 
 towards Extravagance 355 
 
 Capitalizing Extravagance, 1901 357 
 
 President Cleveland's Veto Message on the River and Harbor 
 
 Bill, 1896 359 
 
 IX. THE DEPARTMENTS. 
 
 Frank A. Vanderlip, The Treasury 362 
 
 The Treasury and the Money Market 373 
 
 Professor John A. Fairlie, The United States Department of 
 
 Justice 377 
 
 R. R. Bowker, The Post Office: Its Facts and its Possibilities 381 
 
 Post Office Department: Mail Fraud Orders 390 
 
 Speech of Hon. Edgar D. Crumpacker on the Post-Office 
 
 Appropriation Bill 394 
 
 The Department of Agriculture 401 
 
 Speech of Hon. Franklin E. Brooks on the Agricultural 
 
 Appropriation Bill 406 
 
 S. P. Langley, The Scientific Work of the Government . . 419 
 
 Representative James A. Tawney, Special Agents 432 
 
 The Work of the Keep Commission 439 
 
CONTENTS xi 
 
 Page 
 
 Administrative Tribunals and Regulations 445 
 
 Albert Dean Currier, Government by Executive Rulings . 452 
 
 Government Printing 459 
 
 Speaker Cannon's Maiden Speech on Public Documents . . 461 
 
 Instructions to the Philippine Commission 463 
 
 Administration of Cuba, Porto Rico, and the Philippine 
 
 Islands 469 
 
 X. LEGISLATIVE AND ADMINISTRATIVE PROBLEMS. 
 
 Samuel W. McCall, The Fifty-Ninth Congress 473 
 
 Federal Control of Corporations 485 
 
 S. J. McLean, President Roosevelt and the Trusts .... 495 
 
 Representative Cockran on Corporate Power 507 
 
 The Railway Rate Act of 1906 512 
 
 Extracts from the Report of the Interstate Commerce .Com- 
 mission, December 23, 1907 517 
 
 The Employers' Liability Bill 527 
 
 The Bureau of Corporations 529 
 
 Preservation and Development of Natural Resources ... 538 
 Address of President Roosevelt on Natural Resources, before 
 
 the Meeting of Governors, 1908 540 
 
 From the Message of President Roosevelt, 1907 548 
 
 Senate Debate on Forest Reservations 554 
 
 Speech of Senator Albert J. Beveridge on the Forest Service 567 
 
 The National Forest Policy 586 
 
 Speech of Senator Francis G. Newlands on Inland Water- 
 ways 590 
 
 XI. ARMY AND NAVY. 
 
 From President Roosevelt's Message, December 3, 1907 . . 610 
 Brigadier-General William H. Carter, The War Department 
 
 Military Administration 618 
 
 Speech of Hon. Albert F. Dawson on Naval Administration 628 
 
 T. G. Roberts, Naval Administration 634 
 
 XII. THE AMERICAN FOREIGN SERVICE. 
 
 Huntington Wilson, The American Foreign Service .... 651 
 From a Senate Hearing on the Reorganization of Consular 
 
 Service, 1906 658 
 
 Regulations governing Appointments and Promotions in the 
 
 Consular Service of the United States 671 
 
 Regulations governing Examinations 674 
 
 Francis C. Lowell, American Diplomacy 675 
 
 XIII. CIVIL SERVICE. 
 
 From the First Annual Message of President Harrison, 1889 683 
 From the Fourth Annual Message of President Cleveland, 
 
 1896 685 
 
 William B. Shaw, The Civil Service under Roosevelt . . . 686 
 
 Extension of Civil-Service Rules 698 
 
 Senator Hoar on Appointments to Office 701 
 
xii CONTENTS 
 
 Page 
 
 XIV. THE COURTS. 
 
 From an Address of Mr. Justice Field delivered upon the 
 
 Occasion of the Hundredth Anniversary of the Court . . 703 
 David J. Brewer, The Supreme Court of the United States . . 706 
 Remarks of Mr. Justice Harlan on the Methods of the 
 
 Supreme Court 716 
 
 The Supreme Court on Judicial Power 718 
 
 The Right of the Government to Appeal in Criminal Cases 
 
 Injunctions 721 
 
 XV. CENTRALIZATION AND CHANGES IN THE CONSTITUTION. 
 
 Elihu Root, How to Preserve the Local Self-Government of 
 
 the States 731 
 
 From President Roosevelt's Speech at St. Louis, 1907 . . . 736 
 Judge Charles F. Amidon, The Nation and the Constitution 739 
 Alfred Pearce Dennis, Our Changing Constitution .... 752 
 Speech of Representative De Armond for a Constitutional 
 
 Convention 763 
 
 New Fields for Federal Power 774 
 
 Representative James A. Tawney, From a Memorial Ad- 
 dress on the Battlefield of Gettysburg 776 
 
 From an Address by Representative J. S. Williams, on 
 
 Federal Usurpation 781 
 
 Speeches of Representatives Sherley, Cockran, and others on 
 Federal Powers 801 
 
 XVI. THE NATIONAL CONVENTION. 
 
 Senator Hoar, The Republican Convention of 1880 .... 826 
 Alfred Pearce Dennis, The Democratic Convention of 1904 833 
 
 INDEX 846 
 
READINGS ON 
 
 AMERICAN FEDERAL 
 GOVERNMENT 
 
 I 
 
 THE PRESIDENT 
 
 [The inauguration of the President has perhaps never been described in a 
 more attractive manner than by Mr. Frederic Harrison. The date of the in- 
 auguration is so early that the inclemency of the weather at that time often 
 makes the occasion a trying one to the health of the participants. It has there- 
 fore been suggested that the date should be changed so as to fall on the memo- 
 rial day of Washington's first inauguration, April 3<Dth. The essay by Mr. 
 Halstead, now Consul at Birmingham, gives an account of the methods of 
 despatching business in the Executive Office.] 
 
 THE INAUGURATION OF PRESIDENT McKINLEY, 1900 
 BY FREDERIC HARRISON l 
 
 THE Ceremony of the Inauguration of the President and Vice-Presi- 
 dent at Washington on the 4th of March is, indeed, a characteristic and 
 suggestive function. I had the good fortune to witness it this year under 
 the most favorable conditions, and was deeply impressed with all it 
 represented. It summoned up the vast extent and power of the United 
 States, its absolute democracy, the simplicity, ease, and homeliness of 
 its government, its contempt of forms, its entire confidence in itself and 
 perfect satisfaction with its own ways. In the grand Capitol of the noble 
 city of Washington, than which no finer edifice or city exists in the Old 
 World, were gathered the men chosen by the adult citizens of a nation 
 of some seventy millions, scattered over a vast continent. The Presi- 
 dent, Vice-President, senators, and representatives elected on this enor- 
 mous ballot, entrusted with this stupendous power and wealth, sate 
 indistinguishable from the ordinary citizens around them clerks, 
 
 1 From " Impressions of America " in The Nineteenth Century, 49 : 922. 
 i i 
 
3 AMERICAN FEDERAL GOVERNMENT 
 
 secretaries, journalists, and casual friends, who were crowded pell-mell 
 on the floor of the Senate House itself. 
 
 To this miscellaneous body, which might be any average county 
 council or borough board, there entered a long file of ambassadors and 
 ministers in all the finery of European and Oriental courts; uniforms 
 blazing with gold lace, plumes, velvet or fur, swords, sabres, and hel- 
 mets; the Austro-Hungarian magnate, the stately ambassadors of Great 
 Britain, Germany, France, and Russia, in their court uniforms; Minis- 
 ter of China, in his buttoned headdress uniform; the envoys of the smaller 
 Powers of Europe, and then the diplomatists of the South American 
 and Central American and West Indian States; black men, brown men, 
 whitey-brown men, in various gaudy uniforms; the Minister of the 
 Sultan in his fez, those of Siam and Korea in their national dress 
 more than thirty in all, in every color, adornment, and style, repre- 
 senting men of every race from every part of the planet. 
 
 This brilliant and motley group may be seen at St. Stephen's, or at 
 the functions of Berlin and St. Petersburg, where it is only a natural 
 part of similar bravery and feudal splendor. But here, in a hall crowded 
 with sober citizens in broadcloth, without a star, a ribbon, or a sword 
 between them, the effect was almost comic. Siam, Korea, Hungary, 
 and Portugal as gay as butterflies. McKinley and Roosevelt matter- 
 of-fact civilians, as if they were Chairman and Vice-Chairman of the 
 London County Council ! And around them were the chosen delegates 
 of the great Republic, jostled in their own hall by pressmen, secretaries, 
 and curious strangers like myself. The shirt-sleeve theory of govern- 
 ment could hardly go farther, and, perhaps, need not go quite so far. 
 My own republican soul was stirred when I set myself to think which 
 of the two forms would prevail in the centuries to come. I thought first 
 of the Roman Senate (according to the old myth), sitting immovable 
 as statues in their white togas, when the Gauls of Brennus, in their 
 torques and war-paint, dashed into the Senate House; and then I be- 
 gan to think, Were these quiet citizens seated there to see a comic 
 opera at the Savoy Theatre? 
 
 Not that the representatives of the Republic are wanting in personal 
 bearing. The President sate through the ceremonies with placid dignity, 
 his fine features, in their stern repose, looking like a bronze figure of 
 the Elder Brutus or Cato the Censor. But at a personal reception in 
 the White House Mr. McKinley will show as much grace and courtesy 
 of demeanour as any Sovereign by divine right, and his smile and his 
 voice are pronounced (not only by women) to be perfectly winning. 
 The diplomatists of Europe agree in assuring us that nothing can ex- 
 ceed the tact and "correctness" which distinguish Mr. Hay, the ac- 
 complished Secretary of State. It is true that Congressmen (in their 
 shirt sleeves) have not that repose of manner which marks the caste of 
 Vere de Vere. But the men who are charged to speak in the name of 
 
THE PRESIDENT 3 
 
 the State will usually be found to rise to the occasion with that facility 
 which enables every genuine American to adapt himself to play a new 
 part, and to fulfil an unaccustomed duty. 
 
 It is no easy task to combine the conduct of vast interests, the repre- 
 sentation of enormous power, with the ultra-democratic traditions of 
 the absolute equality of all citizens. No sooner had the President sum- 
 moned before him the splendiferous envoys of the whole world, than he 
 passed out to the historic steps of the Capitol, to pronounce his In- 
 augural Address. As I stood near him, and listened to the clear and 
 keenly-balanced sentences, which the cables and telegraphs of the civil- 
 ized world were carrying to expectant nations, I noticed how the crowd, 
 a few feet only below him, was a miscellaneous gathering from the streets 
 like a knot in the Park listening to a Salvation preacher or a Socialist 
 orator on a Sunday, negroes and lads not the least vociferous in 
 their applause, whilst on a platform fifty yards off there were 
 mounted a dozen batteries of photographers, from kodaks to life-size 
 lenses. The American public man even the private man and private 
 woman has always to reckon with the man in the street, journalists, 
 and kodaks. 
 
 It is needless to point the moral of the difference between the In- 
 augural Address of a President, delivered in the open air to a miscella- 
 neous crowd, and the speech of an European Sovereign opening Par- 
 liament. The one is an elaborate State paper, spoken by a citizen in 
 frock coat to a mob of his fellow-citizens in the street; the other is 
 usually conventional platitudes, pronounced in a gorgeous palace with 
 a scene of medieval pageantry. It is the contrast between the monar- 
 chical survival and Republican realism. Kodaks, mobs, and vocif- 
 erous negroes are not a necessary part of the government of a State. 
 But the Presidential address from the steps of the Capitol is certainly 
 more like that of Pericles on the Pnyx, or of Scipio and Marius on the 
 Rostra, than our House of Lords; and it is conceivable that it may 
 prove more agreeable to the practice of future republics in the ages to 
 come. The President of the United States expounds his policy in a 
 reasoned argument to all citizens who choose to hear him. The Euro- 
 pean monarch performs a traditional ceremonial to a crowd of state cour- 
 tiers who possess office without power and honor without responsibility. 
 
 The White House, as the executive mansion is called, is interesting 
 for its historic associations, which exactly cover the nineteenth century, 
 with its portraits and reminiscences of Presidents and statesmen, and 
 its characteristic simplicity and modest appointments. It is not a con- 
 venient residence for a President with such great responsibilities. But, 
 as the term of residence is usually so short, and the associations of the 
 house are so rich, it would be a pity to change it for a pretentious modern 
 palace. In the meantime the quiet old mansion, merely a fine Georgian 
 country house in a pleasant park, serves to remind the American citizen 
 
4 AMERICAN FEDERAL GOVERNMENT 
 
 of the democratic origin of his Chief Magistrate, who is certainly not 
 yet an emperor. The White House was a residence suitable for men 
 like Jefferson, Lincoln, and Grant; and it seems a not unfitting office 
 for their successors. 
 
 The Capitol at Washington struck me as being the most effective 
 mass of public buildings in the world, especially when viewed at some 
 distance, and from the park in which it stands. I am well aware of cer- 
 tain constructive defects which have been insisted on by Ferguson and 
 other critics; and no one pretends that it is a perfect design of the 
 highest order either in originality or style. But as an effective public 
 edifice of a grandiose kind, I doubt if any capital city can show its equal. 
 This is largely due to the admirable proportions of its central dome 
 group, which I hold to be, from the pictorial point of view, more success- 
 ful than those of St. Peter's, the Cathedral of Florence, Agia and Sophia, 
 St. Isaac's, the Pantheon, St. Paul's, or the new Cathedral of Berlin. 
 But the unique effect is still more due to the magnificent site which the 
 Capitol at Washington enjoys. I have no hesitation in saying that the 
 site of the Capitol is the noblest in the world, if we exclude that of the 
 Parthenon in its pristine glory. Neither Rome nor Constantinople, nor 
 Florence, nor Paris, nor Berlin, nor London possesses any central emi- 
 nence with broad open spaces on all sides, crowned by a vast pile cover- 
 ing nearly four acres and rising to a height of nearly three hundred feet, 
 which seems to dominate the whole city. Washington is the only capital 
 city which has this colossal center or crown. And Londoners can im- 
 agine the effect if their St. Paul's stood in an open park reaching from 
 the Temple to Finsbury Circus, and the great creation of Wren were 
 dazzling white marble, and soared into an atmosphere of sunny light. 
 
 Washington, the youngest capital city of the world, bids 'fair to be- 
 come, before the twentieth century is ended, the most beautiful and 
 certainly the most commodious. It is the only capital which has been 
 laid out from the first entirely on modern lines, with organic unity of 
 plan, unencumbered with any antique limitations and confusions. The 
 spacious avenues, intersected by very broad streets, all lined with maple 
 and elm, and radiating from a multitude of "circles," its numerous 
 parks and squares, with fountains, monuments, and equestrian statues 
 at each available junction, its semitropical climate, for it is in the lati- 
 tude of Lisbon and Palermo, its freedom from the disfigurements of 
 smoke, trade, and manufactures, its singular form of government under 
 a State autocracy without any municipal representation, give it unique 
 opportunities to develop. As yet it is but half completed, owing to local 
 difficulties as to rights of property; and it still has the air of an artificial 
 experiment in city architecture. But within two or three generations, 
 when its vacant sites are filled up, and public buildings, monuments, 
 and statues continue to be raised with all the wealth, resources, and 
 energy of the Republic, if the artists of the future can be restrained 
 
THE PRESIDENT 5 
 
 within the limits of good sense and fine taste, Washington may look 
 more like the Rome of the Antonies than any city of the Old World. 
 
 Of all that I saw in America, I look back with the most emotion to 
 my visit to Mount Vernon, the home and burial place of George Wash- 
 ington. I saw it on a lovely spring day, amidst thousands of pilgrims, 
 in the Inauguration week. On a finely wooded bluff, rising above the 
 grand Potomac River, stands the plain but spacious wooden house of 
 the Founder of the Republic. It has been preserved and partly restored 
 with perfect taste, the original furniture, pictures, and ornaments sup- 
 plemented by fit contemporary pieces. It enables one perfectly to con- 
 jure up an Image of the homely, large, and generous life of the President 
 before the war called him to the field, and after he had retired from all 
 cares of state. We fancy him sitting under the spacious eastern portico 
 with its eight tall columns, looking out over the broad landscape of forest 
 and river, or lying in his last sleep in the simple bed, with its dimity 
 coverlet, and then laid to rest in the rural tomb below the house, which 
 he ordered himself, and in which his descendants have insisted on keep- 
 ing his remains. General Grant lies beside the Hudson at New York 
 in a magnificent mausoleum palpably imitated from the tomb of Napo- 
 leon in the Invalides. How infinitely more fitting and more touching is 
 the Spartan simplicity of Washington's burial place an austere cell 
 within his own ancestral ground; yet not a morning's drive from the 
 splendid capital which the nation has named after its heroic founder 
 how much more fitting and more touching is this than is the imperial 
 mausoleum to which they have carried the bones of the tyrant who 
 ruined France ! It has been frequently attempted to remove the sar- 
 cophagus in which Washington lies from Mount Vernon, his home, to 
 place it under the dome of the Capitol. But as yet it has been wisely de- 
 cided to do nothing that can impair the unique legend which has gath- 
 ered round the memory of the Western Cincinnatus. 
 
 THE PRESIDENT AT WORK 1 
 BY ALBERT HALSTEAD 
 
 WHILE the Presidency is, of necessity, a laborious office, its cares may 
 be much lessened if the Secretary to the President is capable and diplo- 
 matic, able to relieve his chief of many burdens, a good counselor who 
 is broad and big enough mentally to make an efficient Cabinet officer. 
 President McKinley has such a man in George B. Cortelyou, who is not 
 only his secretary, but his trusted friend. Though a staunch Republican, 
 Mr. Cortelyou was not selected through political influence, but because 
 
 1 From the Independent, Sept., 1901. Reprinted in part, by permission. 
 
6 AMERICAN FEDERAL GOVERNMENT 
 
 he had proved himself efficient and trustworthy. In this difficult position 
 he makes friends rather than enemies for the President. He is the most 
 popular secretary who has served a President in a quarter of a century. 
 When it is remembered how many people he must disappoint each day ; 
 that he must tell the newspaper correspondents what they should know 
 without seeming to suppress information ; that he must remember every 
 public man he has ever met ; that he must be quick to grasp what each 
 caller wants and be fully informed on every subject, and that he must 
 be the buffer between the President and the public, it becomes apparent 
 that unusual talents are required of him. Mr. Cortelyou has earned 
 the President's confidence, and- he does more executive work than any 
 previous secretary. He has been so successful in systematizing the work 
 of his office that it is better and more promptly done than ever before. 
 
 The extent of President McKinley's correspondence can be appre- 
 ciated from the fact that four hundred thousand communications were 
 received and disposed of at the executive offices in his first term. Mr. 
 Cortelyou, with a force composed almost exclusively of stenographers, 
 who read each others' notes with facility, has dispensed with an immense 
 amount of unnecessary work. When a letter or document is received 
 a memorandum, to show what is to be done with it, is written in short- 
 hand in its upper left hand corner. This is to be kept on the paper until 
 it comes back to the secretary for approval. A letter is then written by 
 a clerk in conformity with the memorandum. Thus in most of the cor- 
 respondence there is no dictation. A " precedent index," prepared by 
 Secretary Cortelyou, covering practically every case that is likely to 
 arise, serves as a guide to the clerks in answering correspondence and 
 lessens the work materially. When a letter is of sufficient importance to 
 be filed in the executive offices the shorthand notes are preserved with 
 it, so the exact action taken can be learned at a glance. Every important 
 paper is briefed in typewriting, and when necessary this brief is filed 
 with the papers, giving an accurate record. Appreciating the impor- 
 tance of expediting business, Mr. Cortelyou prepared and had printed 
 a number of indorsement papers, which are attached to papers referred 
 to other departments. Consequently when a communication comes to 
 the White House that should go to the Department of State, a paster 
 referring it there is attached and, thus indorsed, it is forwarded. A rule 
 of the executive offices requires that the work of each desk be finished 
 on the day of its receipt. This prevents an accumulation of work and 
 keeps it up to date. 
 
 When the President makes a journey his secretary and several mem- 
 bers of the White House clerical force accompany him. All speeches 
 made on the trip are reported stenographically. Copies are furnished 
 the newspaper men with the party, and a special copy is preserved for 
 the office records. Telegraphers from the office force are also with the 
 President, and he is kept in constant touch with Washington. The 
 
THE PRESIDENT 7 
 
 "war room," where several telegraphers are always on duty, puts the 
 President in communication with every part of the world. Here cipher 
 despatches are received and he is kept advised of every important event. 
 With such a system, so much work and such a force there is no idling 
 in the executive offices. 
 
 President McKinley is rather an early riser. He breakfasts at eight 
 and reads the papers until shortly before ten, when he goes to the Cabinet 
 room, which he makes his private office. There on his desk he finds a 
 neat, typewritten paper, headed: "The President's Engagements," and 
 dated. Upon this is the name of each caller who has a specific engage- 
 ment, and a line stating the purpose of the visit. Mr. McKinley receives 
 his caller at the head of the Cabinet table, often, however, stepping for- 
 ward to meet him. A cordial handgrasp is given and he waits for the 
 visitor to state his business. He usually remains standing during the 
 interview, but if he sits down it is time to retire when he arises. On his 
 desk the President finds papers relating to the questions that are apt to 
 come up, as well as others that require immediate attention. His en- 
 gagements are subject to interruption by the arrival of a Cabinet officer, 
 a Senator or Representative. Each visitor is made to feel that he is wel- 
 come. More than any recent President he has caused his political oppo- 
 nents to find it a pleasure to call. At times he persuades them of the 
 desirability of something he wishes done, so it is often difficult to muster 
 an aggressive opposition to his policies among the minority. Bitterly 
 as he may be criticized by the minority, there is no one who is not on 
 friendly terms with him. 
 
 Of the many thousand letters addressed to him the President probably 
 has less than one per cent brought to his personal attention. They are 
 opened in the executive offices and those of importance selected. Mr. 
 Cortelyou signs, or has stamped with a fac-simile of his signature, every 
 official letter, except a few which the President may prefer to sign. Of 
 even the small percentage of letters laid before him he reads few. His 
 secretary states briefly the contents of each and he gives the necessary 
 directions or dictates an answer. 
 
 Since the beginning of his first administration President McKinley 
 has made very few personal appointments. Practically every selection 
 is now made upon the recommendation of a Senator; sometimes a 
 Representative's wish is influential, while a Cabinet officer's approval 
 is final. Generally the President is not personally acquainted with his 
 appointees, though it is not unusual for an applicant for office to be 
 presented to the Executive. This furnishes an opportunity to take his 
 measure. The President has become very adept in judging character. 
 The papers in a case are briefed at the department to which the office 
 is attached, showing the names of those indorsing a candidate and the 
 Secretary's view. These are then forwarded to the President and, if 
 the office is a local one, the appointment is made without delay. It is 
 
8 AMERICAN FEDERAL GOVERNMENT 
 
 remarkable that in so many instances the President has some knowl- 
 edge of the candidate, due to his own long public service and wide ac- 
 quaintance. Where the office to be filled is sought by men of different 
 States, each with strong political backing, the selection is more difficult. 
 The better man is then usually chosen. Small things will decide for or 
 against an applicant. Too many indorsements, showing an undue 
 anxiety for office, have proved fatal; too much importuning, until the 
 President is tired of the candidate's name, has killed many a man's 
 chances. Where there are no complications a vacancy is filled as soon as 
 it occurs. When claims conflict 'more time is required, but the Presi- 
 dent seldom delays long in making an appointment, desiring to be re- 
 lieved of the pressure and to get his difficulties behind him. 
 
 Seldom does a State paper go without the President's personality im- 
 pressed upon it. If he does not prepare it himself he generally inspires 
 it. When a Cabinet officer prepares a paper for him it is invariably 
 altered by the President in some phrase or expression, better to express 
 or qualify a meaning. When he makes a change it is usually an im- 
 provement, no matter who happened to prepare the document. Cabinet 
 officers say in private that they cannot write anything that will pass 
 muster with the President unless he makes some effective correction. 
 He is particularly careful with proclamations. Now, a Thanksgiving 
 proclamation may seem to be easily drafted, but it is a difficult task. 
 It ought to be original, but so many have been issued that originality 
 is almost impossible. Mr. McKinley begins early on such a task, and 
 he may lay the first or second draft aside for a week, but when it comes 
 forth it is a gem, emphasizing that for which the nation should be most 
 thankful. 
 
 In writing his messages President McKinley takes the greatest pains. 
 His methods of preparation vary somewhat each year. He may dictate 
 almost an entire message, or write most of it himself with pen or pencil. 
 The first draft simply begins the work. Long before it is written notes 
 have been made, thoughts jotted down and a list of subjects is prepared. 
 That is often changed. It is a guide to the message. Every note is so 
 marked as to be easily identified. The President may be in his room, 
 when an idea strikes him; it is noted; he may be walking or driving 
 and a phrase or epigram, exactly expressing some thought or expression 
 that can be advantageously used is not lost but is stored away for future 
 use. This is one of his methods in writing speeches. 
 
 About the third week in October the real work of getting a message 
 ready begins. Each subject is placed under a separate head. It is 
 copied on tinted slips, about four by eight inches, with broad spacing, 
 so as to leave ample room for alterations. Each slip is numbered, dated, 
 and its subject noted thus: "Tariff-Draft I, Page I, October iyth, 1900." 
 The notes from which this is copied are also marked so as to be identi- 
 fied ; then if the paper is lost it can be duplicated or identified. Where 
 
THE PRESIDENT 9 
 
 figures are used blanks are left in the slips for them ; afterward they are 
 secured at the Treasury Department, which is held responsible for their 
 accuracy. Every figure or statement is verified. If it concerns the 
 Treasury, it is proved by Secretary Gage through his Secretary. If a 
 mistake is made the Treasury Department is held to account. The 
 Department of State prepares for the Message an accurate account of 
 the conduct of foreign affairs for the year. It is not generally used in 
 the exact form in which it comes. It may be too long, or some subject 
 may require a more cautious or a more vigorous handling. Other de- 
 partments furnish live matter and the President takes what he wants, 
 but it is all rewritten and condensed. The President has been known 
 to use just three short paragraphs out of a statement ten thousand words 
 long, giving in detail the work of a department for a year, and even then 
 Congress did not suffer from a lack of information. A President's mes- 
 sage, at least a McKinley message, is not, then, a patchwork, but is a 
 product of much labor and painstaking care. 
 
 The President dictates very rapidly. He has a splendid vocabulary, 
 and is never at a loss for a word. This dictation, after being typewritten, 
 is most carefully revised. The material is then rearranged, if necessary, 
 and copied again. Then it goes to the printer, who, after it is set up, 
 takes a proof on unusually wide paper, so that at the sides, at the top, 
 and at the bottom, there is ample room for corrections. This revised 
 proof is then corrected by the printer and another proof made with 
 every revision there is a new proof. Sometimes portions of the message 
 are revised ten times. It is hard, patience-trying work, but the President 
 takes pains, weighs every word and studies every phrase with scrupu- 
 lous care, correcting or rewriting his copy until he is perfectly satisfied 
 with it. The greater part of the message stands, however, as at first 
 prepared. Ordinarily the first and last paragraphs are not written until 
 a day or two before the message goes to Congress, but when it is finished 
 it is a complete document in which every word has a specific purpose. 
 President McKinley's messages have varied from thirteen to twenty- 
 two thousand words, depending upon what must be said; but the ten- 
 dency is for messages to grow in length as more subjects must receive 
 treatment. 
 
 Considering the amount of work involved, ever-present and onerous 
 responsibilities that cannot be shifted, importunities for place, unceas- 
 ing demands upon his time and patience, difficult problems pressing for 
 solution, unending routine, criticisms, misunderstandings, and frequent 
 evidences of ingratitude, the President's salary is inadequate. This is 
 more evident when it is recalled that out of it the expenses for enter- 
 taining, that custom requires, must be paid. And yet these drawbacks 
 do not interfere with cultivation of the Presidential bee by every man 
 in the country, who would, by any stretch of the imagination, be re- 
 garded as eligible. 
 
II 
 
 POWERS OF THE EXECUTIVE 
 
 [There has recently been much discussion of the proper extent of the execu- 
 tive powers, especially in the national government, where there has taken place 
 a great expansion of executive functions. By many men this tendency has been 
 attacked as dangerous, while others see in it only that growth of governmental 
 , power which would naturally accompany the increase in national wealth and 
 population. The speeches of Senator Rayner and Representative Towne, 
 directing themselves against the expansion of the executive power, will serve to 
 bring out clearly the matter in controversy. Allowance being made in all 
 Congressional speeches for partisan bias, the attacks of the opposition will often 
 bring out most clearly new political developments. Senator Rayner's speech 
 was made in the debate upon the President's action with respect to San Domingo. 
 Mr. Towne was speaking on party politics during the discussion of the Con- 
 sular and Diplomatic Appropriation Bill. For a good general treatment of 
 this subject see Ford, " Rise and Growth of Am. Politics," 275.] 
 
 FROM A SPEECH OF SENATOR RAYNER 1 
 
 Now let us look for a moment at the result of the President's construc- 
 tion of his prerogative. A new sect of political scribes have commenced 
 to edit a revised edition of the Constitution. They call it the unwritten 
 Constitution. They are framing an apocryphal collection of epistles 
 and are promulgating their heresy from academic chairs and lecture 
 platforms. The President is the prophet of this new creed and the 
 Messiah of this strange hallucination. They do not propose to add any 
 additional chapters to the original manuscript, but they insist that under 
 the general-welfare clause, which is simply a repetition of the phrase 
 that was used in the Articles of Confederation, this Government has im- 
 plied powers not enunciated in the charter. They seem to forget that 
 Hamilton's proposition in the Constitutional Convention which pro- 
 vided that Congress was to have power to pass all laws whatsoever, 
 subject to the Executive veto, and the outline that he communicated to 
 Mr. Madison that the Legislature of the United States shall have power 
 to pass all laws which they shall judge necessary to the common defense 
 
 1 Congr. Record, Jan. 31, 1907. 
 10 
 
POWERS OF THE EXECUTIVE n 
 
 and welfare of the Union, were not even referred to the committee, and 
 that it was in the plan presented by Patterson and by Randolph and by 
 Pinckney that there was finally evolved that immortal scheme that can 
 never be recast under the plastic touch of political necromancers and 
 enchanters. 
 
 When they approach the executive department the implication be- 
 comes unlimited, and under the distribution of Executive power the 
 President can perform all functions not allotted to other branches of 
 the Government. 
 
 I know that Congress has enacted a great many laws enabling the 
 President to perform the duties confided to him, by the Constitution. 
 It has done this under Article I, section 8, subsection 18, of the Con- 
 stitution, which provides that 
 
 Congress shall have power ... to make all laws which shall be necessary 
 and proper for carrying into execution the foregoing powers and all other 
 powers vested by this Constitution in the Government of the United States, or 
 in any department or officer thereof. 
 
 Hamilton, in discussing this clause of the Constitution, said that 
 
 The declaration itself, though it may be chargeable with tautology or re- 
 dundancy, is at least perfectly harmless. 
 
 There has been a considerable diversity of opinion upon this point. 
 Chief Justice Marshall illumined the proposition in this manner. He 
 said: 
 
 Should Congress in the execution of its powers adopt measures which are 
 prohibited by the Constitution, or should Congress, under the pretext of execut- 
 ing its powers, pass laws for the accomplishment of objects not entrusted to the 
 Government, it would become the painful duty of this tribunal, should a case 
 requiring such a decision come before it, to say that such an act was not the 
 law of the land. But where the law is not prohibited, and is really calculated to 
 effect any of the objects entrusted to the Government, to undertake here to 
 inquire into the degree of its necessity would be to pass the line which circum- 
 scribes the judicial department, and to tread on legislative ground. This court 
 disclaims all pretensions to such a power. 
 
 And there I stand. No one at this day would demand a literal con- 
 struction of the Constitution which would deprive the President of per- 
 forming functions necessary to carry out the powers that are granted to 
 him; on the contrary, he has the broadest field of discretion within 
 which to adopt and exercise whatever methods are proper for this pur- 
 pose. What I insist upon and contend for is that he must never abuse 
 his constitutional prerogative by invading the domain of other depart- 
 ments, and must never, under color of title, assume authority upon sub- 
 
12 AMERICAN FEDERAL GOVERNMENT 
 
 jects that have no relation to his office, and do not in the remotest de- 
 gree appertain to the performance of his executive functions. 
 
 We know that every word of the Constitution is written. We know 
 that there is not a line or letter that anyone has the right to insert. The 
 Supreme Court may interpret, it may construe according to the spirit, 
 but it can never add to the text. The Supreme Court may hold that a 
 given act of the Executive is not an interference with legislative func- 
 tions. It may broaden the right of the President to negotiate a treaty, 
 but if it were ever to decide that the President had a right to conclude 
 a treaty without the constitutional ratification its adjudication would 
 lead either to impeachment or revolution. Every judgment, decree, 
 and order that it renders must be under, and not above and beyond, 
 the Constitution. It can set aside an act of Congress, but it can not 
 abridge or extend the limits of the charter. What the Supreme Court 
 can not do by expression the Executive ought not to be allowed to do 
 by implication. 
 
 The President has the right to veto any enactment that we may pass. 
 He has the right, if he chooses to do so, to advise with members in ref- 
 erence to legislation, and to make any suggestions that he may deem 
 proper. This is not a constitutional prerogative, and its propriety has 
 been questioned and assailed, but I am willing within proper bounds 
 to regard it as an incident of his executive functions. One thing he has 
 no right to do, and that is to use the vast public patronage at his dis- 
 posal to compel obedience to his views. Another thing he has no right 
 to do, and that is to make compacts with the Speaker of the House of 
 Representatives or its committees, to accomplish the legislation that he 
 desires, or prevent legislation. And still another thing he has no right 
 to do, and that is beyond his messages, in which he is given the right at 
 any time to suggest any measure he may deem proper or necessary, to 
 interfere with legislation and to force Congress either to adopt his recom- 
 mendations or if it rejects them to bring about a breach between the 
 legislative and executive departments that is detrimental to the best 
 interests of the country; that constitutes an assumption of dictatorial 
 power which the people of this Republic, in the course of time, will not 
 submit to, I care not how great the achievement or how much it may 
 conduce to their progress and welfare, or what benefit, advantage, or 
 prosperity we may derive from its accomplishment. 
 
 In order to show that I have not at all exaggerated the claims and 
 pretensions of this new school of Executive construction, I want now to 
 refer to some extracts from the address of an eminent lawyer, 1 deliv- 
 ered before the New York State Bar Association, in which the doctrines 
 of this creed are announced in such unmistakable and unambiguous 
 terms that we are no longer left in any doubt or uncertainty as to the 
 evolution and development that we are undergoing upon the cardinal 
 
 1 Chas. A. Gardiner, " The Constitutional Power of the President," 1905. 
 
POWERS OF THE EXECUTIVE 13 
 
 principles of republican government. If the propositions that he main- 
 tains reflect the sentiment of the people, then it is safe to say that the 
 Constitution is a thing of shreds and patches, and the Government that 
 it created is as much of a monarchical institution as the Government 
 of Great Britain, or of any other government, with the exception per- 
 haps of those of Russia and Turkey, upon the Continent of Europe. 
 
 Listen now for a moment to some of the passages from this delightful 
 dissertation upon the Executive prerogative. 
 
 1. The President is the chief invention of the Constitution, a personal magis- 
 trate for a republic. . . . The conversion of an abstract sovereignty into a 
 concrete sovereign. 
 
 2. The executive and magisterial attributes of the Government being in- 
 vested in the President, it follows inevitably that the President must possess 
 the executive and magisterial attributes of the people, and that the people retain 
 no undelegated attributes or passive sovereignties under the tenth amendment 
 or otherwise. 
 
 3. If Southern States abridge the privileges and immunities of Federal negro 
 citizens, the President, on his own initiative, can and should prohibit such 
 action, whether Congress legislates on the subject or not. If Southern States 
 deny the right of suffrage to Federal negro citizens on the ground of race or 
 color, the President, without waiting for penalizing statutes, can and should 
 use every means, civil, military, or both, to stop it. 
 
 4. To execute all his omnipotent functions the people have given the Presi- 
 dent absolute control of an irresistible physical force, the Army and Navy of 
 80,000,000 people. 
 
 5. Such are the powers of the President, express and implied. They are 
 all plenary. The office and power to execute it are in unqualified language. 
 The power to execute the Constitution is without limitation or restriction. 
 The power to administer the executive sovereignties is complete, and the implied 
 powers are coextensive with the express grants. Hence all the powers of the 
 President are unqualified, plenary, and unlimited. 
 
 And now for some of the thrilling climaxes of this remarkable 
 production. 
 
 Thus my ideal of the President coincides with the ideal of the people, a 
 majestic constitutional figure uncontrolled by Congress, unrestrained by the 
 courts, vested with plenary constitutional power and absolute constitutional 
 discretion. 
 
 How, then, is it possible for the President to exceed his express constitutional 
 authority? What Federal act can he perform that he may not claim is in execu- 
 tion of his office and its attributes, of the Constitution and the laws, or of his 
 executive powers? 
 
 Majesty is another attribute. It inheres in every sovereign, be he Czar or 
 President. Imperium majestasque populi Romani. 
 
 The President is invested with an office and the whole of it .... Who hath 
 fixed its bounds? Who hath said, Thus far and no farther? No one has 
 determined its illimitable extent; no one can determine it so long as the 
 Republic endures. 
 
14 AMERICAN FEDERAL GOVERNMENT 
 
 And this matchless conglomeration of incoherent absurdities was de- 
 livered, Mr. President, before an assemblage, every man of whom was 
 probably conversant with the authorities and decisions that have con- 
 sistently placed the brand of judicial condemnation upon this frenzied 
 exposition of executive sovereignty. 
 
 This demonstrates, Mr. President, that the entire trouble arises from 
 the fact that the Constitution is being perverted upon the grant of ex- 
 ecutive power. Article II of the Constitution says the executive power 
 shall be vested in a President of the United States of America. This 
 does not vest executive power in any greater degree than Article I vests 
 legislative power when it says that all legislative powers herein granted 
 shall be vested in a Congress of the United States, or than Article III 
 vests judicial power except in the Supreme Court of the United States. 
 
 I plant myself upon the proposition that the President derives no au- 
 thority whatever from this clause. Nearly three-quarters of a century 
 ago the greatest political philosophers who ever illustrated the pages of 
 American history settled before this body this contention so that it has 
 been considered a constitutional axiom until the present day. This 
 provision of the Constitution simply relates to the distribution of gov- 
 ernmental functions and can not be considered in the light of a grant. 
 
 As luminous a constitutional argument as Webster ever made was 
 upon this precise point. The President must derive his authority from 
 the subsequent provisions of the instrument that contain the grant, and 
 the entire grant of power, and which are not in the slightest degree en- 
 larged by the clause that I have quoted. His school of disciples evidently 
 think that I am wrong upon this point and are bewildering* the mind of 
 the rising generation upon this proposition. If we were to pass a law 
 here to-day reposing in the President a governmental function beyond 
 the specifications of the Constitution and not necessary for the exercise 
 of any power contained in the specifications, the enactment would be 
 void. Now, if the law would be void, what power has the President 
 without the sanction of law to trespass beyond the confines of his prerog- 
 ative ? The President is either the executive officer of the Government, 
 vested with unlimited executive functions, or he is the Executive acting 
 under special and delegated powers. Which is he? Is he the general 
 executive agent of the people, or their immediate representative, as was 
 once claimed by one of his predecessors who also had an erroneous con- 
 ception of his prerogative, or is he a special agent who shall look to his 
 commission and credentials for his authority? There are unlimited 
 executive acts performed by monarchical rulers, the exercise of which 
 the framers of the Constitution never intended to repose in the President, 
 and therefore they circumscribed his functions. 
 
 I am aware that persons who are not familiar with the source of or- 
 ganic power are losing sight of fundamental distinctions and are look- 
 ing to results and not instrumentalities. I am not surprised at this view, 
 
POWERS OF THE EXECUTIVE 15 
 
 but I am surprised that any men occupying the highest positions in the 
 Government and instructors and text writers upon constitutional law 
 should at this hour justify a doctrine that strikes down at its very altar 
 the oracle of our faith and substitutes for it a worship that is only tem- 
 porary and that can not possibly continue and endure. The day will 
 come, Mr. President, I predict it it is bound to come when this 
 illusion will disappear, when the people will retrace their steps, and as 
 they flee from the pagan temple they will bear upon their shoulders the 
 ark of the covenant and the scroll of the ancient law. 
 
 FROM A SPEECH OF REPRESENTATIVE TOWNE l 
 
 It is, I take it, well within the province of a member of this popular 
 representative branch of the National Legislature to examine and, 
 within the limits of the decencies and proprieties of parliamentary dis- 
 cussion, to criticise the official conduct of the President of the United 
 States. The independence of the legislative branch of the Government 
 and the responsibilities of the Executive Office justify and require this 
 liberty of comment. 
 
 It is, in my deliberate opinion, a very serious matter, not only as re- 
 lated to pending and immediately prospective public questions, but as 
 concerning the development of our institutions and the preservation of 
 that wise balance of power among the coordinate branches of this Gov- 
 ernment to which so much importance was originally attached, that the 
 present Chief Executive of the country is disposed to magnify and to 
 personalize his great office and to exercise authority beyond not only 
 the traditional but the legal and constitutional limitations of his place. 
 [Applause from the Democratic side.] This is not the time or the occa- 
 sion, sir, for anybody, and certainly not for one no more competent to 
 the task than I can claim to be, to attempt anything like an analysis and 
 final judgment upon the character and achievements of Theodore Roose- 
 velt, as to whom future historians, as has been the case with his con- 
 temporaries, will undoubtedly differ radically among themselves. There 
 will be panegyrists and detractors hereafter, as there are eulogists and 
 faultfinders now. I shall attempt no ultimate judgment. I shall briefly, 
 however, comment upon certain aspects of his character, and upon cer- 
 tain of his official performances, for the purpose of drawing what seems 
 to me to be necessary and helpful conclusions. There are many things 
 in the character and endowments of that remarkable man that I have 
 admired. There are also, on the other hand, many things that, as a 
 representative of the people in this great body, I feel justified in pro- 
 nouncing to be of a nature to unfit him for a judicious, careful, just, and 
 deliberate discharge of high executive functions, and under the impul- 
 
 1 Congr. Record, June n, 1906. 
 
16 AMERICAN FEDERAL GOVERNMENT 
 
 sion of which he has time and again gone beyond the legitimate bound- 
 aries of his authority. [Applause on the Democratic side.] 
 
 This tendency of the Chief Executive is a matter of common knowledge 
 among members of both Houses of Congress and the representatives of 
 the newspaper press who are stationed at the capital. It is a serious 
 misfortune, as I view it, that the unusual vogue enjoyed by the President 
 imposes upon Senators, Representatives, and correspondents a reticence 
 in regard to these excesses of Executive authority that would not under 
 ordinary conditions be observed. In my opinion we ought to be honest 
 with the people of the United States, and tell them frankly what every- 
 body in this House knows, what every member of the Senate knows, 
 and what everybody in the press galleries knows, that the President of 
 the United States endeavors, so far as an almost phenomenal activity 
 and endurance will permit, to embrace within himself and to exercise 
 at once almost all of the powers and prerogatives of the three coordinate 
 branches of this Government. Moreover, he seems to regard the high 
 and solemn duties of his office not only as in the nature of personal assets 
 of his own, but as appropriate occasion for the exercise of an indeliberate 
 and whimsical disposition apparently as little regardful of the momen- 
 tousness and significance of his action as that of a boy occupied with 
 his toys. 
 
 The reorganization of the Army has emphasized the military aspects 
 of the Presidency. The President's relation to the Army is not much 
 different from that sustained by the Emperor William to the German 
 army. It is notorious that promotions during the present administra- 
 tion have been made in a manner so harmful to the discipline of the 
 service, and to so great a degree upon grounds of favoritism and per- 
 sonal preference, as to have become the subject of repeated and solicitous 
 conference among men having knowledge of the situation and concerned 
 with the preservation of the morale of the Army. The diplomatic ser- 
 vice has fallen under the same influence. The Secretary of State, al- 
 though himself a man of great ability and strong personality, has had 
 many of his functions shorn. The President's relation to the general 
 body of the service is much more intimate and direct than heretofore, 
 and we have recently seen how, for the first time in American diplomacy, 
 the President has referred to a high representative of the United States 
 at a foreign court as "my ambassador." A similar personal dominance 
 is asserted in the province of every Cabinet office, and everybody re- 
 members the promulgation of the famous "order of silence" by which 
 those high functionaries were forbidden to talk to reporters about their 
 business, and directed to leave a monopoly of publicity to the head of 
 the Government. 
 
 The civil-service rules have been made conveniently pliant to the 
 personal and political exigencies of the Chief Executive, and, although 
 in former days that gentleman filled a great place in the movement for 
 
POWERS OF THE EXECUTIVE 17 
 
 civil-service reform, the records show that the rules have been set aside 
 during his administration about four times as often as they were during 
 his predecessor's term. The most important considerations of public 
 policy are constantly and customarily made subservient to the personal 
 feelings of the Chief Magistrate. The evidence, for example, to which 
 everybody had access, disclosed that one of his Cabinet officers, some 
 time since resigned, had been engaged, while occupying a high official 
 position with a great railroad system, in repeated violations of the inter- 
 state-commerce law ; but the fact of his close official and personal rela- 
 tion to the President not only relieved him from prosecution or censure, 
 but actually won for him an official certificate of innocence in direct 
 contradiction of even his own confession. 
 
 ******** 
 
 In February, 1905, Admiral Walker testified that he and other members 
 of the Panama Canal Commission, on the President's express authoriza- 
 tion, charged and received, in addition to their regular compensation, 
 director's fees for attending the meetings of the board of directors of 
 the Panama Railroad. Expenses far beyond those that have scandal- 
 ized former administrations are incurred by this administration with 
 a gay and easy nonchalance seemingly justified by the entire lack of 
 subsequent public criticism. Whereas wide and unfavorable comment 
 was made upon one of his predecessors for too frequent use of one Gov- 
 ernment vessel, very little is now said about the employment by the 
 President of the United States of the Sylph, the Dolphin, and the May- 
 flower together. White House repairs are undertaken and carried out 
 apparently with as little hesitancy as that with which a prosperous 
 farmer would build a wood shed; and $750,000 is spent in alleged in- 
 crease of the facilities and attractions of the Executive Mansion, where 
 no living architect can possibly see where there was opportunity to dis- 
 burse more than a seventh of that sum to produce the very unhandsome 
 results. Some of these matters to which I have referred thus cursorily 
 may seem somewhat trivial. The catalogue is not exhaustive even of 
 important considerations. I cite these few only as illustrative of that 
 persistent and irrepressible tendency to personalize his office, to regard 
 it as an appendage to his will, which characterizes the present occupant 
 of that great place. 
 
 It is, moreover, inevitable that a man possessing the characteristics 
 of the President should trench upon the traditional and constitutional 
 restrictions of his authority. This natural inclination is unfortunately 
 reenforced by certain considerations growing out of the political condi- 
 tions of our time. In the first place, there is a necessary reaction upon 
 the methods of our Executive Department by the unavoidable secrecy 
 and arbitrariness with which the affairs of our colonial possessions are 
 conducted. It is yet too soon for us fully to appreciate the irreparable 
 damage done to our peculiar institutions by the rash assumption of the 
 
i8 AMERICAN FEDERAL GOVERNMENT 
 
 dangers of colonial government. From the commencement of the de- 
 parture in our experience I have felt the deepest concern for its effect 
 upon that constitutional balance among the different departments of 
 the Government upon which our elder statesmen placed so much stress, 
 and upon whose permanent preservation, as I believe, rests to a very 
 large degree the perpetuity of civil liberty in this country. In the course 
 of a speech on our Philippine policy in the Senate of the United States, 
 on the 28th of January, 1901, I used the following language: 
 
 This policy favors the growth of the executive department of the Government 
 at the expense of the other, and is opposed to democratic principles. It involves 
 singleness of authority, celerity of action, secrecy of purpose, irresponsibility; 
 all contrary to the necessary methods of self-government. It begets a super- 
 ficial admiration for "strong government," and "simple government," which 
 are absolutely inconsistent with liberty. Let me again quote words of wisdom 
 from the speech of Daniel Webster, already cited: 
 
 "Nothing is more deceptive or more dangerous than the pretense of a desire 
 to simplify government. The simplest governments are despotisms; the next 
 simplest, limited monarchies; but all republics, all governments of law, must 
 impose numerous limitations and qualifications of authority, and give many 
 positive and many qualified rights. In other words, they must be subject to 
 rule and regulation. This is the very essence of free political institutions. 
 
 "The spirit of liberty is, indeed, a bold and fearless spirit; but it is also a 
 sharp-sighted spirit; it is a cautious, sagacious, discriminating, far-seeing 
 intelligence; it is jealous of encroachment, jealous of power, jealous of man. 
 It demands checks ; it seeks for guards ; it insists on securities ; it intrenches 
 itself behind strong defenses, and fortifies itself with all possible care against 
 the assaults of ambition and passion. 
 
 "It does not trust the amiable weaknesses of human nature, and, therefore, 
 it will not permit power to overstep its prescribed limits, though benevolence, 
 good intent, and patriotic purpose come along with it. Neither does it satisfy 
 itself with flashy and temporary resistance to illegal authority. Far otherwise. 
 It seeks for duration and permanence. It looks before and after; and, building 
 on the experience of ages which are past, it labors diligently for the benefit of 
 ages to come. This is the nature of constitutional liberty, and this is our liberty, 
 if we will rightly understand and preserve it. Every free government is neces- 
 sarily complicated, because all such governments establish restraints, as well 
 on the power of government itself as on that of individuals." 
 
 A president can not be at one and the same time a constitutional chief magis- 
 trate and an autocrat a President in America, with imperial powers in the 
 Orient. 
 
 There is no question in my mind, sir, that the reaction of our absolute 
 government in our distant possessions is partly responsible for the ten- 
 dency toward Executive excess, at which all close students of our insti- 
 tutions are now gravely concerned. But there is another consideration 
 which reenforces the one just mentioned and the natural characteristics 
 of the President. I refer to the phenomenal popular majority by which 
 the present Chief Magistrate was chosen in the election of 1904. The 
 
POWERS OF THE EXECUTIVE 19 
 
 country had full notice of the personality of the Republican candidate, 
 and was told from every Democratic stump what would be the inevitable 
 tendency of the expression of that personality if it should receive an 
 emphatic electoral indorsement. The recipient of that indorsement can, 
 in one sense, hardly be blamed if he considers the verdict so rendered 
 with such emphasis and after definite notice, as in the nature of a license 
 to exercise his predispositions to the utmost. The result has certainly 
 justified the prognostications. It is only fair to say, however, that these 
 actions since the election of 1904 have merely been of a piece with those 
 that characterized the Presidency of the present incumbent in his first 
 fractional term. 
 
 Without attempting a numerous recitation, to say nothing of an ex- 
 haustive one, of the matters that may readily be cited in illustration of 
 the proposition I am now considering, I shall mention a few which are 
 of common knowledge. 
 
 Everybody remembers the famous "pension order" whereby, while 
 a bill was pending in Congress concerning a classification of claimants 
 before the Pension Office, an Executive order, impatient of the delay 
 by Congress, undertook to perform the function of a legislative act. 
 There has been a practically constant interference from the White House 
 with legislative procedure at the Capitol. It will be recalled how the 
 Irrigation Bill was threatened with a veto unless it should contain cer- 
 tain provisions agreeable to the Executive. The great struggle over the 
 Cuban tariff, the recent controversy about statehood for Indian Terri- 
 tory and Oklahoma and Arizona and New Mexico, and over the pro- 
 visions of the Railroad Rate Bill are a few among many matters in 
 regard to which the Executive initiative and constant participation in all 
 the complications that attend the progress of a bill from its inception to 
 its passage, might well raise a doubt whether there is any such thing 
 now in our system of government as an independent responsible legisla- 
 tive branch. 
 
 The Senate of the United States, in regard to those semi-Executive 
 functions vested in it by the Constitution, has been treated with similar 
 masterfulness. Some fifteen months ago the Arbitration Treaties were 
 withdrawn from the Senate by the President because that body insisted 
 upon the use of the word " treaty" instead of " agreement," thus refus- 
 ing to countenance the new view that there are certain permanent in- 
 ternational compacts into which the President may enter on behalf of 
 this country without the participation of the Senate. In the case of 
 the Santo Domingo treaty an attempt was made by the President of the 
 United States to make a treaty with a foreign government without the 
 action of the Senate, which treaty, moreover, involved a new departure 
 in our diplomacy and the adoption of what the President has called a 
 "development" of the Monroe doctrine potentially fraught with the 
 most momentous consequences to this country. 
 
20 AMERICAN FEDERAL GOVERNMENT 
 
 It seems to me that this is a good connection in which to emphasize 
 the fact that this new doctrine of the responsibility of the United States 
 for the debts and defaults of the South American States, involving on 
 our part the assumption of the duties of constable for the nations of 
 Europe, ought, whateyer its merits or demerits, to stand upon its own 
 pretentions and not be permitted to shelter itself behind the designation 
 of "Monroe doctrine." 
 
 The Monroe doctrine, properly so called, is a part of the settled policy 
 of this Government, and is very dear to the people of this country. A 
 novel proposition may frequently find acceptance through its success in 
 borrowing the label of one already generally entertained. Whether this 
 new international theory be right or wrong, it ought to stand or fall upon 
 its own claims. It certainly is not "Monroe doctrine." It is just as 
 clearly "Roosevelt doctrine." The original Monroe doctrine of 1823 is 
 very easy to understand. As affirmed by Adams and Monroe, it involved 
 three things, i. The American continents were not to be subject to 
 colonization by any European power. 2. We could not permit any in- 
 tervention by any European power in the affairs of the South American 
 Republics "for the purpose of oppressing them or controlling in any 
 other manner their destiny." 3. We could not permit the extension by 
 the allied powers that is, the members of the " Holy Alliance," formed 
 by the sovereigns of Russia, Austria, and Prussia after the congress of 
 Vienna in 1815 of their political system to any portion of North or 
 South America. 
 
 When, about 1845, President Polk practically took the position that 
 it was the duty of the United States to annex adjacent territory in order 
 to prevent its annexation by European countries; and when, in 1881, 
 Mr. Elaine held, in substance, that the United States was the sole guar- 
 dian of transit across the Isthmus of Panama and the arbiter of disputes 
 between the Latin-American States; and when, in 1895, Mr. Olney 
 announced that the United States is sovereign in America, that the 
 British colonies in America are temporary, and that these propositions 
 are a part of international law, the prestige of the Monroe doctrine was 
 invoked in favor of these various formulations of our international policy. 
 Yet nothing is clearer than that all these involved distinct variations 
 from the Monroe doctrine. Undoubtedly considerations based on 
 national advantage, duty, and safety could be advanced on the one side 
 and on the other in each of these cases. But that should have been the 
 only method of argument. To introduce the Monroe doctrine was only 
 to confuse both the nature of that doctrine and that of the new problems. 
 The same is true in regard to the Roosevelt doctrine of our general 
 guardianship of the countries to the south of us with responsibilities to 
 their creditors. Whether right or wrong, and I decidedly believe it to be 
 wrong, it is certainly new, and it ought to be examined on its merits with- 
 out receiving any shelter or warrant whatever from the Monroe doctrine. 
 
POWERS OF THE EXECUTIVE 21 
 
 This tendency of the Executive, upon which I have been briefly com- 
 menting, has involved us in grave national wrong. The conduct of this 
 Government under the lead of the President of the United States in 
 regard to the means by which the independence of Panama was recog- 
 nized and the arrangements were made for the construction of the 
 Panama Canal is, in my opinion, an idelible stain upon the fair fame 
 and good faith of this Government. In order that the object had in 
 view by the President should be achieved it was necessary to override 
 a statute of the United States, to break a solemn treaty with a foreign 
 government, and to commit an act of war, and without authority of 
 Congress, against a people with whom we were at peace. The law 
 known as the Spooner Act expressly directed the President of the United 
 States to proceed with the construction of the Nicaragua Canal if, within 
 a reasonable time, he could not secure the consent of the Government 
 of the United States of Colombia to the treaty providing for the con- 
 struction of the canal across the Isthmus of Panama. That consent he 
 did not obtain. 
 
 It is beside the question to contend that the United States of Colombia 
 ought to have ratified the treaty. It is an independent government and 
 had a right to reject the treaty if it chose to without giving us any reason 
 whatever. But, upon the rejection of the treaty, instead of proceeding 
 to carry out the plain and specific direction of the act of Congress to 
 construct the Nicaragua Canal, the President of the United States recog- 
 nized the independence of Panama, a revolted province of the United 
 States of Colombia, used the armed forces of the United States to pre- 
 vent Colombia from reestablishing her authority over that territory, 
 despite our solemn engagement in the treaty of 1846 to respect the in- 
 tegrity of her domain; which was unquestionably an act of war upon 
 our part, made a treaty with the new State, and proceeded with what 
 difficulties and scandals the world is aware, to the present stage of the 
 canal construction across the Isthmus. There have not been wanting 
 grave insinuations touching our complicity in the revolution of Panama 
 against Colombia. Certainly the appearance of our gunboats at a time 
 and place when and where Bunau Varilla had promised the revolu- 
 tionists they should appear, and their effectual action in defeating any 
 attempt by Colombia to recover her province, are circumstances strongly 
 confirmatory of the suspicion ; nor does the suspicion involve, if justified, 
 any greater dishonor on our part than that which already attaches to 
 us from the admitted circumstances. 
 
 Not long ago, in a remarkable special message to Congress, the Presi- 
 dent strayed into the judicial reservations of the Constitution by bring- 
 ing to book a Federal judge (Humphrey) for an opinion rendered by 
 him in the ordinary discharge of his judicial functions, an unprecedented 
 proceeding that would have jarred the credulity of "the fathers." 
 
22 AMERICAN FEDERAL GOVERNMENT 
 
 DEBATE ON THE WAR POWER 1 
 
 [The President's action in dismissing a company of colored soldiers led to a 
 debate in the Senate in which the power of the president as commander in chief 
 of the army was discussed. The main point at issue was the relation of the 
 power of Congress "to make rules for the government and regulation of the land 
 and naval forces," to the functions and powers of the president as commander 
 in chief. The respective arguments are brought out clearly in the following 
 extracts from the debate between Senator Spooner and Senator Bacon.] 
 
 MR. SPOONER. Mr. President, my differences with the distinguished 
 Senator from Ohio are upon the legal phases of this matter mainly, and 
 with many of the principles of law which he announces I am entirely in 
 accord with him. That this is a country of law, that no Federal official 
 can be above the Constitution, that the President can lawfully exercise 
 no power which he does not derive from that instrument or the laws of 
 Congress enacted in pursuance of it, of course all must admit. That 
 we may not in some circumstances have what would be in other circum- 
 stances autocratic power in this country I can not say, because in its 
 very nature the discipline and conduct of an army requires more or less 
 the summary exercise of power. No one knows that better than .the 
 chivalrous and gallant soldier who introduced and advocates this resolu- 
 tion. The very idea of command, which can not be dissociated from a 
 commander in chief, involves more or less autocratic power. Under 
 our system many safeguards have been thrown around its exercise. 
 
 I am not opposing the resolution of investigation of the Brownsville 
 affair, properly worded. I do object, however, to the resolution as in- 
 troduced by the Senator from Ohio and now pending. The inevitable 
 trend of the debate on Saturday and to-day has strengthened me in my 
 objection to it. It has been discussed rather as a case in court than as 
 a legislative function. If the President has, as the Senator from South 
 Carolina, and perhaps others, seem to think, exercised a power which 
 under the Constitution and the laws of the country he does not possess, 
 and in a manner greatly to the prejudice of citizens, it is quite clear to 
 me that the Senate ought not to enter upon an investigation of it. Even 
 if a President abuses the power which he possesses or exercises it with 
 bad motive, I should greatly deplore an attempt by the Senate to in- 
 vestigate it or pass judgment upon it. 
 
 In our system the powers of government are distributed among three 
 branches, each coordinate and independent of the other, neither of which 
 is responsible to the other in any manner, except as prescribed by the 
 Constitution. The President is not responsible under the Constitution 
 to the Senate or to the House of Representatives or to both. It is espe- 
 cially not the function of the Senate to investigate and determine whether 
 the President has usurped power or abused a power which he possesses, 
 
 1 Congr. Record, Jan. 19, 1907. 
 
POWERS OF THE EXECUTIVE 23 
 
 because under the Constitution the Senate sustains a peculiar relation 
 to the President. Of course it is one of the legislative bodies of the 
 Congress. It is equal in power, in respect of legislation, to the other, 
 with one exception. It is not permitted to originate revenue bills. But, 
 Mr. President, peculiar functions have been conferred upon the House 
 as to some matters, and upon the House alone, and also upon the Senate 
 to the exclusion of the House. None of them are legislative functions. 
 The Senate participates in the making of the laws as a legislative body. 
 It participates, with the President, in appointments, which is not a 
 legislative function. It participates in the exercise of the treaty-making 
 power. But, Mr. President, its most solemn function under the Con- 
 stitution is a judicial one. Section 3 of the first article provides : 
 
 The Senate shall have the sole power to try all impeachments. When sitting 
 for that purpose they shall be on oath or affirmation. 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. 
 
 Section 2 of the same article provides that the House "shall have the 
 sole power of impeachment." The power of impeachment is as plainly 
 and exclusively vested in the House of Representatives as is the power 
 io4ry impeachments vested in the Senate. Investigations to determine 
 or which will determine whether an Executive act is violative of the 
 Constitution and beyond the power of a President, or whether, if within 
 his power, it has been abused, if that is the object of the inquiry, surely 
 is properly with the impeaching body, and should not be exercised by 
 the body which alone can constitutionally try and determine. Of course 
 this is an abstraction as to this case and as to this President, but to my 
 mind (I have had occasion to urge it here before) it is a principle which 
 ought not to be disregarded by the Senate, for it would be a horrid thing 
 if when articles of impeachment of an officer reach this Chamber they 
 should be laid before a court which in another capacity, having investi- 
 gated and considered the same matter, had prejudged it. 
 
 Mr. President, so much for that. If a President, whether in his capac- 
 ity of Chief Executive or as Commander in Chief, has performed an act 
 or made an order which was within his authority to make, I can not see 
 that it is competent for this body or the other, or both, to take testimony 
 as to the wisdom of that executed act, upon which to determine whether 
 it will by legislative act set it aside. The Congress, if dissatisfied, may 
 withdraw the power or place additional limitations upon its exercise 
 for the future, but I do not see that it can by legislation render void the 
 act. When a power is possessed by the President or an officer of the 
 Government to do an act in a defined contingency or in his discretion, 
 his decision as to the existence of the contingency or that circumstances 
 are such as to demand the performance of the act is conclusive, and the 
 act can not be impeached or overturned by the Congress because in its 
 
24 AMERICAN FEDERAL GOVERNMENT 
 
 opinion the exigency had not arisen or that the power was unwisely ex- 
 ercised. The general rule is well stated by the Supreme Court in the 
 case of Martin v. Mott (12 Wheat., 19) thus: 
 
 Whenever a statute gives a discretionary power to any person, to be exercised 
 by him upon his own opinion of certain facts, it is a sound rule of construction 
 that the statute constitutes him the sole and exclusive judge of the existence of 
 those facts. And in the present case we are all of opinion that such is the true 
 construction of the act of 1795. 
 
 Which authorized the President "whenever the United States shall 
 be invaded, or be in imminent danger of invasion from any foreign 
 nation, etc., it shall be lawful for the President of the United States 
 to call forth such number of the militia of the State or States most in 
 danger," etc. 
 
 It is no answer that such a power may be abused, for there is no power which 
 is not susceptible of abuse. The remedy for this, as well as for all other official 
 misconduct, if it should occur, is to be found in the Constitution itself. In a 
 free government the danger must be remote, since in addition to the high 
 qualities which the executive must be presumed to possess of public virtue and 
 honest devotion to the public interests, the frequency of elections, and the 
 watchfulness of the representatives of the nation carry with them all the checks 
 which can be useful to guard against usurpation or wanton tyranny. 
 
 The principle is peculiarly applicable to a lawful order made by the 
 President as Commander in Chief of the Army and Navy. 
 
 I am assuming now that the President possessed the lawful authority 
 to make the order discharging without honor the enlisted men of the 
 battalion of the Twenty-fifth Infantry at Brownsville. The fact that 
 he made such an order does not need investigation. The reports and 
 papers upon which he based it are in the possession of the Senate, and 
 the inquiry into the 'discharge, and it seems to be limited to that, is as 
 to the wisdom and justness of the order, and the adequacy of the in- 
 formation upon which the President based it ; in other words, as it has 
 been put, for the purpose of affording to the enlisted men discharged 
 a day in court. 
 
 Aside from the general principle, which is sufficient, I deny that under 
 the Constitution the Congress has any such relation to the Army as 
 permits it to set aside an order lawfully made by the President as Com- 
 mander in Chief. The provisions of the Constitution which bear upon 
 the subject are few and simple. The Senator from Ohio, who is a very 
 able lawyer, and has said all that can be said by anyone, I think, in 
 support of his contentions, read them. 
 
 Congress is given power to declare war, which necessitates the use 
 of an army or navy, or both. Congress is given power to raise and sup- 
 port armies, with the limitation that "no appropriation of money to 
 
POWERS OF THE EXECUTIVE 25 
 
 that use shall be for a longer term than two years." Congress is given 
 power in addition to make "rules for the government and regulation oj 
 the land and naval forces" The Constitution provides, in section i of 
 Article II, that "the executive power shall be vested in a President of 
 the United States," and in section 2 that "the President shall be Com- 
 mander in Chief of the Army and Navy of the United States, and of the 
 militia of the several States when called into actual service of the United 
 States." 
 
 The provisions quoted from the Constitution as to the power of Con- 
 gress in respect to the Army and Navy are logical and plain. They 
 admirably express the manifest purpose of the framers of the instrument. 
 I will consider them later. 
 
 The Constitution has left entirely without definition the scope of the 
 power of the President as Commander in Chief, and the measure of the 
 power was left to be sought elsewhere. I can not agree that the sole 
 Constitutional power of the President is to command the Army in time 
 of war and conduct campaigns. That his power is vastly greater in time 
 of war than in time of peace has been decided, and is not open to dis- 
 pute. It is largely to be sought in the law of nations and the rules of 
 civilized warfare. But an army and a navy must be commanded in 
 time of peace, as well -as in time of war, else neither would be fit for war. 
 What the measure and scope of this power is in time of peace is not 
 necessary at this time to discuss. That it is the power to command, 
 with all that is inherent in the function and necessary to its exercise, 
 can not well be disputed, and that whatever the power is is conferred 
 by the Constitution and can not be interfered with by the Congress 
 will not be denied. 
 
 I quite agree with the Senator from Ohio that we need not, even if 
 we may, seek the measure of this power in the power of the King at the 
 time of the adoption of the Constitution. There is something to be said 
 on both sides of the proposition. Some courts have referred to the power 
 of the King as furnishing some guide as to the Constitutional power of the 
 President as Commander in Chief. It is said in the opinion of Judge 
 Knott, speaking for the Court of Claims in the case of Street v. United 
 States (24 Court of Claims, 230), after referring to the power of the 
 Crown at the time of the adoption of the Constitution exclusively to 
 control the British army, that 
 
 This power of command and control the framers of the Constitution placed 
 in the hands of the President, with only two restrictions set upon it: That 
 Congress should have power "to make rules for the government and regulation 
 of the land and naval forces;" that the appointment of officers should be "by 
 and with the advice and consent of the Senate." 
 
 The President can remove any officer of the Army or Navy without 
 cause by appointing, by and with the advice and consent of the Senate, 
 
26 AMERICAN FEDERAL GOVERNMENT 
 
 another to supersede him. This was settled in the Mullen case (140 U. S. 
 240). The practice has wisely made the tenure of military and naval 
 office ''practically for life or during good behavior." But I speak of 
 the power. 
 
 In Ex parte Milligan (4 Wallace, 2), quoted by the Senator from Ohio, 
 was involved the power of the President to establish martial law in In- 
 diana and the validity of the trial of a citizen by military commission 
 upon the charge practically of giving aid and comfort to the enemy. 
 Milligan and others were sentenced to death by the military commis- 
 sion, and the court held properly that, as Indiana was not in any sense 
 the theatre of war, the civil government there was in full operation, and 
 the courts discharging uninterruptedly their functions, martial law could 
 not lawfully be put in operation in Indiana and that a military commis- 
 sion could not lawfully try and condemn a citizen. In the opinion, upon 
 the general subject which I am discussing, the court say : 
 
 Congress has the power not only to raise and support and govern armies, 
 but to declare war. It has, therefore, the power to provide by law for carrying 
 on war. This power necessarily extends to all legislation essential to the prose- 
 cution of war with vigor and success, except such as interferes with the command 
 of the forces and the conduct of campaigns. That power and duty belong to 
 the President as Commander in Chief. Both these powers are derived from 
 the Constitution, but neither is denned by that instrument. Their extent must 
 be determined by their nature and by the principles of our institutions. 
 
 The power to make the necessary laws is in Congress ; the power to execute 
 in the President. Both powers imply many subordinate and auxiliary powers. 
 Each includes all authorities essential to its due exercise. But neither can the 
 President; in war more than in peace, intrude upon the proper authority of 
 Congress, nor Congress upon the proper authority of the President. Both are 
 servants of the people, whose will is expressed in the fundamental law. 
 
 It must be certain that where Congress has failed to make rules for 
 the discipline of the Army the power of command lodged in the Presi- 
 dent carries with it authority in him to issue an order absolutely neces- 
 sary to the discipline of the Army. An army without discipline, Mr. 
 President, is a mob. Instead of being a shield and a protection to the 
 people it is a menace. It is more dangerous to those who maintain it 
 than it is to the enemies of the country. 
 
 ******** 
 
 Mr. BACON. My opinion, Mr. President, as to the power of the Com- 
 mander in Chief is this: I do not think every power exercised by the 
 Commander in Chief must be dictated by Congress. I think there are 
 certain natural functions of a commander in chief which, in the absence 
 of restrictions on the part of Congress, any commander in chief can ex- 
 ercise those which are usually exercised. But at the same time I 
 think there is none which can not be restricted or controlled by Congress. 
 
POWERS OF THE EXECUTIVE 27 
 
 If the Senator will pardon me for a moment I fear that I trespass 
 unduly upon his time, but I will take the time with his permission 
 just to state the proposition that all the clauses of the Constitution in 
 connection with the grant of power to Congress which I have just read 
 indicate the very great solicitude and earnest intention on the part of the 
 framers of the Constitution to take away from any one man the power 
 to wield the Army independently of Congress ; and even so jealous were 
 they of the power that they were not willing even that Congress should 
 have an undue exercise of that power, but that, as in the case of the 
 limitation of the length of appropriations, they must go back to the 
 people every two years for the purpose of getting that which alone can 
 sustain an army. Now, let me read those several propositions for the 
 purpose of illustrating the position that the evident purpose of the Con- 
 stitution was to take away from any one man the dangerous power of 
 unrestrained control and government of the Army. They had too much 
 reason to fear and to dread it. 
 
 ******** 
 
 I say that all those general grants of power, endeavoring to reach every 
 phase of the important things which relate to the raising of armies and 
 to the government of armies, are laid down in this succession of pro- 
 visions in a way which, to my mind, clearly points to the purpose of the 
 framers of the Constitution that the great power which would be lodged 
 in one man if he had the power to wield an army without restriction 
 should be denied to the President and should be given the Congress; 
 and that the sole, indefeasible grant of power given to him was that he 
 should be Commander in Chief, to exercise that great office subject to 
 the superior power of Congress to prescribe the rules for the govern- 
 ment and regulation of the Army. "Government," I repeat, is a term 
 which can not be qualified. It is complete and entire and does not mean 
 partial government. 
 
 The Senator from Wisconsin will pardon me for having trespassed so 
 much upon his time. 
 
 Mr. SPOONER. Congress may locate a fort in the State of Georgia. 
 Can Congress pass an act providing that certain troops shall be assigned 
 to that fort ? 
 
 Mr. BACON. I have not the slightest doubt of it ; not a particle. 
 
 Mr. SPOONER. What is there to this Commander in Chief? 
 
 Mr. BACON. The Commander in Chief is to command the Army, 
 subject to the power of the Congress to prescribe what shall be done in 
 its government. The government of an army refers as much to where 
 it shall be located as to what uniform it shall wear. 
 
 Mr. SPOONER. I mean particular troops. 
 
 Mr. BACON. I am speaking of particular troops. Congress can pre- 
 scribe that the uniform of the artillery shall be red 
 
 Mr. SPOONER. Of course. 
 
28 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. BACON. And the uniform of the cavalry yellow or buff. 
 Mr. SPOONER. I admit all that. 
 
 Mr. BACON. It may prescribe that there shall be so many troops in 
 this place and that many in the other. 
 
 With all due respect and the greatest regard for the judgment of the 
 Senator from Wisconsin, I beg to say that I have never heard on the 
 floor of the Senate a doctrine which, to my mind, was more dangerous 
 to the institutions of this country than the doctrine that the President 
 of the United States has any power in the use of the Army which can not 
 be controlled by the law-making power of the land, except the power to 
 command. 
 
 Mr. SPOONER. Mr. President, yesterday when I yielded the floor 
 I was in the midst of a colloquy with the Senator from Georgia [Mr. 
 BACON], with whom I agree in part, but with whom I am compelled in 
 part to disagree. I would not minimize, and never have consciously, 
 the power of Congress, nor would I exaggerate in anywise the power of 
 the Executive. My proposition and I do not intend to spend much 
 time upon it concedes to Congress the full power which I think it 
 possesses under the Constitution with reference to the Army, and it is 
 very large, of course. 
 
 Congress is given power to raise and maintain armies and to provide 
 a navy. The size of the Army is entirely for Congress to determine. 
 The character of the Army as to different branches of the service is en- 
 tirely for Congress to determine. The grade of officers and the number 
 of officers are for Congress to determine. The oath of enlistment, the 
 contract of enlistment are for Congress to determine. The duration of 
 the term of enlistment is for Congress to determine. The pay and all 
 that is for Congress to determine. The establishment of military tribu- 
 nals, the definition of military offenses, the method of military trials, 
 and the punishment that is to be administered are for Congress to de- 
 termine. Congress determines where it will have military posts and 
 where it will not. 
 
 Congress may reduce the Army and provide for the muster out of 
 officers, as it has often done, and may provide for the discharge of en- 
 listed men, as it has always done, and which is always a part of the con- 
 tract of enlistment. Congress can not make a contract -for service in 
 the Army with an officer, or, I think, with an enlisted man, which would 
 be a contract protected by the Constitution of the United States against 
 the power of the same or a succeeding Congress to reduce the Army, 
 muster out officers, and discharge enlisted men. 
 
 See Crenshaw v. United States, Mr. Justice Lamar (134 U. S. 99). 
 
 The power of Congress to make rules for the government and regula- 
 tion is a large one, but it is manifestly to be exercised in the manner 
 clearly indicated by the clause itself. 
 
 I can not agree with the Senator from Georgia that the Commander 
 
POWERS OF THE EXECUTIVE 29 
 
 in Chief, either in time of peace or war, is under the supreme control of 
 Congress. The Constitution need not have made the President the 
 Commander in Chief. Wisely, however, it did so, combining with ex- 
 ecutive power the power of command. It is conceded by the distin- 
 guished Senator from Ohio that in the absence of Congressional rules 
 the President is Commander in Chief. Congress having raised and ap- 
 propriated money for the support of an army, but having failed to make 
 rules for its government would, ex necessitate rei, have the power to 
 make those necessary for the government of the Army and Navy. That 
 would not be simply because of necessity, I think, but because the Con- 
 stitution has made the President Commander in Chief without defining 
 the functions. This involves the power to do those things which inhere 
 in the office or are necessary to the discharge of the duties of the office. 
 
 The Constitution is to be read as a whole, and provisions pari materia 
 are to be read together, each in the light of the other. No clause in the 
 Constitution is to be so construed as to destroy another clause or clauses. 
 
 Now, I admit the power of Congress over the subject of enlistment. 
 I admit Congress may say properly that no enlisted man shall be dis- 
 charged before the expiration of his term of enlistment except upon the 
 finding of a board of officers. I admit that the Congress may provide 
 that no man shall be reenlisted unless his service during the preceding 
 term was honest and faithful. This is one of the "rules" made by Con- 
 gress now in force. I admit that Congress might provide it would 
 not that men who shall have been dishonorably discharged by sen- 
 tence of court-martial may be reenlisted in the Army of the United 
 States upon making satisfactory proof to a board or complying with 
 such other terms as the Congress might provide as showing changed 
 behavior. 
 
 But there must be a distinction between the words " Congress may 
 make rides for the government and regulation of the land and naval 
 forces "and the words "Congress shall govern the land and naval 
 forces." The one would make the power to govern absolute ; the other 
 is restrictive as to the manner in which the governmental power of Con- 
 gress shall be exercised. I repeat on the point a few sentences already 
 read, which certainly declare the law. 
 
 It is true that the Constitution has conferred upon Congress the exclusive 
 power "to make rules for the government and regulation of the land and naval 
 forces " ; that the two powers are distinct; neither can trench upon the other; 
 the President can not, under the disguise of military orders, evade the legislative 
 regulations by which he in common with the Army must be governed, and 
 Congress can not in the disguise of "rules for the government" of the Army 
 impair the authority of the President as Commander in Chief. (28 Court of 
 Claims, 221.) 
 
 Mr. FORAKER. Will the Senator give the citation ? 
 
 Mr. SPOONER. It is 28 Court of Claims, the Swaim case, page 221. 
 
30 AMERICAN FEDERAL GOVERNMENT 
 
 In that case it was held, and affirmed by the Supreme Court, that the 
 President by virtue of his function as Commander in Chief may order 
 a general court-martial. 
 
 Now, Mr. President, is there no function that is not subject to the 
 control of Congress involved in the designation Commander in Chief 
 of the Army and Navy of the United States? I have never heard it 
 denied until yesterday that the assignment of officers to particular com- 
 mands and the disposition of troops' throughout the country was not a 
 part of the power of command, and I was amazed that a lawyer of the 
 great ability of my friend from Georgia should suggest I do not know 
 that he would contend for it that Congress can provide that a par- 
 ticular officer shall be assigned to a particular troop or that where a 
 regiment or a company has been assigned by the Commander in Chief 
 to a particular State Congress can by resolution, which has the effect 
 of law, countermand that order. If that is correct, it may fix the designa- 
 tion or location to which that command shall be transferred. I never 
 heard it suggested before, Mr. President, that as commander of the 
 Army and Navy the President had not the power to send the war ships 
 hither and yon as in his judgment is best for the country and the people. 
 
 The President, as Commander in Chief, acting through the Secre- 
 tary of War, having lawfully assigned a colored battalion or a colored 
 regiment to Texas for duty, Congress could not constitutionally pass 
 a resolution revoking that order, or, if it had been executed, requiring 
 the President to transfer those troops from Texas to some other State. 
 If the intense construction which the Senator from Georgia puts upon 
 the word " government" in this clause is the law, the Constitution did 
 not constitute the President Commander in Chief of the Army and 
 Navy, but constituted him the Adjutant-General of the Congress, and 
 gave him no power to issue a military order in time of peace not revo- 
 cable and supplantable by a joint resolution of Congress. 
 
 Pomeroy says of the powers of the Commander in Chief, inter alia, 
 on page 472: 
 
 The President's duties in respect to these various subjects may thus be clearly 
 defined and controlled by the legislature 
 
 Indicating matters of Congressional jurisdiction with which I agree 
 
 But in time of peace he has an independent function. He commands the 
 Army and Navy ; Congress does not. He may make all dispositions of troops 
 and officers, stationing them now at this post, now at that; he may send out 
 naval vessels to such parts of the world as he pleases; he may distribute the 
 arms, ammunition, and supplies in such quantities and at such arsenals and 
 depositories as he deems best. All this is a work of ordinary routine in time of 
 peace, and is probably left, in fact, to the Secretaries of War and of the Navy and 
 to military officers high in command. 
 
POWERS OF THE EXECUTIVE 31 
 
 The inevitable effect of the construction contended for by the Senator 
 must lead to its rejection. If the power of Congress over the Army and 
 over the Commander in Chief of the Army is as broad as he suggests, 
 there is no order in time of peace which the President can make himself 
 or through the Secretary of War which can not be countermanded or 
 set aside by an act of Congress dealing solely with that order. If the 
 Commander in Chief makes a lawful order discharging A. B. from the 
 Army for the good of the service, he or some friend appeals to a Senator 
 or Member of Congress to introduce and work for the passage of a joint 
 resolution restoring A. B. to the army, or, in effect, revoking the order 
 of the Commander in Chief. It would be contended that a stigma had 
 been put unjustly upon this man; that he had been discharged from 
 the Army without a hearing ; that he had been denied the right, which 
 all men should have, to a "day in court." There would be no limit to 
 the cases in which Congress would be asked to sit as a court of appeals 
 for the review of errors committed by the Commander in Chief in in- 
 dividual cases and to set them aside. All through the Army the Congress, 
 not the Commander in Chief, would be the ultimate power in the minds 
 of enlisted men, and if anything can be imagined which would be de- 
 structive of discipline in the Army it would be such a system. Does the 
 Senator think that an order lawfully made by the Commander in Chief, 
 discharging without honor A. B. could be revoked by the Congress. 
 
 Mr. BACON. I do not want to interrupt the Senator; I did not ex- 
 pect to take any part in this debate; I am agreeing with the Senator 
 upon the conclusion he reaches ; but I am simply differing from him as 
 to the particular road over which he travels to reach it. But as the 
 Senator directs himself to me so pointedly in the inquiry he has just 
 propounded, without undertaking to go into any general discussion of 
 the matter which I am sure he recognizes would be improper and 
 which I would not desire to do at this time I simply call his attention, 
 in response to the inquiry directly addressed to me by the Senator him- 
 self, to the fact that I presume he has in innumerable instances voted 
 to correct the military record of soldiers who have been convicted by 
 courts-martial of desertion. 
 
 Mr. SPOONER. Yes. 
 
 Mr. BACON. And correcting their record by name, legislating directly 
 upon the point. 
 
 Mr. SPOONER. Yes. 
 
 Mr. BACON. Of course, the Senator will excuse me from elaborating 
 or answering at large ; but I simply suggest the possibility that that may 
 be a reply to the inquiry propounded to me by the Senator. 
 
 Mr. SPOONER. Well, Mr. President, there can be no question but 
 that would not be a ride for the regulation and government of the Army. 
 
 Mr. BACON. No; but, as I understood the Senator, his inquiry was 
 addressed to the point whether or not Congress could legislate as to the 
 
32 AMERICAN FEDERAL GOVERNMENT 
 
 particular individual, regarding anything which had been done by the 
 direct order of the President. An order of a court-martial is under 
 the authority of the President; and when a man is discharged by the 
 judgment of a court-martial, he is practically discharged by order of 
 the President. The inquiry of the Senator was, whether or not Congress 
 could by legislation directly overturn the order of the President dismiss- 
 ing a man. It can overturn the order of a court-martial and restore a 
 man to the rolls with honor, and make him eligible to draw a pension. 
 It seems to me that that probably would be a case such as the Senator 
 suggests. 
 
 Mr. SPOONER. No, Mr. President. There are a great many cases, 
 thousands of them, cases that occurred during the war, cases as to 
 officers and cases as to enlisted men, having nothing whatever to do with 
 the current discipline of the Army, cases in which, during the excitement 
 and the haste and the tumult of war, injustice has been done to soldiers, 
 dishonorable discharges and dismissals from the Army by the President, 
 and all that, in which Congress has afforded relief. But Congress has 
 never passed an act upon the theory that it restored those men to the 
 Army; that it made void the act of the President or the act of the 
 court-martial. 
 
 GROVER CLEVELAND, THE GOVERNMENT IN THE 
 CHICAGO STRIKE OF 1894 l 
 
 [One of the acts of the federal executive which aroused the greatest amount 
 of discussion was President Cleveland's use of the military forces in the sup- 
 pression of the Chicago strike of 1894. The action of the President in this 
 matter was carried out under his constitutional power "to take care that the 
 laws be faithfully executed." The interference of the federal government rested 
 upon the necessity of protecting the mail service. The bringing of federal 
 troops into a commonwealth for this purpose aroused strong opposition as it 
 was claimed that the state should have been allowed singly to deal with the 
 disturbance. All phases of this most interesting action and controversy are 
 brought out in the account subsequently written by President Cleveland, the 
 most important parts of which are here reproduced.] 
 
 President inaugurated on the 4th day of March, 1893, and those 
 associated with him as cabinet officials, encountered, during their term 
 of executive duty, unusual and especially perplexing difficulties. The 
 members of that administration who still survive, in recalling the events 
 of this laborious service, can not fail to fix upon the year 1894 as the 
 most troublous and anxious of their incumbency. During that year un- 
 happy currency complications compelled executive resort to heroic 
 
 1 McClure's Magazine (July, 1904), 23 : 227. Reproduced in part, with permission. 
 Copyright 1904, by the S. S. McClure Co. 
 
POWERS OF THE EXECUTIVE 33 
 
 treatment for the preservation of our nation's financial integrity, and 
 forced upon the administration a constant, unrelenting struggle for 
 sound money; a long and persistent executive effort to accomplish 
 beneficent and satisfactory tariff reform so nearly miscarried as to bring 
 depression and disappointment to the verge of discouragement; and it 
 was at the close of the year 1894 that executive insistence upon the 
 Monroe Doctrine culminated in a situation that gave birth to solemn 
 thoughts of war. Without attempting to complete the list of troubles 
 and embarrassments that beset the administration during this luckless 
 year, I have reserved for separate and more detailed treatment one of its 
 incidents not yet mentioned, which immensely increased executive anx- 
 iety and foreboded the most calamitous and far-reaching consequences. 
 
 In the last days of June, 1894, a very determined and ugly labor dis- 
 turbance broke out in the City of Chicago. Almost in a night it grew 
 to full proportions of malevolence and danger. Rioting and violence 
 were its early accompaniments ; and it spread so swiftly that within a 
 few days it had reached nearly the entire Western and Southwestern sec- 
 tions of our country. Railroad transportation was especially involved 
 in its attacks. The carriage of United States mails was interrupted, 
 interstate commerce was obstructed, and railroad property was riotously 
 destroyed. 
 
 This disturbance is often called "The Chicago Strike." It is true 
 that its beginning was in that city; and the headquarters of those who 
 inaugurated it and directed its operations were located there; but the 
 name thus given to it is an entire misnomer so far as it applies to the 
 scope and reach of the trouble. Railroad operations were more or less 
 affected in twenty-seven states and territories; and in all these the in- 
 terposition of the General Government was to a greater or less extent 
 invoked. 
 
 This widespread trouble had its inception in a strike by the em- 
 ployees of the Pullman Palace Car Company, a corporation located 
 and doing business at the town of Pullman, which is within the limits 
 of the City of Chicago. This company was a manufacturing corpora- 
 tion or at least it was not a railroad corporation. Its main object 
 was the operation and running of sleeping and parlor cars upon rail- 
 roads under written contracts; but its charter contemplated the manu- 
 facture of cars as well; and soon after its incorporation it began the 
 manufacture of its own cars and, subsequently, the manufacture of 
 cars for the general market. 
 
 The strike on the part of the employees of this company began on the 
 nth day of May, 1894, and was provoked by a reduction of wages. 
 
 This strike led to a general strike declared by the American Railway Union, 
 and commencing June 26, 1894. 
 
 3 
 
34 AMERICAN FEDERAL GOVERNMENT 
 
 The officers of the Railroad Union from their headquarters in the 
 City of Chicago gave directions for the maintenance and management 
 of the strike, which were quickly transmitted to distant railroad points 
 and were there promptly executed. As early as the 28th of June, two 
 days after the beginning of the strike ordered by the Railway Union 
 at Chicago, information was received at Washington from the Post- 
 Office Department that on the Southern Pacific System, between Port- 
 land and San Francisco, Ogden and San Francisco, and Los Angeles 
 and San Francisco, the mails were completely obstructed, and that the 
 strikers refused to permit trains to which Pullman cars were attached 
 to run over the lines mentioned. Thereupon Attorney- General Olney 
 immediately sent the following telegraphic despatch to the United States 
 district attorneys in the State of California: 
 
 WASHINGTON, D. C., June 28, 1894. 
 
 "See that the passage of regular trains, carrying United States mails in the 
 usual and ordinary way, as contemplated by the Act of Congress and directed 
 by the Postmaster- General, is not obstructed. Procure warrants or any other 
 available process from United States courts against any and all persons engaged 
 in such obstructions and direct the Marshal to execute the same by such 
 number of deputies or such posse as may be necessary." 
 
 On the same day, and during a number of days immediately follow- 
 ing, complaints of a similar character, sometimes accompanied by charges 
 of forcible seizure of trains and other violent disorders, poured in upon 
 the Attorney- General from all parts of the West and Southwest. These 
 complaints came from post-office officials, from United States marshals 
 and district attorneys, from railroad managers, and from other officials 
 and private citizens. In all cases of substantial representation of inter- 
 ference with the carriage of mails, a despatch identical with that already 
 quoted was sent by the Attorney- General to the United States district 
 attorneys in the disturbed localities ; and this was supplemented, when- 
 ever necessary, by such other prompt action as the different emergencies 
 required. 
 
 I shall not enter upon an enumeration of all the disorders and violence, 
 the defiance of law and authority, and the obstructions of national func- 
 tions and duties, which occurred in many localities as a consequence of 
 this labor contention, thus tremendously reinforced and completely under 
 way. It is my especial purpose to review the action taken by the Gov- 
 ernment for the maintenance of its own authority and the protection 
 of the special interests intrusted to its keeping, so far as they were en- 
 dangered by this disturbance; and I do not intend to especially deal 
 with the incidents of the strike except in so far as a reference to them 
 may be necessary to show conditions which not only justified but act- 
 ually obliged the Government to resort to stern and unusual measures 
 in the assertion of its prerogatives. 
 
POWERS OF THE EXECUTIVE 35 
 
 Inasmuch, therefore, as the City of Chicago was the birthplace of the 
 disturbance and the home of its activities ; and because it was the field 
 of its most pronounced and malign manifestations, as well as the place 
 of its final extinction, I shall meet the needs of my subject by supple- 
 menting what has been already said, by a recital of events occurring 
 at this central point. In doing this, I shall liberally embody documents, 
 orders, instructions, and reports which I hope will not prove tiresome, 
 since they supply the facts I desire to present, at first hand and more 
 impressively than they could be presented by any words of mine. 
 
 Owing to the enforced relationship of Chicago to the strike which 
 started within its borders, and because of its importance as a center of 
 railway traffic, Government officials at Washington were not surprised 
 by the early and persistent complaints of mail and interstate commerce 
 obstructions which reached them from that city. It was from the first 
 anticipated that this would be the seat of the most serious complications, 
 and the place where the strong arm of the law would be most needed. 
 In these circumstances it would have been a criminal neglect of duty if 
 those charged with the protection of Governmental agencies and the 
 enforcement of orderly obedience and submission to Federal authority, 
 had been remiss in preparations for any emergency in that quarter. 
 
 On the 3<Dth of June the District Attorney of Chicago reported by 
 telegraph that mail trains in the suburbs of Chicago were, on the previous 
 night, stopped by strikers, that an engine had been cut off and disabled, 
 and that conditions were growing more and more likely to culminate in 
 the stoppage of all trains; and he recommended that the Marshal be 
 authorized to employ a force of special deputies who should be placed 
 on trains to protect mails and detect the parties guilty of such interfer- 
 ence. In reply to this despatch Attorney-General Olney on the same 
 day authorized the Marshal to employ additional deputies as suggested, 
 and designated Edwin Walker, an able and prominent attorney in 
 Chicago, as special counsel for the Government, to assist the District 
 Attorney in any legal proceedings that might be instituted. He also 
 notified the District Attorney of this action, and enjoined upon him that 
 " action ought to be prompt and vigorous," and directed him to confer 
 with the special counsel who had been employed. In a letter of the same 
 date addressed to this special counsel, the Attorney-General, in making 
 suggestions concerning legal proceedings, wrote: "It has seemed to 
 me that if the rights of the United States were vigorously asserted in 
 Chicago, the origin and center of the demonstration, the result would be 
 to make it a failure everywhere else, and to prevent its spread over the 
 entire country," and in that connection he indicated that it might be 
 advisable, instead of relying entirely upon warrants issued under criminal 
 statutes, against persons actually guilty of the offense of obstructing 
 United States mails, that the courts should be asked to grant injunctions 
 which would restrain and prevent any attempt to commit such offense. 
 
36 AMERICAN FEDERAL GOVERNMENT 
 
 This suggestion contemplated the inauguration of legal proceedings in 
 a regular and usual way to restrain those prominently concerned in the 
 interference with the mails and the obstruction of interstate commerce, 
 basing such proceedings on the proposition that, under the constitution 
 and laws, these subjects were in the exclusive care of the Government 
 of the United States, and that for their protection the Federal courts 
 were competent under general principles of law to intervene by injunc- 
 tion ; and on the further ground that under an Act of Congress, passed 
 July 2, 1890, conspiracies in restraint of trade or commerce among the 
 several states were declared to be illegal, and the Circuit Courts of the 
 United States were therein expressly given jurisdiction to prevent and 
 restrain such conspiracies. 
 
 On the ist day of July the District Attorney reported to the Attorney- 
 General that he was preparing a bill of complaint to be presented to the 
 court the next day, on an application for an injunction. He further re- 
 ported that very little mail and no freight was moving, that the Marshal 
 was using all his force to prevent riots and the obstruction of tracks, and 
 that this force was clearly inadequate. On the same day the Marshal 
 reported that the situation was desperate, that he had sworn in over 
 400 deputies, that many more would be required to protect mail trains, 
 and that he expected great trouble the next day. He further expressed 
 the opinion that 100 riot guns were needed. 
 
 Upon the receipt of these reports, and anticipating an attempt to 
 serve injunctions on the following day, the Attorney-General imme- 
 diately sent a despatch to the District Attorney directing him to report 
 at once if the process of the court should be resisted by such force as 
 the Marshal could not overcome, and suggesting that the United States 
 judge should join in such report. He at the same time sent a despatch 
 to the special counsel requesting him to report his view of the situation 
 as early as the forenoon of the next day. 
 
 In explanation of these two despatches it should here be said that 
 the desperate character of this disturbance was not in the least under- 
 estimated by executive officials at Washington; and it must be borne 
 in mind that while menacing conditions were moving swiftly and accu- 
 mulating at Chicago, like conditions, inspired and supported from that 
 central point, existed in many other places within the area of the strike's 
 contagion. 
 
 Of course it was hoped by those charged with the responsibility of 
 dealing with the situation, that a direct assertion of authority by the 
 Marshal and a resort to the restraining power of the courts would prove 
 sufficient for the emergency. Notwithstanding, however, an anxious 
 desire to avoid measures more radical, the fact had not been overlooked 
 that a contingency might occur which would compel a resort to military 
 force. The key to these despatches of the Attorney-General is found 
 in the determination of the Federal authorities to overcome by any law- 
 
POWERS OF THE EXECUTIVE 37 
 
 ful and constitutional means all resistance to governmental functions 
 as related to the transportation of mails, the operation of interstate 
 commerce, and the preservation of the property of the United States. 
 
 The constitution requires that the United States shall protect each 
 of the states against invasion, "and on application of the legislature, 
 or of the executive (when the legislature cannot be convened) against 
 domestic violence." There was plenty of domestic violence in the City 
 of Chicago and in the State of Illinois during the early days of July, 
 1894; but no application was made to the Federal Government for as- 
 sistance. It was probably a very fortunate circumstance that the pres- 
 ence of United States soldiers in Chicago at that time did not depend 
 upon the request or desire of Governor Altgeld. 
 
 Section 5,298 of the Revised Statutes of the United States provides 
 that: "Whenever, by reason of unlawful obstructions, combinations or 
 assemblages of persons, or rebellion against the authority of the United 
 States, it shall become impracticable in the judgment of the President 
 to enforce by the ordinary course of judicial proceedings, the laws of 
 the United States within any State or Territory, it shall be lawful for the 
 President to call forth the militia of any or all of the States, and to em- 
 ploy such parts of the land or naval forces of the United States as he 
 may deem necessary to enforce the faithful execution of the laws of the 
 United States, or to suppress such rebellion, in whatever State or Terri- 
 tory thereof the laws of the United States may be forcibly opposed, or 
 the execution thereof be forcibly obstructed;" and Section 5,299 pro- 
 vides that: "Whenever any insurrection, domestic violence, unlawful 
 combinations or conspiracies in any State . . . opposes or obstructs 
 the laws of the United States, or the due execution thereof, or impedes 
 or obstructs the due course of justice under the same, it shall be lawful 
 for the President and it shall be his duty, to take such measures 
 by the employment of the militia, or the land and naval forces of the 
 United States, or of either, or by other means as he may deem nec- 
 essary, for the suppression of such insurrection, domestic violence or 
 combinations." 
 
 It was the intention of the Attorney-General to suggest in these de- 
 spatches that immediate and authoritative information should be given 
 to the Washington authorities if a time should arrive when, under the 
 sanction of general executive authority, or the constitutional and statu- 
 tory provisions above quoted, a military force would be necessary at the 
 scene of disturbance. 
 
 On the 2d of July, the day after these despatches were sent, informa- 
 tion was received from the District Attorney and special counsel that a 
 sweeping injunction had been granted against Eugene V. Debs, presi- 
 dent of the American Railway Union, and other officials of the organiza- 
 tion, together with parties whose names were unknown, and that the 
 writs would be served that afternoon. The special counsel also ex- 
 
38 AMERICAN FEDERAL GOVERNMENT 
 
 pressed the opinion that it would require Government troops to enforce 
 the orders of the court and protect the transportation of mails. 
 
 Major-General Schofield was then in command of the army; and, 
 after a consultation with him, in which the Attorney-General and the 
 Secretary of War took part, I directed the issuance of the following 
 order by telegraph to General Nelson A. Miles, in command of the 
 Military Department of Missouri, with headquarters at Chicago: 
 
 HEADQUARTERS OF THE ARMY, 
 
 To the Commanding General, WASHINGTON, July 2, 1904. 
 
 Department of Missouri, Chicago, 111. 
 
 You will please make all necessary arrangements confidentially for the 
 transportation of the entire garrison at Fort Sheridan infantry, cavalry and 
 artillery to the Lake Front in the City of Chicago. To avoid possible inter- 
 ruption of the movement by rail and by marching through a part of the city, 
 it may be advisable to bring them by steamboat. Please consider this matter 
 and have the arrangements perfected without delay. You may expect orders 
 at any time for the movement. Acknowledge receipt and report in what manner 
 movement is to be made. 
 
 J. M. SCHOFIELD, Major-General Commanding. 
 
 It should by no means be inferred from this despatch that it had been 
 definitely determined that the use of a military force was inevitable. It 
 was still hoped that the effect of the injunction would be such that such 
 an alternative might be avoided. A painful emergency is created when 
 public duty forces the necessity of placing trained soldiers face to face 
 with riotous opposition to the General Government, and in opposition 
 to an acute and determined resistance to law and order. This course, 
 once entered upon, admits of no backward step; and an appreciation 
 of the consequences that may ensue cannot fail to oppress those re- 
 sponsible for its adoption with sadly disturbing reflections. Neverthe- 
 less, it was perfectly plain that, whatever the outcome might be, the 
 situation positively demanded such precaution and preparation as would 
 insure readiness and promptness, in case the presence of a military 
 force should finally be found necessary. 
 
 On the morning of the next day, July 3d, the Attorney-General re- 
 ceived a letter from Mr. Walker, the special counsel, in which, after 
 referring to the issuance of the injunctions and setting forth that the 
 Marshal was engaged in serving them, he wrote: "I do not believe that 
 the Marshal and his deputies can protect the railroad companies in 
 moving their trains, either freight or passenger, including of course the 
 trains carrying United States mails. Possibly, however, the service of 
 the writ of injunction will have a restraining influence upon Debs and 
 other officers of the association. If it does not, from present appear- 
 ances, I think it is the opinion of all that the orders of the court cannot 
 be enforced except by the aid of the Regular Army." 
 
POWERS OF THE EXECUTIVE 39 
 
 Thereupon the Attorney-General immediately sent this despatch to 
 the District Attorney: 
 
 I trust use of United States troops will not be necessary. If it becomes 
 necessary, they will be used promptly and decisively upon the justifying facts 
 being certified to me. In such case, if practicable, let Walker and the Marshal 
 and United States judge join in statement as to the exigency. 
 
 A few hours afterwards the following urgent and decisive despatch 
 from the Marshal, endorsed by a judge of the United States court and 
 the District Attorney, and special counsel, was received by the Attorney- 
 General : 
 
 CHICAGO, ILL , July 3, 1894. 
 HON. RICHARD OLNEY, Attorney-General, Washington, D. C. 
 
 When the injunction was granted yesterday, a mob of from two to three thou- 
 sand held possession of a point in the city near the crossing of the Rock Island 
 by other roads, where they had already ditched a mail train, and prevented the 
 passing of any trains, whether mail or otherwise. I read the injunction writ to 
 this mob and commanded them to disperse. The reading of the writ met with 
 no response except jeers and hoots. Shortly after, the mob threw a number of 
 baggage cars across the track, since when no mail train has been able to move. 
 I am unable to disperse the mob, clear the tracks, or arrest the men who were 
 engaged in the acts named, and believe that no force less than the regular troops 
 of the United States can procure the passage of the mail trains, or enforce the 
 orders of the courts. I believe people engaged in trades are quitting employ- 
 ment to-day, and in my opinion will be joining the mob to-night and especially 
 to-morrow ; and it is my judgment that the troops should be here at the earliest 
 moment. An emergency has arisen for their presence in this city. 
 
 J. W. ARNOLD, United States Marshal. 
 
 We have read the foregoing and from that information and other information 
 that has come to us, believe that an emergency exists for the immediate presence 
 of United States troops. p s GROSSCUP, Judge. 
 
 EDWIN WALKER, 
 THOMAS E. MILCHRIST, Attys. 
 
 In the afternoon of the same day the following order was telegraphed 
 from Army Headquarters in the City of Washington : 
 
 WAR DEPARTMENT, 
 
 HEADQUARTERS OF THE ARMY, 
 
 WASHINGTON, D. C., July 3, 1894. 
 
 To MARTIN, Adjutant-General, 4 o 'Clock P. M. 
 
 Headquarters Department of Missouri, Chicago, 111. 
 
 It having become impracticable in the judgment of the President to enforce 
 by the ordinary course of judicial proceedings the laws of the United States, you 
 will direct Colonel Crofton to move his entire command at once to the City of 
 Chicago (leaving the necessary guard at Fort Sheridan), there to execute the 
 orders and processes of the United States court, to prevent the obstruction of 
 the United States mails, and generally to enforce the faithful execution of the 
 
40 AMERICAN FEDERAL GOVERNMENT 
 
 laws of the United States. He will confer with the United States Marshal, 
 the United States District Attorney, and Edwin Walker, special counsel. 
 Acknowledge receipt and report action promptly. By order of the President. 
 
 J. M. SCHOFIELD, Major -General. 
 
 Immediately after this order was issued, the following despatch was 
 sent to the District Attorney by the Attorney-General : 
 
 "Colonel Crofton's command ordered to Chicago by the President. As to 
 disposition and movement of troops, yourself, Walker, and Marshall should 
 confer with Colonel Crofton and with Colonel Martin, Adjutant-General at 
 Chicago. While action should be prompt and decisive, it should of course be 
 kept within the limits provided by the constitution and laws. Rely upon your- 
 self and Walker to see that this is done." 
 
 Colonel Martin, Adjutant- General at Chicago, reported the same 
 night at half-past nine o'clock that the order for the movement of troops 
 was, immediately on its receipt by him, transmitted to Fort Sheridan, 
 and that Colonel Crofton's command started for Chicago at nine o'clock. 
 
 During the forenoon of the next day, July 4th, Colonel Martin ad- 
 vised the War Department that Colonel Crofton reported his command 
 in the City of Chicago at 10.15 that morning. After referring to the 
 manner in which the troops had been distributed, this officer added: 
 " People seem to feel easier since arrival of troops." 
 
 General Miles, commanding the department, arrived in Chicago the 
 same morning, and at once assumed direction of military movements. 
 In the afternoon of that day he sent a report to the War Department 
 at Washington, giving an account of the disposition of troops, recounting 
 an unfavorable condition of affairs, and recommending an increase of 
 the garrison at Fort Sheridan sufficient to meet any emergency. 
 
 In response to this despatch General Miles was immediately author- 
 ized to order six companies of infantry from Fort Leavenworth, in 
 Kansas, and two companies from Fort Brady, in Michigan, to Fort 
 Sheridan. 
 
 On the 5th day of July he reported that a mob of over two thousand 
 had gathered that morning at the stock-yards, crowded among the troops, 
 obstructed the movement of trains, knocked down a railroad official, 
 and overturned about twenty freight cars, which obstructed all freight 
 and passenger traffic in the vicinity of the stock-yards, and that the mob 
 had also derailed a passenger train on the Pittsburg, Fort Wayne and 
 Chicago Railroad and burned switches. To this recital of violent dem- 
 onstrations he added the following statement: "The injunction of the 
 United States court is openly defied, and unless the mobs are dispersed 
 by the action of the police or they are fired upon by United States troops, 
 more serious trouble may be expected, as the mob is increasing and 
 becoming more defiant." 
 
POWERS OF THE EXECUTIVE 41 
 
 In view of the situation as reported by General Miles, he was at once 
 directed by General Schofield to concentrate his troops in order that 
 they might act more effectively in the execution of orders theretofore 
 given, and in the protection of United States property. This despatch 
 concluded as follows : 
 
 "The mere preservation of peace and good order in the city is, of course, the 
 province of the city and state authorities." 
 
 The situation on the 6th day of July was thus described in a despatch 
 sent in the afternoon of that day by General Miles to the Secretary of 
 War: 
 
 "In answer to your telegram, I report the following: Mayor Hopkins last 
 night issued a proclamation prohibiting riotous assemblies and directing the 
 police to stop people from molesting railway communication. Governor 
 Altgeld has ordered General Wheeler's brigade on duty in Chicago to support 
 the Mayor's authority. So far, there have been no large mobs like the one of 
 yesterday which moved from 5ist Street to i8th Street before it dispersed. The 
 lawlessness has been along the line of the railways, destroying and burning more 
 than one hundred cars and railway buildings, and obstructing transportation in 
 various ways, even to the extent of cutting telegraph lines. United States 
 troops have dispersed mobs at 5ist Street, Kensington, and a company of in- 
 fantry is moving along the Rock Island to support a body of United States 
 marshals in making arrests for violating the injunction of the United States 
 court. Of the twenty-three roads centering in Chicago, only six are unob- 
 structed in freight, passenger, and mail transportation ; thirteen are at present 
 entirely obstructed, and ten are running only mail and passenger trains. 
 Large numbers of trains moving in and out of the city have been stoned and 
 fired upon by mobs, and one engineer killed. There was a secret meeting to-day 
 of Debs and the representatives of labor unions considering the advisability of 
 a general strike of all labor unions. About one hundred men were present at 
 that meeting. The result is not yet known. United States troops are at the 
 stock-yards, Kensington, Blue Island, crossing of 5ist Street, and have been 
 moving along some of the lines: the balance, eight companies of infantry, 
 battery of artillery, and one troop of cavalry, are camped on Lake Front Park, 
 ready for any emergency and to protect Government buildings and property. 
 It is learned from the Fire Department, City Hall, that a party of strikers has 
 been going through the vicinity from i4th to 4ist Streets and Stewart Avenue 
 freight yards, throwing gasoline on freight cars all through that section. Captain 
 Ford, of the Fire Department, was badly stoned this morning. Troops have 
 just dispersed a mob of incendiaries on Fort Wayne tracks, near 5ist Street, and 
 fires that were started have been suppressed. Mob just captured mail train at 
 47th Street and troops sent to disperse them." 
 
 On the 8th day of July, in view of the apparently near approach of 
 a crisis which the Government had attempted to avoid, the following 
 Executive Proclamation was issued and at once extensively published 
 in the City of Chicago: 
 
42 AMERICAN FEDERAL GOVERNMENT 
 
 Whereas, by reason of unlawful obstruction, combinations and assemblages 
 of persons, it has become impracticable in the judgment of the President to 
 enforce by the ordinary course of judicial proceedings, the laws of the United 
 States within the State of Illinois, and especially in the City of Chicago within 
 said State; and 
 
 Whereas, for the purpose of enforcing the faithful execution of the laws of the 
 United States and protecting its property and removing obstructions to the 
 United States mails in the state and city aforesaid, the President has employed a 
 part of the military forces of the United States: 
 
 Now, therefore, I, Grover Cleveland, President of the United States, do 
 hereby admonish all good citizens, and all persons who may be or may come 
 within the city and state aforesaid, against aiding, countenancing, encouraging, 
 or taking any part in such unlawful obstructions, combinations and assem- 
 blages ; and I hereby warn all persons engaged in or in any way connected with 
 such unlawful obstructions, combinations and assemblages to disperse and 
 retire peaceably to their respective abodes on or before twelve o'clock, noon, of 
 the Qth day of July instant. 
 
 Those who disregard this warning and persist in taking part with a riotous 
 mob in forcibly resisting and obstructing the execution of the laws of the 
 United States or interfering with the functions of the Government, or destroying 
 or attempting to destroy the property belonging to the United States or under 
 its protection, cannot be regarded otherwise than as public enemies. 
 
 Troops employed against such a riotous mob will act with all the moderation 
 and forbearance consistent with the accomplishment of the desired end ; but the 
 stern necessities that confront them will not with certainty permit discrimination 
 between guilty participants and those who are mingling with them from curiosity 
 and without criminal intent. The only safe course, therefore, for those not actu- 
 ally participating, is to abide at their homes, or at least not to be found in the 
 neighborhood of riotous assemblages. 
 
 While there will be no vacillation in the decisive treatment of the guilty, this 
 warning is especially intended to protect and save the innocent. 
 
 On the loth of July, Eugene V. Debs, the president of the American 
 Railway Union, together with its vice-president, general secretary, and 
 one other who was an active director, were arrested upon indictments 
 found against them for complicity in the obstruction of mails and inter- 
 state commerce. Three days afterwards our special counsel expressed 
 the opinion that the strike was practically broken. This must not be 
 taken to mean, however, that peace and quiet had been completely re- 
 stored or that the transportation of mails and the activities of interstate 
 commerce were entirely free from interruption. It meant only the ex- 
 pression of a well sustained and deliberate expectation that the combina- 
 tion of measures already inaugurated, and others contemplated in the 
 near future, would speedily bring about a termination of the difficulty. 
 
 On the iyth day of July an information was filed in the United States 
 Circuit Court at Chicago against Debs and the three other officials of 
 the Railway Union who had been arrested on indictment a few days 
 before, but were then at large on bail. This information alleged that 
 
POWERS OF THE EXECUTIVE 43 
 
 these parties had been guilty of open, continued, and defiant disobe- 
 dience of the injunction which was served on them July 3d, forbidding 
 them to do certain specified acts tending to incite and aid the obstruc- 
 tion of the carriage of mails and the operation of interstate commerce. 
 On the footing of this information these parties were brought before the 
 court to show cause why they should not be punished for contempt in 
 disobeying the injunction. Instead of giving bail for their freedom 
 pending the investigation of this charge against them, as they were in- 
 vited to do, they preferred to be committed to custody. . . . 
 
 That the strike was ended about the time of this second arrest is un- 
 doubtedly true; for, during the few days immediately preceding and 
 following the iyth day of July, reports came from nearly all the locali- 
 ties to which the strike had spread, indicating its defeat and the accom- 
 plishment of all the purposes of the Government's interference. 
 
 I must not fail to mention here as part of the history of this perplexing 
 affair, a contribution made by the Governor of Illinois to its annoyances. 
 
 On the, 5th day of July, twenty-four hours after our soldiers had been 
 brought to the City of Chicago, pursuant to the order of July 3d, I re- 
 ceived a long despatch from Governor Altgeld, beginning as follows : 
 
 "I am advised that you have ordered Federal troops to go into service in the 
 State of Illinois. Surely the facts have not been correctly presented to you in 
 this case or you would not have taken the step ; for it is entirely unnecessary and, 
 as it seems to me, unjustifiable. Waiving all question of courtesy, I will say 
 that the State of Illinois is not only able to take care of itself, but it stands ready 
 to-day to furnish the Federal Government any assistance it may need else- 
 where." 
 
 This opening sentence was followed by a lengthy statement which so 
 far missed actual conditions as to appear irrelevant and, in some parts, 
 absolutely frivolous. 
 
 This remarkable despatch closed with the following words : 
 
 "As Governor of the State of Illinois, I protest against this and ask the im- 
 mediate withdrawal of Federal troops from active duty in this state. Should 
 the situation at any time get so serious that we cannot control it with the 
 state forces, we will promptly and freely ask for Federal assistance ; but until 
 such time I protest with all due deference against this uncalled-for reflection 
 upon our people, and again ask for the immediate withdrawal of these troops." 
 
 Immediately upon the receipt of this communication, I sent to Gov- 
 ernor Altgeld the following reply : 
 
 "Federal troops were sent to Chicago in strict accordance with the constitu- 
 tion and the laws of the United States, upon the demand of the Post-Office 
 Department that obstructions of the mails should be removed, and upon the 
 representation of the judicial officers of the United States that process of the 
 Federal courts could not be executed through the ordinary means, and upon 
 
44 AMERICAN FEDERAL GOVERNMENT 
 
 abundant proof that conspiracies existed against commerce between the states. 
 To meet these conditions, which are clearly within the province of Federal 
 authority, the presence of Federal troops in the city of Chicago was deemed not 
 only proper but necessary; and there has been no intention of thereby inter- 
 fering with the plain duty of the local authorities to preserve the peace of the 
 city." 
 
 It became at once evident that the Governor was unwilling to allow the 
 matter at issue between us to rest without a renewal of argument and 
 protest. On the yth day of July, the day after the date of my despatch, 
 he addressed to me another long telegraphic communication, evidently 
 intended to be more severely accusatory and insistent than its predecessor. 
 Its general tenor may be inferred from the opening words: 
 
 "Your answer to my protest involves some startling conclusions, and ignores 
 and evades the question at issue that is, that the principle of local self- 
 government is just as fundamental in our institutions as is that of Federal 
 supremacy. You calmly assume that the executive has the legal right to order 
 Federal troops into any community of the United States in the first instance, 
 whenever there is the slightest disturbance, and that he can do this without any 
 regard to the question as to whether the community is able to and ready to 
 enforce the law itself." 
 
 After a rather dreary discussion of the importance of preserving the 
 rights of the states and a presentation of the dangers to constitutional 
 government that lurked in the course that had been pursued by the 
 Government, this communication closed as follows: 
 
 "Inasmuch as the Federal troops can do nothing but what the state troops can 
 do there, and believing that the state is amply able to take care of the situation 
 and to enforce the law, and believing that the ordering out of the Federal troops 
 was unwarranted, I again ask their withdrawal." 
 
 I confess that my patience was somewhat strained when I quickly 
 sent the following despatch in reply to this communication : 
 
 EXECUTIVE MANSION, 
 WASHINGTON, D. C., July 6, 1894. 
 
 While I am still persuaded that I have neither transcended my authority nor 
 duty in the emergency that confronts us, it seems to me that in this hour of 
 danger and public distress, discussion may well give way to active efforts on the 
 part of all in authority to restore obedience to law and to protect life and 
 property. GROVER CLEVELAND. 
 
 HON. JOHN P. ALTGELD, 
 Governor of Illinois. 
 
 This closed a discussion which in its net results demonstrated how 
 far one's disposition and inclination will lead him astray in the field of 
 argument. 
 
POWERS OF THE EXECUTIVE 45 
 
 I shall conclude the treatment of my subject by a brief reference to 
 the legal proceedings which grew out of this disturbance, and finally 
 led to an adjudication by the highest court in our land, establishing in 
 an absolutely authoritative manner and for all time, the power of the 
 National Government to protect itself in the exercise of its functions. 
 
 It will be recalled that in the course of our narrative we left Mr. Debs, 
 the president of the Railway Union, and his three associates, in custody 
 of the law, on the iyth day of July, awaiting an investigation of the 
 charge of contempt of court made against them, based upon their dis- 
 obedience of the writs of injunction forbidding them to do certain things 
 in aid or encouragement of interference with mail transportation or in- 
 terstate commerce. 
 
 This investigation was so long delayed that the decision of the Circuit 
 Court, before which the proceedings were pending, was not rendered 
 until the i4th day of December, 1894. On that date the court delivered 
 an able and carefully considered decision finding Debs and his associates 
 guilty of contempt of court, basing its decision upon the provisions of 
 the law of Congress, passed in 1890, entitled: "An act to protect trade 
 and commerce against unlawful restraint and monopolies;" sometimes 
 called the Sherman Anti-Trust Law. Thereupon the parties were sen- 
 tenced on said conviction to confinement in the county jail for terms 
 varying from three to six months. 
 
 Afterwards and on the i4th day of January, 1895, the prisoners ap- 
 plied to the Supreme Court of the United States for a writ of habeas 
 corpus to relieve them from imprisonment, on the ground that the facts 
 found against them did not constitute disobedience to the writs of in- 
 junction and that their commitment in the manner and for the reasons 
 alleged was without justification and not within the constitutional power 
 and jurisdiction of the Circuit Court. 
 
 On this application the case was elaborately argued before the Su- 
 preme Court in March, 1895; and on the 2yth day of May, 1895, the 
 court rendered its decision, upholding on the broadest grounds the pro- 
 ceedings to the Circuit Court and confirming its adjudication and the 
 commitment to jail of the petitioners thereupon. 
 
 Justice Brewer, in delivering the unanimous opinion of the Supreme 
 Court, stated the case as follows : 
 
 "The United States, finding that the interstate transportation of persons and 
 property, as well as the carriage of mails, is forcibly obstructed and that a 
 combination and conspiracy exists to subject the control of such transportation 
 to the will of the conspirators, applied to one of their courts sitting as a court 
 of equity, for an injunction to restrain such obstructions and prevent carrying 
 into effect such conspiracy. Two questions of importance are presented: 
 First, are the relations of the General Government to interstate commerce and 
 the transportation of the mails, such as authorize a direct interference to pre- 
 vent a forcible obstruction thereof? Second, if authority exists as authority 
 
46 AMERICAN FEDERAL GOVERNMENT 
 
 in governmental affairs implies both power and duty has a court of equity 
 jurisdiction to issue an injunction in aid of the performance of such duty?" 
 
 Both of these questions were answered by the court in the affirmative ; 
 and in the opinion read by the learned justice, the inherent power of 
 the Government to execute by means of physical force through its official 
 agents, on every foot of American soil, the powers and functions belong- 
 ing to it, was amply vindicated by a process of reasoning, simple, logical, 
 unhampered by fanciful distinctions, and absolutely conclusive; and 
 the Government's resort to the court, the injunction issued in its aid, and 
 all the proceedings thereon, including the imprisonment of Debs and 
 his associates, were fully approved. 
 
 Thus the Supreme Court of the United States has written the con- 
 cluding words of this history, tragical in many of its details, and in every 
 line provoking sober reflection. As we gratefully turn its concluding 
 page those most nearly related by executive responsibility to the troublous 
 days whose story is told may well congratulate themselves especially 
 on their participation in marking out the way and clearing the path, 
 now unchangeably established, which shall hereafter guide our nation 
 safely and surely in the exercise of its functions, which represent the 
 people's trust. 
 
Ill 
 
 THE EXECUTIVE AND CONGRESS 
 
 [The relation of the Executive to Congress has been subject to special dis- 
 cussion of late. The strict separation of the three departments in matters of 
 government being impossible, there has in general been a feeling that it is 
 entirely proper for executive officials and the President to interest themselves in 
 legislative measures affecting their particular work. This opinion has, however, 
 not passed without opposition as other men have held that while it is allowable 
 for the executive to suggest legislation, a direct interference in the process of 
 legislative work would lie beyond the proper sphere of executive duty. The 
 following extract from a speech of James A. Garfield discusses the general 
 considerations involved and pronounces in favor of a closer relation between 
 the legislative and the executive. The action of the President in connection 
 with the Railway Rate legislation, which was subjected to much criticism, is 
 defended by Senator Dolliver, and Mr. Adams discusses the part of the Execu- 
 tive in the preparation and passage of the Meat Inspection bill. The views of 
 the opposition are developed by Senator Rayner and Mr. Williams. For earlier 
 discussions of the relations of the President to Congress see President Folk's 
 annual message of December, 1848, and President Buchanan's special mes- 
 sages of March 28, and June 22, 1860.] 
 
 JAMES A. GARFIELD ON THE EXECUTIVE AND 
 CONGRESS l 
 
 NOT the least serious evil resulting from this ^invasion of the executive 
 functions by members of Congress is the fact that it greatly impairs their 
 own usefulness as legislators. One third of the working hours of Sena- 
 tors and Representatives is hardly sufficient to meet the demands made 
 upon them in reference to appointments to office. The spirit of that 
 clause of the Constitution which shields them from arrest "during their 
 attendance at the session of their respective houses, and in going to or 
 returning from the same," should also shield them from being arrested 
 from their legislative work, morning, noon, and night, by office-seekers. 
 To sum up in a word, the present system invades the independence of 
 the Executive, and makes him less responsible for the character of his 
 1 From an address on "A Century of Congress " (1877). See Works, II, 483. 
 
 47 
 
48 AMERICAN FEDERAL GOVERNMENT 
 
 appointments ; it impairs the efficiency of the legislator by diverting him 
 from his proper sphere of duty, and involving him in the intrigues of 
 aspirants for office ; it degrades the civil service itself by destroying the 
 personal independence of those who are appointed; it repels from the 
 service those high and manly qualities which are so necessary to a pure 
 and efficient administration; and finally, it debauches the public mind 
 by holding up public office as the reward of mere party zeal. 
 
 To reform this service is one of the highest and most imperative duties 
 of statesmanship. This reform cannot be accomplished without a com- 
 plete divorce between Congress and the Executive in the matter of ap- 
 pointments. It will be a proud day when an administration Senator or 
 Representative, who is in good standing in his party, can say, as Thomas 
 Hughes said during his recent visit to this country, that, though he was 
 on the most intimate terms with the members of the English adminis- 
 tration, yet it was not in his power to secure the removal of the humblest 
 clerk in the civil service of the government. 
 
 This is not the occasion to discuss the recent enlargement of the juris- 
 diction of Congress in reference to the election of a President and Vice- 
 President by the States. But it cannot be denied that the Electoral Bill 
 has opened a wide and dangerous field for Congressional action. Un- 
 less the boundaries of its power shall be restricted by a new amendment 
 of the Constitution, we have seen the last of our elections of President 
 on the old plan. The power to decide who has been elected may be so 
 used as to exceed the power of electing. 
 
 I have long believed that the official relations between the Executive 
 and Congress should be more open and direct. They are now conducted 
 by correspondence with the presiding officers of the two Houses, by con- 
 sultation with committees, or by private interviews with individual mem- 
 bers. This frequently leads to misunderstandings, and may lead to cor- 
 rupt combinations. It would be far better for both departments if the 
 members of the Cabinet were permitted to sit in Congress and partici- 
 pate in the debates on measures relating to their several departments, 
 but, of course, without a vote. This would tend to secure the ablest men 
 for the chief executive offices ; it would bring the policy of the admin- 
 istration into the fullest publicity by giving both parties ample oppor- 
 tunity for criticism and defense. 
 
 As a result of the great growth of the country and of the new legisla- 
 tion arising from the late war, Congress is greatly overloaded with work. 
 It is safe to say that the business which now annually claims the atten- 
 tion of Congress is tenfold more complex and burdensome than it was 
 forty years ago. For example: the twelve annual appropriation bills, 
 with their numerous details, now consume two thirds of each short ses- 
 sion of the House. Forty years ago, when the appropriations were made 
 more in block, one week was sufficient for the work. The vast extent of 
 our country, the increasing number of States and Territories, the legisla- 
 
THE EXECUTIVE AND CONGRESS 49 
 
 tion necessary to regulate our mineral lands, to manage our complex 
 systems of internal revenue, banking, currency, and expenditure, have so 
 increased the work of Congress that no one man can even read the bills 
 and the official reports relating to current legislation, much less qualify 
 himself for intelligent action upon them. As a necessary consequence, 
 the real work of legislation is done by the committees ; and their work 
 must be accepted or rejected without full knowledge of its merits. This 
 fact alone renders leadership in Congress, in the old sense of the word, 
 impossible. For many years we have had the leadership of committees 
 and chairmen of committees ; but no man can any more be the leader of 
 all the legislation of the Senate or of the House than one lawyer or one 
 physician can now be foremost in all the departments of law or medicine. 
 The evils of loose legislation resulting from this situation must increase, 
 rather than diminish, until a remedy is provided. 
 
 John Stuart Mill held that a numerous popular assembly is radically 
 unfit to make good laws, but is the best possible means of getting good 
 laws made. He suggested, as a permanent part of the constitution of a 
 free country, a legislative commission, composed of a few trained men, 
 to draft such laws as the legislature, by general resolutions, shall direct, 
 which draft shall be adopted by the legislature, without change, or re- 
 turned to the commission to be amended. Whatever may be thought of 
 Mr. Mill's suggestion, it is clear that some plan must be adopted to re- 
 lieve Congress from the infinite details of legislation, and to preserve 
 harmony and coherence in our laws. 
 
 Another change observable in Congress, as well as in the legislatures 
 of other countries, is the decline of oratory. The press is rendering the 
 orator obsolete. Statistics now furnish the materials upon which the 
 legislator depends ; and a column of figures will often demolish a dozen 
 pages of eloquent rhetoric. 
 
 Just now, too, the day of sentimental politics is passing away, and the 
 work of Congress is more nearly allied to the business interests of the 
 country and to "the dismal science," as political economy is called by 
 the "practical men" of our time. The legislation of Congress comes 
 much nearer to the daily life of the people than ever before. Twenty 
 years ago, the presence of the national government was not felt by 
 one citizen in a hundred. Except in paying his postage and receiving his 
 mail, the citizen of the interior rarely came in contact with the national 
 authority. Now, he meets it in a thousand ways. Formerly the legisla- 
 tion of Congress referred chiefly to our foreign relations, to indirect taxes, 
 to the government of the army, the navy, and the Territories. Now, a 
 vote in Congress may, any day, seriously derange the business affairs of 
 every citizen. 
 
 And this leads me to say that now, more than ever before, the people 
 are responsible for the character of their Congress. It that body be igno- 
 rant, reckless, and corrupt, it is because the people tolerate ignorance, 
 
50 AMERICAN FEDERAL GOVERNMENT 
 
 recklessness, and corruption. If it be intelligent, brave, and pure, it is 
 because the people demand those high qualities to represent them in the 
 national legislature. Congress lives in the blaze of "that fierce light 
 which beats against the throne." The telegraph and the press will to- 
 morrow morning announce at a million breakfast-tables what has been 
 said and done in Congress to-day. Now, as always, Congress represents 
 the prevailing opinions and political aspirations of the people. The 
 wildest delusions of paper money, the crudest theories of taxation, the 
 passions and prejudices that find expression in the Senate and House, 
 were first believed and discussed at the firesides of the people, on the 
 corners of the streets, and in the caucuses and conventions of political 
 parties. 
 
 SENATOR DOLLIVER ON THE PRESIDENT 1 
 
 THE Senate, as in Committee of the Whole, resumed the consideration 
 of the bill (H. R 12987) to amend an act entitled "An act to regulate 
 commerce," approved February 4, 1887, and all acts amenclatory 
 thereof, and to enlarge the powers of the Interstate Commerce Com- 
 mission. 
 
 Mr. DOLLIVER. Mr. President, I have listened with very great atten- 
 tion and pleasure to the speech of the honorable Senator from Missouri 
 [Mr. Stone], and I do not rise now for the purpose of replying to it, for 
 the reason that in the main the Senator's researches have brought him to 
 the same conclusions that have influenced my own opinions. I am in- 
 clined to think that while in the main the analysis of the Senator from 
 Missouri of the jurisdiction of the courts under the House bill and under 
 the amendment which has been offered to that bill by the Senator from 
 Kansas [Mr. Long] is correct, a slight element of misunderstanding 
 enters into his statement. 
 
 I have held from the beginning that the House bill is so framed that the 
 courts have under it exactly the jurisdiction which the Constitution gives 
 them. I have considered the fixing of a railroad rate through the Com- 
 mission as an act of Congress. I can find no authority in the Constitu- 
 tion for the exercise of the power to regulate interstate commerce except 
 that power which is conferred upon the Congress; and I have been 
 driven by long meditation to the conclusion that whatever else this order 
 of the Commission is, it is an act of Congress ; for Congress has the only 
 power conferred by the Constitution to regulate commerce between the 
 States. 
 
 ******** 
 
 I have risen for a different purpose. Much has been said some of 
 it with marked solemnity and seriousness and some with evident appre- 
 
 1 Congr. Record, April 5, 1906. 
 
THE EXECUTIVE AND CONGRESS 51 
 
 elation of the humor which is supposed to be involved in it about the 
 interference of the President of the United States in the work of the Senate. 
 Nobody denies that the President has a certain relation to the legislative 
 business of the Government of the United States. At any rate, if there 
 ever was an excuse given to the President of the United States to publicly 
 explain his views and opinions, it has been given by the course of this 
 debate. 
 
 On last Saturday my distinguished friend the Senator from Ohio [Mr. 
 Foraker], responding to a request, or a suggestion, I suppose, of the 
 legislature of that State calling upon him to support the President, wrote 
 a letter that he was supporting the President, and proved it by quoting 
 from the President's message that he desired the proceedings of the 
 Commission to be subject to judicial review. And only this morning a 
 famous newspaper printed an extract from the President's message, and 
 denounced the amendment of my honorable friend the Senator from 
 Kansas on the ground that it was in violation of the President's views 
 and attitude upon this question. 
 
 I am not one of those who have been irritated by the interest which the 
 President of the United States has taken in this controversy. His interest 
 has been upon the broadest and highest national ground. He has stated 
 his views and convictions to the American people in every section of the 
 country, and not one line can be attributed to him having in it the trace of 
 a partisan outlook upon this great national question. Therefore what- 
 ever interest he has taken in it can certainly not be attributed to a partisan 
 design of any kind or character. 
 
 I have been familiar for a good many years with the attitude of the 
 Executive Department of the Government toward the work of Congress. 
 There is a member of the Senate now who, if he were disposed to give 
 his experience, would be able to verify what I say, that it has been for 
 many years the no uncommon practice for the Congress of the United 
 States to take counsel with the- Executive Departments in perfecting 
 great acts of national legislation. There are at least five acts of legisla- 
 tion, all of them referring to this and similar questions, that were put 
 through both Houses of Congress in the last five years practically with- 
 out change, as they came from the office of the Attorney-General of the 
 United States. 
 
 In the present controversy the Attorney-General has certainly had the 
 invitation of the legislative branch of the Government to take an interest 
 in this matter. A'mong the very first things the Committee on Interstate 
 Commerce did was to invite him to give his opinion in writing to the com- 
 mittee explaining to us our powers and making what suggestions he 
 thought desirable in relation to this legislation, It is a difficult, a com- 
 plex, an almost impenetrable subject with which we have been called 
 upon to deal, and I do not propose to be disparaged or to allow anybody 
 else to be disparaged by a sneering suggestion that we have consulted the 
 
52 AMERICAN FEDERAL GOVERNMENT 
 
 Attorney-General or even the President of the United States. I count it 
 just as respectable and just as perfectly in line with my public duty to 
 take counsel with the President of the United States on these questions 
 as for my colleagues and for others to hold sweet counsel with the 
 presidents of railroad corporations. 
 
 Mr. President, I do not propose to submit, without at least a word of 
 protest, to the suggestion that the President of the United States is de- 
 livering over this bill to the tender mercies of its enemies. It is a non- 
 partisan proposition. It has friends on both sides of this Chamber, good 
 friends on both sides of this Chamber. It has possibly enough to 
 perfect the legislation and put it through in an effective and satisfactory 
 form. But whether or not it has that number of members of the Senate 
 in favor of it, its friends do not propose to surrender any principle that 
 is involved in it. They have had a long and arduous fight, and they are 
 ready for a good many years of fighting yet. I undertake to say here that 
 if the Senate of the United States does not conform this measure to the 
 petition of those who have supported it by the million throughout the 
 United States we do not settle this question. Unless the effective legis- 
 lation which is demanded by the American people is given by the Con- 
 gress of the United States, instead of settling this issue we merely create 
 the largest national issue with which this generation will have to deal. 
 
 Mr. President, there is not a line in the public or private writings of the 
 President of the United States to warrant the suggestion that any man is 
 supporting him or supporting the ideas to which he has given expression 
 during the last two years by so amending this bill as to transfer this power 
 of Congress to the Courts of the United States. The newspaper to which 
 I alluded a moment ago printed an extract from one of the President's 
 speeches, and followed it with a denunciation of the amendment which 
 my friend the Senator from Kansas introduced yesterday, leaving the 
 impression upon the public mind, with a curious mixture of sincerity and 
 satire, that the President of the United States had either changed his 
 position or had never occupied any such position as he would be put in 
 by the amendment of the Senator from Kansas. 
 
 Fortunately in connection with the President's messages we have some 
 outside knowledge of what his notions and his ideas have been in respect 
 to these matters, because with a freedom which has been characteristic 
 of his public career, and I think a very admirable part of his idea of 
 public duty, he has taken the American people into his confidence in 
 every section of the United States. It is true that in his message he sug- 
 gested that the orders of the Commission were to be subject to the re- 
 view of the courts, and if I have correctly interpreted the purpose of the 
 honorable Senator from Kansas in introducing his amendment, it was 
 for the purpose of defining before the American people exactly what sort 
 of a review the friends of this legislation desire to have. 
 
 Not one of them desires to leave this railroad property without redress 
 
THE EXECUTIVE AND CONGRESS 53 
 
 against a violation of constitutional rights. Not one of them desires an 
 act of oppression or injustice against these carriers, whether committed 
 in malice or through error, to go without a proper redress in the courts 
 of the United States. 
 
 The President of the United States in his annual message asked that 
 these orders be made "subject to review in the courts." But for months 
 before that he had been explaining to the American people exactly what 
 jurisdiction he thought the courts should occupy in the matter, and I 
 desire to take the opportunity of putting into the Record an extract from 
 a speech made by the President before a Democratic club in the city 
 of Chicago the Iroquois Club some time before the last message 
 to Congress was sent, which, in my humble judgment, shows that the 
 President occupies now exactly the position he occupied then, and ex- 
 actly the position which he explained in his brief recommendation to 
 Congress last December upon this subject. He said: 
 
 Personally, I believe that the Federal Government must take an increasing 
 control over corporations. It is better that that control should increase by 
 degrees than that it should be assumed all at once. But there should be, and I 
 trust will be, no halt in the steady progress of assuming such national control. 
 The first step toward it should be the adoption of a law conferring upon some 
 executive body the power of increased supervision and regulation of the great 
 corporations engaged primarily in interstate commerce of the railroads. My 
 views on that subject could not have been better expressed than they were 
 expressed yesterday by Secretary Taft in Washington, and as they were ex- 
 pressed by the Attorney-General in his communication to the Senate committee 
 a couple of weeks ago : "I believe that the representatives of the nation that 
 is, the representatives of all the people should lodge in some executive body 
 the power to establish a maximum rate, the power to have that rate go into 
 effect practically immediately, and the power to see that the provisions of the 
 law apply in full to companies owning private cars and private tracks just as 
 much as the railroads themselves. The courts will retain, and should retain, 
 no matter what the Legislature does, the power to interfere and upset any action 
 that is confiscatory in its nature." 
 
 Again, in his speech delivered before the Chamber of Commerce of 
 Denver only a few months before the sending of the President's last 
 message to Congress, he used these words: 
 
 But with that statement as a preliminary, I wish to urge with all the earnest- 
 ness I possess, not only upon the public, but upon those interested in the great 
 railway corporations, the absolute need of acquiescence in the enactment of 
 such law. As has been well set forth by the Attorney-General, Mr. Moody, in 
 his recent masterly argument presented to the committee of the Senate which is 
 investigating the matter, the legislators have the right, and, as I believe, the 
 duty, to confer these powers upon some executive body. It can not confer 
 them upon any court, nor can it take away the court's power to interfere if the 
 law is administered in a way that amounts to confiscation of property. 
 
54 AMERICAN FEDERAL GOVERNMENT 
 
 So, from the beginning the President has been clear and straight in 
 his interpretation of his situation, and I doubt very much whether it 
 would have been necessary for him to address these speeches to the 
 country or to take the slightest interest, with those who have been trying, 
 amid a good many difficulties, to perfect legislation, if it were not for 
 the fact that persistently the argument for a review of the orders of the 
 Commission and a trial of the case de novo in the courts, from the be- 
 ginning of this debate, has taken refuge behind six words in the Presi- 
 dent's message, to wit, that the order of the Commission should be sub- 
 ject to review in the courts. 
 
 I submit in all fairness that it is hardly proper for men who know 
 exactly what the President of the United States has stood for, exactly 
 what he is trying to do, whether they indorse it or nor it is hardly 
 proper to deal with the American people, with the idea that they are 
 supporting the President, when in point of fact they are urging a propo- 
 sition that is not only not contained in anything the President has ever 
 said, but reduces the President's recommendation to a practical and 
 legal absurdity before the whole country. 
 
 I have spoken in this way, Mr. President, not for the purpose of irri- 
 tating anybody's feelings. I know that much is said here in the Senate 
 about Executive interference, but I close by suggesting that the institu- 
 tions and legislation of the American people are much more liable to be 
 damaged here in the Senate of the United States by interference from 
 other quarters than by the friendly and patient suggestions of the Presi- 
 dent of the United States. 
 
 Mr. BAILEY. Mr. President, I belong to that very small class of 
 Senators and Representatives who do not believe that it is proper for 
 them to be influenced in the performance of their legislative duties by 
 the views of the executive department ; and it has never been my prac- 
 tice since I had the honor to occupy a seat in Congress to confer with 
 any President, either of my own or of the opposition party, in respect to 
 any legislation. 
 
 The only exception I ever made and that more apparent than 
 real was in the case of the lamented and martyred McKinley, whose 
 invitation I accepted to confer with him in the hope that we might find 
 a way to avert the war with Spain. Upon a question like that, which 
 was not legislative, I felt that any Member of Congress might properly 
 confer with the Executive of the Republic. But, sir, I have so often 
 seen and this applies not only to the present President of the United 
 States, but to his predecessors in that great office I have so often seen 
 the judgment of Congress overruled or controlled by Executive influence 
 that early in my service in the other House I resolved that it should never 
 prevail with me. 
 
 I remember when a mere schoolboy reading of a great Virginia Demo- 
 crat being invited to the White House by a President, of his own party 
 
THE EXECUTIVE AND CONGRESS 55 
 
 and chosen from his own State, to confer upon an important question 
 pending in the Congress, and I remember how my youthful blood was 
 made to run faster when I read how that great Virginia Democrat said : 
 "Mr. President, the Constitution of the United States has separated 
 the executive and the legislative departments of this Government, and, 
 by the help of God, I intend to keep them separate." I adopted that 
 as my creed and I have lived up to it from that day to this. 
 
 But I must say if ever a President was justified in conferring with his 
 friends in Congress, this measure and these circumstances furnish that 
 justification. Earnestly and, as I believe, sincerely striving to put upon 
 the statute book a useful measure, he finds himself confronted with the 
 opposition of his own party. I am safely within the truth when I say 
 that less than one-third of the President's party friends in this Chamber 
 sympathize with this effort to secure the enactment of this legislation. 
 
 Mr. ALDRICH. Mr. President 
 
 Mr. BAILEY. I hope the Senator from Rhode Island is going to in- 
 clude himself in that one-third who help the President. 
 
 Mr. ALDRICH. So far as I know, there is no Senator sitting upon 
 this side who does not sympathize fully with the Senator from Texas 
 and the President of the United States in a desire to secure effective 
 and proper legislation with reference to the regulation of railroad rates. 
 That a large part of the Senators on this side do not sympathize either 
 with the President or with the junior Senator from Iowa in an attempt 
 and purpose to so limit and circumscribe the rights of the people of the 
 United States that they can not be effectively secured through the courts 
 of the country I will frankly admit. 
 
 Mr. BAILEY. Mr. President, the Senator from Rhode Island always 
 knows exactly what he wants, but he sometimes makes the mistake of 
 supposing that other people do not also know what he wants. I know 
 that a large number of Republican Senators honestly believe that this 
 legislation is unnecessary, and another per cent of gentlemen on that 
 side honestly believe that it will be hurtful. I have no quarrel with them, 
 if that is their honest opinion; and I am one of the men who believe 
 and who dare to say, in spite of all the slanders that fill the air, that a 
 large majority of the men in this body want to do what they think is 
 right. I accord to others the same honesty of purpose and motive that 
 I claim for myself, but it is no impeachment of their patriotism to say that 
 they differ with the President, and their differences with him, I repeat, 
 make it permissible, if it can ever be permissible, for the Executive to 
 seek conferences with the members of the legislative department. 
 
 Now, Mr. President, one expression by the Senator from Iowa [Mr. 
 Dolliver] gives me even more concern than the open admission that the 
 President has been striving by conference and suggestion to shape the 
 legislation of Congress on this subject. The Senator from Iowa says 
 that those who have conferred with the President have rendered the 
 
56 AMERICAN FEDERAL GOVERNMENT 
 
 country a better service than others who have been conferring with the 
 presidents of railroads. I cordially agree to that statement. But, Mr. 
 President, the Senate is entitled to know who it is here who has been 
 conferring with the presidents of the railroads. If any Senator here 
 has been conferring with the railroads or the presidents of the railroads, 
 with a view to defeating legislation in the public interest, the Senate is 
 entitled to know it, and the country is entitled to know it. 
 
 The Senator from Iowa is not given to intemperate or incautious 
 speech, and when he suggests that Senators who are striving to accom- 
 plish the defeat of this bill are consulting with the presidents of railroads 
 with a view to that end, just as he and others who are striving to pass it 
 are consulting with the President of the United States with a view to 
 that end, he utters a serious reflection upon some Senators not upon 
 the Senate, because no man believes that such conferences as that in- 
 clude the Senate. But if they include any Senator or any Senators, the 
 country and the Senate are entitled to know who these Senators are. 
 
 Mr. Fo RAKER. Mr. President, the Senator from Texas [Mr. Bailey] 
 has only anticipated what I wanted to say. As the Senator from Texas 
 has well said, the charge for it is not anything short of that that 
 Senators who are in opposition to the bill he is supporting are in con- 
 ference here from time to time with presidents of railroads 
 
 Mr. ALDRICH. With a view of defeating the bill. 
 
 Mr. FORAKER. With a view of defeating the bill is a most serious 
 one, and the Senators referred to should be named. I respectfully de- 
 mand of the Senator from Iowa that he name the Senators, so that if 
 there is a member of this body engaged in such conferences we may 
 know who it is. 
 
 Mr. DOLLIVER. I shall take the liberty of not pursuing that con- 
 troversy. 
 
 Mr. FORAKER. Well, Mr. President, it seems to me the Senate has 
 a right to know. I do not imagine the Senator refers to me, but I do 
 know, as every other Senator must know, that the suggestion of the 
 Senator was broad enough to include every member of this body. 
 
 Mr. DOLLIVER. I have never dreamed that there was any impro- 
 priety in consulting with presidents of railroads. I presume hardly a 
 man here but has sought the counsel and suggestion of those who were 
 practically familiar with railway business. In connection with my 
 honorable friend from Ohio, I spent three months last spring hearing 
 the views of as distinguished a group of railroad managers as ever as- 
 sembled anywhere in the world, and I have never thought that a man 
 could not talk with railroad presidents without being charged with some 
 form of impropriety. I have no notion that a man can be guilty of the 
 offense of consulting with the Chief Magistrate of the American people 
 without being made the subject of ridicule and misconstruction of his 
 motive. 
 
THE EXECUTIVE AND CONGRESS 57 
 
 Mr. FORAKER. I have never complained of anyone who has seen 
 fit to confer with the Chief Magistrate of the nation. I do so whenever 
 I see fit to and he will permit it. I am always glad to do it. I never 
 think of anyone conferring with the President having any improper 
 motive in veiw. 
 
 So far as conferences with railroad presidents are concerned, I do 
 not know of any on the part of any member of this body. It is true that 
 when the Senate Committee on Interstate Commerce had hearings, 
 covering five or six weeks last spring, a number of railroad officials ap- 
 peared before that committee and gave their testimony, just the same 
 as any other witnesses ; but I do not know of any member of the com- 
 mittee conferring with those railroad officials at that time. I do not 
 know of any member of that committee or any member of this body 
 conferring at any time or place with any railroad official concerning this 
 proposed legislation. 
 
 Now, Mr. President, it will not do for the Senator to say he had no 
 thought or purpose of insinuating that there w r as anything improper in 
 such conferences, for the Senator said in so many words that Senators 
 had been conferring with railroad presidents in order that they might 
 better know how to defeat this legislation. Only one inference could be 
 drawn from that, and that was that men who do not agree with the 
 Senator from Iowa in his support of this measure were representing in 
 some such way as has been charged railroad interests or railroad officials. 
 I know of no railroad officials having anything whatever to do with this 
 legislation, except only to express their views when they came before the 
 committee. No railroad official, so far as I can recall, has ever talked 
 with me at any time or any place, and I do not believe that any railroad 
 official has ever talked in any improper way with anybody else who is 
 in opposition to this proposed legislation. 
 
 Mr. TILLMAN. If the Senator will pardon me, I saw in the news- 
 papers a day or two ago a statement that President Mellen, of one of 
 the New England roads I have forgotten which had been to the 
 White House for lunch, conferring with the President about this matter, 
 and rumor had it that he went there to demand that certain features of 
 the Hepburn bill should be stricken out that part of the bill which 
 relates to requiring the railroads to keep a certain kind of books and 
 no other kind. 
 
 While I am on my feet, if the Senator will pardon me, I should like, 
 as one witness, to give some little testimony in this interesting contro- 
 versy among the brethren on that side as to what took place at the hear- 
 ings before the Interstate Commerce Committee. I can not recall the 
 date, but I recollect very distinctly that a gentleman came into the 
 committee room and, after shaking hands with a few of his friends, 
 passed on to the inner sanctuary, and I did not see him any more ; but I 
 was afterwards informed that he was Mr. A. J. Cassatt, of the Pennsyl- 
 
58 AMERICAN FEDERAL GOVERNMENT 
 
 vania road. Now, what his business was or with whom he conferred 
 I do not pretend to say. I merely state that as a fact. 
 
 Mr. FORAKER. Mr. President, I do not know anything about the 
 occasion to which the Senator refers. I never met Mr. Cassatt but once 
 in my life, and I met him at the White House then. He was there calling 
 upon the President. 
 
 Mr. President, let me call attention to the fact in this connection, 
 now that Mr. Cassatt has been named in the way he has, that he is one 
 of the railroad presidents of the country who has been favoring this 
 proposed rate making on the part of the Government for the railroads 
 of the country, and Mr. Mellen, who was referred to, is another. They 
 have been advocates of this kind of legislation all the while. There are 
 railroads on both sides of the question. At least, such is the report as 
 to Mr. Cassatt and Mr. Mellen. 
 
 I have very frequently seen notices of their presence in the city, but 
 never having seen Mr. Cassatt but the one time, of course I do not know 
 what he was here for, except only as the newspapers may have advised. 
 I never met Mr. Mellen ; I do not know him at all ; but I have noticed 
 that he has been here frequently and that at such times he was usually in 
 conference with the President, and always about railway rate legislation. 
 
 I can understand, Mr. President, why Mr. Cassatt, representing the 
 Pennsylvania Railroad, might favor this kind of legislation. He repre- 
 sents a railroad that covers the heart of the country; a railroad so 
 situated and so powerful, having so many advantages, that it could 
 grow inordinately rich on what might destroy other railroad properties. 
 I do not know of anybody else equally fortunately situated. If any- 
 body else is so equally fortunately situated, it is Mr. Mellen and his 
 road; and they are both in favor of this kind of legislation. 
 
 REPRESENTATIVE ADAMS ON THE EXECUTIVE 1 
 
 Mr. ADAMS. Mr. Speaker, the gentleman from Mississippi [Mr. 
 Williams] has told the truth, and it is idle to disguise it, that the Presi- 
 dent of the United States and the Speaker of this House have agreed 
 with reference to the bill which is now before you. The gentleman from 
 Mississippi, with his characteristic intellectual integrity, manifested in 
 this instance, as it has been in many others, accepts the situation, says 
 it is a good bill, and makes no complaint because the President of the 
 United States and the Speaker of this House agree with him. 
 
 Now, Mr. Speaker, what has happened? The Secretary of Agricul- 
 ture sent a committee to Chicago to investigate the conditions under 
 which the packing-house industry of that city was carried on. That 
 committee submitted an elaborate and complete report, covering every 
 
 1 Congr. Record, June 19, 1906. 
 
THE EXECUTIVE AND CONGRESS 59 
 
 building, covering every room a report which was simple, direct, con- 
 cise, evidently prepared without passion and without prejudice, telling 
 the exact truth; and the exact truth was that in the great center of the 
 meat-handling industry of the United States conditions existed which 
 threatened the character and integrity of the meat products of the 
 United States. That report was submitted to the President. In order 
 to confirm it, or not confirm it, he selected two men in whom he had 
 confidence, who did not claim to be experts, who were ordinary, intelli- 
 gent citizens, having the judgment of ordinary, intelligent citizens, 
 and sent them there to make such an investigation as you and I would 
 make. The report of those two gentlemen confirmed the report 
 that was made to the Secretary of Agriculture. The President 
 of the United States, understanding, as you and I understand, that 
 meat is something which goes into the consumption of every family, 
 knowing, as you and I know, that the great meat industry of the United 
 States exports to foreign lands $200,000,000 worth of meat a year, 
 knowing the importance of this subject, communicated the facts to 
 Congress. Why? In order that public sentiment might be stirred all 
 over the United States, and that the legislative judgment of this body 
 and the other across the Capitol might be stirred to enact into law a pro- 
 vision for governmental inspection, which should insure the healthful- 
 ness, the wholesomeness, the cleanliness, the purity, and perfection of 
 American meat products. [Applause.] That is all there is of it. 
 
 A bill passed the Senate, passed without consideration, a provision 
 conceived by a gentleman who wished to do good things, who was moved 
 by a good purpose. That bill was imperfect. It came over here and 
 was sent to the Committee on Agriculture. Hearings were had. Repre- 
 sentatives of the packers were heard ; representatives of the Agricultural 
 Department were heard; the men who went to Chicago to investigate 
 were heard. The committee gave ample consideration to the repre- 
 sentatives of all these interests; and I want to say to you, gentlemen, 
 with reference to the truth of the charges which have been made, that 
 when Mr. Wilson, the representative of the packers of Chicago, who 
 came there and very modestly and very clearly stated what he deemed 
 the conditions to be in Chicago, and then, in response to questions, ad- 
 mitted that every solitary conclusion of Mr. Neill and Mr. Reynolds 
 in their report should be carried out, he confessed judgment on the essen- 
 tial points in this controversy. [Applause.] And when the board of 
 health of Chicago sent their representative, under the spur of public 
 feeling that has been applied in this case, into the packing- house district 
 and started to work there, in nearly every establishment the truth of 
 the charges was again sustained. There is no question about it. The 
 committee took up that bill in the utmost good faith, every man actuated 
 with the desire to draw and present to this House a measure which 
 should compel rigid and, in so far as human judgment could make it, 
 
60 AMERICAN FEDERAL GOVERNMENT 
 
 perfect inspection of meat, to give us a bill which should not only be 
 just to the producing interests of the United States, but also fair and 
 just to those great manufacturing interests which are handling hun- 
 dreds of millions of dollars' worth of the meat products of this country. 
 The committee worked in absolute good faith. They have no pride of 
 opinion. There was but one purpose among the members of that com- 
 mittee and that was to make the bill right. I disagreed with the majority 
 in the first report which came here, providing for a court review. I do not 
 believe that every time the Congress of the United States draws a law, 
 under the power which it has over interstate commerce, to regulate some 
 particular kind of business, we must provide in that particular bill for 
 some particular kind of court review. That provision has gone out of the 
 bill. 
 
 It is true that I have consulted with the President. It is true that the 
 Speaker of this House has taken hold of this thing as a Member of the 
 House and as an American citizen, and has worked with Mr. Roosevelt. 
 Neither has shown any pride of opinion, but a simple desire to yield 
 non-essentials in order that the executive branch of the Government and 
 the legislative branch of the Government and the American people, all 
 of whom want a good law, may have it. [Applause.] 
 
 SENATOR RAYNER ON CONGRESS AND THE 
 EXECUTIVE 1 
 
 WE come now to another and a different scene. The pivotal point 
 around which the railroad rate bill revolved for months in this Chamber 
 was the character of review that the courts were to assume under its 
 provisions. One side claimed that the courts should only exercise a 
 constitutional review under the fifth amendment; the other side advo- 
 cated a full statutory review from the proceedings of the Interstate 
 Commerce Commission. 
 
 The President came into the game early. We realize that no fight 
 is thoroughly equipped upon this floor unless the President is in it. He 
 longs for a fight as the hart panteth after the water brooks. It was a 
 match to the finish between the senior Senator from Rhode Island and 
 the President. They stood respectively in the foremost ranks of their 
 profession. The Senator from Rhode Island was an expert in the ring 
 and had upon many an occasion in this arena been awarded the victor's 
 prize. The President, also, was a dean in the art. and had reached a 
 degree of eminence in his calling that made him a dangerous foe to en- 
 counter. It was a most interesting spectacle. The Senator from Rhode 
 Island time and time again went down beneath the ponderous blows of 
 his opponent, but each time he arose like Aurora, the goddess of the 
 
 1 Congr. Record, Jan. 31, 1907. See another part of the speech, supra. 
 
THE EXECUTIVE AND CONGRESS 61 
 
 dawn, arose from her chariot in the sea. At length science commenced 
 to tell. The Senator from Rhode Island had reserved his strength for 
 the last encounter. The President had changed his tactics so often that 
 he became exhausted and appealed for help. One morning the Senator 
 from Rhode Island appeared in this Chamber with a radiant smile. 
 The President had never penetrated the meaning of that smile. It had 
 lured him like the sirens lure their victims to destruction. The smile 
 indicated that the tournament was over. The Senator from South 
 Carolina looked upon the other side of the Chamber for his promised 
 troops, but they had fled and vanished. An ex-Senator from New 
 Hampshire lay dead upon the field. The President lay entangled in 
 his armor, and his breastplate and his battle-ax were shattered, and 
 above him waved the pennant of Rhode Island, and the Senator from 
 Rhode Island smiled. If the President had only kept out of this fray 
 it would have assumed an entirely different form and ended in an en- 
 tirely different way. It was impossible, however, for him to do this. 
 He could not remain quiescent in the White House and observe a great 
 struggle like this progressing without taking part in it. So that he got 
 into it, it really did not make much difference to him upon which side 
 he was enlisted. One day he was upon one side and the next day he 
 was upon the other. 
 
 Here we were day after day struggling with questions of constitu- 
 tional law, as if we really had anything to do with their settlement, 
 laboring under the vain delusion that we had the right to legislate ; that 
 we were an independent branch of the Government; that we were one 
 department, and the Executive another, each with its separate and well- 
 defined distinctions, imagining these things, and following a vision and 
 a mirage, while the President was at work dominating the legislative 
 will, interposing his offices into the law-making power, assuming legisla- 
 tive rights to a greater extent than he could possibly do if he were sitting 
 here as a member of this body; dismembering the Constitution, and 
 exercising precisely and identically the same power and control as if 
 the Constitution had declared that Congress shall pass no law without 
 the consent of the President; adopting a system that practically blends 
 and unites legislative and executive functions, a system that prevailed 
 in many of the ancient governments that have forever gone to ruin, and 
 which to-day still obtains in other governments, the rebellious protests of 
 whose subjects are echoing over the earth, and whose tottering fabrics 
 I hope are on the rapid road to dissolution. 
 
 If I were called upon to select the most wonderful exhibition of the 
 President's power that has occurred within my experience, I would 
 take our action upon the canal bill at the close of the last session of 
 Congress. This was an achievement in which his consummate skill in 
 propelling legislation appeared in its most perfect proportions. We had 
 all heard the argument of the junior Senator from South Dakota in favor 
 
62 AMERICAN FEDERAL GOVERNMENT 
 
 of a sea- level canal, and its demonstrative facts and unanswerable logic 
 seemed to carry conviction with its presentation. 
 
 All at once a wireless message came from the White House. The 
 President had determined that there was either to be a lock canal or 
 that there should be no legislation upon the subject. I can never forget 
 the day upon which the vote was taken. The biography of the Presi- 
 dent will perhaps some day be written by the senior Senator from Massa- 
 chusetts. MacCaulay said that if Boswell had not been the greatest fool 
 who ever lived, he could not have given to the world the greatest biog- 
 raphy that was ever written. This will not apply to the Senator from 
 Massachusetts. He wields a master's hand in biographical literature, 
 and when he writes this biography I hope that he will dwell with glow- 
 ing emphasis upon this surpassing accomplishment. Napoleon at 
 Austerlitz never turned the scales of fortune with greater celerity of 
 movement or audacity of assault than the President threw into this 
 maneuver. How was it done? What subtle force did he employ in the 
 execution of his plan ? The day the vote was taken this Chamber pre- 
 sented a most peculiar aspect. The air seemed laden with some nar- 
 cotic wafting its somniferous essence over this body. When the roll 
 was called the clerk could hardly hear the responses upon the side of 
 the lock canal, and as the answers came they came in whispered accents 
 and with bated breath. The charm had done its work, the deadly vapor 
 had benumbed our faculties and made us pliant slaves to the master 
 will. Even the senior Senator from Ohio who, when his convictions 
 are aroused, has often on this floor displayed the Nemean lion's nerve, 
 fell a victim to the magic power of the love charm that had been con- 
 cocted at the laboratory of the White House. I would like the Secre- 
 tary to read a few of the pathetic and funereal passages of the Senator's 
 deliverance upon this occasion. 
 
 It shows how the dominating spirit of the President can ride the 
 whirlwind when he has made up his mind to legislate, and how in ab- 
 solute defiance of the laws of nature he can produce a senatorial vacuum 
 beneath the sweep of his mighty genius. 
 
 Mr. FORAKER. Mr. President, I do not care to discuss this question beyond 
 saying something similar to that which has just been said by the Senator from 
 West Virginia. 
 
 "I remember, when the proposition was before the Senate some time ago, as 
 to whether we should adopt the Panama or the Nicaragua route, I was greatly 
 influenced in favor of the Panama route, as no doubt many other Senators were 
 by the fact stated at page n, according to the print I have before me, of Report 
 783, part 2, Fifty-seventh Congress, first session, where the Interoceanic Canal 
 Committee, or a majority at least of its members 
 
 Mr. KITTREDGE. A minority. 
 
 Mr. FORAKER. Yes; it was a minority report I was looking to see. A 
 minority of the members of that committee set forth the advantages of the 
 
THE EXECUTIVE AND CONGRESS 63 
 
 Panama route, as contrasted with the Nicaragua route, and then, after they had 
 enumerated nine specific advantages, they added the following : 
 
 "10. It is recognized that a sea-level canal is the ideal. The Panama 
 Canal may be either constructed as a sea-level canal or may be subsequently 
 converted into one. On the other hand, no sea-level canal will ever be possible 
 on the Nicaragua route." 
 
 Now, like the Senator from West Virginia, I had remained of the idea ever 
 since until within the last two or three months, when this discussion was com- 
 menced, that it was the part of wisdom to build a sea-level canal, and I supposed 
 that would be the result of the investigations that were being made by the com- 
 mittee. I did not have time, because occupied with other work, to follow the 
 hearings before that committee and read the testimony as it was taken and 
 printed from day to day for the benefit of the committee and for the benefit of 
 Senators. 
 
 I was, therefore, somewhat unprepared when, a few days ago, it was insisted 
 that we should settle this matter at this time by voting upon it. I then made a 
 request that there might be further time than was proposed to be given us in 
 order that we might investigate this subject and read the testimony to obtain 
 further information. 
 
 But we are to vote, and every Senator must speak for himself in a few minutes. 
 There is no time to investigate further, and I propose, although with some mis- 
 giving as to whether that is the wisest thing to do, to follow what has been in- 
 dicated as the preference of those who have the greatest responsibility with 
 respect to this canal. 
 
 As I have intimated before in reference to this matter, I did not take the floor 
 for the purpose of discussing it. I took the floor only to express the doubt I 
 have and the regret I have that I can not vote as I propose to vote with greater 
 satisfaction to myself. 
 
 REPRESENTATIVE JOHN SHARP WILLIAMS' REMARKS 1 
 
 [The House being in the Committee of the Whole House on the state of the 
 Union and having under consideration the bill (H. R. 12320) making appropria- 
 tions to supply urgent deficiencies in the appropriations for the fiscal year.] 
 
 Mr. WILLIAMS said: 
 
 Mr. Chairman: I have no idea of occupying the time of the House 
 for thirty minutes. I do desire, however, for five or six minutes to ad- 
 dress myself to this proposition. It seems to me that the gentleman in 
 charge of this bill has made a mistake in his estimate of what an estimate 
 is. Some time ago we were faced with an emergency bill to provide six- 
 teen and one-half millions of dollars for the prosecution of the work on 
 the Panama Canal. The House then expressed to the Panama Com- 
 mission and to the country its desire that hereafter appropriations for 
 the construction of the Panama Canal should take the usual course. 
 If there were any necessdy for appropriating the amount of this bill, 
 
 1 Congr. Record, Jan. 22, 1906. 
 
64 AMERICAN FEDERAL GOVERNMENT 
 
 that necessity could have been met by introducing into this House a 
 bill duly reported from a committee, duly passed upon in a regular way, 
 or else by a provision on a regular appropriation bill. 
 
 It seems to me that the most hopeless thing about us individually and 
 collectively in attending to our duties in Washington as a legislative 
 body is the contemplation of the impotency of the legislative branch of 
 the Federal Government in connection with all sorts of matters. We 
 are led around by the nose with rings in our noses by chiefs of 
 bureaus, chiefs of divisions, and heads of departments, and whenever 
 we give notice to the country, after voting down a part of an appropria- 
 tion in an emergency bill, that we would demand the regular order, 
 gentlemen come in later on, out of the regular order once more, this 
 time in the phase of a deficiency bill, asking that what the House re- 
 fused to do irregularly shall still be done irregularly. Now, the gentle- 
 man speaks about the estimates having been given to the committee, 
 to the House, and to the country. No estimate, in the true sense of the 
 word, has been given at all. In the regular routine of business an esti- 
 mate means much more than what this committee brings to this House 
 now. An estimate comes from the Department. It comes printed. It 
 comes long in advance. It comes in time to be ready for the study and 
 consideration of each Member of this House and for the study and 
 consideration of the country, in order that the country may influence 
 this House. 
 
 Mr. LITTAUER. Will the gentleman permit 
 
 Mr. WILLIAMS. One moment. And the only thing which comes 
 before us here now is a lot of detailed statements furnished to this 
 committee, never furnished to this House in any proper manner, no 
 hearings that could be followed by the country, no opportunity for the 
 country outside of this House to consider the question before them 
 and to influence the House. This is a popular government, or it is 
 supposed to be. It is a government of the people, through their repre- 
 sentatives, and not a government of committees, not a government of 
 representatives merely, but a government of the people by the people, 
 through their representatives and through their committees. Now I will 
 yield to the gentleman. 
 
 Mr. LI-TTAUER. Does not the gentleman know that regular estimates, 
 as full as estimates usually submitted to the House, have been forwarded 
 by the Secretary of War, through the Secretary of the Treasury, and they 
 are before the committee and before the House a regular document 
 of estimates? 
 
 Mr. WILLIAMS. I do not know that. 
 
 Mr. LITTAUER. And that the hearings were held in the usual way 
 and that the published hearings are now to be had by anyone who asks 
 for them? 
 
 Mr. WILLIAMS. Yes; "now to be had," but not to be had a sum- 
 
THE EXECUTIVE AND CONGRESS 65 
 
 cient length of time before this question was brought to the consideration 
 of the House for the country to determine for itself the wisdom or un- 
 wisdom of this policy. I know a so-called "detailed statement" was 
 submitted to this committee, and I do know that this committee at- 
 tempted to make a detailed appropriation to this House. Let us see 
 how detailed and how specific that appropriation is. Let me read it, 
 Mr. Chairman: "For miscellaneous material purchased in the United 
 States, $1,000,000." How miscellaneous? What material? What 
 purchases? "For miscellaneous purchases on the Isthmus, $400,000." 
 That might be held to be comparatively specific except for the language 
 put in there later, "and miscellaneous expenditures." That will be 
 the language of the law when it goes out. Will you tell me what possible 
 devotion of money to any possible purpose is not covered by the lan- 
 guage "and miscellaneous expenditures?" 
 
 PRESIDENT CLEVELAND ON THE TRANSMISSION OF 
 OFFICIAL PAPERS 
 
 [It has often been a matter of difference of opinion as to how far executive 
 departments are obliged to furnish information and documentary material to 
 Congress. The Senate has made it a practice to request information of the 
 Department of State upon matters of foreign affairs only as far as the public 
 interests will permit the giving of such information ; but in the case of the other 
 departments more direct demands for information are made by Congress. 
 Ordinarily the departments, of course, are ready to give a full account of their 
 affairs for the use of Congress, but occasions have arisen when the giving of 
 specific information was refused. An interesting controversy of this kind took 
 place during the first administration of President Cleveland when the Senate 
 had demanded the transmission of the papers connected with the dismissal of a 
 certain federal official. As the Tenure of Office Act had not as yet been re- 
 pealed, although it had been amended during the administration of Grant, the 
 Senate still claimed that its consent to the dismissal of an official was necessary. 
 The President refused to transmit the papers, and the Tenure of Office Act 
 was shortly after repealed. The following extract is from a special message 
 (March i, 1886) of President Cleveland giving the reasons for his refusal to 
 comply with the request of the Senate.] 
 
 UPON this resolution and the answer thereto the issue is thus stated 
 by the Committee on the Judiciary at the outset of the report : 
 
 The important question, then, is whether it is within the constitutional com- 
 petence of either house of Congress to have access to the official papers and 
 documents in the various public offices of the United States created by laws 
 enacted by themselves. 
 
 I do not suppose that the "public offices of the United States" are 
 regulated or controlled in their relations to either house of Congress by 
 
66 AMERICAN FEDERAL GOVERNMENT 
 
 the fact that they were "created by laws enacted by themselves." It 
 must be that these instrumentalities were created for the benefit of the 
 people and to answer the general purposes of government under the Con- 
 stitution and the laws, and that they are unincumbered by any lien in 
 favor of either branch of Congress growing out of their construction and 
 unembarrassed by any obligation to the Senate as the price of their 
 creation. 
 
 The complaint of the committee, that access to official papers in the 
 public offices is denied the Senate, is met by the statement that at no 
 time has it been the disposition or the intention of the President or any 
 Department of the executive branch of the government to withhold from 
 the Senate official documents or papers filed in any of the public offices. 
 While it is by no means conceded that the Senate has the right, in any 
 case, to review the act of the Executive in removing or suspending a 
 public officer upon official documents or otherwise, it is considered that 
 documents and papers of that nature should, because they are official, be 
 freely transmitted to the Senate upon its demand, trusting the use of the 
 same for proper and legitimate purposes to the good faith of that body. 
 And though no such paper or document has been specifically upon the 
 Departments, yet, as often as they were found in the public offices, they 
 have been furnished in answer to such applications. 
 
 The letter of the Attorney- General in response to the resolution of the 
 Senate, in the particular case mentioned in the committee's report, was 
 written at my suggestion and by my direction. There have been no official 
 papers or documents filed in this Department relating to the case, within 
 the period specified in the resolution. The letter was intended, by its 
 description of the papers and documents remaining in the custody of the 
 Department, to convey the idea that they were not official ; and it was as- 
 assumed that the resolution called for information, papers, .and docu- 
 ments of the same character as were required by the requests and de- 
 mands which preceded it. 
 
 Everything that had been written or done in behalf of the Senate, 
 from the beginning, pointed to all letters and papers of a private and un- 
 official nature as the objects of search, if they were to be found in the 
 Departments, and provided that they had been presented to the Execu- 
 tive with a view to their consideration upon the question of suspension 
 from office. 
 
 Against the transmission of such papers and documents I have inter- 
 posed my advice and direction. This has not been done, as is suggested 
 in the committee's report, upon the assumption on my part that the At- 
 torney-General or any other head of a Department "is the servant of 
 the President, and is to give or withhold copies or documents in his office 
 according to the will of the Executive and not otherwise," but because I 
 regard the papers and documents withheld and addressed to me, or in- 
 tended for my use and action, purely unofficial and private, not infre- 
 
THE EXECUTIVE AND CONGRESS 67 
 
 quently confidential, and having reference to the performance of a duty 
 exclusively mine. I consider them in no proper sense as upon the files 
 of the Department, but as deposited there for my convenience, remain- 
 ing still completely under my control. I suppose if I desired to take them 
 into my custody, I might do so with entire propriety, and if I saw fit to 
 destroy them, no one could complain. 
 
 Even the committee in its report appears to concede that there may be, 
 with the President or in the Departments, papers and documents which, 
 on account of their unofficial character, are not subject to the inspection 
 of the Congress. A reference in the report to instances where the House 
 of Representatives ought not to succeed in a call for the production of 
 papers is immediately followed by this statement : 
 
 The committee feels authorized to state, after a somewhat careful research, 
 that within the foregoing limits there is scarcely in the history of this govern- 
 ment, until now, any instance of a refusal by a head of a Department, or even 
 of the President himself, to communicate official facts and information as dis- 
 tinguished from private and unofficial papers, motions, views, reasons, and 
 opinions, to either house of Congress when unconditionally demanded. 
 
 DISCUSSION OF REQUESTS FOR INFORMATION 1 
 
 MR. FORAKER. Mr. President, I desire to call up, if I am in order to 
 do so, resolution No. 180. 
 
 The VICE-PRESIDENT. The Senator from Ohio calls up for considera- 
 tion the resolution named by him, which will be read. 
 
 The Secretary read the resolution submitted by Mr. Penrose on the 
 3d instant, as follows: 
 
 Resolved, That the President be requested to communicate to the Senate, if 
 not incompatible with the public interests, full information bearing upon the 
 recent order dismissing from the military service of the United States three 
 companies of the Twenty-fifth Regiment of Infantry, United States troops 
 (colored). 
 
 The VICE-PRESIDENT. The question is on the adoption of the reso- 
 lution of the Senator from Pennsylvania. 
 
 Mr. SPOONER. Mr. President, I am opposed to the resolution offered 
 by the Senator from Pennsylvania. My opposition to it is based entirely 
 upon the form of it. This resolution does not, so far as the subject-matter 
 goes, fall within the class of inquiries which the Senate has ever been 
 accustomed to address to the President. It implies on its face, Mr. 
 President, a doubt here which I think does not exist ; as to whether the 
 Senate is of right entitled to all the facts relating to the discharge of the 
 
 1 Congr. Record, Dec. 6, 1906. 
 
68 AMERICAN FEDERAL GOVERNMENT 
 
 three named companies or not. Always the Senate, in passing resolu- 
 tions of inquiry addressed to Cabinet officers, except the Secretary of 
 State, make them in form of direction, not request. It rarely has happened 
 that a request has been addressed to any Cabinet officer where foreign 
 relations were involved. Where such a resolution has been adopted it has 
 been addressed to the President, with the qualification that he is re- 
 quested to furnish the information only so far as, in his judgment, the 
 transmission of it is compatible with the public interest. 
 
 There are reasons for that, Mr. President. The State Department 
 stands upon an entirely different basis as to the Congress from the other 
 Departments. The conduct of our foreign relations is vested by the 
 Constitution in the President. It would not be admissible at all that either 
 House should have the power to force from the Secretary of State informa- 
 tion connected with the negotiation of treaties, communications from 
 foreign governments, and a variety of matters which, if made public, 
 would result in very great harm in our foreign relations matters so far 
 within the control of the President that it has always been the practice, 
 and it always will be the practice, to recognize the fact that there is of 
 necessity information which it may not be compatible with the public 
 interest should be transmitted to Congress to the Senate or to the 
 House. 
 
 There are other cases, not especially confined, Mr. President, to the 
 State Department, or to foreign relations, where the President would be 
 at liberty obviously to decline to transmit information to Congress or to 
 either House of Congress. Of course, in time of war, the President being 
 Commander in Chief of the Army and Navy, could not, and the War 
 Department or the Navy Department could not, be required by either 
 House to transmit plans of campaign or orders issued as to the destina- 
 tion of ships, or anything relating to the strategy of war, the public 
 knowledge of which getting to the enemy would defeat the Government 
 and its plans and enure to the benefit of an enemy. 
 
 There are still other cases. The Department of Justice would not be 
 expected to transmit to either House the result of its investigations upon 
 which some one had been indicted, and lay bare to the defendant the case 
 of the Government. The confidential investigations in various depart- 
 ments of the Government should be, and have always been, treated by 
 both Houses as confidential, and the President is entirely at liberty to 
 permit by the Cabinet officer to whom the inquiry is addressed as much 
 or as little information regarding them as he might see fit. I have no 
 doubt the President would transmit everything upon this subject. My 
 objection is to the form of the resolution. I think we ought to maintain 
 the uniform practice upon the subject. I do not think, as to a matter upon 
 which the Senate clearly has a right to be fully advised, it should depart 
 from the usual form of directing the transmission by the Secretary of 
 War or the Secretary of the Navy or the Secretary of the Interior, to adopt 
 
THE EXECUTIVE AND CONGRESS 69 
 
 a resolution of request of the President, bearing upon its face a recogni- 
 tion of the fact that he is at liberty to withhold the information or to trans- 
 mit such part of it as he shall see fit. 
 
 Mr. President, in time of peace as to matters relating to the organiza- 
 tion and the administration of the Army there can be no secrecy. It is 
 purely domestic public business, as to which the Congress has a right to 
 know. I should be very much disappointed if in a matter of this kind the 
 Senate should address the inquiry to the President, coupled, as it must 
 be, with the suggestion that we doubt our right to the information. I 
 think it is a bad precedent to establish. In such matters I think we ought 
 to maintain the practice which, so far as I remember, hitherto has been 
 unbroken. Therefore I am opposed to the form of the resolution of the 
 Senator from Pennsylvania. I am in favor of the form of the resolution 
 of the Senator from Ohio. 
 
 Mr. FORAKER. Mr. President, I desire only to say a word of the same 
 general character as that which has been spoken by the Senator from 
 Wisconsin [Mr. Spooner]. My objection to the resolution offered on 
 yesterday by the Senator from Wyoming [Mr. Warren] was that under 
 it the President would have a right to withhold information particularly 
 called for by the resolution I had offered. Senators will observe when 
 they come to look at that resolution that nothing is called for except only 
 that which is specifically described, and that it is all of a character such as 
 the Senate is clearly entitled to. No one has the right to withhold it from 
 the knowledge of the Senate if the Senate asks for it. That was the only 
 objection I had to having my resolution incorporated with the resolution 
 offered by the Senator from Pennsylvania in a resolution such as was 
 offered by the Senator from Wyoming [Mr. Warren] on yesterday. The 
 same objection, of course, lies to the suggestion which was made, also, 
 by the Senator from Pennsylvania that we might unite the resolutions. 
 If the Senate sees fit to adopt it, I have no. objection to the resolution 
 offered by the Senator from Pennsylvania ; but I shall insist in any con- 
 tingency upon the consideration of my own resolution as calling for in- 
 formation we are clearly entitled to without anybody giving his judgment 
 whether or not it is our right to have it. 
 
 Mr. LODGE. Mr. President, on the matter of precedents I have only 
 had a moment to look back. My memory was that we had sent many 
 inquiries to the President which did not refer to foreign relations. On 
 looking hastily back through a book from the Secretary's desk, I find in 
 the Fifty-ninth Congress the following resolution, offered by the Senator 
 from Minnesota [Mr. Nelson], was adopted : 
 
 Resolved, That the President is hereby requested, if not incompatible with 
 the public interests, to transmit to the Senate the reports of the Keep Com- 
 mission on Department methods, relating to official crop statistics and the 
 investigation of the Twelfth Census report on agriculture. 
 
70 AMERICAN FEDERAL GOVERNMENT 
 
 It seems nothing could be more purely domestic than that. I find 
 another, as follows : 
 
 Resolved, That the President be requested to furnish the Senate, if not incom- 
 patible with the best interests of the service, the petition and accompanying 
 papers of certain officers of the Army, veterans of the civil war, retired from 
 active service for disability contracted in the line of duty, and who have not 
 yet received the benefits of the act of April 23, 1904. 
 
 Those are two very recent ones. I thought I remembered some re- 
 lating to the Philippines, and I find there are some. This book only goes 
 back to the Fifty-eighth Congress, but I find a resolution submitted by 
 Mr. Hoar, as follows: 
 
 Resolved, That the President be requested, if not in his opinion incompatible 
 with the public interest, to inform the Senate whether there be any law or 
 regulation in force in the Philippine Islands which will prevent any native of 
 those islands who may so desire, not under arrest and against whom no charge 
 of any offense against the United States is pending, from coming to the United 
 States and stating his views or desires as to the interest of his people to the 
 President or either House of Congress. 
 
 Mr. SPOONER. When was that adopted 
 
 Mr. LODGE. That was referred to the Committee on the Philippines, 
 and printed. It was not adopted. The other two that I read were 
 adopted. I have no doubt that others could be found. Certainly, I 
 think that there can be no questoin that resolutions of inquiry have been 
 addressed to the President on all possible subjects. In this case, he being 
 Commander in Chief of the Army, it seems to me it is perfectly proper 
 in form to address a resolution to him on a subject where he has taken 
 direct action and about which there is a great deal of public feeling and 
 has been a great deal of public discussion. It seems to me the proper way 
 to get the facts before us is to make inquiry, not only of the War Depart- 
 ment, but of the President himself, so that he may have an opportunity to 
 state to Congress in the fullest official manner the reasons which actuated 
 him in rendering this decision, which, of course, as we all know, is pecul- 
 iarly his own. 
 
 Mr. WARREN. Mr. President, I take it for granted the President will 
 find some way to put the Senate in possession of any information he has 
 that he wishes to put before it. On the other hand, it seems to me en- 
 tirely proper for the Senate to ask the President for such information as 
 the Senate wants, and that he is the proper one to ask. And believing 
 that the Senate and the country want all the information obtainable, I am 
 willing, if I have the opportunity, to vote for both resolutions, the one 
 proposed by the Senator from Pennsylvania [Mr. Penrose] and the one 
 proposed by the Senator from Ohio [Mr. Foraker]. I know of no rule 
 against such action. I know of no custom against it. I know of no 
 
THE EXECUTIVE AND CONGRESS 71 
 
 reason why we should not adopt both resolutions as presented here, 
 though by all means we should indorse the one directed to the President 
 whether or not we adopt the other one. 
 
 Mr. TELLER. Mr. President, the precedents cited by the senior 
 Senator from Massachusetts [Mr. Lodge] might be increased in great num- 
 ber. For many years past, even during the war, it was a frequent occur- 
 rence to call on the President for information. I myself have been some- 
 what of a stickler in reference to the form of resolutions of inquiry. We 
 request the President, and we direct the Cabinet officers ; but, after all, 
 the whole matter of communicating information to this body by Cabinet 
 officers is absolutely under the control of the President. If the President 
 declines or thinks such information should not be sent, it is not sent. We 
 request the President for information, "if not incompatible with the 
 public interest." That is merely a courteous form of making the re- 
 quest. If we left out the expression "if not incompatible with the public 
 interest," he would still have authority to withhold any information. I 
 think it will be found that the rule among Cabinet officers, whenever re- 
 quests of delicacy or importance have been presented by Congress, has 
 been to consult the President in relation thereto. 
 
 Mr. LODGE. Will the Senator allow me to ask him a question in that 
 connection ? 
 
 The VICE-PRESIDENT. Does the Senator from Colorado yield to the 
 Senator from Massachusetts? 
 
 Mr. TELLER. Certainly. 
 
 Mr. LODGE. My memory is that there have been cases within com- 
 paratively recent years where Cabinet officers having been directed by 
 resolution of the Senate to send certain information to it, have withheld 
 entirely, or withheld in part, such information by order of the President. 
 
 Mr. TELLER. Undoubtedly. 
 
 Mr. LODGE. I think it occurred under Mr. Cleveland on more than 
 one occasion, and I think it has occurred in relation to the Department 
 of the Interior quite recently, though I do not remember the exact date. 
 
 Mr. CARMACK. Mr. President 
 
 The VICE-PRESIDENT. Does the Senator from Colorado yield to the 
 Senator from Tennessee ? 
 
 Mr. TELLER. Yes. 
 
 Mr. CARMACK. I think that occurred in a former session of Congress 
 when an answer to a resolution of mine asking the Secretary of the Treas- 
 ury for certain information was declined on the ground that it would be 
 incompatible with the best interests of the public service. 
 
 Mr. TELLER. Mr. President, there are undoubtedly a large number 
 of precedents of that kind. I had occasion some time ago to consult the 
 precedents running back forty or fifty years, and I have a very distinct 
 recollection of a number of cases where Presidents have declined to com- 
 municate information both to the House and to the Senate. 
 
72 AMERICAN FEDERAL GOVERNMENT 
 
 I do not think there is any impropriety in our asking the President in a 
 courteous, proper manner to communicate information to the Senate. I 
 am under the impression, Mr. President, that the better practice would 
 be to ask the Secretary of War, the Secretary of the Treasury, or the Sec- 
 retary of the Navy, whoever it might be that had the matter under con- 
 trol, without annoying the President and adding to his work. But, so 
 far as I am concerned, I am willing to vote for a resolution asking the 
 President for information, or I am willing to vote for a resolution asking 
 the Secretary of War for information ; but I do not think we ought to ask 
 them both. It seems to me we ought to confine ourselves to one or the 
 other. I simply express my preference for the method of asking the Sec- 
 retary of War, instead of asking the President. If the President or the 
 Secretary of War wish to communicate on the subject, they know how 
 to do so by direct message to this body. 
 
 Mr. LODGE. Mr. President 
 
 The VICE-PRESIDENT. Does the Senator from Colorado yield to the 
 Senator from Massachusetts ? 
 
 Mr. TELLER. Certainly. 
 
 Mr. LODGE. I was going to say that the resolution I read request- 
 ing the President for certain information in regard to veterans of the 
 civil war was introduced by the Senator from Colorado [Mr. Teller] 
 himself. 
 
 Mr. CARTER. Mr. President, briefly, and principally to address myself 
 to the Senator from Wisconsin [Mr. Spooner], I think it may be taken for 
 granted that as a matter of mere official ethics the address of the resolu- 
 tion of the Senator from Pennsylvania [Mr. Penrose] to the President of 
 the United States is deferential and correct. It must not be lost sight of 
 that the President represents the executive department, a coordinate de- 
 partment of the Government. The right of the President, because of his 
 character as Chief Executive of the Nation, charged with the conduct of 
 our foreign affairs, to be the sole judge as to the communication to Con- 
 gress of matters relating to our international affairs was well stated by 
 the Senator from Wisconsin. 
 
 The Senator further proceeded to say that in case of actual war it 
 would be obviously improper for the Senate to call upon the Commander 
 in Chief of the Army and Navy for plans of battles or campaigns, for 
 drafts of fortifications or lines of defense, or for any information which, 
 if made public, might militate against the interests of the country. But 
 the Senator undertakes to differentiate by saying that this it a time of 
 peace, and, therefore, the directions of the President with reference to 
 the Army must be under a different rule as relates to the legislative de- 
 partment from that which would obtain in time of war. The logic of 
 that, I think, will not be apparent to the mind of the Senator from Wis- 
 consin when he reflects upon the particular facts in this case as made 
 known by current information. 
 
THE EXECUTIVE AND CONGRESS 73 
 
 Mr. SPOONER. Mr. President, I desire to submit a few observations. 
 
 I agree entirely with the Senator from Colorado [Mr. Teller] that this 
 discussion of the merits of the question is entirely premature. For one I 
 intend to withhold any discussion of it until the incoming of a report 
 which puts the Senate officially in possession of all the facts in relation 
 to it. 
 
 The Senator from Colorado is mistaken in supposing that I made any 
 point of order against the resolution offered by the Senator from Penn- 
 sylvania. I did not. I objected to the form of the resolution that is, 
 I objected to a resolution addressed to the President as unusual. I still 
 adhere, Mr. President, to that objection as a matter of proper practice 
 although there is nothing in the Constitution to prohibit it, nothing in the 
 rules of the Senate to prohibit it. It is entirely competent for the Senate 
 to pass it. 
 
 Mr. PENROSE. Mr. President 
 
 The VICE-PRESIDENT. Does the Senator from Wisconsin yield to the 
 Senator from Pennsylvania? 
 
 Mr. SPOONER. Certainly. 
 
 Mr. PENROSE. I should like to ask the Senator on that point whether 
 he contradicts the statement made by me and the Senator from Massa- 
 chusetts [Mr. Lodge] that there are numerous precedents of the Senate 
 justifying this course. His present objection is purely theoretical and 
 critical of a bad practice in the past as much as in the present. 
 
 Mr. SPOONER. I will get to that. Mr. President, I have not examined 
 the precedents. I speak from my recollection as to the almost uniform 
 practice of the Senate during a period of nearly sixteen years in which I 
 have been a member of the body. It appears that resolutions addressed 
 to the President have been introduced and passed one offered by the 
 Senator from Colorado [Mr. Teller]. I rather think it must have been 
 inadvertently done, because it was not a subject upon which, so far as I 
 recollect the scope of the resolution, there could have been any possibility 
 of the Executive withholding information from the Senate. The general 
 practice of the Senate has been and it is a good practice, an almost 
 universal practice, except in those cases where the nature of the subject 
 is such as to warrant the belief that all of the information may not prop- 
 erly and safely be communicated to either House of Congress not to 
 address the resolution of inquiry to the President, but to address it to the 
 Secretary of the appropriate Department, making it a direction instead 
 of a request. 
 
 The precedent cited by the Senator from Massachusetts relative to a 
 request upon the President for a copy of the report of the Keep Com- 
 mission does not fall at all within the exception. The Keep Commission 
 was not a commission authorized by law. It was a commission ap- 
 pointed by the President composed of officials selected from the various 
 Departments to investigate the methods of the Executive Departments 
 
74 AMERICAN FEDERAL GOVERNMENT 
 
 of the Government and to report to the President for his information, as 
 I recollect it. 
 
 Mr. CARTER. Mr. President - 
 
 The VICE-PRESIDENT. Does the Senator from Wisconsin yield to the 
 Senator from Montana ? 
 
 Mr. SPOONER. Certainly. 
 
 Mr. CARTER. I should like to ask the Senator from Wisconsin if that 
 portion of the resolution should be amended, thus calling upon the Presi- 
 dent for all the correspondence and all the facts, whether he would deem 
 it proper to call upon the President, without qualification, to communi- 
 cate to the Senate, and therefore to the public, the correspondence, if any 
 there be, between the Department of Justice and the legally constituted 
 authorities of the State of Texas with reference to the commission of 
 crimes in that State by soldiers of the United States liable to punishment 
 under State law, if such communication would militate against the ends 
 of justice? 
 
 Mr. SPOONER. The Senator from Montana has utterly misappre- 
 hended my objection to this resolution. He insists that my objection is 
 because of the presence in it of the words "if not incompatible with the 
 public interests." He is quite mistaken. I know quite well that propri- 
 ety demands that when a request for information is addressed to the Presi- 
 dent and that is why I think such requests are limited, and has been in 
 general practice, to the cases which I indicated when I first spoke it is 
 always qualified so far as I recollect, by these words. My preference for 
 the resolution of the Senator from Ohio is because, being a request for 
 detailed information, our right to which is beyond question, it is ad- 
 dressed to the Secretary of War, and contains no evidence that the Senate 
 doubts its right to the information. 
 
 I do not take it to be open to debate, Mr. President, that the Senate 
 has a right to obtain from the War Department copies of discharges, rec- 
 ords of courts-martial everything relating to the domestic administra- 
 tion of the Army not connected with plans of campaign or of war. 
 
 Mr. CARTER. Mr. President 
 
 The VICE-PRESIDENT. Does the Senator from Wisconsin yield to the 
 Senator from Montana? 
 
 Mr. SPOONER. I do. 
 
 Mr. CARTER. Then I wish to state that I clearly and distinctly under- 
 stood the Senator from Wisconsin to object to the words "if not incom- 
 patible with the public interests" in this form of resolution. 
 
 Mr. SPOONER. Mr. President, I objected to the resolution because 
 it requires those words and implies in the resolution itself a doubt upon 
 the part of the Senate whether or not this information might be properly 
 withheld from the Senate. That is my objection. 
 
 Mr. CARTER. The objection of the Senator was to the addressing of 
 any resolution to the President on the subject. 
 
THE EXECUTIVE AND CONGRESS 75 
 
 Mr. SPOONER. For that reason. The almost universal rule of the 
 Senate has been to address no inquiries to the President of the United 
 States without those words ; I remember no exception, where the nature 
 of the subject of inquiry was such as to make it perfectly apparent that 
 the Senate or the House was entitled of right to all the information cov- 
 ered by it, the direction, not the request, has been made as an almost uni- 
 versal rule upon the appropriate Cabinet officer, instead of by resolution 
 of inquiry addressed to the President. 
 
 I said there were some exceptions, and there are. Foreign relations 
 constitute one exception ; the movement or plan of campaign of the Army 
 or the Navy in time of war constitutes another, because even a child 
 would know that the Commander in Chief, under our Constitution, must 
 have the discretion in order to insure the safety of the Republic and the 
 success of our arms, to exercise discretion and to withhold, if his judg- 
 ment so dictates, information which would endanger the public interest 
 if it were given to the public. The Senator from Montana, with a logic 
 the like of which I have never known him to indulge in before, seemed to 
 think that there is no distinction, and can be none, between the informa- 
 tion which the Senate or the House is entitled to have in relation to the 
 Army in time of war and in time of peace. 
 
 It does not at all follow, Mr. President, because certain inquiries as to 
 the Army must be in time of war addressed to the President, and he have 
 discretion to withhold or to transmit information, that in time of peace, 
 upon every imaginable subject connected with the administration of the 
 Army, it is proper, or comports with the dignity of the Senate or of 
 the other House as legislative bodies in all cases to address inquiries to 
 the President, qualified as courtesy requires such inquiries to be. 
 
 Mr. CARTER. Now, Mr. President 
 
 Mr. SPOONER. I want to get through. 
 
 Mr. CARTER. I wish to address the Senator a question at that point. 
 
 Mr. SPOONER. Very well. 
 
 Mr. CARTER. It is well known that we are expending very large 
 sums of money on our coast defenses. 
 
 Mr. SPOONER. Certainly. 
 
 Mr. CARTER. I will ask the Senator if he thinks in time of peace it is 
 proper for the legislative department of the Government to make public 
 all the plans of defense that are being prepared in case of war by calling 
 on the Secretary of War or the President to disclose such information ? 
 
 Mr. SPOONER. The Senator gets back to my path that is, that the 
 question is to be resolved with reference to the subject-matter. I ad- 
 mitted it, and I admit it now. I must admit that there are numerous cases 
 in which absolute direction upon one of the Departments or upon a Cab- 
 inet officer is subject of right, I mean, to a declination by order of the 
 President to that officer to afford the information. But that argues noth- 
 ing upon a subject like this or upon the subject generally embodied in the 
 
y6 AMERICAN FEDERAL GOVERNMENT 
 
 resolution of inquiry by the Senate and by the House. We could not call 
 upon the Attorney- General to send to the Senate copies of papers which 
 he has acquired through investigation to be used in the trial of a gang of 
 counterfeiters or to be used in the trial of cases prosecuted under the anti- 
 trust law for the obvious reason, Mr. President, that it would lead pos- 
 sibly to the defeat of the Government's litigation. You can not put your 
 side of the case into the hands of your opponent. If an investigation has 
 been made by the Treasury Department with reference to the appre- 
 hension of men who are smugglers, Congress could not expect the Presi- 
 dent to permit the information to be sent to the Senate or the House, and 
 warning thereby be given to those whom the Government seeks to 
 apprehend. 
 
 There are many such cases. Is this a case of that kind ? Congress, Mr. 
 President, fixes the size of the Army. The Army is the Army of the 
 people of the United States. It is created by act of Congress. The rules 
 for its government are entirely within the jurisdiction of Congress. The 
 grounds upon which men may be discharged is within the constitutional 
 capacity of the Congress. Whether any man can be discharged for of- 
 fense without a trial is entirely within the constitutional competency of 
 Congress. Whether the President shall be given the right to dismiss an 
 officer at will without trial is for Congress to say. The Army is sup- 
 ported by moneys appropriated by Congress. The manner of the 
 expenditure of those moneys Congress has a right to know. I do not 
 make any doubt whatever, Mr. President, that it is within the constitu- 
 tional right of the House or of the Senate either, acting in a legislative 
 capacity upon this subject, to direct the Secretary of War to transmit to 
 the Senate or to the House all information within his jurisdiction upon 
 the subject of the discharge of the three colored companies. 
 
 Now, Mr. President, the foundations of the Union will not be shaken 
 whichever of these resolutions is adopted, or if both be adopted. I am 
 surprised that the Senator from Wyoming [Mr. Warren] withdrew his 
 resolution. They all three might have been adopted. The Senator from 
 Pennsylvania thinks it improper that both should be adopted. He offered 
 his resolution in the form which he employed addressed to the President 
 the form is proper if the resolution is to be addessed to the President 
 at all because the Senator thought it would not be within the proprie- 
 ties, it having been the President's act, to address it to his subordinate, 
 the Secretary of War. 
 
 I do not stop to discuss the question of propriety ; but it is very proper, 
 some Senators think, to pass both of the resolutions. The Senator from 
 Massachusetts [Mr. Lodge] seems to think so; the Senator from Mon- 
 tana [Mr. Carter] seems to think so. 
 
 There never has been, within my knowledge, a President who is more 
 frank with both bodies of Congress than the present Executive. The 
 objection is based upon principle and was made because I believe it is 
 
THE EXECUTIVE AND CONGRESS 77 
 
 the dignified and proper course for both bodies to pursue as to subjects 
 upon which the House or the Senate is entitled manifestly to the informa- 
 tion to make a direction in the usual way upon the appropriate Cabinet 
 officer. 
 
 I think it will look rather absurd I shall not further object to it, Mr. 
 President to pass the resolution calling upon the President, if not in- 
 compatible with the public interests, for full information bearing upon the 
 subject, and also to pass the resolution of the Senator from Ohio, direct- 
 ing the Secretary of War, who has probably received most of these papers 
 from the President, to furnish all information upon the subject on file in 
 the War Department. But that is a matter for the Senate to determine. 
 
 Mr. TELLER. Mr. President, I do not wish to prolong this debate, 
 but the Senator from Wisconsin [Mr. Spooner] seems to think that the 
 resolution which I introduced some time ago must have been inadver- 
 tently introduced. I presume the files of this Senate will show a great 
 many resolutions of mine of a similar kind. I want to say to the Senator, 
 as a matter of history, that if he will take the trouble to go into the ques- 
 tion of the right of the Senate and of the other House to call upon the 
 Executive for information, he will find that in the early history of the 
 country such requests went directly to the President. If he will take the 
 pains to go back fifty years he will find that it was a common occurrence, 
 and I will venture to say there has not been a President since the days of 
 Washington who has not been called upon by the Senate and the other 
 House for information. 
 
 During the exciting times immediately after the civil war, when Andrew 
 Johnson was President of the United States, a great number of such 
 resolutions from the House and the Senate were day after day directed to 
 the President. Sometimes he furnished the information and sometimes 
 he did not. If he did not furnish it, he would say that he did not think 
 it was compatible with the public interests that he should do so. In such 
 cases I believe. he always courteously declined. 
 
 When we call upon the President for information, we request him; 
 when we call upon the Secretary of War, we direct him. Suppose the 
 Secretary of War fails to reply. Where is the power of the Senate to com- 
 pel him ? He is a subordinate of the President. He is the mouthpiece 
 of the President in many ways. He becomes the mouthpiece of the Presi- 
 dent because of his special knowledge in regard to certain matters. You 
 call upon the man who is supposed to know most about the subject con- 
 cerning which information is desired. If you want to know ahout public 
 lands or about pensions, you call upon the Secretary of the Interior; but 
 if you want to know about military affairs, you call upon the Sec- 
 retary of War. There is, however, no way by which you can compel 
 the Secretary of War to reply, unless by impeachment, and we cannot 
 institute such proceedings, for, under the Constitution, they must orig- 
 inate in the House of Representatives. 
 
78 AMERICAN FEDERAL GOVERNMENT 
 
 There is nothing unusual in the resolution of the Senator from Penn- 
 sylvania. As I said before, the resolution of the Senator from Ohio calls 
 upon the Secretary of War for information that is not in the hands of the 
 President, and therefore I prefer the form of his resolution. At the end 
 of his resolution there is a request for an order issued to Major Penrose. 
 Probably that order is not in the keeping of the President, but is in the 
 keeping of the Secretary of War. It seems to me there is an unnecessary 
 question of propriety raised here. I do not myself want to admit that 
 when the Senate wants information it can not call upon the Executive for 
 it. I do not care whether it is in one Department or another or whether 
 it is solely under the control of the President. You may call upon him 
 for information affecting matters of foreign diplomacy, but he is not 
 obliged to answer; sometimes he would be derelict in duty if he did an- 
 swer ; but it must be fairly presumed that the Senate of the United States 
 will never call upon the President for information which ought not to be 
 given to the country. If he says " I do not consider it compatible with the 
 public interests that I should give it," that is the end of the controversy. 
 
 Mr. WARREN. I want to ask the Senator a question before he takes 
 his seat. 
 
 The VICE-PRESIDENT. Does the Senator from Colorado yield to the 
 Senator from Wyoming? 
 
 Mr. TELLER. Certainly. 
 
 Mr. WARREN. The Senator from Colorado has been a distinguished 
 Cabinet officer, and I want to put this question to him: In the present 
 case the President, by the Constitution, is clearly Commander in Chief 
 of the Army in other words, he is the highest officer of the Army. He 
 bears a relation to the Army and Navy that he does not bear as to other 
 Departments. It seems to me that information regarding this particular 
 case lies not only with the Secretary of War, but undoubtedly with the 
 Department of Justice as well. Therefore I want to ask the Senator from 
 Colorado if, when we make an inquiry of the President, he will not, as a 
 matter of course, call upon the different Departments for such informa- 
 tion as he chooses to furnish, whereas, if we call upon the Secretary of 
 War alone, he furnishes only that which his Department has? If so, it 
 seems to me in this case while I am ready to vote for both resolutions 
 if we are to select one and vote for only one, it should be the one calling 
 upon the President, first, because he has control over both of these De- 
 partments that may have evidence; second, he is the Commander in 
 Chief of the Army and its highest authority, and,, third, this action con- 
 cerning the discharge of troops is the action of the President, in the ab- 
 sence from the city at the time of the Secretary of War, and therefore the 
 President is the highest authority to appeal to and the man above all 
 others who is able to furnish us the information we want. 
 
 Mr. TELLER. I think the Senator has answered his own question, 
 and I think he is correct about it. 
 
IV 
 
 THE TREATY-MAKING POWER 
 
 [The treaty-making power is shared by the President and the Senate. It is 
 inevitable that discussions should arise as to the extent of the proper functions 
 of each of these agents. In addition to the function of making treaties, the 
 President holds many powers through which he can influence or determine 
 the transaction of international business and the foreign policy of this nation. 
 As commander in chief of the navy, he controls the action of that branch of 
 federal service; through his power of receiving ambassadors and public 
 ministers, he may determine the fundamental relations of our government to 
 other States. Informal agreements have often been concluded between the 
 Executive and foreign representatives, without reference to the Senate. For 
 the latter see J. B. Moore's article on "Treaties and Executive Agreements" 
 in the Pol. Sc. Q. 20: 385, and Reinsch, American Legislatures, page 94 and 
 following. All these matters were discussed in detail most thoroughly during 
 the sessions of 1906 and 1907, especially in connection with the San Domingo 
 affair. The situation is briefly stated in the following extract from the point of 
 view of the opposition; and is then discussed in detail in the debate between 
 Senators Spooner and Bacon.] 
 
 SENATOR RAYNER ON THE TREATY-MAKING POWER J 
 
 I SHALL now take as the first instance where there has been a conflict 
 between executive and legislative functions the treaty-making power 
 of the President and the Senate. Article second of the Constitution pro- 
 vides that the President shall have power by and with the advice and 
 consent of the Senate to make treaties, provided that two-thirds of the 
 Senators present concur. In the Santo Domingo affair the President has 
 evidently made his own treaty. I am not discussing the proposition 
 whether his views and purposes are right or wrong in reference to Santo 
 Domingo. He may be right a great many persons think that he is. 
 He may have performed a great public service for the people of that island 
 and for civilization and humanity in the efforts that he has made to ex- 
 tricate them from their difficulties and misfortunes. This is not the 
 point at issue. The charge that I make is that he has accomplished this 
 
 1 Congr. Record,, Jan. 31, 1907. 
 79 
 
80 AMERICAN FEDERAL GOVERNMENT 
 
 in violation of the Constitution, and has set an example for his succes- 
 sors which, if followed, would abrogate the provision that gives this body 
 the right to be consulted in the treaty-making power. 
 
 The principal provision of the Santo Domingo treaty relates to the 
 collection of the revenues of the island and their distribution among its 
 creditors. All other parts of the treaty were subordinate to this. What 
 has been done ? The treaty has been practically carried into effect with- 
 out consulting the Senate. The appointment of an American agent as 
 an official of Santo Domingo to collect its customs was simply a cover 
 and an evasion. Under the principles of international law and the comity 
 of nations this Government is morally bound for the proper custody of 
 this fund, and would be liable in case of its waste or loss. After its col- 
 lection the only act of any consequence that remained to be done was its 
 distribution, and even this has been practically determined upon, I under- 
 stand, by settlement with her creditors. 
 
 Now, when you add to this the fact that our war ships are in the har- 
 bors of the island ostensibly for the purpose of protecting American in- 
 terests, but in reality protecting the officials of the island against any 
 menace from without, and revolution from within, you have the estab- 
 lishment of a sovereignty or a protectorate without a word from Con- 
 gress or the Senate sanctioning the same. This is called a modus vivendi, 
 but the phrase modus vivendi has no application to a condition of this 
 sort, and is a perfectly meaningless absurdity in this connection. What 
 is being done is the maintenance of a status quo, but a status quo created 
 by the President at the time of the negotiation of the treaty, and without 
 any warrant of law whatsoever. I do not believe that in all the archives 
 of the State Department there can be found any precedent for such a 
 proceeding. Any President could at that time, following this example, 
 make an agreement with any foreign country, uphold it by armed inter- 
 vention, and then if the Senate declined to confirm his action simply an- 
 nounce that he proposed to maintain the status quo or modus vivendi, as 
 it is erroneously called, and thus practically effectuate a treaty whether 
 the Senate consents or not. What the President has done in reference to 
 Santo Domingo he can duplicate any day with respect to any of the bank- 
 rupt and revolutionary Republics of Central or South America. They 
 may appeal to him for help. He may negotiate a treaty and the Senate 
 may decline to act upon the treaty, and in the meantime he may enter 
 into an agreement with them to collect their customs duties, place them 
 on deposit in an American bank, and in the custody of an American rep- 
 resentative, and when Congress or the Senate calls him to account he can, 
 with absolute defiance, announce that the work has been done, and that 
 it is the duty of this Government to make a proper division of the funds. 
 
 When an appeal comes to him from this quarter he can direct our war 
 ships to protect American interests, and incidentally the party in power 
 or the revolutionists friendly to our intervention, and he can assume con- 
 
THE TREATY-MAKING POWER 81 
 
 trol over their custom-houses and maintain a financial protectorate over 
 them without a treaty and without constitutional or legislative sanction. 
 This policy may be all right perhaps the American people are in favor 
 of this new doctrine ; it may be a wonderful accomplishment Central 
 America may profit by it ; it may be a great benefit to us commercially 
 and it may be in the interest of civilization, but as a student and follower 
 of the Constitution, I deprecate the methods that have been adopted, and 
 I appeal to you to know whether we propose to sit silently by and by our 
 indifference or tacit acquiescence submit to a scheme that ignores the 
 privileges of this body ; that is not authorized by statute ; that does not 
 array itself within any of the functions of the Executive ; that vests the 
 treaty-making power exclusively in the President, to whom it does not 
 belong; that overrides the organic law of the land and that virtually 
 proclaims to the country that while the other branches of the Govern- 
 ment are controlled by the Constitution, the Executive is above and 
 beyond it, and whenever his own views or policies conflict with it he will 
 find some way to effectuate his purposes uncontrolled by its limitations. 
 
 SPEECH OF SENATOR JOHN C. SPOONER 
 ON TREATIES 1 
 
 Mr. SPOONER said: 
 
 Mr. President: I take the floor upon this bill, not, however, to dis- 
 cuss it, but to present as briefly as I may my views upon another im- 
 portant subject. I am impelled to do this by recent debate here, more 
 or less critical of the conduct of our foreign relations by the President, 
 and under circumstances which, with great deference, I can not regard 
 as constituting in any degree wise precedent. 
 
 Matters which are being considered by the Senate as an executive 
 body have been debated in open legislative session. Fifteen years of 
 service here has fully confirmed in me the impression, early formed after 
 my advent in this body, that the consideration of treaties and all ques- 
 tions involving our foreign relations are best, save in very exceptional 
 cases, conducted behind closed doors. This, of course, Mr. President, 
 not because there is anything said or done which Senators would wish 
 withheld from our own people, but because it is inevitable that in the 
 perfect frankness which should characterize debate involving our foreign 
 relations many things must be said, and are always said, which, in the 
 public interest, ought not to be said in the hearing of other nations. I 
 am clearly of the conviction, having regard to the peculiar relations 
 created by the Constitution between the Senate and the Executive in 
 respect to the exercise of the treaty-making power, that it is not a healthy 
 precedent to establish, or one much to be followed, that involves public 
 
 1 Congr. Record, Jan. 23, 1906. 
 
82 AMERICAN FEDERAL GOVERNMENT 
 
 discussion of current foreign relations, including treaties. If indulged 
 at all it ought to be done by a vote of the body since otherwise some feel 
 justified in discussing phases which others feel not at liberty to debate. 
 ******** 
 
 On general principles, I reiterate, after more experience in this body 
 than the Senator has had, but not so much as he doubtless will have, 
 my conviction that the methods of the fathers in the treatment by the 
 Senate of our foreign relations, all things considered, is a wise one and 
 the one best conserving the public interest of the United States. 
 
 Of course one may miss the inspiration of the larger audience, but 
 the debates of the executive session get to be very earnest ; they are very 
 frank, they are intensely patriotic, they exhibit great research and in- 
 dustry, and are, in my judgment, the most interesting if not the most 
 valuable of all discussions in the Senate. 
 
 I have heard speeches here by Senators now present, and by Senators 
 now gone from here, some of whom are dead, which for learning, elo- 
 quence, and patriotic solicitude and forethought for the interest of the 
 United States in foreign relations of delicacy and grave importance, are 
 not to be surpassed, and would have received enduring admiration 
 could they, in harmony with the interest of the people, have been given 
 to the world. By common consent they could not, and so they live only 
 in the memories of those who heard them. 
 
 The distinguished and patriotic Senator from Georgia [Mr. Bacon], 
 whose friendship I greatly value, thought it wise and proper to intro- 
 duce a resolution in the legislative session of the Senate calling -upon 
 the President for certain information, including the instructions given 
 to the delegates or representatives accredited to the conference now 
 being held at Algeciras relative to Morocco, in order that the Senate 
 might, sitting in judgment upon the executive conduct of our foreign 
 relations, determine whether they were being conducted in accordance 
 with the traditions of our country or were being conducted in violation 
 of them. 
 
 I regretted the introduction of the resolution. I justify the wisdom of 
 the Senate in closing the doors upon its discussion. But notwithstand- 
 ing, another resolution, general in its terms, dealing with the traditional 
 policy of the United States, which no man in the United States would 
 willingly see disregarded or departed from, opened the way for the full 
 discussion of the subject. 
 
 Mr. President, with great respect for those who differ from me, I 
 deprecate the course which has been pursued. I believe that it is not 
 a proper course to be pursued by the Senate in respect of our foreign 
 relations, save in extraordinary circumstances, if at all. The Senate 
 has nothing whatever to do with the negotiation of treaties or the conduct 
 of our foreign intercourse and relations save the exercise of the one con- 
 stitutional function of advice and consent which the Constitution re- 
 
THE TREATY-MAKING POWER 83 
 
 quires as a precedent condition to the making of a treaty. Except as to 
 the participation in the treaty-making power the Senate, under the Con- 
 stitution, has obviously neither responsibilities nor power. 
 
 From the foundation of the Government it has been conceded in 
 practice and in theory that the Constitution vests the power of negotia- 
 tion and the various phases and they are multifarious of the con- 
 duct of our foreign relations exclusively in the President. And, Mr. 
 President, he does not exercise that constitutional power, nor can he 
 be made to do it, under the tutelage or guardianship of the Senate or of 
 the House or of the Senate and House combined. 
 
 Mr. TILLMAN. Will the Senator allow me to ask him a question? 
 
 Mr. SPOONER. Certainly. 
 
 Mr. TILLMAN. What interpretation does the Senator put upon the 
 word " advice" in the Constitution? Can you give advice after a thing 
 has been done? 
 
 Mr. SPOONER. Yes ; you can give advice 
 
 Mr. TILLMAN. As to whether or not a thing has been properly done, 
 but you can not give advice after it has been done. 
 
 Mr. SPOONER. I will proceed to answer the question, if I am able. 
 
 The words "advice and consent of the Senate" are used in the Con- 
 stitution with reference to the Senate's participation in the making of 
 a treaty and are well translated by the word " ratification " popularly 
 used in this connection. The President negotiates the treaty, to begin 
 with. He may employ such agencies as he chooses to negotiate the pro- 
 posed treaty. He may employ the ambassador, if there be one, or a 
 minister or a charge d'affaires, or he may use a person in private life 
 whom he thinks by his skill or knowledge of the language or people of 
 the country with which he is about to deal is best fitted to negotiate the 
 treaty. He may issue to the agent chosen by him and neither Con- 
 gress nor the Senate has any concern as to whom he chooses such 
 instructions as seem to him wise. He may vary them from day to day. 
 That is his concern. The Senate has no right to demand that he shall 
 unfold to the world or to it, even in executive session, his instructions 
 or the prospect or progress of the negotiation. I said " right." I use 
 that word advisedly in order to illustrate what all men who have studied 
 the subject are willing to concede that under the Constitution the 
 absolute power of negotiation is in the President and the means of 
 negotiation subject wholly to his will and his judgment. 
 
 When he shall have negotiated and sent his proposed treaty to the 
 Senate the jurisdiction of this body attaches and its power begins. It 
 may advise and consent, or it may refuse. And in the exercise of this 
 function it is as independent of the Executive as he is independent of 
 it in the matter of negotiation. 
 
 I do not deny the power of the Senate either in legislative session or 
 in executive session that is a question of propriety to pass a resolu- 
 
84 AMERICAN FEDERAL GOVERNMENT 
 
 tion expressive of its opinion as to matters of foreign policy. But if it is 
 passed by the Senate or by the House or by both Houses, it is beyond 
 any possible question purely advisory, and not in the slightest degree 
 binding in law or conscience upon the President. It is easy to conceive 
 of circumstances in which to pass in legislative session a resolution like 
 that first introduced by my distinguished and learned friend, the Senator 
 from Georgia [Mr. Bacon], asking the President, if in his opinion not 
 incompatible with the public good, to transmit the correspondence in 
 a pending negotiation to the Senate, might be productive of mischief. 
 I think the Morocco case is perhaps, one which could be productive of 
 mischief in this, that the President's declination, which would be within 
 his power, upon the ground that the public good required that the cor- 
 respondence should not be sent to the Senate, might give rise to an in- 
 ference in other countries that something with reference to one or more 
 of the parties was being concealed from them. 
 
 Mr. President, I do not stop at this moment to cite authorities in 
 support of the proposition, that so far as the conduct of our foreign re- 
 lations is concerned, excluding only the Senate's participation in the 
 making of treaties, the President has the absolute and uncontrolled and 
 uncontrollable authority. Under the confederation there was felt to be 
 great weakness in a system that made the Congress the organ of com- 
 munication with foreign governments; but when the Constitution was 
 formed, it being almost everywhere else in the world a purely executive 
 function, it was lodged with the President. He was given the power, 
 with all other Executive functions, "to receive ambassadors and other 
 public ministers." His exercise of that function can not, under the Con- 
 stitution, be controlled by any other body in the Government. That 
 is a tremendous power given by the Constitution to the President 
 the power to receive or reject an ambassador or a public minister or 
 any one of the representatives known to international law as it existed 
 when the Constitution was adopted. That involves not simply the 
 mere recognition of governments or administrations, but it involves 
 sometimes the recognition of a new nation. It involves passing upon 
 the question of independence. It involves decision as to the various 
 changes which occur in the administration or government of nations 
 one administration or faction in power to-day, another next week, an- 
 other a month later. The President decides. He was given the power 
 to appoint "ambassadors, other public ministers, and consuls," which 
 has been held to include diplomatic agents then known to international 
 law and international intercourse. Those offices are not created by the 
 Congress. The Congress controls the purse, and may not see fit to 
 appropriate compensation for those appointed by the President, but it 
 has been well held and is irrefutable that under the Constitution the 
 offices are created by that instrument, and he is given his own 
 absolute will as to when he will appoint and whom he will appoint 
 
THE TREATY-MAKING POWER 85 
 
 Mr. TILLMAN. Mr. President 
 
 The VICE-PRESIDENT. Does the Senator from Wisconsin yield to 
 the Senator from South Carolina? 
 
 Mr. SPOONER. Except as to confirmation by the Senate. 
 
 The VICE-PRESIDENT. Does the Senator from Wisconsin yield to 
 the Senator from South Carolina ? 
 
 Mr. SPOONER. Certainly. 
 
 Mr. TILLMAN. The Senator from Wisconsin having modified his 
 statement to that extent, I will not allude to that point; but I should 
 like to ask him, he having given us such a luminous exposition of the 
 Constitution, what is the relation between the President and the Foreign 
 Relations Committee of the Senate? Do those men never advise? 
 
 Mr. SPOONER. Is the Senator serious in putting to me that question ? 
 
 Mr. TILLMAN. I am. 
 
 Mr. SPOONER. I will give it a serious answer. 
 
 The relation of members of the Foreign Relations Committee to the 
 executive department of the Government in its relation to foreign re- 
 lations is precisely the relation which the Senator from South Carolina 
 and his colleagues sustain to the executive department in its relation 
 to foreign relations. The Committee on Foreign Relations, like the 
 other committees of this body, is not an independent entity. Its mem- 
 bers are Senators who are designated by the body to study and report 
 upon certain subjects, and the committee therefore is but the servant 
 of the Senate, as all other committees are. A member of the Foreign 
 Relations Committee, as a Senator, in his relation to the Senate and 
 executive department is only a Senator, just as those who are not on 
 that committee are Senators. 
 
 Of course, it will sometimes happen that members of the Foreign Re- 
 lations Committee, charged by the Senate with that particular subject, 
 will obtain information as servants of the Senate, in order to bring it 
 to the attention of the Senate, which other Senators might not seek; 
 but that is all. 
 
 Mr. BEVERTDGE. It is a matter of expediency. 
 
 Mr. SPOONER. It is not a matter of expediency. It is a matter of 
 industry, and a wise attempt at least to discharge the duty which the 
 Senate has committed to them. 
 
 Mr. BEVERLDGE. They are not compelled to do it by the 
 Constitution. 
 
 Mr. SPOONER. Oh, no. 
 
 Mr. LODGE. Mr. President 
 
 The VICE-PRESIDENT. Does the Senator from Wisconsin yield to 
 the Senator from Massachusetts? 
 
 Mr. LODGE. I merely wish to remind him of a fact with which he 
 no doubt is very familiar, that in the Administration of Mr. Madison 
 the Senate deputed a committee to see him in regard to the appoint- 
 
86 AMERICAN FEDERAL GOVERNMENT 
 
 ment of a minister to Sweden, I think, and he replied that he could 
 recognize no committee of the Senate, that his relations were exclusively 
 with the Senate. I have no doubt the Senator intended to recall that, 
 but as he stated the exact relations as he understood them, it seemed to 
 bear on that point. 
 
 Mr. SPOONER. I did not recall it; I am obliged to the Senator for 
 recalling it ; but I think I covered it 
 
 Mr. LODGE. You did, entirely. 
 
 Mr. SPOONER. By saying that members of a committee have no re- 
 lations to any Department of the Government, simply being servants of 
 the Senate, which has the relation to the Departments of the Government. 
 
 Mr. TILLMAN. If the Senator will permit me, I will explain why I 
 asked the question. 
 
 Mr. SPOONER. Certainly. 
 
 Mr. TILLMAN. The other day I submitted some observations on the 
 Santo Domingo business. In them I brought out a statement from the 
 New York Sun, which is in the Record of the iyth that the present 
 arrangement which is being carried out in Santo Domingo had the 
 approval of the Senator from Wisconsin and the Senator from Massa- 
 chusetts, both of whom are members of the Committee on Foreign 
 Relations, or rather that those Senators having objected previously, 
 acquiesced in it; in other words, that they advised with the President 
 and surrendered their own convictions as to the inadvisability of his 
 action there. The statement goes on to say that 
 
 Mr. SPOONER. I have that here. The Senator need not worry him- 
 self about that. 
 
 Mr. TILLMAN. The Senator is not worrying himself about anything ; 
 but I was just trying to get the Senator to give us, if he will be so kind, 
 the relationship between the Foreign Relations Committee and the 
 President. He says they have nothing whatever to do with it, and yet 
 the members of this committee of the Administration party are caught 
 in the act of having something to do with it in advising and objecting 
 and all that kind of thing, unless the Senator denies the statement. If 
 he denies it, I am done with it. 
 
 Mr. SPOONER. I think the Senator will be done with it 
 
 Mr. TILLMAN. I will be done with it anyway. 
 
 Mr. SPOONER. Because I will deal with that. 
 
 Mr. TILLMAN. Will the Senator pardon me for a little common- 
 sense observation there? 
 
 Mr. SPOONER. I may wish to judge for myself as to the common 
 sense of it. 
 
 Mr. TILLMAN. I claim it is common sense. I do not ask the Sena- 
 tor's indorsement of it as being common sense. I assert that it is common 
 sense. 
 
 Mr. SPOONER. I must indorse it on that assertion. 
 
THE TREATY-MAKING POWER 87 
 
 Mr. TILLMAN. Very well. Granting the Senator's contention to be 
 correct, and knowing, as the Senator must acknowledge, that a treaty 
 or any agreement made by the President must be submitted to the 
 Senate for ratification, and it is first referred to the Committee on Foreign 
 Relations, and that committee's attitude will almost certainly decide 
 its fate, I ask the Senator whether, as a matter of common sense, any 
 President would not prefer to have the advice of his Senatorial friends 
 advice, the constitutional word " advice " and has not the Senator given 
 that advice in his relationship of leader in the Senate and a member 
 of the Foreign Relations Committee and a personal friend of the 
 President? 
 
 Mr. SPOONER. Is the Senator through ? 
 
 Mr. TILLMAN. Yes; I am through for the time being. 
 
 Mr. SPOONER. I was about to say that being held down by constitu- 
 tional obligations and by the rule of courtesy which prevails in the 
 Senate, I feel bound to say that the Senator's question is a common- 
 sense question 
 
 Mr. TLLLMAN. For which I am very deeply grateful. 
 
 Mr. SPOONER. Only as a matter of politeness. 
 
 Mr. TLLLMAN. Then the Senator convicts himself of insincerity. 
 
 Mr. SPOONER. I do not. 
 
 The VICE-PRESIDENT. The Chair calls the attention of Senators to 
 the fact that in speaking they must address the Chair. The Senator 
 from Wisconsin will proceed. 
 
 Mr. SPOONER. Now, if the Senator from South Carolina will possess 
 his soul in patience, I wish to hurry through. 
 
 Mr. TILLMAN. Do not be in too big a hurry lest we lose something 
 nice. 
 
 Mr. SPOONER. I will in time reach the phase of the subject to which 
 the Senator has been alluding. 
 
 The President is so supreme under the Constitution in the matter of 
 treaties, excluding only the Senate's ratification, that he may negotiate a 
 treaty, he may send it to the Senate, it may receive by way of "advice and 
 consent" the unanimous judgment of the Senate that it is in the highest 
 degree for the public interest, and yet the President is as free when it is 
 sent back to the White House with resolution of ratification attached, 
 to put it in his desk never again to see the light of day as he was 
 free to determine in the first instance whether he would or would not 
 negotiate it. That power is not expressly given to the President by 
 the Constitution, but it inheres in the executive power conferred upon 
 him to conduct our foreign relations, and it is a power which inheres in 
 him as the sole organ under the Constitution through whom our foreign 
 relations and diplomatic intercourse are conducted. Out of public 
 necessity the President should be permitted to pocket a treaty, no matter 
 if every member of the Senate thought he ought to exchange the ratifica- 
 
88 AMERICAN FEDERAL GOVERNMENT 
 
 tion. Why ? Because the President, through the ambassadors, ministers, 
 consuls, and all of the agencies of the Government, explores sources of 
 information everywhere, it is his business to know whether anything has 
 occurred since the Senate acted upon the treaty which would render it 
 for the public interest that the ratifications be not exchanged. And he 
 is empowered to withhold exchange of ratifications, if upon later knowl- 
 edge he deems it for the public interest so to do. 
 
 The conduct of our foreign relations is a function which requires quick 
 initiative, and the Senate is often in vacation. It is a power that requires 
 celerity. One course of action may be demanded to-night, another in 
 the morning. It requires also secrecy; and that element is not omitted 
 by the commentators on the Constitution as having been deemed by the 
 framers of the most vital importance. It is too obvious to make elabora- 
 tion pardonable. 
 
 We ratified the arbitration treaty unanimously, I believe. The Presi- 
 dent, in the exercise of the power which no one can dispute, pocketed it. 
 The President may negotiate and sign a proposed treaty, and not send it 
 to the Senate. In such case what would be thought of a resolution ask- 
 ing him to inform the Senate whether he had negotiated such a proposed 
 treaty, and why he had not sent it to the Senate ? Having sent a treaty to 
 the Senate, he may withdraw it the next day. 
 
 Mr. President, the three great coordinate branches of this Government 
 are made by the Constitution independent of each other except where 
 the Constitution provides otherwise. We have no right to assume the ex- 
 ercise of any executive power save under the Constitution. We can not 
 assume judicial functions. The President may not assume judicial 
 functions. The President may not assume legislative functions. We as 
 the Senate, a part of the treaty-making power, have no more right under 
 the Constitution to invade the prerogative of the President to deal with 
 our foreign relations, to conduct them, to negotiate treaties, and that is 
 not all the conduct of our foreign relations is not limited to the 
 negotiation of treaties we have no more right under the Constitu- 
 tion to invade that prerogative than he has to invade the prerogative 
 of legislation. 
 
 Mr. MORGAN. If the Senator will allow me 
 
 The VICE-PRESIDENT. Does the Senator from Wisconsin yield to the 
 Senator from Alabama ? 
 
 Mr. SPOONER. Certainly. 
 
 Mr. MORGAN. I wish to suggest to him that he is perhaps using the 
 word " prerogative " in too broad a sense. I do not understand that the 
 President has any prerogatives under the Constitution. 
 
 Mr. SPOONER. What is the power to pardon? 
 
 Mr. MORGAN. That is a power derived from the Constitution. 
 
 Mr. SPOONER. That begs the question. 
 
 Mr. MORGAN. It is not a prerogative of royalty. 
 
THE TREATY-MAKING POWER 89 
 
 Mr. SPOONER. Kings have the power of pardon, which is a pre- 
 rogative of royalty. The Senator, however, is right in the last analysis. 
 This is not a kingly government. 
 
 Mr. MORGAN. That is right. 
 
 Mr. SPOONER. In the most technical sense I cheerfully yield to him 
 that this word is not a fit word for this atmosphere, but I have heard a 
 thousand times talk here about the prerogatives of the Senate. 
 
 Mr. MORGAN. That was just a thousand times too many. 
 
 Mr. SPOONER. Strictly, I agree with the Senator. 
 
 The act creating the Department of State, in 1789, was an exception to 
 the acts creating the other Departments of the Government. I will not 
 stop to refer to the language of it or to any of the discussions in regard to 
 it, but it is a Department that is not required to make any reports to Con- 
 gress. It is a Department which from the beginning the Senate has never 
 assumed the right to direct or control, except as to clearly defined mat- 
 ters relating to duty imposed by statute and not connected with the con- 
 duct of our foreign relations. 
 
 We direct all the other heads of Departments to transmit to the Senate 
 designated papers or information. We do not address directions to the 
 Secretary of State, nor do we direct requests, even, to the Secretary of 
 State. We direct requests to the real head of that Department, the Presi- 
 dent of the United States, and, as a matter of courtesy, we add the quali- 
 fying words, "if in his judgment not incompatible with the public 
 interest." 
 
 What does the conduct of our foreign relations involve? Does it in- 
 volve simply, do Senators think, the negotiation of treaties ? It involves 
 keeping a watchful eye upon every point under the bending sky where 
 an American interest is involved, where the American flag and citizens 
 of the United States are to be found on sea and on land, every movement 
 in foreign courts which might invade some American interest. It involves 
 intercourse, oral and written, conferences, administrative agreements 
 and understandings, not included in the generic word "treaty," as used 
 in the Constitution. All treaties are agreements, but all international 
 agreements and understandings are not "treaties." (See opinion Taney, 
 C. J., in Holmes v. Jennison, 14 Peters, 570-573.) 
 
 Speaking of the power of the President under the Constitution over 
 foreign relations, Mr. Justice McLean said (Williams v. Suffolk Insur- 
 ance Company, 13 Peters, 415) : 
 
 There can be no doubt that when the executive branch of the Government, 
 which is charged with our foreign relations, shall in its correspondence with a 
 foreign nation assume a fact in regard to the sovereignty of any island or country 
 it is conclusive on the judicial department, and in this view it is not material to 
 inquire, nor is it the province of the court to determine, whether the Executive 
 be right or wrong. It is enough to know that in the exercise of his constitutional 
 Junctions he has decided the question. Having done this under the responsibility 
 
go AMERICAN FEDERAL GOVERNMENT 
 
 which belonged to him, it is obligatory on the people and the Government of 
 the Union. (See Duran v. Rollins, 4 Blatch., Circuit Court, 448, opinion by 
 Mr. Justice Nelson.) 
 
 Professor Pomeroy, section 671, third edition, says: 
 
 The President is the sole organ of communication between our own and all 
 other governments. Foreign ministers and ambassadors are accredited to him ; 
 to him they present their credentials and pay their formal official visits. The 
 communications which they make, and the negotiations which they conduct, are, 
 in fact, made and conducted to and with the Secretary of State, but only as that 
 officer is the direct and personal organ of the President. All replies of the 
 Secretary are supposed to be suggested by the Chief Magistrate, and he may, 
 and doubtless often does, take an actual and leading part in the negotiation. 
 Our own ministers are nominated by the President. When appointed they 
 communicate alone with the Executive through the State Department. In- 
 structions are sent to them, despatches forwarded, demands made, claims in- 
 sisted on, principles adopted and enforced as the President deems proper. How 
 far he will actually interfere with the Secretary of State, and how far leave that 
 officer to the exercise of his own discretion, must depend upon his own sense of 
 duty and propriety and the completeness of his own convictions. 
 
 SEC. 672. Over all these proceedings the Congress has absolutely no control. 
 The correspondence and negotiations may be, and generally are, conducted 
 secretly; and although it is customary for the President to communicate de- 
 spatches to the legislature, this is never done until after their transmission, and, 
 if necessary, they may be indefinitely withheld when the President deems that 
 the public interests require it. Congress may pass resolves in relation to 
 questions of an international character, but these can only have a certain moral 
 weight; they have no legal effect; they can not bind the Executive. The 
 necessity for this is evident. Negotiations generally require a certain degree of 
 secrecy ; one mind and will must always be more efficient in such matters than 
 a large deliberative assembly. The President has thus intrusted to him a most 
 momentous power, and one which he can not entirely delegate. Our foreign 
 ministers must undoubtedly use their own judgment and discretion within 
 narrow limits, but in all important matters hey receive definite and positive 
 instructions from home. The magnitude of this function may be easily illus- 
 trated The President can not declare war; Congress alone possesses this 
 attribute. But the President may, without any possibility of hindrance from 
 the legislature, so conduct the foreign intercourse, the diplomatic negotiations 
 with other governments, as to force a war, as to compel another nation to take 
 the initiative; and that step once taken, the challenge can not be refused. How 
 easily might the Executive have plunged us into a war with Great Britain by a 
 single despatch in answer to the demands of the British cabinet made in relation 
 to the affair of the Trent. How easily might he have provoked a condition of 
 active hostilities with France by the form and character of the reclamations 
 made in regard to the occupation of Mexico. 
 
 I repeat that the Executive Department, by means of this branch of its power 
 over foreign relations, holds in its keeping the safety, welfare, and even per- 
 manence of our internal and domestic institutions. And in wielding this power 
 it is untrammeled by any other department of the Government; no other influ- 
 
THE TREATY-MAKING POWER 91 
 
 ence than a moral one can control or curb it; its acts are political, and its 
 responsibility is only political. 
 
 SEC. 673. But the other branch of this Executive function the treaty- 
 making power is even more important. The language by which this au- 
 thority is conferred and described is peculiar. The President shall have power, 
 by and with the advice and consent of the Senate, to make treaties, provided that 
 two-thirds of the Senators present concur. All treaties made, or which shall be 
 made, under the authority of the United States shall be the supreme law of the 
 land. The President must, of course, take the initiative in making all treaties. 
 
 Congress, as such, has nothing to say in the matter. As a treaty is necessarily 
 the result of negotiation, and as such negotiation is exclusively within the prov- 
 ince of the President, the Senate having not the least authority to communicate 
 with a foreign government, it is absolutely impossible for that body to dictate a 
 treaty or to force the Chief Magistrate into any particular line of action. He 
 must negotiate the treaty, make all the stipulations, determine all the subject- 
 matter, and then submit the perfected convention to the Senate for ratification 
 or rejection. They must take his finished work and approve or disapprove. 
 
 My friend from Georgia [Mr. Bacon] seemed to think it extraordinary 
 and novel that the President in exercising this constitutional power to 
 conduct our foreign relations, should send delegates or representatives 
 to the Moroccan conference. Where can there be found any warrant for 
 denying that right ? I think the Senator did not deny the right. We have 
 been engaged in conferences before. 
 
 Mr. BACON. Mr. President 
 
 The VICE-PRESIDENT. Does the Senator from Wisconsin yield to the 
 Senator from Georgia? 
 
 Mr. SPOONER. Certainly. 
 
 Mr. BACON. I do not desire to interrupt the Senator. 
 
 Mr. SPOONER. I have no objection. 
 
 Mr. BACON. I desire not to do so. I prefer to answer the Senator 
 afterwards, if I have an opportunity, rather than to take it up by piece- 
 meal. Therefore I only interrupt him in this instance because he sug- 
 gests what he understands to be my position, and it will require some 
 little more elaboration than to answer categorically. So I will not now 
 interrupt the Senator, but I will endeavor, if I have the opportunity, to 
 express as fully and as clearly as I can what is my exact position about 
 this matter. 
 
 Mr. SPOONER. But I think I misstated the Senator's position. I must 
 correct it. Of course, it was an inadvertence. The Senator did not deny 
 the right of the President. 
 
 [At this point the expiration of the morning hour was announced by the 
 Vice-President, and the unfinished business was laid aside temporarily.] 
 
92 AMERICAN FEDERAL GOVERNMENT 
 
 SPEECH OF SENATOR BACON 1 
 
 MR. BACON said: 
 
 Mr. President : I have already addressed the Senate at some length 
 upon the subject of the policy and propriety of sending delegates to the 
 Algeciras Moroccan conference. It had not been my purpose to ask 
 again the indulgence of the Senate upon this subject or upon questions 
 which are nearly connected therewith. It has, however, happened that 
 in the progress of the debate upon that subject and also on the subject of 
 the Santo Domingo treaty certain propositions have been announced on 
 the floor of the Senate and have been very earnestly and very ably dis- 
 cussed by learned and distinguished Senators, magnifying the powers of 
 the President and minimizing the powers of the Senate, to which I can 
 not give my assent and to which I ask the further indulgence of the Senate 
 that I may make reply. 
 
 Before proceeding, Mr. President, I desire to say that in submitting 
 an argument to-day on this subject I will endeavor to make it impersonal, 
 because I consider it a very grave question, involving the relative rights 
 and prerogatives of the President of the United States and of the Senate 
 a question important to be settled correctly and, if possible, without 
 reference to partisan feeling or bias. I think I may possibly with pro- 
 priety repeat what I have said upon a former occasion, that there is no 
 justification for the statement which has been more than once made upon 
 the floor of the Senate that the discussion of this question is in any man- 
 ner an assault upon the present occupant of the executive chair. Legiti- 
 mate and respectful discussion, not only of the rights and prerogatives 
 of the Executive, but of the official acts of the Executive relating to ques- 
 tions of such rights and prerogatives, can not in any manner be construed 
 into a personal assault, and it occurs to me, Mr. President, that the reit- 
 eration of the suggestion to give it no stronger term that such dis- 
 cussion is an assault upon the President and sometimes stronger terms 
 have been used must imply a want of confidence in their own conten- 
 tion by those who seek to fortify their position by such suggestion. 
 
 The distinguished Senator from Wisconsin [Mr. Spooner] announces, 
 as I understand him, the following proposition : That the negotiation of 
 a proposed treaty and every phase of the work of considering and deter- 
 mining what shall be the subject and terms of a treaty are, up to and in- 
 cluding the reaching of an agreement with a foreign power and until the 
 proposed treaty is submitted to the Senate for final ratification or rejec- 
 tion, matters within the sole and exclusive right and power of the Presi- 
 dent; and that the jurisdiction of the Senate does not attach in any 
 manner, and that no power or duty or right of the Senate begins until the 
 President shall have negotiated a proposed treaty with a foreign power, 
 
 1 Congr. Record, Feb. 6, 1906. Reported Feb. 12, 1906. 
 
THE TREATY-MAKING POWER 93 
 
 shall have agreed with the foreign power on the terms of the same, and 
 shall have sent it to the Senate ; and that for the Senate to attempt either 
 by inquiry or suggestion to have part or lot in such work prior to the sub- 
 mission to the Senate, is an intrusion upon the exclusive domain and 
 jurisdiction of the President of the United States. 
 
 As to whether or not he is correct in that construction of the powers of 
 the President and the want of the power in the Senate, must depend upon 
 the language of the Constitution of the United States. Fortunately, so 
 much of the language of the Constitution as relates to that is within a 
 very small compass ; it is in one sentence. It is the second paragraph of 
 the second section of the second article of the Constitution, and it is in 
 these words: 
 
 He shall have Power, 
 
 Speaking of the President of the United States 
 
 He shall have Power by and with the Advice and Consent of the Senate to 
 make Treaties, provided two-thirds of the Senators present concur. 
 
 That is all there is in the Constitution as to the power of the President 
 to make treaties and as to the right and power of the Senate to participate 
 in the work of making treaties. 
 
 Now, Mr. President, it. will be seen that in that language the word 
 "negotiate" does not occur. There is no separate, express grant of 
 power to negotiate a treaty. It is necessarily true, however, that the 
 power to negotiate a treaty is an implied power involved in that language; 
 in other words, the power "to make" a treaty necessarily implies the 
 power to negotiate a treaty. But there may be a very great difference in 
 opinion as to what is the meaning of the word "negotiate," if we assume 
 it and concede it to be an implied power found in that language. So far 
 as the power to suggest a treaty to a foreign power is concerned, or to re- 1 
 ceive a suggestion from a foreign power that a certain treaty should be 
 made, or to discuss with a foreign power the subject or the terms of a 
 proposed treaty, undoubtedly the power to negotiate within that narrow 
 limit is one which can only be exercised by the President, because he 
 alone under this clause can have direct communication with the foreign 
 power. No other officer or authority on the part of the United States can 
 submit a proposed treaty to a foreign power. No other authority can 
 discuss with a foreign power the terms of a proposed treaty, or come to a 
 preliminary agreement with the foreign power regarding the same. 
 Within this restricted sense the implied power to negotiate a proposed 
 treaty is in the President alone. 
 
 But it is evident that the learned Senator in this discussion does not 
 confine his understanding of the word "negotiate" to such narrow limits 
 in defining the power of the President in the making of treaties. Evi- 
 
94 AMERICAN FEDERAL GOVERNMENT 
 
 dently the Senator intends to include in the exclusive power to " nego- 
 tiate" a proposed treaty, the exclusive power to do everything connected 
 with the policy or impolicy of a treaty prior to its actual submission to 
 the Senate for its ratification. In other words, the Senator's proposition 
 is that under this implied power to "negotiate" everything in the way 
 of consideration of the advantage or the disadvantage, or of the propriety 
 or the policy of making a treaty, or of its terms, is a matter for the exclu- 
 sive suggestion and deliberation and determination of the President, and 
 that any suggestion or inquiry or advice on the part of the Senate prior to 
 such submission is gratuitous and intrusive, and, as has been suggested, 
 even insulting to the President. The radical and extreme position of the 
 Senator in this regard is best understood when the fact is known that his 
 utterance above quoted is caused by the introduction of a resolution ask- 
 ing information concerning the instructions given to the delegates 
 appointed to the Algeciras conference. That resolution the Senator con- 
 demns as intrusive upon the exclusive jurisdiction of the President. Ac- 
 cording to the contention of the learned Senator, alone in the brain of the 
 President, alone in his suggestion and deliberation, and alone in his 
 judgment must be evolved and shaped up the policies and measures, 
 which, if they become law, are to be the supreme law of the land. 
 
 According to that contention, the Senate has nothing to do with it 
 no concern, no right to consider, no right to be heard, no right to in- 
 quire, no right to advise until the President shall have thus perfected 
 it according to his judgment and submitted it to the Senate, to receive 
 at its hands a perfunctory often, I should say, a perfunctory reply 
 of "yes" or "no"; and according to that contention to proceed beyond 
 that is an intrusion upon the exclusive domain and jurisdiction of the 
 President. 
 
 Mr. President, that proposition is not sustained either by the letter 
 or by the spirit of the Constitution or by the history of the treaty-making 
 , power as found in the history of the convention which framed the Con- 
 stitution. On the contrary, they all, and the history as well of the adop- 
 tion of this provision of the Constitution as found in the debates of the 
 constitutional convention, combine to establish the proposition that in 
 the making of treaties it is proper for the Senate to advise at all stages. 
 Upon the very surface of it lies the oft-repeated suggestion that, if that 
 were the case, the Constitution would limit itself to the term "consent." 
 
 Mr. SPOONER. Limit itself to what? 
 
 Mr. BACON. I say, if that were the correct construction, there is 
 the oft-repeated suggestion that if it had been the intention of the framers 
 of the Constitution to limit the action and function of the Senate solely 
 to the power to ratify or to reject, the language of the Constitution would 
 not have been "advise and consent," but the language would have been 
 "consent," because there is no reason why the word "advise" should 
 be given to add to or explain the meaning of the word "consent." We 
 
THE TREATY-MAKING POWER 95 
 
 do not advise men after they have made up their minds and after they 
 have acted; we advise men while they are considering, while they are 
 deliberating, and before they have determined, and before they have 
 acted. 
 
 As I have already said, Mr. President, there is no direct, express, 
 separate grant of power to negotiate. The entire power is the power 
 to make treaties ; and yet the learned Senator would have us divide that 
 power so that the term "to make" should be construed to mean, in the 
 first place, in one division "to negotiate" and in another division "to 
 conclude." But there is nothing in the words of the Constitution to 
 justify any such division as that. It is one indivisible power "to make," 
 and in the entire power "to make" the Senate is given full participation 
 in advising and consenting. 
 
 The contention that the power of the President includes everything 
 up to the time of the submission of the proposed treaty to the Senate 
 might be sustained if the language of the Constitution were that "the 
 President of the United States should have power to negotiate and, 
 with the advice and consent of the Senate, to make treaties." Then it 
 would indicate a separate function ; then it would indicate a first division 
 of the duty, to negotiate, the jurisdiction of which was confided entirely 
 and solely to the President; and the second division, to make, one in 
 which the President and the Senate together should act. 
 
 But the language of the Constitution is, "He shall have power, by 
 and with the consent of the Senate, to make treaties," which plainly 
 indicates not that the Senate should be limited to saying yes or no to a 
 perfected and finished work when presented to it by the President, but 
 rather the assistance of the Senate, the advice and cooperation of the 
 Senate in the determination as to the propriety and policies of proposed 
 treaties and also the terms and provisions they should contain. But 
 the word "negotiate" is omitted before the words "to make." That 
 is not an accidental omission. There was design in it. Aside from the 
 fact that there is no ground upon which to predicate the suggestion that 
 it was an accidental omission, the words used by the framers of the Con- 
 stitution in the very next clause really only divided from it by a semi- 
 colon, prove that they were weighing carefully the language when they 
 conferred the power upon the President of the United States. Separated 
 from it only by a semicolon is this language I will read the entire 
 clause, part of which I have already read: 
 
 He shall have power, by and with the advice and consent of the Senate, to 
 make treaties, provided two-thirds of the Senators present concur; 
 
 Then follows the semicolon. Then the language proceeds: 
 
 and he shall nominate, and by and with the advice and consent of the Senate, 
 shall appoint ambassadors, etc. 
 
96 AMERICAN FEDERAL GOVERNMENT 
 
 There it was the evidently distinct purpose to divide the duty and to 
 confer in the first part of that division an exclusive function and juris- 
 diction upon the President of the United States: 
 
 He shall nominate, and by and with the advice and consent of the Senate, 
 shall appoint. 
 
 Showing that the purpose was that up to the time it was submitted 
 to the Senate, the Senate had no function in the matter of appointment, 
 and that the function of the Senate was limited to advising and con- 
 senting to the nomination previously made by the President in the 
 discharge of a function and of a jurisdiction exclusively confided to 
 him. 
 
 Can it be said that the framers of the Constitution of the United States 
 in writing a clause, or two parts of the same clause, were careless in the 
 use of language when they were conferring the great power of treaty 
 making; that they intended to say that the President should have the 
 exclusive function up to the time of the submission of the treaty to the 
 Senate, and that the duty and the power of the Senate, as the Senator 
 from Wisconsin has said, should only begin when the President had so 
 done, and that they used this language as found in the Constitution, 
 leaving to be implied only the construction contended for; and then 
 thereafter, in the less important matter of the appointing of officers, 
 should have been critical in the use of language, leaving nothing to im- 
 plication, and should have said "he shall nominate," and then added 
 "and thereafter" I interpolate the word "thereafter" - " and there- 
 after, by and with the advice and consent of the Senate, shall appoint"? 
 Mr. President, it is incredible. 
 
 ******** 
 
 The Senator from Wisconsin in his argument said that the President 
 was supreme he used the word "supreme" in the making of 
 treaties to the extent that even after a treaty was submitted to the Senate 
 and ratified by the Senate, the President could put it in his pocket and not 
 promulgate it or exchange ratifications. 
 
 No doubt that is true, and in the same way when the President sends 
 a proposed treaty to the Senate, the Senate, if it sees proper to do so, can 
 treat it without any attention whatever and not even refer it to a com- 
 mittee. It would not be seemly to do so, but no more so than for a 
 President to be likewise heedless and regardless of the views of the 
 Senate in reference to the propriety or the policy of making a proposed 
 treaty in a matter touching vitally the interests and the institutions of 
 the country. It would be not less unseemly for him to reply to an in- 
 quiry or suggestion of the Senate, "Hands off." 
 
 In what particular is the power of the President thus to put a treaty 
 ratified by the Senate in his pocket more supreme than the power of the 
 
THE TREATY-MAKING POWER 97 
 
 Senate to bury in its archives without action a proposed treaty sent to 
 it by the President? I am not detracting from the President or his 
 power; I concede to him his full constitutional power; but I deny the 
 proposition that the President has any superior power or any superior 
 dignity in the making of a treaty over and above the Senate. 
 
 Mr. BEVERIDGE. Suppose the Constitution had been silent upon 
 the question of the treaty-making power, where would that power have 
 lodged ? Or I will put the question in this way : Suppose the Constitu- 
 tion had said nothing about making treaties, would not the complete 
 power of making treaties have been in the President, under section i of 
 Article II, which lodges the executive power in the President? 
 
 Mr. BACON. I think not. I do not understand the word "executive" 
 to mean anything of the kind. 
 
 Mr. BEVERIDGE. Does not the Senator think that in the natural 
 division of the powers of Government into legislative, executive, and 
 judicial the treaty-making power has always been considered an execu- 
 tive function, and, therefore, if the Constitution had been silent upon 
 the subject of treaties, it would have been completely under the Presi- 
 dent's control, under that provision of the Constitution which confides 
 in the President the executive power, and that that section concerning 
 treaties is merely a limitation upon that universal power? 
 
 Mr. BACON. Oh, no. The Senator has gone to his favorite doctrine 
 as to extraconstitutional power, which I will not stop to discuss with 
 him to-day. The two continents, separated by the Atlantic Ocean, are 
 not wider apart than the Senator and I upon the subject of the exercise 
 of powers not found in the Constitution. 
 
 Mr. BEVERIDGE. If the Senator will permit me 
 
 Mr. BACON. I can not discuss it to-day. It would take all my time. 
 
 Mr. BEVERIDGE. I will ask the Senator to answer this question: 
 Since the Constitution has said nothing about 
 
 Mr. BACON. The Senator has asked that question, and he does not 
 let me answer before repeating it. The Senator will pardon me, but 
 he has already asked it twice. 
 
 Mr. BEVERIDGE. I will ask this question: If the Constitution had 
 said nothing about the treaty-making power, where would the treaty- 
 making power have been lodged? 
 
 Mr. BACON. I have received that question from the Senator several 
 times. I have said that I did not agree with him that it would be with 
 the Executive. 
 
 Mr. BEVERIDGE. Where would it be? 
 
 Mr. BACON. I think, undoubtedly, in the legislative branch of the 
 Government, for reasons which I will give. 
 
 Mr. BEVERIDGE. That is the whole question. 
 
 Mr. BACON. Here is where the sovereignty of the Government was 
 intended to be in almost its totality in the legislative branch of the 
 
98 AMERICAN FEDERAL GOVERNMENT 
 
 Government, and the vast array of powers in the first article of the Con- 
 stitution prove it ; and, further than that, the Constitution of the United 
 States was intended to take the place of and to supersede the Articles 
 of Confederation, under which articles the power to make treaties did 
 lodge in Congress alone ; and it was not to be presumed when the Con- 
 stitution was formed, in the absence of some special and particular 
 designation, that it was the intention to confer it upon the Executive. 
 The presumption would be the other way. 
 
 I was about to say, however, at the time of the interrogatory pro- 
 pounded to me by the learned Senator, in concluding what I had to say 
 on the history of this matter, that President Washington in one of his 
 messages casts a very strong light upon the question as to what was the 
 estimate which this convention had of the treaty-making power and 
 of the duty and function which the Senate should exercise in the treaty- 
 making power. In a famous message, which the Senator from Wis- 
 consin cited and which has been cited frequently and with which we 
 are all familiar, where President Washington refused to send certain 
 papers to the House of Representatives upon its demand, upon the 
 ground that the House of Representatives had nothing to do with treaties, 
 and that the Senate alone was the body with which he was to deal, the 
 Senate alone was the body which had the right to ask of him informa- 
 tion, the Senate alone was the body which had the right to share with 
 him the secrets connected with foreign affairs, stated this fact : 
 
 It is found in his message. He said not only was the treaty-making 
 power confided in part to the Senate, but, speaking as he did and 
 as he said, as a member of the convention and familiar with what had 
 been done and said there, he added that there was a very strong 
 effort made not only to require that two-thirds of the Senate present 
 should agree to a treaty, but that two-thirds of the entire Senate, whether 
 present of not, should be required before a treaty could be put 
 into effect. There could scarcely be stronger evidence than is found 
 in this historical fact of the supreme estimate which was placed by the 
 convention on the importance that the Senate should be the controlling 
 influence in determining whether or not any given treaties should be 
 made with foreign countries. 
 
 Mr. President, we have often had cited the fact that Washington 
 during his Administration met personally with the Senate to advise as 
 to the making of treaties. He had been present during all the delibera- 
 tions of that Convention; he was president of the Convention which 
 made the Constitution; he had heard all the deliberations; he had 
 doubtless in personal interviews canvassed this matter and discussed 
 it with members of the Convention, and the fact that he met personally 
 with the Senate, the fact that he conferred personally with the Senate 
 as to the propriety of making treaties before attempting to negotiate them, 
 show what he understood to be the intention of the Convention that 
 
THE TREATY-MAKING POWER 99 
 
 the Senate should be not simply the body to say yes or no to the Presi- 
 dent when he proposed a treaty, but that the Senate should be the ad- 
 viser of the President whether he should attempt to negotiate a treaty. 
 What possible doubt can there be under such circumstances as to what 
 was his understanding of the purpose and intention of those who framed 
 the Constitution ? And what possible doubt can there be that his under- 
 standing was correct? 
 
 Mr. President, it is true that that practice has been abandoned, so 
 far as concerns the President coming in person to sit in a chair on the 
 right of the presiding officer to confer with members of the Senate, as 
 our rules still provide he shall do should he come here personally, show- 
 ing we recognize the propriety of his coming and his right to come. 
 But nevertheless during my official term it has been the practice of 
 Presidents and Secretaries of State to confer with Senators as to the 
 propriety of negotiating or attempting to negotiate a treaty. 
 
 I know in my own experience that it was the frequent practice of 
 Secretary Hay, not simply after a proposed treaty had been negotiated, 
 but before he had ever conferred with the representatives of the foreign 
 power, to seek to have conferences with Senators to know what they 
 thought of such and such a proposition ; and, if the subject-matter was 
 a proper matter for negotiation, what Senators thought as to certain 
 provisions; and he advised with them as to what provisions should be 
 incorporated. 
 
 I recollect two treaties in particular. One is the general arbitration 
 treaty. I do not know whether he conferred with all Senators, but I 
 think he did. I think he conferred with every Senator in this Chamber, 
 either in writing or in person, as to the general arbitration treaty. He 
 certainly conferred with me. 
 
 Mr. SPOONER. Who did? 
 
 Mr. BACON. Mr. Hay. He certainly conferred with me, not only 
 once but several times, and I presume he did the same with other Sena- 
 tors, not simply as to the question whether a treaty should be negotiated, 
 but as to what provisions should be incorporated in it. I am sorry to 
 say that while agreeing with the purpose in view I could not agree with 
 some of the provisions incorporated in that particular treaty, and he 
 went on and the treaty was formulated with which in all particulars I 
 did not agree. But I am simply speaking of the fact that he conferred 
 with Senators before he formulated a treaty, not simply before the 
 President sent it here, not simply before it was negotiated with Sir Morti- 
 mer Durand and the ambassadors of other countries, but before it had 
 been formulated. 
 
 Then, as to another, I recollect distinctly the Alaskan treaty. Time 
 after time and time after time Mr. Hay, then Secretary of State, con- 
 ferred with Senators, and, I presume, with all the Senators, as to the 
 propriety of endeavoring to make that treaty and as to the various pro- 
 
ioo AMERICAN FEDERAL GOVERNMENT 
 
 visions which should be incorporated in it, recognizing the delicacy of 
 the situation, and the provisions of that treaty were well understood by 
 members of the Senate and approved by members of the Senate before 
 it was ever formulated and submitted to Sir Michael Herbert. 
 
 But what was Mr. Hay doing in all that time? Was he carrying out 
 the contemplation of the Constitution? Was he engaged in the per- 
 formance of a high duty ? Was he availing himself of a valuable instru- 
 mentality, or was he simply engaged in the interchange of politeness ? 
 
 Mr. SPOONER. Will the Senator permit me to make an inquiry of 
 him? 
 
 Mr. BACON. With pleasure. 
 
 Mr. SPOONER. Does the Senator conceive of no distinction between 
 consultation by the Secretary of State, if he so wills it, with Senators, 
 and the participation of the Senate, as a body, the thing of which we are 
 speaking, as a part of the negotiating power? 
 
 Mr. BACON. The Senator leads me to remark what I said to a Sena- 
 tor yesteiday, that the Senator's mind necessarily works more rapidly 
 than another man's tongue can. The Senator is simply anticipating 
 what I was coming to on that point. 
 
 Mr. SPOONER. That is a high tribute to my intelligence. 
 
 Mr. BACON. On the contrary, I consider it a tribute to me, that the 
 logical sequence of the question is directly where the Senator put it, 
 and that I had been so fortunate as to be going straight in that direction. 
 So I can take it as a compliment to myself. 
 
 I will, however, now take the subject which I was about to discuss 
 otherwise, just in the form in which the Senator puts it, because it is 
 practically the same as that which I had intended. 
 
 The Senator asked me this question: Do I draw no distinction be- 
 tween the voluntary action of the Secretary of State endeavoring to get 
 the opinion of the Senator or of myself and the act of the Senate seek- 
 ing I do not know whether I am correctly quoting him ; if not, the 
 Senator can correct me to proffer to the State Department or to the 
 President advice unasked? Is that the question? 
 
 Mr. SPOONER. Well, yes; substantially 
 
 Mr. BACON. That is the way I understood it. 
 
 Mr. SPOONER. Although I want the Senator to understand that I 
 have not questioned the right of the Senate 
 
 Mr. BACON. I know; but the Senator asked me a question. Let us 
 discuss that afterwards. 
 
 Mr. SPOONER. To offer its advice, either in public or in private. 
 
 Mr. BACON. I do not understand the Senator's question. 
 
 Mr. SPOONER. The question I put to the Senator was this: If he 
 did not recognize a distinction, from the standpoint of the matter of con- 
 stitutional power, between the President leave out the Secretary of 
 State asking individual Senators their judgment as to a proposed 
 
THE TREATY-MAKING POWER 101 
 
 treaty, and his inviting the Senate as a body, or individual Senators 
 volunteering to the President their advice as to a proposed; negotiation, 
 and the action of the body as a body volunteering their advice; especially 
 if they asserted the right to do so ? > - 
 
 Mr. BACON. Well, I will answer the Senator definite!) 1 *. - f do.m/t 
 recognize the distinction, and I will tell him the reason why. 
 
 When the President or the Secretary of State either say, the Presi- 
 dent, to simplify it asks a Senator what he thinks about the proposi- 
 tion to negotiate such and such a treaty, and what he thinks as to the 
 specific terms to be incorporated in that treaty, he does not ask that 
 Senator that question as he asks Mr. Jones or Mr. Smith, whom he 
 happens to meet upon the Avenue, in order that he may have the ad- 
 vantage of advice and assistance from a man in whose intellectual 
 processes and capacity he has confidence, but he asks him because of 
 the fact that the Constitution of the United States makes the Senator 
 his adviser, his constitutional, official adviser and counselor in the mak- 
 ing of treaties. 
 
 Now, Mr. President, if that is true, is that advice something which 
 the President has exclusively within his control ? Is it something which 
 he can ask, and which he alone can get the benefit of in case he does 
 ask, or is it a great constitutional provision which makes it a reciprocal 
 right for a common benefit ? 
 
 Can it be said that while it is proper for Senators or the Senate to 
 respond when advice is asked, it is improper, under the constitutional pro- 
 vision, to volunteer such advice? It is undoubtedly true that the Presi- 
 dent alone determines whether he will approve and act upon the advice 
 of the Senate, just as the Senate determines whether it will or will not 
 approve a proposed treaty. But can it be contended that the Senate, 
 although the constitutional adviser of the President, can only give ad- 
 vice when asked for it, and that it is an intrusion to proffer it when thus 
 not asked for it? Where is the warrant in the Constitution for such 
 contention ? That it has not been so recognized by the President or by 
 the Senate is shown by the fact that it has frequently happened that 
 resolutions have frequently been passed by the Senate informing the 
 President that the Senate would approve a treaty for a given purpose. 
 Can it be said that while proper to thus notify the President, in advance, 
 of what the Senate would approve in a treaty, it is improper to notify 
 him also, in advance, of what it deprecates, if it is proposed to embody 
 it in a treaty ? Can it be proper for the Senate to offer advice or counsel 
 to the President as to the policy or impolicy of a proposed treaty, and 
 at the same time improper to ask for the information upon which to base 
 such advice or counsel ? Where is the logic or such a contention ? 
 
 Again, can it be proper to advise the President as to the desirability 
 and policy of negotiating a treaty where he has not taken any action 
 relative thereto and where the suggestion originates with the Senate, 
 
102 AMERICAN FEDERAL GOVERNMENT 
 
 and on the other hand be improper to advise him of the undesirability 
 and impolicy, in the opinion of the Senate, in a case where it is reliably 
 learned through other sources that he has begun to take or has taken 
 action relative thereto? Where does the Senate get power to amend a 
 treaty if its authority is limited to consenting to what the President has 
 done? When the Senate has amended a proposed treaty and the Presi- 
 dent thereafter submits the amendment to the foreign power for its con- 
 sideration, has not the Senate taken part in the negotiation of that 
 treaty? 
 
 If the contention is correct that the jurisdiction and power of the 
 Senate do not begin until the proposed treaty is sent to the Senate, then 
 none of these things are proper, and to make an inquiry of the President 
 relative to a proposed treaty is an intrusion upon his exclusive jurisdic- 
 tion. If the contention is correct, it matters not what may be the well- 
 understood purpose of an Executive in negotiating a treaty or in sending 
 delegates to a conference, the Senate is dumb until it receives a pro- 
 posed treaty. It may be, as forcefully suggested by the Senator from 
 Maine [Mr. Hale] a few days ago, that the proceeding tends inevitably 
 to war, and yet it will be an intrusion for the Senate to even make an 
 inquiry of the Executive concerning the same. 
 
 Again, the Executive may, without ever sending any proposed treaty 
 to the Senate, continue to send delegates to European international 
 political conferences, and in time practically destroy our recognition of 
 the long-established doctrine of non- entanglement by us in such dis- 
 putes. After having taken an active part by our delegates in the Alge- 
 ciras conference, no proposed treaty may be submitted to the Senate. 
 Nor is that all in sight. We are told in the press despatches that Euro- 
 pean questions concerning the Balkan States are again becoming acute; 
 that there is great tension, and that another European war cloud is 
 gathering in the East. Doubtless there will be another conference to 
 deal with that situation and determine the relative rights and powers 
 of the war lords of Europe. To that, according to the new doctrine, it 
 will again be in order to send delegates from the United States. And 
 after having taken an active part in the deliberations of the conference, 
 again no proposed treaty may be sent to the Senate. And although in 
 attending each of these conferences by our delegates tremendous strides 
 will have been taken in establishing precedents and in destroying the 
 doctrine of an hundred years against entanglements in European inter- 
 national disputes, still in the absence of any proposed treaty submitted, 
 the Senate must be dumb, and it is an intrusion to even make an inquiry 
 of the President in the interest of the preservation of the cherished policies 
 of our country. Mr. President, I can not subscribe to such a doctrine. 
 
 It seems to be somewhat remarkable that there should be such ex- 
 treme sensitiveness about the Senate assuming to advise as to the " nego- 
 tiation" of a treaty, when it seems to be entirely proper for " advice" 
 
THE TREATY-MAKING POWER 103 
 
 to be given by the President to Senators as to how they should vote on 
 the question of the ratification of a treaty. 
 
 Mr. SPOONER. If the Senator will permit me, does he think if the 
 President asked a Senator's advice as to whether a treaty should be nego- 
 tiated or not, the Senator is under any constitutional duty to give it, or 
 would be committing a breach of Senatorial duty if he declined to advise 
 in advance? 
 
 Mr. BACON. If the Senator declined? 
 
 Mr. SPOONER. If the Senator declined. The Senator speaks of 
 reciprocal rights. He says the President has the right to ask a Senator 
 for his advice as to whether any foreign policy shall or shall not be pur- 
 sued in the matter of negotiating a treaty. To test that, does the Senator 
 think if the President has a right to ask it 
 
 Mr. BACON. Ask the question now. 
 
 Mr. SPOONER. The Senator, I should think, ought to have a recip- 
 rocal duty to answer. 
 
 Mr. BACON. I think so, undoubtedly. 
 
 Mr. SPOONER. Does the Senator think the Senator is obliged to 
 answer ? 
 
 Mr. BACON. Undoubtedly he may not be able to give it. He may 
 say, "I have not the information; I have not made up my mind." But 
 for the Senator to say, "I have an opinion, but I will not give it to you," 
 would, in my opinion, be a contravention of his constitutional duty. 
 There is but one possible ground upon which a Senator could base any 
 such refusal, and that is, if he were to say (and I do not think he would 
 be correct in that), "I recognize that this is an act which should be per- 
 formed by the Senate as an organized body and not by myself in my 
 official individual capacity, and therefore I decline to give any indi- 
 vidual opinion." That is the only ground upon which he could put 
 it, and I do not think that would be a correct ground. 
 
 Mr. SPOONER. Would it not be an eminently proper and wise ground 
 for the Senator to take that the people were entitled to his independent 
 judgment on the question as to whether a treaty should be ratified or not 
 by the Senate after it had been negotiated and submitted to the Senate ? 
 
 Mr. BACON. I ask the Senator to please repeat his question. 
 
 Mr. SPOONER. Would it not be entirely proper and wise and almost 
 a duty for a Senator to say, "I decline to commit myself as a Senator in 
 advance to a proposed treaty. I prefer to wait until the power of nego- 
 tiation, which the Constitution lodges in the President, shall have been 
 put forth and the Senate is in possession of the instrument, so that I 
 can read it, study it, have the advantage of debate upon it among my 
 associates, and then give to it the independent judgment to which the 
 people are entitled from every Senator?" 
 
 I doubt myself, and I have had some experience, the wisdom of a 
 Senator committing himself blindly to a foreign policy, to end in the 
 
104 AMERICAN FEDERAL GOVERNMENT 
 
 negotiation of a treaty, to find himself later, when the negotiation is 
 ended and the document is laid before the Senate, halfway (which with 
 an honorable man means a great way) committed, and committed too 
 early and too hastily. 
 
 Mr. BACON. The Senator asks me the abstract question whether or 
 not I consider it to be the constitutional duty of a Senator to give ad- 
 vice to the President as to the propriety of the making of a treaty before 
 it has been sent to the Senate. I answer in the affirmative. The Senator 
 goes on to say that no Senator ought to give blindly his advice. I quite 
 agree with him, as I have intimated before. A Senator may decline to 
 give the advice upon the ground that he has not had the proper time for 
 making up his mind satisfactorily to himself, or for other good reason. 
 
 But, Mr. President, advice means also counsel. Advice means more 
 than giving simply the statement of what the Senator thinks ought to 
 be done. It means counsel; and, therefore, while the Senator might 
 say to the President, "I am not in a position to make up my mind defi- 
 nitely as to what ought to be done," the President would then proceed 
 to counsel with him and suggest such and such a condition of affairs 
 and such and such remedies which might be applied, with a view to 
 arriving at a conclusion as to what would be the proper thing to do. 
 Then, I say if the Senator would turn his back on the President and 
 say, "I decline to counsel with you or to hear your suggestion or to con- 
 fer with you as to what is the proper thing to be done," while, of course, 
 it would be a matter of conscience for each Senator, from my point of 
 view the Senator would be derelict in so doing. 
 
 Now, Mr. President, I am not certain whether I had fully 
 answered the inquiry of the Senator from Wisconsin [Mr. Spooner] 
 or not. He is present, and if I have not, I hope he will call my attention 
 to it. My attention has been so diverted I am really not certain whether 
 I completely replied to his interrogatory. But before leaving it I wish 
 to say in a general way that according to my view of the treaty-making 
 power, of the duty of the President, and of the duty of the Senate, it is 
 a reciprocal and a common duty, one in which each has the advantage 
 of the services of the other, one in which there is, perhaps, no compul- 
 sion, one in which each can defeat the work of the other, one in which 
 the cooperation and combination of the two from the inception to the 
 end is necessary in order to fully comply with the intention and design 
 of the Constitution makers in this regard. 
 
 The Senator from Wisconsin, in order to accentuate and emphasize 
 the fact that the President of the United States sat away up on a pedestal 
 above us in all matters which related to treaty making, except the simple 
 matter, as he himself expressed it, of " ratification," because he trans- 
 lates the words " ad vice and consent" as meaning in the common par- 
 lance "ratification," the Senator, I say, in order to emphasize that fact, 
 
THE TREATY-MAKING POWER 105 
 
 goes further, and in the clauses of his speech which I have already read 
 he puts up as the supreme power, the supreme controller in all foreign 
 affairs, the President of the United States. The President, according 
 to the Senator from Wisconsin, in all of our foreign affairs is supreme. 
 And, Mr. President, he lays down the proposition with much emphasis, 
 and says that that is I am not quoting the words now, but the sub- 
 stance practically conceded by every man who has ever studied the 
 Constitution. He asserts this so broadly and so emphatically that for 
 one to assert the contrary is to recognize in advance that in so doing 
 he, according to the Senator, puts himself out of the pale and class of 
 reputable lawyers. Yet, Mr. President, at the risk of being thus de- 
 barred, I want to analyze a little bit the powers conferred by the Con- 
 stitution with reference to foreign affairs, and see whether they rest 
 with the President alone or whether, in the main, they rest with Con- 
 gress, and with the Senate in conjunction with the President. 
 
 It is true, Mr. President, that in the countries antedating our Gov- 
 ernment the executive, who was almost universally a king I believe 
 little Switzerland was the only exception at that time, and I am not 
 sure that it was at that time, because it has had varying fortunes, and 
 I have forgotten whether at that particular time it was a republic or 
 not but almost universally the executive of a nation was a king, and 
 he did have, among other kingly powers, all control over foreign affairs. 
 But, Mr. President, when our Constitution came to be framed there was 
 particularly and definitely withheld from the executive every important 
 foreign function, according to my view of it. I know in one particular 
 the Senator differs from me, but in all others he will agree. It took 
 away from the Executive, with the exception of the treaty-making power, 
 all power over foreign affairs. It made him, in the language the Senator 
 used the other day, the organ of intercommunication with foreign nations. 
 It made him the spokesman for the Government. It made him the per- 
 son to discuss with foreign governments, to make demands, if you please, 
 on foreign governments, to guard so far as watchfulness goes, the in- 
 terest of our country and of our citizens in foreign lands. But when it 
 came to action, when it came to the power to do anything, that power 
 was expressly conferred upon Congress, or upon the President in con- 
 junction with the Senate. 
 
 What is the most important of all foreign relations ? Why, the most 
 important of all foreign relations is the relation of peace and war. Can 
 the President declare war? Can the President prevent a declaration of 
 war? The President not only can not declare war, and it is not only 
 conferred in terms upon Congress, but even if the President should be 
 opposed to a proposed war, two-thirds of each Branch can declare war. 
 It would not require his approval. There is the most important of all 
 foreign relations. It does not belong to the President. Nor can the 
 
io6 AMERICAN FEDERAL GOVERNMENT 
 
 President alone make peace. He can only do so with the cooperation 
 of the Senate. 
 
 The question of commerce is certainly an important matter of rela- 
 tion between two countries, and yet the President has no power over 
 commerce with foreign nations. The power to regulate commerce is 
 not simply withheld from the President, but it is expressly conferred 
 upon Congress; and the subsidiary question as to what shall be the 
 terms upon which the merchandise of a foreign country shall come to 
 this country is a question largely important in foreign relations, and 
 is one over which the President of the United States has no power. It 
 belongs, under the Constitution, to the lawmaking power; and that 
 lawmaking power can be exercised by Congress not only without the 
 consent of the President, but over his objection. 
 
 The terms upon which foreign ships shall be allowed to enter our 
 ports or do business with us is an important one in our foreign relations, 
 but the power to fix and determine them is altogether with Congress. 
 
 The question as to whether or not citizens of another country shall 
 be allowed to come to this country, and if so, upon what terms, is an 
 important question of foreign relations; and yet the President has no 
 power to control it. It is a question exclusively within the lawmaking 
 power. The question whether this country will permit any of a certain 
 nationality to come at all to this country is a question not with the Presi- 
 dent, but a question with the lawmaking power. 
 
 Nay, sir, the question whether this Government will hold any rela- 
 tions with a foreign country is a question with Congress. It is entirely 
 within the competency of Congress to pass a law that no citizen of a 
 given country shall come to this country, that no goods shall be received 
 from it, that no merchandise shall go from this country to it, that no 
 letters shall come from it, that there shall be no intercommunication of 
 any kind whatever. Who doubts the power of Congress to do so ? 
 
 In other words, it is within the power of Congress to absolutely sunder 
 the relations between this country and any given foreign country. When 
 that is said the whole thing is said ; when that is said the whole argu- 
 ment is exhausted as to where rests the supreme power in foreign affairs, 
 because the whole must include every part. If it is within the power 
 of Congress to absolutely sunder all relations of every kind, commer- 
 cial, social, political, diplomatic, and of every other nature, it is certainly 
 within the power of Congress to regulate and control every question sub- 
 sidiary to that and included within it. Congress and not the President 
 is supreme under the Constitution in the control of our foreign affairs. 
 
 Now, Mr. President, there is but one question about which there is 
 even any controversy as to the power of the President over foreign rela- 
 tions, and that is the one about which the Senator and myself have 
 differed for years, and about which I presume we will continue to differ. 
 It is as to the right of the President of the United States to finally recog- 
 
THE TREATY-MAKING POWER 107 
 
 nize or finally refuse to recognize the independence of a revolutionary 
 or rebellious country. 
 
 Of course, time does not permit me now to discuss that question at 
 length. I have heretofore discussed it in the Senate, and while I am 
 not very fond of labor, if the time shall ever come when that question 
 is per se discussed, I shall endeavor to take my part in it, for it is a most 
 interesting and important question. It is a matter to me of the strongest 
 and most absolute conviction as a legal proposition. Of course, I do 
 not question at all that where it is a question as to what is the de facto 
 government in a fully independent country, that is a question which is 
 practically determined by the President of the United States in the 
 recognition of diplomatic relations, but where a country is in a condition 
 of rebellion, which has asserted its independence and is endeavoring to 
 establish its independence, and where the parent country is denying its 
 independence and is by the force of arms endeavoring to put down the 
 rebellion or the insurrection, to say that the President of the United 
 States solely and alone can determine finally that question for this coun- 
 try, and that Congress has no power over it, is a matter to me absolutely 
 without the domain of logic. I say in every act of that kind, the supreme 
 power, the final power of decision, is with Congress, the lawmaking 
 power, and whatever is done by the executive department in that regard 
 is necessarily subject to the revision and control and reversal of the 
 lawmaking power. 
 
 Why, Mr. President, we have seen in the papers that a province of 
 Russia some month or two ago rebelled and set up an independent gov- 
 ernment, or, rather, professed to do so. We have heard nothing of it 
 lately. I presume it has been suppressed. Suppose in a case of that 
 kind, not this President, but any President, had taken upon himself to 
 say, "I recognize that province as an independent government." To 
 claim that that would have been a final, conclusive act on the part of 
 the Government of the United States, and that Congress would in such 
 case have no right or power to reverse the decision and save the country 
 from war with Russia, is something to me, I say, beyond the possibility 
 of comprehension. But I will not go into that argument now, because 
 I know I would necessarily enter upon a field which in itself would be 
 larger really, or as large, as the main one upon which I am now engaged 
 in this discussion. 
 
 Mr. SPOONER. Will the Senator allow me to ask him a question? 
 
 The PRESIDING OFFICER (Mr. McCumber in the chair). Does the 
 Senator from Georgia yield to the Senator from Wisconsin ? 
 
 Mr. BACON. Certainly. 
 
 Mr. SPOONER. The Constitution gives to the President the power 
 to receive ambassadors and ministers. Does the Senator think that the 
 action of the President in the exercise of that function is subject to the 
 control of Congress? 
 
io8 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. BACON. I have not the slightest doubt in the world that Con- 
 gress, in such a case as I have just mentioned, could pass a law and 
 send that ambassador back to the country from which he came. 
 
 Mr. SPOONER. What sort of a law would that be ? I am not talking 
 now about declaring war or severing diplomatic relations. 
 
 Mr. BACON. It can be done that way. 
 
 Mr. SPOONER. What sort of an act would be that instruction to the 
 President to send the ambassador back? 
 
 Mr. BACON. I do not suppose that the President would need any 
 instruction more than the law. 
 
 Mr. SPOONER. But what law? 
 
 Mr. BACON. The act 
 
 Mr. SPOONER. What form of law? 
 
 Mr. BACON. The act which should be passed by Congress. 
 
 Mr. SPOONER. What would be the form of such a law in a general 
 way? 
 
 Mr. BACON. Simply to say we would not have an ambassador at 
 all from that country, because we did not recognize it as an independent 
 country. That is the act of Congress I have in mind when I say it 
 would control the President and reverse his decision recognizing that 
 province as an independent nation. 
 
 Now, as to whether or not Congress should say to the President of 
 the United States, You must not receive John Jones, or William Smith, 
 or any other particular man from any particular country. Of course 
 nobody contends Congress could do that. That is not the question at 
 all. It is the question whether in the case where a country, or part of 
 a country in rebellion to the mother country sets up a professed or pre- 
 tended independent government and sends an ambassador to this 
 country, the reception by the President of the United States of that 
 ambassador is a conclusive and final determination on the part of the 
 Government of the United States that henceforth there shall be no 
 question but what that is an independent country so far as the recog- 
 nition of this country is concerned. My reply to the Senator is that 
 if such an ambassador were sent, Congress would have it within its 
 power to pass a law that it would not recognize that country as an in- 
 dependent country, and that it would continue as in the past to recog- 
 nize it as a part of Russia, for instance, and when that law was passed 
 it would be the duty of the President to give that ambassador his pass- 
 ports and no longer recognize him or any other as an ambassador from 
 that pretended government. 
 
 ******** 
 
 Mr. BACON. Compared to this great array of sovereign powers 
 granted to Congress, those conferred upon the President present a most 
 striking contrast. He is clothed with the great power and responsibility 
 of the execution of the laws, but beyond this the only prerogative of sov- 
 
THE TREATY-MAKING POWER 109 
 
 ereignty with which he is exclusively invested is the pardoning power, and 
 even that is denied to him in cases of impeachment by the House and 
 conviction by the Senate. 
 
 We have passed by more than two hundred years the period in the 
 history of our race when one man could assume and exercise the power 
 to determine, independently of the legislative department, what should 
 be, even in part, the laws of the Government. The framers of the Con- 
 stitution stood nearer by a hundred years than we do to the time when a 
 King sought to rule without Parliament and in defiance of Parliament; 
 when he sought to take to himself all the powers of government and set at 
 naught the laws of the country's constitutional legislators. The great 
 and wise men who framed our fundamental law stood in the century next 
 removed from that which had witnessed the culmination of that great 
 struggle from the events of which they gathered the lesson that the ma- 
 terial interests and the liberties of a people are safest when the great 
 powers of government are lodged not in the control of one man, of what- 
 ever title or office, but in the hands of their elected representatives. 
 
 They had learned from it that one man invested with such powers 
 was quick to consider his own fortunes and the fortunes of his favorites of 
 more consequence than the prosperity of the whole people. They were 
 taught by that history to fear that one so girt with power would grow 
 great in his own conceit; that he would attempt to draw to himself all 
 the authority of Government, and that not only one born to the kingly 
 office, but also one who held but temporarily the elective office of Presi- 
 dent, might come to think himself compassed with 
 
 The divinity that doth hedge a king. 
 
 While they hoped that only good and wise men would be chosen to that 
 high office, they forgot not the frailties of the weak nor the grasping ambi- 
 tions of the strong. They guarded against the worst. They designed 
 that in the hands of a weak Executive the Government should not fail, 
 and that in the hands of one strong, self-willed, and ambitious there 
 should not be imperiled the free institutions which they sought to estab- 
 lish. Therefore, while they created a great and noble office, one within 
 its legitimate sphere the greatest and noblest of all the earth, they de- 
 signed that its greatness and nobility should not consist in the arbitrary 
 powers of the kingly office. 
 
 The greatness of the Presidential office does not consist in his will being 
 the law to 80,000,000 people, but in the fact that the President in himself 
 personifies the will of a great and free people as that will is expressed by 
 them through another department of the Government. No man can 
 shut his eyes to the fact that to that end, while they invested the 
 President with all the great dignity and power of the Executive office, 
 they carefully withheld from him the grant of the powers of sover- 
 
no AMERICAN FEDERAL GOVERNMENT 
 
 eignty. Every power given to him was most carefully restricted and 
 guarded. 
 
 While they gave him the power of the veto, they gave the Congress the 
 power to override his veto by a two-thirds vote of each House. 
 
 While they gave him the power to make treaties with foreign nations, 
 by and with the advice of the Senate, they refused to him the power to 
 make such treaties without their sanction. 
 
 They gave him power to pardon those convicted of crime, but denied 
 to him the power to pardon in cases of impeachment. 
 
 They gave him the power to appoint all civil officers, but except tem- 
 porarily, when Congress is not in session, such appointments are of no 
 validity until confirmed by the Senate. 
 
 They made him Commander in Chief of the Army and Navy, but they 
 left it to Congress to determine what should be the size and constitution 
 of the Army and Navy, and whether there should be any Army and Navy. 
 They denied him the power to appoint a single officer of either the Army 
 or the Navy, from the commanding officers to the lowest subalterns, un- 
 less each of such appointments should receive the confirmation of the 
 Senate. They gave him no power to equip and maintain either Army or 
 Navy for a day. They gave him no power to make war, nor can he of 
 himself conclude peace. The power to make rules for the government 
 and regulation of the Army and Navy is denied to him and is expressly 
 conferred upon Congress. It is evident that as Commander in Chief of 
 the Army and Navy he is but the Executive arm, and that in that capacity 
 he is himself, in every detail and particular, subject to the commands of 
 the lawmaking power. 
 
 Finally, they made the Chief Executive, as well as every other civil 
 officer, from the head of the Cabinet to the most obscure civil official, 
 subject to trial and removal from office, without appeal, upon impeach- 
 ment by the House and conviction by the Senate a power, in much 
 conservatism and wisdom, but seldom exercised, but nevertheless a power, 
 resting as it does, without defined limits as to what shall be deemed a high 
 crime or misdemeanor, almost exclusively in the discretion of the House 
 and Senate, which is the great safeguard against encroachment and offi- 
 cial misconduct. 
 
 Mr. President, the fact is not to be disguised that the actual exercise of 
 power by the executive branch of the Government in this day far exceeds 
 the bounds originally contemplated for it by the Constitution. The cor- 
 respondence in relative position of a president in a republic, and of a king 
 in a monarchy ; the glamour of a great office in which one man among 
 80,000,000 is chosen as the sole head of a great department of the Gov- 
 ernment, while in the other departments the honors are divided among 
 many ; the gigantic measure of patronage and removal, where he seems 
 to have unlimited power to bestow, or to withhold, or to take away 
 these and other influences combine to elevate in the popular mind the 
 
THE TREATY-MAKING POWER in 
 
 prerogatives of the President far above the point designed for them in the 
 Constitution. 
 
 It is a remarkable fact that in England, a monarchy, the constant 
 progress has been toward restraint of executive power and the enlarge- 
 ment of the power of the legislative branch of the Government, until 
 now practically all political power is in the control of the elected repre- 
 sentatives of the people. It is a fact still more remarkable that in the 
 United States, designed distinctively as a representative republic, there 
 has been a no less steady progress in the direction of the absorption of 
 power by the Executive and of its practical surrender by Congress. 
 
 Mr. President, Senators are concerned and solicitous about the alleged 
 encroachment of the legislative branch, or of the Senate in its executive 
 capacity, upon the powers of the Executive ; but it seems to me there is 
 very much more reason why they should be concerned about the invasion 
 by the executive department of the power conferred in the very first sen- 
 tence of the Constitution of the United States. What is that first sen- 
 tence, found in Article I, section i ? 
 
 All legislative powers herein granted shall be vested in a Congress of the 
 United States, which shall consist of a Senate and House of Representatives. 
 
 Mr. BEVERIDGE. Will the Senator permit me to interrupt him right 
 there? 
 
 The VICE-PRESIDENT. Does the Senator from Georgia yield to the 
 Senator from Indiana? 
 
 Mr. BACON. I will yield; but I want to comment upon what I have 
 just read. 
 
 Mr. BEVERIDGE. It is merely to call the attention of the Senator to 
 the first section of Article 2 of the Constitution, which says that 
 
 The executive power shall be vested in a President of the United States of 
 America. 
 
 Mr. BACON. Who doubts that? 
 
 Mr. BEVERIDGE. Nobody doubts it; but the Senator is arguing 
 against it. 
 
 Mr. BACON. No; I am not. 
 
 Mr. BEVERIDGE. The Senator said the President had no other power 
 than a limited treaty-making power and the power to see that the laws 
 were faithfully executed. 
 
 Mr. BACON. I consider that latter an executive power. 
 
 Mr. BEVERIDGE. Certainly it is one of the executive powers; but 
 does the Senator say it is all of the executive power? 
 
 Mr. BACON. I say that is the generic meaning of the word "execu- 
 tive." The Senator has diverted me from what I was saying. I want 
 to go back. I will say to the honorable Senator that, when I have finished, 
 
ii2 AMERICAN FEDERAL GOVERNMENT 
 
 if he desires to revert to that branch of the argument, I will return to it 
 with pleasure, provided the Senate has the patience and can be induced 
 to listen to it. 
 
 Mr. BEVERIDGE. I regret that I diverted the Senator. I merely 
 wanted to place immediately parallel with his statement about the legis- 
 lative powers being vested in Congress, which nobody denies, the state- 
 ment that the executive power is vested in the President of the United 
 States, which nobody denies; and that " executive" powers include the 
 power to make treaties, so that anything said in the Constitution about 
 the making o c treaties is not so much the conferring of power as the limita- 
 tion of power. If nothing had been said about treaties in the Constitu- 
 tion the power to make them, absolute and unlimited, would have been 
 in the President under the grant to him of ''executive" powers, would 
 it not? 
 
 Mr. BACON. I will not stop to discuss that matter now. I confess that 
 I can not see the pertinency of the Senator's suggestion. If he will permit 
 me to proceed I will simply say to him that the word "executive" comes 
 from the verb "to execute," and it means one who is to execute the laws 
 of the government. He is an executive officer and not a legislative officer. 
 I have just read this section of the Constitution, and I read it again after 
 the interruption in order that it may be in proper connection. 
 
 All legislative powers herein granted shall be vested in a Congress of the 
 United States, which shall consist of a Senate and House of Representatives. 
 
 Is that the law to-day ? It is the law on the book, but who will say that 
 the legislative power of this Government is exercised in the two branches 
 of Congress? Who does not know that the most influential part of the 
 legislative power of the Government is at the other end of the Avenue 
 in the White House ? I am not speaking only of the present occupant, 
 although I think he is doing his full share of it ; but it has been so in all 
 Administrations in greater or less degree within a generation. The Ex- 
 ecutive has encroached continuously upon the legislative branch of the 
 Government, and it has never been more pronounced in its encroachment 
 than it is to-day. 
 
 Why, the time was when one who desired legislation by Congress came 
 to Congress, and with proper or improper means, if you please cer- 
 tainly with proper means endeavored to influence Congress in the en- 
 actment of certain legislation. How is it to-day? Who is it that wants 
 legislation who comes to the House of Representatives or to the Senate? 
 We see every day in the newspapers accounts of pilgrimages to the 
 White House for the purpose of securing legislation ; we see every day in 
 the newspapers forecasts as to whether or not such and such legislation 
 will be passed or can not be passed, according as it may be announced 
 that it will receive the support or the active opposition of the Executive. 
 
THE TREATY-MAKING POWER 113 
 
 Absolutely, Mr. President, I saw within the past few days an explanation 
 given that the stock market had gone up or down I have forgotten 
 which in consequence of the announcement of the position of the Ex- 
 ecutive as to a proposed piece of legislation which would affect prices. 
 And I have seen statements in the papers that Members of Congress had 
 gone to the White House to solicit the aid of the President to secure the 
 passage of certain desired legislation. More 's the pity ! 
 
 Well, Mr. President, as I say, it is not only this President, nor the last 
 one, nor the one before, but it has been going on and increasing for more 
 than a generation. It is better that Senators and Representatives should 
 concern themselves about the question as to whether or not their own 
 prerogatives and rights and powers are being encroached upon rather 
 than be supersensitive as to whether or not in the assertion of our own 
 powers we may be overstepping the mark. Of course, we ought not to 
 transgress the limits set to our powers by Constitution, not by >a hair's 
 breadth, but our particular and special duty is to preserve and protect 
 against encroachment our own rights and our own powers in this matter. 
 
 Mr. President, the time will come, if this thing continues and in- 
 creases, when the question of the attitude of Senators and Representa- 
 tives with reference to any proposed legislation will not be an important 
 matter, and when it will be well understood that such and such legislation 
 is to be enacted or defeated, as the case may be, regardless of the personal 
 views of Senators and Representatives. When that time comes members 
 of each House will cease to discuss measures, because of the absolute 
 uselessness of it. Only ''Administration measures" will be enacted, and 
 none others will be attempted from very hopelessness. 
 
 ******** 
 
 So, Mr. President, if things continue to progress, it may happen I 
 think, though, it will be a long time before it does, because our disposi- 
 tion is different from theirs, and such subjection and such servility it is 
 impossible to conceive will ever come to the American people but in 
 practical result it will be so that the question of what this Congress shall 
 do, in any important matter will be a question not decided by their own 
 judgment or the judgment of a majority, but decided by other influences. 
 It is largely so now. More and more the idea will be that, excepting 
 " Administration measures," the only business of Congress is to pass 
 appropriation bills and then disperse. It is notorious right now that most 
 important subjects of legislation, such, for instance, as the revision of the 
 tariff, are receiving no attention, and the question whether Congress will 
 or will not legislate on them depends solely on whether they will or will 
 not be made ''Administration measures." That, is openly and undis- 
 guisedly now recognized in the case of the question of the revision of 
 the tariff. 
 
 There can be no condition more dangerous to the maintenance of free 
 government than is found in the concentration in the hands of one man 
 
ii 4 AMERICAN FEDERAL GOVERNMENT 
 
 at the same time of both the executive power and practically the power to 
 make the laws he is to execute. Whatever may be the form of govern- 
 ment, when these two powers are thus concentrated in the hands of one 
 man the government where that condition exists is an autocracy pure 
 and simple. It makes no difference in practical effect whether that one 
 man himself decrees the laws or whether they are enacted in obedience 
 to his dictation. 
 
 Mr. BACON. I am opposed to the United States Government attend- 
 ing conferences which are in essence and in fact political conferences as 
 to European international matters and where the other pretended in- 
 terests are mere devices and shams for the purpose of disguising the fact 
 of our presence there. 
 
 Mr. SPOONER. Well, Mr. President, that is the Senator's view, and 
 he is entitled to it. He frankly spates it. I am in favor of a proposition 
 which goes beyond that. I am in favor of the United States attending 
 any conference to which it is invited by European nations which in- 
 volves in any degree our interests first, to look after our interests, and, 
 second, to use the kindly offices and the influence and power of the 
 United States to prevent war between foreign governments at friendship 
 with us. I am not afraid, as the Senator seems to be ; I am not distrust- 
 ful of the present President of the United States 
 
 Mr. BACON. Now, Mr. President 
 
 Mr. SPOONER. Nor am I distrustful, Mr. President, of anyone who 
 is to succeed the present President. Taking our history from the be- 
 ginning to this day, we have had Presidents of exceptional prudence 
 and skill in the conduct of our foreign relations ; we have had Secretaries 
 of State admirably fitted, with here and there possibly an exception, for 
 the discharge of the delicate functions involved in the discharge of the 
 duties of their office. I think the Presidents hereafter and the Secre- 
 taries of State hereafter will know quite as well as the Senator from 
 Georgia or any who are to follow us here whether the interests of the 
 United States demand our representation at a foreign conference and 
 how far we may go as a nation, our interests having been conserved, in 
 the employment of our power and influence and friendship to prevent 
 war between other nations. I put but one limitation, Mr. President, 
 upon the exercise of the constitutional power of a President in that re- 
 spect, and that is that we shall not attend any conference, for full par- 
 ticipation in it, which would involve us to the extent of war or the in- 
 curring of international hostility; and I believe I speak in this respect 
 the sentiments of our people. They are not afraid to go abroad ; they 
 are not afraid to sit in foreign assemblages, to participate in foreign i 
 conferences, not under the limitations put by the Senator from Georgia, 
 which eliminates all such conferences, but on the broader ground 
 and with the larger limitation which I put upon them. So much for 
 that. 
 
THE TREATY-MAKING POWER 115 
 
 Mr. President, I admit to come back to what I wanted to say to 
 the Senator his contention that the Senate may in open session, so 
 far as the power goes, adopt a resolution such as he introduced. I chal- 
 lenge its propriety. I admit, as he contends, that it is entirely within 
 the constitutional capacity of the Senate to adopt in executive session a 
 resolution asking the President to inform the Senate whether he is nego- 
 tiating a treaty, if you please, with Great Britain or with Germany, to 
 advise the Senate upon what subject and with what view he is carrying 
 on the negotiation, to advise the Senate as to its progress I grant all 
 that. That is not in controversy at all. But what I assert is, that it in 
 no wise binds the President. He may give the information or he may re- 
 fuse to transmit it. He may refuse to transmit it upon the ground that 
 its transmission would be to the detriment of the public interest 
 
 Mr. BACON. Will the Senator pardon me right there? 
 
 Mr. SPOONER. Wait a moment until I finish the sentence. 
 
 Mr. BACON. Very well. 
 
 Mr. SPOONER. Or he may refuse to transmit it, and may give no 
 reason, if he shall so choose, for his declination. In other words 
 
 Mr. BACON. Mr. President 
 
 The VICE-PRESIDENT. Does the Senator from Wisconsin yield to the 
 Senator from Georgia ? 
 
 Mr. BACON. I will wait until the Senator finishes his sentence. 
 
 Mr. SPOONER. Mr. President, what I contended, and what the 
 Senator, I think, has not at all weakened is that, as a matter of power, 
 it is entirely in the hands of the President, uncontrolled and uncontrol- 
 lable, either by the Senate or by both Houses of Congress. 
 
 Mr. BACON. Now, Mr. President, if the Senator will pardon me just 
 a moment, I want to say that when we come to talk about a question of 
 power, we mean that we are discussing constitutional powers the 
 exercise of constitutional powers we are not talking about physical 
 power or actual power; we are talking about the legal right when we 
 are talking about power. 
 
 Mr. SPOONER. Legal right? 
 
 Mr. BACON. Legal right, or legal duty, if it is not a legal right. 
 
 Mr. SPOONER. Call it that. 
 
 Mr. BACON. But what I rose to say to the Senator was this: The 
 Senator will read again, as I know he has read heretofore, the message, 
 to which I alluded in the remarks which I submitted this morning, of 
 President Washington to the House of Representatives, where he de- 
 clined to furnish them with certain information which they called for. 
 I am not speaking now as to what the President can do, but what he 
 ought to do, and what is recognized in him as proper to do. President 
 Washington said, that while he refused to communicate it to the House, 
 and gave as a reason that such things ought frequently to be kept secret, 
 yet in that case he said it should be communicated to the Senate. He 
 
n6 AMERICAN FEDERAL GOVERNMENT 
 
 recognized the Senate. He did not say that it should be withheld, but 
 he said the secret should be shared by the Senate with the President. 
 
 Of course I recognize the fact that the question of the President's 
 sending or refusing to send any communication to the Senate is a matter 
 not to be judged by legal right, but a question which has always been 
 recognized as one of courtesy between the President and this body, and 
 which the Senate except, perhaps, in the case in which the Senator 
 took a very notable part and to which I have had occasion heretofore to 
 allude has always yielded to the judgment of the President in the 
 matter and has never made an issue with him about it. 
 
 Mr. SPOONER. I go beyond that. 
 
 Mr. BACON. But any resolution which I have introduced could have 
 been easily answered by the President to the effect that, in his opinion, 
 it was not compatible with the public interest ; but the Senator and those 
 who thought with him never allowed it to get to him. 
 
 Mr. SPOONER. If we had adopted the Senator's resolution, intro- 
 duced in public, cabled to every court in Europe, coming from a distin- 
 guished member of the Committee on Foreign Relations of this body, 
 which is a part of the treaty-making power, and the President had com- 
 municated to the Senate in secret session, how would the matter have 
 stood abroad ? If we had been honorable men and observed the obliga- 
 tion of secrecy, the communication of the President would have been 
 confined to members of this body; outside there would have been this 
 implied arraignment of the President, or disgust of the President, either 
 as to his power or as to his wisdom, with no reply whatever from the 
 President. 
 
 Mr. BACON. As it happened in this case, though, the State Depart- 
 ment gave it out that there was no cause for secrecy and that anybody 
 who went there could see it. 
 
 Mr. SPOONER. That is not what I am talking about. 
 
 Mr. BACON. A good many have gone there and have seen it. I have 
 not. 
 
 Mr. SPOONER. I am talking upon the principle. The Senator says 
 "legal right" or " legal duty." I admit that we have a right to pass 
 resolutions calling for any information from the President ; but does the 
 Senator say it is the legal duty of the President to send it? 
 
 Mr. BACON. I do not dispute the fact that there may be occasions 
 when the President would not. 
 
 Mr. SPOONER. Who is the judge? 
 
 Mr. BACON. The President, undoubtedly. Nobody has ever contro- 
 verted that; and the very resolution concerning which the Senator is 
 animadverting was expressly conditioned upon the President viewing 
 the transmission of the information requested as being compatible with 
 the public interest. 
 
 Mr. SPOONER. Mr. President, it all comes to an entire corroboration 
 
THE TREATY-MAKING POWER 117 
 
 by the Senator of the proposition which I made the other day, and which 
 I supposed he had spent some time in attacking, that in the last analysis, 
 so far as the question of constitutional power and constitutional duty is 
 concerned, it is absolutely in the President. He is the sole organ of com- 
 munication by this Government with foreign governments. At his 
 option he may consult the Senate in advance or he may not. At his 
 option he may send information requested or he may not. . 
 
 The Senator is mistaken when he says that all there is upon that sub- 
 ject in the Constitution is that line of the sentence which gives the 
 President the power, by and with the advice and consent of the Senate, 
 to make treaties. That is not all there is in the Constitution upon which 
 I rely to sustain the proposition that under our system the President is 
 the sole organ of negotiation and of communication between this country 
 and foreign governments. Under the Confederation the Congress was 
 the sole organ; the Congress negotiated treaties and ratified treaties; 
 the Congress received ambassadors and ministers, and the Congress 
 practically sent ambassadors and ministers. 
 
 That was all changed when the Constitution was adopted. It was 
 not changed for any idle reason. It was changed because it was found 
 to be an inherent, elemental, and terrific weakness in the Confederation ; 
 and so, Mr. President, when the Constitution was formed they gave to 
 the President, by and with the advice and consent of the Senate, the 
 power to make treaties. That is not all. They vested in the President 
 alone the power to receive ambassadors, ministers, and other diplo- 
 matic agents. That is not all. They vested in him the power to appoint, 
 subject to the advice and consent of the Senate as to the person only, 
 ambassadors, ministers, etc. 
 
 A foreign minister or ambassador comes to this country. We have no 
 function to perform in relation to his reception. He presents his cre- 
 dentials to the President. The President receives him or not as he may 
 decide. Can Congress compel his reception or prevent his being re- 
 ceived by the President ? I never heard that contended until the Senator 
 intimated it this afternoon. 
 
 Mr. BACON. Mr. President, on the contrary, I said exactly the 
 reverse. I said this 
 
 Mr. SPOONER. The Senator said they could be sent away by order of 
 Congress. 
 
 Mr. BACON. The Senator pressed me on that and asked me how it 
 was done. I said the Congress could sunder the diplomatic relations 
 between this country and another, and that that would be the law; but 
 I expressly said that where relations were existing between the countries, 
 so far as the recognition of a particular ambassador was concerned, or 
 another ambassador, that was in the power of the President. If the 
 Senator will notice the stenographic report, he will find that is exactly 
 what I said. 
 
n8 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. SPOONER. Could the framers of the Constitution any more clearly 
 have made the President the sole organ of communication between this 
 Government and foreign governments than they did? Of course, the 
 power to receive an ambassador or a foreign minister implies necessarily 
 the power to determine whether the government or country from which 
 he comes is independent and entitled to send an ambassador or a min- 
 ister. So the President is authorized to determine, and he must deter- 
 mine, when he sends an ambassador or a minister to some other country, 
 whether that country is an independent country, a member of the family 
 of nations, entitled to be represented by an ambassador or minister here 
 and entitled to receive an accredited ambassador or minister from this 
 country. When the ambassador or the minister has any communication 
 to make in relation to foreign affairs, he does not make it to the Senate. 
 If it be in the negotiation of a treaty and most treaties are negotiated 
 here he has no communication with the Senate. We will not tolerate 
 that ambassadors or ministers or diplomatic agents from other countries 
 shall communicate in any way with the Senate or with the committees 
 of the Senate. 
 
 Mr. BACON. The Senator says that with very great earnestness. 
 Does the Senator understand that anybody has ever suggested such a 
 proposition ? 
 
 Mr. SPOONER. The Senator implies that almost of necessity 
 
 Mr. BACON. Oh, no. 
 
 Mr. SPOONER. When he argues that under the Constitution the 
 Senate as an executive body is as much a factor in the negotiation of 
 treaties as is the President or is any factor at all in negotiation. 
 
 Mr. BACON. Yes ; with its own peculiar functions to perform. That 
 does not imply that 
 
 Mr. SPOONER. If the Senator does not mean that, then the Senator 
 does not mean anything by his proposition. 
 
 Mr. BACON. The Senator is mistaken; the Senator is not justified 
 in that statement. 
 
 Mr. SPOONER. Because to say that the Senate is as much a factor 
 under the Constitution in negotiating treaties as the President 
 
 Mr. BACON. I did not say that. 
 
 Mr. SPOONER. Then I misunderstood the Senator. 
 
 Mr. BACON. I said in the making of treaties, and I distinctly denied 
 that the making of treaties was confined to the function which would 
 succeed the transmission of that treaty to the Senate. 
 
 Mr. SPOONER. Mr. President, I certainly am not mistaken. The 
 whole point of the speech, which I had the honor of making the other 
 day, and which the Senator has attacked was my contention that in 
 the negotiation of treaties the President is absolutely supreme and inde- 
 pendent of the Senate. 
 
 Mr. SPOONER rose. 
 
THE TREATY-MAKING POWER 119 
 
 Mr. BACON. Pardon me a moment. But that if the Senator meant 
 to include in the term " negotiation" not only that, but everything which 
 related to the framing of the treaty the determination of its terms, and 
 everything else up to the time when it was sent to the Senate, then his 
 definition of the term " negotiation " was too broad, and I denied that 
 the President had exclusive right in it; but so far as the term " nego- 
 tiation" could be limited to its being the organ of communication and of 
 discussion and of original suggestion, if you please, to the foreign power, 
 I granted the Senator's position. 
 
 Mr. SPOONER. What does the Senator understand by the negotiation 
 of a treaty as contradistinguished from the making of a treaty ; dividing 
 the negotiation of the treaty from the point of jurisdiction of the Senate 
 over the treaty? 
 
 Mr. TILLMAN rose. 
 
 Mr. SPOONER. If you please, one at a time. 
 
 Mr. BACON. I said that the Senator's position was that "negotia- 
 tion" included everything up to the time the treaty was sent to the 
 Senate; I said that "negotiation" was a term which was implied under 
 the term "make" ; that the making of a treaty included the entire oper- 
 ation by which a treaty was conceived and framed and brought to its 
 conclusion, and as to all such matters, even before it was submitted to 
 a foreign power, while it was under consideration as to whether there 
 should be a treaty and what its terms should be that that was a part 
 of the making of a treaty and not a part of what technically the Senator 
 calls the "negotiation of a treaty." 
 
 Mr. SPOONER. It would be nonsense, Mr. President, to talk of the 
 President negotiating a treaty and yet of his not having the absolute 
 power to reduce to writing the terms agreed upon at the end of his 
 negotiation. He must have something to lay before the Senate. Is the 
 signing of the treaty a matter that the Senate has anything to do with ? 
 Until the President is through the Senate's function does not begin. 
 
 I admit that the Senate may ask to be informed as to the state of the 
 negotiation. The Senate may ask to be informed whether the treaty has 
 been reduced to writing or not. The Senate may ask the President to 
 inform it as to its terms. It may request him to send a copy in order that 
 it may advise him, if it wants to do it, that it should be signed or not, or 
 whether it should be amended before being signed. But the President 
 has the same right to refuse to do it that the Senate has to request it. 
 
 Mr. BACON. Yes. 
 
 Mr. SPOONER. That has been the practice since the State Depart- 
 ment was created by the first Congress under the Constitution. 
 
 Mr. BACON. That does not change the fact. 
 
 Mr. SPOONER. What can the Senate do in the way of negotiating a 
 treaty or reducing it to writing or signing it ? Will the Senator tell me ? 
 
 Mr. BACON. That is the smallest splitting of small hairs. 
 
120 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. SPOONER. I can not split it so fine that the Senator cannot see it. 
 
 Mr. BACON. The question is not as to matters of detail ; as to whether 
 every "t" is crossed and every "i" is dotted 
 
 Mr. SPOONER. I did not say that. 
 
 Mr. BACON. Or even as to the drafting of it. The question is whether 
 the President has in the Senate advisers whom he can bring to his as- 
 sistance before he submits a treaty to the Senate, or whether the Senate 
 is in a position where, in a case in which it thinks there is a public interest 
 requiring its intervention, it has the right to suggest to him and to advise 
 with him voluntarily, without his request, or whether, as the Senator says 
 in the speech from which I have read to-day, that no right of the Senate 
 attaches and no duty of the Senate begins until the President sends in his 
 message. There is a vast difference between the two. 
 
 Mr. SPOONER. Will the Senator tell me what power the Senate has to 
 intervene in the negotiation of a treaty by the President up to the time 
 of its signing ? 
 
 Mr. BACON. That is the very point I was trying to bring to the at- 
 tention of the Senator when I tried to differentiate between power, in 
 the sense of a man who can go and compel a thing, and a legal right, as 
 contemplated by the law. The law contemplates that the Senate shall 
 be the adviser of the President, not simply after he has sent us a treaty, 
 but at any time, either at the instance of the President or at the will of 
 the Senate, in no instance having the power to compel the President to 
 formulate, as they see fit to suggest, in the same way that the President 
 has no power to compel the Senate to consent to it. Each of them is 
 supreme in their respective functions. 
 
 Mr. SPOONER. If the framers of the Constitution had intended to 
 make the Senate a potential factor in the negotiation of treaties, they 
 would have done it. 
 
 Mr. BACON. I think they have done it. 
 
 Mr. SPOONER. They would not have left the President entirely at 
 liberty to refuse the Senate any participation, even to the extent of in- 
 forming the Senate, in response to a courteous request, of the state of the 
 negotiations or the subject-matter of a proposed treaty. They would 
 have given the Senate the right to demand, not to request. They would 
 have made it the duty, not compellable by mandamus no, no ; they 
 would have made it the sworn duty of the President to respond to the 
 request for information. They did neither, Mr. President. It would 
 have been a breach of constitutional duty for the President to refuse 
 information which under the Constitution the Senate had a right to 
 demand, and the President would have been answerable on the complaint 
 of the other House. Had they intended not to invest the President with 
 the absolute power of the negotiation of treaties, they would have made 
 the Senate's power efficient. They would not have made it a mere ques- 
 tion of "If you please, Mr. President, the Senate would like to be in- 
 
THE TREATY-MAKING POWER 121 
 
 formed of the status of the negotiation, if any exists, between this 
 country and Great Britain." They never would have left it in that way. 
 
 Mr. BACON. The Senator forgets that the only power to negotiate is 
 a power implied by the power to make, and that the Constitution, in 
 conferring the power to make, confers it upon two and not upon one. 
 
 Mr. SPOONER. But implied powers are as perfect as expressed 
 powers. 
 
 Mr. BACON. If the Senator will permit me, he might as well say, as 
 to the failure of the Constitution to give the power of compulsion upon 
 the President, that there was equal failure in the omission to give the 
 President power to compel the Senate to ratify. The one is as logical 
 as the other. 
 
 Mr. SPOONER. Not at all. The Senator asserts a relation under the 
 Constitution between the Senate and the President in respect to the 
 negotiation of treaties which he can not sustain, or he imputes a purpose 
 to the framers of the Constitution which they have not expressed, and 
 which they have not in anywise, even by inference, made apparent. 
 
 Mr. BACON. There is where we differ. I think it is very evident that 
 the Senator and I are not going to agree. 
 
 Mr. SPOONER. In one clause of the Constitution and the Senator 
 remarked upon that the nomination of a person for office is separated 
 from the " advice and consent of the Senate." It could not have been 
 otherwise. It would have been quite absurd for the framers of the Con- 
 stitution to have said that the President and the Senate might " appoint" 
 officers. That would have left it open to debate as to who should take 
 the initiative. It would have been unenforceable for its looseness and its 
 stupidity. Some one must select the official. That, of course, being an 
 executive function, was given to the President. That had to be done 
 before the Senate could " advise and consent" to the appointment. 
 That in the very nature of things was a condition precedent. How does 
 the other differ? The Senator saw a difference in the language of the 
 two provisions, in that in the one case they drew the line between the 
 nomination and confirmation; in the other they did not. 
 
 The Senator forgot that negotiation is of necessity antecedent to the 
 making of a treaty, as completely as the nomination of an officer is prece- 
 dent to his confirmation or final appointment. It is clear as the sunlight 
 that the framers of the Constitution intended the President should ne- 
 gotiate the treaty, for he is the organ of communication with foreign 
 governments. They gave that power to no one else, and the Senate 
 could not advise and consent to the treaty until it had been negotiated and 
 signed and laid before it. Somebody must do that preliminary work. If 
 it is not given to the President, it is given to no one. It was given to the 
 President. He has done it from the foundation of the Government. No 
 one has ever challenged it. The Senate, to my knowledge, never has 
 demanded a right to participate in the negotiation of treaties. When- 
 
122 AMERICAN FEDERAL GOVERNMENT 
 
 ever the President has consulted the Senate it has been entirely in the 
 exercise of an option which the Constitution gives him. He may exercise 
 it or not. He keeps his oath to support and defend the Constitution as 
 faithfully in the one case as in the other. The great sage of Democracy, 
 Mr. Jefferson, did not agree with the Senator from Georgia or the Sena- 
 tor from South Carolina 
 
 Mr. TILLMAN. Will not the Senator allow me to quote him? 
 
 Mr. SPOONER. I hope the Senator from South Carolina will please 
 not interrupt me at this point. 
 
 Mr. TILLMAN. I have the words of the sage right here, and I want to 
 give you some of his utterances. 
 
 Mr. SPOONER. Have you? Read them. 
 
 Mr. TILLMAN. Thank you. I have been waiting half an hour here 
 endeavoring to give some light to my friend the Senator from Wisconsin, 
 and, perhaps, the Senator from Massachusetts. 
 
 Mr. SPOONER. I can get light from Thomas Jefferson on this question. 
 
 Mr. TILLMAN. You did not think I had this book here, over a hundred 
 years old, and was going to give my own views? 
 
 Mr. SPOONER. I thought it was a new edition of the Constitution, re- 
 vised, amended, and annotated by BENJAMIN R. TILLMAN, of South 
 Carolina. 
 
 Mr. TILLMAN. BENJAMIN R. TILLMAN knows some little about it. 
 He has learned it from his friend the Senator from Wisconsin. I read : 
 
 [Mr. Jefferson, Secretary of State, to Mr. Morris, minister plenipotentiary 
 from the United States to France.] 
 
 PHILADELPHIA, August 23, 1793. 
 
 DEAR SIR: The letter of the i6th instant, with its documents accompanying 
 this, will sufficiently inform you of the transactions which have taken place 
 between Mr. Genet, the minister of France, and the Government here, and 
 of the painful necessity they have brought on of desiring his recall. The letter 
 has been prepared in the view of being itself, with its documents, laid before the 
 executive of the French Government. You will, therefore, be pleased to lay it 
 before them, doing everything which can be done on your part to procure it a 
 friendly and dispassionate reception and consideration. The President would, 
 indeed, think it greatly unfortunate were they to take it in any other light, and 
 therefore charges you, very particularly, with the care of presenting this pro- 
 ceeding in the most soothing view, and as a result of an unavoidable necessity 
 on his part. 
 
 Mr. SPOONER. Is that all? 
 
 Mr. TILLMAN. Oh, no. 
 
 Mr. SPOONER. Will the Senator give me some idea as to how long he 
 will take? 
 
 Mr. TILLMAN. Just long enough to give you some light ; that is all. 
 
 Mr. Genet, soon after his arrival, communicated the decree of the National 
 Convention of February 15, 1793, authorizing their Executive to propose a 
 
THE TREATY-MAKING POWER 123 
 
 treaty with us on liberal principles, such as might strengthen the bonds of 
 good will which unite the two nations ; and informed us in a letter of May 23 
 that he was authorized to treat accordingly. 
 
 This, you see, was written in August. 
 The Senate being then in recess 
 Now listen, please 
 
 The Senate being then in recess and not to meet again till the fall, I apprised 
 Mr. Genet that the participation in matters of treaty, given by the Constitution 
 to that branch of our Government 
 
 That is, the Senate 
 
 would, of course, delay any definitive answer to his friendly proposition. As 
 he was sensible of this circumstance, the matter has been understood to lie over 
 till the meeting of Senate. You will be pleased, therefore, to explain to the 
 Executive of France this delay, which has prevented as yet our formal accession 
 to their proposition to treat ; to assure them that the President will meet them, 
 with the most friendly dispositions, on the grounds of treaty proposed by the 
 national convention, as soon as he can do it in the forms of the Constitution; 
 and you will, of course, suggest for this purpose that the powers of Mr. Genet 
 be renewed to his successor. 
 
 Now, just one comment and I will let you off. 
 
 Mr. SPOONER. I have the light the Senator intended to give me. 
 
 Mr. TILLMAN. I am very glad he got it, but the point I wanted to 
 illustrate is this : Jefferson, who was certainly familiar with the opinion 
 of the makers of the Constitution more so than the Senator from 
 Wisconsin and who was Washington's Secretary of State, recognizes 
 here the principle that the Senate is such an important part of the treaty- 
 making power that he does not feel willing even to enter upon negotia- 
 tion with the minister from France until the Senate reconvenes. 
 
 Mr. SPOONER. That all shows that Mr. Jefferson was a very skillful, 
 adroit, and accomplished diplomat. 
 
 Mr. TILLMAN. Just like my friend the Senator from Wisconsin. 
 
 Mr. SPOONER. That was a paper which Mr. Jefferson wrote for the 
 eye of the French Government as to a proposed treaty which Mr. Jeffer- 
 son then did not desire to enter into and which Mr. Jefferson never did 
 enter into. 
 
 But I have a few sentences here from Mr. Jefferson. I do not know 
 whether it will be any " light" to the Senator from South Carolina, but 
 in Mr. Jefferson's Opinion on the Powers of the Senate, a very celebrated 
 document, which he gave at the request of the President, this language 
 was used: 
 
 The transaction of business with foreign nations is executive altogether. It 
 belongs, then, to the head of that department, except as to such portions of it as 
 are especially submitted to the Senate. Exceptions are to be construed strictly. 
 
124 AMERICAN FEDERAL GOVERNMENT 
 
 That is what Mr. Jefferson said on this precise question in a carefully 
 prepared opinion for the guidance of the President, whose Cabinet officer 
 he was: To give the opinion was a part of his official duty under the 
 Constitution. I put that against that adroit, diplomatic letter for the eye 
 of the French Government. 
 
 He says another thing on the subject of the powers of the Senate : 
 
 The Senate is not supposed, by the Constitution, to be acquainted with the 
 concerns of the executive department. // was not intended that these should be 
 communicated to them. 
 
 SENATOR HOAR ON DIPLOMATIC APPOINTMENTS 1 
 
 [The following selection from Senator Hoar's autobiography deals with the 
 practice, sometimes resorted to, of appointing Senators to important though 
 temporary diplomatic positions.] 
 
 THE President has repeatedly, within the last six years, appointed 
 members of the Senate and House to be Commissioners to negotiate and 
 conclude, as far as can be done by diplomatic agencies, treaties and other 
 arrangements with foreign Governments, of the gravest importance. 
 These include the arrangement of a standard of value by international 
 agreement; making the Treaty of Peace, at the' end of the War with 
 Spain ; arranging a Treaty of Commerce between the United States and 
 Great Britain; making a treaty to settle the Behring Sea Controversy; 
 and now more lately to establish the boundary line between Canada 
 and Alaska. 
 
 President McKinley also appointed a Commission, including Senators 
 and Representatives, to visit Hawaii, and to report upon the needs of 
 legislation there. This last was as clearly the proper duty and function 
 of a committee, to be appointed by one or the other branch of Congress, 
 as anything that could be conceived. 
 
 The question has been raised whether these functions were offices, 
 within the Constitutional sense. It was stoutly contended, and I be- 
 lieve held by nearly all the Republican Senators at the time when Presi- 
 dent Cleveland appointed Mr. Blount to visit Hawaii, and required that 
 the diplomatic action of our Minister there should be subject to his 
 approval, that he was appointing a diplomatic officer, and that he had no 
 right so to commission Mr. Blount, without the advice and consent of 
 the Senate. President McKinley seemed to accept this view when he 
 sent in for confirmation the names of two Senators, who were appointed 
 on the Commission to visit Hawaii. The Senate declined to take action 
 upon these nominations. The very pertinent question was put by an 
 
 1 From the Autobiography of Senator Hoar, II, 48-51; published by Scribner's 
 Sons, N. Y., 1905. 
 
THE TREATY-MAKING POWER 125 
 
 eminent member of the Senate; if these gentlemen are to be officers, 
 how can the President appoint them under the Constitution, the office 
 being created during their term ? Or, how can they hold office and still 
 keep their seats in this body ? If, on the other hand, they are not officers, 
 under what Constitutional provision does the President ask the advice 
 and consent of the Senate to their appointment? 
 
 But the suggestion that these gentlemen are not officers seems to me 
 the merest cavil. They exercise an authority, and are clothed with 
 a dignity equal to that of the highest and most important diplomatic 
 officer, and far superior to that of most of the civil officers of the country. 
 To say that the President can not appoint a Senator or Representative 
 postmaster in a country village, where the perquisites do not amount 
 to a hundred dollars a year, where perhaps no other person can be 
 found to do the duties, because that would put an improper temptation 
 in the way of the legislator to induce him to become the tool of the 
 Executive will, and then permit the President to send him abroad; to 
 enable him to maintain the distinction and enjoy the pleasure of a season 
 at a foreign capital as the representative of the United States, with all 
 his expenses paid, and a large compensation added, determined solely by 
 the Executive will; and to hold that the framers of the Constitution 
 would for a moment have tolerated that, seems to me utterly 
 preposterous. 
 
 Beside, it places the Senator so selected in a position where he can not 
 properly perform his duties as a Senator. He is bound to meet his 
 associates at the great National Council Board as an equal, to hear their 
 reasons as well as to impart his own. How can he discharge that duty, 
 if he had already not only formed an opinion, but acted upon the matter 
 under the control and direction of another department of Government? 
 
 The Senate was exceedingly sensitive about this question when it 
 first arose. But the gentlemen selected by the Executive for these 
 services were, in general, specially competent for the duty. Their 
 associates were naturally quite unwilling to take any action that should 
 seem to involve a reproof to them. The matter did not, however, pass 
 without remonstrance. It was hoped that it would not be repeated. At 
 the time of the appointment of the Silver Commission, I myself called 
 attention to the matter in the Senate. Later, as I have said, the Senate 
 declined to take action on the Commission appointed to visit Hawaii. 
 But there was considerable discussion. Several bills and resolutions 
 were introduced which were intended to prohibit such appointments in 
 the future. The matter was referred to the Commission on the Judiciary. 
 It turned out that three members of that Committee had been appointed 
 by President McKinley on the Canadian Commission. One of them, 
 however, said he had accepted the appointment without due reflection, 
 and he was quite satisfied that the practice was wrong. The Committee 
 disliked exceedingly to make a report which might be construed as a 
 
126 AMERICAN FEDERAL GOVERNMENT 
 
 censure of their associates. So I was introduced to call upon President 
 McKinley and say to him in behalf of the Committee that they hoped 
 the practice would not be continued. The task I discharged. President 
 McKinley said he was aware of the objections ; that he had come to feel 
 the evil very strongly ; and while he did not say in terms that he would not 
 make another appointment of the kind, he conveyed to me, as I am very 
 sure he intended to do, the assurance that it would not occur again. He 
 said, however, that it was not in general understood how few people 
 there were in this country, out of the Senate and House of Representa- 
 tives, qualified for important diplomatic service of that kind, especially 
 when we had to contend with the trained diplomatists of Europe, who 
 had studied such subjects all their lives. He told me some of the diffi- 
 culties he had encountered in making selections of Ministers abroad, 
 where important matters were to be dealt with, our diplomatic repre- 
 sentatives, having, as a rule, to be taken from entirely different pursuits 
 and employments. 
 
 That Congress in the past has thought it best to extend rather than 
 restrict this prohibition is shown by the statute which forbids, under a 
 severe penalty, members of either House of Congress from representing 
 the Government as counsel. 
 
THE SENATE 
 
 [A voluminous literature has been produced in recent years upon the United 
 States Senate. This literature has been largely critical, censuring the temper 
 and action of this important legislative body. The three general articles here 
 reproduced will give a good idea of the discussion. They are representative 
 articles written by men of standing and importance, men also in a position to 
 judge of the Senate by direct observation. The reader will be able to form his 
 own opinion of the quality and temper of senatorial action from the many 
 extracts from Senate debates contained in this collection.] 
 
 THE PLACE OF THE SENATE IN OUR GOVERNMENT 1 
 By HENRY LITCHFIELD WEST 
 
 ACCORDING to a tradition, more or less authenticated, it was George 
 Washington who remarked that the Senate of the United States was the 
 saucer into which the hot tea of the House of Representatives was poured 
 to cool. Some idea of this kind was certainly in the minds of the framers 
 of the Constitution. Madison suggested that the Senate ought to be 
 so constituted as to protect the opulent minority against the changing, 
 irresponsible, and turbulent majority. Hamilton, who did not believe 
 that the voice of the people was the voice of God, would have had Sen- 
 ators appointed for life. More than one of the Constitution-makers re- 
 ferred to the Senate as the Privy Council of the President ; and, almost 
 without exception, they regarded it as the brake of conservatism upon 
 the wheels of national legislation. They found its model in the corir 
 federation of Grecian States, " where each city, however different in 
 wealth, strength, or other circumstances, had the same number of deputies 
 and an equal voice in everything that related to the concerns of Greece." 
 The States of the United Netherlands, the Confederated Cantons of 
 Switzerland, and, in some degree at least, the British House of Lords 
 were all replete with suggestion for the constructive statesmen who 
 
 1 The Forum, June, 1901, Reproduced by permission. Copyright. 
 
 127 
 
I 2 8 AMERICAN FEDERAL GOVERNMENT 
 
 created the American Senate. And yet, while this is true, the fact re- 
 mains, as Fisher points out in his "Evolution of the Constitution," that 
 the Senate is really the outgrowth of our own experience. It is the 
 gradual development from the Governor's Council of colonial times. As 
 early as 1769 the members of the Council of Massachusetts were chosen 
 to represent certain localities or great districts, a function still preserved 
 in the representation of each State by two Senators, irrespective of area, 
 wealth, or population. 
 
 Within the last few years the Senate of the United States has assumed 
 so dominant a part in national legislation that it becomes interesting 
 and instructive to consider how far the original idea of its establish- 
 ment has been maintained in the evolution of our government. Wash- 
 ington's quaint and expressive phrase still has some meaning and 
 significance. The Senate is still the conservative branch of the Congress. 
 Its members, elected for six years by State Legislatures, decide national 
 questions with minds less perturbed by fear of popular clamor than the 
 Representatives, whose reelection, after a brief term of two years, is 
 dependent upon the suffrage of a proverbially fickle public. The Sena- 
 torial view is of a wider horizon. It is less subservient to prevailing 
 sentiment, but, it is worth while to note, the register of its judgment 
 has generally been accurate. 
 
 Take, for instance, the famous struggle over the so-called Force Bill, 
 a measure passed by a partisan House of Representatives in the first flush 
 of political victory. The contest waged by a skilfully led and determined 
 minority in the Senate resulted in the defeat of the proposed law. The 
 wisdom of that outcome will not, I take it, be seriously questioned to- 
 day. The enactment of the Force Bill would have solidified the South 
 politically, and would have retarded for several decades the material de- 
 velopment which has blessed that section. The pouring and cooling pro- 
 cess which resulted in its defeat was undoubtedly for the country's good. 
 
 Not content, however, with merely refusing to cooperate with the 
 House in the enactment of proposed legislation, or with revising and 
 editing so to speak, the bills which come to it from the lower body, the 
 Senate of the United States has been responsible, in late years, for 
 numerous measures of great importance. The Wilson Tariff Bill, as 
 framed in the House of Representatives, was discarded by the Senate 
 and a new measure substituted ; the latter being accepted by the House 
 with scarcely a whisper of opposition. Identically the same experience 
 befell the resolutions passed by the House declaring that Spain's rule in 
 Cuba was intolerable and not to be endured ; while, still more recently, 
 we have seen the Senate originate two of the most important measures 
 ever enacted by Congress the amendments to the Army Appropriation 
 Bill, one of which bestowed upon the President absolute authority to 
 govern the Philippines, while the other outlined the conditions precedent 
 to the withdrawal of the American troops from Cuba. These amend- 
 
THE SENATE 129 
 
 ments, fraught with consequences of the most far-reaching character, were 
 adopted bodily by the House of Representatives after the briefest possible 
 consideration. From the moment that the Senate engrafted these amend- 
 ments upon the Army Bill, it was a foregone conclusion that the House 
 would swallow them without the dotting of an " i " or the crossing of a " t." 
 It must not be supposed that the Representatives themselves are 
 either ignorant of or indifferent to this condition of affairs. On the 
 contrary, one of the most emphatic, not to say passionate, speeches in 
 the closing hours of the last Congress was a protest by Representative 
 Cannon, Chairman of the Committee on Appropriations, against the 
 arrogance of the Senate in assuming to dictate to the House in the mat- 
 ter of legislation. And yet the House is, in itself, largely responsible 
 for the very situation against which it rebels. When, under Mr. Reed, 
 rules were enacted which made the Speaker of the House the autocrat 
 of Congress the decadence of the House began. The members, indi- 
 vidually and collectively, surrendered themselves into the keeping of one 
 man, who wields a despotism as complete as that of the proverbial Czar. 
 It is the Speaker who appoints the committees, arranging their person- 
 nel so as to secure harmony with his own views ; it is the Speaker who, 
 as the deciding member of the Committee on Rules, determines whether 
 the House shall or shall not consider certain measures; and, finally, it 
 is the Speaker to whom each Representative must appeal for recognition 
 upon the floor of the House. The individual member, unless he be the 
 favored appointee to some prominent committee chairmanship, is rarely 
 a factor in the proceedings of the House. The concentration of power 
 in the Speaker's hands has practically destroyed all personality. In- 
 dignant constituencies have sent back to private life for apparent in- 
 efficiency members who were never accorded an opportunity to prove 
 their worth. Their political existence has been crushed out beneath 
 the Juggernaut of despotic rules. The Washington correspondents, who 
 are trained to observe the trend of national events, fully realize the 
 change which has come over the House. There was a time, years ago, 
 when every newspaper representative in the National Capital appreciated 
 the necessity of acquainting himself with the temper of the House upon 
 every important proposition. To-day the labor is unnecessary. If the 
 correspondent knows the attitude of the Speaker the problem is at once 
 solved. 
 
 It is worth while to understand this situation thoroughly, because, 
 it seems to me, it explains the loss of prestige which the House has 
 sustained and the importance which the Senate has assumed. In the 
 Senate the individual is supreme. Any Senator may address the pre- 
 siding officer and secure recognition at any time when the floor is not 
 occupied by a colleague. He can offer a resolution upon any subject, 
 and, through admirable rules, can place the Senate upon record as to its 
 disposition. If the majority of the Senate desires to send the resolution 
 
 9 
 
I 3 o AMERICAN FEDERAL GOVERNMENT 
 
 to some committee crypt, where it shall remain buried until the campaign, 
 for instance, is safely over, the reference is secured only after a yea-and- 
 nay vote. If the resolution goes upon the calendar, any Senator can at 
 any time move that the Senate proceed to its consideration a question 
 which must be determined without debate. This again places the Senate 
 upon record, and is a proceeding absolutely unknown in the House. 
 Thus, in the closing hours of the last Congress, Senator Jones, of Arkan- 
 sas, the leader of the Democratic minority, proved a thorn in the side of 
 the Republican party by demanding consideration of his resolution dis- 
 charging the Committee on the Judiciary from further consideration of 
 the Anti-Trust Bill. The effort was not successful, the Republican 
 majority voting solidly in the negative ; but Senator Jones had placed the 
 responsibility where it belonged. Almost every day the record is made up 
 in the Senate upon some test question, because the right of the individual 
 is not abridged or restricted. 
 
 This preeminence of the individual in the Senate of the United States 
 goes to a remarkable and much-criticised extent. As long as any Sen- 
 ator desires to speak upon any bill under consideration, just so long must 
 hearing be accorded and a vote postponed. This is what is popularly 
 known as unlimited debate. It is the one thing which makes the Sen- 
 ate absolutely unique in legislative bodies. Only recently the River 
 and Harbor Appropriation Bill failed to reach a final vote, because a 
 Senator occupied the floor during the last thirteen hours of the session, 
 ostensibly criticising the measure, but, in reality, talking against time, 
 with the knowledge that when the hands of the clock reached the hour 
 of noon, Congress would expire by limitation, and the bill would die. 
 This performance, extremely irritating to Senators who were interested 
 in the generous appropriations of the bill, has led to a renewal of previ- 
 ous efforts to amend the rules of the Senate, so as to provide for closure, 
 under certain conditions. 
 
 These endeavors have failed in the past, and there is no reason to 
 anticipate success in the future. They ought to fail. Under no cir- 
 cumstances ought there to be limitation of debate in the Senate of the 
 United States. It is the only forum where great and grave public ques- 
 tions can be thoroughly and exhaustively discussed. This high position, 
 once held by the House, has been abdicated by that body. We have 
 seen a bill which proposed a complete revision of the tariff considered in 
 the House for a few days and then passed, when only a score of pages, 
 out of two or three hundred, had received attention. Crude, ill-digested, 
 and lacking all sense of proportion, the measure has been hastily sent to 
 the Senate with all its imperfections upon its head. Provisions which 
 were of questionable propriety escaped criticism, because they were 
 buried in the pages which were not reached ; and, for the same reason, 
 important amendments, upon which the House was anxious to vote, 
 remained unoffered upon the members' desks. 
 
THE SENATE 131 
 
 Very different was the course pursued in the Senate, where a rule 
 arbitrarily fixing a day and an hour when a vote must be taken is a 
 thing unknown. Conscious that it could not be hampered, the minority 
 at once prepared to assert itself. It proceeded deliberately to question 
 the Chairman of the Finance Committee as to the reasons which influ- 
 enced the figures of each schedule, and the answer was necessarily forth- 
 coming. If the reply was not satisfactory or convincing, there was a 
 possibility that the error might be remedied; or, if no alteration was 
 allowed by the majority, the explanation and the action went upon the 
 record, to be read and judged by all men. In the case of the McKinley 
 Bill the Democrats were the inquisitors; while, when the Wilson tariff 
 measure was under consideration, the Republicans assumed the offensive. 
 In both instances several weeks were occupied in the discussion a 
 period during which there was much criticism of the deliberation of the 
 Senate. The result, however, in each case, proved the wisdom of delay, 
 for the proposed law was vastly improved before its final enactment. The 
 tariff measures which bear the names of McKinley, Wilson, and Dingley, 
 were largely framed in the Senate, while the same is true of the law re- 
 cently passed to reduce the taxation imposed during the war with Spain. 
 
 The value of unlimited debate in the Senate has been so completely 
 established in innumerable instances that it hardly seems worth while 
 to continue an argument in its favor. On the other hand, it will be 
 urged, and with truth, that many measures have been prevented from 
 reaching a final vote because their opponents have talked them to death. 
 It is equally true, however, that no measure ever failed of enactment 
 which had behind it a persistent, earnest majority, supported by public 
 opinion. The defeat of the Force Bill is often cited as a thwarting of 
 the will of the majority of the Senate ; but the fact is that, during the 
 long struggle over that measure, the minority became a majority, and 
 the Force Bill was finally displaced by a proposition looking to the free 
 coinage of silver. In the last Congress the Ship Subsidy Bill failed to 
 reach a vote ; but there never was, at any time, a solid Republican sup- 
 port for that measure. Some Republican Senators openly opposed it; 
 others gave it only a half-hearted assistance ; and many others encouraged 
 the Democrats who planned and executed the campaign of debate. The 
 discussion exposed many of the inequalities, injustices, and iniquities of 
 the measure ; so that when the subject is considered at the next session 
 of Congress a more satisfactory bill will be enacted. 
 
 And this brings to mind another fact. All the great issues of recent 
 political campaigns have been formulated through Senatorial debates. 
 This is especially true of the silver question, which leaped into national 
 prominence through the three-months' struggle over the repeal of the 
 Sherman Silver-Purchasing Law. In those three months the financial 
 problem was debated as it never had been, and never could be, in the 
 House; and it is worth while emphasizing the fact that if the bill had 
 
I 3 2 AMERICAN FEDERAL GOVERNMENT 
 
 been brought to a vote immediately after being reported to the Senate, 
 it would have been defeated. The prolongation of the debate secured 
 the majority necessary for its passage. In the Senate, and in the Senate 
 alone, has the Philippine question received that thoroughness of examina- 
 tion to which it is entitled; and the same might be said of every other 
 important issue before the country. 
 
 The power of the individual is still further demonstrated in the Sen- 
 ate of the United States through the fact that nearly all minor legislation 
 is enacted by unanimous consent ; the objection of a single Senator being 
 generally fatal to the passage of any bill. This is a tremendous power 
 to lodge in an individual even though he be a Senator of the United 
 States; but it is to the credit of the members of the Senate that the 
 privilege is rarely, if ever, abused. Objections are, of course, not in- 
 frequent ; but when they are met by amendments or satisfactory explana- 
 tions, they are almost invariably withdrawn. In the closing days of a 
 session unanimous consent is absolutely essential to the consideration 
 of any measure. While this may result in the failure of some laudable 
 propositions, the statute books are also protected against the imposition 
 of much unwise and hasty legislation. The Senator who objects does 
 so publicly, and is answerable to his own conscience and to his constit- 
 uency for his action. If he thus records his opposition, it is safe to 
 assume that he believes himself to be acting wisely; and experience 
 proves that Senators are restrained from undue objection by a wholesome 
 regard for. the sentiments of their colleagues. It would have been in the 
 power of Senator Tillman, for instance, to have blocked all legislation as 
 soon as he had learned that his much-desired appropriation of $250,000 
 for the Charleston exposition had been sacrificed. But, as a matter of 
 fact, he did nothing of the kind. He could not have stood up against 
 the torrent of indignation which would have been poured out upon him. 
 Senator Carter, it is true, did defeat the River and Harbor Bill ; but he 
 was fully aware that in so doing he was acting in harmony with the 
 sentiment of many of his colleagues, who regarded the bill as extravagant 
 and harmful. If it had not been for the existence of this feeling, Mr. 
 Carter never would have dared to take his stand in opposition, even 
 though he was about to retire to private life. 
 
 In its own way, the Senate accomplishes more work that is, it 
 enacts more bills than the House of Representatives. No Senator 
 objects for the mere sake of objecting ; because he is aware that if he is 
 captious, he will himself encounter innumerable stumbling-blocks when 
 he seeks the passage of measures in which he is interested. He is only 
 one of ninety Senators, any one of whom has every privilege which he 
 enjoys. It is the fact that each Senator is a power unto himself that 
 gives the Senate its peculiar place in our system of government. When 
 a vote upon a treaty or an important measure is to be convassed, it is 
 necessary to know the individual view of each Senator, a task frequently 
 
THE SENATE 133 
 
 surrounded with some difficulty. There is more independence of thought 
 and action in the Senate than in the House. Instances where two Sen- 
 ators of the same political party from the same State vote upon opposite 
 sides of the same question are by no means rare, and, of late years, have 
 become quite common. Party leaders, therefore, take occasion, during 
 the days occupied in a prolonged debate, to investigate the condition of 
 their own ranks, and strengthen, by such pressure as may be most effec- 
 tive, any weakness they may discover. The very necessity for this pre- 
 liminary canvass emphasizes the individuality of each Senator, and makes 
 him a power to be courted or feared. 
 
 The right of any Senator to speak at any time, upon any subject, and 
 at any length, develops orators and debaters. No man who possesses a 
 talent in this direction need lack for opportunity to prove his capacity. 
 If he is really a great orator, if he actually demonstrates his logical and 
 thoughtful mind, he forges to the front, and must be reckoned with by 
 those who assume leadership. If, on the other hand, he is dull and 
 slow-witted, lacking both strength of thought and forcefulness of ex- 
 pression, he will sink by his own weight. The right to speak cannot 
 be denied him, but he will not command an audience ; and very promptly 
 will he recognize that he has ceased to be a factor of importance. In 
 olden times, a new Senator maintained silence for a year or two before 
 affording his colleagues an opportunity to judge of his capacity. He 
 familiarized himself with his surroundings ; he felt the ground securely 
 under his feet, so to speak, before he essayed to venture into public 
 notice. The debut of a Senator was in those days a noteworthy event. 
 It was his crucial test ; and it was not without some fear and trembling 
 that he invited the verdict of his colleagues. Nowadays, however, in 
 the haste and rush of modern legislation, few Senators undergo the term 
 of probation which was formerly customary. They plunge at once into 
 the vortex of debate. Sometimes they emerge safely and creditably ; but 
 more frequently they are carried underneath the surface, and in subse- 
 quent obscurity pay the penalty of their rashness. 
 
 Within the last few years some rich men have secured seats in the 
 Senate, with comparative ease, through the manipulation of State politics ; 
 and their presence has given that body the nickname of "The Million- 
 aires' Club." As a matter of fact, a large majority of the Senators are 
 poor men. This is especially true of those who represent Southern States, 
 who are proverbially lacking in plenitude of this world's goods. The 
 millionaires in the Senate can be counted upon the fingers. Some of 
 them are notoriously rich, like Clark, of Montana, while large fortunes 
 are undoubtedly possessed by Hanna, of Ohio ; McMillan, of Michigan ; 
 Elkins, of West Virginia ; Kearns, of Utah ; Proctor, of Vermont ; Al- 
 drich, of Rhode Island; Turner, of Washington; Platt and Depew, of 
 New York ; and Wetmore, of Rhode Island. To two-thirds of the Sen- 
 ators the annual salary of $5,000 is a consideration not to be despised. 
 
134 AMERICAN FEDERAL GOVERNMENT 
 
 There are few perquisites to eke out this comparatively meagre compen- 
 sation none, in fact, worth mentioning. The Government provides one 
 or two clerks to attend to the Senator's correspondence, which is always 
 heavy ; it allows a minimum of free stationery ; and it returns some of 
 his travelling expenses. 
 
 There is opportunity, of course, to make money through speculation; 
 and some Senators avail themselves of it. One Senator, who was a large 
 holder of Washington real estate, increased its value very materially by 
 steering legislation for street improvements in its direction ; while every 
 manipulation of tariff schedules and of internal revenue taxation, affect- 
 ing steel and iron, tobacco, whiskey, and sugar, reveals the close con- 
 nection between the Senate of the United States and Wall Street. But 
 this acquisitiveness, to call it by no harsher name, is, after all, confined 
 to the few Senators who are noted for their commercial instincts. The 
 majority of Senators do not speculate. They content themselves with 
 their modest salary; and how they manage to live upon it is a daily 
 wonder. The demands upon the Senatorial purse are incessant. Every 
 Senator is persistently approached by stranded constituents, who expect, 
 and generally receive, financial assistance. Unless he elects to live in 
 absolute retirement, it is also incumbent upon him to maintain some 
 social position. Occasionally a Senator will come to Washington with 
 the idea that he can be something or somebody upon $5,000 a year. It 
 does not take many months to show him the futility of the effort. In 
 fact, it is impossible for a Senator to save anything from his salary, un- 
 less he hides in a back street, burying himself like a hermit, neither 
 entertaining nor being entertained. In the diplomatic service, the lead- 
 ing ambassadorial positions are bestowed upon men whose entourage can 
 be maintained by their private fortunes ; and the time does not seem to 
 be far distant when the Senate of the United States will be composed in 
 large degree of rich men, simply because a poor man can not afford to 
 accept the position. 
 
 It is to the credit of the Senate that wealth is not yet the standard 
 by which its members judge each other. There are millionaires in the 
 Senate who occupy insignificant places, who are never consulted by their 
 colleagues, and who simply follow where others lead. On the other hand, 
 men who possess brains are consequential factors in determining legis- 
 lation, although in material wealth they may be as poor as church mice. 
 A man can not rise to eminence in the Senate by wealth alone. Herein, 
 it seems to me, is much basis for felicitation. Until this condition 
 changes, the Senate will continue to be, what it is to-day, the greatest 
 legislative body in the world. Of course, the time may come when the 
 sordid influences which measure a man by the size of his bank account 
 may control the Senate. Let us, at least, be thankful that this time 
 has not yet arrived ; and let us hope, for the sake of the Republic, that 
 it will never come. 
 
THE SENATE 135 
 
 THE POWER OF THE SENATE 1 
 By S. W. McCALL, MEMBER OF CONGRESS FROM MASSACHUSETTS 
 
 SHORTLY before daybreak, in the closing night of the session of the 
 Congress which came to an end on the 4th of last March, Mr. Cannon 
 made a remarkable speech. One of the great appropriation bills of vital 
 importance to the government was in conference between the two Houses. 
 Unless it should pass before twelve o'clock on that day it would be neces- 
 sary to have an extra session, or the wheels of some of the great govern- 
 mental departments would be stopped. A Senator had delivered an 
 ultimatum that an ancient claim of his state should be fastened upon the 
 bill, or, as an alternative, he would talk until the end of the session and 
 defeat the measure. Under the rules of the Senate it was clearly in the 
 power of one Senator to carry on, as long as his physical strength would 
 last, the appearance of debate, which would in no fair sense be debate 
 at all, but simply a forcible stopping of the legislative machine. Mr. 
 Cannon very unwillingly consented to pay the price demanded, but he 
 declared with emphasis that the Senate should change its procedure, or 
 that another body, " backed up by the people, will compel that change, 
 else this body, close to the people, shall become a mere tender, a mere 
 bender of the pregnant hinges of the knee to submit to what any one 
 member of another body may demand of this body as a price for 
 legislation." 
 
 Such instances of the effect of the rules of the Senate are by no means 
 rare. Perhaps one more strikingly illustrating not merely the tendency 
 to efface the House, as a legislative body but also the overthrow of the rule 
 of the majority in the Senate itself, was seen two years ago. The River 
 and Harbor Bill, after a protracted consideration on the part of both 
 Houses and of their committees, and after passing both Houses in its 
 substantial form, had reached its last stage in the report of the confer- 
 ence committee within less than twenty hours of the final adjournment 
 of the Congress. An unsuccessful attempt had been made to attach to 
 the bill, to which it bore no relation, an irrigation scheme involving scores 
 of millions of dollars. A Senator who had the irrigation project much at 
 heart determined to defeat the bill. It did not appeal to him that the 
 measure had received the careful attention and approval of both Houses. 
 The rules of the Senate permitted him, under the guise of debate, to 
 consume all the remaining time of the session. He took the floor against 
 the measure. To talk against time for twenty hours demands qualities 
 which few, if any, of the greatest parliamentary orators have possessed. 
 The "debate" which followed afforded a rare display of physical endu- 
 
 1 From The Atlantic Monthly, Oct., 1903. Reproduced with the consent of the 
 Publisher and Author. Copyright. 
 
136 AMERICAN FEDERAL GOVERNMENT 
 
 ranee. The Senator demonstrated his capacity to defeat the bill, and, to 
 save the little time that was left to the Senate for the transaction of other 
 urgent public business, the supporters of the bill surrendered and with- 
 drew it from consideration. 
 
 It is scarcely a conclusive answer to indulge in the time-honored 
 epithet and say that the measure in question was a "River and Harbor 
 steal." Very little public money is expended with greater benefit to the 
 people of the country at large than the money which is spent to deepen 
 the rivers and improve the harbors along the oceans and the Great 
 Lakes. Some portion of it doubtless is mere waste, and never should be 
 appropriated at all. A large proportion of that waste is due to the fact 
 that some Senators, like the one to whom I have just referred, with small 
 states behind them, but with the same power as Senators from the great 
 taxpaying states, are careful that their localities shall receive their share of 
 the public money, and their ingenuity expends itself in finding other 
 objects for public bounty in default of oceans and navigable rivers. I 
 shall subsequently refer, more fully, however, to the unequal character of 
 the constitution of the Senate. I am only referring here to the effect of the 
 Senate rules. 
 
 The House of Representatives may devote its time to the perfecting of a 
 great measure which also receives the approval of a majority of the Senate, 
 and then the measure is to be overthrown, and the labors of the House 
 brought to naught unless consent is given to engraft upon it the pet 
 scheme of some individual Senator to which the great majority of both 
 bodies may be opposed. As much can be said for the freedom of debate 
 which exists in the Senate as for the summary procedure which often 
 prevails in the House, under which a vote is taken upon most important 
 measures with practically no debate at all. But unless a change of the 
 Senate rule is made, as applied to new matters sought to be put upon bills 
 which have received in substance the approval of both Houses, the House 
 of Representatives will be compelled to submit to the demands of in- 
 dividual Senators, and accept the principle of government by unani- 
 mous consent instead of by majorities, or see necessary legislation fail of 
 passage. 
 
 From the time of the adoption of the Constitution to the present day 
 there have been frequent protests against the large measure of power 
 possessed by the Senate, especially in view of the very unequal and very 
 unrepresentative principle upon which that body is constituted, but its 
 power appears to have fattened upon these protests, and to have been, on 
 the whole, increasing. If, in spite of the constitution of the Senate, its 
 power has been employed as a rule for the general good, it must be re- 
 membered that something can be said in favor of the most unequal 
 system of government that has ever existed. The purest despotisms and 
 the most exclusive oligarchies have frequently been responsive to popular 
 opinion, and have often sheltered order and sometimes individual free- 
 
THE SENATE 137 
 
 dom. I shall take for granted, however, that the democratic idea, which 
 our nation is supposed to represent, will be accepted without argument 
 as applied to North America. Caution compels me to say "as applied to 
 North America," for the government of the American people has decreed 
 that the " consent-of-the-governed " declaration of our forefathers was 
 either not a declaration of a principle at all, or had only a local application 
 and did not possess vitality across the seas. 
 
 The great and growing power of the Senate is not more odious on 
 account of any degeneracy in its personnel. The lament of the degeneracy 
 of the present as compared with the past is one of the oldest things one 
 can find in history. There always have been, and there probably always 
 will be, people in the world who disparage the times in which they live, 
 people who, as Macaulay said, are always painting a golden age which 
 never existed save in their imaginations. I am not one of those who 
 think that the talent in public life has declined. I believe it is true that, 
 on the whole, even the national Congress for the last ten years will com- 
 pare very favorably with the national Congress of any other time in our 
 history. Some exceptionally great figure may depart from one House or 
 the other and be greatly missed for a time, but the average of membership 
 maintains itself very fairly. If I were dealing with the House of Repre- 
 sentatives, I could cite many names from the last decade of its history 
 that would show the strength of its membership, statesmen like Reed 
 and Dingley and Wilson, orators like Cockran and Dalzell and Bryan, 
 debaters like Turner, Cannon, Hepburn, and Crisp. But I am dealing 
 with the Senate. It contains in its present membership one, whose name 
 will readily occur to all, who will pass into history as among the three or 
 four greatest statesmen who ever had a place in that body. When has 
 it had, since the days of Douglas certainly, a more accomplished debater 
 than Spooner, or a more pungent and brilliant speaker than Vest; or 
 when has it ever had more tactful and discerning leaders than Allison 
 and Aldrich ? And the list of striking figures might easily be made longer. 
 
 The striking circumstance in connection with the power of the Senate 
 is that it holds the commanding place at the center of the government. It 
 brings to mind the condition of things in Europe under the feudal system, 
 where the nobles had the position between the king and the people, and 
 gradually encroached upon both until they were able to oppress both, 
 a condition which continued until a union was effected between the 
 people and the sovereign, and the feudal system was finally overthrown. 
 The Senate shares the powers of legislation with the House and some 
 of the most important executive functions with the President. The 
 latter is unable to appoint a collector or a postmaster, or even a member 
 of his own official household, without the Senate's consent. Such im- 
 portant powers, exercised at the center of the state, would naturally 
 increase by encroachment upon both extremes, and they certainly would 
 not diminish. 
 
138 AMERICAN FEDERAL GOVERNMENT 
 
 The course of the Revolution made it almost inevitable that in the 
 Continental Congress, and in the Congress under the Articles of Con- 
 federation, the states should vote as a unit and exercise an equal authority ; 
 but when the time came to formulate the Constitution, the most enlight- 
 ened of our statesmen were strongly impressed with the idea that there 
 could not be such a thing as a permanent free government established 
 upon so unequal a principle. The question of the relative power of the 
 large and small states in the new government became a pressing one. 
 That was the rock upon which the Convention was more than once very 
 nearly destroyed. In the long contest which ensued it must be admitted 
 that the representatives of the small states played the better game and 
 won upon almost all points. Their most effective resource was found 
 in the ardent desire of the leading statesmen from the larger states to 
 substitute a real national government for the mere shadow of a govern- 
 ment that then existed, and they made the larger states pay a high price 
 to obtain it. They secured an equal representation in the Senate, and 
 they exaggerated the powers of the body by conferring upon it a great 
 variety of important functions. 
 
 The large states made a determined stand upon the question of taxa- 
 tion. They insisted that the people and not the states paid the taxes, and 
 that, as the larger states would yield more taxes than the smaller states, 
 the representatives of the people, chosen substantially upon the basis of 
 population, should have a peculiar control over revenue bills. Mr. 
 Gerry well stated the prevailing idea of the time with reference to taxa- 
 tion when he said, ''Taxation and representation are strongly associated 
 in the minds of the people, and they will not agree that any but their 
 immediate representatives shall meddle with their purses." 
 
 Although the representatives of the smaller states insisted upon an 
 equal power even over revenue bills, they did not lack in thrift when it 
 came to guarding themselves against liability to pay an equal share of the 
 expenses of the government, and the Constitution accordingly provided 
 that representation and direct taxes should be apportioned among the 
 states according to population. 
 
 An apparent concession, however, was finally made by the small states 
 with regard to revenue bills, and I shall refer to it more fully hereafter, 
 because it is the one point where I think the Senate, not satisfied with 
 the great powers conferred upon it, has directly encroached upon the 
 prerogatives of the House. Having secured the great grant of power in 
 the Constitution, the smaller states then demanded a provision that that 
 instrument should never be amended so as to take away the equal repre- 
 sentation of the states in the Senate without the consent of every state, 
 something which obviously it would be impossible to obtain, and 
 which was equivalent to providing that the Constitution, in that particu- 
 lar, should never be amended at all. 
 
 The constitution of the Senate was recognized, at the time of its 
 
THE SENATE 139 
 
 establishment, as a violation of the democratic principle, but a violation 
 which the peculiar conditions seemed to require, and I think it was never 
 imagined that the inequality would not be limited to that which existed, 
 or might grow out of the states at first forming the Union. While the 
 Senate's constitutional powers have not changed, the course of events 
 has greatly intensified their undemocratic character. The practical in- 
 equality originally was sufficiently bad, but, by the admission of so many 
 new and small states, it has become almost intolerable. The original 
 inequality bore heavily upon three states, yet was not essentially glaring 
 with reference to the others; but to-day it is possible to select fifteen 
 states having together in round numbers five millions of people, or about 
 two-thirds of the population of the state of New York. The senatorial 
 representatives of those five millions would lack only a single vote of the 
 number necessary to defeat some great treaty which the Senators of the 
 other seventy millions might support. States having less than one-sixth 
 of the population choose a majority of the entire Senate, while more than 
 five-sixths of the people of the country are represented by a minority in 
 that body. The state of Nevada, under the last census, had less than 
 forty-three thousand people. If New York were permitted to have the 
 same proportional representation in the Senate, it would have some three 
 hundred and fifty Senators. There are many things in the constitution 
 of the Senate which are admirable. Such a conservative body is to-day 
 of vital importance. The length of the term, the different method of 
 choice from that of the Representatives, and the very gradual change in 
 membership, are highly valuable features. But none of its good features 
 grows out of the great inequality of its constitution, giving one man in one 
 section of the country the power of a hundred equally good men in 
 another. 
 
 This exaggerated inequality, so utterly subversive of the American 
 dogma of government, is undoubtedly the great fault in the constitution 
 of the Senate. There is none of the common traditional attributes of 
 aristocracy that enters into this situation. The theory of government 
 which treats sovereignty as a mere possession, passing from father to 
 son like any other species of property, at least has something human in 
 it. But even the human element disappears entirely when a capricious 
 bestowal of power is made upon a mere incorporation. If the owners of 
 land and other property, the mercantile interests, and the workingmen 
 are treated as classes and permitted to choose their representatives in 
 the governing body, there is at least a representation of the diversity of 
 interests with which legislation deals. And the proposition is not en- 
 tirely lacking in force that individuals, separated from property or class 
 interests, are affected in much the same way by legislation, and have a 
 substantial identity of interests. In other words, that the touch of nature 
 will affect legislators when they pass laws concerning life and liberty to 
 which they themselves will be subject ; and that they are representatives 
 
140 AMERICAN FEDERAL GOVERNMENT 
 
 in a stronger sense than if they exercised a mere delegated authority; 
 but that when property and class rights are dealt with, the rapacity of one 
 class should be held in check by the rapacity of another, and that there 
 should be such a balance in the assembly that those broad interests 
 which are weak in mere numbers should not be devoured by those that 
 are strong. But what conceivable thing is there in the state of Nevada, 
 estimable as her people doubtless are, to entitle one individual there to a 
 hundred times as much weight in governing the country as is possessed 
 by a man residing in New York or Pennsylvania or Illinois, or indeed to 
 a particle greater weight? On any rational theory of government such 
 inequality is unthinkable, unless, indeed, it be true that those having a 
 particular occupation should exercise a special and almost potent control 
 in governing the myriads of other occupations. 
 
 We have had recent illustrations that this system of inequality does not 
 merely violate our ideals, but that it has serious practical results. Ten 
 years ago, in consequence of concessions to the silver mining interests, 
 the country had reached the verge of the precipice, and our financial 
 system was at last almost at the point of falling upon the silver standard. 
 Under the law requiring the government to purchase 4,500,000 ounces 
 of silver bullion every month, gold was rapidly leaving the treasury, 
 while its vaults were groaning under the great mass of silver. The 
 spectacle was then witnessed of Senators from states, containing mining 
 camps but comparatively few people, almost holding the balance of 
 power, and, having an equal voice with that of the populous commercial 
 states of the Union, struggling desperately to continue the fatal policy of 
 the government purchase of silver. It was only by the inflexible and 
 heroic conduct of the President, supported, as he chanced to be, by the 
 great body of the party in opposition to him, that the most vital com- 
 mercial interests of the great majority of the people and the financial 
 honor of the nation as well were not sacrificed. 
 
 Other illustrations might be given, but they would only tend to prove 
 what is axiomatic that the Senators from the small states, as well as the 
 Senators from the large states, will, as a rule, vote for those measures 
 furthering the special interests of the states they represent. They would, 
 I think, be accused of betraying their trust if they did less. 
 
 The great practical encroachment of the power of the Senate beyond 
 its fair constitutional limits is seen in connection with bills relating to 
 taxation. The chief concession in the formation of the Constitution was 
 that by which the large states were given at least the appearance of a 
 special power over taxation in proportion to their population as a set-off 
 against the great proportional powers given the small states through 
 their equal representation in the Senate. The small states, however, on 
 the basis of population, would possess entire equality with the large 
 states, and it would certainly be no good ground for complaint that they 
 should not be accorded the right to impose taxes for other people to pay. 
 
THE SENATE 141 
 
 This compensating power is found in that clause of the Constitution 
 providing that all bills for raising revenue shall originate in the House of 
 Representatives, reserving to the Senate the right to propose or concur 
 with amendments as on other bills. Unless a substantial power was in- 
 tended to be conferred by this clause, the contemporary construction put 
 upon it by the Federalist, in a paper written either by Madison or Hamil- 
 ton, was strikingly erroneous. "Admitting, however," says the author 
 of this paper, "that they should all be insufficient to subdue the unjust 
 policy of the smaller states, or their predominating influence in the 
 councils of the Senate, a constitutional and infallible recourse still re- 
 mains with the larger states by which they will be able at all times to 
 accomplish their just purposes. The House of Representatives can not 
 only refuse, but they alone can propose the supplies requisite for the 
 support of government. They, in a word, hold the purse, that power- 
 ful instrument by which we behold, in the history of the British Consti- 
 tution, an infant and humble representative of the people gradually 
 enlarging the sphere of its activity and importance, and finally reducing, 
 so far as it seems to have wished, all the overgrown prerogatives of the 
 other branches of the government. This power of the purse may, in 
 fact, be regarded as the most complete and effectual weapon with which 
 any constitution can arm the immediate representatives of the people 
 for obtaining a redress of every grievance, and for carrying into effect 
 every just and salutary measure." 
 
 But what would this power amount to if the imposition of a tax upon 
 a single article would confer upon the Senate the right to go over the 
 whole range of taxes and construct any sort of a bill it desired? By 
 giving such an interpretation to the meaning of the exception the great 
 power itself is practically destroyed. At the time of the framing of the 
 Constitution there was no such thing known as amendment by complete 
 substitution, and the fair construction of that clause, having reference 
 to the conditions surrounding its adoption, is that if the House should 
 send a bill to the Senate imposing a tax upon an article, the Senate might 
 amend by raising or diminishing the proposed tax as it saw fit. It was 
 such an abuse of the right of amendment as to destroy the power to 
 originate taxation laws, when the Senate, as it did in 1872, substituted 
 for a House bill relating to a tax on coffee a general revision of the 
 tariff. The Senate's action at that time called out a protest from Gar- 
 field, who had deeply studied this subject, and who contributed to it one 
 of the most notable efforts of his career in Congress. Garfield held that 
 the action of the Senate in the case cited was an abuse, and that its action 
 should be confined substantially to the subjects in the House bill. He 
 declared that the action of the Senate invaded "a right which can not be 
 surrendered without inflicting a fatal wound upon the integrity of our 
 whole system of government." No hard and fast rule can be set up in 
 such a case, but it is a question of prerogative, and each body should 
 
142 AMERICAN FEDERAL GOVERNMENT 
 
 respect the constitutional prerogatives of the other. Surely the body 
 representing the people should struggle for its own. 
 
 The great Senators have almost uniformly contended for a broad con- 
 struction of the prerogative of the House. Webster held that it was 
 purely a question of privilege, and that the decision of it belonged to the 
 House. Ben ton, who belonged to the opposite political party, in the 
 same debate declared that "in all cases of doubtful jurisdiction between 
 the Houses my rule is to solve the doubt in favor of the House, which, 
 by the Constitution, is charged with the general subject. Taxation and 
 representation go together. The burdens of the people and the repre- 
 sentation of the people are put together. An important and full repre- 
 sentation of the people is in the House of Representatives." Sumner, 
 Wilson, Seward, and Hoar have also declared in the Senate for a broad 
 construction of the prerogative of the House. 
 
 It has been said that the Senate will construct a better tariff than the 
 House. The framers of the Constitution, and especially its great inter- 
 preter, Hamilton, did not foresee in its full force the influence of special 
 great interests in framing tariff laws. It is for the benefit of those inter- 
 ests, sometimes pressing for governmental protection and sometimes for 
 governmental indifference, to have tariffs constructed by a few men, 
 responsible practically to no great body of public opinion, as many of 
 them as possible with small constituencies, so that after having pro- 
 tected the interests of those they particularly represent, they might be 
 unattached and without special electoral responsibility. A scrutiny of 
 the recent bills relating to taxation will show that the House bills have 
 usually been drawn upon more popular lines. Take the repeal of some 
 of the war revenue taxes two years ago, when the House of Representa- 
 tives sent to the Senate a bill, the chief feature of which was the removal 
 of nearly all the troublesome and vexatious stamp taxes which had been 
 imposed upon almost all the instrumentalities of trade. The tax upon 
 bank checks, insurance policies, real estate conveyances, and similar 
 taxes of a wide application were removed by the House bill. The Senate, 
 under the guise of its power to amend, struck out all after the enacting 
 clause of the House bill, and substituted a measure of its own. The 
 distinguishing feature of the Senate bill was an extension of the amount 
 of the reduction of the tax on beer and tobacco by about twelve millions, 
 and to enable this to be done, it retained many of the stamp taxes which 
 the House bill removed, and especially the stamp tax upon checks. The 
 tax upon checks was a direct tax upon hundreds of thousands of people, 
 and was not of sufficient importance to any individual, vexatious though 
 it might be, to lead him to make any special effort for its repeal. On the 
 other hand, the millions which were remitted upon beer went to a very 
 small class who had so much at stake as to warrant an extraordinary 
 effort. The House repeal was in favor of the great number, and the 
 Senate repeal was in favor of the few. 
 
THE SENATE 143 
 
 It does not require a close study of the tariff laws of the last twenty 
 years to lead to the conclusion that, although special interests have fully 
 as much consideration shown them in the House of Representatives as 
 they should have, yet the Senate has been the citadel of those interests. 
 The representatives are reached directly by the people who pay the taxes 
 and can be visited with public indignation, while the Senators in some 
 instances at least are for all practical purposes irresponsible to the 
 taxpayer. 
 
 The question primarily is not one of wise or unwise laws, or whether 
 small states do not often have strong Senators, while large states have 
 weak ones. It involves a principle which is not disregarded even in a 
 constitutional monarchy like Germany. It involves the principle of one 
 set of men imposing taxes for another set of men to pay, and if the House 
 of Representatives would insist, as some of its greatest members have 
 advised, upon a broad and fair construction of its prerogatives, we should 
 be upon a platform more consistent with the principles of sound govern- 
 ment. We should, I am sure, have laws of taxation formulated upon 
 more popular lines. The masses would suffer less for the benefit of the 
 great special interests, and there would be some compensation to the 
 large states, and to the people who are directly represented, for the ex- 
 traordinary powers conferred upon the Senate. 
 
 By a sort of attraction of gravitation the great powers of the Senate 
 increase by drawing other powers to them, and this species of expansion 
 is especially seen in the tendency to confer special official functions upon 
 the Senators individually. Take the negotiation of the treaty of peace 
 with Spain in 1898, which was, in effect, a treaty of war rather than of 
 peace, and which embarked us upon a policy nobody contemplated 
 when we entered upon the war for the liberation of Cuba. Of the five 
 commissioners who were appointed to negotiate that treaty, three were 
 Senators. That is not an exceptional instance, but it is becoming the 
 rule. A more recent illustration is found in the appointment of the com- 
 mission, soon to meet, to decide the Alaskan boundary dispute, a tribunal 
 which, under the agreement, was to be composed of impartial jurists of 
 repute. Two of the three American members of the commission were 
 chosen from the Senate. We may concede to those two Senators the ut- 
 most their warmest friends could claim for them, and yet there is no 
 danger in the assertion that there are plenty of other jurists in the coun- 
 try as impartial and of as high repute. If there were a paucity of Ameri- 
 can talent, or if the great part of it were concentrated in the Senate, then 
 it might be desirable to fill such places, which, for all essential purposes, 
 are offices, from the membership of the Senate. But there is certainly 
 no such lack of talent in private life as to call for a duplication of parts 
 in the play, or for imposing on Senators important public functions in 
 addition to those belonging to their own office. Mr. Hay had not been 
 conspicuous as a public man before the first election of Mr. McKinley. 
 
144 AMERICAN FEDERAL GOVERNMENT 
 
 The public career of Mr. Richard Olney had been limited to a term in 
 the Massachusetts legislature before he rendered his notable service in 
 the Cabinet of President Cleveland. I think neither Mr. Gage nor Mr. 
 Root nor yet Mr. Knox had ever held important public office before he 
 entered President McKinley's Cabinet. Scores of instances can be 
 found where men of little or no experience in the public service have 
 been selected to fill the most important offices, and have infused new 
 strength and energy into the government. 
 
 In a government which is a republic in anything but name the offices 
 should be as widely distributed as is consistent with good administra- 
 tion, and the rich red blood which the country possesses in abundance 
 should course through the channels of office. Even if the country were 
 so poor in talent as to make it desirable to appoint Senators to such 
 places, even if there were no impropriety in their negotiating treaties 
 upon which they were to pass judgment as Senators, such appointments 
 come perilously near being an infraction of the Constitution. A Senator 
 is disqualified from holding any other office under the United States, 
 and if it is not a most important office of government to determine in the 
 first instance the great question of peace and war, or to settle a disputed 
 boundary with another nation, then the term has an exceedingly narrow 
 meaning. 
 
 The expansion of the power of the Senate in an undemocratic as well 
 as an unconstitutional direction is ajso seen in the growing tendency to 
 pass laws, and especially taxation laws, by treaty. Treaties are high 
 contracts between nations, and it can hardly be believed that it was 
 within the contemplation of the framers of the Constitution so elabor- 
 ately to construct a legislative machine and at the same time to throw 
 the whole mechanism out of gear by a single clause regarding treaties, 
 providing that the President and Senate might call in a foreign potentate 
 and might make laws for the internal government of the United States. 
 Treaties have the force of law, but they should obviously be within the 
 fair scope of the treaty-making power. At any rate, it would scarcely be 
 reasonable to claim that they set aside the Constitution, and if we are to 
 regard the Senate as a part of two legislative machines, it can not, as a 
 part of either, do the things prohibited by the Constitution. Under that 
 instrument revenue bills must originate in the House. How, then, can 
 they originate by treaty ? It would, indeed, be a curious spectacle, that 
 of the Senate, composed in the way it is, sitting behind closed doors, 
 and deciding in secret what taxes the American people are to pay. 
 
 The four years' term of the presidency is too short for a struggle with 
 the Senate, and its part in executive transactions is so great that any 
 such struggle would expose an administration to failure. The period 
 of life of the House of Representatives is still shorter, and its term would 
 be likely to come to an end before a contest between the two Houses 
 would acquire any great momentum. The custom under which Repre- 
 
THE SENATE 145 
 
 sentatives are expected to secure offices for their constituents, and thus 
 to ask for senatorial favors, makes a contest between the two Houses 
 less apt to occur. As I have said, an amendment to the Constitution 
 depriving states of their equal membership in the Senate is not within 
 the range of possibilities, as such an amendment would require the 
 unanimous consent of all the states. It would be possible to pass an 
 amendment in the ordinary way, reducing the powers of the Senate, 
 but the friction of the amending machinery is so great that it would in- 
 volve an intense and long continued pressure of public opinion to set it 
 in motion. The only practical hope of even a partial remedy lies in the 
 jealous insistence by the House upon its constitutional prerogatives. If 
 it should do that, it would be more likely to realize the advantage of its 
 position in a nation imbued with the democratic idea. The doubtful 
 powers of government would gravitate toward the House, our laws would 
 become more popular in character, and would respond to broad and 
 general needs in the community, while the character of the Senate as a 
 conservative body would be unimpaired. 
 
 But things have drifted long enough. Nothing can be clearer than 
 that in the long lapse of time institutions of government may be cor- 
 rupted and become vastly different from their original character. Venice 
 began her national career as a republic in fact, and for centuries was 
 governed by elected rulers responsible to a popular assembly, but, while 
 maintaining the name of republic, she came to have, in the Council of 
 Ten, sitting in secret, or, as it might be called to-day, "in executive 
 session," as despotic and cruel an oligarchy as ever existed. It might 
 be said that we have the restraints of a written Constitution, and a 
 Supreme Court to enforce them, but already we have heard made, not 
 entirely without effect, that appeal to an utterly false national pride, "Is 
 not the American government able to do anything that any other govern- 
 ment can do?" as if that which has been accounted our glory, as if the 
 restrictions in favor of freedom and against tyranny, even by the govern- 
 ment itself, were a defect and a badge of weakness. And in view of the 
 tendency of recent decisions, how long may we expect the Supreme 
 Court to remain the austere guardian of the Constitution against the 
 encroachments of executive or congressional power? That court may 
 not always be composed of Marshalls and Storys and Harlans, and what 
 will become of the limitations of the Constitution if ever the high aery, 
 about which the eagles of our jurisprudence once hovered, shall be held 
 by the twittering judicial tomtit? At any rate, the preservation of our 
 institutions in their purity requires that each branch of the political de- 
 partment of the government shall be the guardian of its own powers, and, 
 without encroaching upon any other branch, shall stand firmly for its 
 own prerogatives. Any determined conflict will be settled, not by mere 
 popular clamor, but by public opinion. Popular clamor is often stirred 
 up by an ardent cultivation of the galleries, and the sensation of yesterday 
 
146 AMERICAN FEDERAL GOVERNMENT 
 
 is thrust aside and forgotten for the sensation of to-day. But the settled 
 and potent public opinion, which is the product of patient discussion, 
 and of the persistent education of the people, usually leads to policies in 
 quite an opposite direction. When that shall be appealed to in any de- 
 termined contest between the two Houses, it can scarcely be doubted 
 that the decision will be in favor of those great principles of popular 
 government which underlie the American Commonwealth. 
 
 THE OLIGARCHY OF THE SENATE 1 
 By A. MAURICE Low 
 
 OVER the doors of the Senate of the United States might well be 
 inscribed the motto, "Do ut des" for it expresses the principle which 
 governs the members of the Senate, especially the inner circle that 
 really controls the Upper House of Congress, that is, in fact, the govern- 
 ment of the United States. Bismarck translated this maxim and used it 
 in the sense of "I give in order that you may give;" Mr. Goschen ren- 
 dered it into English as "the exchange of friendly offices, based on the 
 avowed self-interest of the parties." Whether the Bismarckian or the 
 Goschen version be accepted, the result is the same. 
 
 Basing the Federal Constitution on the British system, mutatis mutan- 
 dis, the framers of the Constitution might well regard the House as 
 having higher authority than the Senate, because it had the sole power 
 to originate money bills. While that is technically correct, the power of 
 the Senate over money bills is, in some respects, even greater than that 
 of the House, since it is able to amend any bill which the House may send 
 to it for concurrent action. This was the very thing feared by Mason, 
 of Virginia, and pointed out by him; and the right of the Senate to 
 originate, by the power of amendment, bills raising revenue and making 
 appropriations has been confirmed by judicial approval. Technically, 
 such bills have not originated, or rather have not been initiated, in the 
 Senate. But when the Senate takes, for example, a tariff bill, strikes 
 out all except the enacting clause, writes in and returns to the House a 
 new bill, which that body is compelled to accept, it may be asked whether 
 that particular law providing for the collection of revenue has not been 
 created, that is to say, originated, by the Senate, in defiance of the seventh 
 section of the first article of the Constitution, despite the permission 
 given to the Senate to propose amendments. That which is res adjudi- 
 cata is no longer open to question. But one may safely hazard the 
 opinion that none of the framers of the Constitution in discussing this 
 
 The North American Review, February, 1902. Reproduced in part, by permission. 
 Copyright. 
 
THE SENATE 147 
 
 clause of that instrument anticipated a day when a tariff bill framed by 
 the House would be treated with contemptuous indifference by the 
 Senate, and a tariff bill framed by the Senate would become the law of 
 the land. But the fact is greater than the opinion. By the power of the 
 Senate to amend, the preponderating control supposed to have been 
 secured to the House by endowing it with the sole right to originate 
 money bills, has been effaced. "They, in a word, hold the purse," 
 Hamilton said of the House ; but to-day the House holds the purse while 
 the Senate dips into it. 
 
 The Senate and the House, therefore, stand on an equal footing, so far 
 as the control of the public purse is concerned, the House having lost 
 the ability to coerce the Senate by withholding supplies because the 
 Senate by "amendment" can defy the House. But the Senate always 
 has the advantage of the House in any contest, because of the fact that it 
 is a small and well-disciplined body, and because of the feeling of supe- 
 riority which belongs to the Senatorial estate. Objections have been 
 frequently urged against the common use of the term "Upper House" 
 as descriptive of the Senate, on the ground that, the Senate having 
 coordinate and not greater privileges than the House, it is a mistake to 
 give it an appellation that would signify superior authority. Technically, 
 it is true that there is no distinction in the delegated powers, and yet the 
 Constitution itself makes a distinction between the membership of the 
 two Houses, requiring that the Senator shall be possessed of the wisdom 
 that follows from greater age, and the more thorough comprehension 
 of the spirit of the country proceeding from longer citizenship, if of 
 alien birth. 
 
 The legislative surrender of the House of Representatives to the 
 Senate began with the election of Mr. Reed to the Speakership of the 
 Fifty-first Congress. Mr. Reed found himself confronted by a state of 
 affairs which needed a drastic remedy. It is only necessary here to 
 refer incidentally to the practice which prevailed in the House of Repre- 
 sentatives before Mr. Reed's election to the Speakership, as the conditions 
 are too well known to the student of current parliamentary history to 
 require more than passing mention. The rules of the House were too 
 feeble to permit the transaction of business unless by unanimous consent 
 or a test of endurance. The minority always had the majority at a 
 disadvantage. It was always possible for the minority to prevent a 
 vote being reached simply by offering dilatory motions, or by breaking 
 a quorum; in the one case time was consumed in calling the roll, in 
 the other nothing could be done until the sergeant-at-arms secured the 
 attendance of a quorum, and it often required several weary hours for 
 the sergeant-at-arms to round up his quarry. Mr. Reed, when he came 
 to the chair, must have had very distinct, and very unpleasant, memories 
 of the bitter contest over the Direct Tax Bill, when for twenty-six con- 
 secutive hours the doors of the chamber were kept locked because a call 
 
148 AMERICAN FEDERAL GOVERNMENT 
 
 of the House was in progress. If the majority were to be held respon- 
 sible for legislation, % it was only proper that they should have power. 
 
 Mr. Reed had the courage and the ability to frame a code of rules that 
 made it possible for the House to conduct business in an orderly and 
 expeditious manner. How absolutely necessary his code was is shown 
 from the fact that his Democratic successor substantially made the Reed 
 rules his own; and, still later, when the swing of the pendulum once 
 more placed the House in control of the Republicans, the Republican 
 majority saw no good reason why any change should be made in the 
 rules. A code that has stood the test of time, that could have been easily 
 altered but was not, that has been approved by political opponents, must 
 possess merit. Mr. Reed's parliamentary services entitle him to the 
 highest gratitude of the country. 
 
 Unfortunately, Mr. Reed was a revolutionist; he accomplished with 
 one bold stroke and in a few days what, under other circumstances, 
 would only have been brought about very gradually and after long years 
 of discussion. The danger of a revolution is that it is apt to run to 
 extremes ; that instead of moving slowly and naturally along the line of 
 least resistance it takes a short cut to its objective point by employing 
 cataclysmic methods. 
 
 But further, not only did Mr. Reed feel it his duty to put an end to 
 interminable and frivolous debate, he also regarded it as incumbent 
 upon him to check the rapidly rising tide of extravagant expendi- 
 ture. Those were the days when the taunt of "a billion dollar Con- 
 gress" made men turn pale. A billion dollar budget no longer 
 affrights us. 
 
 Two important things followed from the new dispensation. One was 
 that even vital measures were disposed of without proper consideration. 
 When the time arrived for taking a vote the gavel fell, often in the midst of 
 a sentence, and all debate ceased. The other was that members of the 
 House who were unable, because of thte Speaker's rigid ideas of economy, 
 to secure appropriations in House bills, accomplished their purpose by 
 inducing Senators to offer for them bills in the Senate in the form of 
 amendments. Senators were not averse to doing this, as it pkced 
 Representatives under obligations to them, it increased their prestige in 
 their States, and it added still more to the growing power of the Senate. 
 To such an extent has the practice grown that it is now recognized, as a 
 matter of course, that the Senate will "take care" of routine legislation 
 to which the House is opposed or on which it is not safe to risk the chance 
 of possible defeat in the House. Appropriations for the construction of a 
 revenue cutter, a lighthouse tender, public buildings, and other things were 
 made by the Senate at the request of Representatives who knew the 
 impossibility of securing favorable action by the House if the bills 
 originated in the latter body. To preserve its own reputation for econ- 
 omy, the House will wink at the extravagance of the Senate. The Senate, 
 
THE SENATE 149 
 
 not being so close to the people as the House, is less frightened by the 
 charge of extravagance. 
 
 There is no way in which debate in the Senate can be abridged or 
 terminated except by unanimous consent. The state of affairs which 
 existed in the House prior to the election of Mr. Reed to the Speakership 
 exists to-day in the Senate. The majority governs only by the will of 
 the minority. It is true that it does not always suit the purpose of the 
 minority to exercise its power, but the power is latent and not surrendered. 
 We have seen tariff bills " amended" by the Senate so that their framers 
 did not recognize them; we have seen a single Senator compelling a 
 majority to come to terms with him because he threatened to make a 
 speech which it would take six weeks to deliver; we have seen a single 
 Senator defeat a bill carrying an appropriation of some $70,000,000 
 a bill passed by the House and having a majority in its favor in the 
 Senate because it suited his purpose so to do. 
 
 It is because business in the Senate can only proceed by " unanimous 
 consent " that the principle of " Do ut des " governs. A Senator who wants 
 to secure an appropriation must not be too particular about some other 
 Senator's little raid into the Treasury. Even great party measures can 
 be brought to vote only by agreement. That is the reason why, during 
 the course of a session, the Congressional Record has frequent mention of 
 these agreements ; that is why the announcement is repeatedly made that 
 a vote will be considered as ordered on a certain bill on a definite day and 
 hour, "if there be no objection," and no objection is ever made. A pact 
 once made in the Senate is not broken. It is an agreement between 
 gentlemen. 
 
 It has been shown that the Senate has equal power with the House over 
 the control of appropriations ; that it can create a tariff bill by the right 
 of amendment ; that it can prevent the enactment of any bill passed by 
 the House ; that it encourages members of the House to look for legisla- 
 tion in the Senate rather than in the House, where it rightfully belongs. 
 One has never heard of Senators asking favors from Representatives. 
 
 To say that the House has been reduced to a negligible quantity in 
 legislation would be an overstatement of the case ; it is no exaggeration 
 to say that it has become an insignificant factor. In further support of 
 this assertion let it be said and no greater practical proof of its 
 correctness could be offered that the correspondents who represent in 
 Washington the leading newspapers of the country no longer think it 
 necessary to consult members of the House regarding legislation; they 
 confine their attention almost exclusively to the Senate. Time was, not 
 many years ago, when important questions were pending, when the 
 opinions of leaders in the House were as eagerly sought by these corres- 
 pondents as were the opinions of leaders in the Senate, but to-day the 
 mastery of the Senate is so clearly recognized that it would be a waste 
 of time to seek for information elsewhere. When the important "Platt 
 
150 AMERICAN FEDERAL GOVERNMENT 
 
 amendment" was under discussion last spring, scarcely a word was said, 
 either in the newspapers or at the Capitol, about the attitude of the 
 House. The same indifference as to the position of the House was dis- 
 played while the question was being argued whether the Philippines 
 were to be governed by Congress or were for the time being to be left in 
 the hands of the President. 
 
 Legislation, therefore, in Washington is represented by the Senate. 
 Does the Senate dominate the President? 
 
 There is no more striking example of the encroachment of the Senate 
 than the way in which the Senate deals with appointments and its inter- 
 ference in the conduct of foreign relations. Hamilton dismissed as idle 
 the suggestion that the President's nominations would be overruled, or 
 that the Senate could coerce the President into nominating a particular 
 individual; but Hamilton could not foresee a senatorial oligarchy. 
 Presidential nominations have been frequently rejected; no President 
 now dares to make a nomination unless the Senators from the State in 
 which the nominee resides have given their approval. Fitness, merit, 
 talents are not the conclusive consideration. A man nominated to be a 
 Justice of the Supreme Court of the United States was rejected because 
 he and the Senator from his State, although of the same political faith, 
 had been opposed to each other; the nomination of a man seeking a 
 commission as a paymaster in the army was prevented because this man 
 had written certain things in criticism of a Senator. No nomination is 
 too important or too unimportant to escape this scrutiny. Here again 
 the principle of "Do ut des" prevails under the euphonious guise of 
 " senatorial courtesy." A nominee personally distasteful to a Senator 
 must be rejected, because the time may come when some other Senator 
 will ask a similar favor at the hands of his associates. 
 
 This is mischievous and, at times, humiliating to the President; but 
 it is seldom dangerous. The interference of the Senate in the conduct of 
 foreign relations and its meddling with diplomatic negotiations are 
 fraught with serious consequences. The Constitution gives the President 
 the power "to make treaties, provided two- thirds of the Senators present 
 concur," which has been interpreted by some expounders of the Con- 
 stitution to mean that the Senate may ratify or reject a treaty as it sees 
 fit, but it has not power to amend. This, however, is not the judicial 
 interpretation, and the Supreme Court has decided (Haver v. Yaker, 
 9 Wall. 35) that the Senate is not required to adopt or reject a treaty as a 
 whole, but may modify or amend it. But the Senate has assumed an 
 even more advanced position. It now chooses to regard a treaty as simply 
 "a project." In a letter which Senator Lodge wrote to the Boston 
 Transcript, December 29th, 1900, in which he defended the position of 
 the Senate, he used these words: "The Senate is part of the treaty- 
 making power, and treaties sent to it for ratification are not strictly 
 treaties, but projects for treaties; they are still inchoate." This state- 
 
THE SENATE 151 
 
 ment, Mr. Lodge observes, is a " constitutional truism." It is in the 
 sense that Mr. Lodge is simply paraphrasing the Constitution when he 
 declares that the Senate is part of the treaty-making power, and he is 
 absolutely correct in declaring that a treaty negotiated by the President 
 is not a consummated compact until ratified by the Senate, but whether 
 the Senate has not encroached upon executive prerogatives can not be 
 so lightly answered. 
 
 As showing the assumption of* the Senate, notice the remarkable 
 change made in the wording of a recent treaty. Last year the Senate 
 ratified a treaty with Great Britain (The Tenure and Disposition of 
 Real and Personal Property), providing for the Disposition of real estate 
 and giving any British colony the right to adhere to the convention on 
 notice from the British Ambassador at Washington to the Secretary of 
 State; and, similarly, any possessions of the United States beyond the 
 seas were to be included in the compact upon notice "being given by 
 the representative of the United States at London, by direction of the 
 President." The Senate amended this to read "by direction of the 
 treaty-making power of the United States." Thus, by the addition of a 
 few words, the Senate assumed to itself the right to conduct foreign re- 
 lations, an assumption for which no warrant can be found in the 
 Constitution. 
 
 Presidents who were more jealous of their prerogatives than Mr. 
 McKinley have read Congress a sharp lecture for attempting to inter- 
 fere in foreign affairs. Jackson vetoed an act l because "in my judgment 
 inconsistent with the division of powers in the Constitution of the United 
 States, as it is obviously founded on the assumption that an act of 
 Congress can give power to the Executive or to the head of one of the 
 Departments to negotiate with a foreign government. . . . The Execu- 
 tive has competent authority to negotiate . . . with a foreign govern- 
 ment an authority Congress can not constitutionally abridge or 
 increase." Would Jackson have permitted the Senate to amend the 
 Property Treaty as McKinley did ? Certainly not, as we may infer from 
 the stinging language used in the memorable "Protest" of April i5th, 
 1834, in which he said: 
 
 "The resolution of the Senate presupposes a right in that body to interfere 
 with this exercise of Executive power. If the principle be once admitted . . . 
 the constitutional independence of the Executive Department would be as 
 effectually destroyed and its powers as effectually transferred to the Senate as 
 if that end had been accomplished by an amendment to the Constitution." 
 
 Grant was equally jealous that the line of demarcation between the 
 legislative and the executive should not be overstepped. In returning 
 
 1 An " act to authorize the Secretary of the Treasury to compromise the claims 
 allowed by the commissioners under the treaty with the King of the Two Sicilies, con- 
 cluded Oct. 14, 1832." 
 
152 AMERICAN FEDERAL GOVERNMENT 
 
 to the House of Representatives a " joint resolution relating to congratu- 
 lations from the Argentine Republic," which directed the Secretary of 
 State to acknowledge a dispatch of congratulation, Grant said: 
 
 "I cannot escape the conviction that their adoption has inadvertently in- 
 volved the exercise of a power which infringes upon the constitutional rights 
 of the Executive. . . . The Constitution of the United States, following the 
 established usages of nations, has indicated the President as the agent to 
 represent the national sovereignty in its intercourse with foreign powers and 
 in all official communications from them." 
 
 After quoting from the act establishing the Department of State, 
 Grant continued: 
 
 "This law, which remains substantially unchanged, confirms the view that 
 the whole correspondence of the government with and from foreign states is 
 intrusted to the President; that the Secretary of State conducts such corres- 
 pondence exclusively under the orders and instruction of the President." 
 
 Cleveland had no scruples about making Congress understand that it 
 must not interfere with the conduct of foreign affairs, and that the rec- 
 ognition of an independent state was an executive act purely, and not 
 one with which the legislative branch could concern itself. 
 
 Having advanced the doctrine that treaties negotiated by the President 
 are merely "projects for treaties ; they are still inchoate," the Senate has 
 now still further encroached on the Executive by claiming to know the 
 details of a treaty while in process of negotiation and before the treaty is 
 submitted to it for ratification. Minos must be admitted to the secrets 
 of Jove. That, virtually, is what the Senate compelled President 
 McKinley and Secretary Hay to do when it so amended the Hay- 
 Pauncefote canal treaty as to make its acceptance by the British Govern- 
 ment impossible. Mr. Hay, instructed by the President to reopen 
 negotiations in the endeavor to secure the assent of the British Govern- 
 ment to a new convention, deemed it not only politic but absolutely 
 indispensable that he should consult with leading Senators; that he 
 should inform them of the lines on which he proposed to negotiate the 
 new treaty, and ascertain from them if the suggested stipulations met 
 with their approval. This he did by the direct instruction of President 
 McKinley ; not only did he advise with Senators but also with the Vice- 
 President, who is not a member of the Senate and can not vote on a 
 treaty. 
 
 That "perfect secrecy and immediate dispatch" which Jay held to be 
 "sometimes requisite" are impossible if the Senate must be consulted 
 in advance of negotiations. Jay, who was wise enough to see that there 
 were persons "who would rely on the secrecy of the President, but who 
 would not confide in that of the Senate," thought that the constitutional 
 convention had done well in providing " that although the President must, 
 
THE SENATE 153 
 
 in forming them [treaties], act by the advice and consent of the Senate, 
 yet he will be able to manage the business of intelligence in such a 
 manner as prudence may suggest." This is antiquated doctrine. The 
 modern doctrine makes the President merely the agent of the Senate in 
 framing a treaty. 
 
 "The State Department in its negotiations with foreign governments 
 has one hand tied behind its back and a ball and chain about its leg," 
 was the remark made to the writer by a man who has had a long experi- 
 ence in American diplomacy. Jay voiced the fear entertained at the time 
 of the adoption of the Constitution "that two-thirds [of the Senate] will 
 oppress the remaining third," but to-day it is always the one-third that 
 has the power to oppress the remaining two-thirds and the Executive as 
 well. A treaty is always sure to meet with political opposition, the 
 opposition, that is, of the party antagonistic to the President ; or opposi- 
 tion originating in prejudice, self-interest, or ignorance. As instances may 
 be cited the defeat of the Olney-Pauncefote general treaty of arbitration 
 (the defeat of which was caused by dislike of Mr. Cleveland and Mr. 
 Olney, and by the general prejudice then existing against the negotiation 
 of a treaty of that character with England) ; the failure to act affirmatively 
 on the French reciprocity treaty, because it was believed it might injure 
 certain manufacturing interests ; the amendments to the Hay-Pauncefote 
 canal treaty, inserted because certain similar amendments were found in 
 the convention on which the new treaty was based, which were perfectly 
 proper in the one and had no place in the other; and also because certain 
 Senators were honest enough to say that they feared the construction of 
 the canal would seriously injure the transcontinental railroads. Every 
 treaty will meet with opposition from one or all of these sources, which 
 explains the extreme difficulty of securing the ratification of a treaty in 
 these days, and why it is so much easier for the one-third to prevent 
 ratification than it is for the two-thirds to secure it. Lest it be said that 
 this is a criticism of the Constitution, it may be frankly answered that it 
 is nothing of the kind; but it is a criticism of the assumption of the 
 Senate, and it justifies the statement that the State Department is always 
 hampered by the ball and chain of the Senate. 
 
 The desire of the Senate to leave its impress upon all treaties is shown 
 by trivial and absurd amendments, "the customary disfigurement at the 
 hands of the United States Senate," to use Mr. Cleveland's vigorous 
 language in discussing the Venezuelan settlement. Illustrative of what 
 amounts almost to a mania, in recent years, on the part of the Senate to 
 amend treaties, is the convention of 1896 with Great Britain for the 
 settlement of claims arising out of the unlawful seizure by the United 
 States of British vessels in Behring Sea. The convention as negotiated 
 and signed by the plenipotentiaries of the contracting powers provided 
 that "the commission may sit at San Francisco, California, as well as 
 Victoria, provided it shall determine in any case that the interests of 
 
154 AMERICAN FEDERAL GOVERNMENT 
 
 justice so require, due regard being had to the necessary expense and 
 to all other considerations involved." The Senate, to make the language 
 conform to its own ideas, changed the article to read: "The Committee 
 shall also sit in San Francisco, California, as well as Victoria, provided 
 that either Commissioner shall so request, if he shall be of the opinion that 
 interests of justice shall so require, for reasons to be recorded on the 
 minutes." 
 
 In 1883, a treaty was submitted to the Senate extending the life of a 
 previously concluded convention with France for the adjustment of 
 claims between the two countries. Defining the practice to be observed, 
 the negotiators used these words : "If the proceedings of the Commission 
 shall be interrupted by the death or incapacity of any one of the Com- 
 missioners," etc., which the Senate amended to read: "If the proceed- 
 ings of the Commission shall be interrupted by the death, incapacity, 
 retirement, or cessation of the functions of any one of the Commis- 
 sioners," etc. 
 
 An examination made by me of original treaties in the archives of the 
 Department of State shows that, in the early days, the Senate exercised 
 the right of amendment very sparingly and with great discretion, but of 
 recent years, especially during the last decade, it has exerted its power 
 with the greatest freedom, until now the treaty that is ratified without 
 amendment is the exception. 
 
 What enables the oligarchs of the Senate to exercise their dominant 
 power, to reduce the House to a legislative nonentity and to keep the 
 President in subjection, is the peculiar code of the Senate, the unwritten 
 code which is more powerful than the printed rules. The fear expressed 
 by Hamilton, that a few of the members of the House by long experience 
 and a mastery of public affairs would dominate their associates, finds its 
 realization in the Senate. An imperium in imperio exists there. Despite 
 the fact that all Senators are free and equal, that one man may be able to 
 block business, and that "government by agreement" eliminates friction, 
 all real authority is centered in a few hands; at the present time not 
 more than half a dozen Senators have reached censorian dignity. The 
 Congressional Directory of November 2;th, 1900, a recent edition, gave 
 the biographies of eighty-five Senators, there being five vacancies at that 
 time. Of the total number, forty-eight were then serving their first term, 
 nineteen their second, six their third, eight their fourth, and four their 
 fifth ; but even these figures are misleading, as some of the men credited 
 with two terms have not seen six years of service ; they were appointed 
 to fill vacancies and then elected for a full term. But taking the figures 
 as they stand, nearly eighty per cent of the Senate has served less than 
 twelve years and twenty per cent more. 
 
 In the Senate authority comes with length of service. A new Senator 
 is placed at the foot of unimportant committees, no matter how long his 
 experience in public life or his standing in the House of Representatives 
 
THE SENATE 155 
 
 or elsewhere (Mr. Carlisle was one of the rare exceptions), and he can 
 only reach a chairmanship of a leading committee by the retirement of 
 Senators who outrank him. The system is so automatic that it is almost 
 military in its operation. No matter how brilliant the attainments of a 
 captain, he must bow to the superior wisdom of a colonel or a general. A 
 Webster entering the Senate to-day would perforce sit at the foot of the 
 table and find it futile to try and oppose the chairman; and a Webster 
 would find himself on a committee of minor importance, while men his 
 intellectual inferiors and his juniors in years, but his seniors in service, 
 would be members of great committees. By this method power always 
 centers in the hands of a few men, the half dozen or so Senators who are 
 at the head of the few really important committees. No legislation can 
 be enacted, no policy can be put into execution, unless these men are first 
 consulted and give their consent. They are, in effect, the Senate of the 
 United States. 
 
 At the beginning of this article was used one of Bismarck's favorite 
 maxims. Perhaps it may not be inappropriate to close with the remark 
 made by the Iron Chancellor when discussing the terms of peace with 
 France, an observation that the Senate might remember with profit: 
 ' ( La patrie veut etre servie, et non pas dominee." l 
 
 SENATE PROCEDURE. OBSTRUCTION ON THE 
 CURRENCY BILL, 1908 2 
 
 [The procedure of the Senate has been characterized by its flexibility and the 
 absence from it of any general rules limiting debate. According to the traditions 
 of the Senate there should not be any hindrance to free and full debate in that 
 chamber. The closure or previous question has never been used in the Senate, 
 nor has a limit been fixed to debate by a special vote. In every respect the pro- 
 cedure of the Senate has been in diametrical opposition to that in the other 
 branch of the federal legislature. Repeatedly this freedom of debate has been 
 used by individual Senators for the purpose of blocking legislation to which 
 they were opposed, especially toward the end of a short session which expires by 
 limitation on the 4th of March. Thus Senator Carter defeated the River and 
 Harbor Bill, Senator Quay conducted a lengthy filibuster on the Statehood Bill, 
 and Senator Tillman insisted upon an appropriation for a claim in favor of his 
 state which had been repeatedly disallowed. On May 30, 1908, Senator La 
 Follette assisted by several other Senators, used obstructive tactics against the 
 passage of the conference report on the Currency Bill. Every technicality was 
 utilized for the purpose of consuming time. The question of "no quorum" 
 was raised thirty-six times within a few hours, necessitating the calling of the 
 roll at brief intervals. The session, beginning at noon on May 29, lasted on 
 
 1 An answer to the above article, by William H. Moody, member of Congress, now 
 Justice of the Supreme Court was published in the North American Review, March, 
 1902. 
 
 2 Congr. Record, May 30. 
 
156 AMERICAN FEDERAL GOVERNMENT 
 
 through the night until late in the afternoon of the following day. As the 
 official term of Congress would not have come to an end for nearly a year, the 
 process of obstruction might have gone on indefinitely had not an entirely new 
 turn been given to Senate procedure. Between midnight and 6 o'clock of 
 May 30, three very important precedents were established which may in the 
 future materially interfere with the traditional liberty of unlimited discussion 
 in the Senate. The precedents may be summarized as follows: First, The 
 vice-president announced that it was within the providence of the chair to count 
 a quorum and that a roll call would not be ordered if a quorum was actually 
 present. This decision gives the vice-president practically the same power 
 with respect to a quorum that is enjoyed by the speaker of the House. 
 Second, The Senate determined that the question of "no quorum" could not 
 be raised if a previous roll call had disclosed the presence of a quorum, and if 
 no business had intervened. It was held that debate was not such intervening 
 business. Third, A rule of the Senate which in practice has always lain dormant 
 was invoked, prohibiting a Senator from addressing the Senate upon any ques- 
 tion more than twice in any one day. 
 
 The great importance of these precedents as well as the interest of the pro- 
 ceeding in itself warrant a study of the occasion upon which the precedents were 
 applied. The manner in which this conference report on the Currency Bill was 
 brought about will be illustrated later. See page 210 et seq.] 
 
 THE VICE-PRESIDENT. Fifty Senators have answered to their names. 
 A quorum of the Senate is present. The Senator from Texas will proceed. 
 
 Mr. LA FOLLETTE. I rise to a question of parliamentary inquiry. 
 
 The VICE-PRESIDENT. Does the Senator from Texas yield to the 
 Senator from Wisconsin ? 
 
 Mr. CULBERSON. I prefer 
 
 Mr. LA FOLLETTE. It is not necessary for the Senator from Texas to 
 yield to the Senator from Wisconsin when the Senator from Wisconsin 
 rises to a parliamentary inquiry. 
 
 The VICE-PRESIDENT. The Senator from Wisconsin will kindly state 
 his parliamentary inquiry. 
 
 Mr. LA FOLLETTE. It is this, Mr. President : That if at any time dur- 
 ing the daily sessions of the Senate a question shall be raised by any 
 Senator 
 
 Mr. NELSON. Mr. President, I rise to a point of order. 
 
 Mr. LA FOLLETTE (continuing) . As to the presence of a quorum 
 
 Mr. NELSON. I rise to a point of order, Mr. President. 
 
 Mr. LA FOLLETTE (continuing) . The presiding officer shall forthwith 
 direct 
 
 The VICE-PRESIDENT. The Senator from Wisconsin is stating a point 
 of order. 
 
 Mr. NELSON. I rise to a point of order, Mr. President. 
 
 Mr. LA FOLLETTE. I decline to yield, Mr. President. 
 
 The VICE-PRESIDENT. The Senator from Wisconsin will state his 
 point of order. 
 
THE SENATE 157 
 
 Mr. LA FOLLETTE. I desire to bring Rule V to the attention of the 
 President of the Senate. Rule V, subdivision 2, provides 
 
 2. If, at any time during the daily sessions of the Senate, a question shall be 
 raised by any Senator as to the presence of a quorum, the presiding officer shall 
 forthwith direct the Secretary to call the roll and shall announce the result, and 
 these proceedings shall be without debate. 
 
 I have been a member of this Senate, Mr. President, but a brief time, 
 but I have on numerous occasions, without any Senator yielding the 
 floor, noted the fact that the attention of the presiding officer, under 
 subdivision 2 of Rule V, had been called to the fact of the absence of a 
 quorum, and that thereupon, without the consent of any Senator, either 
 the presence of a quorum was demonstrated or its absence demonstrated 
 by the calling of the roll ; and I call the attention of the presiding officer 
 to the fact that no quorum is present. 
 
 Mr. NELSON. Mr. President, I desire to make a point of order. 
 
 The VICE-PRESIDENT. The Senator will state his point of order. 
 
 Mr. NELSON. Mr. President, a parliamentary inquiry is not a point of 
 order under our procedure in the Senate. That is a practice that has 
 grown up in the other House of Members applying to the Chair and 
 asking to make a parliamentary inquiry. Our rules know nothing of the 
 kind. There is no point of order in it. I make the point of order that the 
 Chair is not obliged to respond to any parliamentary inquiry. 
 
 Mr. ALDRICH. I make the further point of order that in order to make 
 a parliamentary inquiry a Senator must be in possession of the floor, and 
 that he can not take the floor by asking to make a parliamentary inquiry 
 and then make any motion. 
 
 The VICE-PRESIDENT. The Chair 
 
 Mr. LA FOLLETTE. If I may be permitted a suggestion, Mr. President, 
 I had the attention of the presiding officer of the Senate. I brought to 
 his attention the fact that there was no quorum present; and under 
 subdivision 2 of Rule V it seems to me that there is but one proceeding 
 open, and that is to ascertain by a roll call, under the direction of the 
 presiding officer of the Senate, as to whether or not there is a quorum 
 present. 
 
 Mr. GALLINGER. Regular order, Mr. President. 
 
 The VICE-PRESIDENT. The Chair is of opinion that the Senator from 
 Texas [Mr. Culberson] had the floor, and that he declined to yield to 
 the Senator from Wisconsin [Mr. La Follette]. The Chair, therefore, 
 sustains the point of order. 
 
 Mr. LA FOLLETTE. I am very reluctant to have to appeal from that 
 decision. 
 
 The VICE-PRESIDENT. The Senator from Wisconsin appeals from 
 the decision of the Chair. The question is, Shall the decision of the 
 Chair stand as the judgment of the Senate? 
 
158 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. LA FOLLETTE. I suppose I am entitled to a hearing upon that 
 appeal. I do not propose to trust to myself in discussing that question. 
 I simply propose to read into the RECORD of this Senate the rules of the 
 Senate, and to take the ruling of the Senate upon that proposition. 
 
 Mr. GALLINGER. We are ready to give it. 
 
 Mr. LA FOLLETTE. Having obtained the floor, I called the. attention 
 of the Presiding Officer of this body to the fact that no quorum was 
 present. Under Rule V, subdivision 2, 1 find the following : 
 
 2. If, at any time during the daily sessions of the Senate, a question shall be 
 raised by any Senator as to the presence of a quorum, the Presiding Officer shall 
 forthwith direct the Secretary to call the roll. 
 
 Mr. President, I submit that the proceedings of this Senate and the 
 integrity of its proceedings can never be protected unless that rule be 
 enforced, and enforced rigidly. You are about to make a precedent here, 
 which may return to plague you some time, because, under a certain 
 leadership, you have set your faces to enact certain legislation. I submit 
 to you that you may go to that extent that you will find yourselves 
 embarrassed greatly in the future. Is it possible that important pro- 
 ceedings in the Senate, if one man can get the floor, may be conducted 
 here for an unlimited period of time in the presence of the Presiding 
 Officer and one single Senator, he declining to yield the floor ? It might 
 be possible for him to incorporate into the proceedings of this Senate the 
 most outrageous matters, because there is an organization here that 
 resists whenever an effort is made upon this floor for the great body of the 
 people of this country. Let me say to you Senators who are yet free, 
 that you may go to such an extent as to completely commit yourselves 
 for the future. 
 
 Now, I want to read the balance of that rule to this body: 
 
 The Presiding Officer shall forthwith 
 
 I am reading from Rule V, subdivision 2 
 
 If, at any time during the daily sessions of the Senate, a question shall be 
 raised by any Senator 
 
 I will undertake to say, Mr. President, that a hundred times in the 
 two years that I have been a member of this body I have seen Senators 
 rise on this floor, call upon the presiding officer, and, without any assent 
 upon the part of the Senator who had the floor, raise the question that 
 no quorum was present. I will undertake to say that an examination of 
 the records of this Senate will show that that has occurred during the 
 present session possibly a hundred times. 
 
 If, at any time during the daily sessions of the Senate, a question shall be 
 raised by any Senator as to the presence of a quorum, the presiding officer shall 
 forthwith direct the Secretary to call the roll and shall announce the result 
 
THE SENATE 159 
 
 Now, I submit that neither the presiding officer nor this body ought to 
 let the decision of that question turn upon the proposition of who 
 raises it 
 
 And these proceedings shall be without debate. 
 The third subdivision of Rule V is as follows: 
 
 3. Whenever upon such roll call it shall be ascertained that a quorum is not 
 present, a majority of the Senators present may direct the Sergeant-at-Arms to 
 request, and, when necessary, to compel the attendance of the absent Senators, 
 which order shall be determined without debate ; and pending its execution, and 
 until a quorum shall be present no debate nor motion, except to adjourn, shall 
 be in order. 
 
 See, Mr. President and Senators, how carefully the maker of those 
 rules guarded this important question of the presence of a quorum during 
 all the deliberations of this body. 
 
 Mr. ALDRICH. Mr. President, it is very evident that a question of this 
 kind can not be raised under the provisions of the rule unless the Senator 
 raising the question has the floor, and I therefore move that the appeal 
 taken by the Senator from Wisconsin be laid upon the table. 
 
 Mr. CULBERSON. I hope the Senator will not make that motion now. 
 
 Mr. ALDRICH. I think I must make it now. 
 
 Mr. CULBERSON. I desire to make a statement. 
 
 Mr. ALDRICH. I withhold the motion for the purpose of allowing 
 the Senator to make a statement. 
 
 Mr. CULBERSON. Mr. President, in my judgment the decision of the 
 Chair is erroneous. I believe that the question of the existence of a 
 quorum can be raised at any time, even without the consent of the Sena- 
 tor who may at the time hold the floor in debate. The notes of the 
 stenographer will show that, being asked by the Chair if I yielded to the 
 Senator from Wisconsin, I stated that I preferred not to; and that is 
 true. I preferred, as I have stated once or twice, to go on with the 
 financial statement I have to make to the Senate and to the country about 
 the extravagance of the Administration of President Roosevelt and be 
 through with it ; but I do not believe and it has not been my purpose 
 in anything I have said or anything I have done to make such a suggestion 
 that by asking not to be interrupted I could cut off any Senator from 
 making the point that there was no quorum. 
 
 Mr. ALDRICH. I ask for a vote on my motion. 
 
 The VICE-PRESIDENT. The Chair will state that Rule XIX provides 
 that 
 
 No Senator shall interrupt another Senator in debate without his consent. 
 
 The Chair certainly construed the language of the Senator from Texas 
 [Mr. Culberson] to mean that he did not yield to the interruption of 
 
160 AMERICAN FEDERAL GOVERNMENT 
 
 the Senator from Wisconsin [Mr. La Follette ]. The Senator from 
 Rhode Island [Mr. Aldrich] moves that the motion be laid upon the 
 table. All in favor of that motion will say "aye" 
 
 Mr. LA FOLLETTE. Mr. President, upon that question I demand the 
 yeas and nays. 
 
 The VICE-PRESIDENT. The Senator from Wisconsin demands the 
 yeas and nays. Is the demand seconded ? [Putting the question.] One- 
 fifth of the Senators present have not joined in the demand. 
 
 Mr. LA FOLLETTE. I ask for a division. 
 
 The VICE-PRESIDENT. A division is demanded. Those in favor of 
 the motion will rise and stand until counted. 
 
 The question being put, there were, on a division ayes 32, noes 14. 
 
 Mr. BACON. Mr. President, I desire to state 
 
 Mr. GORE. Mr. President 
 
 Mr. BACON. I have the floor, I think. 
 
 The VICE-PRESIDENT. The Senator from Georgia [Mr. Bacon] is 
 entitled to the floor. 
 
 Mr. BACON. As I did not have the opportunity to express myself 
 before the vote, and as the motion to lay the appeal upon the table did not 
 permit of an expression, I desire to say that in voting not to lay the appeal 
 on the table I was not unmindful of the old adage that " hard cases make 
 bad law," and I was unwilling to establish a precedent. 
 
 Mr. ALDRICH. Mr. President 
 
 Mr. BACON. I hope the Senator will not interrupt me ; I will occupy 
 but a minute. I just want to say that, while I voted that way, I do not 
 wish to be construed as being in sympathy in any particular with any 
 obstructive proceedings to-day in regard to the pending matter. I voted 
 that way because I thought that was the correct rule. So far as I am 
 concerned, I prefer that the proceedings of the Senate should go on in 
 the ordinary and usual manner. 
 
 Mr. GORE. Mr. President, I submit that the division discloses that 
 there is not the presence of a quorum. 
 
 Mr. KEAN. Let us have the regular order, Mr. President. 
 
 The VICE-PRESIDENT. The division disclosed the existence of a 
 quorum. 
 
 Mr. GORE. It takes forty-seven to constitute a quorum. 
 
 Mr. KEAN. Let us have the regular order. 
 
 The VICE-PRESIDENT. The Chair is of the opinion that a quorum is 
 present. 
 
 Mr. GORE. I should like to say that there are ninety-two members of 
 this body. Half of that number is forty-six. A division disclosed the 
 presence of forty-six. As I understand, it takes one more than half to 
 constitute a quorum. 
 
 The VICE-PRESIDENT. There was present a Senator who did not vote. 
 A quorum is present, in the opinion of the Chair. 
 
THE SENATE 161 
 
 Mr. CULBERSON. Mr. President 
 
 The VICE-PRESIDENT. The Senator from Texas is recognized. 
 
 Mr. LA FOLLETTE. Mr. President, may I make a parliamentary 
 inquiry ? 
 
 The VICE-PRESIDENT. The Senator from Wisconsin rises to a parlia- 
 mentary inquiry. 
 
 Mr. LA FOLLETTE. It is this : Whether the decision of the President 
 of the Senate at this time establishes the precedent in this body of 
 counting a quorum when the vote discloses that no quorum is present. 
 
 The VICE-PRESIDENT. The Chair will read from the decision of the 
 President pro tempore of the Senate on June 19, 1879. The Chair under- 
 stands that the occupant of the chair at that time was Allen G. Thurman, 
 then a Senator from Ohio. A roll call was ordered and had, whereupon 
 the following occurred: 
 
 The PRESIDENT pro tempore. No quorum has voted. The Chair has counted 
 the Senate. There is a quorum present, but no quorum voting. 
 
 Mr. HOUSTON. Mr. President, as I understand the construction of Rule No. 
 2, by the Presiding Officer, whenever it is disclosed on a vote that there is no 
 quorum he may have the roll called. 
 
 The PRESIDENT pro tempore. The Chair has usually taken the fact of there 
 being no quorum voting as evidence that there was no quorum present; but 
 the Chair has not decided that it is not possible to ascertain otherwise whether 
 there is a quorum. The Chair does not think the fact that a quorum has not 
 voted is conclusive evidence that a quorum is not present. On the contrary, 
 in the opinion of the Chair, he has a right to count the Senate. He has counted 
 the Senate and found that a quorum is in attendance, but a quorum has not 
 voted. 
 
 In the present instance the Chair has counted the Senate, and there is a 
 quorum present. 
 
 Mr. KEAN. Regular order, Mr. President. 
 
 The VICE-PRESIDENT. The Senator from Texas [Mr. Culberson] 
 has the floor. 
 
 Mr. CULBERSON. Mr. President, as I have the floor, there will either 
 have to be order on the floor, or I will call for a quorum. I do not suppose 
 there will be any question about that. 
 
 The VICE-PRESIDENT. The Senate will be in order. 
 
 Mr. Culberson resumed his speech. After having spoken about ten 
 minutes. 
 
 Mr. HOPKINS. Mr. President 
 
 Mr. CULBERSON. I decline to yield, Mr. President. 
 
 The VICE-PRESIDENT. The Senator from Texas declines to yield. 
 
 Mr. CULBERSON. I do so with the utmost respect to the Senator from 
 Illinois, inasmuch as I declined to yield to others. I want to get through 
 with this statement. 
 
 The VICE-PRESIDENT. The Senator from Texas declines to yield. 
 
 ii 
 
162 AMERICAN FEDERAL GOVERNMENT 
 
 [Mr. Culberson resumed and concluded his speech.] 
 The VICE-PRESIDENT. The question is on agreeing to the report of the 
 committee of conference. 
 
 Mr. LA FOLLETTE. What is the question? 
 Mr. KEAN. Let us have the question. 
 
 ******** 
 
 Mr. LA FOLLETTE. Mr. President, if I am at liberty to proceed, I am 
 very glad. I was afraid I was going to be interrupted for some time, 
 while the Senate sent for absentees. I did not understand the proceeding 
 exactly, and I do not like to be off the floor a moment longer than is 
 absolutely necessary to get the attendance of a quorum. And now may 
 I make a parliamentary inquiry before starting in? Suppose it should 
 develop on top of this situation that there is not a quorum present, can 
 I raise the point of no quorum? 
 
 Mr. HALE. Clearly the Senator can not raise that point while we are 
 proceeding under the previous call to secure the attendance of Senators 
 by the Sergeant-at-Arms. When the Sergeant-at-Arms reports and 
 that proceeding is ended, then if there is no quorum another call 
 may be made, but it can not be made until those proceedings are 
 completed. 
 
 Mr. LA FOLLETTE. Mr. President, I want to remind Senators that 
 you are making precedents now. I have been informed that there is 
 going to be a rule sprung on me before I get through that a Senator, in a 
 single legislative day, can speak only twice upon a question. 
 
 Mr. GALLINGER. That is the rule. 
 
 Mr. LA FOLLETTE. That is the rule. It has never been enforced since 
 I have been a member of this body. 
 
 Mr. FORAKER. The rule is that he can not speak more than twice 
 
 The PRESIDING OFFICER. Does the Senator from Wisconsin yield to 
 the Senator from Ohio ? 
 
 Mr. LA FOLLETTE. Surely. 
 
 Mr. FORAKER. As I understand it, a Senator can not speak more than 
 twice during the same legislative day on the same subject except by 
 unanimous consent. 
 
 Mr. LA FOLLETTE. Yes; and I hardly expect to obtain unanimous 
 consent, if I should yield the floor at any time. 
 
 Mr. CULBERSON. Mr. President 
 
 The PRESIDING OFFICER. Does the Senator from Wisconsin yield to 
 the Senator from Texas? 
 
 Mr. LA FOLLETTE. I am not sure whether I have a right to the floor 
 or not. 
 
 Mr. CULBERSON. I call the attention of the Senator from Ohio to the 
 exact wording of the rule. 
 
 The PRESIDING OFFICER. Does the Senator from Wisconsin 
 yield? 
 
THE SENATE 163 
 
 Mr. LA FOLLETTE. If I have the floor, I yield to this interruption 
 from the Senator from Texas. 
 
 Mr. CULBERSON. I simply wanted to call the attention of the Senator 
 from Ohio to the exact wording of the rule. It is that 
 
 No Senator shall speak more than twice upon any one question in debate on 
 the same day without leave of the Senate. 
 
 Mr. FORAKER. I was in error in saying "by unanimous consent." I 
 understand very well, of course, that that is the language of the rule. I 
 want to suggest to the Senator that when he gets to that point he ask 
 the leave of the Senate. 
 
 Mr. LA FOLLETTE. Mr. President, of course I understand perfectly 
 well that the Senate would deny me leave to proceed. 
 
 Mr. FORAKER. Oh, Mr. President, I do not think the Senator should 
 assume anything of the kind in view of what has occurred to-day. I 
 think the Senate will allow the Senator anything he may ask. 
 
 Mr. LA FOLLETTE. The Senator says "in view of what occurred to- 
 day." I do not think that I was given any indulgence to-day at all. I 
 think that I was entirely within my right. And I do not expect any 
 indulgence from the Senate. I never have had any since I have been a 
 member of it. 
 
 Mr. FORAKER. The Senator surely was entirely within his right. I 
 was not making any complaint of the Senator, and I am not complaining 
 of anybody, but I was referring to the vote of the Senate on the occasion 
 the Senator has in mind. 
 
 Mr. OVERMAN. Mr. President, I rise to a parliamentary inquiry. 
 Can the Senator from Wisconsin proceed until the Sergeant-at-Arms 
 reports ? 
 
 Mr. HOPKINS. There is a quorum present. 
 
 The PRESIDING OFFICER. There is a quorum present, and the Chair is 
 of opinion that the Senator from Wisconsin has the floor and may proceed. 
 
 Mr. OVERMAN. The question I raise is whether it has been established 
 that a quorum is present. 
 
 The PRESIDING OFFICER. A quorum is present. 
 
 Mr. OVERMAN. And at any time can the point of a quorum be raised 
 if there is no quorum? 
 
 Mr. GALLINGER and others. Regular order ! 
 
 The PRESIDING OFFICER. The Senator from Wisconsin is entitled to 
 the floor. 
 
 Mr. LA FOLLETTE. I should like to know Che Chair's ruling upon that 
 point. 
 
 The PRESIDING OFFICER. The Chair is of opinion that the Senator 
 from Wisconsin has the floor and may proceed. 
 
 Mr. LA FOLLETTE. That was not the parliamentary inquiry. I would 
 present the parliamentary inquiry to the Chair just presented by the 
 Senator from North Carolina. 
 
164 AMERICAN FEDERAL GOVERNMENT 
 
 The PRESIDING OFFICER. The Chair will determine that question 
 when it arises. 
 
 Mr. LA FOLLETTE. Then I will raise the question now that there 
 is not any quorum present. 
 
 The PRESIDING OFFICER. The Chair is of opinion that 
 
 Mr. LA FOLLETTE. It is not a question of the opinion of the Chair. 
 
 The PRESIDING OFFICER. There is a quorum present. 
 
 Mr. LA FOLLETTE. Mr. President, I submit that when the question is 
 raised it is not for the Chair to state that there is a quorum present. 
 
 The PRESIDING OFFICER. The Chair will read clause 3 of Rule V: 
 
 3. Whenever upon such roll call it shall be ascertained that a quorum is not 
 present, a majority of the Senators present may direct the Sergeant-at-Arms 
 to request, and, when necessary, to compel the attendance of the absent Senators, 
 which order shall be determined without debate ; and pending its execution, and 
 until a quorum shall be present, no debate nor motion, except to adjourn, 
 shall be in order. 
 
 This implies, of course, that when a quorum is present the business of 
 the Senate shall proceed. The Senator from Wisconsin has the floor. 
 
 Mr. LA FOLLETTE. That was not the parliamentary inquiry presented 
 by the Senator from North Carolina. If it was, I want to present another, 
 and that is this : It having developed that a quorum is present and that 
 the regular legislative business of the Senate may be resumed, I ask, if 
 the question is raised, under subdivision 2 of Rule V, that there is no 
 quorum present, whether it does not then become necessary to ascertain 
 by a roll call whether there is a quorum present. That is my parliamen- 
 tary inquiry. 
 
 Mr. TELLER. Mr. President, I understand the rule to be that when a 
 quorum is found to exist and it is announced business may then proceed, 
 and no Senator can call for a quorum until after some business, at least, 
 has been transacted. 
 
 Mr. LA FOLLETTE. I think that is true, Mr. President. 
 
 The PRESIDING OFFICER. The Chair is of the opinion that after a 
 quorum is announced the business of .the Senate must proceed until 
 there has been some transaction of business. 
 
 Mr. LA FOLLETTE. Yes; I think that is true, and I was, perhaps, 
 anticipating somewhat in raising this parliamentary inquiry. But it 
 came up at the suggestion of the Senator from North Carolina, and being 
 a rather interesting question 
 
 Mr. OVERMAN. It came from the Senator from Maine. 
 
 Mr. LA FOLLETTE. That is true. 
 
 Mr. OVERMAN. I differed with him on the question, and that is the 
 reason why I made the inquiry of the Chair. 
 
 ******** 
 
THE SENATE 165 
 
 Mr. ALDRICH. Mr. President, I rise to a question of order. The 
 suggestion of the Senator from Wisconsin is not in order. We have had 
 32 roll calls within a comparatively short time, all disclosing the presence 
 of a quorum. Manifestly a quorum is in the building. If repeated sug- 
 gestions of the want of a quorum can be made without intervening busi- 
 ness, the whole business of the Senate is put in the hands of one man, who 
 can insist upon continuous calls of the roll upon the question of a quorum. 
 My question of order is that, without the intervention of business, a 
 quorum having been disclosed by a vote or by a call of the roll, no fur- 
 ther calls are in order until some business has intervened. I should be 
 glad if the Vice-President would submit that question of order to the 
 Senate. 
 
 I call the attention of the Chair to a decision in a case, which is on all 
 fours with this, made on March 3, 1897, when this precise question was 
 raised by the then Senator from New York, Mr. Hill, who sustained it by 
 the same argument which I am now calling the attention of the Chair to ; 
 and the point made by the Senator from New York was sustained. It is 
 found on page 2737 of volume 29, part 3, of the Record, second session, 
 Fifty-fourth Congress. The language was 
 
 MR. HILL. My point is, that the presence of a quorum was determined by 
 the last roll call, and that a Senator can not immediately thereafter suggest the 
 absence of a quorum. 
 
 The PRESIDING OFFICER. Does the Senator mean to embrace the feature 
 that no business has intervened? 
 
 Mr. HILL. Yes; that no business has intervened. 
 
 The PRESIDING OFFICER. The Chair sustains the point of order. 
 
 The VICE-PRESIDENT. Will the Senator from Rhode Island kindly 
 restate his point of order. 
 
 Mr. ALDRICH. It is that the roll of the Senate having disclosed the 
 presence of a quorum and no business having intervened, the suggestion 
 of the absence of a quorum is not in order. 
 
 The VICE-PRESIDENT. The Chair submits to the Senate the question 
 of order raised by the Senator from Rhode Island. 
 
 Mr. LA FOLLETTE. Mr. President, I just wish to suggest, in order that 
 it may appear upon the RECORD that debate has intervened since the 
 last roll call. 
 
 Mr. ALDRICH. That is not business. 
 
 Mr. LA FOLLETTE. I just wish that to appear upon the Record. 
 
 Mr. ALDRICH. My suggestion was that debate was not business. 
 
 Mr. LA FOLLETTE. And I want to remind Senators here to-night, 
 before this vote is taken, that every precedent you establish to-night will 
 be brought home to you hereafter. 
 
 Mr. GALLINGER. Mr. President, I simply desire to add to what 
 has been said, that if the entire business of the Senate can be put in 
 
1 66 AMERICAN FEDERAL GOVERNMENT 
 
 the hands of one man, that one man could destroy the Government; 
 he could prevent appropriations being made to carry on the govern- 
 mental machinery, and it is absurd to suppose that it was ever so 
 intended. 
 
 Mr. CULBERSON. Mr. President, I understood the Senator from 
 Rhode Island to read from subdivision 2 of Rule V. 
 
 Mr. ALDRICH. I did not read any rule. I make the point upon the 
 ordinary parliamentary law, which governs this body in the absence of 
 rules, that the Senate itself has decided this precise point upon, I think, 
 two or three occasions. I have one precedent before me, which is exactly 
 on all fours with the present situation. 
 
 Mr. CULBERSON. The Senator then read from a decision on the 
 question ? 
 
 Mr. ALDRICH. Yes ; I called attention to a case which appears in the 
 Record. 
 
 Mr. CULBERSON. Mr. President, that refers to a particular proceed- 
 ing of the Senate. I simply want to read the rule, which provides : 
 
 2. If, at any time during the daily sessions of the Senate, a question shall be 
 raised by any Senator as to the presence of a quorum, the Presiding Officer 
 shall forthwith direct the Secretary to call the roll and shall announce the 
 result, and these proceedings shall be without debate. 
 
 It not only provides that it shall be done at any time during the 
 daily sessions, but provides that the proceedings shall be had without 
 debate. 
 
 The VICE-PRESIDENT. The question is on the point of order sub- 
 mitted by the Senator from Rhode Island [Mr. Aldrich]. 
 
 [The roll call was concluded.] 
 
 The result was announced yeas 35, nays 5. 
 
 The VICE-PRESIDENT. A quorum has not voted. 
 
 Mr. FORAKER. Mr. President, I ask if it is not a rule of the Senate that 
 all Senators in the Chamber when the roll is called shall vote unless they 
 be excused by the Senate ? I noticed quite a number of Senators in the 
 Chamber who were in the Chamber when the roll was called who did not 
 answer in any way to their names. 
 
 The VICE-PRESIDENT. Rule XII covers the question raised by the 
 Senator from Ohio. It reads in part as follows : 
 
 i. When the yeas and nays are ordered, the names of Senators shall be called 
 alphabetically; and each Senator shall, without debate, declare his assent or 
 dissent to the question, unless excused by the Senate. 
 
 Mr. HOPKINS. I ask that the Secretary call the names of the Senators 
 present who have not answered, so as to give them an opportunity to 
 answer. 
 
THE SENATE 167 
 
 The VICE-PRESIDENT. The Secretary will call the names of those 
 Senators who have not voted. 
 
 The Secretary called the name of Messrs. Allison, Bacon, Bailey, 
 Bankhead, Beveridge, Borah, Bourne, Bulkeley, Burnham, Clarke of 
 Arkansas, Clay 
 
 Mr. CLAY (when his name was called). "Here." I have already an- 
 nounced my pair with the senior Senator from Massachusetts [Mr. 
 Lodge]. 
 
 Mr. HOPKINS. The Senator votes "present." 
 
 The Secretary called the names of Messrs. Crane, Culberson 
 
 Mr. HOPKINS. I observe the Senator from Texas [Mr. Culberson] is 
 present, and I should like to have a record of that fact made. The 
 Senator from Texas is present in the Chamber. 
 
 Mr. GALLINGER. You would prefer to have him vote, would you not? 
 
 The VICE-PRESIDENT. For the information of the Senate, the Chair 
 will read section 2 of Rule XII. It is as follows : 
 
 2. When a Senator declines to vote on call of his name, he shall be required to 
 assign his reasons therefor, and having assigned them, the Presiding Officer 
 shall submit the question to the Senate: "Shall the Senator, for the reasons 
 assigned by him, be excused from voting?" which shall be decided without 
 debate; and these proceedings shall be had after the roll call and before the 
 result is announced ; and any further proceedings in reference thereto shall be 
 after such announcement. 
 
 The Secretary will continue to call the roll of absent Senators. 
 
 [The Secretary called 'the remaining names. . . . ] 
 
 The VICE-PRESIDENT. Thirty-five Senators have voted in the affirma- 
 tive and eight in the negative. There is a quorum present, the roll call 
 having disclosed that fact. 
 
 ******** 
 
 Mr. LA FOLLETTE. What I said was, that I had seen it announced in 
 the morning papers that the leaders were going to permit us to enact a 
 Government employees' liability bill; and when I said "leaders" I 
 looked at the Senator from Indiana, and he nodded his head [laughter] ; 
 and I thought he had been informed. 
 
 Mr. BEVERIDGE. Mr. President 
 
 Mr. LA FOLLETTE. Wait just one moment. Mr. President, I thought 
 probably the Senator had been encouraged by the gentlemen who have 
 been opposing his strenuous efforts to get this legislation. I refer to the 
 older leadership of the Senate, who have by calling for the reading of the 
 Journal, prevented his getting the floor to urge this legislation. He started 
 early enough, so that he should, with a fair chance, have gotten through a 
 good proposition which he announced that he would offer as a substitute 
 for this makeshift bill. 
 
 But we have had the reading of the Journal, as well as the reading of 
 
1 68 AMERICAN FEDERAL GOVERNMENT 
 
 messages that came over from the House. In this way a good deal of 
 time has been used here to prevent action upon this Government em- 
 ployees' bill, which was being urged by the Senator from Indiana. 
 
 I do hope that the leaders have decided to let us have that legislation. 
 That is the only way we can get it ; at least that was the way the morning 
 papers presented it. I am not very experienced here ; I have not been in 
 this body very long ; but it has rather seemed to me that, some way or 
 other, unless it met the approval of a very limited number of men in this 
 body, whatever a Senator introduced was referred to some committee 
 and pigeonholed. In that way, I suppose, it falls within the power of a 
 very limited number of men, who are the leaders, to be in control of legis- 
 lation. It has rather seemed to me, Mr. President, that this was not 
 exactly the sort of government that our fathers planned for us. It has 
 always been my idea it was before I came down here, you know 
 that the States were represented here; that there was an equality of 
 representation; that the Senator from Missouri and the Senator from 
 Rhode Island were on a plane of equality with respect to legislation. I 
 had had only a limited service over in the House. It was not then just as 
 it is now, and all the while I have labored under a sort of impression 
 that if any Senator came here with an absolutely good proposition; if 
 he stuck to it and was loyal to it and hammered away at it, it would get 
 consideration just the same as if it was introduced by somebody else. 
 But a couple of years here brings me quite a bit of enlightenment on that 
 subject. 
 
 I attended a caucus at the beginning of this Congress. I happened to 
 look at my watch when we went into that caucus. We were in session 
 three minutes and a half. Do you know what happened? Well, I will 
 tell you. A motion was made that somebody preside. Then a motion 
 was made that whoever presided should appoint a committee on com- 
 mittees; and a motion was then made that we adjourn. [Laughter.] 
 Nobody said anything but the Senator who made the motion. Then and 
 there the fate of all the legislation of this session was decided. 
 
 The Senator from Indiana [Mr. Beveridge], in an able speech which he 
 made in advocacy of the creation of a tariff commission here, turned a 
 little light upon the legislative methods of this body. In speaking of the 
 impossibility of the Finance Committee taking up the great tariff question 
 and giving to it the study necessary to make a thorough investigation upon 
 scientific and economic lines, establishing a just basis for a tariff, one 
 under which the business interests of the country can thrive and rest in 
 security, one which will be stable, one which will be unassailable, one 
 which will be honest to the manufacturers and honest as well to the con- 
 sumers, the Senator pointed out the facts and called attention to the 
 number of places that the members of the Committee on Finance had 
 upon the other important committees of this body and to the tax which 
 that made upon their time and upon their service. It was unanswerable ; 
 
THE SENATE 169 
 
 but it was more than that. I want to carry the thing a step further than 
 the Senator from Indiana did. He cited the fact and applied it to this 
 particular piece of legislation ; 'but, Mr. President, if you will scan the 
 committees of this Senate, you will find that a little handful of men are in 
 domination and control of the great legislative committees of this body 
 and that they are a very limited number. 
 
 I have heard this talk about seniority and all the like explanations, but 
 I want to tell you, Senators, that this is a representative Government. 
 California and Wisconsin and Maine are entitled to equal representa- 
 tion here; and the hour will come when this system which you have 
 inaugurated to lodge the power of legislation in the hands of a dozen men 
 in this body can no longer be maintained ; and it ought not to be main- 
 tained. It is not democratic; it is not republican; it is not right. It 
 places upon those members burdens which they are unable to carry, if 
 they take proper care of the great interests committed to those committees. 
 If that be not so, then you may as well dispense with two-thirds, practi- 
 cally, of the membership of this body. 
 
 ******** 
 
 Mr. GORE. Now, Mr. President, I submit that gentlemen on the 
 other side have not only changed their convictions with reference to this 
 measure, but they are, as I understand, changing, if not the rules, at 
 least the practices and customs of this body. A suggestion was made 
 during the early hours of the morning that there was no quorum present. 
 That suggestion was overruled or held out of order. An appeal was 
 taken to the Senate, and the Chair was sustained. When I reported 
 here this morning, not altogether upon my own motion, a different Sena- 
 tor, to my surprise, I may say, was holding the floor and entertaining 
 the Senate. In the meantime this action had been taken and this business 
 transacted by the Senate an order, sir, that when this measure shall 
 be voted upon it shall be by the yeas and nays. 
 
 During the speech of the Senator from Missouri [Mr. Stone] I made 
 the suggestion of no quorum. That suggestion was held to be out of 
 order on the ground that no intervening business had transpired. 
 Then, sir, I appealed from the decision of the Chair, and the dis- 
 tinguished Senator from Rhode Island [Mr. Aldrich], with an ingenuity 
 that added luster to his renown, interposed with the statement that a 
 suggestion that was out of order could not be appealed from. 
 
 Mr. President, I am a new man in the Senate, but I shall have to 
 change my decision if I ever appeal from a suggestion or from a rul- 
 ing of the Chair that is made in my favor. It will be only those rulings 
 which are adverse to my views and my convictions that I shall chal- 
 lenge, and that was the reason why I appealed from the decision of the 
 Chair. 
 
 I make these observations in order to show, Mr. President, the revolu- 
 tionary methods which are being employed to aid in the passage of this 
 
170 AMERICAN FEDERAL GOVERNMENT 
 
 measure through the Senate. The majority of the Senate have changed 
 not only their convictions, but changed the practices of a century, sir. 
 
 It has been the pride of the American Senate, and I may say of the 
 American people, that there was at least one forum where free discussion 
 forever prevailed. The Senate may not always have stood as high in the 
 esteem of the public as it deserved to stand, and modesty forbids me to 
 say that since my accession to the body its reputation ought to be en- 
 hanced in public favor, but, sir, it has been the pride of the American 
 people that free discussion prevailed in the United States Senate. There 
 was one forum where the truth could be elicited, where the merits and 
 demerits of every measure could be discussed and illuminated without 
 limitation or without hindrance, and I hope the day will never come 
 when that tradition and that precedent shall be permanently abandoned. 
 
 I do not know what irresistible power is impelling the passage of this 
 measure that Senators should resort to what seem to be such revolu- 
 tionary tactics. It strikes me perhaps born of inexperience and 
 perhaps born of fear that this proceeding is but the shadow of another 
 scepter. I trust the time will never come when a measure can be passed 
 through this Senate a financial measure, a tariff measure, or any other 
 measure of public concern with a limitation of debate to one hour, 
 to two hours, or even to three hours upon the side. I hope if that time 
 ever comes there will be another branch of this Government, impelled 
 by a regard for the Constitution, which will say that no measure can pass 
 that body, which did not pass- this body under constitutional methods and 
 practices. 
 
 To illustrate, if a public buildings bill were pending in the Senate and 
 a currency measure were pending in the House, I should never be will- 
 ing for the Senate to insist that unless the currency measure passed the 
 House the public buildings measure would be murdered in the Senate. 
 I hope it will never come to that pass, and I am sorry that the parlia- 
 mentary regulations forbid me to speak with even greater plainness. 
 
 I desire to ask the parliamentary status of the conference report. As 
 I understand, no amendment can be offered to the pending report ; not 
 one letter can be stricken out or added to it ; it must be accepted as a 
 whole or it must be rejected as a whole. Am I correct? 
 
 The VICE-PRESIDENT. The Senator from Oklahoma is correct. The 
 only question is on agreeing to the report of the committee of conference. 
 
 Mr. GORE. I desired an explicit ruling on that point in order that the 
 American people who are not experts in parliamentary law and usage 
 might understand why the minority party did not offer salutary amend- 
 ments to the pending report. 
 
 ******** 
 
 Mr. BACON. I was endeavoring to state that several things had 
 occurred during the progress of the debate upon this question which I 
 am unwilling should pass by as having met with general recognition, 
 
THE SENATE 171 
 
 through acquiescence, by the Senate, because of the fact that in the 
 Senate a precedent is a matter of gravity and importance, and occasions 
 may arise hereafter where these questions may be of very much more 
 vital importance than they have been while the pending question has been 
 under discussion. 
 
 Of course, Mr. President, I recognize the fact that, in the heat of con- 
 troversy, Senators, as well as others, will do and say things which will 
 be conducive to the particular end which they then have in view, which, 
 from a more conservative standpoint and under other circumstances 
 they would neither say nor approve. 
 
 One precedent was made last night to which I wish to enter my dissent. 
 That precedent was made by a vote of the Senate. It was to the effect 
 that after a roll call had been had upon the suggestion of the want of a 
 quorum, and after the roll call had disclosed the presence of a quorum, it 
 was out of order, when nothing else had transpired but debate, to again 
 suggest the absence of a quorum and again having a roll call for the pur- 
 pose of determining whether or not a quorum was present. In other 
 words, the Senate determined, by a vote, that a continuance of debate 
 after a roll call did not amount to the intervention of other business, and 
 that no business having intervened debate not being recognized as 
 business regardless of the time which had elapsed, or regardless of 
 the fact that there were, perhaps, only ten Senators present, there could 
 be no suggestion of the absence of a quorum, and that the Senate must 
 proceed with the ascertained fact that there had been a quorum, and 
 without power to inquire whether or not there was then a quorum. 
 
 Mr. President, I did not vote upon that question when it was submitted 
 to the Senate for this simple reason: The Senator from Rhode Island 
 [Mr. Aldrich] had read what he alleged was a precedent in that matter, 
 and had read from the Congressional Record a ruling which had been 
 made by the Chair on March 3, 1897, which the Senator from Rhode 
 Island contended established that proposition. It so happened, although 
 the fact was not known, I think, to the Senator from Rhode Island at 
 the time that he cited the precedent, that I was the Senator temporarily 
 occupying the chair on the 3d of March, 1897, who made the ruling which 
 was cited by the Senator from Rhode Island last night. I was unwilling 
 to cast a vote last night which might appear to be in antagonism to that 
 ruling, as there would then be no opportunity for me to show that the 
 vote thus cast would not have been in contravention of that ruling made 
 by myself when in the chair. 
 
 I recollect the incident well out of which the ruling grew. It occurred 
 during a night session, and the then senior Senator from Pennsylvania, 
 Mr. Quay, was the Senator who demanded the roll call upon the sug- 
 gestion of the lack of a quorum. He had previously demanded several 
 such roll calls. The point had been made between the two previous 
 successive roll calls that no business had intervened and that therefore 
 
172 AMERICAN FEDERAL GOVERNMENT 
 
 the second roll call was not in order. The Chair ruled that business had 
 intervened, from the fact that in the interval the bill then under considera- 
 tion had been reported from the Committee of the Whole to the Senate. 
 Immediately after that roll call, which was then authorized by the deci- 
 sion of the Chair, the Senator from Pennsylvania, without waiting for any 
 debate or any other action on the part of the Senate, immediately again 
 suggested the absence of a quorum. That matter was taken up at once 
 by the then senior Senator from Massachusetts, Mr. Hoar, and by the 
 then Senator from New York, Mr. Hill, and the question was finally 
 reduced to this point whether or not business had intervened. 
 
 The Chair ruled that business had not intervened, and that therefore 
 the second roll call was not in order. There had been no debate after the 
 roll call, and there was no suggestion that debate was not the intervention 
 of business. There was no question raised that the debate following a 
 roll call did not constitute business which had intervened after the roll 
 call. There was no question whether debate did or did not constitute 
 business. 
 
 The question last night was whether debate constituted business. 
 There confessedly had been debate last night after the roll call, and the 
 question decided by the Senate last night was that the occurrence of 
 debate did not constitute business. 
 
 Mr. President, I deemed it due to myself to state why I did not vote on 
 the question, because I do not avoid any vote that comes along; but I 
 wished to call the attention of the Senate to the fact that the precedent 
 cited last night by the Senator from Rhode Island was not a controlling 
 precedent upon the question raised by him, because in one case there 
 was no question whether debate constituted business, and in the case 
 last night the sole question was whether debate constituted business. 
 
 I desired, Mr. President, to say this much, because I was unwilling 
 that what occurred last night should pass as an unchallenged precedent. 
 I regard it as a revolutionary precedent, and, if so considered by the 
 Senate, I am willing for it to pass as one adopted under the heat of contest 
 for the purpose of effecting a particular end ; but it will be a most griev- 
 ous mistake, in my opinion, if that rule should be adopted as the rule or 
 precedent to hereafter govern the action of the Senate. In fact, frequently 
 here, in cases of protracted contests, for days and days there is nothing 
 practically but debate. It is true we have the morning hour, and some 
 measures may be considered ; but so far as the main body of the work of 
 the Senate during the whole day is concerned, frequently there is nothing 
 but debate. To say that it having once been disclosed that there is a 
 quorum there can be thereafter no challenge of the question as to whether 
 or not there is a quorum, it seems to me, must be a very grave mistake. 
 
THE SENATE 173 
 
 THE COMMITTEE WORK OF SENATORS 1 
 
 [Senator Hoar in his autobiography remarks that the Committee on Claims 
 alone required of him more individual work than is performed in a year by any 
 judge of a state court, and the amounts dealt with were greater than those 
 involved in the annual litigation before any state supreme court. Though state 
 judges may dissent from this estimate, at any rate it indicates the impression 
 which the drudgery of committee work made upon Mr. Hoar. The nature of 
 this work is illustrated by the following extracts.] 
 
 MR. BAILEY. Mr. President, of course the labor to be performed by 
 the Senator himself and therefore the labor to be performed by the clerk 
 or his assistant grows greater every year. The Government is touching 
 the people at so many new places, I regret to say, that the correspondence 
 of a Senator to-day is perhaps five times what it was in the days to 
 which the Senator from Maine refers. 
 
 The truth of it is the correspondence of a Senator has become the 
 burden of a Senator's life, and the task of writing thirty or forty and 
 sometimes fifty letters is an almost daily one with us. Writing those 
 letters for a thousand years would not add a cubit to a man's intellectual 
 stature. It is purely a burden, but it is one which must be performed. 
 When a Senator's constituent writes him on any subject, that constituent 
 is entitled to a prompt and a respectful answer, and if the Senator does 
 not allow the constituent to hear from him the Senator is very apt to 
 hear from the constituent at the proper time; and I share the resent- 
 ment which a constituent feels toward a Senator who ignores his 
 communication. 
 
 This correspondence, growing from year to year, has become such a 
 great burden that it would be utterly impossible for a Senator to perform 
 his duties without clerical assistance. As for my part I am willing to 
 give all that is necessary, but I am not willing to spend one dollar of 
 public money to provide patronage for anybody. If the work of a Sena- 
 tor's committee or the work of a Senator requires three, let him have 
 them. But I will not vote one dollar of public money merely to provide 
 somebody a place. Patronage is not a very wholesome thing for a Senator 
 to cultivate, and certainly it is not a very wholesome thing for the Senate 
 to provide places merely that Senators may fill them. 
 
 But, Mr. President, that was not the purpose for which I rose. I rose 
 to protest against the inequality which offends against the rule of justice. 
 Either some clerks are paid too much or other clerks are paid too little. 
 My own opinion is that some clerks are paid too much. But if Senators 
 do not agree with me in that, they must agree with me that men who 
 perform the same services should receive the same pay. 
 
 1 Congr. Record, January 4, 1906. 
 
174 AMERICAN FEDERAL GOVERNMENT 
 
 I beg to say that I do not mean this in the nature of a complaint 
 against the Senator from New Jersey or the committee over which he 
 presides ; I do not mean it as a complaint against any committee or as 
 against the Senate, because I recognize that it has grown up from time 
 to time, as suggested by the Senator from Maine [Mr. Hale], but I do 
 insist that it is an inequality which ought to be corrected. 
 
 Mr. DANIEL. Mr. President, I am not one of those Senators who are 
 suffering from any incumbrance of patronage, but every Senator has to 
 deal with a great many people who have very mistaken notions as to his 
 power to exercise patronage. I do not think that any Senator here, on 
 either side of the House, wishes to increase the clerical force of the 
 Senate with any view to patronage. It is purely a matter of public 
 business and the prompt despatch thereof. 
 
 I observe in a detailed statement of the clerical and other committee 
 force now employed and paid out of the contingent fund of the Senate 
 that a great many committees have three or four employees, some of 
 them perhaps more. Amongst the committees that have three or more 
 I will enumerate the following: First, the Committee on Printing 
 Records. I do not see the name of a Committee on Printing Records in 
 the list of committees, and I did not know there was one. I presume it 
 refers to the Joint Committee on Printing. Probably it may be other- 
 wise named in this statement. The Committee on Appropriations has 
 four; the Committee on Finance four; the Committee on Claims four; 
 the Committee on Commerce three; the Committee on Pensions five; 
 the Committee on the Judiciary three; the Committee on Military 
 Affairs four; the Committee on Post-Offices and Post-Roads four; the 
 Committee on the District of Columbia three ; the Committee on Foreign 
 Relations three ; the Committee on Agriculture and Forestry three ; the 
 Committee on Territories three ; the Committee on Interstate Commerce 
 three ; the Committee on Privileges and Elections three ; the Committee 
 on Pacific Islands and Porto Rico three; the Committee on the Philip- 
 pines three ; the Committee on Immigration three. 
 
 Mr. President, I am chairman of a very modest committee and which 
 has a very modest establishment in what is sometimes called the ''cata- 
 combs." I have no right to complain in any respect. It is the best the 
 situation admits of. In addition to that, those committees which have as 
 many as three employees having already been stated, there was a motion 
 to give the Committee on National Banks a messenger. The Committee 
 on National Banks is not one of the great committees of the Senate, 
 like Appropriations or Finance, and it seemed that if we were going to 
 give a messenger to a committee which had a single topic of treatment, 
 and that a minor one as compared to the great and constant affairs of 
 Government, other committees of like order ought to have them. 
 
 Now, in respect to committee chairmanships held by minority members, 
 this observation seems appropriate : Few of those committees have much 
 
THE SENATE 175 
 
 business. For the most part they have little or no business. The com- 
 mittee of which I am chairman has at present no business of general 
 public concern. The committee rooms are used by the Senators as 
 offices, especially the small committees. They are indispensable to the 
 conduct of their public business. The committees vary as to their busi- 
 ness. A particular incident happens in our Government by which a 
 committee is overwhelmed for the time being with business and then, 
 after a freshet, again there is a drought. You can not in the nature of 
 things tell when a particular committee is going to have much business. 
 Our Committee on Privileges and Elections, for instance, has had very 
 heavy business and many hearings for a year or two. The time will soon 
 come perhaps when they will not have a case or any matter of importance 
 referred to them. We can not measure the necessities of a committee 
 by the particular business which may be upon them at a particular 
 moment. 
 
 I had presumed, and I believe such is the case, that the minority 
 Senators were allowed this service because of their multifarious con- 
 nections with the Government, rather than in the view that they would 
 need these appurtenances and this aid for mere committee work. 
 
 Mr. President, I am told by the chairman of the committee which 
 reported this resolution, and doubtless it is true, that in addition to these 
 employees who are paid out of the contingent fund of the Senate the 
 Senators who at this time represent the majority of the Senate have 
 numerous other employees who assist in their work. There is no im- 
 propriety whatsoever in that if it is indispensable or appropriate to their 
 efficient work. 
 
 The view I have of this question is simply this : It is to the interest of 
 the Senate as a body that every Senator should be sustained by such 
 appropriate help as is desirable for his efficient discharge of his Senatorial 
 duties. A day may come at any time when his committee will have a 
 good deal of work, although at that particular day it has none. Whether 
 that day comes or not, his office in the Capitol, or as near thereto as 
 accommodations will permit, has to be attended by his clerical force and 
 by those who are ready to wait upon him and to help him in the execution 
 of his office. 
 
 The Senate, Mr. President, like every other department of our Govern- 
 ment, is congested. Our Calendars are congested with bills. There is 
 not a bureau of the Government that is not congested. We must remem- 
 ber that we have added an empire to this Republic, call it by whatever 
 name you will ; and I am not adverting to it for the purpose of the slight- 
 est censorious observation. We have to take things as we find them. 
 But the truth is that the American Republic at home is a republic, and 
 the truth is also that from the far Orient to out in the Atlantic it is an 
 empire. The men who are elected here as Senators of the United States 
 are the legislators of a great empire, as well as of a republic, whether they 
 
176 AMERICAN FEDERAL GOVERNMENT 
 
 will or no. That has come about in the destiny of this nation, and I am 
 not discussing it at all save to call attention to the fact. We had brought 
 up before the Senate this morning railroads in the Philippine Islands, 
 7, oop miles from where we are. What Senator knows anything about 
 the subject, and how is he to inform himself ? In order to the efficient 
 discharge of the Senatorial duty here, the Senator ought to be sustained 
 and have every employee in his service who is necessary or desirable to 
 write his correspondence, to visit the Departments, and to meet those 
 who wish to see him on public business. 
 
 ******** 
 
 Mr. GALLINGER. Mr. President, a single word. 
 
 The first two years I had service in this body I had the honor of being 
 chairman of the Committee on Transportation Routes to the Seaboard, 
 a committee that did not hold a meeting during those two years and has 
 not held a meeting since. The committee had a clerk, I think at $1,500, 
 and we got along very comfortably. I was promoted from that position 
 to that of chairman of the Committee on Pensions, and I" need not more 
 than suggest to the Senate that more service was required there of a 
 clerical nature than was required for the committee I had formerly 
 served as chairman. From that committee I was either promoted or 
 demoted, I do not know which, to the chairmanship of the Committee 
 on the District of Columbia. That committee is trying to legislate for 
 about 300,000 people who are denied the right of suffrage, and I think 
 it is safe to say that at least 200,000 of them are constitutional kickers. 
 We have a procession in that committee room constantly. We have to 
 deal with sewers, with lamp-posts, with electric lights, street railways, 
 steam railways, telephones, telegraphs, gas, and almost every other con- 
 ceivable subject. That committee has one clerk, an assistant clerk, and 
 a messenger. It ought really to have more clerical assistance, but we 
 manage by hard work to get along. 
 
 The proposition embodied in the resolution which was adopted a few 
 days ago, and which I did not understand fully, was -to give the Com- 
 mittee on Woman Suffrage, as an illustration, the Committee on Ventila- 
 tion and Acoustics, the Committee on Standards, Weights, and Measures, 
 the Committee on National Banks, and the Committee to Investigate 
 Trespassers upon Indian Lands 
 
 Mr. KEAN. The Committee on Ventilation and Acoustics no longer 
 exists. 
 
 Mr. GALLINGER. The Senator from New Jersey says the Committee 
 on Ventilation and ^Acoustics no longer exists. If necessary, it will be 
 revived. The proposition was to give those committees two clerks and a 
 messenger, precisely the number that the Committee on the District of 
 Columbia has. 
 
 Now, Mr. President, it would not be fair to have an adjustment of 
 that kind made, and I submit to the Senate, without desiring to make any 
 
THE SENATE 
 
 177 
 
 further suggestion about my own committee, that if each of these minor 
 committees gets a clerk and an assistant clerk, or a clerk and a messenger 
 it will be a very liberal disposition, and we ought all to be satisfied with it. 
 I am very glad to know that the Senator from Idaho, after thinking the 
 matter over, has concluded that it is a proper thing for us to adopt the 
 resolution as amended. 
 
 Mr. BACON. Mr. President, I desire to say simply one word in order 
 that what has just been said by the Senator from New Hampshire may 
 not be misunderstood, either here or by the public in regard to the clerks 
 of committees that do no work. 
 
 We all know the fact that there are committees, some of which have 
 been mentioned by him, which are merely nominal committees. But it 
 is a mistake, Mr. President, to have the impression that the clerk of that 
 committee has no duty to perform by reason of the fact that the com- 
 mittee itself does no work. The fact is that every Senator, whether he is 
 chairman of a committee or not, has a secretary, and when a Senator is 
 chairman of a committee he has not a secretary in addition to the clerk 
 of the committee. His own secretary becomes ex officio clerk of that 
 committee, or, vice versa, the clerk of that committee is ex omcio his 
 clerk or secretary. 
 
 So, when it is said that the clerk of the committee is the officer of a 
 committee which is never called together, it will certainly produce a very 
 wrong impression if it is understood from that that the clerk of that 
 committee has absolutely no duties to perform. He has just the same 
 duties that the clerk or secretary of every other Senator has in the per- 
 formance of the clerical duty required by that Senator, and the only 
 effect of being the clerk of one of these nominal committees is that he 
 gets a little more salary than he would get if he were not named as the 
 clerk of a committee. He is in fact in such a case but the private secre- 
 tary of the Senator and in no manner differs from any other private 
 secretary of a Senator except in the fact that he gets an additional amount 
 of salary. 
 
 The Senator from Florida [Mr. Mallory] asks me about the assistant 
 clerk. It is true also in that case that the clerk of a committee, who is 
 ex officio the clerk or secretary of a Senator, and the assistant clerk are 
 both of them in such cases simply employed in the work of the Senator. 
 
 I may speak for myself as the chairman of one of the so-called nominal 
 committees (Woman Suffrage), having only occasionally some very 
 interesting audiences from a very interesting and charming portion of the 
 public. Outside of that particular duty which devolves upon the clerk of 
 the committee and the assistant, who is detailed from the Sergeant-at- 
 Arms' office, the official work which those two officers have to do, in 
 addition to the committee work, is more than can be reasonably required 
 of them without other clerical assistance. As stated by the Senator from 
 Idaho ever since I have been a member of this body, with rare exceptions, 
 
 12 
 
178 AMERICAN FEDERAL GOVERNMENT 
 
 it has been necessary for me to have additional clerical force to that which 
 is supplied to me by the Senate. To all, except those of us who have had 
 experience in this matter, it is difficult to realize the vast amount of office 
 clerical work and departmental work devolving upon even those of us 
 who belong to the minority, and how utterly impossible it is for any one 
 man as the clerk of a Senator to do the clerical work of that Senator. 
 Two are required for every Senator, and I believe for an average of the 
 Senators more than two are necessary to properly discharge the duties. 
 
 A Senator represents the constituency of a whole State. My State, 
 Mr. President, is not the largest by any means. It occupies about the 
 same relation to the other States now that it did when the. Government 
 was formed. It is about the thirteenth State. It was one of the original 
 thirteen and the smallest of the original thirteen in population, unless 
 Delaware or Rhode Island. I do not know what their population was at 
 that time. It was the youngest of the colonies. My State at the time of 
 the adoption of the Constitution was the youngest colony which became a 
 State. It was the thirteenth in its relation to the other States. It is still 
 about the thirteenth. 
 
 Yet, Mr. President, there are in Georgia two million and a half of 
 people and it is the usual thing when a man in my State has any business 
 of particular importance in Washington about which he writes to his 
 Representative that he also writes to one of the Senators and most 
 frequently to both of them. This involves not only the correspondence, 
 but the work to which that correspondence relates. I presume the same 
 is true of all other Senators. 
 
 Now, Mr. President, considering for a moment Georgia as an average, 
 if you please, what must be the immense mass of business which devolves 
 upon a Senator, even if you confine it to the routine business, with a vast 
 constituency behind it, with even a fraction of i per cent of them having 
 something to attend to in Washington? 
 
 Mr. President, I do not think it becomes this Government (and I 
 know I speak not only my sentiment but the sentiment of the public at 
 large) that one of its officials shall be required to go down into his own 
 pocket to pay for the clerical help which should be paid for by the 
 Government. 
 
 I do not know what the status of this resolution is. I unfortunately 
 reached the city on a delayed train and was not here when the discussion 
 opened. I do not propose in anything I say to impede the course of such 
 procedure as those who have been here all the time and have participated 
 from the beginning in this debate see proper or best to be done. But I 
 thought it was proper that I should say this in connection with what had 
 been said by the Senator from New Hampshire, and also, in addition, to 
 say what I have said in justification of what may seem from this debate, 
 or from certain things which others have said in this debate, to be extrav- 
 agance on the part of the Senate in the provision it makes for the 
 clerical force assisting a Senator in the discharge of his labors. 
 
THE SENATE 179 
 
 SENATE SECRET SESSIONS 1 
 
 DEAR old Senator Morgan's "well simulated fury" over the breaking 
 of the inviolability which is supposed to guard the secret sessions of the 
 Senate has been the one gay patch in the inconclusive ending of a drab 
 winter. It is to be suspected that Mr. Morgan gladly availed himself 
 of the report of his San Domingo plot, as published, to introduce in the 
 Senate in open session and give the widest publicity to his resolution 
 instructing the Foreign Relations Committee to examine into all of our 
 recent relations with San Domingo, including the preliminary corres- 
 pondence leading to the present comatose protocol. 
 
 Whatever the fathers may have intended, the executive sessions of the 
 Senate have come to be mere farces. They are always reported, and even 
 more fully than the open debates. No senator would think of taking the 
 floor in a closed session and saying things that he did not care to have 
 printed broadcast, or that he would not say with the doors of the Senate 
 chamber open and the galleries filled. 
 
 Had Senator Morgan that "easy grasp of the obvious," which an 
 English journal has credited to President Roosevelt and Emperor 
 William, he would not wonder how the reports of the secret proceedings 
 of the Senate were secured. They are not obtained from Senator Morgan 
 or any of the "old line " senators. Nor were they to be had from Senators 
 Hoar, Cockrell, or Benjamin Harrison. Mr. Morgan. retains the "high 
 manner" of the old days. His account of how he repelled an unsophis- 
 ticated correspondent who came to him for information is in his best 
 style : 
 
 " Yesterday I was kept on the floor for a long time, as senators remem- 
 ber, by a current discussion of matters, a mere current discussion among 
 senators, and I was prevented by that from really completing the speech 
 I intended to make. I had not left my desk, I had not more than taken 
 my seat, when a person who is accustomed to being about the lobbies of 
 the Capitol here, a reporter, rushed up to my desk and asked me to give 
 him a statement about the great imbroglio that had been sprung, 
 or something of that sort. I said to him, 'Sir, you have no right to 
 ask me a word about what 'occurred in the Senate. You will get no 
 information from me.' I repelled his advance. That ought to have 
 sufficed. A man who will then do that to a senator ought to be ex- 
 pelled from that gallery, and never permitted to take a seat there again, 
 and his paper ought not to be permitted to be represented in that 
 gallery." 
 
 1 The above article, a special correspondence of the New York Evening Post, 
 March 18, 1905, gives an interesting account, of course by an outsider, of Senate secret 
 sessions in which executive matters, i. e., treaties and appointments are discussed. 
 
i8o AMERICAN FEDERAL GOVERNMENT 
 
 AN INCIDENT OF 1871 
 
 The Alabama senator softened the force of his blow by his declaration 
 that he was not ''in the slightest degree interrupted, or offended, or 
 distraught" by anything that had been printed. Few senators are. His 
 plaint did not have even the slight merit of novelty. Just thirty-four ? 
 years ago a colloquy took place on the floor of the Senate that, with a 
 mere change of names, might almost have served as a report of yester- 
 day's proceedings. It came about this way : 
 
 The Senate was called in extra session in May, 1871, to ratify the 
 so-called "Washington treaty" between this country and Great Britain. 
 While the treaty was still under consideration correspondents of a New 
 York newspaper secured a copy and printed it. The disclosure made a 
 great furore. A special committee was appointed to investigate, the 
 correspondents were arrested and imprisoned, and many senators and 
 Senate employees were questioned. How the correspondents got the 
 treaty was not learned. When they were brought to the bar of the Senate 
 a long debate ensued in which all the leaders in the chamber took part. 
 It was in the course of that discussion that Senator Chandler of Michigan 
 said: 
 
 "It is well known that for years there has been scarcely an utterance on 
 this floor that has not been reported the next day in the New York news- 
 papers. It is utterly impossible for these gentlemen to be in a position 
 where they can hear the debates, and yet with wonderful accuracy those 
 debates have been spread upon the pages of newspapers the next morning. 
 There must be a culprit in this body, and I hope this committee will con- 
 tinue its investigations until the culprit is found out and brought to con- 
 dign punishment, I care not who he is. Let the culprit be expelled from 
 this body, for he has no business here." 
 
 Senator Wilson of Massachusetts accused Chandler himself of telling 
 things to the correspondents. Chandler jumped to his feet and cried 
 hotly, "I deny it." 
 
 Then Mr. Wilson said: "The senator denies it. I know it to be true. 
 I know it to have been so over and over again. I will explain what I 
 mean. I have been here over sixteen years. The proceedings of this 
 body in executive session have found their way into the press all this time. 
 It was so before I came here. These accounts published of executive 
 sessions have been more or less accurate. How did they get into the news- 
 papers ? The leading papers of the country employ gentlemen to come 
 here and obtain news. They are men of capacity, of character. They are 
 men who know the proceedings of this Government as well as we here in 
 the Senate know them. They understand what the Executive is doing; 
 what the departments are doing. They know something of the history 
 of the country. Their business is to get the news, even ahead of time, 
 and let the people know what is to happen. 
 
THE SENATE 181 
 
 "How do they get it? We are here doing business. Various things 
 come up here in executive session, nominations, treaties, debates, talks. 
 Does it all end here? The senator from Michigan knows it does not. 
 He knows that in the presence of other parties, he and all senators talk 
 about what is said and done. They do so in their rooms, in this chamber, 
 in their committee rooms, in the street, and especially in the F Street cars. 
 Every senator knows this is true. It is no use for us to assume this virtue 
 here and pretend to be what we are not. The truth is we have talked too 
 much. We have all done our full share of giving information, and the 
 man who protests the most that he has not done it has probably done 
 more than any other member." 
 
 Whereupon, adds the unimaginative chronicler in the Congressional 
 Globe, the senators burst into laughter, recognizing the truth of the picture 
 the Massachusetts senator had drawn. His words are as true to-day as 
 they were in 1871. As showing how the temper of the Senate has changed 
 towards these disclosures of its mysteries, the excitement caused by the 
 premature publication of the "Washington Treaty" and the publication 
 of the San Domingo protocol in the Evening Post last week may be fairly 
 contrasted. Thirty years ago it was a great piece of enterprise to print a 
 treaty while it was being considered in secret session; to-day it might 
 almost be considered a part of a correspondent's routine duty from the 
 calm way in which it is received. 
 
 THE EXPULSION OF SECRETARY YOUNG 
 
 In the debate following Mr. Morgan's anachronistic plea for protection, 
 Mr. Teller declared that the Senate would never be able to stop these 
 publications, and referred to the expulsion of an executive secretary for 
 divulging what went on behind the closed doors of the Senate Chamber. 
 He had in mind James Rankin Young of Philadelphia, a brother of John 
 Russell Young, formerly Librarian of Congress. Mr. Young, as executive 
 clerk of the Senate, for many years attended the secret sessions and kept 
 the record of the proceedings. A committee of the Senate was appointed 
 in 1892, with the late Joseph Dolph of Oregon as chairman, to determine 
 the responsibility for the leakage of secrets. This body, popularly known 
 as the " smelling committee," examined many newspaper men and learned 
 nothing, but decided that somebody must be guilty, and the Senate ex- 
 pelled Mr. Young. 
 
 He was generally regarded as innocent ; in fact, those whose business 
 it was to find out for the newspapers what the Senate did in secret session 
 knew that he was. Mr. Young went back to Philadelphia, and before 
 long was elected to Congress. He is now superintendent of the dead 
 letter office. 
 
182 AMERICAN FEDERAL GOVERNMENT 
 
 SENATOR HOAR'S INDIGNATION 
 
 The late Senator Hoar, like Mr. Morgan, was a great stickler for the 
 traditions of the Senate, and carefully observed its rules. He almost ex- 
 ploded with fury one day, and justifiably, when a breezy youth accosted 
 him in a corridor, and ; slapping him on the shoulder familiarly, said: 
 "Say, Senator, what are you old fellows doing in there to-day?" 
 
 " Young man," was the choleric response, "if it befitted my age and 
 the dignity of my position, I should take you by the scruff of the neck, 
 haul you out on those steps, and chastise you as you deserve to be." 
 
 At another time when some of the old senators were restive because of 
 unusually full reports which were being printed on some important 
 matter then under consideration in secret session, Senator Clapp of 
 Minnesota introduced one day, when the doors were closed, a humorous 
 resolution setting forth that, whereas the reports of the executive pro- 
 ceedings of the Senate in the newspapers were not as full as they might 
 .be, and whereas the newspaper men were put to the expense of some 
 time and trouble in securing their information, therefore be it resolved, 
 etc., that in future reporters be invited to attend closed sessions, so that 
 they might get their accounts at first hand. Mr. Hoar took the resolution 
 in all seriousness, and the next day, while Mr. Morgan was indulging in 
 some singularly frank comments on Nicaragua, the senior Massachusetts 
 senator sought out Clapp and said: "Now, Senator, you see the good 
 of executive sessions. If what Morgan is saying was reported, Nicaragua 
 would be ablaze to-day." 
 
 "Well, Senator," was the Westerner's response, "do you think this 
 country would come to any harm if Nicaragua blazed until she became 
 charcoal?" 
 
 One day while the Senate was in secret session a group of correspon- 
 dents were awaiting in the lobby near the marble room for their friends 
 to come out, when Senator Tillman came along. He saw the waiting 
 group and began banteringly : " We are attending to you men now. You 
 will never get any more reports of our secret proceedings. Some of the 
 old fellows in there are giving you Hail Columbia, and they are going to 
 get up a scheme so that you will not be able to find out anything else 
 that we do." 
 
 Presently he was followed by Jones of Arkansas, like Morgan and 
 Hoar a strong defender of senatorial privileges. He thought the time 
 ripe for a jibe, and remarked, "I suppose you gentlemen are fully 
 informed as to what is going on inside?" 
 
 "Yes," said the spokesman of the correspondents, who told him what 
 they had all learned from Tillman, omitting, of course, any reference to 
 the source of his information. Mr. Jones was aghast. He hurried back 
 into the Senate, and quickly secured recognition from the chair. "Mr. 
 
THE SENATE 183 
 
 President," he said, "it's no use. trying to do anything. Things are 
 worse than I suspected. I stepped out of the chamber -a few moments 
 ago, and met a number of correspondents. They know everything that 
 we are doing in here. They know what we are saying, and what we are 
 trying to do. We might as well give up hope of trying to stop them from 
 learning our secrets." 
 
 SENTIMENT FOR ABOLISHING THE CLOSED SESSION 
 
 A growing sentiment to do away with the closed session except in the 
 confirmation of Presidential appointees, is making itself felt among the 
 younger men in the Senate. These secrets are always faithfully kept, or 
 given in confidence to the newspaper men, because they often involve 
 questions touching men's characters and private lives. No real pretence 
 is made of keeping any other Senate business from the public. The effort 
 to have the debates on the Dominican protocol made public was signifi- 
 cant, as showing the changed attitude of the more progressive among the 
 members of the upper chamber. 
 
 SENATORIAL MAIDEN SPEECHES 1 
 
 A TRADITION has grown up about the snubs and sarcasms which await 
 the Senator who addresses the Senate before he has a term or so of un- 
 obtrusive service behind him. We do not hear so much about what 
 such an iconoclast gains. Senatorial dignity was shocked profoundly, no 
 doubt, last Wednesday, when the new Senator from Arkansas took the 
 floor for a long speech on his anti-Trust bill. Yet the impartial Associated 
 Press records that "all of the Senators, both Republicans and Democrats, 
 were in their seats and gave strict attention to his remarks." The speech, 
 to be sure, was balderdash. A Southern auditor is said to have remarked 
 that the new Senator had omitted the only thing he had ever said that 
 was worth while namely, that he was no relation to Jefferson Davis. 
 But it got at least twice as much publicity as if its author had waited till 
 he himself had ceased to be a novelty at Washington. 
 
 Moreover, when one refers in these days to the immemorial tradition 
 that new Senators should be seen and not heard, he must recognize that 
 a notable line of contrary precedents has also been laid down. Davis is 
 not the first Senator, but the fourth, within a little more than ten years, 
 who "refused to wait until his hair had turned gray before taking up his 
 work actively." He was, to be sure, the most impatient, for he held back 
 his eloquence for only nine days after the beginning of his first session, 
 
 1 Editorial from the New York Evening Post, 1907. 
 
184 AMERICAN FEDERAL GOVERNMENT 
 
 whereas Beveridge restrained himself for 36 days, Tillman for 58, and 
 La Follette for 109. In spite of Tillman's reputation for bluntness, it 
 may be recalled that he took more time than any of the others in justify- 
 ing himself for speaking at all before taking up his speech proper. This 
 was the beginning of his "pitchfork" speech: 
 
 I shall make no apology for doing what is my right here, to exercise the 
 functions of a Senator, and discuss the issues presented to the Senate. I know, 
 sir, that custom has made it a rule that new members of this body should listen 
 rather than be heard, and my brief experience and while in the city I have 
 been very attentive upon the sessions of the Senate has shown me that the 
 custom is a wise one, because new men who come in here, especially those who, 
 like myself, have had little, in fact, no, legislative experience, realize very soon 
 that what they do not know about the affairs of this great government is far 
 more than they do know or can hope to learn without much labor. 
 
 Of course, the novelty of a farmer pretending to talk finance, or to under- 
 stand the question, is so great that most of my colleagues are doing me the 
 honor, I believe for the first time this session, to sit here and listen to me. I 
 thank you, gentlemen, that you have not adjourned and gone off. 
 
 Beveridge, as might be expected, did not speak because he wanted to, 
 but only to perform a public service. These were the words of his 
 introduction : 
 
 Mr. President, I address the Senate at this time because Senators and mem 
 bers of the House on both sides have asked that I give to Congress and the 
 country my observations in the Philippines and the Far East, and the con- 
 clusions which those observations compel ; and because of hurtful resolutions 
 introduced and utterances made in the Senate, every word of which will cost, 
 and is costing, the lives of American soldiers. 
 
 La Follette made no exordium at all. He had spoken the equivalent 
 of eight columns in the Congressional Record before he made any allusion 
 to his auditors. Then: 
 
 I pause in my remarks to say this: I cannot be wholly indifferent to the fact 
 that Senators, by their absence at this time, indicate their want of interest in 
 what I may have to say upon this subject. The public is interested. Unless 
 this important question is rightly settled seats now temporarily vacant may be 
 permanently vacated by those who have the right to occupy them at this time. 
 [Applause in the galleries.] 
 
 Different as were and are these four contemners of tradition in other 
 respects, they all could claim credit for having something to say. It is 
 only on men of this type that the Senatorial tradition bears hard. What is 
 the proper course for the man who sincerely believes that he has some- 
 thing to say which needs to be said but which no one else will say if he 
 keeps silence? His dilemma is not new. When Charles Sumner was 
 
THE SENATE 185 
 
 elected to the Senate his constituents and the anti-slavery people of the 
 country generally expected him to make things lively for the slaveholders' 
 ring at Washington. He believed in biding his time, and spoke on land 
 grants, foreign postage, and various routine matters before he so much 
 as mentioned slavery. As Moorfield Storey says in his life of Sumner, 
 "he felt it wise to become familiar with his colleagues and his surround- 
 ings, with the rules and atmosphere of the Senate, and to show that he 
 was not 'a man of one idea' a fanatic at once unreasonable and un- 
 practical." In spite of misconstruction of his silence by both friends and 
 opponents, he waited till May 26, one hundred and seventy-seven days 
 after the opening of the session, before giving notice of a slavery speech, 
 and this he did not actually secure the chance to deliver until the end of 
 August. 
 
 Aside from the activities of men with something special to say, the 
 traditions of the Senate are not and never have been in the slightest danger. 
 The average of new Senators take their places amiably on the back seat. 
 Our own Senator Depew, though accustomed to being bound up with 
 Demosthenes and Patrick Henry, was quite content to make his Sena- 
 torial debut with one of the conventional Sunday eulogies on deceased 
 members. 
 
 Yet we are of the opinion that length of service is counting for rather 
 less than formerly in making up the sum of Senatorial influence. Dis- 
 regarding the orators with outside reputations, first-term men have been 
 pretty prominent in the Senate for some time. Those Senators pro- 
 moted from the House, like Dolliver and Hemenway, Bailey and New- 
 lands, have not had to wait long for a chance to be more than auditors. 
 Crane, without previous legislative experience, is named among Senate 
 leaders. Thus no sooner does the outside public become duly impressed 
 with the awful tradition that only graybeards count in the Senate than it 
 begins to break down. 
 
 PRINTING SPEECHES IN THE RECORD 1 
 
 THE VICE-PRESIDENT. The request is that the Senator from Missouri, 
 being ill, may be permitted to print the residue of his speech in the 
 Record, together with such additions and extensions as he may desire. 
 
 Mr. BACON. I think that would be a very unfortunate precedent. I 
 have never known such a request to be made in the Senate. We know 
 that in the other House it is the common practice and the recognized 
 practice, but I think it would be very unfortunate for us to set a prece- 
 dent of that kind here to print speeches which are not delivered. I hope 
 it will not be done. 
 
 1 Congr. Record, Apr. 29, 1908. 
 
i86 AMERICAN FEDERAL GOVERNMENT 
 
 I am perfectly willing that every indulgence possible may be given to 
 the Senator from Missouri, but if this be done once, where will be the end 
 of it? I know it is generally supposed throughout the country I say 
 generally possibly that is probably too broad a term, but it is thought 
 by many that the practice which obtains in one House obtains also in the 
 other. But it has never obtained here. There is great liberality as to 
 publishing without being read exhibits or papers which are used in a 
 speech. They are allowed to be inserted in the Record; but this is the 
 first time I have heard during my limited term of service here a request 
 made that a speech which has not been delivered should be printed in the 
 Record. 
 
 I would say this, Mr. President : If it were near the close of the session 
 and the Senator from Missouri had been prevented by illness from 
 delivering his speech, that would be a providential matter which might 
 be recognized as a sufficient ground upon which to base exceptional 
 action on the part of the Senate. But we have no reason to doubt the 
 fact, I presume, that the Senator will have the opportunity before the 
 session closes to conclude his remarks. While I have every disposition to 
 concede everything which circumstances may demand, I do not think 
 that the present circumstances demand that we should make such a 
 wide departure from the practice of the Senate and inaugurate a prece- 
 dent which certainly would be followed in the future in other instances. 
 
 Mr. LODGE. I am, of course, entirely aware of the rule of the Senate 
 against extending speeches in the Record. I think it is an extremely 
 wise rule and I hope it will never be changed. In this particular case 
 the Senator who has given the notice that he would complete his speech 
 to-day is ill. He may be several days absent from the Senate and it may 
 be some time longer before he will be able to complete the delivery of his 
 speech. He sent a message to me desiring to express to the Senate the 
 hope that he might be permitted to print his speech as it stands, most of 
 it having already been delivered. It contains a large number of extracts 
 from testimony which could be perfectly well embodied and which 
 permission is constantly given. 
 
 I have no desire to infringe any rule, nor would he have any such desire. 
 I am as strongly in favor of the practice and rule of the Senate in this 
 respect as anyone can be. I thought this was an exceptional case in 
 which this relief might be given to a Senator who was ill. 
 
 I certainly shall not insist on the request if there is any objection to it. 
 I merely desired to say that the Senator from Missouri could not go on 
 to-day and it is uncertain when he will be able to complete the delivery of 
 his speech. 
 
 Mr. TELLER. Mr. President, I understand that if at any time a Senator 
 is unable to read a speech which he has prepared, it has been the custom 
 here for some time, I know, that he may ask some Senator to read it for 
 
THE SENATE 187 
 
 him. It may be read for him, but it must be either read by him or some 
 one else before it goes into the Record. 
 
 Mr. LODGE. If the Senator from Missouri desires to have the remain- 
 der of his speech read to the Senate and to complete it in that way, I am 
 sure I should be very glad to assist him, and I have no doubt others would 
 be, in- arranging it in that manner and relieve him from the delivery of the 
 remainder of his speech. 
 
 I thought it well, however, to make the statement at this time that he 
 would not be here to-day to carry out the notice which appears on the 
 Calendar, and which would leave the day clear, if the Senator from 
 New Hampshire desires, as I hope he does, to take up the child-labor 
 bill this morning, because I understand the agricultural appropriation 
 bill will not be taken up until to-morrow. 
 
VI 
 
 SENATE AND HOUSE CONFERENCE 
 COMMITTEES 
 
 [Conference committees composed of members of both Houses constitute a 
 most essential part of the legislative machinery. Many questions and contro- 
 versies have arisen with respect to them. In the first place, the conference com- 
 mittee has often been used as an instrument by which the Senate has made its 
 will prevail over the House. Towards the end of the session, when little or no 
 time remains for action in either House, the conference committees meet. 
 The representatives of the Senate, a body which is ordinarily quite sure of its 
 purposes, have frequently used the general freedom of debate in the Senate as 
 a cudgel to force the House of Representatives to yield its position. It is argued 
 on such occasions that unless the view of the Senate is adopted no legislation 
 can be secured, because any other alternative will be talked to death by in- 
 dividual Senators. Action of this kind led to Mr. Cannon's remonstrance, 
 which is given below. Matter which under the rules of the House can not be 
 introduced in a general appropriation bill will frequently be put in as a Senate 
 amendment and will come back to the House as a part of the conference report. 
 
 But it is especially the procedure of the House which makes the conference 
 committee so powerful. When the Senate amendments are returned to the 
 House no debate is allowed by the Speaker; the regular practice is to disagree 
 to the amendments in bulk and appoint a conference committee by which the 
 details of legislation will be settled. The discussion of the conference report on 
 the Rate Bill will illustrate this procedure. Certain of the amendments pro- 
 posed by the Senate would have been sure of adoption in the House, had the 
 Speaker permitted a separate vote on such amendments; but as will be seen 
 from the debate on this matter, the House was not permitted to express itself 
 upon the amendments. It has been suggested that these amendments were 
 allowed to pass in the Senate because it felt sure that the House would not be 
 permitted to vote on them, but would disagree, and that they might then be dis- 
 posed of in the conference committee. About this matter the reader will be 
 able to form his own opinion from the documents. The action of the conference 
 committee on the Currency Bill in 1908 was also especially significant. In this 
 case the committee on currency in the House had been divested of its juris- 
 diction through the action of a party caucus. The House bill resulting from 
 this action was thrown into conference together with the Senate bill, and only 
 most limited debate was allowed at any time during the proceedings. We 
 have already seen the result of this action upon the procedure in the Senate. 
 
 1 88 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 189 
 
 The following extracts deal with : i. The conference committee on the Railway 
 Rate Bill of 1906. 2. The Army Appropriation Bill of 1902. 3. The Naval 
 Appropriation Bill of 1908. 4. The Currency Bill of 1908.] 
 
 REPORT ON THE RAILWAY RATE BILL 1 
 
 MR. DALZELL. Mr. Speaker, I submit the following privileged report 
 from the Committee on Rules, which I send to the desk and ask to have 
 read. 
 
 The Clerk read as follows : 
 
 The Committee on Rules, to whom was referred House resolution 534, have 
 had the same under consideration, and herewith report the following in lieu 
 thereof : 
 
 "Resolved, That the bill (H. R. 12987) to amend an act entitled 'An act to 
 regulate commerce,' approved February 4, 1887, and all acts amendatory 
 thereof, and to enlarge the powers of the Interstate Commerce Commission, be, 
 and hereby is, taken from the Speaker's table with Senate amendments thereto, 
 to the end that the said amendments be, and hereby are, disagreed to, and a 
 conference be, and hereby is asked with the Senate on the disagreeing votes 
 upon the said amendments; and the Speaker shall immediately appoint the 
 conferees without intervening motion." 
 
 Mr. DALZELL. Mr. Speaker, on that I demand the previous question. 
 
 The SPEAKER. The question is on ordering the previous question. 
 
 While the House was dividing Mr. Williams demanded a division. 
 
 Mr. DALZELL. Mr. Speaker, I demand the yeas and nays. 
 
 The yeas and nays were ordered. 
 
 The question was taken; and there were yeas 155, nays 83, an- 
 swered "present" 15, not voting 128. 
 
 The SPEAKER. The previous question is ordered, and the gentleman 
 from Pennsylvania is entitled to twenty minutes and the gentleman from 
 Mississippi to twenty minutes. 
 
 Mr. DALZELL. Mr. Speaker, the bill referred to in the resolution 
 which has just been read is what is popularly known as "the rate bill." 
 It is a matter of common knowledge that it passed the House almost 
 unanimously and went to the Senate some seven or eight weeks ago. It 
 comes back now with fifty Senate amendments and is on the Speaker's 
 table. The purpose of this rule, if adopted, is to take that bill from the 
 Speaker's table, nonconcur in all the Senate amendments, and send the 
 bill to conference. That is all there is in the rule. I reserve the balance 
 of my time. 
 
 Mr. PALMER. Suppose a man wants to vote to concur in some of the 
 amendments and to nonconcur in others? 
 
 Mr. DALZELL. This rule prevents that. 
 
 1 Congr. Record, May 25; 1906. 
 
AMERICAN FEDERAL GOVERNMENT 
 
 Mr. PALMER. You have got to take the whole dose ? 
 
 Mr. DALZELL. In the absence of this rule there would be of course a 
 possibility of debate on fifty amendments. The House will of course 
 have an opportunity to pass upon the question of the amendments on the 
 report of the conferees. 
 
 Mr. PALMER. There will be some opportunity somehow or other to 
 debate the amendments? 
 
 Mr. DALZELL. Undoubtedly. This has no reference to anything in 
 connection with the bill except the present procedure. 
 
 Mr. PALMER. When the report of the conference committee comes in, 
 suppose you introduce another rule of a similar character to cut off all 
 debate in the same way you are doing now, how about that ? 
 
 Mr. DALZELL. I can of course only speak for myself, but, in the first 
 place, a rule amounts to nothing unless the House adopts it, and, in the 
 second place, I do not believe there is a disposition on the part of anybody 
 to do any such thing. 
 
 Mr. BARTLETT. I would like to ask the gentleman a question. 
 
 Mr. NORRIS. I would like to ask the gentleman with a view of getting 
 the parliamentary situation as it would be before us in the conference 
 report. Suppose now, to illustrate, that the amendment which I under- 
 stand the Senate has added to the bill providing for including within the 
 terms of the bill express companies an amendment which very many 
 of us voted for when the bill was here suppose, now, the conferees bring 
 in a report in which the Senate amendment placing express companies in 
 the bill is eliminated ? What opportunity then would we have after they 
 have made that sort of a recommendation to vote in favor of including in 
 the bill express companies? 
 
 Mr. DALZELL. Why, the House, of course, can disagree to the con- 
 ference report and can instruct its conferees. 
 
 Mr. WILSON. It would defeat the entire bill if we were to disagree to 
 the conference report. 
 
 Mr. DALZELL. Not at all. 
 
 Mr. NORRIS. Would not this rule, if the gentleman will permit a 
 further interruption, be regarded by the conferees, and ought they not 
 in fact regard this vote, if we adopt this procedure, as an instruction to the 
 conferees that the House is opposed to all of the Senate amendments ? 
 
 Mr. DALZELL. By no manner of means. Speaking for one of the 
 Committee on Rules, there are some of these amendments that personally 
 I should vote to concur in right now. 
 
 Mr. NORRIS. I would like to vote to concur in some of them. 
 
 Mr. DALZELL. It is a mere question of procedure to facilitate the 
 public business. Has the gentleman, or any other gentleman in this 
 House, any idea that we are going to adjourn until the rate bill is disposed 
 of? 
 
 Mr. NORRIS. Oh, no. I want to reach a parliamentary situation 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 191 
 
 that will give us all an opportunity to vote for any of these amendments 
 that we favor. 
 
 Mr. DALZELL. I think the gentleman will have that opportunity 
 under the rules of the House. 
 
 Mr. BARTLETT. May I ask the gentleman from Pennsylvania if, 
 under the rules, no matter what the conferees agree to or disagree to, the 
 House will not be called to vote up or vote down the report as a whole 
 and will not be permitted to vote for any separate amendment ? In other 
 words, under the rules of the House, as they have been construed, we will 
 be compelled to vote for the report as a whole ? 
 
 Mr. DALZELL. The House can vote down the conferees' report and 
 instruct the conferees as to anything in the report. 
 
 Mr. BARTLETT. I understand that. The House will not get an 
 opportunity, if we adopt these rules, to vote for any one of these amend- 
 ments separately. If we had them before us now, we could say whether 
 we are in favor or opposed to them. 
 
 Mr. DALZELL. The gentleman knows that under the rules of the 
 House the House will have an opportunity to pass on every amendment 
 the Senate has suggested. 
 
 Mr. COOPER of Wisconsin. The gentleman from Pennsylvania 
 [Mr. Dalzell] says that we could instruct the conferees later. What 
 earthly objection is there to giving the House an opportunity to instruct 
 the conferees now? [Applause.] Why not vote now on the express- 
 company amendment, that every man in this House who wants regulation 
 of transportation desires? 
 
 Mr. DALZELL. We can not very well allow any particular amendment 
 to be voted on at this time, and unless we do follow the mode of pro- 
 cedure that is suggested, we will run into a discussion of fifty amend- 
 ments right away. I have no idea that any gentleman will be disappointed 
 as to having a vote on any particular amendment he wants at the proper 
 time. I think it is not customary to instruct conferees in advance of a 
 full and free conference. 
 
 Mr. COOPER of Wisconsin. Will the gentleman permit me to make 
 one statement? 
 
 Mr. DALZELL. Certainly. 
 
 Mr. COOPER of Wisconsin. I have to say this, that I have been in- 
 formed by a gentleman in whose word I place implicit confidence that 
 gentlemen I am not saying whether members of the Senate or of the 
 House who will, under the rules that obtain in the respective bodies, 
 be upon the conference, have in conversation said that in so far as they 
 have the power the express-company amendment shall go out that 
 they were heard to say so. 
 
 Mr. DALZELL. I know nothing about that, but I do not take much 
 stock in the expression of what a single Member of the House is going to 
 do. The House is in control of the bill at all times. 
 
1 9 2 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. COOPER of Wisconsin. Let me suggest to the gentleman from 
 Pennsylvania that the House is in a hurry to adjourn. Suppose the con- 
 ferees hold this up two or three weeks, until tacitly we have agreed that 
 we will adjourn on the i5th or 2oth of June. There will be then no 
 opportunity for debate, because everybody will be in a hurry to get home. 
 
 Mr. DALZELL. There will be an opportunity for debate. 
 
 Mr. HEPBURN. Will the gentleman from Pennsylvania [Mr. Dalzell] 
 permit me for a moment to ask the gentleman from Wisconsin to state 
 the persons that have thus declared themselves? 
 
 Mr. COOPER of Wisconsin. I do not wish to offend especially the 
 feelings of the gentleman from Iowa, and 
 
 Mr. HEPBURN. You will not offend my feelings, sir, by answering that 
 question. 
 
 Mr. COOPER of Wisconsin. I will then say to the gentleman from 
 Iowa 
 
 Mr. HEPBURN. Name them out. 
 
 Mr. COOPER of Wisconsin. I am not going to name a man who came 
 to me and told that story. The gentleman from Iowa is one of the men 
 who was said to have remarked in conversation that the express amend- 
 ment will go out. 
 
 Mr. HEPBURN. I say that any man who has told the gentleman that 
 statement stated a falsehood [applause], and I am inclined to believe 
 that, until the name of that individual is given, the gentleman may be 
 drawing upon his imagination. [Applause.] 
 
 Mr. WILLIAMS. Mr. Speaker, I call the gentleman from Iowa to order. 
 
 Mr. HEPBURN. Mr. Speaker, I withdraw the language that is offensive 
 to the distinguished gentleman from Mississippi. 
 
 Mr. WILLIAMS. It is not offensive to the " gentleman from Mississippi" 
 at all ; it is offensive to the House. 
 
 The SPEAKER. The language is withdrawn. The gentleman from 
 Pennsylvania has the floor. 
 
 Mr. COOPER of Wisconsin. Will the gentleman yield? 
 
 Mr. DALZELL. I yield to the gentleman from Wisconsin. 
 
 Mr. COOPER of Wisconsin. Just one minute to reply to the gentleman 
 from Iowa. I wish to say, Mr. Speaker, to the gentleman from Iowa, 
 that I am not the only person to whom that statement has been made. 
 There are other members of the House to whom that statement has been 
 made. There is no object, can be no specific purpose on my part, to 
 deliberately misstate that 
 
 Mr. HEPBURN. Will the gentleman permit me 
 
 Mr. COOPER of Wisconsin. One moment; you have no right to 
 interrupt me at this point. 
 
 Mr. WILLIAMS. A point of order, Mr. Speaker. 
 
 Mr. HEPRURN. In veiw of the fact 
 
 Mr. WILLIAMS. I make the point of order, Mr. Speaker. 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 193 
 
 The SPEAKER. The gentleman from Mississippi makes the point of 
 order. 
 
 Mr. WILLIAMS. The gentleman has not yielded. 
 
 The SPEAKER. That the gentleman has not yielded. The House will 
 be in order. 
 
 Mr. COOPER of Wisconsin. I can not understand how the gentleman 
 from Iowa ever propounded that question, unless he had heard that this 
 statement was going around. He put me in a very embarrassing position. 
 But I told him what was told to me; I told exactly the truth as told to 
 me ; and this is the first time that any man, anywhere, ever accused me 
 of deliberately telling a falsehood. This is a thing which was said to me 
 in confidence in a conversation I had with a gentleman who said: "I 
 would not like my name mentioned in this connection." 
 
 The SPEAKER. The time of the gentleman has expired. 
 
 Mr. MURPHY. Will the gentleman allow me to ask him a question? 
 
 Mr. DALZELL. I yield to the gentleman. 
 
 Mr. MURPHY. Is not this the fact: "It is manifest, therefore, that 
 if we are to have speedy legislation and adjustment of the differences 
 between the two Houses the bill must be at once sent to conference, and 
 that is the purpose of the rule I have introduced?" 
 
 Mr. DALZELL. Undoubtedly. 
 
 Mr. MURPHY. I am reading from the remarks of the gentleman from 
 Pennsylvania, as found on page 4224 of the Congressional Record, on the 
 rule sending the statehood bill to conference. 
 
 Mr. DALZELL. Well, now, Mr. Speaker, I say that this is a very simple 
 matter. That bill is now on the Speaker's table with fifty amendments. 
 There is a great diversity of opinion as to whether a number of these 
 amendments should be accepted or should be rejected, but whether they 
 shall be accepted or whether they shall be rejected we have to meet this 
 question. With the gentleman from Mississippi in the saddle, and with 
 his idea of statesmanship, under which the gentleman ties up the House 
 by opposition, we could have separate votes on each of these fifty amend- 
 ments to the bill. It is entirely within the power of the House to vote 
 upon the conferees' report and refuse to accept the conference report, and 
 then the whole matter will be open and within the control of the member- 
 ship of this House to amend the bill until it is in just such shape as the 
 majority of the House desire to have it. 
 
 The SPEAKER. The gentleman has six minutes of his time remaining. 
 
 Mr. DALZELL. I reserve the balance of my time. 
 
 Mr. WILSON. Will the gentleman yield to a question ? 
 
 Mr. PAYNE. The gentleman reserves his time. 
 
 The SPEAKER. The gentleman from Mississippi. 
 
 Mr. WILLIAMS. Mr. Speaker, I had not intended just at this moment 
 to say anything, but the gentleman from Pennsylvania has rendered it 
 necessary that I should before I yield to anybody else. As I understood 
 
 13 
 
194 AMERICAN FEDERAL GOVERNMENT 
 
 him, he tried to gather partisan strength upon that side by asking the 
 question "What condition this bill would be in if the gentleman from 
 Mississippi, with his revolutionary methods," I believe was the 
 language 
 
 Mr. DALZELL. I did not say "revolutionary methods." I said "with 
 his ideas of statesmanship." 
 
 Mr. WILLIAMS. "Ideas of statesmanship," then. I want to quote the 
 gentleman exactly right "if the gentleman from Mississippi, with his 
 ideas of statesmanship, were put in the saddle by voting down this special 
 rule?" Why, the gentleman from Pennsylvania is not such a child as to 
 imagine that giving the House a right to vote a motion to concur in one or 
 more of these Senate amendments would "place the gentleman from 
 Mississippi in the saddle." He knows that it would simply place the 
 House of Representatives in the saddle. [Applause on the Democratic 
 side.] And the gentleman from Pennsylvania, moreover, knew from 
 what had occurred in the Committee on Rules that the gentleman from 
 Mississippi was perfectly willing, if only there were an opportunity fur- 
 nished to the House to vote to concur upon Senate amendments, 2, 6, 31, 
 47, and 48, that all the balance of the Senate amendments might, without 
 objection, go to the conference as amendments nonconcurred in. Gentle- 
 men, do not let that sort of thing fool you, whatever else fools you 
 
 Mr. DALZELL. The gentleman from Mississippi certainly does not 
 claim that the House is to be bound by his particular wishes. Other 
 gentlemen have a right to their opinions as well as he. 
 
 Mr. WILLIAMS. The gentleman from Mississippi does not claim that 
 the House would be bound, but the gentleman from Mississippi claims 
 that, so far as his position is concerned, he would be bound, and that 
 therefore there was no reason in fact or in truth for the statement made 
 by the gentleman from Pennsylvania to the effect that the gentleman 
 from Mississippi would be put in the saddle. The House would be put 
 in the saddle, and that is what the gentleman and men in this Hall who 
 are opposed to the Senate amendment putting express companies in the 
 bill as common carriers and to some other amendments of the Senate, 
 in which this House upon a free vote would concur at once ; that is what 
 they are trying to avoid. You want the Committee on Rules and the 
 conferees to be in the saddle to ride the House bitted and spurred. You 
 do not want the House to be in the saddle. If I consented right now that 
 every single Democrat should leave this Hall, and that no point Of "no 
 quorum" should be made, you dare not put even that side of the House 
 in the saddle for a day. [Applause on the Democratic side.] 
 
 Now, Mr. Speaker, I yield five minutes to the gentleman from Missouri 
 [Mr. De Armond]. [Applause on the Democratic side.] 
 
 Mr. DE ARMOND. Mr. Speaker, the question before the House is at 
 once a very simple and a very important one. It is the question whether 
 the House will pass upon some of these amendments itself or whether it 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 195 
 
 will commit then to the uncertainties of a conference. That is the plain, 
 simple question. 
 
 The importance of this legislation or of the subject with which this 
 legislation deals can hardly be overstated. 
 
 In the other end of this Capitol weeks and months were spent in dis- 
 cussion and consideration of this measure. A number of amendments 
 were added to it. Some of them, I am sure, should meet with the hearty 
 concurrence and approval and indorsement of every man in this House, 
 and of every man out of this House who wishes effective railroad rate 
 legislation. As has already been suggested by the gentleman from 
 Mississippi [Mr. Williams], my colleague on the Committee on . Rules, 
 so far as we upon this side are concerned, I believe that with a vote now 
 upon two or three or four or five of these amendments, it would be satis- 
 factory to us to let the others go to conference, if that be insisted upon. 
 What are they ? They are very easily understood. One is amendment 
 No. 2, that the term "common carrier" shall include express companies 
 and sleeping-car companies. [Applause.] Now, a man ought to know 
 whether he is for that or against it. We are for it. I believe the House is 
 for it. If so, why send it to conference ? Why .take the chance or the 
 risk of what may be done in conference concerning it? The man who 
 votes against giving himself the opportunity to vote upon that amendment 
 here in the House now, for the time being votes against it and takes the 
 chance of having or not having the opportunity to vote for it later, if he 
 really wishes to vote for it at all. 
 
 Now, take amendment No. 6. That provides that common carriers 
 shall furnish switch facilities. Who is in favor of that, and who is against 
 it ? We are in favor of it. I believe the House is in favor of it. Why 
 not let us determine by vote here? Why send it to a conference com- 
 mittee, with its hazards and its chances, in the closing days of a session 
 to determine whether or not that wholesome and just amendment shall 
 remain in the bill and become a part of the law ? 
 
 Take amendment No. 31. It strikes out the words "fairly remunera- 
 tive"; a catch trap those words are, making room for litigation, room 
 for uncertainty, room for thwarting, if possible, the will of the people 
 with respect to this bill. Why not vote upon that ? We are in favor of 
 the amendment which strikes those words out. 
 
 No. 47 provides that there shall not be incorporated in the receipt or 
 bill of lading any words, however carefully chosen or however skillfully 
 covered, which will exempt the railroad company from its ordinary 
 common-law liability. [Applause.] Who is in favor of that, and who is 
 against it ? We are in favor of that amendment. It is not onerous on the 
 railroads, it is not unjust, it is not rash ; it is decent and fair and correc- 
 tive and improving in this bill. We are in favor of it. I believe the 
 House is in favor of it. Why commit to the chances and hazard of this 
 committee performance that amendment? 
 
196 AMERICAN FEDERAL GOVERNMENT 
 
 Then there is an amendment, No. 48, which strikes out the section in 
 the bill when it went from this House, unnecessarily providing that each 
 of the Interstate Commerce Commissioners shall receive $10,000 a year 
 instead of $7,500, and that there shall be seven instead of five Commis- 
 sioners. I would like to see a vote upon that, and would like to vote for it. 
 
 But are you willing to give us a vote upon anything? Are you willing 
 yourselves to vote upon anything ? Or are you in favor of turning over 
 every amendment, no matter how important, to the hazard, and juggling, 
 and chances, and uncertainty, and the influence that may prevail against 
 fair consideration, in this committee of conference ? That is the question, 
 and nothing can take us away from it. A vote upon the one side is a vote 
 to give this House an opportunity to do what it chooses to do, and a vote 
 upon the other side is to deny it. [Applause on the Democratic side.] 
 
 The SPEAKER. The gentleman's time has expired. 
 
 Mr. KLEPPER. Mr. Speaker, I ask unanimous consent that the 
 gentleman's time be extended one minute that I may ask him a question. 
 
 Mr. DE ARMOND. That is perfectly satisfactory to me. 
 
 The SPEAKER. The gentleman from Missouri asks that his colleague's 
 time be extended one minute. 
 
 Mr. WILLIAMS. That is in addition to the usual forty minutes? 
 
 The SPEAKER. Yes; is there objection? 
 
 Mr. PAYNE. What is the question, Mr. Speaker? 
 
 The SPEAKER. The gentleman from Missouri asks that his colleague's 
 time be extended one minute to answer a question. 
 
 Mr. PAYNE. That is in addition to the forty minutes? 
 
 The SPEAKER. Yes. 
 
 Mr. OLMSTED. .Then, one minute ought to be added to the time for 
 debate on this side. 
 
 The SPEAKER. The Chair hears no objection. 
 
 Mr. KLEPPER. I want to ask my colleague if it is not a fact that quite 
 a number of the minority, including the leader of the minority, did not 
 vote to exclude express companies on the passage of the bill in the House, 
 and if that be true, .why they are agonizing over this subject and objecting 
 to its going to conference ? 
 
 Mr. DE ARMOND. Mr. Speaker, I am asked a question as to what 
 somebody else did, and somebody else thought, and about what some- 
 body else thinks now. That kind of a question I can not answer, but I 
 will say to the gentleman that when he or any other man votes to send 
 this to conference without an opportunity to vote upon it, he votes for 
 excluding from this classification the express companies and the car 
 companies. 
 
 Mr. KLEPPER. I will say to the gentleman that I voted to include 
 express companies, and if I remember correctly the minority leader voted 
 to exclude express companies. I for one am willing to submit the matter 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 197 
 
 to the conferees, believing that they will recommend that which is just 
 and proper. 
 
 The SPEAKER. The time of the gentleman has expired. 
 
 Mr. DE ARMOND. I hope I will have an opportunity to answer the 
 gentleman. 
 
 Mr. WILLIAMS. I will yield to the gentleman from Alabama [Mr. 
 Underwood] three minutes. 
 
 Mr. UNDERWOOD. Mr. Speaker, the condition of this proposition 
 under the rule is this : The rate bill is on the table, and the rules of this 
 House provide that House bills with Senate amendments, which do not 
 require to be considered in Committee of the Whole, may be at once dis- 
 posed of as the House may determine. It is now in the power of the 
 gentleman from Iowa [Mr. Hepburn] to call the rate bill from the table, 
 and the House to consider each of these amendments without a special 
 rule, where the House will be able to vote up or down each of the amend- 
 ments, as it deems best in its judgment. The effect of this special rule is 
 to take that power away from the membership of the House, put it in 
 the hands of the conferees, composed of three members of the House 
 and three members of the Senate, sitting behind closed doors, where 
 nobody in this House or nobody in the United States can know what is 
 being done, and when they come back with their report, if it is a full and 
 complete report, such as they will bring to this House, the membership 
 of the House will be confronted with the question, Will you accept the 
 bill as it is reported from the committee of conference or not ? We will 
 have to swallow their report whole, good or bad, or be put in the attitude 
 of voting against a rate bill, and if the majority passes it in that shape, 
 there will be no explanation. When this matter was before the House of 
 Representatives I moved in the House to include express companies 
 within the terms of the bill. The gentleman from Iowa [Mr. Hepburn], 
 the chairman of the committee, and the chairman of the conference 
 committee of this House when it is appointed, fought that proposition 
 and said the Hepburn bill did not include express companies and he was 
 not in favor of putting them in the bill. [Applause on the Democratic 
 side.] I say to this House, if you are honestly and earnestly in favor 
 of putting these express companies within the terms of the bill, are you 
 going to put that in the hands of the gentleman from Iowa [Mr. Hepburn], 
 who openly and aboveboard has told you on the floor of this House, when 
 this bill was last before it, that he was not in favor of the proposition ? 
 Can you justify yourselves before your constituents in such circumstances. 
 
 The SPEAKER. The time of the gentleman has expired. 
 
 Mr. WILLIAMS. Mr. Speaker, I would ask the gentleman from 
 Pennsylvania if he proposes to use the balance of his time in one speech ? 
 
 The SPEAKER. The gentleman from Mississippi has eight minutes 
 remaining and the gentleman from Pennsylvania has six minutes 
 remaining. 
 
198 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. WILLIAMS. Of the eight minutes, I yield two minutes to the 
 gentleman from Wisconsin [Mr. Cooper]. 
 
 Mr. COOPER of Wisconsin. Mr. Speaker, in line with what the gentle- 
 man from Alabama [Mr. Underwood] has just said, I would also beg to 
 remind the House that while the original bill was pending here an amend- 
 ment was offered by the gentleman from Alabama [Mr. Underwood] and 
 one or two others there were two or three amendments putting 
 express companies within the purview of this bill. The gentleman from 
 Iowa [Mr. Hepburn] had said to the House that express companies were 
 not included in the bill. The gentleman from Michigan [Mr. Townsend] 
 thought they were, as did also my colleague [Mr. Esch], the gentleman 
 from Wisconsin. In my remarks I called attention to the fact that the 
 phraseology of the bill did not include express companies, unless the 
 original act included them, and that the Interstate Commerce Commis- 
 sion had always held that express companies were not included under the 
 original act. I called attention also to the fact that a member of the 
 Interstate Commerce Commission, with whom I had had a conversation 
 on that day, told me that there was no question that express companies 
 were not included under the terms of the then pending bill. When the 
 amendment to include express companies came up, the gentleman from 
 Iowa [Mr. Hepburn] voted against it, in line with the remarks which he 
 made, as just narrated by the gentleman from Alabama [Mr. Underwood]. 
 Now, why should any gentleman who wants express companies included 
 and who wants to stop the infamous discriminations which they now 
 practice, vote to turn the whole question over to conferees to bring in 
 such a report as they please? Gentlemen are not obliged to do this. 
 The rules do not require it. How can any gentleman who honestly does 
 not wish to have express companies omitted from the law vote to send 
 this proposition to a conference that may be hostile to his views ? When 
 are you to get the report in two weeks, three weeks, four weeks ? 
 What will it contain? 
 
 The SPEAKER. The time of the gentleman has expired. 
 
 Mr. WILLIAMS. Mr. Speaker, the gentleman from Missouri [Mr. De 
 Armond] has already outlined what amendments 2, 6, 31, 47, and 48 are. 
 These are the amendments which we as minority members of the Com- 
 mittee on Rules asked that the House should have a right to vote upon 
 in a motion to concur. We still insist on that right. We therefore oppose 
 this rule. It is very true that I did vote against amendments like this, 
 some of them almost identical with them, upon the floor, but it was 
 because and the gentleman from Iowa [Mr. Hepburn] will bear me 
 out in that statement for tactical and strategic purposes we had 
 thought it important to send this rate bill, with all the weight and influ- 
 ence of this House, like a catapult against the other side of this Capitol, 
 so that the utmost influence might be had to bring forth a bill. It was 
 not because there was ever a minute of my life when I or a majority of 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 199 
 
 the Democrats on this side were not in favor of these propositions em- 
 bodied in the Senate amendments. I will answer the question the gen- 
 tleman from Missouri [Mr. Klepper] asked his colleague [Mr. De 
 Armond]. The gentleman from Mississippi voted against all amendments 
 to the Hepburn-Davey House rate bill because he was in honor bound to 
 stand by the bill as it had been agreed upon and to vote against all 
 amendments, and on that day I and a majority of us over here voted 
 against half a dozen amendments that we were in favor of, as everybody 
 knew. It may probably be difficult for the gentleman to understand, but 
 not difficult for a Democrat to understand, that a man may do that which 
 he otherwise does not want to do in order to keep faith and in order to 
 keep honor, and the six Democratic members of the committee and I did 
 exactly that thing. What was the result? We did bring the weight of 
 this House like a catapult to bear, with the President and public opinion 
 behind that catapult, as well as ourselves, and Senators fell over them- 
 selves in order to out-Herod Herod in giving us what we and what the 
 people wanted and what we had feared that a majority of the Senate did 
 not want. There was no mistake made when for tactical purposes we 
 came together in a nonpartisan bill, and the Republicans adopted in the 
 bill several things which they did not want, and we left out of the bill 
 several things which we did want, and keeping faith with one another as 
 men of honor should, we stood by the bill, I and the six Democratic 
 members of the Committee on Interstate and Foreign Commerce. Mr. 
 Speaker, this has come back a better bill than it went out, and we want 
 to keep it good. It has been said I know not with how much truth 
 that when these amendments were being adopted it was whispered at the 
 other end of the Capitol, "Oh, that is all right; let it go; the conferees 
 will take care of that." 
 
 Now, I do not want the conferees to take care of it. Voting down this 
 rule is the first, perhaps the only, opportunity to concur upon these five 
 propositions, 2, 6, 31, 47, and 48, and to drive a nail through the plank 
 and clinch it on the other side. Gentlemen say they want something in 
 conference "to trade upon." Well, I do not want them to trade about 
 either one of those five amendments ; neither does this House of Repre- 
 sentatives want them to do it. They all say so. There are many who 
 say they would vote to concur; if so, why not do it now? I may be 
 excused for not being able to understand a man who says he is in favor 
 of a proposition and then, when the opportunity is offered to him to make 
 that proposition irrevocably good upon the statute books, refuses the 
 opportunity. The gentleman from Pennsylvania says that the House 
 will have "an opportunity" later on "to vote." Will the House have it? 
 j Who knows it ? Will or will there not be another rule to gag the House ? 
 Why, you know there will be another rule, provided only that the gentle- 
 man from Iowa [Mr. Hepburn] and the Committee on Rules desire to 
 have another rule. It is true the House might at that time vote down the 
 
200 AMERICAN FEDERAL GOVERNMENT 
 
 second rule, but the House might at this time vote down this rule ; and 
 if in blind partisanship it will avoid the first opportunity to do what it 
 says it wants to do, what reason have we to believe it would avail itself of 
 it in the second case ? This is your first chance ; take advantage of it. 
 The next chance will be the Aldrich chance. Now, there are only two 
 possible reasons why the House shall not be given an opportunity to 
 vote to concur upon the five Senate amendments, the character of which 
 has been outlined by the gentleman from Missouri. One is that some- 
 body may want to imitate the game that was played at the other end of 
 the Capitol. At the last moment, after having used patriotic Representa- 
 tives as a lever to procure the desired legislation to keep the fight 
 alive they at the last moment attempted to put the stamp of partisan- 
 ship upon a great measure, which was advocated first by the Democrats, 
 and which is more earnestly favored by them now than by any other 
 people. That may be one reason, and the next reason would be to leave 
 the final moulding of a bill to the uncertainty and secrecy of conferees, 
 through whom these amendments might be killed, scotched, or 
 emasculated. 
 
 The SPEAKER. The time of the gentleman has expired. 
 
 Mr. GROSVENOR. I yield one minute to the gentleman from Iowa. 
 
 Mr. DALZELL. I yield the balance of my time to my colleague [Mr. 
 Grosvenor]. 
 
 Mr. HEPBURN. Mr. Speaker, I simply desire to say, for a moment, 
 that I agree entirely with the gentleman from Mississippi in the suggestion 
 that the vote upon any one of these amendments that were offered in this 
 House to the bill when it was under consideration does not indicate the 
 views that the individual voting might have upon the subject. It will be 
 remembered that it was the effort of the Committee on Interstate and 
 Foreign Commerce to report to the House a bill that would embody the 
 recommendations of the President and place them into law that much 
 and nothing more. Everything else beyond that was opposed by the 
 committee. There was an agreement of the entire eighteen members of 
 the committee that they would oppose any amendment and strive to 
 secure the bill as reported. The gentleman from Mississippi, patriotic 
 in his anxiety to get such a bill as the President had asked for, united 
 with us in that purpose, and in accordance with the plan every one of 
 the amendments was voted down, without regard to the individual views 
 of us who voted against them. [Applause.] 
 
 The SPEAKER. The time of the gentleman has expired. 
 
 Mr. WILLIAMS. Mr. Speaker 
 
 The SPEAKER. For what purpose does the gentleman rise ? 
 
 Mr. WILLIAMS. For the purpose of calling the attention of the House 
 to the fact the gentleman from Pennsylvania said he would close in one 
 speech. 
 
 Mr. DALZELL. I yielded my time to the gentleman from Ohio and I 
 assumed that he would use the time. 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 201 
 
 Mr. WILLIAMS. You also yielded to the gentleman from Iowa. 
 
 Mr. DALZELL. No, sir; the gentleman from Ohio yielded to the 
 gentleman from Iowa. 
 
 Mr. WILLIAMS. I just want the record to show the occurrence. 
 
 Mr. GROSVENOR. Mr. Speaker, I think it is rather unbecoming of 
 the gentleman to quibble about a minute's time being yielded to the 
 gentleman from Iowa, who has been so bitterly assailed here on 
 the floor, to explain his position. Now, Mr. Speaker, the situation is 
 practically this: The organization of this House is responsible for the 
 progress and despatch of business. We have a bill here with fifty-one 
 amendments. We have a gentleman on the other side who is supreme in 
 the minority, with power enough to demand the yeas and nays upon 
 every question, who can take this bill and upon these fifty-one amend- 
 ments could occupy the time of the House for six days and a half 
 by the call of the roll. And he has not for a long time failed to demand a 
 call of the roll whenever he has had an opportunity. Now, I respectfully 
 submit to gentlemen on this side if it is not about time that the Republican 
 majority of this House should take possession of the House and transact 
 its business on its own hook and in its own way, or is it wise to turn over 
 to a faction, full of the idea of filibustering as a remedy for its minority, 
 the future of this important legislation ? 
 
 Mr. WILLIAMS. Will the gentleman permit an interruption ? 
 
 Mr. GROSVENOR. I do not know what for. I do not intend that the 
 gentleman shall make any more speeches. 
 
 Mr. WILLIAMS. I do not intend to make a speech. May I ask the 
 gentleman a question? 
 
 Mr. GROSVENOR. Ask it. 
 
 Mr. WILLIAMS. Would the gentleman consent to permit these six 
 amendments to be voted upon by the House if I repeated here what I had 
 offered to do in the Committee on Rules, to wit, to give unanimous con- 
 sent that the balance should be nonconcurred in and go to conference ? 
 
 Mr. GROSVENOR. I am not willing that the Republican majority of 
 this House shall waive their prerogative and turn it over to the gentleman 
 from Mississippi. [Applause on the Republican side.] We have had 
 enough of that. If we are coming out of this session of Congress with 
 any self-respect, let alone the respect of the country, it is time we at- 
 tempted to do business ourselves and not permit other gentlemen to 
 dictate to us. And then just think of it, gentlemen. Here is the 
 minority, representing about 125 votes, and the gentleman from Missis- 
 sippi stands up calmly and deliberately and picks out the amendments he 
 wants to vote upon, and demands that his dictation shall be heard by the 
 House, and when it is not heard, then he pours out the vials of his wrath 
 here. Now, let us proceed in an orderly way, just as we have done a 
 hundred times in the memory of many of us disagree to all of the 
 amendments and send the bill to conference. 
 
202 AMERICAN FEDERAL GOVERNMENT 
 
 The gentleman from Wisconsin [Mr. Cooper] is certainly seeking a 
 point of attack. This House has the power to bring back the members 
 of that committee at any time it sees fit to do so. We are not in the 
 hands either of the Democratic minority or in the hands of a conference 
 committee. Is there any man here who by his vote will doubt that that 
 conference committee will at a very early date report this important bill 
 back? And let me make a statement, Mr. Speaker, and I ask the 
 House to hear what I say and measure my language when that 
 conference report comes back there will be a chance to vote on every 
 amendment the House desires to vote upon, and there will be debate, and 
 for once in my life I think I occupy a position where I can enforce the 
 suggestion which I have made. But I desire to disclaim on the part of 
 the majority of the Committee on Rules the slightest intention of gagging 
 the bill through this House. Many of us are strongly in favor of the very 
 amendments that the gentleman from Mississippi [Mr. Williams] has 
 spoken about, and you have all heard the explanation made by the 
 gentleman himself that entirely exonerates the gentleman from Iowa 
 [Mr. Hepburn] from having placed himself in a position of hostility to 
 the particular amendment which the gentleman has seen fit to point out. 
 He voted against any amendment, and I can go a little further and say 
 that he appealed to me not to offer an amendment that I had prepared, 
 and which would have made this bill, in my humble judgment, far better 
 than it was when it left the House, and I refrained from offering it simply 
 and solely for the purpose of aiding the passage of the bill and getting it 
 into the hands ultimately of the committee of conference. 
 
 The committee may go out and agree or disagree on certain points and 
 come back again. I recollect very well that on a certain night here we 
 voted down a conference report five times, and stayed here until nearly 
 morning, and ultimately, upon the demand made by the House, we saved 
 the Government of the United States from the disgrace of having to 
 report for duty to a vagabond crowd in the island of Cuba. I hope the 
 committee will be sustained in this report. 
 
 The SPEAKER. The question is on agreeing to the resolution. 
 
 THE ARMY APPROPRIATION BILL, 1902 1 
 
 Mr. CANNON. Mr. Speaker, in the five minutes' time I can only 
 refer to one or two matters that my attention has been directed to. 
 This appropriation for barracks and quarters makes $2,000,000, and 
 $250,000 in addition, immediately available in the Philippines, and con- 
 tains some other immediately available provisions. In other words, 
 between two and three million dollars nearer three millions than 
 
 1 Congr. Record, XXXVI, 2347. 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 203 
 
 two millions are made immediately available. This is an appropria- 
 tion bill for the coming year and a deficiency bill for this year. How 
 much more may be in this bill, how much more in other bills I do not 
 know; but I do know that this practice of going from committee to 
 committee under the rules of the House has jurisdiction, and then, 
 before the matter has been investigated, by the aid of a willing Senate, 
 failing in one place, rushing to another that has not jurisdiction, and 
 sticking in amendments here and there and yonder ought to be done 
 away with. Appropriation for the next year, appropriation for this 
 year, legislation here, legislation there. If action is continued along 
 these lines it will demoralize the matter of appropriation and bring 
 scandal and criticism deserved criticism from the people of the 
 country. 
 
 Now, touching this retirement matter, I do not know whether it is 
 right or not. I want to treat the Army liberally. This provision had 
 no place in the House bill ; it is legislation pure and simple, on a large 
 scale, by Senate amendment. How does it come here ? In a conference 
 agreement, by the grace of the Senate wholesale. I should be glad 
 if every member here who thinks he understands this provision would 
 stand up. These matters ought to be treated of upon their merits. If 
 I vote for this conference report on this great bill to supply the public 
 service, I am compelled to vote for a bill that supplies that service for 
 the next year as well as for this year, a bill that amends the law and 
 introduces a new policy touching the retired list. It may be justifiable ; 
 I do not know. I have got to take it upon trust. In this body, close to 
 the people, we proceed under rules. In another body and I think 
 I can say it within parliamentary lines legislation is by unanimous 
 consent. And when I say that, gentlemen understand what it means. 
 [Applause.] 
 
 Mr. RICHARDSON of Tennessee. Mr. Speaker, the House is put at 
 a very great disadvantage when we come to vote upon a conference 
 report if we are not satisfied in the House with amendments that have 
 been put upon the bill by the Senate. It seems that in this case the 
 Senate put upon this bill certain amendments which are obnoxious to 
 our rules. As has been stated by the gentleman from Illinois [Mr. 
 Cannon], the legislative provisions that they have put upon this bill 
 would have no standing under our rules if proposed here. Now, when 
 that has been done and the bill comes back to us from the Senate, we 
 ought to have the right to vote as an independent matter upon every 
 such proposition presented to us, and should not be required to vote 
 upon various propositions as a whole in a conference report. 
 
 Now, we have not that permission, we have not that privilege. And 
 why ? I undertake to say of the statement of the gentleman from Iowa 
 [Mr. Hull], whether he meant to do it or not, he has misled the House 
 of Representatives. I do not believe the gentleman from Iowa would 
 
204 AMERICAN FEDERAL GOVERNMENT 
 
 intentionally mislead the House, but that is the effect of the action that 
 we are now taking. And why do I say it? Because when this bill 
 came from the Senate with Senate amendments the gentleman from 
 Iowa, the chairman of the Military Committee, as it was his duty to 
 do, asked of the House unanimous consent to nonconcur in the Senate 
 amendments. He could not have nonconcurred and sent the bill to 
 conference without unanimous consent of this House, and he was held 
 up, as we all know, on that request upon a promise, almost expressed, 
 certainly implied, that we should have the right to vote upon the Senate 
 amendments. We are denied that right unless we vote down the con- 
 ference report. 1 
 
 MR. CANNON'S REMONSTRANCE, 1903 2 
 
 [In connection with the South Carolina claim forced upon the Senate by 
 Senator Tillman.] 
 
 GENTLEMEN know that under the practice of the House and under 
 the rules of the Senate the great money bills can contain nothing but 
 appropriations in pursuance of existing law, unless by consent of both 
 bodies. If any one of these bills contains legislation, it must be by the 
 unanimous consent of the two bodies; and the uniform practice has 
 been, so far as I know, the invariable practice has been, with the ex- 
 ception of one amendment upon this bill, that when one body objected 
 to legislation proposed by the other upon an appropriation bill, the 
 body proposing the legislation has receded. . . . 
 
 The House conferees objected, and the whole delay has been over 
 that one item. In the House of Representatives, without criticizing 
 either side or any individual member, we have rules, sometimes invoked 
 by our Democratic friends and sometimes by ourselves each respon- 
 sible to the people after all said and done by which a majority, right 
 or wrong, mistaken of otherwise, can legislate. 
 
 In another body there are no such rules. In another body legislation 
 is had by unanimous consent. In another body an individual member 
 of that body can rise in his place and talk for one hour, two hours, ten 
 hours, twelve hours. . . . 
 
 . . . Your conferees, were unable to get the Senate to recede 'upon 
 this gift from the treasury against the law, to the state of North Caro- 
 lina. By unanimous consent another body legislates, and in the expir- 
 ing hours of the session we are powerless without that unanimous 
 consent. . . . 
 
 1 It may be noted that it is quite common for committee chairmen to state that 
 there will be a chance for the discussion of individual amendments later, but that 
 chance rarely comes. 
 
 2 Congr. Record,, March 3, 1903. 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 205 
 
 Gentlemen, I have made my protest. I do it in sorrow and in hu- 
 miliation, but there it is ; and in my opinion another body under these 
 methods must change its methods of procedure, or our body, backed 
 up by the people, will compel that change, else this body, close to the 
 people, shall become a mere tender, a mere bender of the pregnant 
 hinges of the knee, to submit to what any one member of another body 
 may demand of this body as a price for legislation. 
 
 THE CURRENCY BILL OF 1908 J 
 
 THE SPEAKER. There is a motion before the House to suspend the 
 rules, and the Clerk will read. 
 The Clerk read as follows: 
 
 Resolved, That after the adoption hereof the Committee on Banking and 
 Currency shall be discharged and the House shall proceed to the consideration 
 of H. R. 21871, "A bill to amend the national banking laws ;" debate thereon 
 shall be concluded at not later than 5 o'clock P. M. to-day, the time to be equally 
 divided between the friends and the opponents of the bill, to be controlled on 
 one side by Mr. VREELAND and on the other by Mr. WILLIAMS. It shall be in 
 order to offer in lieu of the bill H. R. 21871 a substitute, namely, H. R. 16730, 
 "A bill to further protect depositors in banks, to secure a safe and elastic 
 emergency currency, and to amend the national-bank act and previous amend- 
 ments thereto." On the conclusion of the debate as herein provided, a vote shall 
 be taken without delay or intervening motion, first on the question of sub- 
 stituting H. R. 16730, if said bill shall have been offered, and then upon the 
 passage of the bill, or the substitute bill in lieu thereof as the case may be. 
 
 General leave to print remarks on the bill is hereby granted for five legislative 
 days. 
 
 ******** 
 
 Mr. PRINCE. Mr. Speaker, there is now presented to this House, a 
 very strange rule of adoption. In the Record of yesterday, that is now 
 on the desk of every Member, under date of May 13, page 6508 of 
 public bills, resolutions, and memorials introduced, is one by Mr. Vree- 
 land, a bill (H. R. 21871) to amend the national bank laws, referred to 
 the Committee on Banking and Currency. 
 
 That is the bill that the House is now asked to take up. Hardly a 
 Member has the bill before him now; it is only within the last ten 
 minutes that it has been printed and brought to the House. That com- 
 mittee is to be discharged from the consideration of a bill referred to 
 them by the Speaker of the House. The committee has not had time 
 to consider it, and a rule is brought in here to discharge a committee 
 of this House. Why set the sixty-four committees of this House aside ? 
 I submit that the House is called upon to insult a committee of this 
 
 1 Congr. Record, May 14, 1908. 
 
206 AMERICAN FEDERAL GOVERNMENT 
 
 House, without its having an opportunity to pass upon the bill, and say 
 that it shall be discharged. [Applause on the Democratic side.] If 
 our heads go, first, yours may follow. Members of this House 223 
 of us if our heads are to be put upon the block now, whose heads are 
 to follow in the desire to carry out the purposes of the leaders on this 
 side when they want to consider any particular business ? I say to you 
 that the Committee on Banking and Currency stand ready to meet this 
 afternoon and report this bill to this House, so that it may proceed in 
 an orderly, regular manner before the country and before the com- 
 mittee of this House. Is there any justification for this proceeding? 
 
 Will the country justify such action as this ? Will the country justify 
 us in saying that a handful of Democrats in the minority can force 
 legislation through this House, where there are 233 Republicans and 
 166 Democrats, or sixty-seven Republican majority? How much of 
 a majority do we need on this side of the House to transact business under 
 the rules ? How can we of this branch, that represents the voice of the 
 American electorate, go before our constituents and say that we have 
 subordinated ourselves, say that we have denied to ourselves the right 
 to proceed according to the rules of the House to have committees re- 
 port, and that committees shall be discharged, because, forsooth, for 
 political exigencies and none other, a bill must be presented to this 
 House and to the country? Who is asking for it? Men on this floor 
 have received thousands of letters asking their vote for or against putting 
 wood pulp and print paper on the free list. Thousands of letters have 
 come here asking us to do something on the anti-injunction bill, to do 
 something on the eight-hour bill, to do something that the people want. 
 I pass the platter around to my colleagues and ask you, who has asked 
 you to do this act ? Political exigency ! Throw to the business people 
 of the United States a bone when they ask you for something that is 
 good. When they ask you for bread, throw them a stone! Can you 
 proceed in this line? You say, perhaps, that I am speaking outside of 
 my party. No, no ! I am speaking, and I have authority to speak, 
 by the very party to which I belong. When we met in conference May 
 5, 1908, I offered the following resolution which was unanimously 
 adopted 
 
 The SPEAKER pro tempore. The time of the gentleman has expired. 
 
 Mr. PRINCE. I ask time to read this resolution. 
 
 Mr. WILLIAMS. Will two minutes longer be sufficient? 
 
 Mr. PRINCE. A minute and a half will do. 
 
 Mr. WILLIAMS. I yield three minutes more to the gentleman, or so 
 much thereof as he may desire. 
 
 Mr. PRINCE. This resolution was unanimously adopted: 
 
 Resolved, That this meeting, or any adjournment thereof, is only a conference 
 and not a caucus, and shall not have the binding effect of a caucus ; and that 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 207 
 
 those who participate in its deliberations shall be absolutely free hereafter to act 
 in accordance with their own judgment with reference to all matters considered 
 before it. 
 
 My fellow- Members, put the yoke upon you, if you will. Walk under 
 the yoke, "under buck," as the expression was in the time of the yoke 
 of oxen. Now, the yoke may be easy and the burden light, but I want 
 to say to you I will not put on the yoke ; I will not assume the burden 
 and go before my constituents and say that I am in favor of makeshift 
 legislation ; that I am in favor of discharging committees of this House ; 
 that I am in favor of overriding the wishes of the people ; that I am to 
 be a mere tobacco sign, to be moved hither and thither, a mere pawn 
 upon the chessboard ! I am here to represent my people. That reso- 
 lution permits me to represent them, and I shall vote against such 
 resolutions as this, and I ask other men who will have to go before 
 their constituents to consider well, because no one of you can say, as 
 they tried to say when the crime of 1873 was committed, "We did not 
 know anything about it." You all know. You have your eyes open. 
 You walk intelligently and knowingly, and if you vote for this resolu- 
 tion, remember that the next time your committee does not see fit to do 
 what some people want you to do, your heads will be laid upon the 
 block, they will be cut off, and the whole legislation for 90,000,000 of 
 people is to roll around three men. [Applause on the Democratic side.] 
 Three men ! And I say here and now, to the House and the country, 
 the do-nothing Congress has been here long enough. If it were not for 
 the bright, brainy, forceful character at the other end of the Avenue, I 
 doubt whether we would have done anything except pass a few appro- 
 priation bills; but, thank God, there is somewhere in this country, at 
 the other end of the Avenue, a man whose ears are to the ground, a man 
 whose heart is in sympathy with the people, and he is insisting upon 
 legislation, and what little we get is through him. It is through him 
 and his special messages that we accomplish anything in the first session 
 of the Sixtieth Congress for the benefit of the 90,000,000 of people that 
 we represent here on this floor. [Applause.] 
 
 Mr. WILLIAMS. How much time have I remaining, Mr. Speaker? 
 
 The SPEAKER. The gentleman has twelve minutes. 
 
 Mr. WILLIAMS. I will ask the gentleman from New York whether 
 he expects to conclude and use all of his time with one speech, or ex- 
 pects to have more than one speech? 
 
 Mr. VREELAND. We will use the remainder of our time with one 
 speech. 
 
 Mr. WILLIAMS. Mr. Speaker, there is nothing hitherto evolved out 
 of the history of the human race quite as kaleidoscopic as the Repub- 
 lican party. Some time ago we upon this side of the Chamber were in- 
 formed by the gentleman from New York [Mr. Payne], the majority 
 floor leader, and by the Speaker's "Rules Deputy," the gentleman from 
 
208 AMERICAN FEDERAL GOVERNMENT 
 
 Pennsylvania [Mr. Dalzell], and by the other member of that com- 
 mittee, the gentleman from New York [Mr. Sherman] that no legisla- 
 tion having a Democratic initiative would be so much as considered by 
 the majority of this House. You announced to the country that we 
 were legislatively disbarred and that there was no use in our burning 
 our lights over legislative study. 
 
 This morning one of the same gentlemen comes to us I started to 
 say, with a carefully concocted rule, but I am afraid the Speaker has 
 got so that he is afraid even of the Committee on Rules but with a 
 carefully concocted motion to suspend the rules, in words in which, I 
 think, I find the fine hand of the gentleman from Pennsylvania not only 
 proposing that the Democrats shall initiate legislation, but undertak- 
 ing to designate just precisely what legislation they shall initiate. [Ap- 
 plause on the Democratic side.] And it is done upon the ground that 
 that legislation bears my name. He does not even permit this side to 
 amend the bill H. R. 16730 to suit itself in as far as it desires to amend 
 it. The rule does not even permit me to amend it in so far as I desire 
 to amend it, especially in one essential part of it, where a typewriter's 
 carelessness in section 7 exists in the bill that was introduced on the 
 7th of February, 1908. 
 
 It is an old adage "Beware of the Greeks bearing gifts"; and if in 
 the old time men were to beware of Greeks bearing gifts, my heaven ! 
 how much more ought we to beware, in these latter days of improved 
 ingenuity, of Illinois, Pennsylvania, and New York Republicans bear- 
 ing gifts. [Laughter and applause on the Democratic side.] 
 
 The Banking and Currency Committee considered a bill, and they 
 reported the bill and recommended it to this House. I am opposed to 
 it. I believe everybody, or nearly everybody, on this side is opposed to 
 it, but there is a chance, at any rate theoretically if not practically, that 
 it would receive serious consideration. Indeed, there are those who 
 believe that in a fair fight with the Vreeland bill it might win. There 
 is not a man of you that would propose to give a moment's serious con- 
 sideration to the Williams currency bill. It is a Democratic bill. If 
 it was the best bill on banking and currency ever introduced in the 
 world, there is not one of you that would dare privately to express an 
 opinion favorable to it without having previously seen the Speaker and 
 explained why you were going to do it and received his permission to 
 do it. [Laughter and applause on the Democratic side.] 
 
 You have virtually served notice on us that we are disbarred legisla- 
 tively, and then you select a bill for us and say, "Play to the gallery, 
 you Democrats," by voting for or against it. It is a better bill than 
 yours and we are for it, but we will not let you obscure the real issue 
 which is the abominability of your bill, by putting ours in front. You 
 are inviting us to commit a tactical error offending those few conscien- 
 tious, honest, nonpartisan Republicans that are opposed to this infamy 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 209 
 
 of the Vreeland bill by substituting ourselves in point, of consideration 
 for them and their views. [Applause on the Democratic side.] We 
 decline to be "deposited in that cavity." [Laughter and applause on 
 the Democratic side.] 
 
 Now, Mr. Speaker, what have you done? You are going to intro- 
 duce a bill to reform the currency that goes to the very commercial 
 vitalization of 80,000,000 of people, and you are going to give four hours 
 of debate ! Four weeks would not have been sufficient. The gentle- 
 man from New York [Mr. Vreeland] says we will oppose his bill "be- 
 cause it is a Republican bill." Why, bless your hearts, we are not in 
 the habit of opposing things because they have a Republican origin, 
 and you know it. [Derisive laughter on the Republican side.] 
 
 There is not one of you laughing that does not know it, and you know 
 that your laugh is not sincere, but hypocritical. Upon this side for the 
 last three years there has not been a good measure recommended by 
 a Republican President or a Republican committee good in our 
 opinion, I mean, of course that we have not advocated and that we 
 have not helped through. It has been our boast that it is no longer a 
 maxim that "the duty of an opposition was to oppose," but that the 
 duty of the opposition is to oppose wrong things and advocate right 
 things, no matter whence they come. [Applause on the Democratic 
 side.] The history of the party in the rate bill, the history of the party 
 in connection with the anti-injunction recommendations of the President, 
 the history of the party in connection with the employers' liability bill, 
 all prove that what I state is true, and proves your recently attempted 
 vaudeville laugh is a pretense and hypocrisy. 
 
 Who stands for this Vreeland bill? Nobody but the Republican 
 machine in this House. The gentleman from Pennsylvania, Mr. Roth- 
 ermel, telegraphed all the banks within his district and got answers 
 this morning from nineteen of them, and only three of them did not 
 reply, advising him to beat the Vreeland bill. They regard it as worse 
 than nothing. The people are not demanding it; the business men, 
 farmers, and the banks are not demanding it. Nobody is demanding 
 it. You, even, that Republican machine over there, are not demanding 
 it because you want it. You are demanding it merely to be able to go 
 before the people and say: "We passed something in the shape of an 
 emergency-currency bill." You are passing it simply to get something 
 into conference, and in a secret conference committee to hatch pluto- 
 cratic mischief. There is not one of you that does not know that it is 
 an abomination and a miserable makeshift. It ought to be called a bill 
 of "authorization for clearance-house associations of national banks 
 which have violated the law," or a "bill of indemnity for Secretaries of 
 the Treasury who have suspended the operation of the law in behalf 
 of the national banks and clearance-house associations." [Applause 
 on the Democratic side.] 
 
 14 
 
210 AMERICAN FEDERAL GOVERNMENT 
 
 CONFERENCE REPORT ON THE CURRENCY BILL 1 
 
 Mr. VREELAND. Mr. Speaker, I move to suspend the rules and adopt 
 the conference report which I present. 
 
 The SPEAKER. The gentleman from New York moves to suspend 
 the rules and agree to the conference report which he presents. 
 
 The conference report was read, as follows : 
 
 The committee of conference on the disagreeing votes of the two Houses on 
 the amendment of the Senate to the bill (H. R. 21871) to amend the national 
 banking laws, having met, after full and free conference have agreed to recom- 
 mend and do recommend to their respective Houses as follows: 
 
 That the House recede from its disagreement to the amendment of the Senate, 
 and agree to the same with an amendment as follows : Strike out all of the mat- 
 ter inserted by said Senate amendment and insert in lieu thereof the following: 
 
 "That national banking associations, each, having an unimpaired capital 
 and a surplus of not less than 20 per cent, not less than ten in number, having 
 an aggregate capital and surplus of at least $5,000,000, may form voluntary 
 associations to be designated as national currency associations. The banks 
 uniting to form such association shall, by their presidents or vice-presidents, 
 acting under authority from the board of directors, make and file with the 
 Secretary of the Treasury a certificate setting forth the names of the banks 
 composing the association, the principal place of business of the association, 
 and the name of the association, which name shall be subject to the approval 
 of the Secretary of the Treasury. Upon the filing of such certificate the associ- 
 ated banks therein named shall become a body corporate, and by the name so 
 designated and approved may sue and be sued and exercise the powers of a 
 body corporate for the purposes hereinafter mentioned: Provided, That not 
 more than one such national currency association shall be formed in any city: 
 Provided further, That the several members of such national currency associa- 
 tion shall be taken, as nearly as conveniently may be, from a territory com- 
 posed of a State or part of a State, or contiguous parts of one or more States : 
 And provided further, That any national bank in such city or territory, having 
 the qualifications herein prescribed for membership in such national currency 
 association, shall, upon its application to and upon the approval of the Secretary 
 of the Treasury, be admitted to membership in a national currency association 
 for that city or territory, and upon such admission shall be deemed and held a 
 part of the body corporate, and as such entitled to all the rights and privi- 
 leges and subject to all the liabilities of an original member: And provided 
 further, That each national currency association shall be composed exclusively 
 of banks not members of any other national currency association. 
 
 "The dissolution, voluntary or otherwise, of any bank in such association shall 
 not affect the corporate existence of the association unless there shall then remain 
 less than the minimum number of ten banks : Provided, however, That the reduc- 
 tion of the number of said banks below the minimum of ten shall not affect the 
 existence of the corporation with respect to the assertion of all rights in favor of 
 or against such association. The affairs of the association shall be managed by 
 a board consisting of one representative from each bank. By-laws for the 
 
 1 Congr. Record, May 27, 1908. 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 211 
 
 government of the association shall be made by the board, subject to the ap- 
 proval of the Secretary of the Treasury. A president, vice-president, secretary, 
 treasurer, and an executive committee of not less than five members shall be 
 elected by the board. The powers of such board, except in the election of offi- 
 cers and making of by-laws, may be exercised through its executive committee. 
 "The national currency association herein provided for shall have and exer- 
 cise any and all powers necessary to carry out the purposes of this section, 
 namely, to render available, under the direction and control of the Secretary of 
 the Treasury, as a basis for additional circulation any securities, including 
 commercial paper, held by a national banking association. For the purpose of 
 obtaining such additional circulation, any bank belonging to any national 
 currency association, having circulating notes outstanding secured by the 
 deposit of bonds of the United States to an amount not less than forty per 
 centum of its capital stock, and which has its capital unimpaired and a surplus 
 of not less than twenty per centum, may deposit with and transfer to the 
 association, in trust for the United States, for the purpose hereinafter provided, 
 such of the securities above mentioned as may be satisfactory to the board of 
 the association. The officers of the association may thereupon, in behalf of 
 such bank, make application to the Comptroller of the Currency for an issue 
 of additional circulating notes to an amount not exceeding seventy-five per 
 centum of the cash value of the securities or commercial paper so deposited. 
 The Comptroller of the Currency shall immediately transmit such application 
 to the Secretary of the Treasury with such recommendation as he thinks proper, 
 and if, in the judgment of the Secretary of the Treasury, business conditions in 
 the locality demand additional circulation, and if he be satisfied with the char- 
 acter and value of the securities proposed and that a lien in favor of the United 
 States on the securities so deposited and on the assets of the banks composing 
 the association will be amply sufficient for the protection of the United States, 
 he may direct an issue of additional circulating notes to the association, on 
 behalf of such bank, to an amount in his discretion, not, however, exceeding 
 seventy-five per centum of the cash value of the securities so deposited: Pro- 
 vided, That upon the deposit of any of the State, city, town, county, or other 
 municipal bonds, of a character described in section 3 of this act, circulating 
 notes may be issued to the extent of not exceeding ninety per centum of the 
 market value of such bonds so deposited: And provided further, That no na- 
 tional banking association shall be authorized in any event to issue circulating 
 notes based on commercial paper in excess of thirty per centum of its unim- 
 paired capital and surplus. The term "commercial paper" shall be held to 
 include only notes representing actual commercial transactions, which when 
 accepted by the association shall bear the names of at least two responsible 
 parties and have not exceeding four months to run, etc. [There followed 
 numerous specific regulations.] 
 
 And the Senate agree to the same. 
 
 TED WARD B. VREELAND, 
 
 Managers on the part of the House.} THEODORE E. BURTON, 
 
 ( JOHN W. WEEKS, 
 (NELSON W. ALDRICH, 
 
 Managers on the part of the Senate. 1 W. B. ALLISON, 
 
 [EUGENE HALE. 
 
212 AMERICAN FEDERAL GOVERNMENT 
 
 The SPEAKER. Is a second demanded? 
 
 Mr. Pujo. Mr. Speaker, I demand a second. 
 
 The SPEAKER. A second is ordered, under the rule. 
 
 Mr. Pujo. I ask the gentleman from New York, in the interest of 
 the orderly enactment of legislation, that we be allowed an hour on a 
 side, at least, of debate, the gentleman from New York to control one 
 half of the time and the ranking Member on the committee on this side 
 to control the other half of the time. It is known to all Members that 
 the bill has just reached the desks about two minutes ago, and there is not 
 a Member, not even the conferees, who have had an opportunity to make 
 themselves familiar in the slightest degree with the provisions of this bill ; 
 and I ask the gentleman, in the interest of orderly legislation 
 
 Mr. VREELAND. I want to make a parliamentary inquiry. Does this 
 come out of anybody's time? 
 
 The SPEAKER. No ; the gentleman made a parliamentary inquiry 
 somewhat extended, but the Chair does not take it out of the time of 
 either gentleman. The gentleman from New York is entitled to twenty 
 minutes and the gentleman from Louisiana is entitled to twenty minutes. 
 
 Mr. Pujo. Now, Mr. Speaker, I ask unanimous consent of this 
 House that debate on the conference report upon what is known as the 
 " national currency" legislation, proposed a few moments ago, be ex- 
 tended so as to allow one hour for each side, the time to be controlled 
 by the gentleman from New York and the ranking Member on this side. 
 
 The SPEAKER. Is there objection? 
 
 Mr. VREELAND. I regret to say that I shall have to object, for the 
 reason [Cries of "No, no!"] 
 
 The SPEAKER. Objection is heard. 
 
 Mr. VREELAND. I want to say in explanation that a great many 
 
 gentlemen have told me [Cries of "Regular order!" on the 
 
 Democratic side]. 
 
 The SPEAKER. The gentleman is in regular order. The gentleman 
 has twenty minutes. 
 
 Mr. CLARK of Missouri. Are you taking it out of his time? 
 
 The SPEAKER. The Chair is keeping the time. 
 
 Mr. COCKRAN. Would it be in order to ask an extension to half an 
 hour? 
 
 The SPEAKER. The gentleman from New York asks unanimous 
 consent for an extension of the time to thirty minutes on a side instead 
 of twenty minutes on a side. 
 
 Mr. VREELAND. I consent to that. 
 
 The SPEAKER. The Chair hears no objection. The gentleman from 
 New York is entitled to thirty minutes and the gentleman from Louisiana 
 is entitled to thirty minutes. 
 
 Mr. Pujo. Mr. Speaker, I will ask the Chair to inform me when I 
 have used three minutes. 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 213 
 
 This is a composite bill. It incorporates the Aldrich bill and the 
 Vreeland bill, and as presented is a composite measure here. It au- 
 thorizes the issuance of five hundred millions of our circulating cur- 
 rency, should the bill be passed, to be based upon United States bonds, 
 State bonds, county bonds, municipal bonds, all with a taxing power 
 behind them. So far those are the main features of the Aldrich bill. 
 Each political autonomy is vested with the power to levy a tax to pro- 
 tect the notes should the issuing bank fail to retire it when presented 
 and the bonds deposited as security fail to realize a sufficient sum when 
 disposed of. The other features of the bill are novel, and I am surprised 
 and amazed to witness their adoption for the first time by the Republican 
 party an asset currency pure and simple, a subtreasury scheme 
 practically. 
 
 I call attention to the language on page 4 of the bill. When uniting 
 banks with a minimum capital of $5,000,000 form an association, they 
 can have money issued by dispositing certain securities with the Treas- 
 urer of the United States. Now, what is the character and what is the 
 class of securities required to be deposited ? I read, beginning on page 3 : 
 
 The national currency association herein provided for shall have and exercise 
 any and all powers necessary to carry out the purposes of the section, namely, to 
 render available, under the direction and control of the Secretary of the Treas- 
 ury, as a basis for additional circulation, any securities, including commercial 
 paper, held by a national banking association. 
 
 A warehouse receipt issued for any agricultural product, an elevator 
 receipt for wheat, for corn, for oats, held by a bank can be used for 
 deposit with this association, and in turn with the Secretary of the 
 Treasury, as the basis for circulation. 
 
 [Here the hammer fell.] 
 
 I will use two minutes more of my time, Mr. Speaker. 
 
 The ninety-day draft of a merchant in Kansas City who would ship 
 hay to New York, or a ninety-day draft of a merchant in Kansas City 
 who would ship a carload of mules to Louisiana, drawn by him, ac- 
 cepted by the buyer, and discounted at the bank, becomes commercial 
 paper, with two names on it, a legal subsisting basis for this currency. 
 
 I want to congratulate the Republican party, being a sound-money 
 party (purely in a Pickwickian sense), for advocating a scheme like this. 
 Evidently the political emergency must be great, otherwise they would 
 not in a moment, without giving an opportunity to discuss the measure, 
 try to force such a currency upon the American people. 
 
 Mr. VREELAND. I regret that I felt obliged to object to an extension 
 of time for debate upon this bill, but quite a number of gentlemen on 
 this side who wish to get away on afternoon trains have informed me 
 that if the extension is granted they will be unable to remain until a vote 
 is taken. 
 
214 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. Speaker, the motion which I have made to agree to the conference 
 report means that the Republican conferees on the part of this Repub- 
 lican House and the conferees on the part of the Republican Senate have 
 agreed upon a financial bill, have brought it in here with a unanimous 
 report, and hope that it will be adopted by this Republican House. 
 
 Mr. Speaker, we believe that the Republican party has not ceased to 
 be a great constructive party. We believe that it is still the great busi- 
 ness party of the country. We believe that this conference report now 
 before us is evidence that the Republican party is still a great cohesive 
 body, with power to get together and place upon the statute books legis- 
 lation which will prevent the recurrence of such a disaster as befel the 
 American people last October. 
 
 Mr. Speaker, the concessions that have been made between the House 
 and the Senate in the preparation of this conference report are honorable 
 concessions, such as might properly be made. The financial bill which 
 we have brought in here today is the bill passed by this House with 
 amendments to which the House conferees have consented. We be- 
 lieve that it is a good bill and one which this House may place upon the 
 statute books, satisfied that it will carry out the purpose for which it is 
 enacted. The bill which we have brought in here with amendments 
 is substantially the House bill in all its essential features that was adopted 
 by the Republican conference, drawn by a committee appointed by that 
 conference, and passed through the House of Representatives. 
 
 AMENDMENTS TO THE HOUSE BILL 
 
 I desire, first, to refer to the amendments which have been made to 
 the House bill. We have added to our bill a portion of the Senate bill. 
 I suppose the minority upon this floor will ring all the changes and use 
 their keenest sarcasm and invective in charging that we have adopted 
 the Aldrich bill. But, Mr. Speaker, although the leader of the minority 
 may run his dagger through the cloak of the Aldrich bill he will find 
 that the body has been removed from the inside of it. What were the 
 objections to the Aldrich bill? What were the criticisms made upon 
 this side of the Chamber or by Republican Members of this House when 
 the Aldrich bill came over from the Senate? We all understand the 
 objections which were made to section 8 of that bill, changing the law 
 applying to the reserves of banks, and section n, with its restrictions 
 upon the directorate and officers of banks. There are many who be- 
 lieve that these provisions might be changed so that they would be use- 
 ful as a part of our banking laws. But it was thought that they might 
 better be left to be considered by the commission provided in this bill. 
 But there was further objection to the Senate bill as it came to the 
 House by many upon this side of the Chamber. What is the purpose 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 215 
 
 of this law ? It is to provide a great reservoir of currency, to be drawn 
 upon only in case of need. It is not intended to provide for the ordinary 
 needs of business. It is to provide against a currency famine such as 
 we had last October. It is to give a feeling of confidence to the bankers 
 of the country and to the depositors of the banks. It is to assure them 
 against fright and panic which, for some unexpected reason, may take 
 possession of the people. It is to provide that $500,000,000 shall be 
 printed and ready for use, held as a reserve, to come out only with the 
 consent of the Secretary of the Treasury and upon his certificate that 
 it is needed. 
 
 Mr. McHENRY. The House of Congress, Mr. Speaker, is supposed 
 to be both a deliberative and a representative body, but in this action 
 which you now propose the people are to learn that this legislative body 
 is governed not by deliberation, but by party passion ; controlled not by 
 the people, but by one man. You can pass this iniquitous measure if 
 you choose, because you have the power ; but there is one thing you can 
 not do you can not compel the people to accept the provisions of a 
 law which they do not approve. 
 
 For six long, tedious months the Committee on Banking and Currency 
 have given faithful study and consideration to this vitally important 
 question. The committee was unanimous in a desire to frame a non- 
 partisan measure which would work to the good of all the people and 
 not for the special interest of a favored few. There were some basic 
 principles upon which we disagreed, but the disagreement was an honest 
 and nonpolitical one. But the gentleman from New York, Mr. Vree- 
 land, who seems to have become the spokesman for the Republican 
 managers in the House, appeared before our committee at the public 
 hearings, literally whipping the Republican members into line, injecting 
 a discordant partisan element in our deliberation. We have been 
 frankly told that a panic was on and another one coming, and that it 
 was necessary, in order to secure the election of a Republican President, 
 that some sort of financial legislation be placed upon the statute books. 
 No matter what, only so it was something. We accept the challenge, 
 Mr. Speaker. But while we of the minority are fighting with every 
 ounce of strength we have to prevent the passage of this bill, we feel that 
 it is a hopeless fight ; that the orders from Wall street and Republican 
 party bosses are more powerful in this Congress than the appeals or the 
 
 needs of the people. 
 
 ******** 
 
 I am anxious, Mr. Speaker, that proper currency legislation shall be 
 enacted, but I am not willing that the people shall be fooled and that 
 the sovereign right of the Government to issue money shall be taken 
 from it and delegated to Wall street gamblers. Rather than have a bill 
 of this kind, it would be infinitely better for the country to have no legis- 
 lation at all at this session. 
 
216 AMERICAN FEDERAL GOVERNMENT 
 
 Under the rule by which this bill is brought up for action practically 
 all debate is shut off and no amendments permitted. If you will give 
 us two days' debate, Mr. Speaker, the bill can probably be so amended 
 that it will be a workable measure and fair to all parts of the country alike 
 and to all people, but this is not a part of your plan the Wall street 
 plan demands that the bill shall go through just as it was, without any 
 changes. It has just come from the conference report and we are to 
 vote on it immediately, and I will venture the assertion that nine out of 
 ten Members of the House have not had time to read the bill do not 
 know what they are voting upon, and are simply obeying the order of 
 the party Wall street bosses. Why this haste ? If the measure is an 
 honest one, it will bear the light of investigation and intelligent discus- 
 sion. Is it the part of a deliberative body to rush a conference report 
 here and demand that we shall speak and vote aganist the measure 
 without even having had time to read the bill? It is now just twelve 
 minutes since the printed conference report has been delivered, and with- 
 out any study or preparation whatever we are called upon to register 
 our protest against the bill. This represents the most important legis- 
 lation that Congress has -had before it since the civil war. To now vote 
 upon it, without a full knowledge of the bill and without any privilege to 
 amend, do you suppose, sir, that the American people can view our 
 action with favor? 
 
 If you will give us reasonable time for debate, I have sufficient con- 
 fidence in the intelligence and integrity of the individual Members of 
 the House to believe that the bill will either be honestly amended or 
 killed outright, which, for the country's sake and for the Republican 
 party's sake, too, would be the better plan. 
 
 The bill provides that ten banks with a total capitalization of 
 $5,000,000 may go together and form themselves into a so-called " clear- 
 ance-house association," with the power delegated to them by the Gov- 
 ernment to issue currency to the extent of $500,000,000. At the present 
 time, Mr. Speaker, the currency of our country is on what is termed a gold 
 and United States bond basis. That is, every dollar of currency except 
 our present outstanding national-bank notes is guaranteed by the actual 
 gold or silver coin in the United States Treasury and is redeemable in 
 gold or silver on demand. In the establishment of the national banking 
 system, it was agreed that a national bank could, to the extent of its 
 capital, issue money against the United States bonds. The United 
 States Government, through this medium, merely divides up the bonds, 
 which represent the people's obligation, into small denominations in 
 order that they may be used in circulation to meet the demands of trade. 
 So successful has been the practical working of this plan that to-day no 
 man thinks of looking at a note to see whether it is a national-bank note, 
 a United States Treasury note, a gold certificate, or a silver certificate. 
 The people have absolute confidence in their currency at the present 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 217 
 
 time. If anything is needed, it is a bill which will unify our currency 
 system and not make it more diverse, as this does. As I have already 
 told you in my previous address, the country is now suffering more from 
 lack of confidence than lack of money, and that any legislative action 
 upon this question should be with the idea of restoring confidence, not 
 of creating further doubt or distrust in the minds of the people as to the 
 character or value of the money which they are to receive in exchange 
 for the sale of their labor or the products of their labor. This bill is the 
 entering wedge for a radical and violent change in the currency of our 
 country. It means the retirement of the present United States bond- 
 secured note as rapidly as it can be done under the law, and to replace 
 the national bond security with whatever railroad or other bonds or notes 
 which a bank issuing currency may have. 
 
 I will not go into the economic side of this question or burden you with 
 statistics, but will discuss the practical workings of the bill and prove to 
 your satisfaction, if you are open to conviction, that the bill is imprac- 
 tical; that its use will be confined entirely to Wall street banks; that 
 it will not stop panics, but, on the contrary, will precipitate them ; that 
 it will absolutely insure the monopoly of the people's money by predatory 
 interests. In brief, sir, I will prove to you that it is a Wall street measure 
 pure and simple ; that it is a measure against the honest business in- 
 terests and producers of all classes, and to enact it into a law will be a 
 crime against the people which they will resent at the polls in November. 
 [Applause.] 
 
 BRIEF SUMMARY OF THE BILL 
 
 I do not want to burden the Record by offering the entire bill, but will 
 briefly outline its essential features. 
 
 First. It provides for an association of not less than ten banks, with a 
 total capitalization of not less than $5,000,000 for the purpose of issuing 
 money. Each bank in said association to have one vote, and to choose a 
 . board of five managers, of which three shall constitute a quorum for the 
 transaction of business. 
 
 Second. It provides that the total issue shall not exceed $5,000,000. 
 
 Third. That the issue shall be based upon national, State, county, or 
 municipal bonds, railroad stock, or bonds and notes or any security 
 which a bank may own or hold as collateral. 
 
 Fourth. It provides that the rate of tax on said circulation shall be 5 
 per cent per annum for the first month and i per cent per annum for each 
 additional month until a maximum tax of 10 per cent is reached. 
 
 Fifth. It provides an interest rate of i per cent per annum on Gov- 
 ernment deposits perhaps. 
 
 The Wall street interests have become alarmed at the attitude of the 
 people in their demand for banking and currency reform. Realizing 
 
218 AMERICAN FEDERAL GOVERNMENT 
 
 that all such demands are eventually enacted into law, they have de- 
 cided, while they have the power, to fool the people under threat of an- 
 other panic, and enact a law which will continue their present control of 
 the currency of the country. That is, if a supplemental issue of currency 
 is to be authorized, it must not be allowed to pass beyond the control of 
 the large banking syndicates, so the underlying principles of this forced 
 measure may be found in two definite objects. 
 
 First, to enable them to control and regulate panics at will and to stop 
 panics when it suits their purposes to have them stopped. 
 
 Second, to provide a permanent fund for the Wall street gambler's 
 use. 
 
 Mr. WILLIAMS. Mr. Speaker, you were never so highly honored in 
 all your life as you have been to-day. This bill ought to be entitled the 
 " Cannon- Aldrich political emergency bill." [Applause on the Demo- 
 cratic side.] Your influence over this House was never so vastly shown 
 as to-day. But the other day the House said, "the Aldrich bill is alto- 
 gether wicked," and it would have none of it. It was not good enough 
 for the House. But the other day the Republican Senate said that the 
 Vreeland bill was altogether iniquitous and destructive of the best in- 
 terests of the country, and it would have none of it. Nobody so poor in 
 the House as to do reverence to the Aldrich bill ; nobody so poor in the 
 Senate as to do reverence to the Vreeland bill. But to-day the great dis- 
 covery two iniquities compose a perfect good. Neither bill was good 
 enough for either House, but to-day both bills combined are good enough 
 for both Houses. [Applause on the Democratic side.] Why, this comes 
 in response to the sincere prayer of the Speaker, because he does pray. 
 [Laughter.] It has not been long since his prayer began to bear this re- 
 frain: "Anything, O God, anything; it makes no difference what, even 
 if it be really nothing, just so that I can call it something; anything be- 
 fore the House adjourns." [Applause on the Democratic side.] 
 
 "It will not do for the Republican party to go to the country with ab- 
 solutely nothing. It must have something that can be called something 
 by somebody somewhere." And in response to that prayer, directed not 
 to the Almighty, but to the members of the House here present, and with 
 the conference report on public buildings held back, those who were 
 lions to thwart the pathway of the Aldrich bill are now lambs. I find on 
 page 6635 of the Congressional Record these words of the gentleman 
 from Ohio [Mr. Burton] referring to the Aldrich bill: 
 
 If it passes this House, it will be without my vote and without my support. 
 
 Now you bring back the Aldrich bill. [Applause on Democratic side.] 
 
 I said the other day, because sometimes I am accidentally a prophet, 
 
 that "nobody here wanted the miserable makeshift that passed the 
 
 House, but that you merely wanted to get into conference so that you 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 219 
 
 could go back with the Aldrich bill," and that was the reply that was re- 
 ceived from that side of the House, as worded by the gentleman from 
 Ohio. 
 
 The gentleman from New York [Mr. Cockran] says that there is no 
 such thing as an emergency currency. The gentleman is mistaken. 
 Emergency Republican currency is absolutely necessary to Republican 
 political emergencies, and necessary right now. [Loud applause on 
 Democratic side.] 
 
 The SPEAKER. The time of the gentleman has expired. 
 
 Mr. VREELAND. Mr. Speaker, has the other side used up all of its 
 time? 
 
 The SPEAKER. Yes. 
 
 Mr. VREELAND. I yield to the gentleman from Ohio [Mr. Burton] 
 the remaining time on this side. [Applause on the Republican side.] 
 
 Mr. BURTON of Ohio. Mr. Speaker, the incompetency of the Demo- 
 cratic party to rule this people was never more emphatically displayed 
 than by their course on this currency legislation. [Applause on the Re- 
 publican side.] Last autumn there was a frightful panic. The mightiest 
 financial institutions tottered as if they would fall, the wheels of commerce 
 and industry were clogged, hundreds of thousands were thrown out of 
 employment. Men who had walked with head erect and proud were 
 compelled to beg in the streets for bread, and much of the cause of this 
 distressful condition was the rigidity and insufficiency of our currency 
 system. 
 
 The Republicans of this House came here determined, in spite of bar- 
 ren theories, in spite of selfish interests, and against the solid opposition 
 of the Democratic party, to do something for this country, so that such a 
 calamity might not occur again. [Applause on the Republican side.] 
 
 If you gentlemen had been in power and had gone home, having done 
 nothing, you might better have called on the rocks and the hills to fall on 
 you because of your inability to take care of this most urgent problem. 
 And yet you fill the air with cries that this measure is prompted only by a 
 political emergency, that it is partisan. Gentlemen, if there is any ques- 
 tion which should be approached dispassionately, if there is any question 
 wherein we should seek to grasp the real situation and solve it it is this 
 which relates to the money supply of the country. 
 
 The gentleman from New York [Mr. Cockran] wants to know what is 
 an emergency. If he had been in New York, or even in any small manu- 
 facturing town last October or November, he would have gotten a lesson 
 as to what is an emergency that would have sunk deep, and which he 
 never would have forgotten. 
 
 You say we have a composite bill, made up of the Aldrich and the 
 Vreeland provisions. The Aldrich measure, with its iniquities, you say 
 is brought in here. Why is it, gentlemen, that you have not said one 
 word about this fact, that the basic principle of your bill the Williams 
 
220 AMERICAN FEDERAL GOVERNMENT 
 
 bill was identical with that of the Aldrich bill the issuance of cur- 
 rency based upon municipal or public bonds ? [Applause on the Repub- 
 lican side.] Not only did you make municipal and State bonds the basis 
 for currency, but you would have allowed them to constitute half of your 
 reserves. You out-Aldriched Aldrich in your bill. [Applause on the 
 Republican side.] 
 
 I trust we will not hear from you in this next campaign about the Al- 
 drich bill unless you explain that fact. Why, it looks as if Senator Al- 
 drich had imitated you in drawing his measure. [Laughter.] 
 
 The gentleman from Mississippi has quoted at length some remarks 
 of mine. I want to congratulate him, or gentlemen on either side, who 
 read my remarks ; it is an evidence they are very thorough students and 
 that they will be thoroughly posted. He quoted a statement of mine 
 that I would not vote for the Aldrich bill. I have not, and am not going 
 to [derisive cries on the Democratic side], because that bill gave the right 
 to issue emergency currency exclusively to banks which had State, county, 
 and municipal bonds. I do not believe in that on principle. I do not 
 believe that you ought to compel banks to carry a stock of bonds as a 
 requisite for the issuance of currency. 
 
 But this bill throws open to any national bank of the country the op- 
 portunity to become a member of an association of banks, each of which 
 may issue currency upon its resources that is, upon commercial paper 
 or securities approved by the association. 
 
 There must be at least ten banks associated, having a capital and sur- 
 plus of not less than $5,000,000. But if any single banking association 
 having public bonds wishes to issue currency under the method embodied 
 in the Aldrich bill, it may do so. 
 
 On this side we have had the courage to bring forward a measure for 
 the relief of the country and to meet the fear of panic and distress ; on 
 the other side you have fled from your own measure. [Laughter on the 
 Republican side.] And now you accuse others because they introduce a 
 bill for the purpose of meeting the existing situation, containing a prin- 
 ciple to which even you can not make objection. 
 
 FROM THE SENATE DEBATE ON THE CURRENCY BILL 1 
 
 MR. LA FOLLETTE. Consider for one moment the proceedings which 
 have led up to this present situation ! Here we have thrust in upon the 
 closing hours of this session legislation, the most far-reaching in its con- 
 sequences to the American people of any which Congress has considered 
 for many years. It has heen held in conference for many weeks, while 
 the session has been permitted to drag along. Appropriation bills have 
 been gotten out of the way. Bills which found favor with those who con- 
 
 1 Congr. Record, May 29, 1908. See other parts of this debate, supra, p. 156 et seq. 
 
SENATE AND HOUSE CONFERENCE COMMITTEES 221 
 
 trol have been allowed to pass. For days and days we have been held 
 here in idleness, while many urgent public measures have been denied 
 consideration. Efforts have been made from day to day to take up im- 
 portant public measures only to encounter the opposition of the leaders 
 who control the proceedings of the Senate. Day after day has been 
 wasted in filibustering, demanding the reading of the Journal, at length 
 making dilatory motions, interposing bills of private and local interest, 
 and all of the many ways known to those who seek to delay legislation 
 have been practiced by those who assume here to direct and control in 
 legislation. Members of both Houses have grown restive and eager to 
 return to their homes, and still this currency legislation was held in con- 
 ference. From time to time we have been told that there would be no 
 legislation upon this subject ; that no conference report would be made. 
 One other measure, the public building bill, has likewise been held back. 
 Finally, when the decks are all cleared, to the surprise of everybody, the 
 conference report is brought forward in its present form, forced through 
 one branch of Congress with thirty minutes debate on a side, and brought 
 into the Senate, subject to no possible change under the rules, to be swal- 
 lowed or rejected whole. And, yet, this is called the " greatest delibera- 
 tive body in the world!" 
 
 Is this fair legislative procedure ? Is it just to the American people ? 
 If it were a good measure in the public interest, would it have been nec- 
 essary to take this course to pass it ? Why have the very best provisions 
 been stricken out ? Why has the amendment strengthening and protect- 
 ing the bank reserves been dropped ? Why has the penalty clause to pre- 
 vent reckless inflation and contraction been omitted ? Why was the sec- 
 tion to prevent the investment of bank funds in the stocks and bonds of 
 other corporations promoted and controlled by bank directors suppressed ? 
 Why is it made possible for a banking association to use bonds as a basis 
 for currency issue without respect to their par value ? Why is the rail- 
 road bond provision again thrust in under different phraseology ? And, 
 sir, why is all this done at a time and in a form that admits of neither 
 deliberate consideration nor amendment to meet these wrongful changes ? 
 
 Mr. President, I can not expect, single-handed and alone, to defeat 
 this measure, whatever its character. If it were possible, I should be 
 fully warranted in obstructing its passage in any parliamentary way to 
 secure its everlasting defeat. I can not hope to do this alone. But, sir, 
 I can and do hope if the proposition which I shall hereafter submit 
 is rejected to so husband my resources as to hold this measure up to 
 public view long enough to arouse the country and bring public opinion 
 to my support. This course is open to me under the rules, and this 
 course I shall, in the discharge of what I believe to be a public service, 
 pursue to the limit of my impaired physical strength. 
 
 Mr. President, I have for the most part confined myself to a discussion 
 of the one phrase to which I sought the attention of the chairman of the 
 
222 AMERICAN FEDERAL GOVERNMENT 
 
 Finance Committee and of the Senate at the very outset of my remarks. 
 I want to say that I questioned him with the hope and expectation of 
 being able to arrive at an early understanding of the scope and meaning 
 of this bill as interpreted by him in so far as it relates to railroad securi- 
 ties. I have been able to gather from the statements made by the Senator, 
 as found in the Record, upon this question just what his views were with 
 respect to railroad bonds and their relation to this proposed legislation. 
 
 But I felt that as a foundation and preliminary to a proposition which 
 I had to submit to the Senator from Rhode Island I wanted right in the 
 Record of this day a definition of that particular phrase. I was unfortu- 
 nate, perhaps. I am not able now to say why, but I did not succeed in 
 getting it and was forced to go to the Congressional Record to obtain the 
 best definition that I could from the chairman of the Finance Committee. 
 
 I am awfully sorry, Mr. President, to be obliged to call your attention 
 to the fact that there is not a quorum present. 
 
 The PRESIDING OFFICER (Mr. Bacon in the chair). The suggestion 
 being made that a quorum is not present, the Secretary will call the roll. 
 ******** 
 
VII 
 
 ORGANIZATION AND RULES OF THE 
 
 HOUSE 
 
 THE PROCEDURE OF ORGANIZING THE HOUSE l 
 
 [An account of the formalities involved in the organization of the House of 
 Representatives is given in the following extract from the Record. It will be 
 noted that the clerk of the preceding Congress makes out the roll of membership, 
 a function which at times might become of great importance. The candidates 
 for the speakership and for other offices are, of course, determined by party 
 caucuses preceding the session of the House, so that the election is merely 
 formal. The rules of the preceding Congress are ordinarily adopted without 
 much objection. The last general revision took place in 1890. Should any 
 member attack the rules, this continuity of their enforcement is always in- 
 sisted upon. Effectual opposition to the system of rules at this time would be 
 possible only if a speaker had been elected who was in favor of such a change, 
 because otherwise his entire influence would be exerted against such a change. 
 At this time the entire committee organization is as yet potential in the Speaker's 
 mind, and he can exercise a great influence over the members of the House 
 through appointments to important positions. See in this connection Wilson, 
 Congressional Government, and Reinsch, American Legislatures, chap. 2. It 
 will be noted that on this occasion, even before the rules had been adopted, only 
 one man was recognized, the mover of the resolution, and that all other 
 speakers were obliged to get their recognition through him; also that he moved 
 the previous question before finally yielding the floor.] 
 
 THIS day, in compliance with the provisions of the Constitution, the 
 Members-elect of the House of Representatives of the Sixtieth Congress 
 assembled in their Hall and were called to order by Mr. Alexander 
 McDowell, the Clerk of the last House. 
 
 The CLERK. Prayer will be offered by the Chaplain of the last House. 
 
 Prayer was offered by the Rev. Henry N. Couden, D.D., Chaplain 
 of the last House. 
 
 The CLERK. The clerk will call the roll by States to ascertain if a 
 quorum of the Sixtieth Congress is present. 
 
 The roll, as made by the Clerk, was then called, when the following 
 members answered present: 
 
 [Here follows a list of the members.] 
 
 1 Congr. Record, Dec. 2, 1907. 
 223 
 
224 AMERICAN FEDERAL GOVERNMENT 
 
 The CLERK. Three hundred and sixty-nine Members have answered 
 to their names ; a quorum is present. We are now ready for nominations 
 for Speaker. 
 
 ELECTION OF SPEAKER 
 
 Mr. HEPBURN. Mr. Clerk, I am directed by the unanimous vote of 
 the Republican Members of this House to present the Hon. Joseph G. 
 Cannon, a Representative-elect from the State of Illinois, as their 
 candidate for Speaker of this Sixtieth Congress. [Loud and long- 
 continued applause on the Republican side.] 
 
 Mr. CLAYTON. Mr. Clerk, I nominate for Speaker of the House of 
 Representatives of the Sixtieth Congress of the United States the Hon. 
 John Sharp Williams, a Representative-elect from the State of Missis- 
 sippi. [Loud and long-continued applause on the Democratic side.] 
 
 The CLERK. Are there any other nominations? If not, the nomina- 
 tions are closed. The following tellers will please take their places at the 
 desk: Mr. Heflin of Alabama, Mr. Rucker of Missouri, Mr. Wheeler 
 of Pennsylvania, and Mr. Murdock of Kansas. 
 
 [The question was taken; and there were for Mr. Cannon, 207 
 votes; for Mr. Williams, 159 votes; not voting, 24.] 
 
 Mr. Cannon, having received a majority of all the votes cast, is elected 
 Speaker of the Sixtieth Congress. [Applause.] The Clerk will appoint 
 Mr. Williams of Mississippi, Mr. Sulloway of New Hampshire, and 
 Mr. Ollie M. James, of Kentucky, as a committee to escort the Speaker- 
 elect to the Chair. [Applause.] 
 
 [When Mr. Cannon appeared with the committee designated, the 
 Members of the House, rising in a body, greeted him with loud and 
 general applause, which was renewed as he ascended to the chair.] 
 
 Mr. WILLIAMS. Fellow-Representatives, the second to the highest 
 office in the United States, and therefore in the world, is the office of 
 Speaker of the American House of Commons, the House of 
 Representatives . 
 
 I have the honor, for the third time in my life, not to introduce, but to 
 present, to a House of Representatives of the Congress of the United 
 States the Hon. Joseph G. Cannon, of Illinois, as its Speaker. [Prolonged 
 applause.] 
 
 The SPEAKER. Gentlemen of the House of Representatives, we are 
 to-day organizing the Sixtieth Congress, marking the one hundred and 
 eighteenth milestone in the history of government by the people under 
 the Constitution. Our predecessors in the years that are past have left 
 to us an example of wisdom, moderation, and courage that has never 
 failed to preserve the ideals and the interests of republican government in 
 many crises, whether of peace or war, adversity or prosperity. 
 
 Each generation of statesmen has had its own peculiar problems and 
 
ORGANIZATION AND RULES OF THE HOUSE 225 
 
 its own particular embarrassments. No problems of government ever 
 recur in exactly the same aspects, and they may never be treated in exactly 
 the same way. The formulas of action in one exigency may never be 
 applied safely in another. Government, so far as it relates to courses of 
 action, has no fixed precedents; and no veneration for those who have 
 gone before justifies living men in approaching live problems with pur- 
 pose or with vision circumscribed by the limitations of the past. But the 
 fundamental principles of free government are eternal and unchanging, 
 resting on the will and responsibility of the people, and are put in action 
 through the deliberations of conscientious and fearless representatives of 
 that will. This House is the only institution under our Constitution 
 where that will of the people may be expressed with a fair approximation 
 to scientific accuracy. [Applause.] 
 
 Other departments of the Government have lofty and important 
 functions, but to this House alone belongs the peculiar, the delicate, and 
 the all-surpassing function of interpreting and putting in definite form 
 the will of the people. This duty we must perform ourselves. The prin- 
 ciples of the past may help us to the extent of showing us the points of the 
 compass; but beyond that we must depend on our own wisdom, our 
 own constancy, our own industry, and our own fidelity to duty. 
 
 So far as the duty of organizing this House shall devolve upon me, 1 
 shall endeavor to perform the duty in a way to justify the confidence 
 which your selection implies and to promote the great purposes for which 
 we are assembled ; but the duties of the hour rest not alone on myself. 
 They rest on each one of you individually ; and on your integrity, wisdom, 
 and conservatism the people are relying as well as on mine. I have a 
 right to expect your cooperation, because such cooperation will be your 
 duty. I hope also that as we go on I may have it because of my efforts to 
 merit your confidence and good will. [Applause.] 
 
 I am now ready for the oath. 
 
 SWEARING IN THE SPEAKER 
 
 Mr. Bingham, the Member longest in continuous service in the House, 
 was named by the Clerk to administer the oath of office to the Speaker- 
 elect; and the oath was accordingly administered. 
 
 SWEARING IN OF MEMBERS AND DELEGATES 
 
 The SPEAKER. The Clerk will call the roll by States and Territories, 
 and Members and Delegates, as their names are called, will please come 
 forward to the area in front of the Clerk's desk and take the prescribed 
 oath of office. 
 
 15 
 
226 AMERICAN FEDERAL GOVERNMENT 
 
 The Speaker then administered the oath of office to the Members and 
 Delegates presenting themselves. 
 
 Mr. Butler and Mr. Cocks of New York qualified by affirmation. 
 
 [Then followed the election of the officers of the House, on nomination 
 by the two great political parties, those of the opposition being of 
 course rejected. The officers so elected came to the bar of the House 
 and the oath was administered to them by the Speaker. Resolutions 
 of the notification to the President of the United States and to the Senate 
 of the readiness of the House to do business or receive communications 
 were made. This notification is effected by message to the Senate and 
 by a committee composed of the committees appointed by the Senate 
 and House of Representatives respectively. A resolution to provide for 
 the distribution of rooms in the House office building and Capitol com- 
 pleted the necessary introductory measures to be taken for getting the 
 House into working order. Then follows the all-important matter of 
 the question of adoption and amendment of the Rules. The traditional 
 protest against the concentration of power in the Speaker's hands, and 
 the repression of individual initiative is in evidence.] 
 
 RULES OF THE SIXTIETH CONGRESS 
 
 Mr. DALZELL. Mr. Speaker, I offer the following resolution. 
 The Clerk read as follows: 
 
 Resolved, That the rules of the House of Representatives of the Fifty-ninth 
 Congress be adopted as the rules of the House of Representatives of the Sixtieth 
 Congress, including the standing orders of March 8 and March 14, 1900 
 (relating to consideration of pension and claim bills on Fridays), which are 
 hereby continued in force during the Sixtieth Congress. 
 
 Mr. WILLIAMS. Mr. Speaker 
 
 The SPEAKER. Does the gentleman from Pennsylvania yield to the 
 gentleman from Mississippi? 
 
 Mr. DALZELL. I will yield to the gentleman from Mississippi five 
 minutes. 
 
 Mr. WILLIAMS. Mr. Speaker, of course I have no desire to make a 
 useless play to the galleries. I know, of course, that the resolution is 
 going to pass, but I do not consider it consistent with the past record of 
 this side of the House to permit it to pass without a protest. We are of the 
 opinion, and have been for a long time, that entirely too much power is 
 concentrated in the hands of the Speaker of the House, and without any 
 party spirit at all, speaking only what I think is best for the country at 
 large, believing if my party were in the majority I would still take that 
 same view, I want to protest against the adoption of the rules in their 
 present drastic form, without any opportunity to the Members of the 
 House to propose amendments and without any opportunity for the 
 
ORGANIZATION AND RULES OF THE HOUSE 227 
 
 House itself to pass upon proposed amendments. We will of course, 
 vote against the resolution. 
 
 Mr. Cooper of Wisconsin rose. 
 
 Mr. DALZELL. How much time does the gentleman from Wisconsin 
 want? 
 
 Mr. COOPER of Wisconsin. Five minutes. 
 
 Mr. DALZELL. I will yield five minutes to the gentleman from 
 Wisconsin. 
 
 Mr. COOPER of Wisconsin. Mr. Speaker, like the gentleman from 
 Mississippi, I have no desire to consume the time of the House in an 
 argument against the adoption of these rules. It was impossible for me 
 to be present at the caucus on Saturday night. I did not arrive in the 
 city until that-evening. If I had been at the caucus I would have opposed 
 the adoption of this rule. 
 
 I agree with the gentleman from Mississippi that there is altogether 
 too much power concentrated in the Speaker of the House of Repre- 
 sentatives. [Applause on the Democratic side.] It is more power, 
 gentlemen, than ought to be given to any man in any government that 
 pretends to be republican in form and democratic in spirit. [Applause 
 on the Democratic side.] 
 
 Now, in saying this I do not wish to be understood as uttering a word 
 by way of criticism of the very distinguished and honorable gentleman 
 who has discharged the duties of Speaker of the past two Congresses with 
 such great success. But, as the gentleman from Mississippi has just said 
 he would oppose this if the House were Democratic, I oppose it not 
 because it is a Republican House, but because the power given to the 
 Speaker under these rules is unrepublican and undemocratic. [Applause 
 on the Democratic side.] 
 
 To show that that is true, I call the attention of the House and candid 
 listeners and readers everywhere to these facts : That the Speaker of the 
 House of Representatives has the sole power of recognition of those who 
 rise on the floor ; he appoints all the committees, including all the chair- 
 men ; he appoints the Committee on Rules, which, in conjunction with 
 the other rules, practically enables the Committee on Rules to dictate 
 what legislation shall come before the House; he is himself ex omcio 
 the chairman of the Committee on Rules, and ever since I have been 
 here there has never been a Speaker but who appointed two men with 
 him of the majority party constituting the majority of the committee, 
 who are with him in everything that comes before that committee. 
 
 Therefore the Speaker becomes practically the Committee on Rules. 
 [Laughter on the Democratic side.] That was so in a Democratic House, 
 gentlemen, when Mr. Speaker Crisp was here. [Laughter on the Republi- 
 can side.] That has been so in a Republican House ever since. 
 
 Now, when the Committee on Rules reports a proposition, every man 
 on the floor knows that the Speaker wants it adopted nine times out of 
 
228 AMERICAN FEDERAL GOVERNMENT 
 
 ten, where it is of any importance, and we all know his power, which 
 compels us to go into his room if we wish to ask to be recognized for 
 unanimous consent. [Applause on the Democratic side.] We all know 
 that we can not get a bill passed every man on the floor does, Republi- 
 can or Democratic by unanimous consent unless the Member pre- 
 senting it first goes to the private chamber of the Speaker and asks to be 
 recognized. The Speaker does not have to give his reasons before the 
 House for any objections he may have. He does not rise upon the floor 
 but in his private chamber he objects. I wish to say that the present 
 Speaker of the House has always treated me with the utmost courtesy 
 and kindness. A former Speaker of this House compelled me to go to 
 his room at one time. I went there to present a bill which provided 
 simply for the changing of the material which was to go into a public 
 building and which had been recommended to him in a letter from the 
 office of the Supervising Architect. I did not know that that letter had 
 been written to him ; I did not ask that it should be written to him. It 
 was a voluntary letter and a voluntary suggestion upon the part of the 
 Architect. I went to the Speaker's chamber. I had refused on a 
 former occasion to do his bidding. When I went to his room he said, 
 "I will see about that; come in again." I went in again. He did not 
 ask me to sit down. He said, "I do not think I can do that; I do not 
 want to do that; I can not allow that to come up." Not only that, but 
 he compelled me to stand there, and when a perfect stranger came in, 
 he sat him down in his seat and turned his back upon me. [Laughter.] 
 
 A very important rule had previously come before the House of 
 Representatives. That same Speaker had stopped me at the entrance 
 there and put his hand upon my breast and said, "Mr. Cooper, you will 
 oblige me very much by not opposing- this rule." That rule related to the 
 Pacific Railroad funding bill. I did oppose it. I was the only Republican 
 of the minority of the committee that reported against the bill ; the rule 
 was modified, and for the first time in thirty years the Pacific Railroad 
 people lost their bill. 
 
 That same Speaker refused practically to recognize me for fotir or 
 five years for any purpose, and never when he could help it. 
 
 The SPEAKER. The time of the gentleman has expired. 
 
 Mr. COOPER of Wisconsin. May I have three minutes more? 
 
 Mr. BURLESON. Mr. Speaker, I ask unanimous consent that the time 
 of the gentleman be extended. 
 
 The SPEAKER. The gentleman from Pennsylvania [Mr. Dalzell] has 
 charge of the time. 
 
 Mr. DALZELL. Mr. Speaker, I yield three minutes more to the 
 gentleman from Wisconsin. 
 
 Mr. COOPER of Wisconsin. Mr. Speaker, one more thing. That this 
 is too much power ever to give to one man in the House of Representa- 
 tives is demonstrated by this fact: If the Vice-President of the United 
 
ORGANIZATION AND RULES OF THE HOUSE 229 
 
 States had a similar power, then the Vice-President would appoint all of 
 the committees of the Senate. He would appoint the Committee on 
 Rules of that body and have the sole power of recognition. So that the 
 Speaker of the House of Representatives and the Vice-President of the 
 United States together could agree practically to allow or not to allow 
 legislation to come up before either Chamber. 
 
 Of course it is said that the House can at any time bring up legislation, 
 but gentlemen know that they have repeatedly heard said on this floor, 
 not alone in the last Congress, but in other Congresses, "I do not like 
 this proposition, but the Speaker wants it." 
 
 My position is this: That the leader of this House should be on the 
 floor and not in the chair. I say as a matter of practical experience that 
 the very distinguished and very able gentleman who has the chair could 
 render his country greater service leading the Republicans upon the 
 floor than he renders them as the Speaker of the House. I think if the 
 distinguished gentleman from Maine, the parliamentary clerk, who now 
 stands at the right hand of the Speaker, were elected Speaker to sit there 
 simply as a presiding officer after the manner of the speaker of the House 
 of Commons, and the distinguished gentleman from Illinois [Mr. Cannon] 
 who is now the Speaker of this House, were upon this floor leading us 
 under a system of rules which would enable the House itself to elect a 
 Committee on Rules, at the head of which would be the distinguished 
 gentleman from Illinois [Mr. Cannon], much better business would be 
 done in the way of legislation on this floor. 
 
 I think it is also unfair to adopt the pending resolution, because there 
 are about 100 new Members, and they have not seen the working of the 
 rules and know little about them. But of course the caucus having 
 adopted what it did adopt the other night, it does not become me to vote 
 against the resolution. I may say that I can not consistently as a Republi- 
 can for I understand that the Republicans of the House by unanimous 
 vote adopted this rule in caucus, and that the caucus was properly called, 
 although I did not know it I can not, as I say, consistently vote against 
 the adoption of the resolution. 
 
 Mr. De Armond rose. 
 
 The SPEAKER. Does the gentleman from Pennsylvania yield to the 
 gentleman from Missouri? 
 
 Mr. DALZELL. How much time does the gentleman want? 
 
 Mr. DE ARMOND. Mr. Speaker, I would like to know if I can 
 not be recognized in my own right as a Member of the House of Repre- 
 sentatives? [Applause on the Democratic side.] 
 
 The SPEAKER. The gentleman from Missouri is informed by the 
 Chair that the gentleman from Pennsylvania [Mr. Dalzell] is entitled to 
 the floor, and at this time the gentleman from Pennsylvania is privileged 
 to yield if the gentleman sees proper to do so and the gentleman from 
 Missouri sees proper to accept the time. 
 
230 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. DALZELL. I am willing to yield to the gentleman. How much 
 time does the gentleman desire? 
 
 Mr. DE ARMOND. About twenty minutes. 
 
 Mr. DALZELL. Oh, I cannot yield that much. 
 
 Mr. DE ARMOND. Mr. Speaker, I would be glad 
 
 Mr. DALZELL. I yield ten minutes to the gentleman. 
 
 Mr. DE ARMOND. Mr. Speaker, I would be glad to ask the gentleman 
 from Pennsylvania to inform me and also inform the House what is there 
 pressing that he can not spare that much time now? 
 
 Mr. DALZELL. I will yield the gentleman twenty minutes. [Applause 
 on the Democratic side.] 
 
 Mr. DE ARMOND. Mr. Speaker, I listened a very short time ago, as I 
 have no doubt the other Members of the House did, to the carefully 
 worded and blandly sounding address from the Speaker-elect, in which, 
 among other things, the Members of the House and the people of the 
 country were told that here in this House is lodged the power of the people 
 to make known their wishes and to execute their will. It sounded well ; 
 it was expressed handsomely. But a few minutes have elapsed since that 
 performance, and now here, with time so precious that only a few min- 
 utes can be conceded to anybody to express an opinion upon the subject, 
 it is proposed to tie and shackle the House by rules about which a good 
 many know nothing, and about which a good many others know a great 
 deal. Talk about the people having here representation and about here 
 the will and wish of the American people being executed, when here, at 
 once, out of hand, blindly, without consideration, without reading the 
 code of rules, designed, cunningly designed, to put the Representatives in 
 this House, the membership of it, and the mighty interests of the people 
 of this nation in the sacred keeping of the Speaker ! What is the occasion 
 for hurry ? You are determined to adopt these rules. Why not at least 
 have the grace and decency to permit a little discussion and give a little 
 time for their consideration; for the work predestined, cut and dried, 
 to be put through ? Why not? [Applause on the Democratic side.] The 
 greatest reform needed in this land is required here. The crying abuse of 
 all abuses, against which the citizenship of this Republic protests and long 
 has protested in vain, is the subversion of the rights of the individual 
 Members of this body. [Applause on the Democratic side.] Here we 
 stand under the Constitution as equals, each one of us commissioned by 
 the sovereign citizens of his district to come here and represent that dis- 
 trict and its interests, and as a patriotic American citizen, a Member of 
 the Congress of the United States, to represent and to voice as best he 
 can the interests and rights and promote as far as he can the welfare of 
 the whole people of these United States, and yet the first formal act is to 
 throttle and gag and bind the membership of this House to make it 
 subservient in fact, whether in deed some of you realize it or not, to the 
 autocratic will of the Speaker. 
 
ORGANIZATION AND RULES OF THE HOUSE 231 
 
 Now, we have no rules. Here is a moment, here is a brief space of 
 time would to God it could be prolonged and enlarged when there 
 is some semblance of freedom, when there is something like equality 
 upon this floor, and yet even in this hour within which this Congress has 
 been assembled and organized, the period of sixty minutes, a man can 
 not speak in opposition to this legislative outrage except by permission. 
 He can not be recognized in his own right as an American citizen. He 
 can not be recognized as a chosen Representative, charged with the 
 duties and freighted with the responsibility of his position, unless it be 
 with the permission of some other Member, who possesses no rights su- 
 perior to his own. [Applause on the Democratic side.] For one, repre- 
 senting an independent constitutency of unshackled men, men neither 
 upon whose limbs nor spirits are the gyves of tyranny, I avail myself of 
 even this poor permission, which I ought not to be forced to ask, and but 
 for the necessities of the situation would not accept, to express my pro- 
 test. I know it is vain now and here, but I have faith in the God who rules 
 over the nation, and I have faith and confidence in the patriotism and 
 manhood of American citizenship upon which to base the hope that the 
 time is not far distant when such protests as this will cease to be necessary 
 because the evils against which they are raised will have passed away. 
 [Applause on the Democratic side.] 
 
 Why the hurry for the adoption of this code of rules? Why do you 
 wish to enslave yourselves and enslave us ? Are you proposing to go back 
 to your constituencies, as manly as they are independent American citi- 
 zens, and when they ask you why you did not do this or why you suffered 
 the doing of that, do you propose, as cowards and cravens, to defend 
 yourselves and apologize upon the mere, miserable, mean pretext that 
 these rules hampered you and controlled you and that you could not do 
 anything else? 
 
 You can do something now. Now is the time of times for the American 
 Representative to stand up proudly in the power and glory of his high 
 office. [Applause on the Democratic side.] It is a high office. Upon 
 the average, we represent there, or ought to be permitted to represent, if 
 the Constitution were enforced and observed, and would then represent, 
 on the average, about 200,000 American citizens. Not one, not an iota 
 of the rights of the citizenship which I represent, of the citizenship of 
 any district in this Union, North or South, East or West, Republican or 
 Democratic, shall be cut away or frittered away or bargained away, in 
 what amounts in effect, however you may gloss it and veneer it, to ab- 
 solute surrender into abject slavery, without at least a feeble protest 
 from me. 
 
 Why not refer the rules which you propose to a committee ? Why not 
 give opportunity for the consideration of proposed amendments ? Why 
 hasten pellmell into slavery? You will find these bonds galling. You 
 will find the time coming when your manhood may long to break the 
 
232 AMERICAN FEDERAL GOVERNMENT 
 
 shackles for the time being and intuitively assert itself when chafing 
 under the bonds which you put upon it. Behold the spectacle ! There 
 are no rules here at all. And yet in this membership of three hundred 
 and ninety-one, the gentleman from Pennsylvania, the right hand of the 
 Speaker the man standing next to him upon the Committee on Rules, 
 echoing his every wish, voicing his every sentiment, and voting to carry 
 out his every purpose is recognized here upon this floor, and no man 
 is to be given permission even to say a solitary word in criticism or in op- 
 position unless the gentleman from Pennsylvania kindly and generously 
 concedes to him a little modicum of time ! [Applause on the Democratic 
 side.] I know well that if the gentleman from Pennsylvania pursues 
 the course which I presume he will pursue, and which has been fol- 
 lowed heretofore, he will avail himself of the opportunity to move the 
 previous question, cutting off all debate. 
 
 But for that I would scorn, under these circumstances and at this 
 stage of proceedings, to accept a minute or second of time within his con- 
 trol, but would insist upon my right to time as a Representative from the 
 Sixth district of Missouri. [Applause on the Democratic side.] I know 
 full well that the gentleman from Pennsylvania [Mr. Dalzell] before an 
 hour shall have expired may be expected to move the previous question, 
 and if we are to judge of what is to happen by what has happened re- 
 peatedly in the House, a partisan majority behind him will sustain that 
 resolution to cut off debate and come to an immediate vote, so that the 
 man who says anything and it must be said hurriedly and under ad- 
 verse circumstances must say it by reason of the gracious permission 
 accorded to him under the kind ministration of the Speaker by the gen- 
 tleman from Pennsylvania [Mr. Dalzell]. 
 
 Adopt your rules, if you will, but note this, and have warning of it now, 
 that there are some here who will not be tamely tied and who in the days 
 to come, who in the legislative history of this Congress, will avail them- 
 selves, as occasion may offer and it is not to offer very frequently of 
 the little opportunity that it is beyond your power to take from them, and 
 that we shall appeal beyond this tyrannous decision, beyond this sur- 
 render, this humiliating surrender, of the rights of the American Repre- 
 sentative. We shall appeal over your head, shall appeal through your 
 rules, shall appeal in the mighty right of the American Representative of 
 the mighty sovereign, the American citizen. And we shall hope that the 
 time is not far distant when those who are chosen to represent free men 
 in the greatest legislative body, as we frequently hear, upon the face of 
 the earth shall stand forth panoplied in the glory of a noble trust, pos- 
 sessed of the powers of the real Representative, not by permission of any- 
 body, responsible alone to his God above him and to his constituents 
 behind him. [Loud applause on the Democratic side.] 
 
 Mr. DALZELL. Mr. Speaker, I can not conceive of anything more un- 
 necessary than a discussion of the rules that are now offered for adoption 
 
ORGANIZATION AND RULES OF THE HOUSE 233 
 
 at this day. They have been discussed time and again in this House and 
 elsewhere in the magazines, in the newspapers and they have been 
 vindicated by their results. Prior to the Fifty-first Congress the rules of 
 the House of Representatives had remained for a great number of years 
 unchanged. These, our rules, are an evolution. Rule after rule has gone 
 upon the book in answer to some present emergency. The rules that 
 prevailed prior to the Fifty-first Congress were so constructed as to place 
 all the power of the House in the hands of the minority. In that Con- 
 gress, which was presided over by that great Speaker and illustrious 
 statesman, Thomas B. Reed [loud applause on the Republican side], 
 the rules were amended by a committee consisting of William McKinley, 
 Joseph G. Cannon, and J. G. Carlisle. [Applause.] Of the rules then 
 on the book but a very few met with any change. The only substantial 
 changes that were made were those with respect to counting a quorum, 
 which placed in the hands of the majority where it belongs the 
 power of this body, those that related to the order of business, and that 
 rule which provided that 100 should constitute a quorum in the Com- 
 mittee of the Whole. With these exceptions the rules that you are asked 
 to adopt are substantially the rules that have been in force, with their 
 additions from time to time, since the foundation of the Government. 
 
 Now, these rules are not only the rules of the Fifty-ninth Congress; 
 they are not only the rules of the Fifty-first Congress, both of which were 
 Republican Congresses, but they are substantially the rules of the Fifty- 
 second and Fifty-third Congresses Democratic Congresses, presided 
 over by a Democratic Speaker. [Applause on the Republican side.] 
 
 So far as the power of the Committee on Rules is concerned, it received 
 its impetus and the power it now possesses under the regime of your Dem- 
 ocratic Speaker, Mr. Charles Crisp. So far as the power of the Speaker 
 is concerned, it is to-day as it has been for a hundred years. It has been 
 his power for a hundred years to recognize or to fail to give recognition. 
 It has been his power for a hundred years to appoint the committees of 
 this House ; and it is nothing new now to find some Member who has 
 been disappointed in his recognition by the Speaker for the purpose of 
 passing some measure that the Speaker thought ought not to oass to get 
 up on this floor and denounce the power of the Speaker. 
 
 Now, Mr. Speaker, this side of the House, the majority, is charged 
 with the responsibility for legislation. This side, thus charged with the 
 responsibility, has the right to prescribe the rules under which legisla- 
 tion shall be had. It is no secret at all that in the caucus of the Republi- 
 can Members of the House these rules were directed to be adopted, as 
 they have been in every Congress since the Fifty-first; and as I said a 
 few moments ago, in the outset, they are vindicated and their wisdom 
 has been proved by some of the best legislation in the history of the Re- 
 public now on the statute books, put there by virtue of these rules, and 
 some of the best legislation in the future is likely to be put on the statute 
 
234 AMERICAN FEDERAL GOVERNMENT 
 
 books by virtue of these same rules. Lest my friend from Missouri should 
 be disappointed, I now ask the previous question. [Laughter.] 
 
 The SPEAKER. Will the gentleman from Pennsylvania for a moment 
 withhold the demand for the previous question? 
 
 Mr. DALZELL. Certainly. 
 
 The SPEAKER. The Chair desires to add that the rules as yet have 
 not been adopted, and we are proceeding under general parliamentary 
 usage, the gentleman from Pennsylvania having the floor. When the 
 gentleman from Pennsylvania yields the floor, if he does yield it, then any 
 other gentleman is entitled to the floor. Holding the floor, the gentleman 
 indicated that he would yield twenty minutes to the gentleman from Mis- 
 souri. The Chair took that to be in substance notice to the gentleman 
 from Missouri that, yielding to him, he still holds the floor, that he might 
 move the previous question on resuming the floor. That is the effect, as 
 the Chair understands it, of the gentleman yielding to the gentleman from 
 Wisconsin, and also to the gentleman from Missouri, under general par- 
 liamentary usages. 
 
 Now, the Chair may be indulged one minute further. The Chair, the 
 Speaker of the House, is a Member of the House the same as any other 
 Member. Unanimous consent being asked, it would not be granted 
 should any Member object. The usage in many Congresses in the past 
 was that the Chair would submit the request to the House ; and it is an 
 open secret to gentlemen who have served in some of the former Con- 
 gresses that the Chair, keeping track of the business of the House, as the 
 Speaker and at the same time exercising his right as a Member, would 
 often indicate to some Member upon the floor, by messenger or otherwise, 
 that he desired an objection to be made. The Chair has seen that fre- 
 quently occur under both Democratic and Republican Speakers. The 
 present occupant of the chair, ever since he has occupied that position, 
 has thought the better way and the more manly and fairer way was to 
 exercise his right as a Member to object to a request for unanimous 
 consent. Therefore the practice has grown up that gentlemen see the 
 Speaker, and if he has objections then he invariably says that it is 
 useless to recognize the Member for unanimous consent, because if no- 
 body else objected the Chair in his capacity as a Member of the House 
 would object. [Applause on the Republican side.] 
 
 Under the rules, if adopted, the Chair begs to call the attention of the 
 gentlemen to the fact that the right of a Member to be recognized can in 
 most instances not be denied by the Chair. There are a large number of 
 motions which are privileged in their nature, and a question of privilege, 
 first, and a privileged motion, second, halts all business before the House, 
 and the Chair has no discretion. Gentlemen who have had service in 
 the House will recollect that those motions are many. 
 
 The Chair desires to state again that the Speaker of the House is the 
 servant of the House, and it is in the power of the House of Representa- 
 
ORGANIZATION AND RULES OF THE HOUSE 235 
 
 tives as a question of the highest privilege to at any time elect a successor 
 to any Member of that body who may be holding this place. One further 
 observation. When special orders or special rules are suggested, as they 
 have been under all administrations, Democratic and Republican, at 
 least for twenty years, those orders or rules can not be vitalized until a 
 majority of the House has adopted them under the Constitution and the 
 Rules of the House. 
 
 The question is on the motion of the gentleman from Pennsylvania that 
 the previous question be ordered. 
 
 Mr. DE ARMOND. Mr. Speaker, I would submit a parliamentary 
 inquiry, if I may be indulged. 
 
 The SPEAKER. The gentleman will state it. 
 
 Mr. DE ARMOND. That is, whether or not the Speaker will permit 
 the House to act upon propositions and dispose of measures when a ma- 
 jority of the House requests him to do so. 
 
 The SPEAKER. When the majority acts under the Constitution and 
 the laws no Speaker would dare to fail to obey the will of the majority. 
 [Applause on the Republican side.] 
 
 Mr. DE ARMOND. Mr. Speaker 
 
 The SPEAKER. For what purpose does the gentleman rise? 
 
 Mr. DE ARMOND. The gentleman rises for the purpose of getting an 
 answer to his parliamentary inquiry, and for the purpose of putting 
 another question. 
 
 The SPEAKER. If the gentleman is not answered, it is the misfortune 
 of the Chair or the misfortune of the peculiar state of mind of the 
 gentleman. The gentleman from Pennsylvania moves the previous 
 question. 
 
 Mr. DE ARMOND. But, Mr. Speaker, I would like to submit this par- 
 liamentary inquiry. 
 
 The SPEAKER. The gentleman will state it. 
 
 Mr. DE ARMOND. I wish to state that it is not the misfortune of any 
 peculiar state of mind on the part of the gentleman from Missouri who 
 submitted the inquiry. In times past a majority have made a request for 
 the consideration of this or that measure, and consideration has been 
 denied. What I am asking now is whether or not if a majority of the 
 membership of the House requests the Speaker to permit action upon a 
 particular matter, he will or will not do it and it is not necessary to 
 refer to the Constitution in making the answer. [Applause on the Demo- 
 cratic side.] 
 
 The SPEAKER. The Chair, so far as the Chair knows or has any 
 knowledge, desires to say to the gentleman from Missouri [Mr. De 
 Armond] that in the knowledge and belief of the Chair the gentleman is 
 mistaken. The will of the majority always, for thirty-four years to my 
 knowledge, has been law unto the Speaker. 
 
 Mr. Williams rose. 
 
236 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. DALZELL. I can not yield any further, Mr. Speaker. I demand 
 the previous question. 
 
 The SPEAKER. The question is on ordering the previous question. 
 
 The question was taken. 
 
 Mr. WILLIAMS. Mr. Speaker, I think we better have the yeas and 
 nays. I demand the yeas and nays. 
 
 The yeas and nays were ordered. 
 
 The question was taken, and there were yeas 199, nays 163, an- 
 swering "present" 3, not voting 23. 
 
 DEFENSE OF THE RULES 1 
 
 [The frequent criticism passed upon the rules of the House of Representatives 
 led Mr. Dalzell to make the following defense of them. Whenever the authority 
 of the Speaker or the leaders is attacked, they, as is done in this case, always 
 advance the argument that they are simply representing the majority and that 
 their power stands and falls with the will of the majority in the House.] 
 
 MR. DALZELL. There are few subjects of public discussion about 
 which there is more unjust criticism I might, without exaggeration 
 say, unjust abuse than the rules of the National House of Repre- 
 sentatives. The criticism and abuse come largely from Members of 
 the House when in the minority, and from newspapers and magazine 
 writers, and some others of whom, without unfairness, it may be said 
 that they have very little knowledge or intelligent conception of what 
 they are writing or talking about. Indeed, I think it may be truly said 
 that there are comparatively few Members of the House itself, much less 
 outsiders, who have any real knowledge of the rules. The rules are 
 simple enough and entirely logical, but to the majority of Members of 
 the House who have no special ambition to familiarize themselves with 
 them they seem complicated. 
 
 There is nothing new in this protest against the rules. It is human 
 nature to be uneasy under restraint, and in all Congresses, even among 
 the first, when the membership was small and the rules were simple, 
 complaint was heard as now from those who could not have their 
 own way. 
 
 The rules of the National House of Representatives are not the con- 
 ception of any one man or set of men ; they are not the product of any 
 one Congress or of any combination of Congresses ; they are an evolu- 
 tion, the outgrowth of the parliamentary experience, necessities and 
 exigencies of all the hundred years and more of our Congressional life. 
 The book of rules contains no rule that had not a reasonable necessity 
 for its adoption in the first instance and has not a like necessity for its 
 continuance now. As a whole the rules are so made as to render possible 
 
 1 Congr. Record, March 18, 1906. (Reported March 23.) 
 
ORGANIZATION AND RULES OF THE HOUSE 237 
 
 the most expeditious accomplishment in the wisest way of the legisla- 
 tive business of our ninety millions of American people. 
 
 An impartial examination of them will show that the power of recog- 
 nition popularly attributed to the Speaker as autocratic is grossly ex- 
 aggerated; that that power, in point of fact, so far as the rules are 
 concerned, is limited ; and that the apparent restrictions upon individual 
 initiative, so far as they exist at all, are due not to the rules, but to the 
 character of the House as now constituted, and to the exigencies of the 
 public business. 
 
 A brief review of the history of the rules will serve to demonstrate the 
 truth of this statement. 
 
 There have been two divisions of the rules within the last thirty years. 
 
 In the Forty-sixth Congress (1880) the rules were revised under the 
 direction of the Committee on Rules, consisting of Speaker Randall and 
 Messrs. Stephens, Blackburn, Garfield, and Frye. The changes then 
 made consisted mainly in dropping a number of rules that, by reason of 
 changed conditions had become obsolete, in consolidating a number of 
 others and changing their arrangement, and in the introduction of a 
 very few new rules. The Committee in its report, which was unanimous, 
 said: 
 
 The objective point with the committee was to secure accuracy in business, 
 economy of time, order, uniformity, and impartiality, and to prepare, if possible, 
 a simple, concise, and nonpartisan code of rules, which would neither surrender 
 the right of a majority to control and dispose of the business for which it is held 
 responsible, nor, on the other hand, invade and restrict the powers of a minority 
 to check temporarily, if not permanently, the action of a majority believed to be 
 improper or unconstitutional, and to attain, if possible, the great underlying 
 
 Sinciple of all the rules and forms by which the business of a legislative assem- 
 y is governed, whether constitutional, legal, or parliamentary in their origin, 
 viz., "to subserve the will of the assembly rather than to restrain it, to facilitate 
 and not to obstruct the expression of its deliberate sense." 
 
 The rules then adopted remained in force until the Fifty-first Con- 
 gress (1890), when they were revised by the Committee on Rules, 
 consisting of Speaker Thomas B. Reed, Messrs. McKinley, Cannon, Car- 
 lisle, and Randall. By this revision, out of the total number of forty- 
 seven rules, twenty-nine were allowed to remain unchanged, and in the 
 remaining eighteen such changes as were made were only formal, except 
 in four fundamental particulars. These related to (i) dilatory motions, 
 (2) the counting of a quorum, (3) the number which should constitute 
 a quorum in Committee of the Whole, and (4) the order of business. 
 This last revision was found necessary in order to carry out the an- 
 nounced objects sought to be attained by the revision of 1880, viz., 
 "Economy of time, order, and the right of a majority to control and 
 dispose of the business for which it is held responsible." 
 
238 AMERICAN FEDERAL GOVERNMENT 
 
 Prior to this last revision, under then existing rules, the practice 
 known as filibustering had grown to such an extent as to waste much 
 valuable time and to threaten the power of the majority to deal with 
 the business of the country. By the use of the privileged motions "to 
 adjourn to a day certain," and "to take a recess," and the practice on 
 the part of Members of remaining silent and refusing to vote, thus 
 breaking a quorum, it was in the power of the minority at any time 
 effectually to obstruct the passage of any legislation. A motion to ad- 
 journ to a day certain was subject to two amendments, on each of which, 
 as well as on the original motion, the yeas and nays could be ordered. 
 The same was true as to the motion to take a recess; these motions 
 could be repeated without limit, and thus days could be consumed in 
 useless calls of the roll. In point of fact, in the Fiftieth Congress on 
 one occasion the House remained in continuous session eight days and 
 nights, during which time there were over one hundred roll calls on the 
 iterated and reiterated motions to adjourn and to take a recess and their 
 amendments. On this occasion the reading clerks became so exhausted 
 that they could no longer act, and certain Members, possessed of large 
 voices and strenuous lungs, took their places. If this was not child's 
 play it would be difficult to define it. Then, again, when a measure to 
 which the minority objected was likely to pass, the yeas and nays would 
 be ordered. 
 
 The objecting minority Members, sitting in their seats, would fail to 
 respond when their names were called, and when the count was made 
 it would appear that there was no quorum present to do business, and 
 thus the measure would fail. It seems now strange to realize that many 
 eminent men acting as Speakers of the House maintained that for this 
 manifest evil no remedy existed. It remained for the Speaker of the 
 Fifty-first Congress, 'Thomas B. Reed, the greatest parliamentary leader 
 in the history of English-speaking people, to make an end of this mani- 
 fest absurdity. He declared that physical presence and constructive 
 absence was impossible; that the quorum called for by the Constitu- 
 tion was a present and not a voting quorum ; and so, on a certain his- 
 toric occasion, he added to the names of those voting the names of those 
 present and not voting and announced the result accordingly. He has 
 no greater glory than that the principle .he announced and put into 
 practice has not only been indorsed by the Supreme Court of the United 
 States, but also by his partisan foes when they came into power in the 
 House, and by the practical results which recent years of wise legisla- 
 tion unobstructed by foolish tactics have put on the statute book. Under 
 present rules the motion to adjourn to a day certain and the motion to take 
 a recess are not privileged, and, furthermore, the Speaker is not allowed 
 to entertain any dilatory motion. If a quorum has been ascertained by 
 actual count to be present, a measure voted on passes or fails in accord- 
 ance with the recorded vote, whether all Members have voted or not. 
 
ORGANIZATION AND RULES OF THE HOUSE 239 
 
 In the Committee of the Whole 100 now constitutes a quorum instead 
 of a majority of the whole House. This is in the interest of the expedi- 
 tion of business. 
 
 Bills are now introduced by filing and not by presentation in the open 
 House, and thus much time is saved. Business once entered upon is 
 continued until concluded instead of, as under prior rules, being limited 
 to a certain time for its consideration and then not having been concluded 
 being sent to the graveyard of the calendar of unfinished business. 
 
 In the last Congress (Fifty-ninth) there were 386 Members (in this 
 Congress there are 391), and there were introduced a total of bills and 
 resolutions numbering 27,114. It goes without saying that not all of 
 these bills could be considered, nor could all of these Members have a 
 hearing. Theoretically, every Member of the House is the equal of 
 every other Member; every constituency is entitled to equal recognition 
 with every other constituency, but practically there can not be 391 
 Speakers; there can not be 391 chairmen of committees, nor equal 
 recognition for debate given to 391 Members. The real purpose, then, 
 to be accomplished by the rules is the selection from the mass of bills 
 introduced those proper to be considered. There is no limitation on the 
 right of a Member to introduce bills ; as many as he likes and of what- 
 ever character he pleases. Every bill introduced goes to an appropriate 
 committee for consideration, and whether or not it gets upon a House 
 Calendar for action depends upon its being reported by the committee. 
 It may never be reported, and, of course, if not reported can never be 
 considered in the House. In the last Congress, of the 27,114 bills and 
 resolutions introduced, there were 7,823 reported; the others remained 
 in the pigeonholes of the various committees. Of the bills reported, 
 7,423 were considered, and passed. Bills when reported go upon cer- 
 tain calendars of the House, according to the character of the bills. 
 
 1. Revenue and appropriation bills. These are few in number, not 
 to exceed, perhaps, 20. They come from the Committee on Ways and 
 Means, whose office it is to provide revenue for the Government, and 
 from the Committee on Appropriations, and from the several com- 
 mittees having to do with the maintenance of the Government in its 
 various arms, such as the Naval Committee, the Military Committee, 
 and others. These bills when reported go to a calendar known as the 
 Union Calendar, but they are highly privileged, as they ought to be, for 
 without their passage the Government wheels would stop. They can 
 be called for consideration at any time. They take precedence of all 
 other bills, and the Speaker has no alternative but to recognize the 
 Member calling them up. These bills are considered not in the House, 
 but in Committee of the Whole; the Speaker leaves the chair and an- 
 other Member takes his place. 
 
 2. Another class of bills are such as relate to some public purpose, 
 but carry no appropriation, such, for instance, as bridge bills and the 
 
240 AMERICAN FEDERAL GOVERNMENT 
 
 like. To a large extent bills from the important committees on the 
 Judiciary and on Interstate and Foreign Commerce are of this class. 
 These bills go on the House Calendar and are entitled to consideration 
 in the morning hour. There being no privileged bills for consideration, 
 the morning hour is the regular order. The Speaker must call the com- 
 mittees in their alphabetical order, and then the chairman of the com- 
 mittee which has the call is entitled to recognition by the Speaker, as 
 of right. The House then proceeds to the consideration of such bill 
 reported by the committee in question and then on the House Calendar 
 as the chairman calls up, and continues its consideration until a vote is 
 had, subject only to a possible interruption at the end of sixty minutes, 
 to which I will refer hereafter. But even if interrupted, its considera- 
 tion thereafter, when business of that character is in order, until it is 
 finally disposed of. 
 
 3. In addition to public bills such as I have enumerated, some carry- 
 ing an appropriation and others not, there is another class of bills, the 
 most numerous of all private bills providing for the relief of private 
 individuals or corporations. These have a Calendar of their own called 
 the Private Calendar and are in order on every Friday of each week. 
 They are, generally speaking, bills from the Committee on Claims, from 
 the Committee on Wat Claims, and from the Committee on Pensions. 
 As to these bills the Speaker has no independent right of recognition. 
 When addressed by the chairman of the appropriate committee on a 
 Friday he must recognize him, and unless the House declines to con- 
 sider these bills the Speaker must leave the chair and nominate a Member 
 to preside in his place. In the last Congress there were reported 6,834 
 private bills; 6,624 were passed, leaving 210 undisposed of. 
 
 There is another class of bills that, like private bills, have a day of 
 their own under the rules, viz., District of Columbia bills. As is well 
 known, there is no right of suffrage in the District of Columbia, and 
 the Senate and House act as its select and common councils. District 
 of Columbia bills are in order on two Mondays of every month. As to 
 these bills, again the Speaker has no alternative but to recognize the 
 chairman of the District Committee when, on his allotted day, he calls 
 up his business. 
 
 4. A fourth class of bills provide for various matters of public con- 
 cern and are such as involve a charge upon the Treasury. These go to 
 the Union Calendar, and when considered must be considered in Com- 
 mittee of the Whole. At the end of the morning hour (sixty minutes) a 
 motion may be made to go into the Committee of Whole for the con- 
 sideration of bills on the Union Calendar or for the consideration of 
 some particular bill thereon. This motion the Speaker is bound to 
 entertain. 
 
 Then, a large part of the business of the House is done wholly out- 
 side of the rules, by unanimous consent. Some gentleman, for instance, 
 
ORGANIZATION AND RULES OF THE HOUSE 241 
 
 arises in the House and, being recognized by the Speaker, asks "unani- 
 mous consent for the present consideration of the following bill." 
 Unless objection is made the bill is considered and voted on. It is in 
 connection with this practice and because of it that autocratic power is 
 without any reason ascribed to the Speaker. But the rules have nothing 
 at all to do with this. The applicant for recognition asks that all rules 
 be set aside. To this any Member of the House may object. Why 
 should complaint be made if the Speaker exercises his right of objection 
 by refusing to recognize an applicant for recognition in any particular 
 case ? Because he is Speaker he is no less a Member of the House ; no 
 less a Representative of his Congressional district. If he were on the 
 floor he could interpose an objection to any request for unanimous con- 
 sent. Should he be less able to interpose that objection because he is 
 in the chair? Certainly not. That the Speaker's power in this regard 
 is only, in the last analysis, that of a Member may easily be illustrated. 
 During the latter part of the Fifty-fourth Congress, when Mr. Reed was 
 Speaker, there was a Member from Nebraska named Kem who an- 
 nounced that he would object to any consideration of bills by unanimous 
 consent. After the announcement, on the first day, the Speaker's room 
 was crowded, as usual, with applicants for recognition. Mr. Reed 
 promised to do the best he could, but recalled to his applicants Kern's 
 threat to object. Still members persisted, one of them was recognized, 
 and Kem objected. The next day the throng at the Speaker's room 
 was not so great, but still of large proportions. Members had faith that 
 Kem would not persist. Again Mr. Reed promised to do his best; 
 again a recognition was had, and again Kem objected. On the third 
 day the Speaker's room was deserted, while an anxious throng sur- 
 rounded the desk of Mr. Kem, and from that time on, Kem being per- 
 sistent, the Speaker had peace; Mr. Kem was the autocrat, and the 
 business of the House proceeded under the regular order. 
 
 There is no doubt that a great many measures of questionable char- 
 acter are passed by unanimous consent. Members can not keep the 
 run of all bills reported and are loath to.object, both because ignorant 
 of the merits of the particular measure proposed and because they may 
 have measures of their own to be considered and they fear a reciprocity 
 of objection. In a majority of cases the only real intelligent objection 
 made to measures proposed for unanimous consent is that made by the 
 Speaker, who has had opportunity to examine, as was his duty, the bill. 
 On two Mondays in every month and during the last six days of a session 
 a motion is in order to suspend the rules and pass bills, which requires 
 for its adoption a two-thirds vote of a quorum. The object of this rule, 
 of course, is to expedite business by getting rid of bills to which two- 
 thirds of the House are agreed. But the demands for recognition to 
 move to suspend the rules are so far in excess of any possible power of 
 grant upon the Speaker's part that he is confronted by the embarrassing 
 
 16 
 
242 AMERICAN FEDERAL GOVERNMENT 
 
 necessity of making a choice. There is no doubt that he performs his 
 unpleasant duty with due regard to his obligation to the public 
 service. 
 
 It is manifest that even under the methods provided by the rules for 
 the consideration of all classes of business there must necessarily be 
 measures of great public importance that, by reason of their late report 
 from a committee or for some reason or another, can not be reached 
 in the regular order of business. These are provided for by special 
 orders reported by the Committee on Rules, which consists of the 
 Speaker, two Members from the majority, and two from the minority. 
 Like the rules themselves, the Committee on Rules is made the subject 
 of much unjust criticism. Autocratic power is ascribed to it. But it 
 must be recognized first that the existence of such a body is a necessity, 
 and second that the only power it exercises is the power of the House. 
 The Committee on Rules does not dictate, it simply suggests. Its report 
 is of no consequence until it has been adopted by a majority. The fact 
 that the committee's reports are uniformly adopted, so far from being 
 any evidence of undue authority or power on the part of the committee, 
 is evidence of the discretion of the committee in recognizing and making 
 possible what the House wants to do. The real temper of the House 
 upon any question at any given time, it may be assumed, is better known 
 by the Committee on Rules than by any one else. The committee, so 
 far from being the master, is the servant of the House. Of the 7,423 
 bills considered last year, only twenty-four were brought forward by 
 the Committee on Rules. 
 
 All of these were of large national importance, and consideration of 
 them was in accordance with the well-known desire of a majority of 
 the House, as for instance, among others the following : The statehood 
 bill, the immigration bill, Philippine tariff bill, pure food bill, railroad 
 rate bill, bills relating to Isthmian Canal, etc. 
 
 While it is true that the authority of the Speaker as to recognition is 
 very much limited, it would be useless to deny that he exercises a great 
 power upon the business of the House. But this is not due to the rules 
 in the first instance, but to the personality of the Speaker himself. Much 
 of his power lies back of his office. It is because of his character, his 
 experience, his service, his position as a party leader that he is Speaker. 
 He comes to his high office because he is primus inter pares. A leader 
 on the floor, he does not cease to be a leader when he becomes Speaker. 
 One who was himself a distinguished Speaker of the House of Repre- 
 sentatives, James G. Blaine, in that most eloquent eulogy pronounced 
 upon his chief, President Garfield, said: 
 
 There is no test of a man's ability in any department of public life more severe 
 than service in the House of Representatives; there is no place where so little 
 deference is paid to reputation previously acquired or to eminence won outside ; 
 no place where so little consideration is shown for the feelings or failures of 
 
ORGANIZATION AND RULES OF THE HOUSE 243 
 
 beginners. What a man gains in the House he gains by sheer force of his own 
 character, and, if he loses and falls back, he must expect no mercy, and will re- 
 ceive no sympathy. It is a field in which the survival of the strongest is the 
 recognized rule, and where no pretense can survive and no glamour can mislead. 
 The real man is discovered, his worth is impartially weighed, his rank is 
 irrevocably decided. 
 
 Undoubtedly the rules contribute to the Speaker's power in so far as 
 they place in his hands the appointment of committees. He can, by a 
 judicious selection of committee membership, to a limited extent, shape 
 legislation in advance to accord with his views. But, after all, his power 
 in this respect is limited by a number of considerations. In the appoint- 
 ments to committees he must recognize the claims of localities, the 
 qualifications and length of service of his appointees, and various other 
 things. Above all things, he is interested in the success of his adminis- 
 tration, in the standing of his party, and in his own reputation for fair- 
 ness. What he does he does in the open, where all men can see. And, 
 besides, how else could committees be selected in a House of so large a 
 membership as the present House of Representatives ? Caucus selection 
 would mean selection by combinations representing localities or special 
 interests ; would turn over the power of the House to the States having 
 large delegations. Caucus selection has been tried in the past, and 
 abandoned as impracticable. Committees can best be selected by an 
 authority that can with certainty be located and made to bear the burden 
 of responsibility. 
 
 I know of nothing more interesting in the history of Congress than 
 those passages which relate to the expedients to which the majority has 
 been compelled to resort to obtain control as against obstructive tactics 
 upon the part of the minority. 
 
 Early in our history unlimited debate was resorted to to prevent 
 legislative action, and the result was the adoption of the previous ques- 
 tion in the House. According to Mr. Calhoun it was adopted 
 
 in consequence of the abuse of the right of debate by Mr. Gardenier, of New 
 York, remarkable for his capacity for making long speeches. He could keep 
 the floor for days. 
 
 But Mr. Gardenier was only a type, and the adoption of the previous 
 question marks the first step in our Congressional history taken by the 
 majority toward securing its right to rule. The next step was the 
 adoption of the hour rule, pursuant to which a Member of the House 
 is confined to the use of one hour in debate. 
 
 It must be confessed that in a House constituted of so large a member- 
 ship as the House of Representatives unlimited debate would be im- 
 possible, having any due regard to the dispatch of the public business. 
 There is little if any complaint about the hour rule. Anyone familiar 
 with the record of the last few Congresses will concede that notwith- 
 
244 AMERICAN FEDERAL GOVERNMENT 
 
 standing the existence of the hour rule there has been practically no 
 limitation on the opportunities for debate. All parties desiring to be 
 heard have been furnished an opportunity, and when greater latitude 
 as to time has been asked it has readily been granted by unanimous 
 consent. The House will always listen to the Member who really has 
 something to say. 
 
 With each decennial apportionment the House of Representatives 
 increases in numbers. As the numbers increase in the very nature of 
 things the importance of the individual Member decreases and the 
 influence of a few increases. What the remedy for this is I do not under- 
 take to predict, or what new or modified rules may in the future become 
 necessary. But under present conditions the rules of the House of 
 Representatives are as efficient as present wisdom and past experience 
 have been able to devise "to subserve the will of the assembly rather 
 than to restrain it, to facilitate and not to obstruct the expression of its 
 deliberate sense." 
 
 CRITICISM OF THE RULES, APRIL 5, 1906 
 
 [The sentiment of individual members upon the rules is brought out in the 
 following extracts. There will be abundant illustrations also from other dis- 
 cussions, which will be given later on, especially in the matter of special rules 
 and finance legislation.] 
 
 MR. MOON. I have no objection to drastic rules in a body of this size. 
 It is unwieldy, and we need the power of the rule even to force legisla- 
 tion, but we do need rules that will operate justly and equally upon 
 every Member and every party in this House. It is unwise for us, in view 
 of the needs of this Government, to tie the Representatives of the people 
 upon this floor. The present rules of the House of Representatives, in 
 my judgment, are dangerous to the welfare of the people ; and yet, take 
 them altogether, leaving a few rules out of consideration, it is perhaps as 
 good a code as we could obtain for a body of this size. 
 
 The power, though, which the Speaker has, or exercises if he chooses, 
 under the construction of the rule, to turn from a Member and decline to 
 recognize him for the purpose for which he rises, after once recognizing, 
 is a most dangerous power in any parliamentary body. That power which 
 you have given him, and which he exercises as your servant, is a power 
 that ought never to be invoked against the interests of the people in the 
 consideration of legislation. It denies equal opportunities to the member- 
 ship of the House. It degrades the Representative. 
 
 Another rule to which I have referred is this : You prevent upon the 
 consideration of an appropriation bill new legislation. Don't you think 
 it would be wise to modify that rule to the extent that legislation which is 
 
ORGANIZATION AND RULES OF THE HOUSE 245 
 
 germane to a particular subject of consideration may be presented? 
 That is a wise rule to prevent riders being placed on an appropriation 
 bill, riders foreign to the subject of consideration ; but right here, right 
 under this bill, at this hour if that rule were modified this House could 
 consider the question of railway mail-pay ; it could consider the question 
 of changing the rate of second-class matter; it could consider the ques- 
 tion of a usurpation of power under the statute in the Post-Office De- 
 partment. But you are powerless under the rule which shackles you by 
 your own will to do so. What further remedy have you ? Can you appeal 
 to the committee for consideration of these questions by separate bills ? 
 You have found those things vain and futile. If you clothe the Speaker 
 with the power to name the committee instead of letting the House of 
 Representatives select its own committeemen as the Senate does, you 
 place it within his power to so organize the committees of this House as to 
 forever defeat legislation coming before the committee, and then you put 
 it beyond your power in this House by the rule to which I have referred 
 of resuming the sovereign power to which you are entitled yourself. You 
 have yielded away your power, you can not help yourselves. The result 
 of this, Mr. Chairman, is that when gentlemen on the floor of this House 
 find that it is impossible to be heard in the interest of their constituents, 
 they yield. When a question arises in this body upon which they ought to 
 have independent judgment 
 
 Mr. SIMS. Mr. Chairman, I thoroughly agree with what the gentle- 
 man has been saying about this rule of not being permitted to legislate on 
 an appropriation bill ; but it is not a fact that it does not prevent that 
 new legislation, provided that in the Senate they put on the same amend- 
 ment that we rejected here in the House. It comes back then, and under 
 the rules, and it is not out of order to consider that which has been once 
 solemnly ruled out of order. 
 
 Mr. MOON of Tennessee. Of course, we agree on that question. It 
 can legislate, while this House can not, under the rule. 
 
 Mr. SIMS. But the Senate forces us to do it. 
 
 Mr. MOON of Tennessee. The Senate, of course, forces us to do it. 
 The Senate forces us to do nearly all we do. The Republican majority 
 is not to blame alone for this. 
 
 Mr. SIMS. Mr. Chairman, I think the gentleman is right about that. 
 
 Mr. MOON of Tennessee. The Republican majority in this House has 
 surrendered beyond all question freely and voluntarily all of the reserved 
 rights of a Representative, save one or two, to the Speaker of the House. 
 Now, if anybody has to exercise that power on the Republican side, I 
 would as soon have the present Speaker do it as anybody in the world. 
 It is not a question of the Speaker individually. I believe everybody in 
 this House is personally fond of him. It is a question of the abrogation 
 of the power of the Representatives so as to prevent legislation that is 
 wholesome and just. 
 
246 AMERICAN FEDERAL GOVERNMENT 
 
 I have now demonstrated to the House, I trust, legislation that is needed 
 upon this bill. I defy anyone to get one particle of it. You can not put 
 it on here. You are tied by your rules ; you can not put it through your 
 committee, for the Speaker has tied your committee. What are you to 
 do? Gentlemen, there are reserved rights, but only one or two to the 
 House of Representatives. 
 
 If without the spirit of revenge or anger, if in obedience to the high dic- 
 tates of duty, if in recognition of those representative rights which you all 
 possess, you will say to the House of Representatives, "Be bound by the 
 chains you have forged ; no business shall be done in this House save by 
 and in accordance technically with every rule that this House has adopted 
 for the transaction of business," and you do that for a few weeks, then 
 this majority and the Speaker will find themselves utterly powerless to 
 move one inch in legislation. They will break the chains themselves, 
 and they will tell the Speaker that he is no longer a master, but a servant 
 of the House of Representatives. How was it in the days that are past ? 
 Was this a body in which the will and decree of a political coterie was 
 registered ? This was the great forum in which the battles of the people 
 were fought. Here every great battle for American liberty and American 
 citizenship has been fought out in behalf of the people, and to-day, like 
 craven cowards, you have surrendered every right you have given to the 
 Speaker of the House of Representatives and the Committee on Rules, 
 and without the slightest deliberation you pass for consideration to the 
 other end of the Capitol every bill nearly that is before you. 
 
 Without naming any particular bill, but to show the evil effect of that 
 and of ill-considered legislation, a bill is to-day pending, upon which this 
 House has acted, affecting a great Territory proposed to be made a State, 
 greater than the State of Missouri, where this House actually failed to ex- 
 tend, so far as some necessary provisions were concerned, the benefit of 
 the law proposed to be enacted to a part of the Territory unintention- 
 ally, of course. No consideration in committee, no consideration any- 
 where, until the Senate of the United States pointed out, to the shame of 
 the House of Representatives, the patent defect. You gentlemen can not 
 go back to the country and accuse the Republican party of all the wrongs 
 that the people suffer at the hands cf this once great but now degenerate 
 body. The Democracy of the House of Representatives must exercise 
 the reserved power of refusing and forbidding anything to be done, save 
 in obedience to the law that the House has made for its government, and 
 then the people will see where the chains are and who forged them, and 
 they will put an end, I trust, to the wrongs and injustices that exist here. 
 
 Mr. SIMS. We witnessed the spectacle a few days ago of two Repre- 
 sentatives on this floor, one a member of the Republican party and one a 
 member of the Democratic party, who undertook to have one bill passed 
 according to the general rules of this House, and the Committee on Rules 
 got together and decided that the general rules were the worst thing pos- 
 
ORGANIZATION AND RULES OF THE HOUSE 247 
 
 sible to apply to that appropriation bill; and they brought in a special 
 rule, repealing the general rules and making in order everything that had 
 gone out on points of order as well as all that remained. 
 
 ******** 
 
 Mr. SIMS. What are you going to do about it? Let us get down to 
 something practical. 
 
 Mr. MOON of Tennessee. I was just suggesting to you a practical 
 solution of it. Suppose when a gentleman gets on the floor of the House 
 of Representatives and asks unanimous consent and the Speaker recog- 
 nized the gentleman for unanimous consent; suppose you have no 
 objection to the bill, but have objection to the exercise of that power 
 emanating from one source alone, a power that practically controls the 
 operations of the House, you have the reserved right as a Representative 
 to say, "I object." That places the gentleman who made the motion in 
 his seat. How is he going to get his bill up ? 
 
 He can not do it except upon call of committees on the day when it is 
 reached, and the chances are only one in a hundred he can reach it then. 
 He can not go to the Union Calendar and take a bill off that Calendar. 
 There are three-fourths of the important bills of the House upon that 
 Calendar, and that Calendar, by virtue of the power of the Speaker, has 
 not been called for general consideration in ten long years in the House 
 of Representatives. You can consider on it those things he favors only 
 without unanimous consent or a special rule, and he controls recognition 
 and is chairman of the Committee on Rules. 
 
 Mr. SIMS. Then what is to hinder the Committee on Rules from 
 selecting out these very bills to which objection has been made and bring- 
 ing in a special rule that they shall be considered without any reference to 
 unanimous consent? 
 
 Mr. MOON of Tennessee. Well, what hinders the House of Repre- 
 sentatives from exercising its power to overturn the Committee on Rules ? 
 
 Mr. SIMS. Well, I thought the gentleman answered a while ago that 
 we had lost about all self-respect and courage and everything else. 
 
 Mr. MOON of Tennessee. Oh, I think not; I did not mean to say 
 and did not say that, Mr. Chairman. I meant to say that we had lost the 
 power of resistance. 
 
 Mr. RICHARDSON of Alabama. Mr. Chairman 
 
 The CHAIRMAN. Does the gentleman from Tennessee yield to the 
 gentleman from Alabama? 
 
 Mr. MOON of Tennessee. I yield to the gentleman from Alabama. 
 
 Mr. RICHARDSON of Alabama. I heard you say something in your 
 remarks relative to the degeneracy of the Democracy on this side of the 
 House. I ask the gentleman the question inasmuch as you called us 
 degenerate if when we were in power and Mr. Crisp, of Georgia, was 
 Speaker the same rules were not substantially adopted then as are adopted 
 now? 
 
248 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. MOON of Tennessee. Yes ; and they were just as infamous then 
 as they are now. [Applause on the Democratic side.] 
 
 Mr. TOWNE. Mr. Chairman, I desire to subscribe very cordially to 
 some of the remarks indeed, practically to all of them of the dis- 
 tinguished gentleman from Tennessee who has just resumed his seat, 
 addressed to the subject of the rules of this House; but I wish to enter 
 one important qualification in respect to the criticisms that are passed 
 upon the Speaker. The Speaker is, in my judgment, almost as much 
 sinned against as sinning. The fact that under both Republican and 
 Democratic regimes very largely the same complaint has been made in 
 respect to the exercise of quasi-autocratic power by the Chair is itself a 
 recognition to a considerable degree that the necessity for exercising that 
 kind of power inheres in the duties of the office itself as it has evolved in 
 our system. 
 
 Now, sir, I am not prepared at this moment to enter upon a careful 
 discussion of certain matters that I wish merely to indicate for the sober 
 consideration, in this connection, of the men who, as I hope, are to parti- 
 cipate in the framing of the rules for the Sixtieth Congress. [Applause.] 
 I mean the Democrats of this body. [Renewed applause.] 
 
 The Speakership of this House, sir, in its origin was not a political 
 office. It is interesting to contrast it with the history of the speakership 
 of the English House of Commons, whence we borrow very largely the 
 model upon which this House is constructed. In the House of Commons 
 the speaker is a mere moderator, who presides over a parliamentary body 
 for the purpose of enforcing ordinary parliamentary rules. The office 
 has no political significance. That fact is illustrated by the recent re- 
 election of Mr. Lowther, the Conservative speaker, by the new enormous 
 Liberal majority in the House of Commons. 
 
 If a speaker is a competent parliamentarian, a fair man, and a man of 
 ability, no majority in the English Parliament cares to which party he 
 belongs. But originally the English speaker was a political officer. His 
 name signifies it. He spoke for the Commons with the King, and to a con- 
 siderable degree was able to direct the deliberations of the House and to 
 select the subjects upon which it should deliberate. In process of time 
 there developed the English ministry, the responsible element in the con- 
 trol of the legislative in the British system. The ministry determines all 
 the initiative in legislation, marks out the programme for the Commons, 
 determines what propositions of legislation shall come before that body ; 
 and the opposition I may interpolate at this point has always the 
 right to propose and discuss amendments. That function is ever the 
 great factor in that general system of government to which the English 
 Commons and this body belong, a system that the great commentator 
 Bagehot has called a government by discussion; and if at any time this 
 House shall ever have its ancient dignity and power restored and shall 
 again appeal to the imagination and respect of the people of America, it 
 
ORGANIZATION AND RULES OF THE HOUSE 249 
 
 will be when it shall have vindicated for itself the right to discuss all pub- 
 lic measures proposed here. [Loud applause.] But in America we have 
 never evolved anything that answers to the British cabinet or ministerial 
 system. There must, however, in every majority temporarily controlling 
 the deliberations of this House, be somewhere an initiative, the power of 
 determining the policy according to which the majority shall choose to 
 proceed, and how it shall exercise that power. It is interesting to note 
 how this function has become an asset of our Speakership, an evolution 
 in that office having occurred directly opposite from that which marked 
 the English speakership. Speaker Muhlenberg, the first Speaker of the 
 House of Representatives, nearly one hundred and twenty years ago, was 
 a mere presiding officer, but in the course of time the officer who com- 
 menced as a mere moderator has developed into the most powerful politi- 
 cal functionary in our Government. 
 
 I do not propose at this moment, and without preparation, to under- 
 take a discussion of the philosophy implied in the fact I have cited. I 
 shall merely suggest whether in this proposed and desirable reform of the 
 rules of the House we are not face to face with more than a mere question 
 of convenience, a deep question of government indeed, complicated with 
 the evolution of our system itself. But there are some things that those 
 who propose to reform these rules can entertain little difference about. 
 One of them was suggested very ably by the gentleman from Tennessee 
 in answer to a question. We can change the rules of the House. We can 
 if we will. We will not if we submit ourselves to the dictation of a few 
 men on grounds of alleged party interest and refuse to stand in favor of 
 the inherent legislative rights of the House. The majority party can, if 
 it will, make a few simple changes in the rules that will go a great way 
 to restore the ancient capacities and prestige of the House. 
 
 For instance, now, if a man on the floor of this House desires to chal- 
 lenge the attention of the Chair he must arise in his place and address the 
 Speaker ; and, as I think the language of the rule is although I have 
 not seen it lately "upon being recognized, he shall proceed in order." 
 If he is not recognized he can not proceed, and'we witness this anomalous 
 and insulting thing although the Speaker is not in a personal sense to 
 blame for it, let me say, it is inherent in the rules that a man repre- 
 senting a great American constituency, with something to speak about 
 and to think about and to propose to this great body on his individual and 
 political responsibility, arises in his place here and the Speaker says to 
 him, " For what purpose does the gentleman rise?" And if the purpose 
 does not suit the Speaker the Member has not, to any effectual purpose, 
 arisen at all, but has to take his seat. 
 
 Now, sir, when two or more men are contemporaneously challenging 
 the attention of the Chair, it is a mere necessity that he shall choose which 
 one to recognize. No rule can ever obviate that; but it has happened 
 time and again it happened in my own case in the Fifty-fourth Con- 
 
250 AMERICAN FEDERAL GOVERNMENT 
 
 gre'ss that but one Member is asking recognition from the Chair, and 
 that he can not get the floor. Now, I undertake to say that any Repre- 
 sentative of a great constituency of the American people upon this floor 
 has a right, or ought to have the right, to ask the attention of the Chair 
 and the House to anything he wishes to bring to the attention of this as- 
 sembly when nobody else is claiming the floor at the same time. [Ap- 
 plause.] 
 
 REPRESENTATIVE CUSHMAN ON THE RULES 1 
 
 MR. CUSHMAN. I for one expect to live to see the day in this House, 
 not when the Speaker shall tell the individual members of this House 
 what he is going to permit them to bring up, but when those individual 
 members constituting a majority will inform the Speaker what they 
 are going to bring up for themselves. 
 
 THE CALENDAR OF THE HOUSE 
 
 I for one expect to live to see the day in this Hall> when this House 
 has leisure in the interim between the passage of the great appropriation 
 bills that this House will go into the Committee of the Whole House 
 on the state of the Union for the consideration of bills on the Union 
 Calendar. I expect to live to see the day when the Union Calendar will 
 be called oftener than once in a lifetime. 
 
 Does anybody say that it is lack of time that prevents this? I have 
 seen this body adjourn three and four days at a time when the Union 
 Calendar was freighted with the hopes of voiceless millions. No, sir; 
 it does not lie in the mouth of this body or any member of it to say that 
 it is lack of time. It is lack of inclination and not lack of time that ails 
 this body or at least those who dominate it. 
 
 It does not require any longer time to pass the same bill when we are 
 in the Committee of the Whole House on the state of the Union than 
 it does to pass it under unanimous consent. The only difference is the 
 first is entirely within the power of the members themselves, while the 
 unanimous consent route is entirely controlled by the Speaker. But, 
 sir, I have seen the Speaker's room black with members, like flies around 
 a honeycomb, each one wondering if he was going to be able to per- 
 suade the Speaker to recognize him. I will tell you, sir, all we have to 
 do to regulate this matter is not to put in so much time trying to get the 
 Speaker to recognize us, but to rise up in our dignity and our might 
 and recognize ourselves. [Applause.] 
 
 When we go into the Committee of the Whole for the consideration 
 
 1 Congr. Record, Apr. 17, 1902. 
 
ORGANIZATION AND RULES OF THE HOUSE 251 
 
 of bills on the Union Calendar, every man with a bill on that Calendar 
 has, or ought to have, an equal chance to get his bill considered. 
 
 But under the other system the unanimous-consent route unfair 
 and inequitable, the Speaker of this House stands up and passes out 
 recognitions for " unanimous consents" like so many sugar-coated 
 doughnuts. He recognizes those he desires to recognize, and he does 
 not recognize those whom he does not wish to recognize. 
 
 What is the Union Calendar of this House and what bills go upon that 
 Calendar ? Every bill containing an appropriation of money or creating 
 an office goes upon that Calendar. It is difficult to conceive of any 
 important bill which would not include in its provisions one or the other 
 of those features. 
 
 That being true, the most important bills that are introduced in this 
 House go upon the Union Calendar. I would like to stand up in one 
 crowd the 70,000,000 in this Republic and have each one make a guess 
 as to how often there is a call of the Union Calendar in the House of 
 Representatives. It is never called. Only once in the last seven years 
 has this House gone into the Committee of the Whole House on the 
 state of the Union for the consideration of bills on the Union Calendar. 
 Why do we have a Calendar in this House? Did any man ever hear 
 in his lifetime before of a Calendar that is never called? Under the 
 present system of running this House we have no more need of a Calendar 
 than a man with both arms cut off above the elbows needs a pair of fur- 
 trimmed mittens. [Laughter.] 
 
 A friend of mine some time ago said to me, " Cushman, what makes 
 you so thin ? " I will tell you what makes me so thin. I have behind me 
 an honest but infuriated constituency. A half a million worthy, honest, 
 patriotic people who are demanding, and rightfully demanding, that I 
 secure certain needed legislation for them. That is the pressure on me 
 from the rear. Then in this House whenever I try to secure the con- 
 sideration of matters of legislation in which my people are interested 
 I run up against the stone wall that surrounds the Speaker of this House 
 and the Committee on Rules. That is what constitutes the pressure in 
 front. And I tell you frankly that between the pressure that has been 
 brought to bear on me from the rear and the pressure I have encoun- 
 tered in front that I have become thinner than a cancelled postage 
 stamp. That is what is the matter with me. [Laughter.] 
 
 THE RIGHTS OF A LEGISLATOR 
 
 Under the rules of this House as they are administered, the rights of 
 the individual legislator in this body are simply limited to his right to 
 vote "yes" and u no" on the various propositions that are brought be- 
 fore this House. 
 
252 AMERICAN FEDERAL GOVERNMENT 
 
 I say to you that one of the rights inherent in and appertaining to the 
 individual membership of every deliberative legislative body is not only 
 the right to vote on the questions that are brought up, but the broader 
 and higher right to have his voice heard and his vote recorded in deter- 
 mining what questions shall be brought up for consideration. And any 
 man who denies that, denies the existence of every principle that lies 
 at the base of a republican form of Government. 
 
 What do we amount to as individual units in this House this House 
 that was once the great House of Representatives, the popular forum of 
 a patriotic people? What is it now? It is an annex to the committee 
 room of the Committee on Rules. Here is where we meet and go through 
 the stupid formality of ratifying the legislation that is determined upon 
 by the Speaker and his Committee on Rules. To me one of the amaz- 
 ing things that occur in this House is to have some man arise and select 
 for his subject " Government without the consent of the governed," for 
 the Speaker invariably strains his eyes and cracks his voice trying to 
 discern and draw pictures of an alleged condition of that kind in a region 
 7,000 miles away. Talk about government without the consent of the 
 governed. If my brief legislative experience counts for anything, that 
 system has reached its greatest perfection and found its most perfect 
 flower right here in this Hall. 
 
 REPRESENTATIVE COCKRAN ON THE HOUSE 
 PROCEDURE 1 
 
 MR. COCKRAN. Anyone who has followed the course of this general 
 debate must have become impressed with two radically distinct and con- 
 flicting emotions ; admiration for the high capacity shown by the speakers 
 and regret that under the rules which govern us the speeches themselves 
 were directed not to some question pending before the House, but de- 
 livered into the empty air. By this, Mr. Chairman, I would not be 
 understood as saying that they were irrelevant to matters deeply affect- 
 ing the public welfare and vividly before the public mind. With hardly 
 an exception they all turned upon questions of vital and pressing political 
 importance, yet hardly one touched a subject with which the House will 
 be suffered to deal. If years from now some student should undertake 
 to study the Record which chronicles our proceedings, he would be driven 
 to the conclusion that while nearly every one of those speeches taken by 
 itself was of such excellence that it might have been addressed to a 
 council of sages, yet the whole debate taken together suggests the in- 
 coherence, discordance, and dissonance of a lunatic asylum rather than 
 the debate of a highly intelligent, deliberative body. [Laughter.] 
 
 1 Congr. Record, reported Apr. 20, 1906. 
 
ORGANIZATION AND RULES OF THE HOUSE 253 
 
 Mr. Chairman, my object in taking the floor now is to bring before 
 the House the rules which have caused this profligate waste of such ex- 
 cellent material, in the hope that through discussion of them means 
 may be found by which these abundant talents, these great potentiali- 
 ties of efficient service, will be utilized for the public benefit not dis- 
 sipated to the public discredit. 
 
 Mr. Chairman, the recent history of this House shows conclusively 
 that there is not in all this world a body capable of higher legislative 
 service or animated by loftier civic virtue. And yet, sir, it is a melan- 
 choly spectacle that this body, which, when controlled by the judgment, 
 the intelligence, and the patriotism of its membership, has succeeded 
 in producing the most important and triumphant legislative results, 
 when hampered, fettered, and restricted by absurd rules, often sinks to 
 an almost ludicrous incapacity, of which this very debate is a striking 
 illustration. That I do not exaggerate is, in my judgment, conclusively 
 proved by the triumphant success of the House this session in framing 
 and passing a railroad rate bill, when it was free to control its own 
 Members, and its utter failure to pass an effective measure last session 
 when it was bound and gagged under restrictions imposed by the 
 Committee on Rules. 
 
 Last year when this House was called upon to deal with the intricate, 
 perplexing, and almost wholly unexplored field of railroad rate legisla- 
 tion it was placed under a rule which restricted its power to adopting 
 the measure recommended by the majority of the Committee on Inter- 
 state Commerce, or else adopting the measure recommended by the 
 minority. No power was left in a Member to offer an amendment, or 
 in the House to consider it. As amendment is the only object and pur- 
 pose of discussion, where a body is practically unanimous on the prin- 
 ciple of a bill, as the House was on that railroad measure, the passage 
 of such a rule simply meant that we threw over upon the Senate the 
 important duty of originating amendments, whkh all conceded to be 
 necessary. That was not only an abdication of our functions and a 
 renunciation of our duty, but it was a confession of incapacity. For my 
 part, sir, I declined to be a party to such an abasement of this House, 
 membership in which I consider a distinguished honor, and so when 
 the measure was on its passage I refused to vote, asking simply to be 
 recorded " present." 
 
 That measure met the fate which the method of its passage invited. 
 It fell stillborn on the threshold of the other Chamber. It was never 
 even considered by the Senate. It was thrown in the wastebasket, its 
 proper destination. There it remained, useless for every purpose, ex- 
 cept as a monument to the folly, the incapacity aye, sir, I will say the 
 disloyalty with which we renounced our functions, turned our backs 
 upon our obligations, fled from our obvious duty. 
 
 Now, Mr. Chairman, contrast with that dreary record of incapacity, 
 
254 AMERICAN FEDERAL GOVERNMENT 
 
 of folly, and of failure, the triumphant progress of the bill dealing with 
 the same subject which passed the House this year. When it came before 
 us, the House was left free to deal with the measure as it pleased. Full 
 power to offer amendments was left in the hands of every Member. 
 The limit of debate was fixed by a unanimous vote. Every amendment 
 offered was considered and action taken freely upon it. The result was 
 a measure which I venture to say will stand for a long time as a monu- 
 ment to the patriotism in which it was conceived, the wisdom in which 
 it was framed, and the resolution with which it was passed. [Loud 
 applause.] 
 
 I say this, sir, notwithstanding the fact (and largely because of the 
 fact) that since this measure passed this House it has been the subject of 
 vigorous animadversions and very bitter criticism.' I take it that these 
 criticisms are in the highest degree a compliment to its merits. The 
 wrongdoers with whom it was intended to deal testify by the vehemence 
 and fury with which they assail it how deeply they realize its efficiency. 
 But, sir, the abuse of miscreants whose crimes it is intended to prevent 
 weighs little in the minds of honest men against the approval of the 
 people whose rights it is drawn to protect. And this it enjoys beyond 
 all question. Conceive for a moment the change in public attitude 
 toward this measure since closing debate. Recall the objections that 
 were advanced to it in this House with so much vehemence this year 
 and last year, and then you have but to examine from day to day the 
 adverse comments in newspapers, the speeches delivered against it, the 
 interviews with railway officials and railway attorneys who condemn 
 it, to measure the distance between the grounds occupied by its oppo- 
 nents before discussion in the House began and since its close. Then 
 you will be able to realize the distance that public opinion has traveled 
 under the light and guidance of our proceedings in this body. 
 
 When this measure was pending here, the point dividing its supporters 
 and opponents was the question whether we had any constitutional or 
 moral right to pass it. Some of its opponents said it violated the letter 
 and others the spirit of the Constitution, but they were all unanimous 
 in describing it as a long step toward socialism. Well, these objections 
 have* all been quieted. Not one of them has been audible since the 
 close of debate here. If one is heard occasionally it is in a voice so feeble 
 and so rare that it merely serves to attest the overwhelming prepon- 
 derance of public opinion. Gentlemen who were then most vehement 
 in opposing it now claim to be its most ardent supporters. One after 
 another popularly supposed to be bitterly hostile to it objects strenu- 
 ously now to being counted among its opponents. But while he wants 
 to be recognized among its supporters, he protests that he wishes to 
 perfect it. 
 
 Mr. Chairman, no one among the supporters of the bill objects to 
 any suggestion for its improvement. But I believe its friends should 
 
ORGANIZATION AND RULES OF THE HOUSE 255 
 
 be vigilant, and I am sure they will be vigilant, to see that under cover 
 of attempts to perfect the measure its enemies will not be permitted to 
 emasculate it. We must see that it is not destroyed by mutilation dis- 
 guised as amendments, now that efforts to destroy it by open opposition 
 are no longer considered safe. 
 
 Mr. Chairman, it is quite true that although the grounds of criticism 
 which were advanced in this House have been abandoned, new ones 
 have been evolved, which, though less weighty, enjoy the advantage of 
 not having been subjected to the test of our scrutiny. Of these the 
 most formidable now directed against this bill is that we have omitted 
 to provide for a judicial review of all orders made by the Interstate 
 Commerce Commission. For that reason this House has been denounced 
 as incapable, negligent, and indifferent. Now that I have the floor I 
 do not know how I can better improve the time at my disposal than by 
 employing some of it in refuting this criticism, and sending it to join all 
 its predecessors. I do not think, sir, that will be a very difficult task; 
 I think the very slightest examination of this last objection will show 
 that among criticisms it deserves to be classed as survival of the loosest. 
 [Laughter.] 
 
 First, Mr. Chairman, let me say a word as to its source. This objec- 
 tion is not advanced openly by the interests chiefly affected by the bill. 
 It proceeds ostensibly from a rather new product of our constitutional 
 evolution the constitutional lawyer the great constitutional lawyer, 
 who chooses a legislative body, rather than a judicial tribunal, for the 
 display of his qualities. 
 
 It is well to observe that the constitutional lawyer of a legislative body 
 is always a "great" constitutional lawyer. 
 
 Now, I confess that I regard this legislative constitutional lawyer with 
 something of the awe which attaches to everything beyond our compre- 
 hension. [Laughter.] I do not know that I am able to describe him. 
 I think I know him when I see him, for he has certain unmistakable 
 characteristics. But to describe you must understand, and I admit he 
 is far beyond the power of my intellectuals. Ordinarily our conception 
 of law is a uniform rule of conduct made binding upon all members of 
 a community, or at least on the large majority of them, by the sovereign 
 authority, whatever it may be ; and the function of the lawyer, we plain 
 mortals believe, is to ascertain this rule, to define and expound it, and 
 thus promote unanimous obedience to it. But while the essential func- 
 tion of the ordinary lawyer is to promote uniformity of the law, the 
 activities of the great constitutional lawyer in a legislative body produce 
 radically different results. Whenever we find him active in either branch 
 of Congress we find just as many different constitutions as there are 
 great constitutional lawyers to expound the organic law. 
 
 In this particular case the constitutional lawyers all declare that this 
 bill is constitutionally infirm somehow or other, but no two of them 
 
256 AMERICAN FEDERAL GOVERNMENT 
 
 agree in pointing out the precise seat of infirmity. The constitutional 
 lawyer is always vehement in warning us that before we undertake any 
 measure we must be sure of its constitutionality; that he alone is com- 
 petent to advise us ; that next to the duty of accepting him as infallible 
 comes that of regarding all other constitutional lawyers as unsound, if 
 not worse ; that we must be wary even of trusting their quotations lest 
 instead of giving us the judgment of a court they mislead us into accept- 
 ing as its decision the language by which a minority seeks to show that 
 the authority of the majority depended entirely upon the number of 
 judges who constituted it, not upon the weight of reasons which 
 justified it. 
 
 Mr. Chairman, if we must wait until the great constitutional lawyers 
 agree upon any subject, it is plain that we would never take a step in 
 any direction. 
 
 We would stand paralyzed at the threshold of every legislative enter- 
 prise, amazed and bewildered puzzled to distinguish amid the din 
 of their vociferation how much of it is advice to us and how much of it 
 denunciation of each other. I defy any man to define Congress itself 
 according to the constitutional lawyers after he has read three of their 
 speeches. [Laughter.] Some of them say that we have all power, others 
 that we have no power. Some that we can establish our authority over 
 the courts, that we can not only confer jurisdiction on them or withhold 
 it, as we please, but even after we have granted t that we can control 
 its exercise at least so far as to determine what persons or classes 
 may have the benefit of it ; that we can give it to the courts, as it were, 
 with a string, so that a writ may be left within reach of our favorites 
 and pulled far beyond even the view of any person or corporation whom 
 we dislike or distrust. Others, again, tell us that we are not even an 
 independent or coordinate department of government, but, so to speak, 
 an antechamber to some other department; that our power consists 
 in merely proposing laws, which, by the permission of another body, 
 may acquire the force of statutes. 
 
 Now, Mr. Chairman, to me an ordinary citizen, an humble Mem- 
 ber of this House a constitutional lawyer is an imposing personage 
 before a court whose authoritative interpretations of the Constitution 
 he aids by his arguments. For that very reason, sir, it seems to me that 
 a legislative body is not the proper theater for disputatious attorneyship, 
 but essentially one for constructive statesmanship. I can not believe 
 that the function of Congress is a mystery difficult to comprehend or 
 the duty of its Members a puzzle too perplexing for the ordinary mind 
 to solve, as these gentlemen would persuade us. 
 
 It seems to me that the duty of Congress is to examine closely the 
 condition of the country and keep itself constantly informed of every- 
 thing affecting the common welfare. Wherever a wrong is found to 
 exist with which the nation can deal more effectively than a State, it is 
 
ORGANIZATION AND RULES OF THE HOUSE 257 
 
 the business of Congress to suggest a remedy. If the courts hold that 
 the legislation we consider essential is beyond our power to enact, our 
 duty to suggest a remedy is none the less binding, except that instead 
 of proceeding by the enactment of a law we should proceed by propos- 
 ing a constitutional amendment. Our duty to propose an amendment 
 to the Constitution when advisable is just as binding as our duty to 
 change the law when that is within our power and we believe it is essen- 
 tial to the welfare of the citizens. [Applause.] If, therefore, we find that 
 a wrong exists anywhere which the National Government in our judg- 
 ment has the power to redress, and some great constitutional lawyer 
 should undertake to raise objections with that wonderful ingenuity which 
 enables us always to distinguish him, not by numerous decisions of courts 
 upholding his contentions, but by the wonder and awe of his legislative 
 associates at the multiplicity of his quotations, the strangeness of his 
 phrases, the majesty of his mien, and the mystery of his meaning [laughter 
 and applause], it is not for us to waste time in abstract and fanciful specu- 
 lations about the course which the courts may pursue toward the reme- 
 dial measures we may enact. Face to face with a wrong which we 
 believe a State can not cure, it is our duty to find a remedy some way 
 or other. Our first step must be in the direction of legislation. The 
 only way we can ascertain definitely whether a law which we believe 
 will prove effective is constitutional or unconstitutional is not by aban- 
 doning ourselves to a maelstrom of speculations about what the court 
 may hold or has held on subjects more or less kindred, but to legislate, 
 and thus take the judgment of the court on that specific proposal. We 
 can tell whether it is constitutional or unconstitutional when the court 
 pronounces upon it and not before. Even if the court declares it 
 unconstitutional its decision will not reduce us to helplessness. When 
 it drives us from establishing a remedy by legislation it will by that very 
 act direct us to propose a remedy by constitutional amendment. 
 Having framed a suitable amendment and proposed it to the legisla- 
 tures of the States, our duty will have been accomplished. The final 
 step toward full redress will then be with the bodies most directly 
 representative of the people affected by the wrong. 
 
 THE COMMITTEE SYSTEM 1 
 
 [The following extracts are taken from an extended debate on the distribu- 
 tion among the House committees of the various parts of the President's 
 annual message. This question was made the occasion of discussions covering 
 the entire field of national policy. The particular debate here reproduced took 
 place immediately after the resolution for the distribution had been reported to 
 the House by Mr. Payne, chairman of the Committee on Ways and Means. 
 
 1 Congr. Record, Dec. 13-15, 1905. 
 
258 AMERICAN FEDERAL GOVERNMENT 
 
 The controversy turned especially on the question whether bills dealing with 
 insurance should be referred to the latter committee.] 
 
 MR. HEPBURN. Mr. Chairman, I have no objection to the resolution 
 as it was introduced at the time of its reference. I do object to the amend- 
 ment made in the fourth line, by inserting the words "and insurance." 
 The effect of that- is to carry all matters of legislation concerning the 
 control of insurance to the Committee on Ways and Means; and the 
 reason assigned for that is that in the opinion of the Chairman the only 
 manner in which Congress can have jurisdiction over that subject is 
 through the exercise of the taxing power. 
 
 Mr. Chairman, even if that were true, that would not indicate, neces- 
 sarily, the direction which this class of business should take in assignment 
 to committees. It is true that all matters of taxation, where taxation 
 the raising of revenue is th'e object to be attained, should be considered 
 by the Committee on Ways and Means ; but where taxation is resorted 
 to solely for the purpose of securing jurisdiction, solely for the purpose of 
 the exercise of a power, I submit that it is not the rule of this House to 
 send matters of that kind to that Committee notably the legislation 
 with reference to oleomargarine. A tax nominal was resorted to only 
 to give power to the Congress, or justify it in the exercise of power. Yet 
 you will remember that that matter was considered and reported by 
 the Committee on Agriculture. They had jurisdiction of it, recognizing 
 the fact that the assumption upon the part of the Committee on Ways 
 and Means was a mere fiction. The object was not to secure revenue. 
 The object was to secure the right to exercise a power. Therefore the 
 taxing power was resorted to, or taxation was made the pretext. There 
 are a number of instances that might be given where this rule has been 
 observed and where jurisdiction of the Committee on Ways and Means 
 has been denied, notwithstanding the fact that a nominal tax was pro- 
 vided for in the legislation sought. 
 
 Mr. Chairman, I am willing to concede that there is more than one 
 decision of the Supreme Court in which it has been held, in a casual way, 
 that insurance was not commerce; but I want to call attention to the 
 fact that that was not the major proposition considered by the Supreme 
 Court, that but little attention was paid to that question in the argument, 
 that that was simply one of the incidents in the case ; and it is the opinion 
 of a great many men learned in the law that when the proposition is 
 fairly made, when the attention of the Supreme Court is called to the 
 fact of the immense interest there is in insurance, interwoven inextricably 
 with trade, when it is remembered that the annihilation of insurance 
 would well-nigh annihilate commerce, that thousands and tens of 
 thousands of commercial enterprises would never for a moment be con- 
 sidered or undertaken but for the auxiliary of insurance; when it is 
 shown how interwoven insurance is with all commercial transactions, 
 
ORGANIZATION AND RULES OF THE HOUSE 259 
 
 with the millions of money invested in trade and commerce, that another 
 view of that subject may be taken. And I want to call attention to the 
 fact that I have -in my possession a bill prepared by the secretary of the 
 National Bar Association, and, as I understand, a bill that met with their 
 approval, from which it is clear that, in their opinion in the opinion 
 of the National Bar Association of the United States the regulation 
 of insurance companies is a power given to Congress under the commerce 
 clause of the Constitution. The language of these gentlemen, as used in 
 the bill, declares that the writing of policies and other business of that 
 character is commerce, and therefore it is a power conferred by the 
 commerce clause of the Constitution. 
 
 This is a matter of importance. I want to call attention to the fact 
 that, so far as there is any precedent upon the part of the House, you will 
 discover from that precedent that the Committee on Interstate and 
 Foreign Commerce had jurisdiction over this subject. The only legisla- 
 tion that we have upon that subject emanated from that committee. 
 That committee reported the bill creating the Department of Commerce 
 and Labor, by which there is created a Bureau of Corporations, and in 
 express terms, with the other conferments of power, is the one including 
 insurance. So that, so far as precedent goes, I think the gentleman is 
 wrong in his assumption that the committee he has referred to and over 
 which he presides (the Committee on Ways and Means) is the sole com- 
 mittee that may take jurisdiction of this subject. 
 
 I reserve my time, but I will yield to any gentleman who desires me to 
 do so. 
 
 ******** 
 
 Mr. LACEY. If the Committee on Interstate Commerce should con- 
 clude that the only remedy in this matter is by taxation, I presume they 
 would scarcely report a bill upon that question for fear of trespassing 
 upon the jurisdiction of the Ways and Means Committee. That is a 
 question we will worry about when we get to it ; but here is the President's 
 message that only points out one way through commerce, and that would 
 go to the Committee on Interstate Commerce, not the Committee on 
 Ways and Means. There is not a single suggestion anywhere in the 
 message that there is any thought in the mind of the Executive that the 
 question can be handled through the taxing power. Possibly it could be 
 legislated upon in that way, but the message does not consider anything 
 of that kind or suggest anything of the kind to the Congress, and therefore 
 it seems to me clear we ought not to adopt this amendment, but to 
 leave revenue measures to go to the Committee on Ways and Means, 
 and matters connected with commerce in the message go to the Committee 
 on Interstate Commerce. 
 
 The CHAIRMAN. Before the Chair recognizes the gentleman from 
 Illinois, does the gentleman from Iowa desire to reserve the balance of 
 his time? 
 
2 6o AMERICAN FEDERAL GOVERNMENT 
 
 Mr. HEPBURN. I desire to reserve the balance of my time, and if I 
 can be recognized I would desire to yield five minutes to the gentleman 
 from Minnesota [Mr. Stevens]. 
 
 Mr. STEVENS of Minnesota. This subject is an important one, but the 
 proposition to be immediately settled is not novel. It seems to me that 
 similar subjects which should be precedents and a basis for our action 
 here have been settled by the House in previous Congresses with the 
 assent of the Committee on Ways and Means, and especially of its dis- 
 tinguished chairman. Now, he did relate somewhat the history of the 
 oleomargarine legislation, but he omitted especially the significant course 
 of legislation in the Fifty-sixth and Fifty-seventh Congresses, which is 
 of the greatest interest and bearing now. The history of that legislation 
 in those two particular Congresses is that which is appropriate to the 
 present settlement of this proposition. There were several bills intro- 
 duced in the Fifty-sixth Congress to regulate and control the sale of 
 oleomargarine by means of the taxing power. I have here the index to 
 Congressional Record of the first session of the Fifty-sixth Congress. 
 From it there appears to have been six bills introduced in the House, 
 three of which were referred to the Committee on Ways and Means. 
 
 The Record shows that the Committee on Ways and Means took no 
 action with the bills referred to them. The Record also shows that the 
 Committee on Agriculture did take action on one of the bills H. R. 37 17 
 referred to it, and that the House received the report without objection 
 by anybody as to jurisdiction, but no bill passed. The Record of the 
 Fifty-seventh Congress shows that there were eight bills introduced in 
 the first session of the Fifty-seventh Congress. Seven of them were re- 
 ferred to the Committee on Agriculture and one, containing other 
 provisions, was referred to the Committee on Ways and Means H. R. 
 6534, by Mr. Underwood, of Alabama, which by its terms amended the 
 revenue act of October i, 1890. The especially noticeable fact which 
 the House should know is this : There were two of the bills introduced in 
 the Fifty-sixth Congress providing for the control and regulation of the 
 subject of oleomargarine by means of the taxing power, one introduced 
 by my colleague from Minnesota [Mr. Tawney] and one by my friend 
 from Wisconsin [Mr. Davidson], which were referred to the Committee 
 on Ways and Means in the Fifty-sixth Congress. In the Fifty-seventh 
 Congress those almost identical bills, introduced by those same gentle- 
 men, were referred to the Committee on Agriculture by the officials of 
 the House without any objection from the chairman of the Committee 
 on Ways and Means or from the Committee on Ways and Means itself. 
 And the bill which was considered in the Fifty-seventh Congress, the bill 
 which actually passed, was a bill introduced by Mr. Henry, of Connecti- 
 cut H. R. 9206 which was referred to the Committee on Agriculture, 
 reported by that Committee to the House and considered on the floor 
 from that reference, and no objection was made by the Committee on 
 
ORGANIZATION AND RULES OF THE HOUSE 261 
 
 Ways and Means or by anyone else to the jurisdiction of the Committee 
 on Agriculture, although the taxing power of the Government was in- 
 voked by the measure. So that the history of that legislation which bears 
 the closest analogy to this proposition before this committee shows, 
 although it contained provisions for the taxing powers, which were even 
 the basis for its action and existence, yet the Committee on Ways and 
 Means, although at first it assumed or received jurisdiction of the bills, 
 afterwards yielded the control of them, for the very good reason that the 
 main subject of those bills and the main purpose of that legislation was 
 not the exercise of the taxing power, but the power to regulate and control 
 a certain subject-matter which should be considered by another com- 
 mittee. Now, the House has considered and settled just this sort of 
 matter. The Committee on Ways and Means has already considered 
 them and yielded jurisdiction on a similar subject when the same ques- 
 tion was involved, and that seems to me 
 
 Mr. LITTLEFIELD. May I ask the gentleman from Minnesota a 
 question ? 
 
 Mr. STEVENS of Minnesota. Certainly. 
 
 Mr. LITTLEFIELD. I have listened with a great deal of interest to the 
 analysis of what was or was not legislation. Now what I would like to 
 inquire is why these bills that went before the Committee on Agriculture 
 and which are so parallel to this proposition did not go before the Inter- 
 state and Foreign Commerce Committee, the committee that now wants 
 to get possession of this subject? 
 
 Mr. STEVENS of Minnesota. That is just the point I wanted to make. 
 The House evidently considered and the Committee on Ways and 
 Means evidently considered, and it should be considered now that 
 the reference of any bill as to any subject should be to the committee 
 which has general charge of the subject-matter which is the general main 
 purpose of the bill. If the general purpose of the bill, if the general 
 scope of the legislation, if the primary object for its enactment, is to 
 raise revenue, even if it taxes insurance companies and insurance pol- 
 icies, or whatever it may do, and because of that regulate them in certain 
 ways if the main purpose of that legislation is to raise revenue, then it 
 unquestionably should go to the Committee on Ways and Means. But if 
 the main purpose of the legislation is to benefit the general or any particu- 
 lar agricultural interests of the country is to vitally affect the agri- 
 cultural interests of the country and its incidental purpose is to use 
 the taxing power, this House has decided that bill should go to the 
 committee which had general charge of the agricultural interests of the 
 country. 
 
 Now, if the main purpose of this bill be to regulate commerce, is to 
 regulate the business which is incidental to or may be an integral part of 
 commerce, regulate the general object which concerns commerce, it 
 should go to the committee which has general charge of the subject of 
 
262 AMERICAN FEDERAL GOVERNMENT 
 
 commerce, even though one of its incidental features concerns the sub- 
 ject of taxation, just exactly as did the question of control of oleomarga- 
 rine in the Fifty-seventh Congress go to the committee which had charge 
 of the interests which were most and vitally affected. 
 
 That has been the rule in the past. It seems to me to be a safe and 
 salutary rule now and in the future, one that ought to be adopted in this 
 House on all sorts of subjects. That kind of a rule is always safe and 
 fair to all interests and all committees ; and under that rule this subject 
 should go to the Committee on Interstate and Foreign Commerce. 
 
 Mr. LITTLEFIELD. Now let me suggest to the gentleman, if he pleases. 
 
 Mr. STEVENS of Minnesota. Certainly. 
 
 Mr. LITTLEFIELD. That very reason you have given why this bill 
 should go to the Committee on Interstate and Foreign Commerce applies 
 with equal force to the oleomargarine proposition, as to which we could 
 not legislate at all except under the interstate-commerce clause of the 
 Constitution. Now, why did not your Committee on Interstate and 
 Foreign Commerce at that time assert the jurisdiction that they are now 
 undertaking to assert, when there were just exactly the same reasons for 
 it ? You had one bill referred to the Committee on Interstate and Foreign 
 Commerce, and that committee quietly let that bill die in the committee. 
 
 The CHAIRMAN. The time of the gentleman from Minnesota has 
 expired. The gentleman from Iowa has eight minutes remaining. 
 
 Mr. LITTLEFIELD. I ask unanimous consent that the gentleman from 
 Minnesota may have five minutes more. 
 
 The CHAIRMAN. Unanimous consent is asked that the gentleman from 
 Minnesota have five minutes in his own right. Is there objection? 
 [After a pause.] The Chair hears none. 
 
 Mr. LITTLEFIELD. It seems to me that the very reason you have given 
 why this bill should go to the Interstate Commerce Committee, and all 
 the reason you have given why it should go to that committee, is that it is 
 interstate commerce ; all the reason why you say the oleomargarine prop- 
 osition went to the Committee on Agriculture was because it related to 
 agriculture. Now, this proposition relates not to interstate commerce, 
 but to insurance. There was a Committee on Agriculture, and the 
 oleomargarine proposition was one that related to agriculture, and it 
 went to the Committee on Agriculture, and the only provision under 
 which that committee could get jurisdiction of legislation of that kind 
 was that it was interstate commerce, and that is exactly the same juris- 
 diction over that subject that you have over this. Why did you not assert 
 that jurisdiction then? 
 
 Mr. STEVENS of Minnesota. I do not think the gentleman from Maine 
 quite apprehends the point I make. It seems to me that the true rule 
 should be that the main purpose of the bill should be primarily con- 
 sidered in its reference. The object which is mainly and primarily sought 
 to be accomplished should determine the reference of the bill. Now, in 
 
ORGANIZATION AND RULES OF THE HOUSE 263 
 
 the oleomargarine bill the main purpose of the bill was to assist the 
 agricultural interests of the country. It was subsidiary and an incident 
 that it related to the question of interstate commerce. The main purpose 
 of that legislation was to assist the agricultural interests ; but for that it 
 would not have been passed or enacted. This House did exactly right 
 in considering the main purpose and object of that legislation in making 
 the reference to the committee which had charge of the principal subject- 
 matter of agriculture. Now, in this case, insurance is incidental at least 
 to commerce ; it is part, an integral part, of a business which is concerned 
 with the subject of commerce ; if it exists at all, it must be as a part of the 
 great business interests of the country and of the great commercial 
 interests of the country, and that subject-matter goes, by our rules, 
 to the Committee on Interstate and Foreign Commerce. 
 
 ******** 
 
 Mr. PAYNE. Mr. Chairman, to return to the subject of this resolution 
 and the amendment offered to it referring this message, so far as it relates 
 to matters of insurance, to the Committee on Ways and Means, I wish to 
 discuss that question briefly. 
 
 There can be no doubt but that all bills raising a tax go to the Commit- 
 tee on Ways and Means, no matter what may be their nature. They go 
 there under the rule. 
 
 The gentleman from Iowa [Mr. Hepburn] yesterday, in speaking of the 
 matter, announced a rather novel and strange doctrine. He said : 
 
 Therefore the taxing power was resorted to. The taxation was made the 
 pretext 
 
 And from reading the context it would seem from the tenor of his re- 
 marks that in various laws passed by Congress taxation was made the 
 pretext to give Congress the jurisdiction of the subject-matter. Now, of 
 course, it is patent to every lawyer in the House that if the House should 
 enact a law and put into the law itself the statement that the taxation was 
 simply a pretext to get jurisdiction over the matter the Supreme Court 
 would promptly declare the law unconstitutional; and where any of 
 these laws which the gentleman characterizes in this manner have gone 
 to the Supreme Court on their constitutionality the Supreme Court has 
 examined the law, and when it found that the law imposed a tax they 
 have promptly said that under the Constitution Congress had jurisdic- 
 tion, but if the tax was a mere pretense Congress would have no juris- 
 diction. No committee would have any jurisdiction. Congress has no 
 jurisdiction over the subject of insurance unless it can get it under the 
 taxing power of the Government, as I shall proceed to show later on in 
 numerous decisions of the Supreme Court of the United States where that 
 subject was involved in the decision of the case. 
 
 Mr. SMITH of Iowa. Mr. Chairman, may I put a question to the 
 gentleman ? 
 
264 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. PAYNE. I would rather the gentleman would not interrupt me 
 now. If he will wait until I finish, then he can put his question. 
 
 Mr. SMITH of Iowa. Very well. 
 
 Mr. PAYNE. The gentleman from Iowa [Mr. Hepburn] yesterday 
 cited what he said was a precedent for this action, and that was the bill 
 imposing a tax on oleomargarine. I have quite a vivid recollection of 
 what occurred at that time, because it occurred during my early service 
 in Congress, and I was curious to see how the House would get at a sub- 
 ject when it was bent on doing so, rule or no rule. 
 
 The bill came here first in 1882. That was before I broke into Con- 
 gress, and it was referred to the Committee on Ways and Means under 
 the rules. It was a bill to tax oleomargarine. There was a suspicion in 
 the House, as well as in the country, that the object of that law was to tax 
 oleomargarine out of existence. Nevertheless, the bill went to the Com- 
 mittee on Ways and Means. Why? Because it raised revenue; be- 
 cause by its terms it imposed a tax. No one doubted then but that that 
 was the proper reference. 
 
 In 1886 the same bill was introduced in the House and the same bill 
 was referred to the Committee on Ways and Means. I think it was re- 
 ferred there in the first instance properly under the rules of the House. 
 Mr. Hatch, of Missouri, chairman of the Committee on Agriculture, had 
 very pronounced views on the subject of the suppression of oleomarga- 
 rine. I do not remember whether the bill was introduced by him or not, 
 but he had a suspicion that the bill would go to sleep in the Committee on 
 Ways and Means. They had not reported it. It was rumored that that 
 committee was opposed to the bill and opposed to the proposed legislation, 
 and in order to get the bill out of the Committee on Ways and Means and 
 get it into more friendly atmosphere Mr. Hatch made the motion in the 
 House to discharge the Committee on Ways and Means from the fur- 
 ther consideration of that bill and to refer it to the Committee on Agri- 
 culture, of which he was chairman. 
 
 After some debate, from which it appeared that the House was over- 
 whelmingly for the bill, a very large majority representing their farmer 
 constitutents here on the floor of the House having gotten the idea that 
 this law, if enacted, was going to greatly improve the condition of agricul- 
 ture, and especially the dairy farming in the United States, anxious as 
 they were to have an immediate action upon this bill and get it before a 
 committee that would report it to the House, by a vote of 67 to 40, as I 
 am informed, the bill was taken from the Committee on Ways and Means 
 and referred to the Committee on Argiculture, and the bill was reported 
 and afterwards became a law. That is the origin of the oleomargarine 
 law. 
 
 Since that time in various Congresses, since my friend from Iowa has 
 become chairman of the great Committee on Interstate and Foreign 
 Commerce, various bills of like character a bill taxing filled cheese, 
 
ORGANIZATION AND RULES OF THE HOUSE 265 
 
 the bill taxing impure flour, and bills of that nature have been intro- 
 duced in the House and referred invariably to the Committee on Ways 
 and Means and reported by that committee, and have become a part of 
 the law of the country from such reference and reports. 
 
 No one ever doubted that the proper place for these bills was with the 
 Committee on Ways and Means. I do not know whether the gentleman 
 from Iowa claims that his committee has jurisdiction over the subject of 
 insurance or not, but it seems to me that if any legislation is proposed on 
 this subject the Committee on Interstate and Foreign Commerce has no 
 more pretense to a right of jurisdiction than has the Committee on Ex- 
 penditures in the Interior Department. 
 
 TACTICS OF THE OPPOSITION. ACCOUNT OF THE 
 OPPOSITION MOVEMENT 
 
 [The parliamentary tactics employed by the leader of the minority in the 
 first session of the 6oth Congress, 1908, are of great interest. They were 
 avowedly planned not for the purpose of obstructing legislation, but enforcing 
 action of the House upon certain measures. The method of obstruction 
 employed by the minority leader was to make use on every possible occasion 
 of the constitutional right to have the yeas and nays taken on a motion. The 
 first extract is an account of the whole proceeding, from the point of view of the 
 opposition. The attitude of the majority leaders toward the movement is 
 brought out in the debate itself.] 
 
 BY REPRESENTATIVE HENRY T. RAiNEY 1 
 
 MR. RAINEY said: 
 
 Mr. Speaker : Under the general leave to print I desire to submit the 
 following brief review of the attempt by the Hon. John Sharp Williams, 
 of Mississippi, the Democratic leader in the House of Representatives, 
 to compel the enactment of the legislation demanded by the country at 
 the present time. In his effort to compel the enactment of certain needed 
 legislation Mr. W 7 illiams received the united and active support of the 
 Democratic minority in the House from the moment the movement com- 
 menced until the adjournment of Congress. 
 
 At the opening of the Sixtieth Congress the following legislation was 
 universally demanded: 
 
 1. An employers' liability bill. 
 
 2. A bill providing for publicity of campaign contributions. 
 
 3. A bill placing wood pulp and print paper on the free list. 
 
 4. An anti-injunction bill. 
 
 The first session of the Sixtieth Congress commenced at noon, Decem- 
 ber 2, 1907, and from that time until January 7, when Congress recon- 
 vened, after the holiday recess the House was in actual session just 
 
 1 Congr. Record, June 5, 1908. 
 
266 AMERICAN FEDERAL GOVERNMENT 
 
 fourteen hours and five minutes. During that time the House adjourned 
 for two weeks on account of the holiday recess. Up to the 24th day of 
 March the House was in session ninety days. The average daily length of 
 each session was three hours and sixteen minutes. From the beginning 
 of the session until the 24th day of March only three bills of public im- 
 portance had been passed, to wit: 
 
 An act providing for an immigration station in Philadelphia, and ap- 
 propriating $250,000 therefor; 
 
 The urgent deficiency appropriation bill ; and 
 
 The bill to increase the efficiency of the personnel of the Life-Saving 
 Service. 
 
 Up to that time only one joint resolution had been passed, to wit, a 
 resolution inviting other countries to send representatives to the Inter- 
 national Congress of Tuberculosis. 
 
 The above bills and the above joint resolution represent the sum total 
 of the activities of the Sixtieth Congress for the first four months of the 
 session which closes to-day. 
 
 There is not much a minority can do to compel legislation on the part 
 of the majority. A minority, however, has certain rights under the Con- 
 stitution which can not be taken away. Among these rights is a right to 
 demand roll calls, and this right the minority have asserted from the 24th 
 day of March until to-day. 
 
 On the 24th day of March, 1908, Mr. Williams, the minority leader, 
 on behalf of the Democratic minority, demanded the enactment of cer- 
 tain legislation. [His speech on that occasion is given on p. 271.] 
 
 The first roll call demanded by Mr. Williams in pursuance of his an- 
 nounced purpose occurred on March 30, just two months prior to the ad- 
 journment date, and the period of the activity of the Sixtieth Congress 
 commenced also on that date. During the remainder of the Session fol- 
 lowing the inauguration of the aggressive campaign of the Democrats, 
 under the leadership of Mr. Williams, for needed legislation between the 
 3oth day of March and the 3oth day of May the House passed thirty-one 
 important public bills and four important public joint resolutions. Dur- 
 ing that period of time the Committee on Rules exerted its strength against 
 the aggressive policy of the minority leader and, among other rules, it 
 reported out the following, all of which were passed by a strict party 
 vote: 
 
 (P. 4462.) Mr. Payne, from the Committee on Rules, reported out 
 an order for the consideration of H. R. 233 for the distribution of the 
 President's message; and 
 
 (P. 4467.) Moves closure of debate. 
 
 (P. 4495.) Mr. Dalzell, from the Committee on Rules, brought in a 
 rule the effect of which was to revoke the previous unanimous consent of 
 the House for eight hours of debate on the District appropriation bill, al- 
 lowing two hours only. 
 
ORGANIZATION AND RULES OF THE HOUSE 267 
 
 (P. 4513.) A sweeping rule was brought in by Mr. Dalzell, which 
 provided that all Senate amendments to general appropriation bills 
 should be agreed or disagreed to en bloc. The rule also provided that a 
 motion for a recess should be a privileged motion. It also provided for 
 closing debate by motion in the House before going into the Committee 
 of the Whole the motion not to be subject to debate or amendment. 
 In his speech reporting this rule Mr. Dalzell admitted that the rule was 
 brought in for the purpose of counteracting Mr. Williams's tactics. [See 
 
 P- 2 73-l 
 
 (P. 4675.) A rule was brought in declaring recesses in advance from 
 day to day for the current week. It also provided for the closing of de- 
 bate on the naval appropriation bill. 
 
 (P. 4684.) A rule was reported providing that whenever a general 
 appropriation Bill is reported favorably from the committee on the bill 
 it shall be in order to apply to it in the House a motion to suspend the 
 rules under the conditions prescribed in Rule XXVIII, except a vote 
 shall be by a majority instead of two-thirds. 
 
 The above are some of the arbitrary rules brought in to counteract the 
 effect of the tactics of the minority leader. More time was consumed in 
 discussing and in voting on the above rules than would have been required 
 to have discussed and to have passed bills on all the matters referred to 
 by Mr. Williams on the 24th day of March. 
 
 On the 26th day of March the President sent to Congress a special 
 message advising, among other things, in substance, the legislation de- 
 manded by the minority leader. The Democrats, under the leadership 
 of Mr. Williams, compelled the adoption of an employers' liability bill, 
 which was approved April 22, 1908, and is known as " Public bill No. 
 100." 
 
 The other three demands of the minority leader have not been com- 
 plied with by the Republicans. 
 
 PUBLICITY OF CAMPAIGN CONTRIBUTIONS 
 
 The Republican majority, in pretended compliance with the Demo- 
 cratic demands for publicity of campaign contributions, compelled the 
 passage by a strict party vote in the House of Representatives on the i2th 
 day of May, 1908, of the following bill: 
 
 An act (H. R. 20112) providing for publicity of contributions made for the 
 purpose of influencing elections at which Representatives in Congress are 
 elected, prohibiting fraud in registrations and elections, and providing data 
 for the apportionment of Representatives among the States. 
 
 The above measure is a combination of the McCall publicity bill, the 
 Federal election bill, and an effort to take the preliminary steps toward re- 
 
268 AMERICAN FEDERAL GOVERNMENT 
 
 ducing Southern representation in the House of Representatives. It was 
 passed through the House against a protest of the Democrats, and with 
 the knowledge that it could not possibly under any consideration pass the 
 Senate. The country was demanding an act providing for publicity of 
 campaign contributions. The investigations of the life-insurance com- 
 panies in New York, recently finished, disclosed the necessity of legisla- 
 tion of this character. The tremendous corrupting influences of contribu- 
 tions by the Standard Oil Company, the steel trust, the life-insurance 
 companies, and other great corporations of the Republican campaign 
 funds from 1896 to date discloses the immediate necessity for publicity. 
 This legislation was universally demanded. The bill met its fate in the 
 Senate, as predicted in the House, on the 28th day of May two days 
 ago. It was impossible to get it through the Senate with the objection- 
 able provisions attached. 
 
 I quote from a part of the debate in the Senate on that day on the sub- 
 ject. (Congressional Record, p. 7505, first session Sixtieth Congress) : 
 
 Mr. CULBERSON. There is another important matter, Mr. President, which 
 the Senator, I trust, will pardon me for calling his attention to at this time, 
 measures which are pending with reference to the publicity of campaign con- 
 tributions. I ask the Senator if we may expect any legislation on that subject 
 at this session? 
 
 Mr. ALDRICH. I am also without authority to speak for anybody but myself. 
 There is a measure pending in the Committee on Privileges and Elections 
 which comes here from the House of Representatives, and I can only say, as 
 far as I am personally concerned, if the Senator desires a vote on that measure 
 this afternoon or any hour to-day or to-morrow, without further debate, after 
 the pending conference report is disposed of, I certainly shall make no objection 
 to that request. 
 
 Mr. CULBERSON. Does the Senator refer to what is known as "the McCall 
 publicity bill?" 
 
 Mr. ALDRICH. I refer to the bill which came here on that subject from the 
 House of Representatives, and which is now pending in the Committee on 
 Privileges and Elections. 
 
 Mr. CULBERSON! But my inquiry was with reference to a publicity bill pure 
 and simple, unmixed with other political matters. 
 
 Mr. ALDRICH. The publicity bill that is before the Senate is associated 
 with other provisions in regard to changes in election laws. The Senate cannot 
 disassociate those two items. It the Senator desires legislation upon the sub- 
 ject, of course it must be legislation with the concurrence of the House of 
 Representatives, and those two things cannot be separated. Of course, if we 
 should agree to take a vote upon the subject and fix a time and the Senate 
 should disagree to that provision, then the matter would be in conference. But 
 I am quite willing, speaking for myself, to fix a time immediately after the dis- 
 position of the pending conference report for a vote upon the House proposition 
 without further amendment. 
 
 Mr. CULBERSON. The Senator, then, I assume, so far as he is concerned 
 and of course we know the extent to which he speaks is unable to give us 
 
ORGANIZATION AND RULES OF THE HOUSE 269 
 
 any assurance that a publicity bill pure and simple, unmixed with the bill, I 
 will state frankly, concerning representation, will be acted upon at this session 
 and be passed. 
 
 Mr. ALDRICH. There is no possible way in which the Senate can bring the 
 matter to a test vote except by taking up the House bill, so far as I can see. If 
 we are to have effective legislation upon the subject, it must be, as I said before, 
 by concurrence of the two Houses; and I shall join with pleasure the Senators 
 upon the other side, if they desire to have a time fixed for a vote upon that 
 proposition, in acceding to their request. 
 
 Mr. BACON. With the permission of the Senator from Texas, I desire to 
 make a suggestion to the Senator from Rhode Island in that connection. There 
 are some things in which parties and Senators are at variance. Of course we 
 recognize that there are some things in which there is controversy, some things 
 in which there is a diversity of opinion and of wish. There are other things in 
 which there is, on the part of Senators of both political parties, a profession of 
 unanimity of purpose and of desire. 
 
 Now, both parties 'represented in this Chamber, and those outside of this 
 Chamber who are recognized as the leaders of the parties in the country at 
 large, avow that they are at one upon one subject, that they are in perfect 
 unison and accord on the subject of the requirement of publicity in connection 
 with campaign funds and contributions. 
 
 Mr. ALDRICH. Will the Senator from Georgia state to whom he refers? 
 I would be glad to have the Senator state definitely to whom he refers as the 
 leaders of the two parties. 
 
 Mr. BACON. I can only speak of what appeared in the press. I am not 
 speaking otherwise than what has been given out in an authoritative manner. 
 There are some who in the public press assume to be leaders and express them- 
 selves in that way. But I am not speaking of that except simply by way of a 
 side matter. I am speaking about what concerns us in this Chamber, to wit, 
 the profession on the part of Senators on each side of the Chamber that we are 
 in favor of the passage of a law which shall make public the contributions for 
 campaign purposes prior to an election. I suppose there is no Senator here 
 who will rise in his place and say he does not favor that. 
 
 Now, that being a matter in which we are professedly in absolute accord, 
 the suggestion I wish to make to the Senator is that if in truth we are in accord, 
 if it is true that in good faith that profession is made, then the matter which is 
 thus without controversy can be easily disposed of without debate and without 
 reference to committees or anything else. We can pass the measure in five 
 minutes if it is limited to the publicity feature, whereas the Senator well knows 
 that to attach to it a matter which is in controversy and about which there is 
 not a concord of sentiment it must necessarilv at this time defeat the one about 
 which there is no diversity of opinion. 
 
 That being the case, I suppose of course it has occurred to the Senator 
 but I thought I would take the liberty of suggesting it that the plain, simple 
 way, we desire really to carry out our professions relative to requiring pub- 
 licity of campaign contributions, is to limit our consideration and our action 
 to that matter about which there is professedly no diversity of opinion. 
 
 I said I supposed there was no Senator in this Chamber who would rise in 
 his place and say that he did not favor the publicity bill. Then I would ask 
 every Senator to ask himself the question whether it is acting in good faith to 
 
270 AMERICAN FEDERAL GOVERNMENT 
 
 attach to that measure relative to publicity another measure which does pro- 
 duce controversy and about which we are disagreed and the inevitable conse- 
 quence of which must be to defeat that which they profess a desire to 
 accomplish. 
 
 It it be true that our profession is sincere on both sides, if it be true that each 
 of us, without exception, favors the enactment of a law which shall require 
 publicity as to contributions for campaign funds, why is it that we cannot 
 make good that profession by an act which it is easy for us to accomplish by 
 simply saying that we will pass a bill which shall relate to that and to nothing 
 else? 
 
 Mr. CULBERSON. Mr. President, I am obliged to the Senator from Georgia 
 for the suggestion which he has made and to which no reply so far has been 
 made by the Senator from Rhode Island, to whom I yield if he desires to make 
 a reply now. If he does not see proper to reply further, I assume and if my 
 assumption is not well founded, I hope that I may be corrected that there 
 is no possibility of passing an anti-injunction bill at this session of Congress, 
 nor is there any probability or any possibility of passing a bill providing for the 
 publication of campaign contributions, pure and simple. 
 
 WOOD PULP AND PRINT PAPER 
 
 No attempt was made to pass this legislation so universally demanded 
 by the newspapers of the country. A committee was appointed to investi- 
 gate the matter. The method usually adopted for the postponing of legis- 
 lation is by the appointment of committees. The committee met and 
 heard the complaints of the publishers. They are still meeting. The 
 investigation is not over. 
 
 THE ANTI-INJUNCTION BILL 
 
 No attempt was made to pass this legislation. The majority leader 
 [Mr. Payne], however, introduced the following bill: 
 
 A bill (H. R. 21359) relating to injunctions. 
 
 Be it enacted, etc., That hereafter no preliminary injunction or restraining 
 order shall be granted by any judge or court without notice to the party sought 
 to be enjoined or restrained, unless it shall appear to the satisfaction of the 
 court or judge to whom application for such injunction or restraining order 
 is made that the immediate issue of such injunction or restraining order is 
 necessary to prevent irreparable damage. 
 
 SEC. 2. That any such injunction or restraining order granted shall con- 
 tain a rule on the opposite party to show cause within five days whv such in- 
 junction or restraining order shall not be continued. 
 
 The above bill may therefore be considered to be the Republican 
 measure relating to injunctions. I submit that if enacted into law it 
 would not afford the slightest relief. 
 
ORGANIZATION AND RULES OF THE HOUSE 271 
 
 The Democratic minority in the House has done all it could to compel 
 the enactment of the legislation so universally demanded on these ques- 
 tions. We are willing to go to the country on the record we have made. 
 The charge that the Democratic party as represented in Congress will 
 not follow a leader has been answered on all of the above questions. The 
 party was united always and presented a solid front to the enemy. 
 
 The only measure passed by the Republicans in response to the uni- 
 versal demands of the people was an employers' liability bill of 
 doubtful constitutionality. If its constitutionality had been clear it prob- 
 ably would not have been by the majority permitted to pass. 
 
 REPRESENTATIVE J. S. WILLIAMS ANNOUNCES 
 HIS POLICY 1 
 
 [The following extracts embody illustrations of the progress of the attempt 
 of Mr. Williams to force certain action by the House. On March 24, he an- 
 nounced his policy. Thereafter there was much debating combined with the 
 dilatory tactics. Special rules were brought in on April 4, April 20, and other 
 days for the purpose of shackling the opposition ; and on May 13, Mr. Williams 
 compared his methods with those of earlier filibusters. The incidental illus- 
 tration which this action affords in the matter of rules and practice in the 
 House is very important.] 
 
 MR. WILLIAMS. Now, Mr. Chairman, I believe that the country, and 
 I believe that the Members of the House upon the Republican side of the 
 aisle will agree with me that, acting as minority leader, thus far this ses- 
 sion I have given the majority perfectly " smooth sailing." I have not 
 wanted to be regarded as factious; I have not wanted the country to 
 think that the minority on this side was trying to assume responsibility 
 for legislation. I knew that responsibility rested with the majority, and I 
 did not want to appear to coerce the majority and very little coercing 
 can the minority do until that majority had made absolute demonstra- 
 tion before the country of the fact that it does not intend to do anything 
 at this session of Congress. [Applause on the Democratic side.] And 
 that, too, notwithstanding the fact that your President has issued a pro- 
 gramme that he calls upon you to execute, and notwithstanding the fact 
 that the distinguished gentleman from Iowa [Mr. Hepburn] announced 
 early in the session that unless you did execute that programme some- 
 body was going to "get run over" and "get hurt." 
 
 I have waited like a Democratic lamb ready for the slaughter, waiting 
 for the Republican party to do something. I have finally come to the 
 conclusion that the Republican party in this House has forgotten how to 
 do anything; it has become the party of negation, of passivity, and, as 
 
 1 Congr. Record, Mch. 24, 1908. 
 
272 AMERICAN FEDERAL GOVERNMENT 
 
 far as I can see, has no idea of doing anything. [Applause on Democratic 
 side.] It is plain now that without some method of parliamentary coercion 
 you are going to be deaf to every demand of the country. The minority 
 can not exercise much power, but it has some power, and I want to make 
 the announcement now, that from this moment on to the balance of this 
 session this is not going to be a lie-easy, wait-on-the-enemy campaign 
 [applause on the Democratic side], and that the little parliamentary 
 power the minority has under the rules is going to be exercised. The 
 minority has a right to refuse unanimous consent to legislation. It has 
 the right to call for the yeas and nays upon every affirmative matter of 
 legislation. I now make the announcement that no requests for unani- 
 mous consent from that side of the aisle, unless it be to adjourn or to take 
 a recess in which two cases I believe it is not from a parliamentary 
 standpoint necessary to have unanimous consent will not be granted 
 during the balance of this session until the majority shows that it is alive 
 to the demands of the country sufficiently to report for consideration in 
 this House, or to give me satisfactory assurance that they will report for 
 consideration, the following bills: 
 
 First, an employers' liability bill. [Applause on the Democratic side.] 
 You have been wasting too much time over it. You have been permit- 
 ting your Judiciary Committee to have hearing upon hearing, 'and you 
 have been using that bill merely as a buffer in order to prevent hearing 
 upon other essential legislation before that committee, which legislation 
 you hope to evade. 
 
 Second, I shall refuse unanimous consent until you report to this House 
 for its consideration some publicity of campaign contributions bill [ap- 
 plause on the Democratic side], whether it be the bill offered by the gen- 
 tleman from Missouri [Mr. Rucker] or some other bill. I care not whose 
 name is attached to it, Republican or Democrat. 
 
 Third, I shall refuse unanimous consent for any request upon that side 
 of the Chamber until the Ways and Means Committee of this House, 
 in response to the overwhelming demand of the entire newspaper and 
 magazine fraternity of this country, Republican as well as Democrat, 
 shall bring to the consideration of this House a bill for free wood pulp 
 and free print paper. [Applause on the Democratic side.] 
 
 Fourth, I shall make the same declination until the Clayton bill, now 
 pending before the Judiciary Committee, or some other bill embodying 
 like provisions, shall have been reported out of that committee for the 
 consideration of this House. What the Clayton bill does is this : It pre- 
 vents mere ex parte and temporary injunctions, where only one side has 
 been heard from, acting as a supersedeas of a law passed by a sovereign 
 State. 
 
 I do not deny the right, upon final hearing of the injunction when it is 
 made permanent, to set aside a State law, if in the opinion of a Federal 
 court it violates the Constitution of the United States, but I do deny the 
 
ORGANIZATION AND RULES OF THE HOUSE 273 
 
 right, upon a mere ex parte hearing by means of a temporary injunction 
 without hearing the State's side at all, of a subordinate court of the United 
 States to sit in judgment on the constitutionality of the legislation of a 
 sovereign State. [Applause on the Democratic side.] I am reinforced in 
 that opinion by the fact that under the original judicial act the courts 
 had no such power, and for years and years afterwards had no such 
 power, and could not issue an injunction until they had heard both sides, 
 with reasonable notice to both sides. Mr. Chairman, in order that there 
 may be no misunderstanding about that, and how far I am going, I desire 
 to read this Clayton bill, though I do not insist upon this particular bill. 
 Bring in a bill in the name of the chairman of the committee; bring in a 
 bill in the name of a Republican, claim the credit for it, go before the 
 country and get the credit for it you have a right to do it ; that I ad- 
 mit, and I would be glad to see you do it, for I am never better satisfied 
 than at the unusual spectacle of the Republican party serving the country. 
 [Laughter and applause on the Democratic side.] 
 
 Thomas Jefferson said we ought to preserve the rights of the States 
 as the best security for individual liberty and local self-government. He 
 also stated that we ought to guard with equal care the delegated powers 
 of the Federal Government as our only safeguard for national independ- 
 ence and national peace and progress. I would not take from the Federal 
 Government one of the powers that have been delegated to it. I would 
 not for a moment join in an attack upon the courts of the United States 
 for declaring a State law or a Federal law unconstitutional when in their 
 honest opinion they deem it to be so, but I do say that it is as little as any 
 man who loves his State and believes in local self-government can de- 
 mand to ask that no mere subordinate Federal court should exercise this 
 newly derived power to set aside an act of a State upon a mere ex parte 
 hearing from the attorney and the witnesses of a railroad corporation or 
 of anybody else, much less to forbid a State to be heard in its own defense. 
 [Applause on the Democratic side.] Now, Mr. Chairman, if after some 
 time I do not notice signs of amendment on that side of the Chamber and 
 a disposition to do something to quit this policy of passivity and mere 
 negation and " standpatism " if I do not note some disposition to 
 awake to the idea that you are representatives of the American people 
 and ought to be doing something in their interests, then I shall use about 
 the only other power that the minority has, and that is to call for a yea- 
 and-nay vote upon every affirmative proposition, however insignificant, 
 presented to this House for passage. [Applause on the Democratic side.] 
 
 REPORT OF A SPECIAL RULE, APRIL 4, 1908 
 
 MR. DALZELL. Mr. Speaker, I submit the following privileged report 
 from the Committee on Rules. 
 
 18 
 
274 AMERICAN FEDERAL GOVERNMENT 
 
 The SPEAKER. The gentleman from Pennsylvania submits a report 
 from the Committee on Rules, which the Clerk will report. 
 The Clerk read as follows : 
 
 Resolved, That immediately upon the adoption of this rule, and at any time 
 thereafter during the remainder of this session, it shall be in order to take from 
 the Speaker's table any general appropriation bill returned with Senate amend- 
 ments, and such amendments having been read, the question shall be at once 
 taken without debate or intervening motion of the following question: "Will 
 the House disagree to said amendments en bloc and ask a conference with the 
 Senate?" And if this motion shall be decided in the affirmative, the Speaker 
 shall at once appoint the conferees, without the intervention of any motion. If 
 the House shall decide said motion in the negative, the effect of said vote shall 
 be to agree to the said amendments. 
 
 And further, for the remainder of this session the motion to take a recess 
 shall be a privileged motion, taking precedence of the motion to adjourn, and 
 shall be decided without debate or amendment. 
 
 And further, during the remainder of this session, it shall be in order to close 
 debate by motion in the House before going into Committee of the Whole, 
 which motion shall not be subject to either amendment or debate. 
 
 [Applause on the Republican side.] 
 
 Mr. SULZER. Mr. Speaker, would it not be well to add to that, "That 
 hereafter the Democrats shall have nothing more to say?" [Laughter.] 
 
 Mr. DALZELL. Mr. Speaker, the purpose of this rule, like the purpose 
 of the rule that was introduced yesterday, is to expedite the public 
 business. 
 
 Mr. WILLIAMS. Mr. Speaker 
 
 The SPEAKER. Does the gentleman from Pennsylvania yield to the 
 gentleman from Mississippi? 
 
 Mr. DALZELL. Yes. 
 
 Mr. WILLIAMS. I wish to ask the gentleman a question. I wish to 
 ask, before we proceed, whether the minority members of the Committee 
 on Rules will be accorded the usual twenty minutes ? 
 
 Mr. DALZELL. They will not. 
 
 Mr. WILLIAMS. They will not! I just wanted the House and the 
 country to know that fact before we start this debate. 
 
 Mr. DALZELL. As I say, the purpose of the rule is to expedite the pub- 
 lic business and release the House from the grasp of this idiotic filibuster 
 inaugurated by the gentleman from Mississippi [applause on the Repub- 
 lican side]; to prevent the waste of public time at the public expense 
 [laughter on the Democratic side and applause on the Republican side] ; 
 to enable the majority to consider and enact into law the great supply 
 bills upon which the existence of the Government depends. [Laughter 
 on the Democratic side and applause on the Republican side.] 
 
 Mr. Speaker, let me explain at some length, perhaps, this rule. 
 
 Mr. SULZER. It needs explanation. 
 
ORGANIZATION AND RULES OF THE HOUSE 275 
 
 Mr. DALZELL. I do not think I could make an explanation that would 
 reach the gentleman from New York. [Laughter on the Republican 
 side.] 
 
 Mr. SULZER. Not on anything like this. 
 
 Mr/ DALZELL. When the House is acting in the usual orderly and 
 decent way in the conduct of its business, when a general appropriation 
 bill with Senate amendments comes over to the House it is taken from 
 the Speaker's table by unanimous consent, and the Senate amendments 
 are concurred in or disagreed to. This is the ordinary courteous way of 
 doing business between the two Houses. That is the orderly method 
 whereby the minds of the two Houses are brought together and law is 
 enacted. But if unanimous consent be not granted, if the minority of 
 the House be indulging in useless obstruction of public business in a dis- 
 graceful filibuster, then the bill must in the natural course go to the Com- 
 mittee on Appropriations. When it comes back from the Committee on 
 Appropriations a motion to go into Committee of the Whole for the con- 
 sideration of its report is subject to the statesmanlike demand of the yeas 
 and nays on the motion. Nay, more. There may be possibly three de- 
 mands for the yeas and nays on the motion to go into Committee of the 
 Whole, on the previous question, and possibly on another motion. After 
 the bill has been treated in the Committee of the Whole and the usual 
 statesmanlike call for tellers and other dilatory proceedings have been 
 indulged in, it comes back into the House and it may be subject to hun- 
 dreds of calls of the roll if there be so many Senate amendments, and the 
 call of the roll on the adoption of the previous question, a call of the roll 
 on the adoption of the report of the Committee of the Whole, and so it 
 will be observed that it is in the power of the minority in the exercise of 
 an abused constitutional right to obstruct the business of the House, 
 waste the people's time and the people's money, and all for no purpose 
 save delay. [Applause on the Republican side.] 
 
 Another provision of this rule is that from this time forward a motion 
 to take a recess shall be a privileged motion and take precedence of the 
 motion to adjourn, and not be subject either to amendment or debate. 
 In this way it will be in the power of the majority to cut off many of these 
 useless roll calls. A further provision is that it shall be in order to close 
 debate by motion in the House before going into Committee of the Whole, 
 which, I think, outside of this rule, would be a sensible rule at all times. 
 
 Now, Mr. Speaker, the gentleman from Mississippi [Mr. Williams] 
 says that he is not indulging in any filibuster. Does he believe that he 
 can fool the people of this country by any such statement as that ? 
 
 Does he believe that the people in this country can be persuaded that 
 any principle is involved in a demand for the yeas and nays on the ap- 
 proval of the Journal and then voting for the approval of the Journal? 
 Can any man conceive of a more asinine performance than that? [Ap- 
 plause on the Republican side.] Does he believe that he can fool the 
 
276 AMERICAN FEDERAL GOVERNMENT 
 
 people of this country ; that there is any principle involved in a demand 
 for the yeas and nays on a motion to go into Committee of the Whole to 
 consider the passing of the great'supply bills on which the existence of the 
 Government depends ? Does he believe that he can persuade the people 
 of this country that there is any principle involved in a call for the 
 yeas and nays on a motion to adjourn at half past nine in the evening ? 
 
 The gentleman from New York is complained of because he spoke of 
 this performance as puerile. Nay, it is childish and a disgrace to grown 
 men of full stature. [Applause on the Republican side.] What a sweet 
 little story we heard yesterday about old black Lucy and little Johnny at 
 Grand Junction running away from a Chinese gong ! I could not help 
 thinking of what a wave of pride would have passed over that old black 
 Lucy's face could she have foreseen little Johnny rising to the heights of 
 a sublime statesmanship in demanding the yeas and nays on a motion to 
 adjourn in the House of Representatives. [Laughter on the Republican 
 side.] 
 
 After playing all day, little Johnny is unwilling to take his dolls and 
 dishes and go home without the exhibition of this last piece of statesman- 
 ship in calling for the yeas and nays on a motion to adjourn. 
 
 Mr. Speaker, I now move the previous question. 
 
 Mr. SULZER. Mr. Speaker, will the gentleman yield to me for two 
 minutes ? 
 
 Mr. DALZELL. No ; I will not yield to the gentleman for two seconds. 
 [Prolonged laughter and applause on the Republican side.] 
 
 Mr. SULZER. That is because the gentleman does not dare to do it. 
 
 The SPEAKER. The question is on ordering the previous question. 
 
 DISCUSSION ON THE BRIDGE BILL, MAY 13, 1908 
 
 MR. TOWNSEND. Mr. Speaker, this is what is known as the " omnibus 
 bridge bill." It is a bill which contains all of the bridge bills which have 
 been sent to the Committee on Interstate and Foreign Commerce and 
 which have received a favorable report from that committee and have 
 been indorsed by the Secretary of War. All are to be constructed under 
 the provisions of the law known as the "general bridge law of 1906." 
 I do not understand that there is any objection to the bill, and therefore, 
 believing as I do that everybody understands it, I will reserve the balance 
 of my time. 
 
 Mr. ADAMSON. Mr. Speaker, the bill was put in this shape in order 
 to insure consideration of all projects for bridges which were pending be- 
 fore the Committee on Interstate and Foreign Commerce. Exigencies 
 in the House are such, at this time, that it was necessary to resort to this 
 device in order that Members might secure all their projects. Therefore 
 we took a bridge bill which came from the Senate and attached to it by 
 
ORGANIZATION AND RULES OF THE HOUSE 277 
 
 amendment every single meritorious bridge proposition that was pending 
 before the committee, thus forming this omnibus bill. It is a good bill in 
 its present shape, and it is a necessary to pass it in this way in order to 
 secure all these bridges. I request gentlemen on this side not to regard 
 its origin on the other side as a badge of suspicion, but to accept it as 
 being all right, and, notwithstanding the circumstances, to vote for the 
 bill. [Applause.] I have no request, Mr. Speaker, for further time 
 
 Mr. WILLIAMS. I will take a minute or two. 
 
 Mr. ADAMSON. Mr. Speaker, I yield to the gentleman from Mississippi 
 such time as he wishes to use. 
 
 Mr. WILLIAMS. Mr. Speaker, if I had been wanting a mathematical 
 demonstration of the fact that I had been engaged in saving the public 
 time and expediting the public business, this bill would have furnished 
 me with it. It contains twenty-three bridges. Ordinarily these twenty- 
 three bridges would have come up each as a separate bill ; something like 
 ten minutes would have transpired in asking unanimous consent and in 
 inquiries as to whether the bill conformed with the provisions of the 
 general law, as to whether it was unanimously reported by the committee, 
 and in the gentleman offering it explaining why that particular bridge 
 was requisite. If ten minutes had not been required, five would have 
 been required on each. Twenty-three times ten is two hundred and 
 thirty minutes. Twenty-three times five is a hundred and fifteen 
 minutes. 
 
 Now, we are going to get twenty-three bridge bills through in forty 
 minutes of debate, if all the time upon that side is consumed and I 
 take it for granted that it will not be and if all the time on this side be 
 consumed and I take it for granted that it will not be plus thirty- 
 five minutes of time necessary to call the roll, making a total of seventy- 
 five minutes, a saving, Mr. Speaker, of forty minutes of the people's time 
 on one calculation and a hundred and fifty minutes of the people's time 
 on another calculation. [Laughter.] Now, Mr. Speaker, I hope I will 
 hear no more from the leader of the majority about our wasting the pub- 
 lic time when we are expediting it in this remarkably expeditious man- 
 ner. Not only that, but we have accomplished the same purpose in 
 connection with pensions. We used to stand here and pass one little pen- 
 sion bill at a time, and now under this new regime you put them all in 
 one, and we pass them after forty minutes' debate and thirty-five min- 
 utes of roll call. There never has been anything that hurried up public 
 business equal to the mustard-plaster policy that has been applied to 
 the Republican body politic by the Democratic party during this 
 Congress. 
 
 Mr. GILLETT. Will the gentleman from Mississippi permit a question ? 
 
 Mr. WILLIAMS. If the gentleman wants to ask a question germane to 
 the bill which I am discussing, I will be glad to answer. 
 
 Mr. GILLETT. It is germane to your argument. 
 
278 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. WILLIAMS. Of course the argument is germane to the bill. 
 
 Mr. GILLETT. I want to ask the gentleman if he thinks this is a good 
 way to legislate, to combine a great number of bills, so that if one vicious 
 bill is there, you have got to vote down all the good bills in order to defeat 
 that? 
 
 Mr. WILLIAMS. Mr. Speaker, I have been admonished by the leader 
 of the Republican party on this floor and by the Speaker's rules deputy 
 from Pennsylvania that the Democratic Representatives are not Mem- 
 bers of the House except nominally, and that the Republican party is 
 " responsible for all omissions and commissions." If this be a bad method 
 of legislation, as the gentleman from Massachusetts would infer, then by 
 the confession of the majority leader this is a Republican bad way of 
 doing business. I am not at all responsible for it. The galled jade can 
 wince, my withers are unwrung. Now, this morning, Mr. Speaker, the 
 gentleman from New York [Mr. Payne] referred to my calling the roll 
 upon motions to take a recess and upon motions to adjourn, and said the 
 framers of the Constitution never had an idea that a man like that would 
 be here ! 
 
 When I first came to Washington as a Representative it was as a Mem- 
 ber of the Fifty- third Congress, and the great Thomas B. Reed was minor- 
 ity leader at that time. He organized a real filibuster, not a movement 
 like this. This movement is for the purpose of coercing the majority into 
 legislating. But he organized a real filibuster that is, to prevent the 
 majority from doing anything, even routine business. And what do you 
 reckon was the reason that he gave to the country for his filibuster ? It 
 was that he was going to force the Democratic majority to manacle the 
 Republican minority, in order that he might be justified in history for 
 having manacled the Democratic minority when he was Speaker ! And 
 day after day the roll was called upon the adoption of the Journal, upon 
 every motion that was or could be made; unanimous consent was re- 
 fused upon everything ; the point of no quorum was made on every occa- 
 sion. I just happened this morning to be reminiscing a bit, and, with the 
 help of the gentleman from New York [Mr. Fitzgerald], I came on the 
 proceedings of July 8, 1892, in the Congressional Record, page 5920, a 
 yet earlier period than I have just referred to, and at that time the distin- 
 guished gentleman from New York [Mr. Payne] was not the Republican 
 leader, but he was a distinguished man in the councils of the party and 
 was doing their agreed work. 
 
 Upon that occasion a bill for the government of Utah was brought up, 
 providing for the manner of electing delegates, and all that. When the 
 bill was finally passed it was passed with only one vote in opposition. 
 There sprang to his feet upon that occasion, when the motion was made 
 by the gentleman from Tennessee [Mr. Washington] to suspend the rules 
 and pass the bill, the gentleman from New York [Mr. Payne], and I find 
 recorded : 
 
ORGANIZATION AND RULES OF THE HOUSE 279 
 
 Mr. PAYNE. I move that the House do now adjourn. 
 
 The SPEAKER. The gentleman from Tennessee had been recognized to 
 make a motion to suspend the rules and pass the bill that he has indicated. 
 
 Mr. PAYNE. I supposed that the gentleman had made the motion and it 
 was pending. 
 
 Showing that he was not only frequent, but premature. Then the bill 
 was read. Then the gentleman from New York [Mr. Payne] said: 
 
 Mr. Speaker, I make the motion that the House do now adjourn. 
 
 Who has heard me move "that the House do now adjourn?" Who 
 has heard me make the point of no quorum? At that time Mr. Payne 
 and other Republicans made it all the time, and the Republican leader 
 announced that the "Democrats must keep a quorum here" themselves, 
 as the Republicans were not going to help them do so. 
 
 We go down in this pleasant history and find after the gentleman had 
 made his motion to adjourn, and that motion had been defeated, the gen- 
 tleman from New York [Mr. Payne] said: 
 
 I ask for a division. 
 
 The House divided, and there were ayes 31, noes 134. 
 
 Mark the paucity of ayes ! The gentleman said that he did not under- 
 stand that the forefathers had "anticipated" me or anybody that would 
 come to the House and call for the yeas and nays, and move divisions and 
 tellers, except when they really did want them and had a large crowd of 
 people behind them ready to enforce legislation or negation of legislation. 
 But revenons a nos moutons. After that announcement was made, of 31 
 to 134, the gentleman from New York [Mr. Payne], in his desire to accel- 
 erate the public business, arose and said : 
 
 I ask for tellers. 
 
 Tellers were refused, only 31 voting in favor thereof. 
 
 Mark once more the noble thirty-one only ! But the gentleman from 
 New York, who apparently also was not "anticipated by the forefathers," 
 upon a proposition where he could not even get tellers, much less the yeas 
 and nays (and who has heard of my failing to get the yeas and nays when 
 I asked for them this year?), the gentleman from New York, in those his- 
 toric days, rose and said : 
 
 I ask for tellers. 
 
 They were refused not a sufficient number. 
 Then he said: 
 
 I demand the yeas and nays. 
 
2 8o AMERICAN FEDERAL GOVERNMENT 
 
 Great Hercules ! Think of it ! The yeas and nays ! The question was 
 ordered on the yeas and nays and they were refused not a sufficient 
 number. 
 
 Then the gentleman from New York [Mr. Payne] arose a much 
 more replete and complete parliamentarian than I and I find recorded : 
 
 Mr. PAYNE. I demand tellers on ordering the yeas and nays. 
 
 Who has heard me demand tellers on ordering the yeas and nays? 
 and tellers were ordered on the question of ordering the yeas and nays, 
 because there was a fair Speaker in the chair. And then : 
 
 The House divided, and the tellers reported ayes 34, noes 158. 
 
 Then the gentleman from New York, in his great desire to accelerate 
 and expedite public business and to prove that the forefathers had fore- 
 seen him as an expediter and accelerator, said: 
 
 I demand a second on the motion to suspend the rules. 
 
 Mr. Washington said: 
 
 I ask unanimous consent that a second may be considered as ordered. 
 
 And then objection was made. 
 
 Then the Speaker appointed tellers, the gentleman from New York 
 being one of the tellers. Then the gentleman from New York said : 
 
 I ask that the gentleman from Iowa [Mr. Perkins] be substituted. 
 
 [Laughter.] 
 
 Why, he was so tired "expediting public business" that he had to get 
 somebody else substituted for him to count as a teller. Who ever heard 
 of my being tired of expediting public business to the point of physical 
 exhaustion ? 
 
 Mr. ADAMSON. I would like to know if that interesting record dis- 
 closes anything that was ever said about dilatory? 
 
 Mr. WILLIAMS. It does not disclose that anything was said about 
 " dilatory." But, Mr. Speaker, it is an old maxim that actions speak 
 louder than words. Then I found that when matter was finally voted 
 upon 
 
 Mr. AMES. Will the gentleman allow me? 
 
 Mr. WILLIAMS. I want to finish this branch of this very interesting 
 story. I find there was one vote cast in the negative, and I presume, out 
 of charity, it was the vote of the gentleman from New York. [Laughter 
 and applause.] Now, I yield to the gentleman from Massachusetts. 
 
 Mr. AMES. Is there not a material difference between the position of 
 
ORGANIZATION AND RULES OF THE HOUSE 281 
 
 the gentleman from New York at that time and the position of the gentle- 
 man from Mississippi at this time? 
 
 Mr. WILLIAMS. There was; thank God for the difference ! I will tell 
 you what the difference was. 
 
 Mr. AMES. Will you let me finish my question ? Is there anything in 
 the Record you allude to there which indicates that the gentleman from 
 New York claimed that he was expediting public business ? 
 
 Mr. WILLIAMS. Oh, now, Mr. Speaker, why it was not necessary for 
 him to claim it then ; he has claimed it, as his constant and chronic habit, 
 only this morning ; and it is the modern instance and not the ancient saw 
 that has aroused my discursiveness. All this contention now is to show 
 that nobody should ever do these things except when he wants to defeat 
 a particular bill. 
 
 The gentleman says there is a difference. Yes ; there is a difference. 
 I am endeavoring and trying to rivet the attention of the country on the 
 fact that I want to make the Republican majority pass legislation that not 
 only we, but the majority of the American people and their own Presi- 
 dent accidentally right wants. [Laughter and loud applause on 
 the Democratic side.] What was he engaged in? What was the great 
 Thomas B. Reed engaged in during the Fifty-second and Fifty-third 
 Congresses, followed by his lieutenants, the gentleman from New York 
 [Mr. Payne] and the gentleman from Pennsylvania [Mr. Dalzell] ? Oh, 
 a puny effort, a spiteful effort, with a senseless purpose to make the 
 majority manacle the minority, when he himself was in the minority. 
 [Applause on the Democratic side.] And he succeeded to a very large 
 extent. 
 
 He had, as Speaker, applied the so-called "Reed rules," throttling de- 
 bate, and since that moment this House has never been a deliberative 
 assembly. He announced to the Democrats, when they came into power, 
 substantially this : " In order to prove to you that much of your criticism 
 of me for throttling debate and preventing deliberation and manacling 
 a minority are unjust, I am going to prove to the country that you can 
 not do business without manacling us, and I am going to refuse all unani- 
 mous consents ; I am going to call the roll whenever I can find occasion ; 
 I am going to make the point of no quorum every time I can ; I am going 
 to move to adjourn whenever the rules will allow it ; I am going to move 
 to take a recess whenever the rules will allow," and so forth, ad infini- 
 tum, on the adoption of the Journal, and so forth, and he did it all, until 
 they were forced in a Democratic House to adopt in part, in part only the 
 gag rule for the origination of which [laughter and loud applause on the 
 Republican side] the Republican party still applauds itself, strange to 
 say. [Laughter and applause on the Democratic side.] 
 
 Why, Mr. Speaker, into what contempt has the American House of 
 Representatives sunk ! The Constitution speaks of three independent, 
 coordinate, separate branches, and then refers to the executive, the judi- 
 
282 AMERICAN FEDERAL GOVERNMENT 
 
 ciary, and the legislative. Do you know what the three separate, inde- 
 pendent, and coordinate branches are now ? The executive, the judiciary, 
 and the Senate of the United States. [Applause on the Democratic side.] 
 What do you amount to over there, either one of you Republicans, indi- 
 vidually ? , [Laughter.] 
 
 Mr. GREENE. What do you amount to? 
 
 Mr. WILLIAMS. What do I amount to? I confess I amount to noth- 
 ing, politically and personally, but then, I am a member of the minority 
 party ; but what do you individually amount to, any one of you, in the 
 matter of legislation? [Applause on the Democratic side.] 
 
 Why, you have got to the point of actually being afraid to sign a re- 
 spectful request to your own Speaker to recognize somebody to ask con- 
 sideration of legislation that you yourselves are in favor of. Deny it if 
 you dare, and I will prove it on you. You dare not indite a note to him of 
 the most respectful and polite character without having previously ob- 
 tained his consent. [Applause on the Democratic side.] You have got to 
 the point where you introduce bills to do things ; you make speeches in 
 favor of doing them, and you dare not address a billet doux to the Speaker 
 asking him for a chance to vote on them. You dare not lovingly write : 
 
 DEAR MR. SPEAKER: I most respectfully and humbly and considerately 
 request that you will permit consideration by the House of H. R. , intro- 
 duced by me. 
 
 You are going to the country that way, too, are you not? Why, Mr. 
 Speaker, somebody stepped across the aisle this morning and said I had 
 made a humorous speech. I have not made any humorous speech. My 
 speeches have all had a serious purpose. The only humorous thing about 
 these little lectures that I have been delivering is the perplexed gravity 
 with which they are received by the gentleman from New York [Mr. 
 Payne]. [Laughter.] The only man who has been physician enough to 
 successfully diagnose your case is the gentleman from Washington [Mr. 
 Cushman], when he said that we were giving you " mustard-seed poli- 
 tics." We are putting a blister upon you every day that brings a boil 
 unless you assert your individual independence as Representatives suffi- 
 ciently at least to have the courage to make a request of your own Speaker 
 without previously getting his consent .to make the request ; then have 
 the modesty and sense of eternal fitness to resign as Members of the 
 House. [Applause on the Democratic side.] 
 
 The gentleman from Washington has diagnosed it right. It is mustard- 
 plaster politics, and it is not bringing any blisters over here. The blisters 
 are over there. You say it is puerile; you say it is silly; you say that 
 there is no sense in it ; you say it is childish ; you say it is vaudeville. 
 Well, then, why do you not laugh. What makes you so infernally serious 
 about it? [Laughter on the Democratic side.] And why do you not do 
 
ORGANIZATION AND RULES OF THE HOUSE 283 
 
 something ? You are going to the country after a while and tell them that 
 I "would not let you pass important and popular measures," when I am 
 standing here every day pleading and praying with you that you will legis- 
 late. Why, I would pray literally to the Higher Power, that you might do 
 something, except for my recollection of the fact that the Bible says that 
 "the prayer of the righteous man availeth much," and I am afraid that 
 my prayer would not, because I can not class myself that way. But just 
 a few of you that introduced free wood-pulp bills just a few of you that 
 introduced campaign contribution publicity bills, get up a few little notes 
 and send them in to the Speaker; our petition he already has. Dare you 
 add yours? [Applause on the Democratic side.] 
 
 The SPEAKER pro tempore. The time for the gentleman from Missis- 
 sippi has expired. 
 
 Mr. TOWNSEND. Mr. Speaker, I have been entertained on various 
 occasions by the endeavors of the gentleman from Mississippi to apolo- 
 gize for the filibustering course that he has pursued up to date. He never 
 neglects any opportunity of trying to explain himself, and I do not blame 
 him, because I understand some of the trials that he has been undergoing, 
 brought about by the dissatisfaction on his own side, at the senseless 
 policy which he has pursued in this filibuster. [Applause on the Repub- 
 lican side.] 
 
 He ought to have gone further in his mathematics to-day, when he was 
 demonstrating how much time he had saved to the House by bringing 
 about a condition which he himself has condemned so many times on the 
 floor, viz., the passage of legislation without giving anyone an oppor- 
 tunity to express himself on the measure. He ought to have gone further 
 and shown that he has saved this House from the Democratic party, as 
 led by the gentleman from Mississippi, from twenty-three roll calls on 
 this bill, which would have aggregated something like eight hundred and 
 five minutes, or eleven hours and a half. He would have imposed upon 
 the House for eleven and one-half hours on such calls could he have had 
 his way and the Republican Rules Committee had not presented the rule 
 for the purpose of allowing us to do business. 
 
 Mr. WILLIAMS. Do you not think that before they got through with 
 those roll calls they would have brought in some of this legislation that 
 you and I want, and then I should have stopped ? 
 
 Mr. TOWNSEND. It is also amusing to me, Mr. Speaker, to notice the 
 audacity (I think perhaps that is the proper word) which the gentleman 
 displays on every occasion when he states what he and his party are pro- 
 posing to bring to the attention of the majority, certain measures of legis- 
 lation, nearly all of which, all the sane parts of which, had been presented 
 here from Republican sources, and that part of it which has been reached 
 would have been reached in the orderly procedure of the business of the 
 House. 
 
 Now, Mr. Speaker, there have been times when I have become im- 
 
284 AMERICAN FEDERAL GOVERNMENT 
 
 patient at the action of the House in not doing things which to me seemed 
 necessary. 
 
 Yet I have learned since I have been a member of this House that all 
 legislation should be given careful and most considerate attention. I 
 now would like to have certain measures brought up. I am not charging 
 anyone with bad faith because I can not have my way about everything. 
 But I submit, Mr. Speaker, that when the record of this session of the 
 Sixtieth Congress shall have been completed, the 'Republican party can 
 go before the country with the statement of things done which will re- 
 dound to the credit of the majority party that has had control of this 
 Sixtieth Congress. [Applause on the Republican side.] 
 
 I wish to say further, Mr. Speaker, that this House and the country 
 is not going to be deceived by the statements of gentlemen who are at 
 this time advocating legislation which, if they were in the majority, they 
 would not dare to present. [Applause on the Republican side.] The 
 country should be thankful sometimes for failure of Congress to pass 
 certain proposed bills. It is an easy thing for gentlemen to find fault; 
 it is an easy thing for gentlemen not charged with responsibility to criti- 
 cise ; it is quite a different thing to take charge of positive legislation and 
 carry it to completion. 
 
 Mr. SHERLEY. Will the gentleman yield? 
 
 Mr. TOWNSEND. I do not wish to yield, because I do not wish to 
 carry on this controversy any further. 
 
 Mr. SHERLEY. Will the gentleman enumerate the legislation urged 
 by us and which we would not stand for? 
 
 Mr. TOWNSEND. I will take this time to say that you will have an 
 opportunity, as I understand it, to-morrow afternoon to present certain 
 amendments to the currency bill, to present your notions of what you 
 want enacted into law, and I want to see you do it. Instead of advocating 
 your opposition and saying, "We oppose the Republican bill," present 
 a positive scheme that you are willing to stand for and go before the 
 country upon. 
 
 Mr. WILLIAMS. Will the gentleman permit an interruption ? 
 
 Mr. TOWNSEND. I do not want to be interrupted, for I do not want 
 to enter into a controversy that I did not introduce in the House. This 
 discussion was injected not by any desire of mine. 
 
 I had not expected to say a word, but I would suggest to the gentle- 
 man from Mississippi and to the House that there are certain methods 
 of reform, certain methods for expediting business which would expedite 
 and which could be adopted. One of them is the policy of discussing 
 the questions before the House, instead of giving gentlemen an opportun- 
 ity to exploit themselves before the country on every possible occasion. 
 [Applause on the Republican side.] 
 
 Mr. WILLIAMS. How are we going to discuss a question if you will 
 not let it come before the House? 
 
ORGANIZATION AND RULES OF THE HOUSE 285 
 
 Mr. TOWNSEND. This bill is before the House, and I apologize for 
 occupying any of the attention of the House in discussing any matter 
 not germane to it. This is a bill which, I take it, everybody is going to 
 vote for, and yet, under the filibuster inaugurated by the gentleman 
 from Mississippi and persisted in by him, we will have to take thirty-five 
 minutes to pass it, and I call for a vote. 
 
 REMARKS OF REPRESENTATIVE CLARK 1 
 
 [The power of the organization in the House in controlling legislative action 
 is illustrated in a humorous way in the following discussion, by Mr. Champ 
 Clark of Missouri. This extract will also serve as an example of Congres- 
 sional humor. It may be noted in passing that in the matter of wit the House 
 is not always very exacting, but is as ready to be amused as an audience at a 
 theatre.] 
 
 ******** 
 
 MR. CLARK of Missouri. Let me ask the gentleman a question now, 
 while he is on his feet. Turn about is fair play. 
 
 Mr. GROSVENOR. That is right. 
 
 Mr. CLARK of Missouri. Are we going to have any river and harbor 
 bill at this session? 
 
 Mr. GROSVENOR. If we need one. 
 
 Mr. CLARK of Missouri. The gentleman knows that we need it. 
 Don't try to get out of it in that way. [Laughter.] 
 
 Mr. GROSVENOR. My recollection is that under a Democratic Con- 
 gress, during which I had the honor to be on the Committee on Rivers 
 and Harbors, at the end of the second session we passed a moderate 
 river and harbor bill, and a Democratic President vetoed it. Now, last 
 year, at the end of the Fifty-eighth Congress, we passed a large river 
 and harbor bill. Under our new system of contracting we shall not need 
 a new river and harbor bill except for new or comparatively new pro- 
 jects, so that the sundry civil bill will carry the amount of appropriation 
 for the rivers and harbors far in advance of any that the Democrats have 
 ever passed. 
 
 Mr. CLARK of Missouri. Now, gentlemen, I want you to bear witness 
 to that testimony. That statement is made ex cathedra. The gentle- 
 man well speaks as "one having authority." 
 
 Mr. GROSVENOR. But not as a scribe. 
 
 Mr. CLARK of Missouri. He belongs to the great triumvirate in this 
 House that runs things, composed of the Speaker and the gentleman 
 from Pennsylvania [Mr. Dalzell] and the gentleman from Ohio. He is 
 one of the "Three Czars," and you men who want anything done for 
 the rivers and harbors in your districts hearken unto his voice, for ac- 
 
 1 Congr. Record, Jan. 8, 1906. 
 
286 AMERICAN FEDERAL GOVERNMENT 
 
 cording to his statement just made there is not going to be anything 
 done except on work that has already been started. 
 
 Mr. GROSVENOR. I hope the gentleman will not misrepresent the 
 organization of the House. The river and harbor bill is a privileged bill, 
 and does not require the action of the Committee on Rules. I hope the 
 gentleman will remember that in all the future of his life. 
 
 Mr. CLARK of Missouri. Yes. 
 
 Mr. GROSVENOR. I hope the gentleman will remember that all the 
 future of his life. 
 
 Mr. CLARK of Missouri. I will; and I will tell you what else I will 
 remember that whenever they get up a bill of any importance and get 
 it through the House without the consent of the Committee on Rules 
 I will be willing to exclaim with one of old: "Now, Lord, lettest now 
 Thy servant depart in peace." [Great laughter and applause.] I do 
 not want you kindergarten Congressmen here, especially, to labor under 
 any misapprehension as to what is going to happen to you, because the 
 gentleman from Ohio has told you. If there is any work going on in 
 your district that has to be continued to keep it from going to ruin you 
 will get a little money; but if there is any new work, no matter how 
 important or pressing, you are not going to get a cent for it, because 
 they have not got the money to give. This blessed Dingley bill, the 
 fount of every blessing, has produced a deficiency in the revenues to the 
 amount of sixty or seventy millions of dollars. Now, I will ask the gentle- 
 man from Ohio 
 
 Mr. PAYNE. Now, the gentleman wants to be fair. 
 
 Mr. CLARK of Missouri. Certainly. 
 
 Mr. PAYNE. Which bill do you refer to? 
 
 Mr. CLARK of Missouri. The Dingley bill. If you had a good tariff 
 bill you would have had enough money to carry on these improvements. 
 
 Mr. PAYNE. Such a one as the Wilson bill? 
 
 Mr. CLARK of Missouri. A revenue-producing bill, such as I would 
 draw if I had the power to do so. 
 
 Mr. PAYNE. The Wilson bill, under which we were running behind 
 every year. 
 
 Mr. CLARK of Missouri. If the Supreme Court had not held the 
 income-tax provision unconstitutional we would have got plenty of reve- 
 nue from the Wilson bill. 
 
 Mr. PAYNE. I want to say to the gentleman that the income-tax 
 provision would not have produced money enough to make a grease 
 spot under the Wilson bill. 
 
 Mr. CLARK of Missouri. The only reason why it would not was stated 
 by Mr. Cockran, of New York, who said that it would have made the 
 wealthy men of New York get into the habit of committing perjury to 
 keep the taxes from being collected on their incomes. 
 
 Mr. PAYNE. The gentleman is quoting from a distinguished Demo- 
 
ORGANIZATION AND RULES OF THE HOUSE 287 
 
 crat upon that. To return to what I was just saying, as to there not 
 being any deficit this year because there will be no river and harbor bill. 
 It would not make any difference whether there was a river and harbor 
 bill this year or not. All that money would not come out of the Treasury 
 until the end of the fiscal year. In the last session we provided liberally 
 for rivers and harbors, and that money is now being paid out of the money 
 in the Treasury. 
 
 Mr. CLARK of Missouri. Now, let me ask you whether there is going 
 to be any public-building bill reported this year ? Now, answer that 
 yes or no. 
 
 Mr. PAYNE. I am not a member of that committee. 
 
 Mr. CLARK of Missouri. But you are the floor leader in this House. 
 
 Mr. PAYNE. If any such bill was brought in here as was brought in 
 during the last Congress I should oppose it with the utmost vigor I 
 have. 
 
 Mr. CLARK of Missouri. Gentlemen, I am sorry to see the chairman 
 of the Committee on Ways and Means resort to dodging in this debate. 
 [Laughter.] 
 
 Mr. PAYNE. What does the gentleman mean? 
 
 Mr. CLARK of Missouri. What I mean is that you you do not tell us 
 frankly whether we are going to have a public-building bill or not. 
 
 Mr. PAYNE. I do not know. 
 
 Mr. CLARK of Missouri. Why don't you know? [Laughter.] 
 
 Mr. PAYNE. Because, like the gentleman from Missouri, I have not 
 been consulted on that subject. 
 
 Mr. CLARK of Missouri. Why do you not consult the Speaker and 
 those gentlemen on the Committee on Rules? 
 
 Mr. PAYNE. So far as I am concerned, I am not interested in public 
 buildings. 
 
 Mr. CLARK of Missouri. Oh, yes; that's it; you have got yours. 
 [Great laughter.] 
 
 Mr. PAYNE. The gentleman is right about that. I commenced in a 
 Democratic Congress many years ago. 
 
 Mr. CLARK of Missouri. You have been here a long time. When 
 these kindergarten statesmen have sat here as long as you have they will 
 get some too. 
 
 Mr. PAYNE. On that I had little experience, and if I were commenc- 
 ing with the " kindergarten class" I would not introduce a bill for a 
 public building in my district. 
 
 Mr. CLARK of Missouri. What does the gentleman from Ohio say 
 about a public-building bill ? I want to get at the facts. [Laughter.] 
 
 Mr. GROSVENOR. On that question I am a single Member of the 
 House of Representatives. 
 
 Mr. CLARK of Missouri. Yes, you are; and much more. You are 
 one of the governing trio one of the ruling elders. 
 
288 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. GROSVENOR. I shall pass upon a public-building bill exactly as 
 I pass upon other questions that come before this House. 
 
 Mr. CLARK of Missouri. I will ask you a leading question : Do you 
 know whether it is the intention of the managers of this Congress that 
 there shall not be any river and harbor bill, except as you have described, 
 and there shall be no public-building bill at this session, in order to make 
 buckle and tongue meet? 
 
 Mr. GROSVENOR. I do not understand either branch of that question 
 in the affirmative. 
 
 Mr. CLARK of Missouri. All right. 
 
 Mr. GROSVENOR. I have a suspicion on the river and harbor question, 
 because of an interview given out by the chairman of the committee. 
 As to the public-building question I have no knowledge, no information, 
 and no belief. 
 
 Mr. CLARK of Missouri. I want to state to you that unless you gentle- 
 men who want public buildings in your districts and improvements of 
 your rivers and harbors do not break away from and overthrow this 
 Republican machine in the House, which dominates in all things, you 
 are not going to get any at this session of Congress. You can write that 
 on the tablets of your memory now. This is an argumentum ad hominem. 
 I have seen that game played two or three times since I have been here. 
 
 CONGRESS. AGAIN DEBATING, 1902 
 
 [The following articles from the New York Evening Post bring out certain 
 important points with respect to the action of Congress, i. The character of 
 Congressional debate. 2. The importance of permanence of service in Con- 
 gress, and, 3. Illustrations of slipshod methods in legislation. There is added 
 to these a brief description of the practice obtaining in the House by which 
 members obtain leave to print speeches which have not actually been delivered.] 
 
 AN unusual interest has been manifest in the proceedings of either 
 house of Congress for the past few days. One sure sign of this is the 
 increased space which the newspapers have given to Washington dis- 
 patches. Congressmen sometimes complain that the press does not 
 report their debates as it formerly did. The fault is in themselves. Let 
 them make their debates interesting, and the newspapers, which always 
 search for interesting reading as they do for hidden treasure, will jump 
 at the chance of printing them. Consider the columns gladly given up 
 to the Cuban debate in the House, and to the arguments on the Chinese 
 Exclusion Bill in the Senate. They show how press reports increase 
 directly as the square of public interest in the doings of Congress. 
 
 What has been the secret of this revived attention to Congressional 
 oratory ? It is not far to seek. In the first place, these animated discus- 
 sions of public policy have been free from the deadening influence of a 
 
ORGANIZATION AND RULES OF THE HOUSE 289 
 
 foregone decision on strict party lines. There has been an open give- 
 and-take of argument, and votes have been changed by it. We have 
 not seen a party leader, beaten in his logical contentions, rise and taunt 
 the master of the better reasons with the fact that the heavier battalions 
 were against him, and say, "Well, talk as you will, you are bound to 
 lose when the roll call comes." Now it is the very breath of life for public 
 debate to have this possibility of persuasion in it. Merely to apply "a 
 fine brute majority" is the way not simply to crush your opponents, 
 but to destroy the interest and real significance of debating at all. When 
 men can feel compelled to say, as the honest English Squire did to the 
 able Parliamentary orator of the other party, "You have changed my 
 opinion by your speech, but no man can change my vote," then we need 
 no longer inquire why Congressional debates have decayed, or why 
 public interest in them has declined. 
 
 It is obvious that the discussion of the Chinese Exclusion Bill actually 
 brought about a vote in the Senate very different from what would have 
 been cast but for the searching analysis of the measure. Undebated, it 
 would have gone through triumphantly. But it could not stand exposure. 
 Its improprieties and indecencies, its illegalities and absurdities, its lack 
 of business sense and of humanity alike, were so driven in upon the 
 general conviction that it was beaten off the field. The New England 
 conscience rose in revolt, every Senator from that section voting against 
 it except Mr. Lodge. He preferred to side with Tillman and the other 
 advocates of barbarous methods in dealing with the Chinese; but the 
 reason and conscience of New England indeed, we may say of the 
 Republican party were against the bill as it passed the House. One 
 could wish for no more complete demonstration of the value of free 
 debate by legislators whose minds are open, and whose votes are at 
 liberty to follow their judgment. 
 
 In the House the case has been different, but there, too, we have been 
 given a vivid illustration of the cause of public interest in Congressional 
 proceedings. It is not simply that the subject under discussion is large 
 and important. So was the Philippine Tariff Bill, but it went through 
 amid universal indifference. The reason was that then we had the cer- 
 tainty of a party majority at the end, while debate was limited, and a 
 rigid rule shut out the possibility of so much as offering an amendment. 
 That is the sure way to kill a debate. Of course, men in the Opposition 
 will present their views for the sake of a "record," and in order to put 
 the party in power "in a hole"; but argument for such purposes only 
 is obviously a dead-and-alive affair, and can never have the directness, 
 the fire, the power and point of a speech which may change votes and 
 really affect the course of legislation. Note the great contrast offered by 
 the progress of the Cuban Bill through the House. It was attended by 
 the stir and interest of an uncertain result. Party lines were broken up. 
 Amendments could be and were offered. Tactical positions were eagerly 
 
 19 
 
2QQ AMERICAN FEDERAL GOVERNMENT 
 
 manoeuvred for. Far-reaching, indirect results might follow in national 
 politics. Hence the kindling and continuous interest with which the 
 debate was followed by press and public; hence the new appeal to the 
 debating power of the members themselves, with the discovery, in some 
 cases, of an unexpected talent ; and hence the restoration to the House 
 of a measure of that national attention which used to be fixed upon it 
 as the theatre of great debate. 
 
 The example ought not to be lost on those leaders of the House who 
 have the shaping of its methods in their hands. Let them abolish some 
 of their hard-and-fast rules for stifling debate, or else making it perfunc- 
 tory. Let them take the sense of the House freely on all great subjects, 
 instead of so hedging it about that the conquered cause is too often the 
 one really pleasing to the majority, if it could find free expression, as 
 well as to Cato. Let them open the true parliamentary career for talent 
 by showing the aspiring orator that it is within his power to produce con- 
 viction and lead to action. In a word, let them make Congressional 
 debate what debate ought to be everywhere a means of bringing out 
 the better reason and the wiser policy and we shall hear much less 
 of the decadence of Congress, or the growing indifference of the people 
 to what goes on in the Capitol at Washington. 
 
 INFLUENCE IN CONGRESS, 1906 
 
 WASHINGTON, June 5. New York's representation in Congress in 
 recent years is something that citizens of the State have not found much 
 pride in talking about. To all intents and purposes it is wholly unrep- 
 resented in the Senate. This is a matter of common notoriety, and re- 
 quires no comment. Its thirty-seven representatives in the House form 
 the largest delegation from any one of the States. Pennsylvania ranks 
 next with thirty-two ; Illinois has twenty-five, Texas sixteen, and Massa- 
 chusetts fourteen. Though first numerically, the New York delegation 
 is not first in importance. How many citizens of New York could name 
 the whole delegation, or even the representatives from New York city? 
 
 Representative Perkins of the Rochester district had something to say 
 the other day about the State's past representation in Congress, which 
 has attracted some attention. He spoke with special reference to the 
 tenure of office of members, and made the point that the men who were 
 sent here after civil service reform principles were established in the 
 Federal Government had retained their offices longer than the represen- 
 tatives of other days, who depended on the spoils system to keep them 
 here. Mr. Perkins found from an examination of the records that New 
 York State, from the time of its organization down to 1860, was repre- 
 sented by about 600 members of Congress. Of these, 400, or about 
 two-thirds of the entire number, served only one term in Congress. 
 
ORGANIZATION AND RULES OF THE HOUSE 291 
 
 One hundred and fifty were able to stay here for two terms. Of the 
 whole 600 that came during the period from 1789 to 1860, only 50 were 
 allowed to remain in Congress more than two terms, and there was only 
 one out of the 600 during the period of seventy years who was elected 
 by his constituents for ten terms in Congress. Mr. Perkins had to con- 
 fess that he had forgotten the name of that man whose career is so 
 unique in the early history of New York. 
 
 Those were the days when members of Congress controlled Federal 
 patronage and eked out their days of political life by the free disposal 
 of jobs to their followers. Mr. Perkins asked this pertinent question: 
 "What does it show when 400 members of Congress, although possessed 
 of this political patronage, were cut off at the end of their first term of 
 Congress? Does it show that political patronage is, as is supposed by 
 some, a means to lengthen political life, or does it show that it is a means 
 of hastening political death?" 
 
 From 1860 to 1880 the New York experience was almost precisely 
 similar, but since that time there has been a great change in the length 
 of service on the New York members, and of the members from other 
 States. At the present time only about one-sixth of our delegation are 
 first-term men, and nearly three-fourths have served more than two 
 terms, where formerly two-thirds of the delegation were first-term men. 
 Of the present membership of the whole House, more than one-half 
 have served more than two terms. Whether this change is entirely due 
 to the partial abolishment of the spoils system, or whether electors in 
 the various States have waked up to the fact that ordinarily the longer a 
 man stays here the more important he becomes, and the more power he 
 secures in the House, is not definitely established. Whatever the cause, 
 a distinct tendency on the part of the people to give their representatives 
 in Congress longer tenure of office is noticeable. Mr. Perkins offers 
 this explanation of the change: 
 
 " It seems to me that the reasons are perfectly apparent. Our predeces- 
 sors had unlimited patronage. Where they appointed one man they 
 necessarily disappointed ten men. These men at once formed a coherent 
 body, who said, ' If we can get out the man who is in, the man who is out 
 will get us in.' There was, when a new man came up for nomination to 
 defeat the sitting member, a coherent body of workers who were actuated 
 by the hope that, if they could get their man in, there was a $1,200 job 
 down in Washington waiting for them. Well, there is no use in prom- 
 ising those jobs now, because even the boys in the wards know there are 
 no such jobs to give, and it results that, instead of the constant presence 
 of this united group of men working to get out the sitting member in 
 hopes of furthering their personal interests, a member is left undisturbed 
 unless he has given dissatisfaction to the community as a whole. This 
 is the explanation, it seems to me. It must be the chief and almost the 
 only explanation of the notable fact of the gradually increasing tenure 
 
292 AMERICAN FEDERAL GOVERNMENT 
 
 of office in the House of Representatives during the last twenty 
 years." 
 
 Of the present thirty-seven New York members these arc chairmen 
 of committees: Payne, Ways and Means; \\adsworth, Agriculture; 
 Southwick, Education; Driscoll, Elections No. 3; Ketrham, Kxpemli 
 tures in the State Department; Sherman, Indian Affairs. Or course, 
 these chairmen are necessarily limited to the twenty-six Republican 
 members of the delegation. Three of these are important committees 
 Agriculture, Indian Affairs, and Ways and Means. 
 
 Mr. Perkins himself is the third man on the Committee on Foreign 
 Affairs, and the ranking member next to the chairman of the Committee 
 on Printing. Mr. Vreeland is the sixth in rank in the Naval Affairs 
 Committee, and is also a member of the Committee on Labor. He is a 
 "big-navy" man and may be chairman of that committee some clay. 
 Littauer, of "gloves and gaunts" fame, is a member of the important 
 Appropriations Committee, and has charge on the floor of the House 
 of the legislative, executive, and judicial appropriation measures. None 
 of the New York city men is strongly placed on committees. The city 
 representatives are new men, and, of course, had to give way to men of 
 longer service, and Democratic members of committees are not doing 
 much business under the present organization of the House. 
 
 It would be difficult to imagine a person of less consequence than a 
 new member of the House of Representatives in his first term. They 
 are practically negligible quantities, and must do as they are told, or 
 be of little service to their constituents. Mr. Lamar of Florida and Mr. 
 Murphy of Missouri are two shining examples of the fate that befalls 
 the disobedient. Early in the session Mr. Lamar had a row with John 
 Sharp Williams, the minority leader, because he was not placed on the 
 Committee on Interstate Commerce. He kicked over the traces and 
 publicly denounced Mr. Williams on the floor of the House. Since that 
 time, despite his efforts, he has been only a figurehead. Murphy of Mis- 
 souri is one of the new representatives who came in on the Roosevelt 
 landslide. He beat his Democratic opponent by only thirty-six votes. 
 That narrow squeak, it would seem, should have made him cautious, 
 but he has bucked against the speaker several times at this session. 
 Whether the Republican Congress campaign committee will find it 
 advisable and wise to pay much attention to his very close district in the 
 autumn, falls under the head of debatable questions. 
 
 Iowa and Maine are two States that long ago discovered that they 
 would get more than their share of what good things were coming by 
 electing good men and keeping them here. These two States in recent 
 years have exercised a great influence on legislation merely through the 
 length of tenure of their representatives. There are no two more impor- 
 tant men in the Senate than Hale of Maine and Allison of {owa. Rep- 
 resentative Hull of Iowa is chairman of the great Committee on Military 
 
ORGANI/.VI 'ION AMJ KILFS OF THF IIOI'SK 293 
 
 Affairs in the House. Hepburn is ( hairman of tin- Committee on Inter- 
 state and Foreign Commerce, which this session, at least, has been the 
 most important committee of the House. Lacey of the same State is 
 ( liairman of the Committee on Public Lands. 
 
 Mr. Ketcham of New York has had seventeen terms in the House, 
 not continuous. Speaker Cannon has had sixteen terms, skipping only 
 the Fifty-second Congress. Representative Hingham of Pennsylvania 
 has served fourteen continuous terms, and Mr. Hilt of Illinois has had 
 thirteen continuous terms. Mr. Payne is the next oldest man in point 
 vice. He has had eleven terms, not continuous, however, but 
 skipping the Fiftieth Congress. 
 
 SLIPSHOD LEGISLATION, 1903 
 
 WASHINGTON, April 5. "The decadence of the art of legislation" 
 is the term which is applied to the tendency in the last few decades of 
 Congressional history by a public officer who has recently had occasion 
 to make an exhaustive and critical examination of the Federal statutes. 
 The earlier laws, in his opinion, such as those regulating navigation, the 
 internal revenue laws, and the administrative features of the customs 
 laws, are, for the most part, models of construction. They are precise in 
 their wording, comprehensive and exact in providing for all possible 
 contingencies, and so clear and perspicuous as to leave little difficulty in 
 their construction and application. 
 
 These were passed, it is cynically suggested, at a time when the sur- 
 prising notion obtained that the business of the legislative department of 
 the Government was to legislate. The last thirty years have shown a 
 great change in the quality of legislation, not in its purport, but in its 
 workmanship. The statute books have been disfigured by slovenly, 
 ambiguous, and nugatory provisions to an extent that surprises every 
 one who comes to study the matter. 
 
 A year or two ago a publishing house issued a compilation of the 
 United States statutes, and in the prospectus summed up the difficulties 
 of the undertaking in these words: "In preparing this compilation the 
 editors have found a number of amusing proofs that the complexity of 
 bills passed was too much even for members of Congress itself to unravel. 
 They have come upon amendments to laws that have been repealed, 
 amendments that overlook previous amendments, new laws that re- 
 enacted existing and forgotten laws, etc." 
 
 But even this falls short of an adequate statement of the conditions 
 that exist. For example a law found in 32 Statutes at Large, 786, begins 
 as follows : 
 
 An act to amend an act approved March 2, 1895, relating to public printing. 
 Be it enacted, etc. That the first and tenth paragraphs of the Printing 
 
294 AMERICAN FEDERAL GOVERNMENT 
 
 of January 12, 1895, following the paragraph which reads: "The public 
 printer shall furnish the Congressional Record as follows, and shall furnish no 
 others gratuitously in addition thereto," be amended, etc. 
 
 It will be noted that the act mentioned in the title is not the one 
 amended by the text, and reference to the statute book shows that these 
 two have no relation whatever to each other. Moreover, the act of 
 January 12, 1895, was not divided into numbered paragraphs at all, so 
 that part of the description furnishes no guide as to where the amend- 
 ment is intended to be inserted, and is simply misleading. By reading 
 through the twenty-four pages of the law the weary seeker finds in sec- 
 tion 73 the language quoted, and thus is able to locate the passage to 
 which the amendment refers. 
 
 Another instance might be cited where Congress solemnly repealed 
 certain words in an act designated when no such words, or any of like 
 purport, could be found anywhere in the act. 
 
 But the most prolific source of confusion is the mischievous and grow- 
 ing practice, so often attempted during the past weeks, of inserting 
 general legislation in appropriation bills. Some curious results have 
 been brought about by the inhibition in House rule 21 : "Nor shall any 
 provision changing existing law be in order in any general appropriation 
 bill or in any amendment thereto." While this is on its face an absolute 
 prohibition, yet in practice it means that any provision can be inserted 
 in an appropriation bill, as long as no member objects. Thus new legis- 
 lation can be put in by unanimous consent. Since each member's pet 
 measure, if offered in the form of a rider, must run the gantlet of his 386 
 colleagues, any one of whom could give it a death stroke by rising in his 
 seat and uttering eleven words, he makes it as inconspicuous as possible 
 in phraseology. The House is very frequently willing to let a bit of legis- 
 lation go through without objection when it does not show on its face 
 that it is a change in the existing law, but a clause would not stand a 
 moment's chance if it said in so many words, "Section 41,144 of the 
 Revised Statutes is hereby amended to read as follows." 
 
 Thus comes about an evasion. The provision desired is drawn as if 
 it had no relation to any previous act, and so passed. There are then 
 two provisions, more or less conflicting, on the same subject-matter, and 
 the officers charged with their execution are left to guess how far the later 
 supersedes the earlier. The confusion is carried into almost every de- 
 partment of the Government. 
 
 As to a remedy for the evil, the critic already quoted is of the opinion 
 that Congress, in order to consider adequately all measures of needed 
 legislation and mature them with respect to their phraseology, should 
 remain in session for at least nine months in every year. He further be- 
 lieves that the state of affairs which his researches disclose furnishes one 
 of the best possible arguments against Congressional interference in 
 
ORGANIZATION AND RULES OF THE HOUSE 295 
 
 executive matters. Without pointing such a moral as might be drawn 
 from the postal scandal, it is safe to say that if legislators confined their 
 duties to legislating their work would be better done. 
 
 While the number of slovenly enactments actually in the statutes is 
 startling enough, those which are headed off in the House and Senate 
 committees are almost past counting. The individual members, who 
 introduce the greater part of their bills at some one's request, and with 
 little scrutiny, do not feel the responsibility of looking up the antece- 
 dents of each such piece of legislation. Any one who has examined the 
 mass of reported bills at a session must have noticed the great number 
 of instances in which a committee has recast a bill entirely without 
 changing in any way its purport. For instance, a member is asked by 
 some body of his constituents to put through a bill authorizing the erec- 
 tion of a bridge across a stream in his district. They suppose, and he 
 supposes, that no one ever planned such a bridge before. The bill, there- 
 fore, is introduced on the supposition that the project is new, and con- 
 tains the usual clause authorizing the secretary of war to determine 
 whether the bridge will interfere with navigation. The committee, 
 however, looks up the law, and discovers what the bill's sponsor 
 should have ascertained before introducing that a bridge at the same 
 point on the same river was provided for years ago, and all that is 
 necessary is some slight amendment of the former law, or an extension 
 of time. The committee reports the bill with the comprehensive 
 amendment, "strike out all after the enacting clause, and insert the 
 following." 
 
 Often enough, the committee or its clerk, has to perform the functions 
 of a teacher of rhetoric, cutting out slipshod English and ambiguities. 
 
 The clerks of important committees in the House and Senate are 
 veterans, some of them having served under a half-dozen different 
 chairmen of both political parties, and these men are experts in the 
 technique of legislation. But the clerk of a less important commit- 
 tee comes to that position merely as the private secretary of the chair- 
 man, has divided duties, is less experienced, and takes less pride in his 
 work. 
 
 The real fundamental difficulty, perhaps, is that a congressman may 
 have the most sound and statesmanlike views as to what he wants 
 to accomplish, and still be careless and neglectful on such points as 
 those described. Some good and wise laws have been tacked to ap- 
 propriation bills, or have been enacted in apparent ignorance of 
 the existing laws on the same subject. This very fact furnishes an 
 added argument for care for the form as well as the subject-matter 
 of legislation. 
 
296 AMERICAN FEDERAL GOVERNMENT 
 
 GENERAL LEAVE TO PRINT 1 
 
 MR. PAYNE. Mr. Speaker, I move to suspend the rules and agree 
 to the following order, which I send to the desk and ask to have read. 
 The Clerk read as follows: 
 
 Ordered, That general leave to print be granted Members from the adoption 
 of this order until five days after the adjournment of the present session of 
 Congress. 
 
 The SPEAKER. Is a second demanded? 
 
 Mr. WILLIAMS. I demand a second. 
 
 The SPEAKER. Under the rule, a second is ordered. The gentleman 
 from New York is entitled to twenty minutes and the gentleman from 
 Mississippi to twenty minutes. 
 
 Mr. PAYNE. Mr. Speaker, I reserve my time. 
 
 Mr. WILLIAMS. Mr. Speaker, in my opinion, at all times it is a bad 
 policy to encumber the Record with speeches undelivered upon the floor, 
 especially when the speeches do not go out with any notice to the people 
 that they were not delivered here. They are, without that notice, a sort 
 of deception of the people of the United States. If there had been no 
 sharp partisan clash between the two parties this year I would still have 
 objected, as I did successively in the Fifty-eighth Congress, to a resolu- 
 tion of this description. I believe that what purports to have been said 
 upon this floor ought to be said upon this floor, in the presence of one's 
 colleagues, with an opportunity for reply. I believe that especially the 
 habit of printing after Congress has adjourned and printing whatsoever 
 one may evolve out of one's inner consciousness, without any oppor- 
 tunity of reply at all, especially upon the eve of an election, printing 
 anything or everything, is peculiarly an advantage for an unscrupulous 
 man as it is peculiarly unfair to the honest man, because the letter will 
 publish only what he knows or believes to be exactly true. This is a 
 reward, therefore, to men who are unscrupulous, who are dishonest of 
 statement, who are careless and reckless of what they are willing to say. 
 Mr. Speaker, I understand, of course, why this is offered by the leader of 
 the majority at this particular time. 
 
 The majority party has pretty nearly gone into commission. It has 
 organized commissions to consider nearly everything. It has abdicated 
 its legislative functions. It has delegated to commissions of one sort or 
 another many, and it is going to delegate to more commissions a great 
 many more, public questions of every description. It has spent unpar- 
 alleled sums of money belonging to the people, a great deal of it waste- 
 fully. It requires very much explanation. It would be cheaper and 
 
 1 Congr. Record^ May 26, 1908. 
 
ORGANIZATION AND RULES OF THE HOUSE 297 
 
 better for it to be made by a few selected men to whom there would be 
 no opportunity of reply, whose remarks in the Record will not be seen 
 by any Democrat, will be printed after adjournment, so that a reply 
 can not be made in such a way as that the reply could be, like the ob- 
 servations themselves, franked to the country. The Republican party, 
 as I said a moment ago, has appointed so many commissions that it had 
 better appoint just one more. In Great Britain when a king goes crazy 
 and I am not saying that the Republican party is a king, only that it 
 is here in Congress crazy the great seal is put into commission for 
 some time. After you get through with the currency commission and 
 all the other commissions you have appointed, too numerous for me to 
 remember at this moment, it would be very well for you to appoint one 
 more commission and call it a commission upon Republican defense, 
 and Republican defense through the Record after the House has ad- 
 journed, with no opportunity to reply to it. [Applause on the Demo- 
 cratic side.] 
 
 You have had your day in court just as much as we have had. There 
 have been more of you than there have been of us. You are at least of 
 equal ability with us or you claim to be, and we will discourteously 
 deny it. The only disadvantage that you have had is that you have had 
 a bad, weak cause, or many bad, weak causes. You have been doing 
 nothing, and you are going now to try to defend the policy of doing 
 nothing. You have proudly, even vauntingly, asserted that you were 
 ''responsible for commissions and omissions of legislation." You will 
 have some degree of explanation to make concerning your "commis- 
 sions," and you will have a great deal of explanation to make concerning 
 your "omissions." Of course you will undertake to say that one reason 
 why you have not done a great many things the country demands and 
 things which your President has demanded and things which Democracy 
 has joined in demanding, was because the Democracy by demanding 
 them, so far as it had the parliamentary power to demand and cry out 
 aloud for them, had "prevented you" from doing them. 
 
 Mr. Speaker, it seems to me that in ordinary fairness, in ordinary 
 honesty, if there were no sharp party clash, this sort of resolution ought 
 not to pass this House. I say that one reason why the House of Repre- 
 sentatives has sunk so low is this: "Its Congressional Record has be- 
 come so bulky that nobody reads it. The people of the United States 
 get their information of what occurs from the press, and the press tries 
 to be accurate, but it necessarily can not do it. The press, of course, 
 can not be full in its reports. 
 
 The reason why the Congressional Record is so bulky that nobody can 
 keep up with it is because what goes into it is not what is said upon this 
 floor. In an ordinary Congress 50 per cent of what goes into the Con- 
 gressional Record are things never said upon the floor put in there 
 under leave to print upon particular bills, under general leave to print, 
 
298 AMERICAN FEDERAL GOVERNMENT 
 
 and under orders such as this. I say that this resolution, if carried, is 
 especially unfair and deceitful, not to one another as Representatives 
 alone, but to the American people. To introduce a resolution to allow 
 men to shove into the Congressional Record what they please for five 
 days after Congress has adjourned, without any opportunity for any- 
 body to read it and reply to it with equal frankable privilege is disin- 
 genuous, if not worse, and I hope that this resolution will not pass. 
 [Applause on Democratic side.] 
 
 Mr. Speaker, I reserve the balance of my time. 
 
 Mr. PAYNE. Mr. Speaker, I have but a few words to say. It has been 
 the custom of the House always toward the close of the session to grant 
 by unanimous consent general leave to print for a period of from five 
 to ten days. That has been almost a universal custom, and the gentle- 
 man while he has been here has assented to it by not making objection. 
 It is more imperative that this resolution pass at this session of Congress 
 because of the three or four weeks of time wasted it is not necessary 
 to say any longer how or by whom in the House during the past two 
 months. If that time could have been utilized in general intelligent 
 debate, perhaps there would have been no necessity for this resolution 
 at this time, but it was used otherwise. 
 
VIII 
 FINANCIAL LEGISLATION 
 
 JAMES A. GARFIELD ON REVENUE BILLS 1 
 
 [Under the constitution, the House of Representatives has the exclusive 
 power of introducing bills to raise revenue. Controversies have arisen with the 
 Senate concerning the power of the latter body to propose amendments which 
 would materially alter the character of the original measure. This matter 
 has already been taken up in Mr. McCall's article, on page 135. The following 
 extract from a speech by James A. Garfield, in April, 1872, is important in this 
 connection.] 
 
 AT the second session of the Forty-second Congress the question of 
 originating revenue bills came up in a new form. This is shown by the 
 following resolution, adopted by the House, April 2, 1872, on the motion 
 of Mr. Dawes, of Massachusetts: 
 
 Resolved, That the substitution by the Senate, under the form of an amend- 
 ment, for the bill of the House, entitled "An Act to repeal existing Duties on 
 Tea and Coffee," of a bill entitled "An Act to decrease existing Taxes," con- 
 taining a general revision, reduction, and repeal of laws of imposing impost 
 duties and internal taxes, is in conflict with the true intent and purpose of that 
 clause of the Constitution which requires that "all bills for raising revenue 
 shall originate in the House of Representatives"; and that therefore said 
 substitute for the House bill do lie upon the table. 
 
 Mr. Garfield made a brief speech on the respective rights of the two houses, 
 but only his remarks on the new question are given. 
 
 Mr. Speaker, The case now before us is new and difficult. I think 
 the same point has never before come into controversy. It raises the 
 question how far the Senate may go in asserting their right to "propose 
 or concur with amendments, as on other bills." 
 
 We must not construe our rights so as to destroy theirs, and we must 
 take care they do not so construe their rights as to destroy ours. If their 
 right to amendment is unlimited, then our right amounts to nothing 
 whatever. It is the merest mockery to assert any right. What, then, is 
 
 1 See Works of James A. Garfield, I, 698. 
 299 
 
300 AMERICAN FEDERAL GOVERNMENT 
 
 the reasonable limit to this right of amendment ? It is clear to my mind 
 that the Senate's power to amend is limited to the subject-matter of the 
 bill. That limit is natural, is definite, and can be clearly shown. If there 
 had been no precedent in the case, I should say that a House bill relating 
 solely to revenue on salt could not be amended by adding to it clauses 
 raising revenue on textile fabrics, but that all the amendments of the 
 Senate should relate to the duty on salt. To admit that the Senate can 
 take a House bill consisting of two lines, relating specifically and solely 
 to a single article, and can graft upon that bill in the name of an amend- 
 ment a whole system of tariff and internal taxation, is to say that they 
 may exploit all the meaning out of the clause of the Constitution which 
 we are considering, and may rob the House of the last vestige of its 
 rights under that clause. I am sure that this House, remembering the 
 precedents which have been set from the First Congress until now will 
 not permit this right to be invaded on such a technicality. 
 
 Now I will not say, for I believe it cannot be held, that the mere length 
 of an amendment shall be any proof of invasion of the privileges of the 
 House. True, we sent to the Senate a bill of three or four lines, and they 
 have sent back a bill of twenty printed pages. I do not deny their right 
 to send back a bill of a thousand pages as an amendment to our two 
 lines; but I do insist that their thousand pages must be on the subject- 
 matter of our bill. It is not the number of lines, nor is it I now re- 
 spond to my friend from Maine, 1 who asked me a question nor is it 
 the amount of revenue raised or reduced, of which we have a right to 
 complain. We may pass a bill to raise $1,000,000 from tea or coffee; 
 the Senate may move so to amend it as to raise $100,000,000 from tea 
 and coffee, if such a thing was possible ; or they may so amend it as to 
 make it but one dollar from tea and coffee ; or they may reject the bill 
 altogether. 
 
 Mr. PETERS. May not the Senate add other articles? 
 
 If we refer to the practice of the two houses, doubtless the Senate has 
 usually, without any question having been raised by the House, added 
 other articles. And I do not say that this would be trenching on our 
 privileges on a general revenue bill. But the bill on which these amend- 
 ments were made was in no sense a general revenue bill. It was an act 
 relating exclusively to a single article. There was nothing, either on 
 the title or in the bill itself to indicate that it was intended as a general 
 revenue bill. Furthermore, it was well known that the proper committee 
 of the House were preparing a general bill, in which the whole subject 
 was to be opened for consideration. Considering all the circumstances 
 of the case, and particularly the fact that on the single clause of our bill 
 relating to but one article of taxation, the Senate has ingrafted a general 
 
 1 Mr. Peters. 
 
FINANCIAL LEGISLATION 301 
 
 bill, embracing not only the tariff generally, but our whole system of in- 
 ternal taxation, it is clear that the ground we now take is not question- 
 able ground, and it becomes the undoubted duty of the House to stand 
 on its rights, and refuse to consider this bill. 
 
 Mr. PETERS. Then allow me to ask the gentleman if the rule is a 
 fixed one, or one in the discretion of the House. 
 
 I will say this: it is a fixed rule. If the House has ever slept on its 
 rights it ought not to be now concluded from asserting them because of 
 its past neglect ; and if there ever was a time in the history of the govern- 
 ment when this House should reclaim and assert its rights, it is now and 
 here, when on the naked lay figure of a two-line bill, the Senate proposes 
 to impose the entire revenue system of the government. If the bill from 
 the Senate now on your table, Mr. Speaker, be recognized by us, we shall 
 have surrendered absolutely, not only the letter, but the spirit of the 
 rule hitherto adopted, and with it our exclusive privilege under the 
 Constitution. 
 
 If it be said that this resolution, which the House is asked to adopt, 
 is an unusual one, I answer that the circumstances under which it is pro- 
 posed are equally unusual. It is well known that the Senate, even in the 
 recess, have been deliberately at work preparing the tariff bill ; and they 
 have only been waiting the slight opportunity afforded by the two lines 
 which the House sent them, to initiate and take control of our tariff 
 legislation. It is this course of procedure which the House is called upon 
 to resist. 
 
 ANNUAL STATEMENT OF APPROPRIATIONS 1 
 
 [The general character of fiscal legislation, the difficulties confronting the 
 Committee on Appropriations, and the size of the annual appropriations, will 
 be apparent from the annual review of appropriations and expenditures 
 given by Mr. J. A. Tawney, the chairman of the Committee on Appropriations. 
 The reader will note that the Committee on Appropriations has jurisdic- 
 tion over none of the special appropriation bills, such as that for agriculture, 
 the army, the navy, the post office, etc. The control of these appropriations 
 was distributed among the committees dealing with the subject-matter of 
 these interests in the eighties. This step has greatly complicated fiscal legis- 
 lation and has made it impossible to have a unified budget. 1 
 
 MR. TAWNEY said: 
 
 Mr. Speaker: The annual expenditures of our Government exceed 
 those of any other government in the world. The work of analyzing the 
 estimates for them, of inquiring into their necessity, together with the 
 
 1 Congr. Record, May 30, 1908. 
 
302 AMERICAN FEDERAL GOVERNMENT 
 
 needful inquiry into the methods of the Departments in administering 
 and in expending previous appropriations, is rapidly becoming the most 
 important duty and the most prodigious task to be performed in connec- 
 tion with the legislative department of the Government, a task whose 
 magnitude is not appreciated, nor is the labor necessary in its perform- 
 ance understood. It requires constant application from the beginning 
 until the close of the session and the most careful discrimination to prevent 
 needless appropriations for the Federal Government or unauthorized 
 appropriations for the exercise of governmental functions belonging to 
 the States or for the doing of that which belongs exclusively to private 
 interests. 
 
 So far as this work has devolved at this session upon the committees of 
 this House having appropriating jurisdiction, I know it has been per- 
 formed conscientiously and faithfully. Speaking for the Committee on 
 Appropriations, I can say that it has been performed with no other 
 thought or purpose than to supply the actual needs of the public service 
 within the prescribed functions of the Federal Government, without 
 reference to the personal desires of those from whom the increased esti- 
 mated expenditures or the recommendations for increased appropria- 
 tions emanated. I would not be worthy of the position I occupy on the 
 Committee on Appropriations -if I did not acknowledge the gratitude 
 I owe to its members for their loyal support and the efficient and 
 intelligent service they have rendered in the committee's endeavor to 
 prevent needless or extravagant appropriations or the authorization 
 of new services outside of the legitimate functions of the Federal 
 Government. 
 
 Mr. Speaker, with the passage of this bill all the great supply bills of 
 the Government for the fiscal year 1909 will have been passed, and the 
 session will practically end. It is a custom as well as a duty we owe to 
 the people to state, at the close of each session, the amounts appropriated 
 and the estimated revenues for the fiscal year for which the appropria- 
 tions have been made. In doing so the people are afforded an oppor- 
 tunity to know and compare our appropriations with those of previous 
 sessions, and to determine whether or not they have been wisely or un- 
 wisely made; whether or not they are extravagant in amount, or are 
 no larger than are necessary to meet the needs of the public service. 
 
 The responsibility of the House of Representatives in respect to the 
 appropriation of money from the Federal Treasury is a direct respon- 
 sibility we owe to the people. It is a non-partisan responsibility. No 
 political party, when in control of the Government, can have any other 
 policy in respect to appropriations than that of appropriating no more 
 and no less than is necessary for the exercise of the constitutional func- 
 tions of the Government. To us, as the direct representatives of the 
 people, the Constitution intrusts the power and the duty of originating 
 the bills that authorize the distribution of the public revenue. 
 
FINANCIAL LEGISLATION 303 
 
 THE DEMOCRATIC FILIBUSTER 
 
 It is a matter of sincere regret that, to accomplish a political purpose 
 or to gain some partisan advantage in the coming Presidential campaign, 
 the minority in this House deemed itself justified in disregarding its 
 responsibility in this respect by pursuing the policy it has followed for 
 almost two months, under the leadership of the distinguished gentle- 
 man from Mississippi [Mr. Williams], a policy which made it necessary 
 for the majority, in order to transact any public business, to adopt rules 
 of procedure under which nonpartisan questions in relation to the ap- 
 propriation of public moneys could not be considered with that freedom 
 of discussion and action that otherwise would have enabled this House 
 to have prevented many of the increases that were finally agreed to. As 
 the result of these increases, the aggregate of the appropriations made 
 at this session is larger by many millions than it otherwise would be. 
 
 The constitutional right of one-fifth of the membership of the House 
 to have a yea-and-nay vote on any measure, invoked by the minority 
 and applied to every important and unimportant step in legislation in 
 order to make effective their prolonged and unprecedented filibuster, 
 instituted two months ago and persisted in until these very last hours 
 of the session, compelled us of the majority to resort to the drastic rule 
 under which we have operated in order to enact before the close of the 
 fiscal year the requisite supply bills to maintain the life of the Govern- 
 ment. Without the rule and policy thus forced upon us the appropriation 
 bills, containing enormous increases by Senate amendments, partic- 
 ularly for the Army and Navy, would have received from the member- 
 ship of this body deliberate and, I believe, different and more effective 
 consideration. We could devise a rule that would compel the minority 
 to permit a vote and conclusion on these absolutely necessary measures 
 for support of the Government, but we could not deprive them of their 
 power, in the exercise of a constitutional prerogative, to so consume the 
 time of the House as to effectually preclude discussion and deliberate 
 consideration of many of the appropriation bills. 
 
 UNUSUAL DEMANDS FOR APPROPRIATIONS 
 
 While the action of the minority in this House is not responsible for 
 the increased estimates and the demands for increased appropriations, 
 the policy which the minority has pursued is responsible to a greater 
 extent than any other cause for the lack of complete success which has 
 attended the efforts of those who resisted these demands for increased 
 appropriations. 
 
 The extent of these demands and the sources from which they came 
 
304 AMERICAN FEDERAL GOVERNMENT 
 
 should also be stated, in justice to this House. A review of these demands 
 as they appear in official documents presented to Congress will show that 
 the estimates for the established public service and for previously au- 
 thorized public works for the next fiscal year were more than $156,000,000 
 in excess of appropriations made for the same purposes during the last 
 session of the Fifty-ninth Congress. These demands or increased esti- 
 mated expenditures, many of us believe, did not rest in fact upon the 
 necessities of the public service. They were supported mainly by official 
 recommendations to Congress backed by the approval of the press of 
 the country, and they consisted largely of increased compensation to 
 those in the civil and military branches of the public service. 
 
 In addition to the demands for increased appropriations for the es- 
 tablished public service came the demand for the authorization and 
 establishment of many new services and new activities upon the part 
 of the Federal Government. Many of these were wholly without the 
 constitutional functions of the Federal Government. Demands of this 
 character are rapidly increasing. They are the result of, and are sup- 
 ported by, a general tendency throughout the country to increase the 
 power of the Federal Government where the exercise of that increased 
 power would relieve the States and private interests of the expense in- 
 cident thereto. These demands come from all of the States, but more 
 particularly from the States south of Mason and Dixon's line. The 
 many bureaus and offices of the Executive Departments here at the seat 
 of Government are always eager to take on new services and the exer- 
 cise of new powers whenever there arises among the States or the people 
 of any section of the country a demand that they should do so. Demands 
 of this character were greater at this session of Congress than ever be- 
 fore, and they may be expected to increase in the future unless the exec- 
 utive and legislative branches of the Government unite in resisting prop- 
 ositions for the exercise of these extra constitutional powers and the 
 consequent encroachment upon the revenues of the Federal Government. 
 
 EFFORTS FOR ECONOMY RECEIVED SCANT SUPPORT 
 
 Because of the nature of the demands and the sources from which 
 these demands emanated, prominent Members of both Houses of Con- 
 gress, and especially on both sides of this Chamber, whose voice and 
 influence otherwise would have been most potential in checking these 
 increased appropriations, sat here silent or aided those who sought their 
 fulfillment. I am not criticising anyone. I am only stating for the record 
 an indisputable fact. I do not deny that some of the increases made 
 were just, but I do say that, in view of the present and prospective con- 
 dition of our revenues, these increases in pay and increased expenditures 
 
FINANCIAL LEGISLATION 305 
 
 on account of newly authorized Federal services could well have been 
 postponed, and that, too, without detriment to the public service. 
 
 In our endeavor to check and keep down these increased expenditures 
 and increased appropriations, we were throughout this session without 
 support either from the public, from the press, from the minority, or 
 from the Executive Departments of the Government. The increased 
 appropriations of more than $43,000,000 on account of the Army and 
 Navy, or for preparation for war to the end that we may have peace, 
 were not, in the judgment of many, necessary, and yet this increase was 
 not as great as the amount demanded. The demand for these enormous 
 increases in war expenditures did not originate with the representatives 
 of the people. It originated elsewhere, and was supported largely by 
 a misdirected public sentiment, to such an extent that a majority of this 
 House and a majority in the other branch of Congress, including Rep- 
 resentatives of both political parties, supported them because they did 
 not dare oppose them, while those who did oppose them were restricted 
 in their efforts by the meaningless filibuster by the minority. 
 
 ANALYSIS OF APPROPRIATIONS 
 
 The history of the appropriation bills for the session, which I will 
 print, shows in detail and in aggregates the estimates of appropriations 
 submitted to the Congress; the bills, as reported by the House com- 
 mittees, as passed by the House, as reported by the Senate committees, 
 as passed by the Senate, and, finally, as they became laws after the differ- 
 ences between the two Houses were reconciled in conferences ; and also 
 for purposes of comparison the appropriations made for 1908 are shown. 
 
 The estimates submitted to Congress by the executive as a basis for 
 the appropriations made, including regular annual expenses, deficiencies, 
 miscellaneous, and permanent charges, amounted to $1,079,449,288.96, 
 or an excess over the total of all appropriations as finally approved by 
 Congress during this session of $70,644,394.39, and $158,651,145.16 
 excess over all appropriations made at the last session of Congress. 
 
 The twelve regular annual appropriation bills for 1909, as passed by 
 the House, appropriated only $743,907,820.97. The last sum is a reduc- 
 tion under the regular estimates submitted to Congress at the beginning 
 of the session of $98,847,172.87. 
 
 Adding to the latter sum the additional estimates submitted to Con- 
 gress since the session began, and carried in the table under estimates 
 as miscellaneous at $25,500,000, a total reduction by the House is shown 
 in estimates for the ordinary operating expenses of the Government of 
 $124,347,172.87. 
 
 The Senate passed the twelve regular annual appropriation bills by 
 
 20 
 
306 
 
 AMERICAN FEDERAL GOVERNMENT 
 
 increasing them over what they carried as passed by the House to the 
 amount of $73>453>553-7 6 - 
 
 The twelve regular annual appropriation bills as finally enacted 
 appropriate 
 
 Less than the estimates, including additional or miscellaneous esti- 
 mates, $73,640,368.04; 
 
 More than as passed by the House, $50,706,804.83 ; 
 
 Less than as passed by the Senate, $22,746,748.93 ; and 
 
 More than the regular appropriation acts for the current fiscal year 
 
 $3 6 > 8 5,7 OI -53- 
 
 The grand total of all appropriations made at this session, including 
 the regular annual bills, deficiencies, miscellaneous, and permanents, 
 exceed those of last session by $88,006,750.77. 
 
 A comparison of each of the general appropriation bills and other 
 general titles of appropriations with those of the last session of Congress 
 is shown in the following table: 
 
 DIFFERENCES IN THE APPROPRIATION MEASURES OF THIS SESSION, COM- 
 PARED WITH THOSE OF THE LAST SESSION OF CONGRESS 
 
 Title of Bill 
 
 Increase 
 
 Reduction 
 
 Agriculture 
 
 $2,224,816.00 
 
 
 Army 
 
 16,747,664.86 
 
 
 Diplomatic and consular 
 
 485,130.19 
 
 
 District of Columbia 
 
 
 $322,020.78 
 
 Fortifications 
 
 2 4IQ I 34 OO 
 
 
 Indian 
 
 
 871,728.28 
 
 Legislative 
 
 7O7 487.20 
 
 
 Military Academy 
 
 
 1,084,068.55 
 
 Navy 
 
 23 703, 077-07 
 
 
 Pension 
 
 16,910,000.00 
 
 
 Post-office . .... 
 
 10,871,199.00 
 
 
 River and harbor (none this session) . 
 Sundry civil 
 
 2,168,101.92 
 
 37,108,083.00 
 
 Deficiencies 
 
 44,586,974.74 
 
 
 Miscellaneous 
 
 2,261,099.38 
 
 
 Permanents 
 
 4,307,97 5.12 
 
 
 
 
 
 Total 
 
 127, 3Q3, $60. 38 
 
 39,386,809.61 
 
 
 39,386,809.61 
 
 
 Net increase 
 
 88 006 7^0.77 
 
 
 
 
 
 DEFICIENCIES IN APPROPRIATIONS NOT LARGE 
 
 The total appropriations made apparently on account of deficiencies 
 at this session, amounting to $56,995,973.65, exceed the amount of the 
 
FINANCIAL LEGISLATION 307 
 
 last session by $44,586,974.74. This unusual sum is due not to any 
 violation of the antideficiency legislation so recently enacted, or to ill- 
 advised or inadequate appropriations made last session,* but is more 
 than accounted for by the sum of $12,466,750 for public buildings au- 
 thorized at this session, and by two other sums, one of $10,000,000 for 
 the payment of pensions required on account of the law passed at this 
 session to increase the pensions of widows of soldiers, and another of 
 $12,178,900 to continue the work on the Panama Canal. At the last 
 session of Congress all the money was appropriated that was asked for 
 or that could, under the expectations then entertained, be expended 
 during the current fiscal year in the construction of the canal; but the 
 rapid progress under the splendid organization at work on the Isthmus 
 made it necessary to supply as a deficiency in the current appropriations 
 the sum given in order to avoid a suspension of the work. 
 
 Deducting the three sums named, together with $11,791,342 for the 
 Army and Navy expenditures, to which the prohibitive deficiency legis- 
 lation does not apply, and the sum left for deficiencies, only $10,558,981.65 
 is gratifyingly small, and much less than the ordinary deficiencies for any 
 of the recent years. 
 
 RELATION OF EXPENDITURES TO WEALTH 
 
 At the request of the Committee on Appropriations the Director of 
 the Census has recently prepared and furnished, for their information, 
 tables showing the actual expenditures of the Federal Government from 
 1791 to 1907, by fiscal years, and by four-year periods corresponding 
 to the several Administrations. 
 
 In connection with these statistics Director North has furnished an 
 analysis so valuable and informing to all who are interested in the prob- 
 lem of governmental expenditures that I shall ask its insertion in the 
 Record as a part of my remarks. 
 
 The most significant fact to be derived from an inspection of the rela- 
 tionship of expenditures for the maintenance of government to the ag- 
 gregate wealth of the nation is the uniformity for a long series of years 
 of the proportion shown. This uniformity, as indicated in the tables 
 and analysis, exists not only in the expenditures for the Federal Govern- 
 ment, but also in the tax levies for State, municipal, and local govern- 
 ment. Practically no variation whatever appears in the proportion of 
 expenditure for the Federal Government per $1,000 of national wealth, 
 but such increase as appears is indicated in the tax levies made for 
 government other than Federal. The figures presented suggest a tend- 
 ency to increase expenditures for State or local government more rapidly 
 than for the Federal Government. 
 
 The truth of this apparent tendency is confirmed by the fact that the 
 
308 AMERICAN FEDERAL GOVERNMENT 
 
 census report of 1890, the first to present the aggregate payment for all 
 expenditures of all classes, as distinguished from mere tax levies, for 
 States, counties, cities, and minor civil divisions, including schools, 
 amounted to $569,252,634, or $9.30 per $1,000 of national wealth. In 
 1902, however, the year in which the next census inquiry upon this 
 subject was made, the aggregate payment for expenditures of this class 
 had nearly doubled, amounting to $1,156,447,085, or $12.80 per $1,000 
 of national wealth. 
 
 In general, therefore, it appears to be an established fact that while 
 the expenditures for the maintenance of the National Government have 
 steadily increased during the whole period of national existence, and 
 latterly much more than I believe they should, they have maintained 
 an almost uniform proportion, except during the period of the civil war, 
 in comparison with each $1,000 of national wealth; but that the expen- 
 ditures made for the maintenance of State and local governments of all 
 kinds have shown a decided tendency to increase in proportion to each 
 $1,000 of national wealth, thus reflecting the general tendency of the 
 age and of the nation, as wealth increases, to make more liberal ex- 
 penditures for the maintenance of various classes of government and 
 governmental institutions. 
 
 The actual per capita expenditure for the maintenance of the Federal 
 Government during the first period, from 1791 to 1796, as shown by the 
 Census Office, was $1.34. It would be natural to contrast this figure 
 with the per capita of annual expenditure for the last fiscal year, amount- 
 ing to $8.91 ; but it will be evident upon reflection that there is no 
 comparison possible between the mere per capitas themselves without con- 
 sideration of the resources of the nation at the two periods mentioned. 
 Except in time of war or in periods of great depression, there is of neces- 
 sity in every nation a rough relation between the expenditures for the 
 maintenance of government and the ability of the nation to furnish such 
 resources. Unfortunately, there exists no information concerning the 
 aggregate wealth of the United States at the beginning of the nineteenth 
 century. The earliest data upon the subject was collected at the Seventh 
 Census in 1850. 
 
 THIS CONGRESS DESERVES PRAISE 
 
 Mr. Speaker, in conclusion I want to commend this Congress as it is 
 concluding the labors of its first session, and pay tribute to the courage 
 it has manifested in its acts of commission as well as those of omission. 
 Whatever the unthinking or the superficial critic may now say, the impar- 
 tial and nonpartisan historian will hereafter record and truthfully state 
 that, in the affirmative work performed and in contending against and 
 successfully resisting unconstitutional demands upon the powers and 
 
FINANCIAL LEGISLATION 309 
 
 the treasury of the Federal Government, the work of no previous session 
 is comparable with the work of the first session of the Sixtieth Congress. 
 [Great applause on the Republican side.] 
 
 The history of the appropriation bills of this session and the analysis 
 of public expenditures made by the Census Office to which I have referred 
 follow, pp. 310-311. 
 
 REVIEW OF APPROPRIATIONS ON BEHALF OF THE 
 
 MINORITY 1 
 
 [It is customary that after the chairman of the committee on appropriations 
 has made his statement, he is followed by the principal member of the minority 
 on that committee with a criticism of the fiscal policy of the majority.] 
 
 MR. FITZGERALD said: 
 
 Mr. Speaker: Speaking for the Democratic members of the Com- 
 mittee on Appropriations and at their direction, I desire to present the 
 following review of our appropriations and of the country's financial 
 condition : 
 
 It is a prodigious task to examine the Departmental estimates. The 
 gentleman from Minnesota [Mr. Tawney] has not overstated the diffi- 
 culties of those upon whom the burden is placed. The country would 
 have been benefited had the recommendations of the committees charged 
 with the preparation of the supply bills been more generally heeded by 
 the House. The importunities of those outside are sufficiently difficult 
 to resist, without having the membership of the House take sides against 
 its committees on questions of expenditure. 
 
 The gentleman from Minnesota [Mr. Tawney] enunciated a new 
 doctrine. It will be a surprise to the country to hear his explanations 
 of the enormous appropriations of this Congress. He attributes the 
 wastefulness, the recklessness, and the extravagance of his own party, 
 in complete control of the Government, to the fact that the Democratic 
 minority of the House has exercised its constitutional right to call the 
 roll upon every question submitted to the House. The purpose of the 
 minority was to center the attention of the country on the work of Con- 
 gress, and that purpose has been successfully accomplished. 
 
 Mr. Speaker, I recall when the naval appropriation came back from 
 conference it was not due to the vigilance of the majority, but to the 
 vigilance of the minority that it was discovered that the conferees on 
 that bill, in violation of all rules of parliamentary law, had inserted a 
 provision carrying a large sum of money. It was not the action of the 
 minority that prevented that report being rejected, but it was the partisan 
 action of a Republican Speaker who permitted the conference report to 
 
 1 Congr. Record, May 30, 1908. 
 
3 io 
 
 AMERICAN FEDERAL GOVERNMENT 
 
 HISTORY OF APPROPRIATION BILLS, FIRST SESSION OF THE SIXTIETH CON- 
 
 AND APPROPRIATIONS FOR 
 
 [Prepared by the clerks to the Committees on Appropri- 
 
 Title. 
 
 Estimates, 
 1909. 
 
 Reported to the 
 House. 
 
 Agriculture 
 
 $10,666,351.00 
 
 89.755.833.75 
 3,960,320.91 
 13,798,126.35 
 38,443,945.36 
 8,219,272.87 
 35,040,066.13 
 977,087.87 
 125,791,349.80 
 151,043,000.00 
 230,441,016.00 
 
 $11,431,346.00 
 85,007,566.56 
 3,508,963.91 
 9,561,449.35 
 8,210,611.00 
 8,020,597.87 
 
 3 2 .33 6 >573- 
 825,837.87 
 103,967,518.43 
 150,869,000.00 
 220,765,392.00 
 
 Army 
 
 Diplomatic and consular 
 
 District of Columbia 
 
 Fortification 
 
 Indian 
 
 Legislative etc. 
 
 Military Academy 
 
 Navy 
 
 Pension 
 
 Post-Office .... 
 
 River and harbor ....... . .. 
 
 Sundry civil 
 
 134,618,623.80 
 
 roS.?^. 3 6 9-48 
 
 Total 
 
 842,754,993.84 
 
 L 57,000,000.00 
 
 740,220,225.47 
 ( 24,074,450.26 
 2,025,500.00 
 ( 17,342,572.89 
 
 Urgent deficiency, 1908 and prior years .... 
 Additional urgent deficiency, 1908 and prior years 
 Deficiency 1908 and prior years 
 
 Total 
 
 899,754,993.84 
 25,500,000.00 
 
 783,662,748.62 
 
 Miscellaneous 
 
 Total, regular annual appropriations .... 
 Permanant annual appropriations 
 
 925,254,993.84 
 154,194,295.12 
 
 
 
 Grand total, regular and permanent annual 
 appropriations ... 
 
 1,079,449,288.96 
 
 
 
 
 Amount of estimated revenues for fiscal year igoc, 
 Amount of estimated postal revenues for fiscal ye< 
 Total of estimated revenues for fiscal year 190 
 
 
 
 
 
 1 This amount includes $17,806,645 to carry out contracts authorized 
 of the Isthmian 
 
FINANCIAL LEGISLATION 
 
 GRESS ; ESTIMATES AND APPROPRIATIONS FOR THE FISCAL YEAR 1908-9, 
 THE FISCAL YEAR 1907-8. 
 
 ations of the Senate and House of Representatives.'] 
 
 Passed the 
 House. 
 
 Reported to the 
 Senate. 
 
 Passed the 
 Senate. 
 
 Law, 1908-9. 
 
 Law, 1907-8. 
 
 $11,508,806.00 
 84,207,566.56 
 3,508,963.91 
 9,560,499.35 
 8,210,611.00 
 8,179,097.87 
 32,302,913.00 
 . 825,837.87 
 105,405,768.43 
 150,869,000.00 
 222,355,892.00 
 
 $11,642,146.00 
 98,820,409.12 
 3,967,805.91 
 11,494,887.35 
 11,510,187.01 
 9,904,920.93 
 32,945,631.00 
 914,967.37 
 112,984,799.88 
 163,053,000.00 
 229,027,367.00 
 
 $12,152,406.00 
 98,840,409.12 
 3,597, 23Q-9 1 
 ii,575,5i3-85 
 12,116,187.01 
 10,532,826.87 
 32,965,631.00 
 914,867.37 
 123,115,659.88 
 163,053,000.00 
 229,706,367.00 
 
 $11,672,106.00 
 95,382,247.61 
 
 3,577,463-9i 
 10,117,668.85 
 9,317,145.00 
 
 9, 2 53,347-87 
 32,833,821.00 
 
 845,634-87 
 122,662,485.47 
 163,053,000.00 
 222,962,392.00 
 
 $9,447,290.00 
 78,634,582.75 
 3,092,333-72 
 10,440,598.63 
 6,898,011.00 
 10,125,076.15 
 32,126,333.80 
 1,929,703.42 
 98,958,507.50 
 146,143,000.00 
 212,091,193.00 
 37,108,083.00 
 110,769,211.30 
 
 106,972,864.98 
 
 118,032,263.22 
 
 118,791,275.72 
 
 112,937,313. 22 1 
 
 743,907,820.97 
 23,725,188.25 
 2,110,500.00 
 17,344,322.89 
 
 804,298,384.79 
 24,083,267.12 
 2,163,000.00 
 18,374,811.43 
 
 817,361,374.73 
 24,083,500.48 
 2,163,000.00 
 18,385,316.88 
 
 794,614,625.80 
 24,050,125.48 
 2,l63,OOO.OO 
 30,782,848.17 
 
 757,763,924-27 
 I 12,408,998.91 
 
 787,087,832.11 
 
 848,919,463.34 
 
 861,993,192.09 
 
 ^851,610,599.45 
 
 3,000,000.00 
 
 770,172,923.18 
 738,900.62 
 
 ..... 
 
 ::::: 
 
 
 
 854,610,599.45 
 154,194,295.12 
 
 770,911,823.80 
 149,886,320.00 
 
 
 
 
 
 
 
 1,008,804,894.57 
 
 920,798,143.80 
 
 $ 
 
 558,000,000.00 
 220,123,011.30 
 878,123,011.30 
 
 
 
 
 by law for river and harbor improvements and 29,187,00 for construction 
 Canal for 1909. 
 
312 AMERICAN FEDERAL GOVERNMENT 
 
 come up under a motion to suspend the rules instead of being brought 
 up as the conference report on this bill is in the regular and orderly 
 manner that enabled the Republican conferees, in violation of the rules, 
 to insert and retain in the bill an item that was never considered in either 
 House of Congress. The record vote upon the adoption of that report 
 will show that more Democrats voted to reject the report, because of 
 the improper action, as well as the unjustifiable extravagance of that 
 bill, than did Republican Members of this House. I challenge the chair- 
 man of the Committee on Appropriations now, and I shall yield to him 
 to answer, to name a single item of large appropriation where the Record 
 does not show more Democrats recorded against it than there are Re- 
 publicans recorded against it. [A pause.] 
 
 The gentleman does not care to answer. I make the assertion that in 
 every instance when his committee was overridden, or when appropria- 
 tions were improperly enlarged, more Republicans voted the reckless 
 appropriation than did the Democrats, and more Republicans in pro- 
 portion to their numbers in this House than Democrats. With a majority 
 of fifty-seven Members in this House it is a pitiable spectacle for the chair- 
 man of the great Committee on Appropriations to have to plead that the 
 majority of fifty-seven was unable to prevent the minority from looting 
 the Treasury. Despite, Mr. Speaker, what I consider an extraordinary 
 attempt of the gentleman from Minnesota to place the sins of his party 
 upon his political opponents, and despite the extraordinary character 
 of his statement at this time, we of the minority desire to pay a highly 
 deserved tribute to the industry, the fearlessness, the patriotism and 
 the high purpose which have characterized the labors of the chairman 
 of the Committee on Appropriations [Mr. Tawney]. It has been a source 
 of keen gratification to have worked with him, knowing that his only 
 ambition has been honestly to serve the country and to conserve the 
 public interests. He deserved more loyal support from his party asso- 
 ciates. Had he received that aid and cooperation from his own party 
 which should have been freely given, all honest men would now have 
 great cause to rejoice. 
 
 The Congress is now about to adjourn. This session has been the 
 most profligate in our history. Extravagance has run riot ; the Treasury 
 has been depleted; the public money has been shamefully squandered. 
 
 On January 13 of this year I stated that " preparations have been 
 made to squander the public treasure with a lavishness heretofore un- 
 known." The record of this session is in complete harmony with that 
 declaration. No other nation in the civilized world could be so reckless 
 with its treasure and escape disaster. 
 
 The responsibility rests with the Republican party. It can not evade 
 the issue. Every energy seems to have been concentrated upon the task 
 of emptying the Treasury and of making imperative the issuance of 
 bonds by the next Administration in order to defray the ordinary ex- 
 
FINANCIAL LEGISLATION 313 
 
 penditures of the Government. The dreaded handwriting has apparently 
 been seen upon the wall, and the Republican party is demoralized and 
 shaken ; it can not shift responsibility to a helpless minority. 
 
 The appropriations for the next fiscal year aggregate the enormous 
 sum of $1,008,804,894.57. 
 
 To those who have given only slight attention to the country's finances 
 the statement will undoubtedly be startling; when contrasted with ex- 
 penditures for other periods in our history amazement at Republican 
 recklessness quickly gives way to alarm for the country's future. Ex- 
 penditures have been authorized as if the wave of prosperity were still 
 rolling high instead of having broken, as is has, and tumbling into the 
 trough of a severe industrial depression. 
 
 Under Cleveland the per capita appropriations for the Army for four 
 years were $1.35; for the Navy, $1.54; for fortifications, 20 cents; the 
 average per capita for the four years for such service, $3.90. 
 
 Under Roosevelt, in his second Administration, the per capita appro- 
 priations for the Army for the four-year period are $3.66, more than two 
 and one-half times the amount under Cleveland; for the Navy, $4.91, 
 more than three times the amount under Cleveland; for fortifications, 
 32 cents, more than 50 per cent increase over Cleveland, and the average 
 per capita cost for the three services under Roosevelt is $8.90, two and 
 one-fourth times as great as under Cleveland. 
 
 The appropriations for the Army for the next fiscal year are 
 $16,747,664.86 more than for the present fiscal year. It has already 
 been pointed out by the gentleman from Virginia [Mr. Hay] that 
 $3,000,000 additional will be required next year to meet the demands of 
 the service, so that in reality the Army, without the addition of a single 
 man, will cost at least $19,747,664.86 more next year thaa during this 
 year. 
 
 The appropriations for the Navy for next year are $23,703,977.97 
 more than for the present year. So that in a time of profound peace our 
 military establishments will cost, including the $2,419,134 additional for 
 fortifications, $45,870,776.83 more next year than for the current year. 
 This increase in one year is practically the total amount appropriated in 
 1894 to maintain the Army and Navy, to wit, $46,329,701.16. 
 
 In other words the entire expenditure for the Army and Navy only 
 fourteen years ago is equalled now by the increase in a single year. 
 
 In 1907 the expenditures for the British army were $121,232,201.15, 
 and an army at least two and one half times as large as our Army was 
 maintained. 
 
 In 1907 the expenditures for the French army were $138,707,340.23; 
 for the German army, $176,842,187.20. 
 
 For the British navy the expenditures were $149,364,556.75; for the 
 French navy, $62,732,182.88; for the German navy, $63,165,747.40. 
 
 These nations have repeatedly been pictured to the people of this coun- 
 
314 AMERICAN FEDERAL GOVERNMENT 
 
 try as staggering under the burdens of militarism. It has been our boast 
 that this free land has not been so afflicted, yet our expenditures for the 
 two military services for the next year will be practically the same as 
 those made by the great military nations of Europe. 
 
 The gross receipts of the United States for 1907 were $846,725,329.62 ; 
 of Great Britain, $704,737,686.26; of Germany, $617,941,200.80; of 
 France, $715,883,610.08. 
 
 Evidently the receipts of these four governments, are very much alike, 
 and the expenditures for maintenance of military establishments not 
 widely different. 
 
 In a report prepared by the Census Bureau for the Committee on 
 Appropriations this statement is made: 
 
 In the fiscal year ending June 30, 1907, the per capita expenditures of the 
 United States National Government were 6.65 times as great as was the aver- 
 age of such expenditures during the six years of Washington's administration 
 for which complete reports are available. National expenditures have increased 
 in one hundred and eleven years that much faster than the population. This 
 increase is attracting the attention of statesmen, newspaper writers, and stu- 
 dents of public affairs. 
 
 It may be that the increasing expenditures of the Federal Government 
 are attracting the attention of the persons mentioned in this excerpt. 
 Evidently, however, it has completely escaped the attention of every re- 
 sponsible official of the administration of Theodore Roosevelt. [Applause 
 on the Democratic side.] Surely these significant facts have not perme- 
 ated the recesses of the White House nor found even a temporary lodg- 
 ment in the active brain of the President. No other conclusion can satis- 
 factorily be reached ; for upon no other theory is it conceivable that the 
 Administration would have submitted estimates, as has been repeatedly 
 pointed out during the session, at least $128,000,000 in excess of the 
 revenues estimated for the coming fiscal year. Since these estimates 
 were submitted to Congress the country has been afflicted with a panic. 
 The business and industrial depression is growing rather than lessening. 
 Yet in the plethora of messages to the Congress from the Chief Execu- 
 tive there has not been a single warning to safeguard the interests of the 
 people by resolutely repelling all attempts to raid the Treasury. Indeed, 
 when the history of this session is impartially and truthfully written, as it 
 will be some day, the wielder of the "big stick" will be pictured in heroic 
 size at the head of those who, openly encouraged or secretly abetted by 
 him, have successfully rifled the people's strong box. [Applause on the 
 Democratic side.] 
 
 How are these extraordinary authorizations to be met ? If the Treas- 
 ury were overflowing and money unnecessarily taken from the people 
 through various forms of taxation were being withheld from the channels 
 of trade, it might be sufficient excuse for some to make lavish appropria- 
 
FINANCIAL LEGISLATION 315 
 
 tions. Or if the party in power adopted the policy of the tyrants of old 
 and expended enormous sums upon public works to keep the unemployed 
 from awakening to the truth of the country's position, such reasons might 
 be urged in defense of these appropriations. 
 
 But of the total of $1,008,804,894.57 appropriated at this session not a 
 single dollar is to be spent on new projects for the improvement of water 
 routes and harbors and but $30,000,000 is for newly authorized public 
 buildings. 
 
 From the daily statement of the Treasury Department for May 23, 
 1908, it appears that the excess of expenditures over receipts for the 
 
 fiscal year to and including that day was $61,421,301.82. 
 
 * * * ## * * # 
 
 The gentleman from Minnesota [Mr. Tawney] does not prophesy idly 
 when he warns his associates, as he has on several occasions during the 
 past few months, that within the next fiscal year it will be necessary to 
 issue either certificates of indebtedness or bonds to obtain the money to 
 pay the current expenses of the Government. 
 
 It would appear as if the Republicans were preparing to repeat their 
 conduct in the closing months of the Harrison Administration [applause 
 on the Democratic side] of preparing the plates, as was done by Secretary 
 Foster, for the printing of bonds for use by a Democratic Administration 
 because of Republican folly. [Applause on the Democratic side.] 
 
 Mr. Speaker, in striking contrast with the management of the nation's 
 finances by the Republican party is the situation in Great Britain to-day. 
 On the 7th of this month the budget was presented to the House of Com- 
 mons by the premier, Mr. Asquith, acting for the chancellor of the ex- 
 chequer. A perusal of his speech would be of incalculable benefit "to 
 every Member of this House. Whatever opinions may be entertained of 
 the British system of government, the conduct of its finances can not do 
 other than elicit admiration. 
 
 Mr. Asquith pointed out that in presenting the budget a year previ- 
 ously he had estimated the revenues for the fiscal year, ending March 31, 
 1908, at about $765,000,000 and provided for the expenditure of 
 $762,510,000. The revenue had actually been $782,690,000, $17,000,000 
 in excess of his estimate, and the actual expenditures $759,060,000, about 
 $3,000,000 less than provided. As a result at the end of the year there 
 was a surplus of receipts over expenditures of $20,000,000 and the public 
 debt had been reduced $85,000,600. Highly impressive when con- 
 trasted with the labors of the Republican party, which produces a deficit 
 this year of $78,000,000, and then in the face of falling revenues is asked 
 by the executive officials to appropriate at least $128,000,000 more than 
 the estimated revenues and actually appropriates $223,000,000 more 
 than the reasonably anticipated revenues, and then the gentleman from 
 Minnesota [Mr. Tawney] puts the blame on a Democratic filibuster at 
 this time ! [Applause and laughter on the Democratic side.] 
 
3 i6 AMERICAN FEDERAL GOVERNMENT 
 
 The estimated revenues of the British Government for the next fiscal 
 year, as pointed out by Mr. Asquith, are $788,850,000; the expenditures 
 provided aggregate $764,345,000, a surplus of about $25,000,000. With 
 this surplus revenue it is proposed to remove certain annoying stamp 
 taxes, to initiate a system of old-age pensions, to reduce the tax on sugar 
 i farthing a pound, with a consequent loss of revenue of $17,000,000, so 
 as to afford some relief to the masses from the burdens of taxation, and 
 still have a surplus of receipts over expenditures available for unforeseen 
 contingencies. 
 
 With estimated revenues practically identical with our probable reve- 
 nues Great Britain, $788,850,000; United States, $785,000,000 
 Great Britain will support an army three and one-half times as large as 
 our Army, and a navy, estimating by the number of men, about three 
 times as large as our Navy ; will initiate a system of old-age pensions, will 
 apply about $75,000,000 to the reduction of its debt, will reduce substan- 
 tially the tax upon sugar, a universally used foodstuff, and still have a 
 surplus of receipts available for contingencies, while the United States 
 proposes to expend $223,000,000 in excess of its probable revenues, with 
 military establishments only one-third as large as Great Britain, and 
 without relieving the people from a single dollar of taxation. 
 
 It is little to be wondered that the British premier exultantly declared 
 that- 
 
 When people talk about the demands of democracy, I may be allowed to 
 say that there is not a more credible chapter in the annals of democratic finances 
 than that which records the fact that during three years, with a passionate 
 desire for diminution of expenditure and for the mitigation of popular burdens, 
 there has been the application of the enormous sum of between thirteen and 
 fifteen millions (sterling) a year out of taxation to redeem the principal of our 
 national debt. 
 
 Mr. Speaker, while I have not as much admiration for the British 
 Government as for our own, I can not withhold my admiration for the 
 manner in which their finances are conducted, particularly when con- 
 trasted with the Republican party's Administration of this Government. 
 
 Within the last few days there seems to have been an awakening on the 
 Republican side of the House. Feeble protests have been made against 
 the extent of appropriations and some complaint against the Senate for 
 presuming to add to the appropriation bills as passed by the House. 
 
 Mr. Speaker, with the exception of the gentleman from Minnesota 
 [Mr. Tawney], there has not been a single Republican in this House with 
 sufficient influence to be considered an important factor in the delibera- 
 tions of this body who has, prior to this week, raised his voice in protest 
 against the unjustifiable extravagance of the House and of Congress. 
 [Applause on the Democratic side.] 
 
FINANCIAL LEGISLATION 317 
 
 DIVIDED AUTHORITY AND APPROPRIATIONS 
 
 [The following extract from a speech by Mr. Livingston on July 2, 1906, 
 brings out the opinions of leading men upon the policy of distributing the 
 appropriation bills among a number of committees.] 
 
 MR. LIVINGSTON. I wish to bring to the attention of Congress the 
 fact that the division of appropriations among several committees was a 
 serious mistake. Mr. Randall, in the Forty-ninth Congress, on a report 
 on this subject, said: 
 
 The best interests of the people require that the subject of appropriations 
 should mainly be committed to the charge of one committee not that one 
 set of men is abler or more honest than another set, but because experience 
 has shown it is the safest course to pursue. Such body of men can make care- 
 ful scrutiny into every detail by itself, and, in connection with others, and taking 
 a survey of the whole field of receipts and expenditures, it will be responsible 
 to the House to see to it that the latter shall be reduced to an economical basis, 
 and kept within the limits of the public revenue. 
 
 If, in place of the responsibility and certainty of keeping appropriations 
 within economical limits, we are to inaugurate a system of making appropria- 
 tions by many committees, without regard each to the other or the amount of 
 money involved, increased expenditures will ensue, and the party in power and 
 responsible for the control of legislation in this House will be held to strict 
 account by the people. 
 
 If you undertake to divide all the appropriations and have many committees 
 where there ought to be but one, you will enter upon a path or extravagance 
 you can not foresee the length of or the depth of, until we will find the Treasury 
 of the country bankrupt. 
 
 Mr. Garfield, of Ohio, said: 
 
 It is a fact within the experience of every Member who has been here long, 
 that the Committee on Appropriations always finds itself confronted with a 
 demand from each of the committees having a special subject in charge for 
 larger appropriations than the Committee on Appropriations think should be 
 made. There never was a time, within my knowledge since I have been here, 
 when the Committee on Military Affairs did not resist the tendency of the 
 Committee on Appropriations to cut down the appropriations for the Army. 
 The Committee on Naval Affairs has always been found resisting the reduc- 
 tion of the naval appropriation bill. For this reason, I say that if each of 
 these several committees had charge of getting up the appropriation bills on 
 these several subjects, the amount of the bills would be very large ; they would 
 outgrow the grasp of the House, and there would be no unity in the appropria- 
 tions of public money. 
 
 I do say, sir, without the slightest question in my own mind of the truth of 
 the statement, that the scattering of these appropriations as suggested by 
 gentlemen here will be absolutely breaking down all economy and good order 
 and good management of our finances. It cannot be otherwise. 
 
318 AMERICAN FEDERAL GOVERNMENT 
 
 Senator Beck said : 
 
 The Agricultural Committee will frame the law and vote all the money they 
 can, and no man not on that committee will know anything about it. So of the 
 Post-Office Committee, so of the Naval Committee, so of the Military Com- 
 mittee, so of the District of Columbia Committee. They become autocrats, 
 not only in the framing of the law, but in the appropriation of the people's 
 money to carry it out; and outside of that committee room no man can 
 get the information to enable him to contradict what they say if they are 
 wrong; and they are selected because they are special friends of the Depart- 
 ment they are appointed to represent; for each Secretary ought to have 
 men he can trust, before whom he can present the wants of his Department 
 here. 
 
 Senator Sherman said: 
 
 Sir, I would not do anything at all to weaken the restraint or power of the 
 Committee on Appropriations. I believe that it is necessary, as my friend 
 from Vermont says, to bring all the items of expenditures for the nation under 
 the eye and control of one committee, so that they may limit the amount of 
 expenditures. 
 
 ******** 
 Senator Hale said: 
 
 I know from my own experience that the tendency of the mind of a member 
 of either of the other committees calling for appropriations each year the 
 Military or Naval Committee (I will speak of the latter because I have had 
 service upon that committee) is to gain all the power in appropriating money 
 possible, and connected with that is the unerring result of desiring to have the 
 power to appropriate more money. There has never been any exception to 
 that. I think few Senators will dispute the statement that if all the business of 
 the Committee on Appropriations was taken from it and given to the several 
 committees we should then be confronted with a general scramble upon the 
 part of each committee for more money. 
 
 Mr. Cannon said: 
 
 That committee having the exclusive power to propose legislation, and also 
 to report the appropriations for the service, would be an autocratic committee 
 without any check upon it with any other committee of the House. Now, I 
 undertake to say when you give a committee of that kind that kind of power 
 you may put my friend from Maine [Mr. Reed] upon it, or you may put my 
 friend from New York [Mr. Hiscock] upon it, or the gentleman from West 
 Virginia [Mr. Gibson], or the gentleman from Pennsylvania [Mr. Randall] 
 they might make fair appropriations this session, and possibly next session, 
 but, as the years roll around, so sure as the sun rises, that committee having 
 exclusive jurisdiction of legislation and appropriations for that subject would 
 abuse its jurisdiction and magnify its department. 
 
FINANCIAL LEGISLATION 
 
 319 
 
 Why, Mr. Speaker, when you come to select the committees which 
 are to have charge of the business of the War Department, or the Navy 
 Department, or the Post Office Department, I take it, sir, that it will 
 be your duty to select able men that have a knowledge of these different 
 Departments ; and not only that, but men who are friendly, if you please, 
 to the Navy of this country, to the Army of this country, and to the Post 
 Office Department. You ought not, sir, to pick out enemies, and I do 
 not believe you would do so. So when you have placed the power in the 
 hands of the friends of these various Departments, and given them this 
 exclusive jurisdiction of legislation and of appropriations, you have at 
 once this abuse ready to come into this House and from Congress to 
 Congress to run riot, blossoming and bearing the fruit of bad legislation 
 and inordinate appropriations. 
 
 How truly did this our present Speaker predict the conditions of to- 
 day. These committees that have power to legislate and appropriate 
 
 APPROPRIATIONS FOR FISCAL YEARS 1898 AND 1907 
 
 Tide 
 
 Appropriations 
 made for fiscal 
 year 1898, the 
 first full fiscal 
 year under Mr. 
 McKinley's Ad- 
 ministration 
 
 Appropriations 
 made for fiscal 
 year 1907, under 
 Mr. Roosevelt's 
 Administration 
 
 Agricultural 
 
 $3 182 902 oo 
 
 So 032 040.00 
 
 Army 
 
 23 120 344 3O 
 
 71 81 7 165 08 
 
 Diplomatic and consular 
 
 I 60? 308.76 
 
 3 ooi 004.17 
 
 District of Columbia . . . 
 
 6,186,991 .06 
 
 10,138 692.16 
 
 Fortifications . . .... 
 
 9, C 17 141.00 
 
 C, 053,003.00 
 
 Indian 
 
 7,674,120.80 
 
 9260,300-08 
 
 Legislative, etc 
 
 21,690,766.90 
 
 29,741,019.30 
 
 Military Academy 
 
 479,572.83 
 
 1,664,707.67 
 
 Navy 
 
 
 
 Pensions 
 
 141 263 880 oo 
 
 140 245 500 oo 
 
 Post-office 
 
 ne 66? 338 7? 
 
 IQI 605 008.75 
 
 River and Harbor (including amounts in sundry 
 civil, deficiency and special acts) ... 
 
 20 832 412 91 
 
 
 Sundry civil .. 
 
 34 4QO 37O 47 
 
 08,274, 574-32 
 
 Deficiencies 
 
 0.006 417.34 
 
 39,1 19,246.62 
 
 
 
 
 Total 
 
 
 712 106 981.32 
 
 Miscellaneous 
 
 74Q O?7 OO 
 
 28 000,000.00 
 
 
 
 
 Total regular annual appropriations . . . 
 Permanent annual appropriations (estimates) 
 
 408,656,859.30 
 120,078,220.00 
 
 740,106,981.32 
 140,076,320.00 
 
 Grand total 
 
 ^28 73 ? O7Q 3O 
 
 880 183 301 32 
 
 
 
 
320 AMERICAN FEDERAL GOVERNMENT 
 
 are merely the representatives of specific Departments, and as foretold 
 by Mr. Cannon are " bearing fruit of bad legislation." If this pernicious 
 practice can not be changed, our appropriations will continue to "run 
 riot." Mr. Cannon at that time suggested that all conferees between 
 the House and Senate upon money bills should be selected from the ap- 
 propriations committees of the House and Senate, with power to cut 
 out unnecessary appropriations and scale down extravagant ones. Con- 
 gress and the country need not look for retrenchment in expenses or ap- 
 propriations under the present methods. Each of these committees 
 with power to legislate and appropriate will continue to strive for the 
 advantage to their particular Departments in the disbursement of the 
 Government's revenue. 
 
 DEBATE ON AN APPROPRIATION BILL 
 
 [Under the rules of the House the general appropriation bills are not allowed 
 to contain any new legislation, but only appropriations for services already 
 provided for by former laws. In 1906, this rule was put in operation against 
 various appropriation bills in order to keep them within proper limits. It has 
 been the practice of the House to allow much legislation of this kind to go 
 through without objection by unanimous consent, but, of course, the objection 
 of even a single member is sufficient under the rules to throw out an appropria- 
 tion for which there is no legal warrant. In this manner it was easy for the mem- 
 bers on the Committee on Appropriations to exercise a certain control over the 
 bills brought in by other committees, through their right of objection as in- 
 dividual members. But when on March 23, 1906, the Committee brought in 
 one of its own bills, the Legislative and Judicial Appropriation Bill, certain 
 of the members of the House took it upon themselves to enforce the rules 
 against the Committee on Appropriations itself. Item after item was ob- 
 jected to and under the rules of the House a great many sections were stricken 
 out. The attitude of the members and the committee is brought out in the 
 following extract from the debate of March 23, which also illustrates the 
 opinions held by some members upon the rules of the House.] 
 
 MR. PRINCE. I will not oppose any measure which has for its purpose 
 the betterment of the service of the United States in any of its branches ; 
 but under the rules of this House this is no way to legislate. No man 
 in this House can tell how these rolls may be padded. There is no means 
 of getting at it. We may be criticised by some for doing what we are 
 doing, but we want to know how these men are placed on the rolls ; we 
 want to know by what authority of law they are placed there, and some 
 of us have stood here under the rules making objection; and in every 
 instance practically where we have made objection under the rules, 
 Chairman after Chairman occupying the position that you now occupy, 
 Mr. Chairman, has held in accordance with the rules of the House. 
 Why criticise us for doing our duty? 
 
FINANCIAL LEGISLATION 321 
 
 I am not here criticising gentlemen of the committee, but I am only 
 asking them to live under the rules that they want us to live under. The 
 rules of this House are invoked time and again, and when the time 
 comes it is a rare instance for me to oppose the rules. More than ten 
 years have I been in this House, and at no time when a rule has been 
 brought in along the lines of party policy have I ever refused to stand 
 by it. I have stood for the rules of this House and stand by the rules 
 to-day, and I am insisting upon the rule ; and the gentleman very prop- 
 erly says that these provisions are subject to the rule, and he makes no 
 objection to the point of order. Then what is his answer for bringing 
 them in here when he knows that they are contrary to the rules of this 
 House ? 
 
 Mr. TAWNEY. Mr. Chairman, I wish to make an observation in 
 reply to the gentleman from Illinois [Mr. Prince], who attempts to 
 justify his course and the course of his colleague from Georgia [Mr. 
 Hard wick] in their opposition to certain provisions in this bill upon the- 
 ground that under the rules of the House the House can not consider a 
 provision in an appropriation bill providing for the salaries of the clerks 
 that are engaged in carrying on the public service. Now, if you will 
 follow to its logical conclusion the position of the gentleman from Illinois, 
 this House for the next five years would have no time to do anything 
 else than to take up in the several Departments the necessity for legisla- 
 tion, for the purpose of increasing one clerk in one bureau and a number 
 of clerks in another bureau, and in another division, and it would abso- 
 lutely make the House of Representatives ridiculous. 
 
 The course which the Committee on Appropriations has followed in 
 this bill has been the practice ever since I have been a Member of this 
 House, which has been fourteen years. When the departmental officers 
 submit their estimates to Congress they submit an estimate not only for 
 the clerical force they then have on the rolls, but if the growth of the 
 service in their respective Departments has been such as to necessitate 
 an increase in that force that increase is included in the estimate, and 
 the demand for it is investigated by whom? Investigated by the com- 
 mittee that reports the appropriation for carrying on that service, and 
 if, in the judgment of that committee, the additional clerical force is 
 necessary, the committee invariably reports in its legislative, executive, 
 and judicial appropriation bill the necessary increase in positions and 
 the necessary increase in salaries. 
 
 There is no other way to provide for the increasing demands of the 
 Departments except by introducing bills for the increase of specific 
 salaries and then have these bills go to the respective legislative com- 
 mittees ; these committees consider the necessity, and then bring in a bill 
 providing for an increase, say, of one clerk in the Post Office Department 
 and perhaps one or two clerks in the Civil Service Commission, or an 
 increase in the salaries or an increase in the number of chief clerks, etc. 
 
 21 
 
3 22 
 
 AMERICAN FEDERAL GOVERNMENT 
 
 I say the enforcement of this rule as interpreted makes the House 
 absolutely ridiculous. I am not finding any fault with the rulings of the 
 Chair, but when these gentlemen make their points of order and ex- 
 planations are made for the necessity for the changes in current law or 
 the reasonableness of the increase in salaries that have been reported, 
 even though these changes result in an aggregate decrease in the ex- 
 penditure of the public money, they nevertheless are not satisfied. 
 
 It is not to enforce the rules of the House, it is not to protect the House 
 against any violation of its rules, that this policy has been inaugurated 
 by these gentlemen ; that is not their motive. If it were they would accept 
 the statements made here on the floor as to the necessity for these changes 
 in the interest of better administration and in the interest of economy. 
 
 Mr. Chairman, we may as well face this situation now as any time. 
 If this rule is to be enforced, then more than one-half of the provisions of 
 this bill will have to go out. More than one-half of the provisions of a 
 legislative bill that has been reported to this House for the last ten years 
 could not have been considered. We have certain provisions in this bill 
 where clerks were employed under a lump-sum appropriation, a practice 
 that has been criticised by this House, and the Committee on Appropri- 
 ations has been the particular object of that criticism for not bringing 
 in specific appropriations defining these places and salaries to be al- 
 lowed to each one of them. 
 
 As the result of the investigation made by the Committee on Appro- 
 priations, in three or four instances were found lump-sum appropriations, 
 in almost every instance we find that where the head of a Department is 
 employing clerks under a lump-sum appropriation the salaries are a 
 great deal higher than when the salaries are provided for specifically in 
 appropriation bills. As the result of the changes we have reported to the 
 House in three bureaus a reduction, a saving to the Government, of 
 $12,511 is accomplished. But under the policy of the gentleman from 
 Illinois [Mr. Prince] and his colleague from Georgia [Mr. Hardwick], 
 if their policy of making points of order is pursued by them, it is abso- 
 lutely impossible for this House to effect any reform or any reduction 
 in the salary or any improvement in the public administration by re- 
 classification or otherwise, for the reason that to do so would be ob- 
 noxious to the rule. Similar provisions have heretofore been reported 
 from the Committee on Appropriations in this same bill, but they re- 
 mained in the bill notwithstanding they were obnoxious to the rules. 
 They remained in the bill because in the interest of good administration 
 and in the interest of economy there was no man on this floor who ob- 
 jected to the enactment of provisions of that kind. Now, no matter how 
 great the economy may be, no matter how beneficial these reclassifica- 
 tions may be in the administration of public affairs, these two Members 
 say they can not be considered. They even refuse to allow this House 
 to consider any one of these proposed changes. If they were acting in 
 
FINANCIAL LEGISLATION 323 
 
 good faith they would at least permit the House to consider propositions 
 of that kind when they are informed that as a result of this legislation 
 we are saving the people's money and improving the public administra- 
 tion of our public affairs. 
 
 Now, if these provisions did not suit the House, or any Member of 
 the House, that Member has a perfect right, under the rules of the House, 
 to amend, if he desires to do so. If the salaries which have been reported 
 here are in excess or greater than what they think they ought to be, they 
 have the right to offer an amendment if they see fit to do so. I speak of 
 this, Mr. Chairman, merely for the purpose of emphasizing the fact 
 that if we are to go on here day after day under the technical policy of 
 these gentlemen I want the country to know who is responsible for it 
 and why they are pursuing the course that they are. I do not want them 
 to give it out to the country that they are actuated by motives of economy 
 when they refuse to allow this House to consider a proposition which 
 results, if enacted into law, in saving money to the public or improving 
 the public service. Now, they have a perfect right any Member has 
 a right, if he sees fit to exercise it to make points of order against these 
 provisions, but this House ought to remember and the country ought to 
 know that a point of order deprives the House of an opportunity to con- 
 sider whether or not the provisions are wise or unwise whether or 
 not they would result beneficially to the Government. And when, 
 contrary to the uniform practice of this House of considering provisions 
 of this kind by unanimous consent, the country will know that these men 
 set themselves up as censors, not in the interest of good administration 
 or in the interest of economy when the country knows that they are 
 depriving the House of an opportunity of considering provisions in the 
 interest of economy I imagine that their course will not meet with that 
 popular approval which it is evident they hope or anticipate it will by 
 their claiming that they are doing this for that purpose. Why, just a 
 few minutes ago, as a result of their policy, they have made it necessary 
 to increase the public expenditures. They have by their policy made it 
 impossible for us to improve the efficiency of one of the branches of the 
 Government. Now, Mr. Chairman, I submit, in all candor, that if 
 this policy is to be followed out we may as well proceed with the reading 
 of this bill, have everything stricken out, whether it reduces or does not 
 reduce public expenditure, and then rewrite the bill in the language of 
 the current legislative bill and let it go to the other branch of Congress, 
 where these proposed reforms and changes may be considered. I will 
 not say that there is any purpose or intention on the part of the Com- 
 mittee on Appropriations to do this, because it is not necessary. Those 
 things can be corrected under the parliamentary procedure of the House, 
 and they will be, but it will involve simply going over this bill again. It 
 will simply involve the time necessary for reconsidering every one of 
 these provisions which, by the policy of these gentlemen, the House is 
 
324 AMERICAN FEDERAL GOVERNMENT 
 
 now deprived of the opportunity of considering. The House is compe- 
 tent to determine whether these changes should be made or not. The plan 
 proposed by the gentleman from Illinois [Mr. Prince] is absolutely im- 
 practical. If these changes are not right, or if these provisions should 
 not be enacted into law, if we should not cut down the forces in the Exec- 
 utive Departments as we have done in this bill, if we should not change 
 around and reclassify as we propose in this bill, it is a matter that the 
 House can by a majority vote determine. But the attitude and the policy 
 of these gentlemen is to deprive the House of the opportunity of accom- 
 plishing anything of this kind. 
 
 Mr. PRINCE. Mr. Chairman, I ask unanimous consent to answer in a 
 brief time the speech of the gentleman from Minnesota, the chairman 
 of the Committee on Appropriations. 
 
 The CHAIRMAN. The Chair is ready to rule on the point and will do 
 so, and then submit the gentleman's request. The Chair sustains the 
 point of order. The gentleman from Illinois asks unanimous consent to 
 proceed for five minutes. Is there objection. [After a pause.] The 
 Chair hears none. 
 
 Mr. PRINCE. Mr. Chairman and gentlemen of the House, the chair- 
 man of the Committee on Appropriations, the gentleman from Minne- 
 sota [Mr. Tawney], says that if we persist in asking for the rules of the 
 House to be observed, we are obstructionists ; that we are not acting in 
 the interests of economy; that this bill and many of its provisions will 
 fail, and, in fact, half of the bill, as he stated before, would go out on a 
 point of order. Now, Mr. Chairman, in the first place, speaking for 
 myself only, I have not made a point of order against any reduction of 
 expenses in this bill. 
 
 Mr. TAWNEY. I beg the gentleman's pardon, he did. 
 
 Mr. PRINCE. Wherein, sir? 
 
 Mr. TAWNEY. In respect to the Civil Service Commission. 
 
 Mr. PRINCE. You have brought in a bill which, you say, reduces it, 
 have you not? 
 
 Mr. TAWNEY. Yes, sir; $2,590. 
 
 Mr. PRINCE. Very well. In the first instance, let us see what it 
 means. On page 34 I have asked two chiefs of divisions, at $2,000 each, 
 be stricken out. That cannot be an addition. I have asked twenty-two 
 clerks be reduced to six clerks. That cannot be an addition. I have not 
 changed any provision of the law. Can that be an addition? That is 
 subtracting, not an addition. On page 35 I have asked that seven clerks 
 be reduced to six. Is that an addition ? 
 
 Mr. LITTAUER. But you know the force as you have emasculated it 
 cannot remain so, that it has to be put back one way or another, else the 
 work of this bureau be given up. 
 
 Mr. PRINCE. Is it possible that one clerk at $1,000 can disarrange 
 the entire bureau? 
 
FINANCIAL LEGISLATION 325 
 
 Mr. LITTAUER. Your statement covered more than one clerk. 
 
 Mr. PRINCE. Can it be possible that two examiners who heretofore 
 have never existed can disarrange the entire bureau ? 
 
 Mr. LITTAUER. The work that these examiners are designed to per- 
 form has been going on, and they are now in this service. 
 
 Mr. PRINCE. In the old bill there were none of them there, and this 
 Commission has existed ever since when? Will the gentleman from 
 Ohio tell me when the first civil-service bill was passed? 
 
 Mr. GROSVENOR. It was passed in 1883. 
 
 Mr. PRINCE. And it is the only one that has been passed, has never 
 been modified or amended? 
 
 Mr. GROSVENOR. Never. 
 
 Mr. PRINCE. So the machinery is there as it is and in running order 
 and now I say and deny I have reduced it. Very well, what else ? 
 
 Mr. LITTAUER. How many clerks do you reduce in that para- 
 graph ? 
 
 Mr. PRINCE. I mean I have not increased it ; I have reduced it. 
 
 Mr. LITTAUER. Nine clerks in one paragraph. 
 
 Mr. PRINCE. Six clerks in one paragraph. Can that be an addition? 
 
 Mr. LITTAUER. No; but you render it incompetent to do the 
 work. 
 
 Mr. PRINCE. I will answer any question you put to me. 
 
 Mr. LITTAUER. We might be able to get along without the whole 
 force, but we cannot get along without a well-ordered force. 
 
 Mr. PRINCE. You gentlemen representing the Committee on Appro- 
 priations have declined to restore the old law. I have offered an amend- 
 ment on the floor of this House to restore the old law, and you decline to 
 do it. You stand here and cripple the service, not I. 
 
 Mr. TAWNEY. Will the gentleman yield? 
 
 Mr. PRINCE. I will. 
 
 Mr. TAWNEY. As a result of your point of order you have been recog- 
 nized for further time. 
 
 Mr. PRINCE. The main contention, as I gather, is this: The gentle- 
 men in charge of the bill charge that we are invoking the rule when we 
 ought not to invoke the rule. What are the rules for? If it should ap- 
 pear to the country that here is a great body of 386 Members who have 
 rules that they cannot do business under, it may be suggested in the 
 country that the rules ought to be modified in a way so that the expres- 
 sions of the American people through their representatives can have a 
 voice upon the floor of this House. [Applause.] 
 
 And I trust and hope that, aside from the discussion of this bill, it 
 will rivet the attention of the country upon the rules of this House. Tell 
 us what they can do, and what they cannot do. And in the coming Con- 
 gress, which, in my judgment, will be overwhelmingly Republican, we 
 will adjust the rules in a way that things will be carried on and policies 
 
326 AMERICAN FEDERAL GOVERNMENT 
 
 carried out in accordance with the wishes of the people; and as one of 
 their representatives I am perfectly willing to stand before my people, 
 as I expect to this fall, and give an account of what I am doing here on 
 the floor of the House to-day. I have no question what the result will be. 
 Now, if you want to bring in a proposition here which will make these 
 various propositions in order, bring it in and let us vote on it. 
 [Applause.] 
 
 Mr. UNDERWOOD. Mr. Chairman, I move to strike out the last word. 
 I listened a while ago to a speech by the chairman of the Committee on 
 Appropriations in reference to the rules of the House. I served at one 
 time on the Appropriation Committee, and I certainly have a kindly 
 feeling for the committee, and I am sure in violating the rules of the 
 House the general Appropriation Committee of this House have often 
 passed meritorious, economic, and good legislation. 
 
 I do not think there is any doubt about the fact that the law that was 
 written on the statute book in the last session of Congress which pro- 
 hibited Department officers from creating deficiencies was a good law, 
 an economic remedy ; but notwithstanding that it is a fact that this com- 
 mittee has written good law on the statute book in violation of the rules 
 of this House, I do not think it lies within the mouth of the great Com- 
 mittee on Appropriations, or any other committee, to come into the House 
 of Representatives and attempt to justify themselves in the violation of 
 the rules of the House. We all violate the rules of the House every now 
 and then, and ask unanimous consent to do so, but when we do it it ought 
 to be understood that we do it with the unanimous consent of every 
 Member of this House. 
 
 Mr. Chairman, the object of the rules of this House is not simply to 
 prevent the House of Representatives from being an unorganized mob 
 of men. The object of the rules of this House more than anything else 
 is to protect the rights of every individual man upon the floor of the 
 House, and more than all, Mr. Chairman, the object of our having a 
 set of rules in this House is to protect the rights of the minority of this 
 House. It is to see that the minority here has justice, and to regulate 
 the majority so that they shall not trample on the rights of the minority 
 and the rights of the individual Members of this House. 
 
 I therefore say that no man has the right to complain that an objec- 
 tion is being made to what he is doing if his course of action is beyond 
 and outside of the rules of the House. Now, the gentleman said that we 
 could not legislate. A great deal of legislation that goes on appropria- 
 tion bills belongs to other committees in this House. If the Appropria- 
 tion Committee of this House did not legislate in appropriation bills 
 that legislation would be enacted after coming from other committees 
 in the House ; and if it came from other committees it often would receive 
 a more careful consideration, and a better consideration, than when it 
 comes in here to be enacted on an appropriation bill. 
 
FINANCIAL LEGISLATION 327 
 
 I do not think there is any rule in this House that is wiser, that is better, 
 that is safer for the good government of this House, than Rule XXI, 
 which prohibits the enactment of new legislation on appropriation bills, 
 and I think the Members of the House will recognize that fact when they 
 realize that if you put new legislation on an appropriation bill and bring 
 it into this House you go into the Committee of the Whole, you have no 
 chance to call the roll, you have no chance to put the membership of 
 this House on a record vote on that direct question. If you allow this to 
 be done, to enact new legislation on a general appropriation bill, you 
 can put law through this House without complying with the constitu- 
 tional requirement that one-fifth of the membership of this House shall 
 be entitled to have a record vote, because you can only have the record 
 vote on the adoption of the bill itself. 
 
 The CHAIRMAN. For what purpose does the gentleman rise? 
 
 Mr. SMITH of Iowa. For the purpose of moving to strike out the last 
 word. 
 
 The CHAIRMAN. The gentleman from Iowa moves to strike out the 
 last word. 
 
 Mr. SMITH of Iowa. Mr. Chairman, during the consideration of this 
 bill there has apparently arisen something of bitterness as between Mem- 
 bers of the House sitting in the committee which, it seems to me, we 
 might well avoid, if possible. The growth of appropriations for the sup- 
 port of the Federal Government has been so great that under the most 
 favorable circumstances it is almost impossible for the House to con- 
 sider properly the separate items of expenditure. Hampered as we are 
 by the difficulties incident to the appropriation of money for the public 
 service, we ought, at least so far as possible, to approach the consideration 
 of these questions free from excitement and free from anger. I do not 
 mean by this remark to criticise at all the gentlemen who have seen fit to 
 raise points of order during the consideration of this bill. I was myself 
 engaged in a greater or less degree in presenting points of order during 
 the consideration of the Army bill. Some of my colleagues upon the Ap- 
 propriations Committee were also engaged in that, and I am not here to 
 criticise in others those things I practice myself. Of course, there has 
 sometimes arisen the question as to whether the points of order made 
 against this bill are in memory of the points of order made against the 
 Army bill. 
 
 Mr. SHACKLEFORD. Mr. Chairman, a point of order. 
 
 The CHAIRMAN. The gentleman will state the point of order. 
 
 Mr. SHACKLEFORD. The gentleman is not speaking to anything be- 
 fore the House. 
 
 Mr. SMITH of Iowa. I am speaking to an amendment under the in- 
 variable practice of the House which I had a right to propose. The 
 question has arisen in my mind whether the fate that overtook the bill to 
 abolish the grade of Lieutenant-General in the Army may have had 
 
328 AMERICAN FEDERAL GOVERNMENT 
 
 anything to do with arousing the feeling that is displayed now upon the 
 floor of this House, but whatever may have been the provocation upon 
 our part and whatever may have been the direct cause that induced our 
 distinguished friends to raise these points of order, I am not seeking to 
 criticise them nor in any sense to rebuke them. I assume no right or au- 
 thority to rebuke them, but it does seem to me that misapprehension 
 exists here as to the purposes of the rules of the House. The rules of the 
 House are not like the criminal laws of the land. The criminal laws of the 
 land should be enforced or repealed, but the rules of the House contem- 
 plate their being set aside by numerous methods. We set apart special 
 days on which to suspend the rules and for the time being set them aside. 
 We pass more measures here by unanimous consent, perhaps, than by 
 all other methods combined and not in accordance with the rules the 
 bills not being entitled to consideration under the rules. 
 
 Mr. PRINCE. May I ask the gentleman a question? 
 
 Mr. SMITH of Iowa. Oh, most certainly. 
 
 Mr. PRINCE. You say we pass many bills by unanimous consent. 
 
 Mr. SMITH of Iowa. I do. 
 
 Mr. PRINCE. Is it not the invariable rule of the Speaker of the House, 
 when, for instance, the gentleman from Iowa rises and asks unanimous 
 consent for the present consideration of a bill, that the bill is sent to the 
 Clerk's desk and read, and the Speaker asks if there is objection, and 
 pauses for an objection? 
 
 Mr. SMITH of Iowa. The gentleman is certainly correct as to the 
 practice of the House. 
 
 Mr. PRINCE. And unanimous consent can be objected to if we de- 
 sire to do so. 
 
 Mr. SMITH of Iowa. I am simply seeking to point out, Mr. Chairman, 
 that while we have rules that we are entitled to insist upon, they are not, 
 under the practice of the House, insisted upon in season and out of 
 season as though they were statutes, but that most of the legislation of 
 the House is done either by motion to suspend the rules or by unanimous 
 consent, and bills are taken up which could not come up under the rules, 
 save by unanimous consent. So that most of our legislation is legislation 
 enacted not in obedience to the rules laid down, but by either unanimous 
 or through two-thirds approval by a departure from the ordinary rules. 
 So it has been the practice from the early time to make such changes on 
 appropriation bills as are made upon the bill now before the Committee 
 of the Whole House on the state of the Union. That does not deny to 
 anyone the right to raise a point of order or object, and what I am seeking 
 to get at is this : That the rules are made that they may be insisted upon 
 by any Member, in the exercise of his best judgment, for the advance- 
 ment of good legislation, but that the objection ought not to be raised 
 unless the proposed matter is objectionable. 
 
 The CHAIRMAN. The time of the gentleman has expired. 
 
FINANCIAL LEGISLATION 329 
 
 Mr. SMITH of Iowa. I ask unanimous consent to proceed for ten 
 minutes. 
 
 The CHAIRMAN. Is there objection? [After a pause.] The Chair 
 hears none. 
 
 Mr. SMITH of Iowa. I want to say this to those who have objected: 
 That it is their strict legal right ; but if a meritorious measure is brought 
 in here to reduce expenditures, that it is not a wise time, in my judgment, 
 that they should seek to control the judgment of others by insisting upon 
 a rigid enforcement of the rules. These rules are not enforced as to the 
 greater number of bills that pass the House. Here is a proposition to 
 reduce public expenditures. It is a laudable enterprise ; a commendable 
 effort; and yet these rules that strike down alike meritorious proposi- 
 tions and those lacking in merit are cited for the purpose of preventing 
 the reduction of public expenditures. No criticism will be heard from 
 me upon my distinguished friend from Illinois. Between us there have 
 always existed most pleasant personal relations, and I trust they will 
 always so continue. But I ask the question here : Passing over, free from 
 anger and free from offense, whatever may have been given by any man 
 in the past, should these rules be resorted to for the purpose of preventing 
 a reduction in public expenditures ? If we are to come here to discharge 
 our duty dispassionately to the whole country, we should insist upon the 
 rules when their violation would be detrimental to the public service, 
 and waive these rules whenever we can thereby promote the public wel- 
 fare. So I hope that whether the offense originally emanated from one 
 side or the other in this matter, that the rules will be enforced when- 
 ever asserted, as they will be by the Chair; but that no Member will 
 feel that it is his duty to raise a point of order against any portion of 
 any bill when the enactment of that provision would be beneficial to the 
 public welfare. 
 
 Mr. SHERLEY. Will the gentleman allow me to ask him a question? 
 
 Mr. SMITH of Iowa. Certainly. 
 
 Mr. SHERLEY. I will ask the gentleman if he does not think the rule 
 that he is speaking in favor of, that should actuate Members not on the 
 committee, ought to also actuate the Members on the committee ? 
 
 Mr. SMITH of Iowa. I do. 
 
 Mr. SHERLEY. Does not the gentleman think they ought to consider 
 amendments offered in good faith by Members not on their committee 
 with regard to whether the amendment is for a good purpose or not, and 
 not simply make the point of order, irrespective of the merits of the 
 proposition ? 
 
 Mr. SMITH of Iowa. I will answer that question with great pleasure. 
 The committee, at least the subcommittee, has given a most patient and 
 careful investigation to the items of this bill. It could have given no 
 consideration to an amendment here proposed from the floor. An 
 amendment, therefore, proposed by the committee after full considera- 
 
330 AMERICAN FEDERAL GOVERNMENT 
 
 tion should not, in my judgment, be put upon an equality with a propo- 
 sition made on the floor that had never been submitted to the committee. 
 
 Mr. SHERLEY. There is something in that; but does not the gentle- 
 man realize that the practice of the committees having in charge these 
 various appropriation bills has been to make the point of order uni- 
 versally, without regard to the matter, whether wise or unwise; and is 
 not the gentleman now in a rather peculiar position when he appeals 
 to the House to accept the wisdom of the committee, that never has 
 accepted the wisdom of the Members of the House ? 
 
 Mr. SMITH of Iowa. I can not agree that it has been the practice 
 universally to raise the point of order, but the general practice has arisen 
 because the great body of amendments offered from the floor has not 
 been considered by the committee ; and it is a matter of common knowl- 
 edge that wise and orderly legislation ordinarily can not be prepared 
 here upon the floor of the House, but ought to be prepared in the com- 
 mittee room. 
 
 Mr. FITZGERALD. The rules of the House were adopted in a manner 
 that prevented any Member of the House attempting to effectuate a 
 change. As soon as the House was organized a motion was made that 
 the rules be adopted which were in force in a previous Congress, the 
 previous question was demanded and ordered, and no Member of the 
 House practically had any voice whatever in the make-up of the rules 
 under which the House operates. 
 
 So that when some Member of the House now insists on exercising the 
 rights that are conferred upon him under those rules, it comes with poor 
 grace from those who have shackled the House with the rules to complain 
 of their enforcement. 
 
 It may be and I have no doubt it is the fact that some of the 
 points of order that have been interjected during the course of this bill 
 have prevented reforms and economies, -but the House must realize that 
 in giving gentlemen the power to prevent the consideration of legislation 
 the House itself is responsible for that action and not the gentlemen who 
 undertake to exercise their rights. 
 
 Even, Mr. Chairman, though a member of the committee reporting 
 the bill should rise to interpose a point of order, gentlemen are inclined 
 to criticise him seriously for that action. I am not at all in sympathy 
 with that prevalent feeling in this House, that committees are so impec- 
 cable, that they are so virtuous, that they are so wise, that when they 
 have determined by a majority vote that certain things should be reported 
 to the House it is high treason for any Member to exercise his right under 
 the rules to prevent, if he desires, the consideration of those matters in 
 violation of the rule. [Applause.] 
 
 I am not going to criticise my own committee. I believe that the com- 
 mittee has done its full duty in calling the attention of the House to abuses 
 that exist, and I am indifferent to what happens to any provision in this 
 
FINANCIAL LEGISLATION 331 
 
 bill. I will vote for each provision or against it, as my judgment dictates 
 that I should. I am perfectly willing that every other Member of this 
 House shall exercise freely all the rights that he has under the rules in 
 the consideration of this bill, and let each Member do as the committee 
 is compelled to do, assume the responsibility for his own action. When 
 that is done, Mr. Chairman, if it prevents reforms being made on this 
 bill, it may result in vitalizing some of the dead committees of the House. 
 It may result in effecting a reform by accomplishing it through the proper 
 machinery of the House, and there may no longer be the spectacle of 
 seventeen or eighteen committees organized for the purpose of working, 
 but existing merely to give places of refuge to the gentlemen fortunate 
 enough to be appointed as chairmen of these committees. 
 
 So I would say to my colleagues on the committee, in the best of good 
 nature, whatever be the course followed by these gentlemen or any other 
 gentlemen, and whatever may be the fate of any provision in the bill, 
 that we rest content in the knowledge that we have performed our duty, 
 and satisfied that everybody else is endeavoring to perform his accord- 
 ing to his best judgment and according to his rights. 
 
 Mr. SMITH of Arizona. Mr. Chairman, it seems to me that they have 
 gotten into a difficulty here that could be very easily and peacefully and 
 properly settled. Why does not this committee rise and report to the 
 House their inability to handle an appropriation bill, refer it to the Com- 
 mittee on Territories of this House, get a rule passed by the Speaker 
 and pass this bill, and don't let anybody read it? [Laughter.] What 
 is the use of talking about it and wasting time in this way ? Two millions 
 of people can be disposed of in twenty minutes' debate, and here you are 
 quibbling over what a clerk gets in some Department. I am ashamed 
 to see my friends forgetting how to attend to public business. [Laughter.] 
 They have got no business to consider this bill, anyway. It has come 
 to a point in the consideration of public business in this House that con- 
 sideration of a bill is folly. Why, you can not even send it over to the 
 Senate in a shape to suit you. This skeleton is going over there, and 
 the gentlemen who have been trying so hard to maintain the dignity of 
 this body will be crawling on their stomachs to the Senate to get these 
 items put back in the bill. Abuse it with the lips and serve it with your 
 hearts every minute when you want something done. [Applause.] That 
 is what will become of this bill. 
 
 Mr. PAYNE. Mr. Chairman, I am reluctant to take any of the time 
 of the committee, because I think this bill would have made much more 
 progress if there had been less debate upon the method of procedure of 
 some of the gentlemen in the House. Now, the House is amply able to 
 take care of itself, even without the aid of the Delegate from Arizona 
 [Mr. Smith], and to pass such legislation as the majority of the House 
 shall deem best to have passed and to defeat such legislation as the ma- 
 jority shall deem best to defeat. Of course, it is in the province of any 
 
332 
 
 AMERICAN FEDERAL GOVERNMENT 
 
 Member of the House in Committee of the Whole to raise a point of 
 order, and if the point of order is well taken, the chairman will promptly 
 rule. These rules are in the interest of economy, so far as they relate 
 to appropriation bills, in order that the Committee on Appropriations 
 or anyone else shall not come in here and create new offices unless it is 
 considered by the appropriate committee, the committee having that 
 legislation in charge. They are purposely framed so that any Member 
 can defeat any such attempt on the part of the Committee on Appro- 
 priations by raising the point of order, and it does not disturb me in 
 the least to see two gentlemen sitting here and raising points of order. 
 It has generally been the custom of the House, Mr. Chairman, in such 
 cases, for a gentleman to reserve the point of order on a provision in the 
 bill which he thought was out of order and which he could not see the 
 merit of until the item was explained, and if it was explained satis- 
 factorily to him, to waive the point of order and let it go in the bill; 
 but gentlemen have the right to insist upon the point of order. Now, 
 I hope they will insist to their hearts' content, and I hope that when 
 similar points of order are raised upon these items which must go out, that 
 the matter will be left speedily to the Chair to rule upon and to rule 
 whether they are in order or not, and with less debate upon each propo- 
 sition we can get through with the consideration of this bill in the Com- 
 mittee of the Whole, each Member finding out what he thinks ought 
 to be in and what he thinks ought to be out. Afterwards the House can 
 very easily pass the bill, and pass such a bill as the majority of the House 
 is in favor of, and no two Members or any number of Members less 
 than a majority of the House can prevent it ; we can do it with fair con- 
 sideration, and we can send a bill over to the Senate which does not 
 need to be deliberated upon by making a speech, when three or four 
 Members are present, of three or four hours in length; we can have 
 here when necessary the five-minute debate, when the Members can be 
 brought into contact with all the reasons for or against a single item in 
 the bill, and we can proceed in an orderly manner. 
 
 Gentlemen declaim against the rules of the House and they want a 
 sort of town meeting, where every one of 386 Members, clamoring for 
 recognition of the Speaker, shall each receive recognition at the same 
 time to make his motion or to make his speech. They want pandemo- 
 nium. The rules of the House, Mr. Speaker, are not the result of any 
 one man's work. They are the result of the experience of many more 
 years than most of us have ever seen either in the House or out of it. 
 They are the result of the best thought of the best men who have adorned 
 the halls of Congress in the past on both sides of the House. They were 
 made for the protection of the minority as well as for the advantage of 
 the majority in having its will preferably in this House. And no such 
 exhibition as has been made here to-day and no such declarations as 
 we have just heard from the gentleman from Arizona will change the 
 
FINANCIAL LEGISLATION 333 
 
 rules of the House. The rules of the House will remain after we have 
 left it and they will remain substantially as they are to-day, and the House 
 will transact its business under these rules in an orderly and proper 
 manner. I want to say that gentlemen who are opposing this bill will 
 finally see the bill pass in the shape that the majority of the House desire 
 it passed and it will go over to the Senate and they will perform their 
 functions upon it by way of amendment. 
 
 SPECIAL RULE ON THE LEGISLATIVE, EXECUTIVE, AND 
 JUDICIAL APPROPRIATION BILL 1 
 
 [In order to save the Legislative, Executive, and Judicial Appropriation Bill 
 from ruin, the committee appealed to the Committee on Rules which came to 
 the rescue on March 28, by reporting a resolution which marks a great ad- 
 vance in the power of centralized leadership in the House. The special rule, 
 as will be seen, virtually cut off any further right on the part of members to 
 enter objections against the bill under consideration. This action illustrates 
 perfectly how absolutely the procedure of the House is controlled by the Com- 
 mittee on Rules. This special rule and the discussions thereon are of the highest 
 importance to an understanding of our Congressional procedure.! 
 
 MR. DALZELL. Mr. Speaker, I submit the following privileged report 
 from the Committee on Rules. 
 
 The SPEAKER. The gentleman from Pennsylvania submits a report 
 from the Committee on Rules, which the Clerk will read. 
 
 The Clerk read as follows: 
 
 The Committee on rules, to whom was referred the resolution of the House 
 No. 383, have had the same under consideration and respectfully report in lieu 
 thereof the following: 
 
 Resolved, That hereafter, in consideration of the bill (H. R. 16472) making 
 appropriations for the legislative, executive, and judicial expenses of the Gov- 
 ernment, and for other purposes, in Committee of the Whole House on the 
 state of the Union, it shall be in order to consider, without intervention of a 
 point of order, any section of the bill as reported, except section 8 ; and upon 
 motion authorized by the Committee on Appropriations it shall be in order to 
 insert in any part of the bill any provision reported as part of the bill and 
 heretofore ruled out on a point of order. 
 
 Mr. DALZELL. Mr. Speaker, on that I ask the previous question. 
 
 Mr. SULZER. Mr. Speaker, I should like to have some explanation in 
 regard to this rule. It seems to be a very extraordinary departure from 
 the general rules of the House. 
 
 Mr. DALZELL. I do not wish to discuss the rule until after the previous 
 question is ordered, because any debate before the ordering of the pre- 
 vious question would cut off all debate thereafter. 
 
 1 Congr. Record, March 28, 1906. 
 
334 AMERICAN FEDERAL GOVERNMENT 
 
 The SPEAKER. The gentleman from Pennsylvania moves the pre- 
 vious question upon agreeing to the resolution. 
 
 The question being taken, on a division (demanded by Mr. Dalzell) 
 there were ayes 1 20, noes 7 1 . 
 
 Accordingly the previous question was ordered. 
 
 The SPEAKER. The gentleman from Pennsylvania is entitled to 
 twenty minutes, and the gentleman from Mississippi [Mr Williams] to 
 twenty minutes. 
 
 Mr. DALZELL. Mr. Speaker, I shall occupy but a very brief time in 
 explanation of the rule. 
 
 The House is familiar with the fact that in the consideration of the 
 legislative appropriation bill in Committee of the Whole a great many 
 paragraphs have been stricken out by reason of an appeal to the rule 
 of the House which prevents legislation on appropriation bills. The 
 trouble has been mainly with respect to the number of employees pro- 
 vided for in the bill and with respect to the salaries of employees. The 
 point of order has been made that employees not provided for by exist- 
 ing law are included in the bill and that salaries not provided for by ex- 
 isting law are included in the bill ; and it is fair to say that it seems to 
 me that in all cases the point of order has been well taken. 
 
 The difficulty with which the House is confronted arises out of the 
 fact that the law fixing the number of employees and the salaries of 
 employees in the various Departments is in most cases an old law, in 
 some cases as old as thirty years, and, of course, during the passage of 
 those thirty years the service of the Government has largely increased, 
 the necessity for new employees has arisen, and the necessity for changes 
 of salary has arisen. Those changes ought to have been made by general 
 law. The fault lies not wholly with the Committee on Appropriations, 
 but largely with the various committees of the House, who ought to have 
 secured the passage of general laws which would authorize the Commit- 
 tee on Appropriations to insert these provisions in the appropriation bill. 
 A custom, . however, has grown up during all these years not to make 
 points of order upon items in the appropriation bill which were recog- 
 nized by the House as appropriate under the circumstances, and the 
 custom therefore has justified the Committee on Appropriations from 
 year to year in putting into the appropriation bill these increases of salary 
 and these increases of appropriation. As I say, the fault lies with the 
 committees of the House, who ought to have provided general legisla- 
 tion. In illustration of that proposition, let me call your attention to 
 what appears on two pages of the Record. An appropriation in this bill 
 for the employees at New Orleans went out on a point of order because 
 it infringed a provision of existing law on the subject. That provision 
 was over thirty years old; nevertheless, during all these thirty years 
 since its enactment, without any additional legislation, appropriations 
 corresponding to this have been made by the sufferance of the House. 
 
FINANCIAL LEGISLATION 335 
 
 Now, on the opposite page of the Record, you will find a like appropria- 
 tion for employees at New York, but that did not go out on a point of 
 order, because there appears on the statute book this provision : 
 
 The assistant treasurer at New York may appoint from time to time, by and 
 with the consent and approbation of the Secretary of the Treasury, such other 
 clerks, messengers, and watchmen, in addition to those employed by him, as 
 the exigencies of the business may require. 
 
 In other words, we ought to have, to avoid the confusion into which 
 we have fallen in this case, such general legislation upon the statute 
 books. It is apparent, however, that the House can not now stop, the 
 business of the country can not be held up, because of the lack of this 
 general legislation. The Government needs must be met, and therefore 
 the only way in which the present needs of the Government can be met 
 is by the adoption of this rule. 
 
 The rule provides that these items which have already gone out on 
 points of order may be inserted at the will of the House. In other words, 
 it submits to the House the right to say whether or not upon the merits 
 the items shall go into the bill. The rule also provides that, as to the 
 items not yet reached, they shall be passed upon on their merits irrespec- 
 tive of the technical rule; all except section 8, which relates to super- 
 annuated clerks, so called. Your committee felt that that was a piece 
 of legislation that was entitled to be considered by the House as a sepa- 
 rate proposition, and therefore that is excepted from the operation of 
 the rule. 
 
 Mr. CURTIS. Under the rule that section would be subject to a point 
 of order? 
 
 Mr. DALZELL. Yes. 
 
 Mr. CURTIS. I think that provision unfair to the clerks who have 
 devoted many years to the service, many of whom were Union soliders, 
 and it should be stricken from the bill. 
 
 Mr. JONES of Washington. The rule does not make anything in order 
 that may be offered to be inserted by a Member? 
 
 Mr. DALZELL. No; it does not make anything in order except what 
 was reported by the Appropriation Committee and an amendment to 
 it which would be germane. 
 
 Mr. JONES of Washington. Does n't the gentleman think that the 
 Members of the House ought to be allowed to offer amendments to be 
 considered on their merits? 
 
 Mr. DALZELL. They will have that privilege. 
 
 Mr. JONES of Washington. If subject to a point of order, they would 
 go out. 
 
 Mr. DALZELL. They would go out anyway. 
 
 Mr. MANN. Under this rule the amendment which the Committee on 
 Appropriations offers that is, to increase the salaries is in order. 
 
336 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. DALZELL. If it is in the bill. 
 
 Mr. MANN. Whether it is in the bill or not, if the committee reports 
 it, it is in order. 
 
 Mr. DALZELL. Only as reported in the bill. 
 
 Mr. MANN. In that case, then, the amendments offered by any Mem- 
 ber of the House to increase that amount would necessarily be in order. 
 
 Mr. DALZELL. But subject to a legitimate point of order, of course. 
 
 Mr. MANN. If the proposition offered by the Committee on Appro- 
 priations is in order, an amendment to that proposition is also in order. 
 
 Mr. DALZELL. I should say so. 
 
 Mr. NORRIS. I would like to ask the gentleman from Pennsylvania 
 if the Committee on Appropriations puts in the bill an appropriation for 
 a salary, for instance, greater than that allowed by existing law, it would 
 not be subject to a point of order; but if a Member on the floor of the 
 House offers an amendment that increases the salary in the bill greater 
 than that allowed by existing law, that would be subject to a point of 
 order ? 
 
 Mr. DALZELL. Not if the amendment was to a paragraph in the bill 
 that under the rule was not subject to a point of order. 
 
 Mr. NORRIS. So that the gentleman may understand my proposition 
 suppose it makes an appropriation for a salary that is in exact accord- 
 ance with existing law, and a Member on the floor of the House offers 
 an amendment to increase it beyond that limit, would that be in order ? 
 
 Mr. DALZELL. I should think not ; I should think it would be subject 
 to a point of order. If the committee's proposition was in accordance 
 with the law, and the amendment not in accordance with the law, I 
 should think it would be subject to a point of order. 
 
 Mr. NORRIS. In other words, the committee can propose amendments 
 that go beyond existing law, but Members of the House can not. This 
 privilege exists only in favor of the committee. In other words, it is a 
 rule that does not work both ways. 
 
 Mr. DALZELL. Not at all. It is a fule that allows the bill as reported 
 by the Committee on Appropriations to be considered without being 
 subject to points of order, except as to section 8. That is all it is. 
 
 Mr. WM. ALDEN SMITH. It is to be considered on its merits. 
 
 Mr. DALZELL. In other words, it submits to the House the bill as 
 reported by the Committee on Appropriations on its merits. The com- 
 mittee may vote on each proposition without respect to points of order 
 upon the merits of the proposition. 
 
 Mr. BROOKS of Colorado. Mr. Speaker, to be more specific on the 
 question asked by the gentleman from Nebraska [Mr. Norris], then if 
 the committee has reported an item which is entirely legal, or an amend- 
 ment, and the House by amendment attempts to change that in any 
 way, that proposition is open to a point of order. 
 
 Mr. DALZELL. Not unless it is against the law. 
 
FINANCIAL LEGISLATION 
 
 337 
 
 Mr. BROOKS of Colorado. In any way, so that it .transgresses the 
 rules. 
 
 Mr. DALZELL. For instance, if there is an amount named in the bill, 
 that is subject to amendment. 
 
 Mr. BROOKS of Colorado. One further question. Then if the com- 
 mittee has reported an item which if objected to would go out on a 
 point of order, that item may be further amended also in the direction 
 that would have been, without the rule, open to a point of order. 
 
 Mr. DALZELL. I think so; yes. 
 
 Mr. FITZGERALD. Mr. Speaker, will the gentleman yield to a question ? 
 
 Mr. DALZELL. Yes. 
 
 Mr. FITZGERALD. Did the Committee on Rules proceed upon the 
 theory that the Committee on Appropriations was unanimously in favor 
 of having considered in this way all of the legislative provisions except- 
 ing section 8? 
 
 Mr. DALZELL. I do not understand the gentleman's question. 
 
 Mr. FITZGERALD. Did the Committee on Rules proceed upon the 
 assumption that the Committee on Appropriations was unanimous in 
 desiring to have all of the legislative provisions considered in this way 
 excepting section 8 ? 
 
 Mr. DALZELL. Why, we did not think anything about what the Com- 
 mittee on Appropriations wanted especially. 
 
 Mr. FITZGERALD. I think the gentleman did, because his rule pro- 
 vides that all the things reported in the bill by the Committee on 
 Appropriations shall be considered regardless of the rules, excepting sec- 
 tion 8. Now, there are several other distinctively legislative provisions 
 in the bill not excepted by the rule, but to which there was objection in 
 the committee, about which notice was given that points of order would 
 be interposed and which this rule takes out of the operation of the rules 
 of the House. I would ask the gentleman to explain why the Committee 
 on Rules singled out one legislative provision and not other legislative 
 provisions equally offensive? 
 
 Mr. DALZELL. Because we thought that that one legislative provision 
 was so radical in its character, so much more radical than any of the 
 others, that it ought to have separate consideration in the ordinary way. 
 
 Mr. Speaker, I reserve the balance of my time. How much more 
 time have I? 
 
 Mr. BARTLETT. Mr. Speaker, I would like to ask the gentleman a 
 question. 
 
 The SPEAKER. The gentleman has seven minutes remaining. 
 
 Mr. DALZELL. Then, Mr. Speaker, I reserve the balance of my time. 
 I can not yield any more. 
 
 Mr. WILLIAMS. Mr. Speaker, the object of this rule is to make points 
 of order which are in order under the rules of the House out of order 
 under this rule. It is an apt illustration and object lesson, indeed, of 
 
338 AMERICAN FEDERAL GOVERNMENT 
 
 the defectiveness of the rules of the House. I shall not consume the 
 time of the committee by arguing that question. Others want to be 
 heard, and I shall yield to them. I now yield five minutes to the gentle- 
 man from Illinois [Mr. Prince]. 
 
 Mr. BARTLETT. Mr. Speaker, may I ask the gentleman from Missis- 
 sippi a question before he sits down ? 
 
 Mr. WILLIAMS. Mr. Speaker, I do not want to consume any time if 
 I can help it. I desire to yield to others. 
 
 The SPEAKER. The gentleman from Illinois is recognized for five 
 minutes. 
 
 Mr. PRINCE. Mr. Speaker, the whole trouble that the House is now 
 in is due to paragraph 2 of Rule XXI of the House of Representatives, 
 which is as follows: 
 
 No appropriation shall be reported in any general appropriation bill, or be 
 in order as an amendment thereto, for any expenditure not previously author- 
 ized by law, unless in continuation of appropriations for such public works 
 and objects as are already in progress; nor shall any provision changing exist- 
 ing law be in order in any general appropriation bill or in any amendment 
 thereto. 
 
 The honorable gentleman from Pennsylvania [Mr. Dalzell], who has 
 just taken his seat, says the points of order have been well taken. So 
 much for the obstructionists. The points of order have been well taken. 
 Now, what does the chairman of the committee say? On page 4281 of 
 the Congressional Record of March 23, 1906, Mr. Tawney says: 
 
 If this rule is to be enforced, then more than one-half of the provisions of 
 this bill will have to go out. 
 
 Properly taken ! More than one-half of it is to go out ! What is the 
 rule? "No appropriation shall be reported" confessedly in order 
 are these supposed obstructionists. "The points of order are well taken," 
 says the gentleman from Pennsylvania. The chairman of the committee 
 says that half of it will go out. Why did he knowingly, willfully, de- 
 liberately, and flagrantly violate the rules of this House to bring in a 
 bill of which he himself says one-half would go out on points of order 
 if they were made? Now, then, let us turn to the effect of the rule. 
 Here is a rule that applies to one Committee on Appropriations. How 
 many appropriation bills are there, gentlemen of the House ? 
 
 Look at your Calendar of date March 26, 1906, and you. find the fol- 
 lowing: Urgent deficiency; pensions; fortifications; Army; Indian; 
 legislative, executive, and judicial ; post-office; agricultural; diplomatic 
 and consular; District of Columbia; general deficiency; Military 
 Academy; naval; public buildings; rivers and harbors, and sundry 
 civil appropriation hills sixteen appropriation bills in this House. 
 
FINANCIAL LEGISLATION 339 
 
 If this provision is good for one committee, why is it not good for every 
 committee that passes appropriation bills in this House? [Applause.] 
 Will you tell me ? I say now, and wait for answer, if the Committee on 
 Rules will make this special a general rule that will apply to every ap- 
 propriation committee of this House I will vote for the rule now. Will 
 you do it? What answer have you to make to these other committees 
 that you single out one as against ten others ? 
 
 What is your reply for doing it when you confessedly admit your bill 
 is out of order, when you confessedly admit every point of order that 
 has been made against the bill is in order and under the rules of this 
 House? Now, who have passed upon the objections? Two honorable 
 Members of this House, none higher in the estimation of this body than 
 those two, sitting day in and day out in the chair as Chairman of the 
 Committee of the Whole House on the state of the Union. The honor- 
 able gentleman from Pennsylvania [Mr. Olmsted] held time after time 
 that practically every one of those points of order are in order, and the 
 provisions had to go out. They changed horses for a few minutes, and 
 the distinguished Member from New York [Mr. Payne] took the chair, 
 and he held likewise upon these very same provisions. Where is the 
 obstruction ? Now, gentlemen of the House, let me say this to you, that 
 we are all here as Members. You have heard me ask the Committee 
 on Rules if they will make this rule a general rule to apply to your com- 
 mittees on which you are serving and the committees on which I am 
 serving. They have not said they would do it. What will you say to 
 your constituents? Will you vote for a special rule which allows the 
 increases of salaries, changes existing law, and enacts new and original- 
 legislation ? What will you say to the committees of which you are mem- 
 bers, over which have presided for more than a hundred years some of 
 the most distinguished men who have sat in this body 
 
 The SPEAKER. The time of the gentleman has expired. 
 
 Mr. PRINCE. I ask leave to extend my remarks if I so desire. 
 
 The SPEAKER. The gentleman from Illinois asks unanimous consent 
 to extend his remarks in the Record. Is there objection ? [After a pause.] 
 The Chair hears none. 
 
 Mr. WILLIAMS. Mr. Chairman, I now yield five minutes to the gentle- 
 man from Missouri [Mr. De Armond]. 
 
 Mr. DE ARMOND. Mr. Speaker, I am one of those who are not opposed 
 to suitable legislation upon an appropriation bill. I am opposed, how- 
 ever, to this way of getting at that legislation. It would be very easy, 
 as matters now stand, to have every item in this appropriation bill con- 
 sidered by the committee and by the House. Of course, when the point 
 of order is made it is the duty of the presiding officer to rule upon that 
 point of order, under the rules. A point of order against new legislation 
 on a bill like this is a good point, and under the rules, the presiding officer 
 has to sustain it. Now, when the point of order is sustained, if there be 
 
340 AMERICAN FEDERAL GOVERNMENT 
 
 real occasion for the legislation proposed, what is the reason that the 
 chairman of the subcommittee on appropriations, or the chairman of 
 the Committee on Appropriations, or any other gentleman favoring the 
 proposed legislation, should not frankly admit that the proposition is 
 obnoxious to the rules, but that, owing to its merits, owing to the necessity 
 for legislation at the time and of the kind proposed, the rule as to that 
 item ought to be set aside and the particular matter proposed ought to 
 be enacted into law? Upon that proposition, with a majority of those 
 present sustaining it, the item would remain in or go into the bill. Now, 
 that is a very much safer and a very much better way of proceeding than 
 by a wholesale rule, an omnibus rule. While undoubtedly there are 
 good provisions offered in this bill which are not in accord with existing 
 law, it probably is not saying too much to say that there are also bad 
 provisions offered, also not in accordance with existing law. In the case 
 of a good provision, a necessary provision, upon appeal to the House it 
 is reasonable to believe that the House would sustain the appeal, and 
 would enact the good provision would put it into the bill or retain it 
 in the bill. 
 
 Every provision offered in the way of new law, everything obnoxious 
 to the rules of the House, is protected and covered by this rule; every- 
 thing suggested by the Committee on Appropriations and incorporated 
 in the bill, including those items that were opposed and knocked out 
 all are legitimized. Provisions already eliminated are to be brought 
 forward, and no point of order shall be tolerated against any of them 
 or against anything in the bill except section 8, when, no matter how 
 meritorious a proposition offered from the floor may be, the rules may 
 be invoked against it; and if it be a change of existing law, or a pro- 
 posed change of existing law, it must be denied consideration. 
 
 This rule is neither in the interest of good legislation, nor is it fair. 
 Allow the rules to stand, if you will ; you made them, made them without 
 consideration, without giving opportunity for any particular considera- 
 tion. When you see proper to set aside one of them, or any order of this 
 House with reference to any particular piece of legislation, appeal direct 
 to the judgment of the House, and if the judgment of the House sustains 
 you the rules will be waived for the time being, and the meritorious piece 
 of legislation will be incorporated in the bill; and let that apply not 
 only to the Committee on Appropriations that one committee to be 
 singled out for favor over all other committees but let it apply to all 
 the other committees, and let it apply also to the entire membership of 
 the House. Whenever a proposition is offered from anywhere and ruled 
 out as new legislation, if the proponent of it, or anybody else, sees proper 
 to ask the judgment of the House upon this proposition, and if the ma- 
 jority see proper to incorporate it, let the rules be then and there set 
 aside as to that matter, and let it be incorporated. There is neither 
 necessity for nor propriety in this rule ; it is dangerous in its tendency, 
 
FINANCIAL LEGISLATION 341 
 
 and will be bad in its effect. [Loud applause on the Democratic 
 side.] 
 
 Mr. WILLIAMS. I will ask the gentleman from Pennsylvania to con- 
 sume some of his time. 
 
 Mr. DALZELL. I propose to close on this side. 
 
 The SPEAKER. The gentleman from Pennsylvania has seven minutes 
 and the gentleman from Mississippi ten minutes. 
 
 Mr. WILLIAMS. I yield five minutes to the gentleman from Georgia 
 [Mr. Hard wick]. 
 
 Mr. HARDWICK. Mr. Speaker, it is perfectly apparent that one of 
 two things is true. Either the bill is wrong or the rule is wrong. If the 
 rule is wrong, this bill ought to pass, and the rule ought to be repealed ; 
 and if the rule is wrong, then the rule ought to be repealed, so that any 
 bill can pass. 
 
 I do not think, Mr. Speaker, that there has ever been in the legislative 
 history of the country such a measure proposed as that contained in this 
 rule. I want to make the statement here in my place that never before 
 in the history of the American Congress has such a proposition been 
 made to any House of Representatives as that contained in this rule. 
 There are two or three precedents in which the Committee on Rules 
 have taken some one single proposition and passed a rule to make a matter 
 in order when a point of order would lie against it and had been urged 
 against it. In the second session of the Fifty-second Congress such a 
 provision was made by the Committee on Rules on one single proposi- 
 tion, namely, the creation of a commission to investigate the various 
 Executive Departments of the Government. In the last session of the 
 Fifty-eighth Congress we had another rule from the committee, authoriz- 
 ing the committee to consider an increase in the salary of the rural 
 carriers, and we had the same proposition at the second session of the 
 Fifty-seventh Congress on a bill providing for the levying of a personal 
 tax in the District of Columbia. Each one of these propositions was 
 segregated and distinct, and the House of Representatives understood 
 what it was voting for. Now, in this proposition, by this omnibus rule, 
 we are offered what? To make everything in order, involving forty- 
 seven separate paragraphs, involving a general increase of appropria- 
 tions ; thirty-eight separate paragraphs, involving different amounts of 
 increase of salary ; in other words, in my humble judgment and 
 I have investigated it to some extent you are proposing by this rule to 
 legalize about seven hundred things that would not be legal if this rule 
 did not pass. 
 
 No member of the Committee on Rules and no Member of this House 
 who votes for this rule will know what on earth he is voting for. Now, 
 if we are going to let the Committee on Appropriations have certain 
 special rights to pass any legislation as riders on appropriation bills 
 new legislation let us have the same rights for everybody. Why 
 
342 AMERICAN FEDERAL GOVERNMENT 
 
 should we not ? I want to call the attention of the House to the fact that 
 during the progress of the consideration of the pending bill, the gentle- 
 man from Mississippi [Mr. Humphreys] arose and asked that the House 
 be allowed to vote on a simple proposition, viz., that the internal-revenue 
 offices of the Government should be required to furnish certified copies 
 of their records to any coordinate court, State or Federal, to be used as 
 evidence, as to what licenses had been taken out for the sale of liquor. 
 That proposition had been recommended by the unanimous vote of 
 just as strong a committee as the Appropriations Committee, to wit, 
 the Ways and Means Committee; and yet the gentleman from New 
 York [Mr. Littauer], in charge of this bill, made the point of order against 
 that and insisted upon it. Now, I say this is not fair. There are good 
 reasons why riders putting new legislation to appropriation bills ought 
 not to be allowed. Under the rules of the House 100 Members constitute 
 a quorum in Committee of the Whole, and fifty-one Members may, if 
 this sort of thing be kept up, enact all sorts of legislation. Indeed, I 
 have seen thirty-six members of the Committee of the Whole decide a 
 question, less even than a quorum of the committee. But even if the 
 rules are invoked, fifty-one Members less than one-seventh of the 
 membership of the House can decide a question in committee. There 
 are good reasons back of Rule XXI and it ought to be enforced. I 
 understand the Senate has no such rule, and it may be that when these 
 propositions are meritorious they will be restored in the Senate. With 
 that I am not concerned ; but I say that our general rule is a good one and 
 it ought to be enforced, and that it ought not to be varied simply because 
 certain gentlemen want to pass legislation to suit themselves, or because 
 a certain committee wants to do about seven hundred things that the 
 law will not allow them to do, in their own way. [Applause.] 
 
 Mr. WILLIAMS. Mr. Speaker, I now yield three minutes to the gentle- 
 man from New York [Mr. Driscoll]. 
 
 Mr. DRISCOLL. Mr. Speaker, this is a very extraordinary method of 
 attempting to pass a very ordinary bill. A measure similar to this, mak- 
 ing appropriations for the legislative, executive, and judicial expenses 
 of the Government, is passed every year without any unusual friction 
 and without appealing to the Committee on Rules for assistance. This 
 bill was debated during several days, and when the reading was com- 
 menced under the five-minute rule the Committee on Appropriations 
 found itself in trouble. Subdivision 2 of Rule XXI of the Rules of the 
 House of Representatives is as follows: 
 
 No appropriation shall be reported in any general appropriation bill, or be 
 in order as an amendment thereto, for any expenditure not previously author- 
 ized by law, unless in continuation of appropriations for such public works 
 and objects as are already in progress; nor shall any provision changing exist- 
 ing law be in order in any general appropriation bill or in any amendment 
 thereto. 
 
FINANCIAL LEGISLATION 343 
 
 A few Members of this House on both sides of the Chamber examined 
 the bill with considerable care and they found that this rule of the House 
 was violated in almost every section ; that many appropriations of small 
 and large amounts were reported in the bill which were not previously 
 authorized by law, and that there were in it several provisions changing 
 existing law. These were all obnoxious to the rule and liable to be 
 stricken out on points of order. The gentlemen who examined the 
 statutes and this bill commenced to raise these points of order against 
 increases of salaries and clerks and other provisions increasing expendi- 
 ture, and also against the new provisions changing existing law. In my 
 judgment, those gentlemen who have given much time and attention to 
 this matter and have sat here day after day insisting that the rule be 
 observed have been rendering a signal service, not only to the other 
 Members of this House, but to the country. For their courage or temer- 
 ity, if we may so describe it, they are entitled to great credit, because 
 there is altogether too much of "you tickle me and I'll tickle you" in 
 this appropriation business. That is why the expenditures increase from 
 year to year, and it is practically impossible to keep them down. Not 
 every Member, especially if there is in the appropriation bill some bene- 
 fit for his district or constituents, wishes to object to any other appropria- 
 tion, no matter how extravagant or unreasonable. Therefore these 
 gentlemen are entitled to the thanks of the country for their courageous 
 and unselfish action in behalf of the Treasury. 
 
 After a few objections of this character were made the distinguished 
 chairman of the Appropriations Committee, in an able and vigorous 
 speech, undertook to criticise and censure those gentlemen for objecting, 
 and attempted to arouse public sentiment in the House against them. 
 In this he failed, for they continued to raise points of order, which were 
 sustained by the Chair. The gentleman from New York, who has 
 charge of this bill, undertook to lash one of the objectors the gentle- 
 man from Illinois [Mr. Prince] into silence by twitting him about a 
 little crumb of patronage in the form of a janitorship. This did not 
 avail, and later on another member of the Appropriations Committee 
 took the floor, raised the white flag of truce, and, in a most conciliatory 
 address, sued for peace ; and that failed to accomplish the object desired. 
 Now, these gentlemen throw up their hands and surrender at discretion, 
 and acknowledge that they can not pass an ordinary appropriations 
 bill under the ordinary rule which has obtained for many years, and 
 have applied to the all-powerful Committee on Rules for a special rule 
 or resolution giving them extraordinary powers and privileges. Why? 
 Is it claimed that the Chairman of the Committee of the Whole House 
 who presides during the consideration of this bill is unfair or partial? 
 He has had before him the book of rules, and has ably and honestly 
 applied them to each point of order raised ; and a gentleman stands at 
 his elbow who writes and revises the book, and who the Speaker said 
 
344 AMERICAN FEDERAL GOVERNMENT 
 
 could give any 7 man on the floor of the House cards and spades and beat 
 him in parliamentary law. Now, what is the trouble? The gentlemen 
 in charge of this bill do not assert that they have not received fair treat- 
 ment in the consideration and application of the rule, and admit that a 
 very large part of this appropriation bill will have to be stricken out if 
 the rule be insisted on. The conclusion is forced on every Member of 
 this House that the rule is a very bad one, or the bill is a very bad one. 
 If the rule is insufficient and antiquated, let it be amended or repealed. 
 If the rule is a good one, let it be applied. If the bill is an extravagant 
 one, let it be trimmed down to come within the limitations of the law. 
 
 That is the best way to determine whether it is a good or bad measure. 
 And the best way to determine whether a rule or law is good or bad is 
 by its enforcement. Let the law be applied. Let the rule be enforced. 
 Let the balance of this bill be read, and let the gentlemen who are rais- 
 ing points of order continue to do so and hew to the line and let the chips 
 fall where they may. When it is concluded the country at large will be 
 informed how much of this bill is in violation of law, how much of it 
 represents extravagance, and how much of it is padded, and the Members 
 of this body will be enlightened as to the wisdom of maintaining the rule. 
 
 In ordinary proceedings in this House this rule is invoked more per- 
 haps than any other, and we have from time to time been told that for 
 the proper discharge of business and for the sake of economy and wise 
 legislation, it is necessary and should be maintained in its full force and 
 vigor. If any Member of the House suggested to the Appropriations 
 Committee that the number of clerks in a bureau be increased or the 
 salary of any employee be advanced, and it did not suit them, he was 
 told very politely that it was unauthorized by existing law and would be 
 stricken out on a point of order, and he subsided gracefully in deference 
 to the rule. These gentlemen, who have disposed of so many applica- 
 tions by invoking the rule, should be the last to seek relief from the 
 force of its application. They should be willing to take their own 
 medicine. 
 
 There are perhaps fifteen other committees of this House who bring 
 in appropriation bills and are expected to have them enacted into law. 
 Why should this rule be suspended as to this committee and this appro- 
 priation bill and enforced as to all the others ? If a good rule, why should 
 it not be enforced as to all ? If a bad rule, why should it not be suspended 
 as to all? 
 
 There are 386 Members of this House, and only 17 of them are on 
 the Appropriations Committee. Under this special resolution or rule 
 sought to be adopted here no further points of order can be raised. No 
 objections can be made no matter how many appropriations there are 
 in it which are unauthorized by existing law. Thus the Appropriations 
 Committee will be permitted to submit to the consideration of the House 
 all amendments they have inserted in the bill which will increase salaries 
 
FINANCIAL LEGISLATION 345 
 
 
 
 and employees, while if any other Member offers an amendment for the 
 same purpose, it will be ruled out on a point of order. If you insist on 
 suspending this rule in its application to the Appropriations Committee, 
 why not suspend it in its application* to all the Members and let each of 
 them have the same privilege of offering amendments whether within 
 the provisions of existing law or not? Why should not each Member 
 have the privilege and opportunity of offering an amendment and having 
 it considered on the merits without being ruled out on a point of order, 
 which privilege and opportunity will be accorded the Appropriations 
 Committee under this proposed resolution? The ordinary Member of 
 the House is sufficiently hampered and circumscribed already. Many 
 of you have been complaining and wincing under the application of the 
 rules in force. If you adopt this resolution, you will surrender one of 
 the prerogatives vouchsafed you. You will tie yourselves hand and foot 
 and deliver yourselves bound and gagged into the power of the Appro- 
 priations Committee. So far as practical results go, you may as well go 
 home and send so many wooden Indians in your places. [Applause.] 
 
 This proposed legislation should not be adopted. We should stand 
 by the rule in force, which seems to have served its purpose pretty well 
 in the past and avoided much unnecessary extravagance. This seems 
 to be a " stand-pat" Congress. Only yesterday the distinguished gentle- 
 man from New York, chairman of the Committee on Ways and Means, 
 in a very able and eloquent address, notified the Members of this House 
 and the whole country that there will be no revision of the tariff schedules ; 
 that this House will stand pat. For the sake of consistency, for the sake 
 of economy in the public service, and for the protection of our own rights 
 and dignity as individual Members of this body let us "stand pat" on the 
 existing rule and reject this resolution. 
 
 The SPEAKER. The time of the gentleman has expired. 
 
 Mr. WILLIAMS. I yield the two remaining minutes to the gentleman 
 from New York [Mr. Fitzgerald]. 
 
 Mr. FITZGERALD. Mr. Speaker, while I have no sympathy with the 
 action of the gentlemen who have been taking matters out of the legis- 
 lative bill without regard to their merits, yet I do not favor this rule. 
 It is more sweeping in its character than I have been able to find in a 
 search of the precedents. It makes it possible to keep in this bill inde- 
 fensible increases of salary for favorites of some men in this House, 
 while those who are without influence are ignored entirely. The com- 
 mittee, indeed, might be said to have been tyrannical in reporting this 
 bill, because, in defiance of the rules, points of order submitted in com- 
 mittee were ignored, although the rules of the House are binding there, 
 and matters that should not be in the bill are in it and are going to be 
 continued in it under this rule. There are other legislative provisions 
 equally indefensible, equally offensive, equally as important for separate 
 consideration as section 8; and yet the Committee on Rules, without 
 
346 AMERICAN FEDERAL GOVERNMENT 
 
 
 
 knowing what is in the bill, includes the good with the bad and compels 
 the House to consider on this bill provisions with which few of the 
 Members are familiar. 
 
 If this rule was framed so that* these matters of importance the 
 matters that had real merit would be considered in this way, I would 
 gladly support this rule, but unless this rule is so framed that other 
 committees with appropriating powers are permitted to report legisla- 
 tion and have it considered, the exception should not be made in this 
 case. 
 
 This rule Rule XXI, under which the points of order have been 
 made is of great importance and value, having originated in 1837, 
 or else it is absolutely worthless. If it is worthless, it should be modified 
 to meet the changed conditions. In my judgment, the action of these 
 two gentlemen, of which complaint is made, while it has done great harm 
 in some instances, yet they have effected considerable good in the position 
 they have taken during the past few days. It would be an extraordinary 
 thing to permit the Committee on Appropriations, of which I happen 
 to be a member, to say that increases of salaries for certain persons should 
 be considered in order on the legislative bill while increases for other 
 men who have no friends could not be considered. [Applause.] 
 
 Mr. DALZELL. Mr. Speaker, I now yield the balance of my time to the 
 gentleman from Ohio [Mr. Grosvenor]. 
 
 Mr. GROSVENOR. Mr. Speaker, the rule of the House which has 
 been so often invoked by the gentleman from Georgia [Mr. Hardwick] 
 and the gentleman from Illinois [Mr. Prince] is an old and time-honored 
 rule of the House. It was not made by a Republican House ; it originated 
 in a Democratic House. I found it in active operation when I came 
 here twenty years ago, and it has been pretty effectually enforced ever 
 since. On the present occasion I wish first to state, so that the Mem- 
 bers of the House will not be misled, that the proposed rule operates 
 upon provisions subject to a point of order made against them in the 
 pending bill in this way: In the first place, it leaves exactly where we 
 find it all that part of the bill which relates to aged or superannuated 
 clerks that has gone out of the bill, and it is not proposed to put it back 
 into the bill by the operation of this rule. 
 
 Mr. KEIFER. That provision has not yet gone out. 
 
 Mr. GROSVENOR. It has gone out under the rules as effectually as if 
 it had never been put in. The various rulings of the Chair have that 
 effect. Now, what next? The next operation is to make it in order 
 that the other provisions of the bill, to which exceptions have been taken 
 and which have been sustained by the Chairman, will still be in order, 
 but subject to the action of the House upon each one of these pro- 
 visions separately. So that a majority of the Committee of the Whole 
 House can either adopt one of these provisions, or amend one of 
 these provisions, or reject it altogether. It simply affords the House 
 
FINANCIAL LEGISLATION 347 
 
 the full opportunity to pass upon every one of these objectionable 
 provisions. 
 
 Mr. Speaker, the Committee on Appropriations, after very careful 
 study, apparently and I think I may safely say so have brought 
 here a provision that looks to me, and, I think, looks to gentlemen even 
 on the other side, as a proposition of great improvement, as it will com- 
 pletely reorganize certain of the clerical forces of the various Depart- 
 ments here. It is true it comes here without the sanction of the rule of 
 the House. The gentleman from Illinois [Mr. Prince] seems to take it 
 for granted that to bring a bill into the House with a paragraph or sec- 
 tion in it obnoxious to the rule of the House is a sort of parliamentary 
 crime, a crime for which the Committee on Appropriations ought to be 
 indicted. Why, I have never known of an appropriation bill of any 
 considerable length that did not have some provision in it that was held 
 by the Chairman to be obnoxious to the rule that has been invoked here 
 against provisions of the pending bill. 
 
 Mr. Speaker, here is what we have got to meet: We must abandon 
 our proposition of reform and improvement and send a bill to the Senate 
 that would be disgraceful to the House of Representatives a bill that 
 does not and would not provide for any considerable completeness in 
 the appropriations or else, having ascertained what ought to be done, 
 we temporarily set aside this rule for the purpose of doing exactly 
 what the House of Representatives will decide ought to be done. 
 It is not a revolutionary proposition; it is a proposition looking to 
 the action of the House itself, an action which they may just as well 
 take in this form as to take it in some other form. How can you 
 get this proposition before the House anywhere else during this session 
 of Congress than in an appropriation bill and in this appropriation bill ? 
 
 There is a large number of appropriations for salaries of clerks em- 
 ployed in the various bureaus of the Government that have gone out of 
 the bill under the ruling of the Chair, which was a proper ruling and had 
 to be made. Now, shall we stumble about here and act unwisely and 
 inconsiderately, or shall we take up these amendments one by one and 
 act wisely and judiciously and in keeping with a rule of the House that 
 is higher than a written rule in the books? Gentlemen seem to think 
 that this action in the House is in some way or other revolutionary. It 
 is just as exactly and as completely in order and just as proper as it 
 would be to create a new rule. Gentlemen say, "Send the rule back 
 to the Committee on Rules and let them make a new rule." That is 
 no more in consonance with good judgment and wise legislation than 
 will be the correction of the difficulty by this action, this temporary 
 action, upon this particular appropriation bill. Mr. Speaker, this is 
 the shortest and best way to give to the House a fair opportunity to be 
 heard upon every one of these propositions and to act intelligently and 
 wisely. Therefore I think that gentlemen who have delayed this bill 
 
348 AMERICAN FEDERAL GOVERNMENT 
 
 all these days ought not now to appeal to the House to destroy the bill 
 and compel it to go back to the Committee on Appropriations to have 
 a new investigation and a new bill. [Applause.] * 
 
 MR. TAWNEY ON URGENT DEFICIENCIES 2 
 
 MR. TAWNEY. Prior to the Fifty-eighth Congress deficiencies in 
 appropriations made for the public service had become so common and 
 had increased to such an extent that that Congress deemed it essential 
 to enact legislation to prevent such deficiencies. Theretofore many of 
 the Executive Departments proceeded on the theory that they, and not 
 Congress, should fix the standard of public expenditure, and if the 
 amount appropriated for the service under their jurisdiction was not in 
 their judgment adequate, they proceeded to expend the appropriation 
 upon the basis of their estimates and then at the next session of Con- 
 gress would submit deficiency estimates which, if not allowed, would 
 necessitate the suspension of the service. 
 
 It was this practice which prompted a distinguished Cabinet officer 
 during this session to state before the Committee on Appropriations 
 that this policy was the policy of coercive appropriations and should be 
 stopped. In view of these increasing deficiency estimates the chairman 
 of the Committee on Appropriations, the Hon. James A. Hemenway, 
 now serving in the United States Senate, reported in one of the general 
 appropriation bills at the last session of the Fifty-eighth Congress a 
 provision requiring the heads of the Departments at the beginning of 
 each fiscal year to apportion appropriations, by monthly allotment, 
 or otherwise, so as to prevent a deficiency, and that such apportion- 
 ment when made could not be waived except by the head of the 
 
 1 Commentary of the New York Evening Post upon this legislative incident : 
 
 All students of legislation have agreed in denouncing the Congressional practice of 
 passing general legislation as part of the appropriation bills. This year, at the hands 
 of a group of embattled members, the House of Representatives got, as the phrase is, 
 "just what was coming to it." Out of a difficulty of its own creation it extricates itself 
 by an action which, however "practical," is without justification in logic, law or precedent. 
 In the face of the absolutely definite rule against expenditures not authorized by existing 
 law, the Appropriations Committee has followed its own sweet will so far that the Legis- 
 lative, Executive, and Judicial bill has been "riddled " by perfectly valid points of order, 
 and can be saved only by a special rule to the effect that it shall be passed whether legal 
 or illegal. The point of order in Congress has long been regarded simply as a club. 
 The speaker does not enforce the rule against new legislation or provisions not germane 
 unless somebody brings the case to his attention. Thus many of the most necessary bills, 
 as in the present instance, come upon the floor in a shockingly vulnerable state. As for 
 the extraordinary expedient adopted to save the measure, we hope the incident will 
 merely be a salutary warning to the House, and not the beginning of a line of precedent 
 that will still further tighten the grip of the Speaker and the Rules Committee upon the 
 organization. 
 
 2 Congr. Record, reported July 2, 1906. 
 
FINANCIAL LEGISLATION 349 
 
 Department. The waiver was required to be in writing, stating the 
 reasons therefor. 
 
 At the beginning of this session, when the deficiency estimates were 
 presented, it was discovered that this act was defective in that it did not 
 restrict the waiver of the apportionment beyond the giving of a reason. 
 This enabled the head of the Department to waive the apportionment 
 for any reason, and proceed to expend the appropriation regardless of 
 whether such expenditure would create a deficiency or not. In some 
 instances it was stated as a reason for waiving the apportionment that 
 Congress had failed to appropriate the amount estimated by the Depart- 
 ment to be necessary for a specific service, and the amount appropriated 
 for the entire year having been practically all expended at the end of the 
 third quarter, Congress was obliged to appropriate for the remaining 
 quarter or suspend the service. 
 
 To correct this, and to prevent the Departments from determining 
 how much should be expended for the public service regardless of the 
 amount appropriated, the first appropriation bill reported at this session 
 of Congress amended this so-called anti-deficiency law by expressly 
 providing that the apportionment, when made, shall not be waived 
 except upon the happening of some emergency or unusual circumstance 
 which could not be reasonably anticipated at the time of making the 
 apportionment. While the law as it was enacted by the Fifty-eighth 
 Congress had a very salutary effect in preventing deficiencies, as it 
 enabled this Congress to reject many deficiencies that otherwise might 
 have been appropriated for, nevertheless it is believed that this law as 
 amended at this session will practically wipe out all deficiencies in annual 
 appropriations that must be apportioned, except in case of an emergency 
 or other unusual circumstance which could not be anticipated either by 
 the Department or by Congress. 
 
 The penalties which are imposed by this law on account of the failure 
 to comply with it are such that it is believed that those who are charged 
 with the responsibility of expending appropriations will so administer 
 the service under their jurisdiction as to keep their expenditures within 
 the amounts appropriated for the entire year. 
 
 There have been reported in other appropriation bills many legislative 
 provisions, many of which have been enacted into law, restrictive in 
 their character and imposing limitations upon departmental officers 
 that will tend to improve administrative methods and effect economy 
 in the public expenditures. 
 
 One provision reported in the legislative, executive and judicial ap- 
 propriation bill is worthy of special mention. It is the provision enacted 
 to put a stop to the practice of the several Executive Departments of 
 the Government competing with each other for clerical services. It 
 will have the effect also of preventing the demoralization which now 
 happens as a result of clerks, as soon as they are appointed in one De- 
 
350 AMERICAN FEDERAL GOVERNMENT 
 
 partment, seeking positions in another Department where the compen- 
 sation is greater than that in the Department in which they are employed. 
 This provision prohibits the transfer of any clerk from one Department 
 to another until he has served in the Department from which he desires 
 to be transferred at least three years. 
 
 Another, and still more important provision, as viewed by the Com- 
 mittee on Appropriations, is the one which is now a law as a part of the 
 Sundry Civil appropriation Act, requiring the heads of each Department 
 in the future to report to the Secretary of the Treasury, within thirty 
 days after the close of every fiscal year, a statement of all money received 
 by them during the previous fiscal year for or on account of the public 
 service or in any other manner in the discharge of their official duties, 
 other than as salaries or compensation, which was not paid into the 
 general Treasury of the United States, together with a detailed account 
 of all payments, if any made from such funds during said year. 
 
 It was ascertained by the Committee on Appropriations in the course 
 of its investigations that in some fiscal years many millions of dollars, 
 representing proceeds of public property or money derived from some 
 source no account of the public service was being handled by Depart- 
 ment officials without any account of the same being taken as a part of the 
 receipts or expenditures of the Government. The fact that no dishon- 
 esty or irregularity has occurred because of this unbusiness-like method 
 in the public service did not argue, in the opinion of the committee, 
 that this effective precaution should not be taken against the possibility 
 of breach of trust encouraged, or at least not guarded against, by the law. 
 
 While the expenditures of our Government are constantly increasing, 
 and while the appropriations made therefor by Congress are in the 
 aggregate very large, yet when we take into consideration the marvelous 
 growth of the country, the extent to which the people demand that the 
 Federal Government shall perform services that should be paid by the 
 States, none but the unthinking or misguided who do not stop to con- 
 sider the care with which the estimates for appropriations for the public 
 service are scrutinized by the several committees having jurisdiction 
 of appropriation bills can find any reason to criticise appropriations 
 made during this session of Congress. 
 
 During the seven months of this session the Committee on Appropria- 
 tions has spent practically all of the time in endeavoring to ascertain 
 what appropriations can be eliminated without detriment to the public 
 service, and what changes in administration should be made to reduce 
 expenditures. The hearings on the several appropriation bills reported 
 from the general Committee on Appropriations during this session cover 
 nearly 4,000 printed pages, and comprise three large volumes. These 
 hearings have been more extensive during this session than in any pre- 
 vious Congress all for the purpose of avoiding unnecessary or extrava- 
 gant appropriations. 
 
FINANCIAL LEGISLATION 351 
 
 REPRESENTATIVE LITTAUER ON APPROPRIATIONS 1 
 
 MR. LITTAUER. Mr. Chairman, the legislative, executive, and judicial 
 appropriation bill as presented to the House makes provision for the 
 annual salaries of 14,406 public officials. It carries appropriation in all 
 of $29,134,181. The annual Book of Estimates as submitted to Congress 
 called for appropriation in connection with this bill of $447,000 increase 
 over the bill of last year. The bill we present to you is $1,135, 572 I GSS 
 than the estimates, or, in other words, $688,000 less than is carried in 
 the bill for the current year. 
 
 The Departments have asked for an increase of force of one hundred 
 and seventy-one. The bill carries two hundred and thirty-two less than 
 was submitted to us, or a decrease of force of sixty-one. 
 
 Mr. Chairman, it requires much more than a cursory examination of 
 a bill of this character, regulating the salaries of the entire governmental 
 service, to appreciate the hundreds of details it contains. In fact, your 
 committee after weeks of labor on the bill has been unable to consider 
 each one of its many details. We must necessarily be guided in large 
 measure by the detail of former appropriation bills and consideration of 
 the various submissions of the Book of Estimates submissions for 
 increase of force, increase of compensation, and for new projects. We 
 have, however, in late years had frequent occasion to refer to many facts 
 to demonstrate that the annual estimates were often prepared with less 
 care and scrutiny than they deserved. The estimates come to us through 
 the heads of Departments, the Secretaries of the President's Cabinet, 
 whose many duties, established by law and by custom, take up so much 
 of their time that it seems impossible for them to enter into details which 
 they submit to us. The result is that in general practice they are com- 
 pelled to rely upon statements, estimates, and submissions of their bureau 
 chiefs, as we have to depend upon theirs. 
 
 The result of this custom is that in matters of submission of estimates 
 the bureau chief is in reality supreme and soon grows into the habit of 
 thinking he ought to be supreme. So that, if, in the course of events, 
 the Secretary sees fit to eliminate any of his estimates, to cut them down 
 or to cut them out in part, or if the judgment of Congress, as declared 
 in its appropriations, takes a like course, the gentlemen at the head of 
 these bureaus seem to have taken it upon themselves to study out means 
 and methods of drawing from the genefal appropriations the inde- 
 terminate appropriations for their departments and bureaus such 
 sums as in their own good judgment are necessary to carry out the pur- 
 poses of their bureaus as they believe they ought to be carried out. Their 
 impulse, as is generally stated, is that they seek to carry on the necessary 
 work of their bureaus as they believe it ought to be carried on. The 
 
 1 Congr. Record, March 13, 1906. 
 
352 AMERICAN FEDERAL GOVERNMENT 
 
 system has resulted in placing the opinion of the bureau chief over that 
 of his superior officer; it negatives the action of Congress, and leads, 
 as we have frequently demonstrated in this bill, to a diversion of public 
 funds and extravagant expenditure, thwarting the purpose of Congress, 
 paying higher salaries, bringing about abuses in promotion, and apply- 
 ing funds intended for one purpose to the accomplishment of others. 
 
 Your Committee on Appropriations has sought in this bill to limit 
 every diversion of public funds from the exact purpose for which they 
 were appropriated, and if gentlemen will examine the report accompany- 
 ing the bill, they will find that we have placed many limitations on the 
 expenditure of appropriations. For instance, in the State Department 
 we have placed a limitation on the use of the emergency fund given to 
 the President for the emergencies in the diplomatic service, used for 
 clerk hire in the Department in Washington. In the War Department 
 we have limited the use of general appropriations for the detail of civil 
 officers and clerks to bureaus in the Department from other branches 
 of the service in the District of Columbia. 
 
 In the Navy Department we found contingent expenses in the bureaus 
 were drawn not only from the contingent fund of the Department, but 
 from the general appropriations for the bureaus and for the increase of 
 the Navy. We intend to put a stop to that practice. In the Treasury 
 Department we found an appropriation for the restoration of old rolls 
 and vouchers. All the old ones seem to have been restored. The fund 
 was used to supplement the clerks in the various bureaus of the Depart- 
 ment, and we have omitted that appropriation. And then we took it 
 upon ourselves to wipe out every lump-sum appropriation that we could 
 get at. We found that certain forces had been provided for year after 
 year, as, for instance, in the Bureau of Engraving and Printing, forces 
 that were devoted to the executive work of that office; we took them 
 over and specifically provided for them. In the Office of the Supervising 
 Architect there was a like condition. Gentlemen all know that about 
 5 per cent is drawn from the appropriation made for new buildings and 
 applied to work of design and engineering for draftsmen and clerks here 
 in the Supervising Architect's Office. We took over as much of that 
 force as seemed to us to be permanent. We have covered into this bill 
 specifically every force that we could get at, carried by lump-sum ap- 
 propriation. There were a few in regard to which we felt that it was 
 not yet the proper time to appropriate specifically, and notably the ad- 
 ministrative force of the Government Printing Office, concerning the 
 work of which we held elaborate hearings, but found that the Public 
 Printer, recently appointed to that office, had not yet such comprehen- 
 sive idea of the work and had not yet begun the elimination of -the force 
 that was necessary to properly conduct the office, and hence was not 
 able to advise us in reference to specific salaries for the necessary force. 
 
 It is becoming gradually more and more difficult for us to ferret out 
 
FINANCIAL LEGISLATION 353 
 
 what is going on in the Departments. Our hearings lasted for weeks, 
 extending over 700 pages in the pamphlet before you. The fact is con- 
 stantly before us that we should have at our service some sort of aid 
 which would examine into the expenditure after the appropriation has 
 been made, so as to get at the facts in the bureaus of what is actually 
 taking place there in order to control with fullest intelligence appro- 
 priations for the future. The machinery provided by Congress for the 
 examination of accounts and expenditures, of economy, justness, cor- 
 rectness of expenditures, of conformity with appropriation law, of 
 retrenchment, abolishment of useless offices, of the reduction and in- 
 creased pay of officers is evidently not in working order; at any rate, 
 some gear is out of place which needs looking after by the engineers in 
 charge. Without some aid from those who have made examinations 
 of the actual conduct of expenditures in the bureaus your Committee on 
 Appropriations probes away, in the ascertaining of these facts, largely 
 in the dark. We follow up leads which come to us through rumors or 
 through our own experience and casual observation. Our efforts in 
 forming such an appropriation bill as this toward getting at necessary 
 facts can amount to nothing but a scratch on the surface, astounding 
 though such revelations scratched up actually are. The diversion of 
 appropriations, setting aside the will of Congress, despite such limitations 
 as we place upon expenditure to prevent the diversion of funds intended 
 for one purpose to the accomplishment of another, will go on unless we 
 can provide active and live means for greater scrutiny and vigilance over 
 the operation of the Departments. Actual violations of the law can not 
 be charged, but the intention of Congress is constantly thwarted by 
 unauthorized use of its appropriations, diverted through the study of 
 various appropriation bills to find the technical right for the diversion 
 of funds. 
 
 Now, Mr. Chairman, the consideration of a bill of this character 
 naturally leads us to an examination of the conditions we find in the 
 public service, and we have this year been greatly impressed by many 
 serious consequences matters that have grown worse in the course 
 of time in connection with the appointment, the methods of promotion, 
 and the tenure of office. 
 
 Mr. Chairman, I want first to call the attention of the committee to 
 what to-day seems to be an absolute necessity a reclassification of the 
 Government service for the purpose of establishing the principle that 
 like work should receive like pay. To-day we find forces of men receiv- 
 ing salaries at $900, at $1,000, at $1,200, and even at $1,800 a year 
 performing exactly the same work. This is most demoralizing to the 
 force and works detriment. It is as unjust as it is unfair. Unjust to the 
 man who performs the same work as his neighbor and at a lower salary, 
 and unfair in the distribution of the public funds. We find by our 
 system of promotion that a clerk working at one time at a thousand dollars 
 
 23 
 
354 AMERICAN FEDERAL GOVERNMENT 
 
 will perform just the same work when thereafter, in the course of years, 
 he has been promoted to $1,200 or $1,400, or to a compensation of $1,800 
 per year. Such a system of promotion is manifestly wrong. I do not see 
 how we can reform these matters in our appropriation bill. I feel that 
 there ought to be appointed a commission of the two Houses of Congress 
 to consider this subject of inequality of pay and the subject of the meth- 
 ods of promotion, and the causes why in one Department a larger force 
 is required to accomplish the same result as a much smaller force in 
 another Department. 
 
 It seems to me that we ought to have a commission to consider these 
 problems with power to report their recommendations with every privi- 
 lege. If we do not take some action, the inequality of compensation will 
 continue to grow from year to year until its growth will be a serious 
 detriment to the proper conduct of our Departments. 
 
 Mr. Chairman, the Government offers a very attractive field of occu- 
 pation in its service. Our salaries, especially those in the ordinary 
 clerical force, are not only generously liberal, but even extravagantly 
 high in comparison with what is paid throughout the country. I make 
 bold to say that if the conduct of our service could be the same as that 
 which obtains in the great manufacturing and trading concerns of the 
 country, in the railroads, such as the New York Central or the Pennsyl- 
 vania Railroad companies, that the service of the Government could 
 be conducted by three-fourths of the force now employed and at practi- 
 cally little more than half its cost. Our salaries are higher, our hours of 
 work are less, our leaves of absence with pay are longer, our holidays 
 are more frequent, and the relative productive gait at which our clerks 
 work is decidedly lower, with the result that the wide-open doors of our 
 public service, barred only by an examination for competency, are always 
 crammed jam full with numerous applicants. Once inside the doors, 
 safely within the public service, those not blessed with more than the 
 usual ambition or independence remain until death makes a vacancy in 
 their positions. Under the operation of civil-service regulations, with 
 its wide-open door at the entrance, there is no other outlet, except 
 by resignation, than a door wide enough to let a coffin through. 
 [Applause.] 
 
 Now, Mr. Chairman, our conditions are daily growing worse, until 
 the time has come when we must devote our best endeavors to correct 
 this state of affairs. With the right of continuous tenure in office must 
 go the demand that the clerk remain competent. When through any 
 infirmity, mental or physical, he is no longer competent to deliver an 
 equivalent for his salary, he must make room for those able to do so. 
 Our Government is no charitable institution. 
 
 Mr. GROSVENOR. Mr. Chairman, I should like to ask the gentleman 
 a question. 
 
 Mr. LITTAUER. Certainly. 
 
FINANCIAL LEGISLATION 
 
 355 
 
 Mr. GROSVENOR. I should like to inquire of the gentleman in charge 
 of this bill, and whose statement is very interesting, if there is no power 
 anywhere to get rid of an incompetent clerk? 
 
 Mr. LITTAUER. There is. The law makes amp.e provision for getting 
 rid of an incompetent clerk to-day, but I was just about to comment on 
 the fact that the law is never carried out. 
 
 Mr. GROSVENOR. Can you make a law that will be lived up to ? * 
 
 Mr. LITTAUER. I believe we can make provision that would eliminate 
 incompetent and incapacitated employees. 
 
 Mr. GROSVENOR. Would it not be a good idea to eliminate some of 
 the people who refuse to obey the law? 
 
 Mr. LITTAUER. It would be, and they are the heads of bureaus and 
 heads of Departments, who seem to be overcome with sympathy. 
 
 Mr. CHARLES B. LANDIS. And are some of them in the same class? 
 
 Mr. LITTAUER. And many of them are in the same class. But, Mr. 
 Chairman, as I was saying, this Government is not a charitable institu- 
 tion. Our Departments must not be turned into homes for the aged and 
 infirm. We must demand that our clerks continue competent, and we 
 must find means of getting rid of those who prove that they are not com- 
 petent. For years this House has included a provision in this very bill 
 declaring that no appropriation carried in the bill should be applicable 
 to the payment of the salary of an incapacitated clerk; but when our 
 bill reaches another body we find insistence there that this incapacity 
 must be "permanent" incapacity, or it must be incapacity "other than 
 temporary." Then the administration of the law falls into the hands 
 of the heads of the Departments and the heads of the bureaus, and these 
 gentlemen declare that they are not gifted with divine foresight, that they 
 can not tell whether the incapacity of the day, in the case of any clerk, 
 will not be cured at a future day. They say they can not tell whether 
 the clerk stricken with paralysis may not at some future day be drawn 
 out of his trouble. Consequently the law is nothing but a dead letter. 
 
 It was never the intention of Congress that tenure in the civil service 
 should be for life, but only during efficiency, and yet the action of these 
 heads of Departments and heads of bureaus, permitting their sympathies 
 to carry them away, has evidently thwarted the intention of Congress. 
 While appointment to office is no longer the spoil of the victorious parti- 
 san, retention in office has become the spoil of the incapacitated clerk. 
 
 REPRESENTATIVE GILLETT ON THE INFLUENCES 
 IN LEGISLATION TOWARDS EXTRAVAGANCE 1 
 
 "What the Appropriations Committee has to consider in making up 
 any bill is not how small it ought to be, but how small we can make it, 
 1 New York Evening Post, May 29, 1905. 
 
356 AMERICAN FEDERAL GOVERNMENT 
 
 and still have it go through the House," said Representative Frederick 
 H. Gillett, a member of that committee, in discussing to-day the influences 
 which were operative in national legislation toward extravagance. The 
 recently retired chairman of that committee, Mr. Hemenway, has lately 
 expressed his opinion that we needed no tariff revision and no increase 
 of internal revenue; that what we really needed was the elimination of 
 i needless expenditures. Mr. Gillett thus shows how difficult that task 
 would be. He has had some experience in the troubles of an economist, 
 for he has been pilloried and lampooned in the Washington newspapers 
 for extending the working day in the departments from four to half- 
 past, in accordance with the law. Speaking of the needs of economy, 
 Mr. Gillett said: 
 
 "The great difficulty is to find the spot where Congress will agree to 
 economize. Most of the members say they are for economy, and I 
 believe they are sincere, but when it comes to applying their principles 
 to any particular case, there is apt to be some special reason against it, 
 and so, while favoring economy in the abstract, they oppose it in practice. 
 The most common instance is, of course, where money is to be spent in 
 a man's district, for a public building, or for river or harbor improve- 
 ments. Some districts seem to gauge their representative's ability and 
 usefulness by his success in extracting money from the Treasury to be 
 spent at home. When constituents set up such a standard, it is hard for 
 a member not to be influenced by it. 
 
 "Gradually the men who want different things compare their needs, 
 combine and agree to help one another, tacitly or avowedly, and thus 
 a majority may be rounded up, which is quite insensible to argument, 
 because each one is earnest for his own appropriation, and knows that 
 the only way to get it is to support the other claims, regardless of their 
 merits. This is, of course, the time-honored system of log-rolling, but 
 I fear that as the country has grown larger, its interests more diverse, 
 and its sections more separate and mutually unknown, the tendency 
 develops for a member to feel that he can not grasp and master the needs 
 of the whole, and that therefore he will be content to look out for his 
 district and himself. There was a striking instance not long ago when 
 an influential State delegation were intent on securing a large appropria- 
 tion, and, apparently fearing argument would not win it, set about gain- 
 ing votes by promising to support other schemes, and their independence 
 and judgment were mortgaged throughout that Congress by the trades 
 they made. 
 
 "Every member will denounce such methods in theory, and admit 
 that they are destructive of good legislation, but many honorable men 
 will stoop to them under the belief that it is the only way to achieve 
 some most deserving end, and to maintain their popularity at home. 
 
 "The Appropriations Committee in making up the large bills is sub- 
 jected to great pressure from members of the House never for economy, 
 
FINANCIAL LEGISLATION 357 
 
 but always for larger expenditure in each man's district. Naturally the 
 committee has a pride in carrying its bills through the House without 
 substantial amendments, and consequently, in formulating the bills, 
 must take into account not only the merits, but the popularity of each 
 proposition, and it will be discouraging to friends of economy to know 
 that the committee never has any fears that the House will reduce any 
 expenditure the danger always is of increases. There is no selfish 
 interest enlisted on the side of economy, while every member has pressure 
 from home for increased expenditure, and naturally the Government 
 suffers. Experience on the Appropriations Committee, when one sees 
 how defenseless the Treasury is against the constant assaults upon it, 
 is bound to make a man an economist unless he reaches that hopeless 
 stage where he concludes that resistance is vain, and that he might as 
 well join the scramble, take what he can, and wait for the deluge. Un- 
 less public opinion is aroused to the dangers of this constant attack upon 
 the Treasury, by endorsing the members who oppose it, constantly 
 increasing deficits must be expected.' 1 
 
 CAPITALIZING EXTRAVAGANCE, 1901 l 
 
 MOST of the Congressional alarm and lamenting over swollen public 
 expenditures is beside the mark. Senators with hands all adrip with 
 extravagance of their own reproach others for wanting to do what they 
 themselves have already done. That is neither edifying nor convincing. 
 Nor does it advance the cause of economy, which, like charity, begins 
 at home. As little are we profited by charges and proof that the minority 
 party is just as extravagant, just as eager to fasten its own little local 
 jobs upon the Treasury, as the party in control of the Government. The 
 pot may be perfectly justified in calling the kettle black ; but it is the pot 
 which is responsible, and which will be smashed if an overtaxed people 
 ever takes to looking about for an object of vengeance. Republicans 
 may taunt and expose Democrats to their hearts' content; but if there 
 is inexcusable extravagance, and if anybody is to be held to stern account 
 for it, the Republican party will be the sole sufferer, as it is really the 
 sole offender. Under party government no other result is possible or 
 desirable. 
 
 One reason why the party responsible for the Government is less able, 
 if not less willing, than it used to be to keep down appropriations, has 
 often been pointed out in these columns. Our system does not lend 
 itself to rigid financial control. Unlike all other governments in the 
 world, the American has no man, or committee of men, to make up a 
 yearly budget, to determine income and fix outgoes. Our method is a 
 
 1 Editorial in the New York Evening Post, 1901. 
 
358 AMERICAN FEDERAL GOVERNMENT 
 
 happy-go-lucky plan of allowing one set of men to make laws for revenue, 
 another to frame bills for expenditures. That we have not gone to smash 
 under such chaotic management is due partly to our traditional good 
 fortune, partly to our expanding wealth which has operated in the 
 same way that robust health enables a man to order his life recklessly, 
 for a time and partly to the fact that we have had a rough system of 
 financial control. But this has been badly broken down. 
 
 At the close of the civil war the Committee on Ways and Means had 
 charge of all the appropriation bills as well as the revenue bills. That 
 was something like a budget-framing body. Then came the creation 
 of the Committee on Appropriations, to take sole charge of outgo as the 
 Ways and Means Committee did of income. What this meant in the 
 days when Samuel J. Randall was Chairman of the Appropriations Com- 
 mittee, everybody whose memory goes back to 1874-76 will recall. But, 
 under malign influences, the House has been induced, from time to 
 time, to scatter the annual appropriation bills among thirteen or fourteen 
 different committees, each intent on -log-rolling its own measure up to 
 the top notch, and with no firm and centralized control existing longer 
 anywhere. Responsibility has thus been dissipated, and so have the 
 funds. Chairman Cannon may still protest that it is his main business 
 not to make appropriations, but to prevent their being made, and Senator 
 Allison may warn and protest; but effective control has largely escaped 
 from them, and their complaints are unheeded. Some day Congress will 
 see this hugger-mugger system driving us straight to national bankruptcy, 
 and will be compelled to set up a responsible government in financial 
 matters something that we are now alone among the nations in not 
 having. 
 
 One serious aspect of national extravagance is commonly overlooked. 
 People do not see how one spendthrift Congress makes the next one 
 almost inevitably as prodigal. The reason is that the extravagant legis- 
 lation fixes a permanent charge on the Treasury. No step backward, 
 is the rule. There was loud outcry against a " billion-dollar Congress"; 
 but its successor was able to save little or nothing. Now we are rapidly 
 approaching a billion-dollar session, and no dam for the rising flood is 
 in sight. Each succeeding Congress inherits a legacy of extravagance 
 from its predecessor. Its own hands are partly tied by anterior legisla- 
 tion committing the Government to continuing appropriations for this 
 and that scheme, this and that enlargement of the public service and 
 creation of new offices. It is this which makes retrenchment so difficult, 
 if not practically impossible. To abolish places, to consolidate offices, to 
 cut down regular expenses why, this is almost treason, from the party 
 point of view. It is flat villainy in the minds of men whose sinecures 
 are threatened. So that extravagance always tends to perpetuate itself. 
 The lavish appropriations of one Congress become a kind of annual 
 interest charge which must be paid upon a capitalized extravagance. 
 
FINANCIAL LEGISLATION 359 
 
 A common fallacy in all this business is the urging of an analogy from 
 private life. Congress will economize, it is said, when it has to, just as 
 a man will when his income is cut in two. We are now in the presence 
 of an overflowing Treasury; there will be a surplus after all the bills 
 are paid; the country is prosperous; no one complains of taxes so 
 what are you afraid of ? When the lean years come, the appropriations 
 will be lean. A man gives up his carriage and his box at the opera in 
 hard times, and Congress will do the same. Ah, but Congress's coach- 
 man will simply refuse to be discharged. The federated coachmen all 
 over the country i. e., the officeholders will prove stronger than 
 Congress. They will tell it that it has brought them into the world, and 
 now it must fill their mouths. What, will Congress be worse than an 
 infidel, and not provide for its own ? It is not merely in war expenses 
 that Congress has been lavish. Every appropriation bill has been in- 
 creased, new offices created, new entering wedges driven, a permanent 
 charge on the Treasury laid in many a swollen item. The point is that 
 flush times are setting a pace which will have to be kept up in the lean 
 times. If economy is disregarded now, it will be declared impossible 
 then. It is easy enough to let the jinn of extravagance out of the bottle, 
 but to get him back in again that is the labor. Thus we see that the 
 evil which an extravagant Congress does lives after it ; and the good, if 
 good there be, is interred with its bones. 
 
 PRESIDENT CLEVELAND'S VETO MESSAGE ON THE 
 RIVER AND HARBOR BILL, 1896 
 
 To THE HOUSE OF REPRESENTATIVES: 
 
 I return herewith without approval House bill, No. 7977, entitled "An 
 act making appropriations for the construction, repair, and preserva- 
 tion of certain public works on rivers and harbors, and for other 
 purposes." 
 
 There are 417 items of appropriation contained in this bill, and every 
 part of the country is represented in the distribution of its favors. 
 
 It directly appropriates or provides for the immediate expenditure of 
 nearly $14,900,000 for river and harbor work. This sum is in addition 
 to appropriations contained in another bill for similar purposes amount- 
 ing to a little more than $3,000,000, which have already been favorably 
 considered at the present session of Congress. 
 
 The result is that the contemplated immediate expenditures for the 
 objects mentioned amount to about $17,000,000. 
 
 A more startling feature of this bill is its authorization of contracts 
 for river and harbor work amounting to more than $62,000,000. Though 
 the payments on these contracts are in most cases so distributed that 
 they are to be met by future appropriations, more than $3,000,000 on 
 
360 AMERICAN FEDERAL GOVERNMENT 
 
 their account are included in the direct appropriations above mentioned. 
 Of the remainder nearly $20,000,000 will fall due during the fiscal year 
 ending June 3oth, 1898, and amounts somewhat less in the years im- 
 mediately succeeding. A few contracts of a like character authorized 
 under previous statutes are still outstanding, and to meet payments on 
 these more than $4,000,000 must be appropriated in the immediate 
 future. 
 
 If, therefore, this bill becomes a law, the obligations which will be 
 imposed on the Government, together with the appropriations made for 
 immediate expenditure on account of rivers and harbors, will amount 
 to about $80,000,000. Nor is this all. The bill directs numerous sur- 
 veys and examinations which contemplate new work and further contracts 
 and which portend largely increased expenditures and obligations. 
 
 There is no ground to hope that in the face of persistent and growing 
 demands the aggregate of appropriations for the smaller schemes, not 
 covered by contracts, will be reduced or even remain stationary. For 
 the fiscal year ending June 3oth, 1898, such appropriations, together 
 with the installments on contracts which will fall due in that year, can 
 hardly be less than $30,000,000 ; and it may reasonably be apprehended 
 that the prevalent tendency toward increased expenditures of this sort 
 and the concealment which postponed payments afford for extravagance 
 will increase the burdens chargeable to this account in succeeding years. 
 
 In view of the obligation imposed upon me by the Constitution, it 
 seems to me quite clear that I only discharge a duty toward our people 
 when I interpose my disapproval of the legislation proposed. 
 
 Many of the objects for which it appropriates public money are not 
 related to the public welfare, and many of them are palpably for the 
 benefit of limited localities or in aid of individual interests. 
 
 On the face of the bill it appears that not a few of these alleged improve- 
 ments have been so improvidently planned and prosecuted that after 
 an unwise expenditure of millions of dollars new experiments for their 
 accomplishment have been entered upon. 
 
 While those intrusted with the management of public funds in the 
 interest of all the people can hardly justify questionable expenditures 
 for public work by pleading the opinions of engineers or others as to the 
 practicability of such work, it appears that some of the projects for which 
 appropriations are proposed in this bill have been entered upon without 
 the approval or against the objections of the -examining engineers. 
 
 I learn from official sources that there are appropriations contained 
 in the bill to pay for work which private parties have actually agreed with 
 the Government to do in consideration of their occupancy of public 
 property. 
 
 Whatever items of doubtful propriety may have escaped observation 
 or may have been tolerated in previous Executive approvals of similar 
 bills, I am convinced that the bill now under consideration opens the 
 
FINANCIAL LEGISLATION 361 
 
 way to insidious and increasing abuses and is in itself so extravagant as 
 to be especially unsuited to these times of .depressed business and result- 
 ing disappointment in Government revenue. This consideration is 
 emphasized by the prospect that the public Treasury will be confronted 
 with other appropriations made at the present session of Congress 
 amounting to more than $500,000,000. 
 
 Individual economy and careful expenditure are sterling virtues which 
 lead to thrift and comfort. Economy and the exaction of clear justifica- 
 tion for the appropriation of public moneys by the servants of the people 
 are not only virtues but solemn obligations. 
 
 To the extent that the appropriations contained in this bill are in- 
 stigated by private interests and promote local or individual projects 
 their allowance can not fail to stimulate a vicious paternalism and en- 
 courage a sentiment among our people, already too prevalent, that their 
 attachment to our Government may rest upon the hope and expectation 
 of direct and especial favors and that the extent to which they are realized 
 may furnish an estimate of the value of governmental care. 
 
 I believe no greater danger confronts us as a nation than the unhappy 
 decadence among our people of genuine and trustworthy love and affec- 
 tion for our Government as the embodiment of the highest and best 
 aspirations of humanity, and not as the giver of gifts, and because its 
 mission is the enforcement of exact justice and equality, and not the 
 allowance of unfair favoritism. 
 
 I hope I may be permitted to suggest, at a time when the issue of Gov- 
 ernment bonds to maintain the credit and financial standing of the 
 country is a subject of criticism, that the contracts provided for in 
 this bill would create obligations of the United States amounting to 
 $62,000,000 no less binding than its bonds for that sum. 
 
 GROVER CLEVELAND. 
 
IX 
 THE DEPARTMENTS 
 
 [The compass of this collection does not permit the giving of a complete 
 account of Departmental Work in all its branches. It has been the purpose of 
 the author to include selections which would illustrate in a particularly inter- 
 esting manner the functions of government. Not all the Departments are dealt 
 with nor all important functions in the Departments described. In some cases 
 only a certain bureau, e. g., the Bureau of Corporations, has been selected for 
 description. For a complete account of the organization and work of the 
 Departments, the student is referred to Fairlie's "National Administration 
 of the United States," Gauss, "Government of the United States," and also 
 to a very excellent series of articles on the work of Government which ap- 
 peared in Scribner's Magazine, volumes 33-35, from which a few selections 
 have been included in this collection. The work of the Departments of State, 
 War, and Navy, is dealt with in other portions of this collection, e. g., the 
 Senate debate on foreign affairs.] 
 
 THE TREASURY 1 
 BY FRANK A. VANDERLip 2 
 
 ASTONISHMENT at the extent and diversity of interests embraced in the 
 Treasury Department must have been one of the first sensations of most 
 Secretaries of the Treasury after taking up the duties of the office. Even 
 if the Secretary had been active in public life, and possessed passing 
 familiarity with the great Department, he would scarcely have clearly 
 comprehended its scope, but if he were a man coming from an active 
 business career, without opportunity for intimate acquaintance with the 
 treasury, the first few weeks of his official life, it is likely, were marked 
 by daily discoveries of new and entirely unanticipated functions. 
 
 The bureaus which are bound together in the Treasury Department 
 are, by all odds, the most diverse, and at the first casual glance it would 
 seem the most unrelated that are to be found under the jurisdiction of 
 
 1 Extracts from an article in Scribner's Magazine, April, 1903. Reproduced by 
 permission. Copyright 1903. 
 
 2 Formerly Assistant Secretary of the Treasury. 
 
 362 
 
THE DEPARTMENTS 363 
 
 any of the cabinet officers. The public thinks of the Treasury Depart- 
 ment as the fiscal division of the Government's executive system. It is 
 a fact, however, that for a good many years probably not less than two- 
 thirds of the time of the Finance Minister has been devoted to problems 
 bearing little or no relation to the strictly fiscal business of the Govern- 
 ment. The organization of a Department of Commerce, drawing, as it 
 will, its principal bureaus from the Treasury Department, will bring 
 needed relief to a cabinet officer who has quite enough to occupy his at- 
 tention in the administration of affairs closely related to the Government's 
 financial business. 
 
 The responsibility lor raising the revenues and for their disbursement, 
 now that the totals have come to aggregate more than one thousand 
 million dollars, would seem to be quite enough to lay upon the shoulders 
 of any man, particularly if he must take up those duties without thorough 
 familiarity with their details, as does each new Secretary. But in addi- 
 tion to that duty, there is the further responsibility for the solution of 
 the problems of an intricate and diverse currency system. The Secretary, 
 too, occupies indirectly, through the Comptroller of the Currency, a 
 supervisory relation to the whole national banking organization of the 
 country. He is the indirect custodian of $800,000,000 of gold and silver 
 coin, stored in the Treasury vaults, against gold and silver certificates 
 in circulation representing that coin, and, through his subordinate, the 
 Treasurer of the United States, he shares the responsibility for the care 
 of more than two hundred million dollars, representing the cash balance 
 which the Government carries. All the Mints and Assay Officers are, 
 through the Director of the Mint, under his control. He directs the 
 operations of a great factory employing 3,000 operatives in the printing 
 of money and Government securities, and he must there meet the same 
 problems of organized labor that other great employers have to meet. 
 He is responsible for the collection of commercial statistics, and is fortu- 
 nate in finding a bureau for that purpose which has a record for the best 
 statistical work done by any of the great Governments. He is at the 
 head of the greatest auditing offices in the world, where every dollar of 
 income and every item of expenditure is checked over with minute ex- 
 actness, so that at the end of the year it is safe for him to say the whole 
 billion dollars, the total on both sides of the ledger, has been collected 
 and disbursed with absolute fidelity and legality and without error. 
 
 All these functions are naturally related to the management of the 
 fiscal affairs of the Government, but there are many other bureaus that 
 do not apparently bear such close relation. The Secretary will discover 
 that there are almost as many vessels which would fly his official flag 
 should he come on board as there are ships of war to fire salutes to the 
 Secretary of the Navy. He has large fleets engaged in light-house and 
 coast-survey work, while the revenue cutter service, in which are many 
 swift and modern vessels, does police duty at every port. He is the final 
 
364 AMERICAN FEDERAL GOVERNMENT 
 
 authority in all official judgments relating to the more than five hundred 
 thousand immigrants who land on our shores annually, and he is the 
 responsible executive for carrying out the immigration laws and the 
 Chinese Exclusion Act. He is the official head of the Bureau of Public 
 Health and Marine Hospital Service, which guards our ports from conta- 
 gious diseases, maintains quarantine service and stations, and a great 
 system of hospitals for disabled seamen. The Government's Secret 
 Service Bureau reports directly to him, and he watches day by day the 
 unfolding of detective stories more interesting than the dime novels of 
 his boyhood days, and there accumulate in his files packages of reports, 
 tied with red tape, more thrilling than the choicest examples of yellow- 
 covered literature. Not only is the Secret Service Bureau devoted to 
 the detection of counterfeiting, but its services are called into play in 
 connection with any secret service work which the other Departments 
 may wish to have done. The Bureau of Standards, to which all ques- 
 tions of weights and measures may be finally referred, is under his direc- 
 tion. No steamship may sail in American waters, nor leave an American 
 port, the boiler of which does not bear the stamp of official inspection 
 by one of his subordinates. He is the responsible head of a Life Saving 
 Service, with 272 stations and a cordon of men patrolling 10,000 miles 
 of coast; of a Light-house system, marking the course of mariners with 
 a chain of lights from Maine away around to Alaska ; of a Coast Survey, 
 which has for its business not only the charting of navigable waters, but 
 the scientific investigation of the earth's curvature; of the Architect's 
 Office, which has already constructed and has the care of 400 public 
 buildings, most of them architecturally bad, and which is at the moment 
 engaged in planning and building 149 others, many of which, happily, 
 are showing great architectural improvement. 
 
 All these duties are in addition to the fundamental one of collecting 
 the public revenues, a work requiring the maintenance of a corps of 
 6,300 officials at 168 ports of entry, and of a body of internal revenue 
 employees, whose eyes are literally upon every foot of the country's 
 territory. 
 
 By no means the least of the manifold duties of this official are those 
 which are connected with the administration of the Civil Service, for his 
 complete corps numbers 26,000 subordinates. There must be endless 
 appointments, promotions, and changes, and in regard to them all the 
 Secretary of the Treasury- is the final authority. 
 
 The mere enumeration of such a list of responsibilities carries with it 
 the conviction that the Treasury of the United States must be a wonder- 
 fully well organized machine, else it would be impossible for any man to 
 step into the responsibilities of its direction without the change being 
 seriously felt by the entire Treasury organization and the whole country. 
 The Treasury Department is a wonderfully well organized commercial 
 machine. Taking it all in all, I believe there is no organization in the 
 
THE DEPARTMENTS 365 
 
 commercial life of this country, look where you will, that is its superior ; 
 in many respects one will not find its equal. 
 
 We are apt to have none too good an idea of our Government admin- 
 istration, and sometimes, with scant knowledge of facts and conditions, 
 condemn the executive branches of the Government. Naturally the 
 Treasury has come in for its full share of criticism, for it touches every 
 citizen in the tender spot of his pocket-book. For my own part, how- 
 ever, every day of greater familiarity with the organization was a day 
 of growing admiration for it and of increasing pride that the multitude 
 of affairs entrusted to the head of this Department are administered so 
 intelligently, so promptly, and above all with such absolute integrity and 
 entire devotion to the Government's interests. 
 
 Not only does the Treasury Department handle, in the ordinary in- 
 come and expenditures, cash transactions aggregating more than a billion 
 dollars* annually, but it is responsible for the custodianship and the 
 renewal of currency, the printing of paper money, the coinage of specie 
 and the handling of public securities, and the figures on both sides of the 
 ledger representing the total of all these transactions reach the incom- 
 prehensible aggregate of three and a half billions. 
 
 Such great sums are handled year after year with absolute integrity, 
 with books that balance to a penny, with cash drawers that are never 
 short, with a trust not betrayed. Whatever opinion home-coming 
 European travellers may have of Treasury methods, after more or less 
 successful attempts to avoid custom regulations, they must, on the whole, 
 give respect to an organization which accepts a responsibility for 
 annual financial transactions aggregating $3,500,000,000, and has dis- 
 charged that responsibility year after year, under one political adminis- 
 tration after another, through the vicissitudes of cabinet changes, and 
 presents a clean record having on it no important blot of a betrayal of a 
 trust. 
 
 A new Secretary of the Treasury approaching the responsibilities and 
 duties of the great position with an appreciation of their importance must, 
 in years past, have been greatly surprised to find how little time apparently 
 he could devote to the consideration of great national questions, and 
 how much he must give to the small routine details of the administra- 
 tion of the civil service. The 26,000 employees under the direction of 
 the Secretary of the Treasury make the Treasury Department only 
 second to the Post-Office in point of numbers. When the civil service 
 blanket was only partly drawn over these places, the time which the 
 head of the Department was forced to give to the discussion of appoint- 
 ments, matters in most part of minor consequence so far as the efficiency 
 of administration was concerned, was something that must have dis- 
 couraged more than one Secretary. While such appointments may 
 have been of minor consequence in the actual administration of the 
 Department, they were of great importance if regard was to be had 
 
366 AMERICAN FEDERAL GOVERNMENT 
 
 for maintaining cordial relations with the legislative branch of the 
 Government. 
 
 Washington wishes to see evidence of democracy about the Depart- 
 ments. Neither Senator nor Congressman is satisfied to cool his heels 
 in an ante-room for any length of time, nor are political leaders who 
 come to the Capitol on a mission likely to be pleased if the Secretary's 
 engagements are such that an appointment can not be made without 
 notice or delay. So it came about that a business day in the Secretary's 
 office was, in times past, almost wholly given up, during the periods in 
 which Congress was in session, to the reception of visitors, and most of 
 these visitors came to discuss matters of small consequence to the ad- 
 ministration of the Department. The Secretary of this great Depart- 
 ment must give heed to innumerable trifles such as would never reach 
 the head of even a comparatively small business organization. Requests 
 come from people of importance, and they must be taken up with the 
 care which the position of such persons demands rather than with any 
 thought of their importance in relation to the administration of depart- 
 mental affairs. 
 
 There is vast improvement in the Treasury Department in this respect 
 compared with former conditions. The Secretary now has power to 
 make but few appointments outside the classified service, and by recent 
 executive order he may not consider outside recommendations in regard 
 to promotions in the classified service. 
 
 Early in the administration of Secretary Gage it was recognized by 
 the Secretary that, if he was to give consideration to the unusual number 
 of important public questions which were pressing, he must be relieved 
 of much of the detail of the administration of the civil service; so he 
 delegated to a committee, consisting of an Assistant Secretary, the Chief 
 Clerk and the Appointment Clerk, consideration of all questions of civil- 
 service administration effecting the employees in Washington. This 
 plan continues in force. Political considerations have always been 
 absolutely excluded from the deliberations of this Committee. I can 
 speak for that positively, and I mean to say that such a statement is 
 literally true. The Committee has considered many thousands of pro- 
 motions and changes in the classified service, and there has been no 
 more discussion of politics than would be found in the consideration of 
 promotions in a great banking or insurance institution. The recom- 
 mendations of heads of bureaus, the length and character of service, the 
 regularity of attendance, and the results of examinations which are 
 made to cover both academic and practical qualifications, are the factors 
 taken into consideration. So far is political influence eliminated, indeed 
 so far as promotions governed strictly by merit may be considered the 
 goal in an ideal civil-service administration, I believe the conduct of the 
 civil service in the Treasury Department is to-day practically all that 
 could be asked. 
 
THE DEPARTMENTS 367 
 
 A notable difference between the position of the Secretary of the 
 Treasury and that of the head of a great business organization is the 
 time which the Secretary must devote to the discussion of public ques- 
 tions with newspaper representatives. No small part of his success will 
 depend upon his adaptability to that new condition, for the view which 
 most of the people of the country will form of his administration will 
 naturally be much colored by the attitude of the newspaper correspond- 
 ents through whom the public is informed regarding official matters. 
 
 Newspaper conditions in Washington are unlike those in other cities. 
 There are innumerable representatives of papers, covering the whole 
 range of the country, each one of whom serves a constituency of great 
 importance. As a body, the newspaper correspondents of Washington 
 are incomparably superior to the average newspaper representatives in 
 other cities. Many of them have been intelligent observers of public 
 affairs for a generation, and have been the confidants and advisers of 
 many Cabinet officers. There is hardly an important newspaper man 
 in Washington who is not at times the trusted custodian of state secrets, 
 and the relation of these men to public affairs is entirely different from 
 the relation of the average reporter in other cities to the business questions 
 of local interest. It is important that the Secretary of the Treasury 
 recognize this, for the Treasury Department is one of the chief sources 
 of news at the Capital, and that he should learn to meet fairly and frankly 
 the newspaper correspondents. This requires much time, much tact, 
 and a discrimination in determining those who can be fully trusted and 
 kept confidentially informed of the progress of affairs, and those who 
 must be talked to with guarded politeness. 
 
 The sacrifice of time is by no means without its recompense. Many a 
 Cabinet officer has received quite as good counsel from conservative and 
 experienced newspaper correspondents as he could get from members 
 of Senate or House. This confidential relation with newspaper repre- 
 sentatives is unique, and unless a Secretary of the Treasury has been 
 trained in the official atmosphere of Washington, it is likely to take him 
 some time to recognize it and adjust himself to the condition. 
 
 In a most important particular the Treasury Department differs from 
 the Finance Ministries of other countries. Elsewhere the Finance 
 Minister occupies an authoritative relation to legislation affecting income 
 and expenditure. With us, the Government has always gone on with 
 the most happy-go-lucky lack of coordination between legislation affect- 
 ing income and legislation affecting expenditure. The Finance Ministers 
 of other countries draw up a budget, which forms the basis of Parlia- 
 mentary legislation in financial matters. They make careful estimate of 
 probable Government income and of the demands for the executive 
 administration, and Parliament, as an almost pro forma matter, passes 
 legislation affecting taxation which will conform to the proposals in the 
 
368 AMERICAN FEDERAL GOVERNMENT 
 
 budget and limits appropriations within lines which the budget may 
 prescribe. 
 
 With us, however, the Secretary of the Treasury is little more than an 
 agent who, without comment, transmits to Congress from the heads of 
 the various Departments their estimates regarding appropriations. Con- 
 gress, in turn, does not pay close heed to these estimates, frequently 
 declining to make appropriations asked for and not infrequently making 
 appropriations which the executive head of the Department has declared 
 are not needed. 
 
 With us there is little flexibility on the income side of the great public 
 ledger. The Secretary of the Treasury may make general recommenda- 
 tions regarding the necessities for greater income or the opportunity for 
 decreasing taxation, but Congress does not look to the head of the 
 Treasury Department with much solicitude for advice regarding tax 
 legislation or suggestions concerning conservative limits of appropria- 
 tions. The sources of our Government income are so intimately bound 
 up with the economic theory of protection that we are likely to formu- 
 late our tax laws with little or no regard to the amount of income they 
 will produce, and to make appropriations on as liberal a scale as the 
 income will permit, and the Finance Minister has little if any respon- 
 sibility either for a cash balance or a Treasury deficit. 
 
 Congress is not disposed, either, to give very much heed to Depart- 
 mental recommendations regarding expenditures. 
 
 For many years, for example, every Secretary of the Treasury, in 
 each of his annual messages to Congress, recommended that no appro- 
 priation be made for maintaining certain customs districts which have 
 become commercially obsolete and which are maintained apparently for 
 no other purpose than to give the Senator or Congressman most con- 
 cerned an opportunity to recommend a Presidential appointment. There 
 are 12 customs districts, which are officered at an expense of $15, 578. 14, 
 where the total income from customs in a single year was only $275.26, 
 and the cost of collection, therefore, reaches $56.59, for each dollar col- 
 lected. In spite of repeated recommendations that we accept the changed 
 conditions which have made these old-time customs districts quite de- 
 serted by commerce, Congress insists year after year that they shall be 
 maintained, that officers shall be appointed, and the expenses of salaries 
 and office administration appropriated. 
 
 A saving of $200,000, a year could easily be made without any sacrifice 
 of efficiency in the customs service, but Congress hesitates to give up the 
 privilege of naming the appointees who are to receive in salaries this 
 $200,000 of useless expenditure. 
 
 Sometimes this apparent spirit of perverseness goes farther and actively 
 puts obstacles in the way of administration. An illustration of that is 
 found in recent efforts to introduce improved methods into the Bureau 
 of Engraving and Printing. The Government printing of currency is 
 
THE DEPARTMENTS 369 
 
 done upon the same form of old-fashioned hand-press that was used 
 when the first greenback and the first national bank-note were turned 
 out. The process is slow and expensive. The growth of the country 
 created a demand upon the Bureau which it was almost impossible to 
 keep pace with, and so it was decided to put in power presses to print 
 the backs of notes. An expenditure of $25,000 was made, with results 
 so economical that a saving of the whole cost of the machines was effected 
 in a few months. Tests were made by mixing hand-printed and machine- 
 printed bills and submitting them, unmarked, to numbers of expert 
 money counters; and invariably the machine-printed bills would be 
 selected as the best examples of plate printing. 
 
 Labor organizations were opposed to this introduction of power presses, 
 however, and when Congress convened brought active pressure to bear 
 at the Capital, with the result that riders were tacked upon the appro- 
 priation bills prohibiting the expenditure of any appropriation for the 
 maintenance of power presses ; and this was done without any communi- 
 cation with the Secretary of the Treasury on the part of either Senate or 
 House committee, without any opportunity for presenting the Treasury's 
 side of the matter, and without any effort to secure information as a 
 basis for intelligent legislation except such as was presented by labor 
 leaders who were not even in the employ of the Government. 
 
 The Ways and Means Committee and the Appropriation Committees 
 of Congress take upon themselves the responsibility for adjusting the 
 relation between income and expenditure. A great tariff bill may be 
 framed with little more than nominal reference to the Treasury Depart- 
 ment, and legislation formulated which may enormously affect one side 
 or the other of the Treasury accounts without the voice of the Secretary 
 being heard or his advice asked for. Income is provided and expendi- 
 tures are appropriated, without Congress being advised by the head of 
 the Treasury as to the balance between the two sides of the budget. 
 
 A phase of Treasury affairs emphasized in the public mind is the 
 relation of the Treasury to the money market. At certain seasons much 
 is to be heard about the cries of Wall Street for Treasury help, and of 
 the relief measures which the Secretary of the Treasury may bring to 
 bear upon an unsatisfactory banking position. An ideal fiscal situation 
 for the Government, President Harrison once said, would be one in 
 which the income each day just equalled the expenditures. In such a 
 situation there would be no problem regarding the relation of the Treasury 
 to the money market. So long as we must work with our present Sub- 
 treasury system, however, founded as it was in ignorance and suspicion 
 of proper banking functions, we must periodically face a situation in 
 which the operations of the Treasury are of great import in the general 
 financial situation. Laws which have been allowed to stand unchanged 
 since Jackson's hatred of the banks was crystallized into statute, prevent 
 the deposits of the receipts from customs anywhere but in the actual 
 
 24 
 
370 AMERICAN FEDERAL GOVERNMENT 
 
 vaults of the Treasury or Sub-treasury. The country is in such a position 
 as a great business firm would be whose receipts at times enormously 
 exceeded its expenditures, if it should decide to lock up its daily income 
 in safety deposit vaults, turning all credits into cash and locking up the 
 actual currency just at a time when there might be a most active demand 
 in the ordinary channels of trade for the currency which would thus be 
 abstracted. 
 
 Of course, it is impossible to have such an ideal situation as President 
 Harrison suggested; so long as the laws relating to the Sub-treasury 
 system stand unchanged it is useless to talk about taking the Govern- 
 ment out of the banking business. The operations of the Treasury 
 inevitably draw it into the situation, and it becomes one of the great prob- 
 lems of the Secretary to keep, as nearly as may be, an unchanging total 
 of currency in the Treasury vaults and neither withdraw from the circu- 
 lating medium in active use great quantities of currency when income 
 is excessive nor suddenly add to the currency in circulation when the 
 Government has great payments to make in excess of its daily income. 
 The problems of that character were unusually frequent and difficult 
 during Secretary Gage's administration. The successful settlement of 
 the Pacific Railroad indebtedness brought a payment of $58,000,000 to 
 the Treasury in December, 1897, just at a period of most active com- 
 mercial demand and when the withdrawal of so much currency would 
 have been disastrous to reviving business. A few months later came the 
 sudden expenditures resulting from the $50,000,000 appropriation made 
 by Congress at the beginning of the Spanish War, and soon after that were 
 poured into the Treasury the proceeds of $200,000,000 of Spanish War 
 bonds. Twice during the administration issues of Government bonds 
 matured, and payment of many millions had to be made on that account. 
 This period was the most remarkable since the Civil War for violent 
 fluctuations in the Treasury's balance, and it is one of the best evidences 
 of genius in the administration of the Department at that time that the 
 stock of money actually in the Treasury vaults, in spite of this period 
 of irregular income and expenditure, was always kept at comparatively 
 the same level, and Treasury operations were not permitted seriously 
 to affect the currency of the country. 
 
 It is such problems as that which a Secretary of the Treasury must 
 always find recurring, so long as our present Sub-treasury system is main- 
 tained and the best evidence of ability on the part of a Secretary is that 
 these sudden influxes of funds or exceptional expenditures are handled 
 so that the public has no reason to recognize the intimate relation which 
 must exist under present conditions between the Treasury and the bank- 
 ing situation. 
 
 With a currency system which has largely been the growth of exigency 
 rather than of forethought, there is always a desire for legislation which 
 will bring the country's currency into line with the best economic ideas. 
 
THE DEPARTMENTS 371 
 
 Both the country and Congress have come to look to the head of the 
 Treasury Department as a natural source for suggestions regarding 
 needed currency and banking legislation, and one of his most important 
 duties is the preparation of that portion of his annual report to Congress, 
 which contains recommendations of such character. That has been 
 true particularly during those recent years in which fundamental currency 
 discussion has been so prominent in political affairs, and during which 
 there has been formulated legislation which is an important part of the 
 ground-work of our financial system. It requires a wide range of ability 
 to pass easily from the innumerable practical problems of executive ad- 
 ministration which the Treasury presents, to the writing of State papers 
 given to theoretical and economic discussion of some of the subtleties of 
 finance and currency. The annual reports of the heads of the Treasury 
 Department for many years, however, show that we have been fortunate 
 in having men of such breadth of ability that they could do this and do 
 it well. 
 
 Not only must the Secretary successfully grasp theoretical problems 
 in finance and be capable of building up in his message to Congress sound 
 recommendations for financial legislation, but he has to face a much 
 more trying ordeal when he is invited to appear before either the Senate 
 Finance Committee or the House Committee on Banking and Currency 
 a thing which is usual whenever important financial legislation is under 
 consideration. It is a comparatively easy matter, with ample time and 
 good counsel, to evolve satisfactory recommendation for legislation, but 
 it is far more difficult to advocate those recommendations in an inquiry 
 by ingenious and hostile members of a Congressional Committee. Any- 
 one who has studied the proceedings of Senate or House Committees 
 when prominent business men have been brought before them to express 
 their views upon financial legislation must have been struck by the la- 
 mentable showing which some of the most prominent financiers may 
 make under a fire of questions from keen-witted and experienced mem- 
 bers of this Committee. Men who are rulers in practical finance are 
 frequently unable to hold their own in anything like creditable shape 
 in a discussion of fundamental financial measures which it may be pro- 
 posed to enact into law. 
 
 English Cabinet Members must appear in Parliament to answer inter- 
 pellations, but notice of the question is given the day before and a mem- 
 ber of the Cabinet has ample time to confer and to study his answer, and 
 he may even decline for state reasons to make any answer, if he sees fit. 
 Our own Finance Minister is put in a much more difficult position, how- 
 ever, when he appears before a Congressional Committee. He knows 
 only the general line that the inquiry will take. If he is called before 
 the Banking and Currency Committee, he faces seventeen members, of 
 whom a large minority are politically hostile and who are thoroughly 
 trained in the art of asking difficult questions. His answers become a 
 
372 AMERICAN FEDERAL GOVERNMENT 
 
 part of the published records, and he is placed in a position where, if he 
 is to make a satisfactory showing, he must reply off-hand to any question 
 that is propounded by any member of the Committee. To go through 
 such an ordeal with satisfaction needs thorough understanding of the 
 subject and readiness of comprehension and retort. 
 
 The most important bureau in the Treasury Department is the one 
 charged with the duty of collecting the customs. Not only must this 
 bureau, in order that there shall be no smuggling, keep a watchful eye 
 upon 15,000 miles of coast, a Northern frontier more than three thousand 
 miles long, and a Southern boundary stretching the full breadth of 
 Mexico, but it is charged with the administration of the most intricate 
 tariff schedule, requiring not only fidelity and integrity where vast sums 
 are concerned, but great expert knowledge in regard to commodities and 
 the keenest intelligence in the application of that knowledge. The great 
 work of this bureau is, of course, in the collection of the customs levied 
 on regularly imported merchandise, and that work goes on with little 
 criticism and without much friction. Another phase, the collection of 
 duties on articles brought home by returning travelers, is compara- 
 tively insignificant in point of income, but to a large number of citizens 
 it is the one point of contact which they have with the Department, 
 and it not infrequently leaves them ready to condemn and upbraid. One 
 of the difficulties in this part of 'the administration lies in the palpable 
 fact that it is not easy to obtain a corps of inspectors, when Congress limits 
 their salaries to four dollars a day, who will serve long hours at trying 
 duties, always maintain their equanimity, and be courteous in the face 
 of much provocation to be otherwise, and always retain their integrity 
 and repel efforts to corrupt them made by people occupying positions 
 of high standing and respect in the community. Under President Mc- 
 Kinley's administration it was determined to make the enforcement of 
 the law, as it applied to returning travellers, much more rigid than had 
 been the case, and the stricter enforcement which has since been in 
 vogue has led to more criticism of the Treasury, probably, than has any 
 other phase of its affairs. 
 
 In the minds of most people a customs law seems to be quite unlike 
 other laws. It is a statute which it is more or less of a credit to evade, 
 and methods of false witness and bribery may be brought to bear with- 
 out troubling the traveller's conscience. It is this peculiarity of human 
 nature that makes the task extremely difficult. There is much complaint 
 about the Treasury treating returning travelers as if their word was not 
 to be trusted, and submitting their baggage to search after sworn declar- 
 ation has been made. Brief experience, from the inside, with this part 
 of the Treasury administration will convince one how necessary such 
 an attitude is. As an illustration of that statement, the case might be 
 cited of fifteen prominent citizens of New York City who went abroad 
 two or three years ago, and, on their return, all submitted sworn state- 
 
THE DEPARTMENTS 373 
 
 ments in regard to the contents of their trunks. Twelve declared they 
 had no dutiable articles, and the remaining three paid an aggregate of 
 $538. The next year the same fifteen citizens made their annual Euro- 
 pean pilgrimage and, on their return, were met by the stricter adminis- 
 tration of the same law. In addition to their sworn declaration their 
 baggage was carefully examined, with a result that they paid over $34,000 
 of duty. Is it small wonder that, after endless experiences, of which the 
 foregoing is but an average illustration, a strictness of inspection should 
 be put in force which is galling to men who have both honor and good 
 memories and make out correct schedules of their purchases when they 
 give their sworn declaration to a customs inspector ? 
 
 In the administration of the customs there have undoubtedly been 
 men who were not true to their oath of office and have accepted bribes. 
 A considerable number of inspectors have at one time or another been 
 summarily dealt with for such offense. In the handling of the vast sums 
 of money which are a part of the Treasury's operations, there have, in 
 very rare cases, been instances of petty pilfering. Taken by and large, 
 however, the Treasury Department is a splendid great commercial ma- 
 chine, administered with an integrity reaching all the way from the head 
 of the Department through the whole army of its thousands of sub- 
 ordinates, an integrity of which the country may well be proud. Every- 
 where in the administration the interests of the Government are 
 paramount to all else. 
 
 THE TREASURY AND THE MONEY MARKET 
 
 [The vast sums of money paid to the United States government in the form 
 of taxes, fees, and postal charges (considerably over $1,000,000,000 per year), 
 bring the administration of the treasury into close connection with the banking 
 industries and the money market of the United States. The manner in which 
 the treasury has from time to time interfered in order to give relief to the money 
 market is illustrated by the following brief article from the New York Evening 
 Post, March 8, 1907.] 
 
 WHEN it became known that George B. Cortelyou was to become 
 Secretary of the Treasury on March 4, many persons went to him and 
 asked what his policy or policies would be, and whether he intended to 
 "come to the 'aid of the market" when Wall Street, through speculative 
 excesses, needed money. Mr. Cortelyou told all these inquirers that 
 he had formulated no cut and dried programme; that he was going to 
 take up the problems of his new office as they confronted him. Nearly 
 every one who talked with the incoming secretary, however, came away 
 with the impression that he would not be so ready to heed the cries for 
 help from the New York financial district as Mr. Shaw had been. 
 
 In his last annual report, Secretary Shaw reviewed his financial policy 
 
374 AMERICAN FEDERAL GOVERNMENT 
 
 with respect to the Treasury's relations with the money market. He set 
 forth with detail and explanations his reasons for extending aid in 1902, 
 1903, 1904, 1905, and 1906. What follows is Secretary Shaw's own 
 account of the reasons which influenced him, and which have been so 
 widely discussed and criticised. It is set forth again at this time to 
 refresh the memory of those who may be interested, and may be used 
 as a basis of comparison with whatever line of action Secretary Cor- 
 telyou may determine to pursue. 
 
 CONDITIONS IN 1902 
 
 During the summer of 1902 surplus bank reserves throughout the 
 country ran relatively very low. " Preparatory for the crisis certain to 
 ensue," the Secretary of the Treasury caused to be printed as much un- 
 ordered national-bank circulation as the Bureau of Engraving and Print- 
 ing could turn out, in addition to the ordinary demands upon it, and in 
 September of that year offered to accept satisfactory security other than 
 Government bonds for deposits of public money then held by the banks, 
 for which this additional circulation had been printed, on .condition that 
 the released bonds should be immediately made the basis for circulation. 
 
 He also anticipated the payment of November interest due on out- 
 standing obligations of the Government, and offered to purchase for the 
 sinking fund any United States 4 per cent bonds of the loan of 1925 that 
 might be offered at 137! and interest to date of purchase. He also 
 increased deposits in national banks in a considerable sum. In these 
 several ways be restored to the channels of trade somewhat over 
 $57,000,000 and stimulated national bank circulation to the extent of 
 $18,000,000. He also issued an announcement that he would not exer- 
 cise the discretion given him by statute to liquidate banks which fail to 
 maintain their reserve should they fail to maintain the same against 
 deposits of Government money. 
 
 These operations were not begun, however, "until a condition existed 
 which in the opinion of many leading bankers of New York city justified 
 the issuance of Clearing House certificates, and when a resort thereto 
 was being seriously considered." Two of these methods (the accept- 
 ance of other than Government bonds as security for deposits, and the 
 announcement that the discretion with which the Secretary of the Treas- 
 ury is clothed by statute would not be exercised against banks failing to 
 maintain reserve against Government deposits) received their full meed 
 of criticism at the time, "but no lawyer ever doubted their legality and 
 no business man now questions their necessity. 
 
 " Financiers generally now recognize, and some of the best known 
 have publicly announced, that but for what was then done a panic would 
 have ensued rivalling in severity any in our history, and which would 
 
THE DEPARTMENTS 375 
 
 possibly have continued until industrial conditions were disastrously 
 affected." 
 
 AID GIVEN IN 1903 
 
 The law authorizes the Secretary of the Treasury to deposit in national 
 banks only internal revenue and miscellaneous receipts. Having found 
 it impracticable to relieve a monetary stringency with current internal 
 revenue receipts; amounting 'only to about $500,000 per day, Secretary 
 Shaw early in 1903 ordered their segregation and the accumulation of a 
 separate and distinct fund composed entirely of internal revenue and 
 miscellaneous receipts, so as to be prepared in case of an emergency to 
 grant prompt relief by large deposits. This practice has been continued. 
 
 During the fall of 1903 there was restored to the channels of trade an 
 aggregate of $27,000,000. This was accomplished by purchasing out- 
 standing Government bonds for the sinking fund amounting to 
 $13,000,000 and by direct deposits in national banks aggregating 
 $14,000,000. National bank circulation was also stimulated to some 
 extent. 
 
 CANAL PAYMENT IN 1904 
 
 In the spring of 1904, by direct appropriation of Congress, $10,000,000 
 was paid to the Government of Panama, and $40,000,000 to the Panama 
 Canal Company for the right of way on which to construct the canal 
 across the Isthmus. Preparatory to making these payments pro-rata 
 transfers were made of Government deposits from all depository banks 
 outside to those within the city of New York, and the amount thus trans- 
 ferred distributed pro rata among depositories in that city. 
 
 The payment of $40,000,000 to the Panama Canal Company on May 9, 
 1904, was accomplished by the appointment of J. P. Morgan & Co. 
 special disbursing agents for the Treasury Department, and a pay war- 
 rant for $40,000,000 was then issued to Clearing House. Morgan & Co. 
 at once deposited an equal amount through the same channel in the 
 banks, from which the money was drawn with which to pay the warrant. 
 
 As the transaction worked out, only a few thousand dollars actually 
 changed hands, money rates were not affected in the slightest degree, 
 and not a dollar of gold was shipped from this country. The transfer to 
 France was skilfully effected by Morgan & Co. through the purchase 
 from time to time of foreign exchange. Neither was there any expense 
 to the Government, the disbursing agents volunteering to represent the 
 Government gratis, and look to the French Canal Company for their 
 pay. The Republic of Panama invested most of the purchase price of 
 her cession in the United States, and thus shipments of money to that 
 country were avoided. No purchases for the sinking fund were made 
 during the year. 
 
376 AMERICAN FEDERAL GOVERNMENT 
 
 OPERATIONS IN 1905 
 
 "For reasons which cannot be fully explained," revenues fell off dur- 
 ing the calendar year 1904 and the early months of 1905, which, coupled 
 with the extraordinary expenditures, caused a deficit for the fiscal year 
 ending June 30, 1905, of $23,000,000. To make good this deficit and 
 to meet these expenditures, $50,000,000 was withdrawn from depositary 
 banks. "These withdrawals, however, were insufficient to inspire con- 
 servatism," and during the summer the surplus reserve of the associated 
 banks of New York City fell below $7,000,000, while the rate on call 
 money, fluctuated from below i to 3^ per cent, averaging for the season, 
 perhaps, about 2 per cent. The anticipated stringency was deferred, 
 however, possibly in part by extensive refundings of Government bonds 
 into consols of 1930, which, in conjunction with withdrawals of deposits, 
 lowered the price of consols to a point where banks found the mainten- 
 ance of circulation profitable, and an increase of $25,000,000 resulted. 
 "The crisis inevitable came, though some months belated." 
 
 RELIEF MEASURES IN 1906 
 
 In February of 1906, $10,000,000 was deposited in national bank 
 depositaries in seven of the principal cities, and satisfactory security other 
 than Government bonds accepted, but with the distinct understanding 
 that it would be recalled in July of that year. "This relief was not suffi- 
 cient, however. Banks, everywhere, West as well as East, found them- 
 selves in the spring with surplus reserve exhausted. The foreign exchange 
 market responded sympathetically in a very marked decline in sterling 
 exchange sufficient to have insured the importation of gold if the banks 
 had been in position to buy the exchange with which to secure it." 
 
 Secretary Shaw then offered to make deposits, satisfactorily secured, 
 equal in amount to any actual engagements of gold for importation, the 
 same to be promptly returned when the gold actually arrived. In this 
 way approximately $50,000,000 (more than six carloads) in gold, largely 
 in bars, was brought from abroad. Most of this came from Europe, 
 but part from Australia and South Africa. 
 
 "This was accomplished without expense to the Government, and 
 without profit to the importing banks, but with great benefit to the busi- 
 ness interests of the country. The various banks which imported this 
 gold lost in the transactions several thousand dollars, as established by 
 their books ; the price of exchange promptly advanced so that merchants 
 and exporters of grain and cotton having exchange to sell were benefited 
 in excess of $150,000, and interest rates dropped sufficiently to effect a 
 saving to borrowers in New York city alone of more than $2,000,000." 
 
THE DEPARTMENTS 377 
 
 This means of relieving financial stringencies, which has been once 
 since repeated, attracted far more attention throughout Europe than in 
 the United States, though it has been widely commented upon in both 
 places. "It has at least demonstrated that the United States is in a 
 position to more effectually influence international financial conditions 
 than is any other country, and justifies great caution lest, while protecting 
 our own interests, we cause distress elsewhere, which will soon be re- 
 flected here." 
 
 THE UNITED STATES DEPARTMENT OF JUSTICE 1 
 BY PROFESSOR JOHN A. FAIRLIE 
 
 THE Department of Justice has been developed from the English 
 office of Attorney- General, with important features added in the course 
 of American experience. As early as the reign of Edward I, almost 
 contemporaneous with the appearance of a special legal profession in 
 England, we find Crown Attorneys (Attornati Regis) employed for 
 guarding the royal privileges in the courts. By the time of Edward IV 
 the official title of Attorney-General appears for the first time. A little 
 later, as the distinction between barristers and solicitors became estab- 
 lished, the Crown lawyers are distinguished as the King's Attorney and 
 the King's Solicitor. 
 
 These law officers acted as the legal advisers of the King and his 
 ministers, and also conducted public prosecutions in important criminal 
 cases. But there was not developed, and has not yet developed in Eng- 
 land any system of local public prosecutors. Nor has the English 
 Attorney-General become one of the leading political officials with a 
 seat in the cabinet, since political and administrative functions, which 
 have become attached to the office in this country, are there performed 
 by the Lord Chancellor and other officials. 
 
 Most of the colonies had Attorneys-General ; and these officers were 
 continued under the State governments. In the national government 
 the office of Attorney- General was providsd for in the Judiciary Act of 
 1789. For a good many years the work of the office did not require the 
 entire time of the Attorney-General and he was permitted, if not ex- 
 pected, to continue in private practice. The salary was only $1,500 a 
 year, less than that of the other cabinet secretaries; and not until 1814 
 was he required to reside in Washington. From the first the Attorney- 
 General was a member of the President's cabinet ; but his office was not 
 formally recognized as an executive department until in 1870 the Depart- 
 ment of Justice was established. 
 
 The functions of the Attorney- General and the Department of Justice 
 
 1 Michigan Law Review, 1906. 
 
378 AMERICAN FEDERAL GOVERNMENT 
 
 may be considered in four main divisions: (i) as legal adviser to the 
 President and the executive departments ; (2) as attorney for the United 
 States before the courts, either as prosecutor or defendant ; (3) adminis- 
 trative supervision over officers of United States courts and over United 
 States penal and reformatory institutions; and (4) as adviser to the 
 President in the exercise of his pardoning power. 
 
 It is the duty of the Attorney- General to give his advice and opinion 
 upon questions of law when required by the President or by the heads 
 of departments on any matter concerning their departments. Questions 
 not involving the construction of the Constitution of the United States 
 may be referred to subordinates ; and their opinions when approved by 
 the Attorney- General have the same force and effect as the opinions of 
 the Attorney- General himself. Officers in the Department of Justice 
 must give opinions and render legal services to the President or officers 
 of other departments. 
 
 In the discharge of these duties the action of the Attorney- General is 
 quasi-judicial. "His opinions officially define the law in a multitude of 
 cases, where his decision is in practice final and conclusive not only 
 as respects the action of public officers in administrative matters, who 
 ,are thus relieved from the responsibility which would otherwise attach 
 to their acts, but also in question of private right, inasmuch as parties, 
 having concerns with the government, possess in general no means of 
 bringing a controverted matter before the courts of law, and can obtain 
 a purely legal decision of the controversy, as distinguished from an 
 administrative one, only by reference to the Attorney-General. Accord- 
 ingly, the opinions of successive Attorneys- General . . . have come to 
 constitute a body of legal precedents and exposition, having authority 
 the same in kind, if not the same in degree, with decisions of the courts 
 of justice." "The Supreme Court will not entertain an appeal from 
 his decision, nor revise his judgment in any case where the law authorized 
 him to exercise his discretion or judgment." 
 
 But the Attorney- General is under no obligation to render an award, 
 or determine a question of fact in cases referred to him; nor does an 
 appeal to him lie from another department by any party assuming to be 
 aggrieved by its action, and seeking to have it reviewed; nor is he to 
 give advice to heads of departments on matters which do not concern 
 their departments, and in which the United States have no interest ; nor 
 is he authorized to give official opinions not falling within the scope of 
 his duties, so as to connect the government with individual controversies, 
 in which it has no concern ; nor is he in general to give official opinions 
 to subordinate officers of the government ; nor in cases not actually pre- 
 sented for action by an executive department. He will not answer ab- 
 stract or hypothetical questions of law ; nor purely judicial questions in 
 controversy before the courts; nor construe department regulations. 
 He may, like the heads of other departments, be required to furnish 
 
THE DEPARTMENTS 379 
 
 information to Congress ; but he does not furnish legal opinions to Con- 
 gress, or its committees. 
 
 More specifically, it is the duty of the Attorney- General and his as- 
 sistants to examine all titles to land purchased by the United States for 
 the purpose of erecting public buildings ; and no money can be expended 
 for land until the title has been approved. 
 
 As chief advocate for the government, the Attorney- General has super- 
 vision over all actions at law or suits in equity to which the United States 
 is a party or in which the United States has an interest. Suits begun by 
 the government are brought before a District, Circuit or Supreme Court 
 of the United States under the provisions of the statutes regulating the 
 jurisdiction of these courts. Criminal cases include only crimes in viola- 
 tion of the statutes of the national government. The largest number of 
 prosecutions are for violation of the internal revenue laws; a consider- 
 able number are for violation of postal laws, custom laws and pension 
 laws ; while a great variety of other statutes are involved in other cases. 
 Civil suits are brought most largely in connection with customs and 
 internal revenue administration ; but all of the departments are involved 
 in some cases. Besides cases in which the United States is itself a party, 
 it has been held that in a suit between States where the United States 
 has an interest, the Attorney-General may appear and introduce evi- 
 dence and argument without making the United States a party for or 
 against whom judgment may be rendered. 
 
 Following the rule of English law, suits against the United States 
 government are not allowed as a matter of right. 1 But provision has 
 been made for trying some kinds of claims against the government by 
 the creation of a Court of Claims and a Court of Private Land Claims ; 2 
 while claims for small amounts may be brought before the District and 
 Circuit Courts of the United States, and claims under treaty stipulations 
 are investigated by special commissions. In all these cases the officers 
 of the Department of Justice act as attorneys for the defense on the part 
 of the government. 
 
 According to the statutes the Attorney-General is to conduct and argue 
 cases before the Supreme Court and the Court of Claims, except where 
 other provision is made for particular cases. In part, cases in the Court 
 of Claims are now placed in the hands of one of the Assistant Attorneys- 
 General ; and even before the Supreme Court many cases are conducted 
 without the personal appearance of the Attorney- General. In the sub- 
 ordinate courts the Attorney- General very seldom appears in person. 
 
 In the countries of continental Europe the Minister of Justice appoints, 
 or at least selects, the judges; and exercises through his department a 
 
 1 Not even the Attorney-General can waive the exemption of the United States 
 from judicial process or submit United States property to the jurisdiction of the court in 
 a suit brought against its officers. Stanley v. Schwalby, 162 U. S., 255. 
 
 2 The Court of Private Land Claims was abolished June 30, 1904. 
 
380 AMERICAN FEDERAL GOVERNMENT 
 
 large administrative control over the judiciary. Even in England, the 
 Lord Chancellor selects most of the judges and has disciplinary powers 
 over the judges in the lower courts, as well as some minor supervision over 
 the higher courts. Compared to the practice of foreign countries the 
 powers of the Attorney- General over the judicial administration are 
 very limited. He has no power of appointing judges ; and while he may 
 be consulted by the President in reference to a judicial appointment, 
 there is no established custom of asking his advice, still less of accepting 
 his recommendations. And the position of the judiciary as an independ- 
 ent branch of the government, coordinate with the legislative and the 
 executive, prevents any control over their judicial acts. Nevertheless the 
 Attorney- General has some powers of administrative supervision over 
 the executive officers of the courts, similar to those of a European Minister 
 of Justice, which serve to make his position of more importance in the 
 national administration than that of the Attorneys-General in the States. 
 
 Local government attorneys were unknown both in England and the 
 American colonies. Criminal prosecutions were ordinarily begun by 
 private individuals; while the specially important criminal cases and 
 civil cases requiring a government attorney were attended to by the 
 Attorney- General arid his immediate staff. But the Judiciary Act of 
 1789, organizing the United States courts, provided that in each district 
 there should be an attorney of the United States appointed to conduct 
 government business in the courts. At first these district attorneys were 
 paid by fees, and probably gave only a part of their time to government 
 matters. But with the development of public prosecutions in criminal 
 cases, they have become permanent salaried officials ; while a correspond- 
 ing class of officials has also been developed in the States. 
 
 District attorneys are now appointed, by the President and Senate, 
 for each of the eighty-six judicial districts of the United States. Their 
 terms are four years, and their salaries vary from $2,000 to $6,000. In 
 most districts there are one or more assistant attorneys and clerks. 
 
 It is the duty of each district attorney to prosecute, in his district, all 
 delinquents for crimes and offenses cognizable under the authority of 
 the United States, and all civil actions in which the United States are 
 concerned. In certain cases he must act as attorney in suits where officers 
 of the United States are parties; unless otherwise instructed by the 
 Secretary of the Treasury, he must appear in behalf of the defendants in 
 all suits against collectors, or other revenue officers in connection with 
 their official duties; and he must conduct suits and proceedings under 
 the national banking law which involve United States officers. 
 
 From this statement it will be seen that the duties of the district attorney 
 are analogous to the court functions of the Attorney-General. The district 
 attorneys in fact stand in much the same relation to the District and 
 Circuit Courts as does the Attorney-General to the Supreme Court. 
 They are, as has been noted, under the general superintendence of the 
 
THE DEPARTMENTS 381 
 
 Attorney-General ; but it has been held that this does not authorize him 
 to control the actions of the district attorneys by general regulations. 
 
 One of the most important branches of the work of district attorneys 
 is their control over criminal prosecutions. Limited as they are to crimes 
 against the authority of the United States, this function is of less impor- 
 tance than that of the prosecuting attorneys in the States; but within 
 their own field they have the same influence. It depends to a large ex- 
 tent on their action to secure an indictment, and to carry on the prose- 
 cution so as to secure conviction. But in case of neglect of duty, the 
 supervision of the Attorney- General is more likely to secure the removal 
 of the delinquent official than in the States. 
 
 United States Marshals were also a new creation of the Judiciary Act 
 of 1789; but their functions correspond to those of the old English office 
 of sheriff. Marshals are appointed by the President and Senate for each 
 judicial district of the United States for a term of four years. Each 
 marshal has a number of deputies to assist in the duties of the office. 
 
 It is the duty of each marshal to attend the District and Circuit Courts 
 of the United States when sitting in his district ; and to execute through- 
 out the district all lawful precepts directed to him and issued under the 
 authority of the United States. The marshals and their deputies have 
 in each State the same powers in executing the laws of the United States 
 as the sheriffs in such State have in executing its laws. They make arrests 
 and carry out the judgments of the courts, seizing and selling property 
 under civil judgments, and transferring convicted prisoners to the place 
 of confinement. They stand in the same relation to the peace of the 
 United States as a sheriff to the peace of the State. Under the Act of 1789 
 it was considered that they had implied power to summon the military 
 forces of the United States as a posse comitatus; but the Act of 1878 
 prohibited the use of the army in this way except when expressly au- 
 thorized by the Constitution or Acts of Congress. 
 
 THE POST OFFICE: ITS FACTS AND ITS 
 POSSIBILITIES 1 
 
 BY R. R. BOWKER 
 
 UNCLE SAM meets his folks face to face at the post office. It is the 
 post which brings each citizen, who may have no other relations with his 
 government in mind, into daily touch with the United States. The 
 United States Post Office Department is the largest business system 
 and does the largest single business in the world. In the year ending 
 June 30, 1904, it transmitted through 71,131 post offices approximately 
 9,500,000,000 pieces of postal matter, an average of 115 to each 
 
 1 From the Review of Reviews, 1904. Reproduced in part, by permission. 
 
382 AMERICAN FEDERAL GOVERNMENT 
 
 man, woman, and child in the country, received from all sources 
 $143,582,624, and paid out $152,362,116, leaving a deficit of $8,779,492 
 to be paid from taxes. 
 
 UNITED STATES POSTAL FIGURES 
 
 Under the first Postmaster General, the 75 post offices of 1789 served 
 an average of 52,400 persons each. Under his forty successors, there 
 has been an increase of post offices from 1,025 in 1 800-01, serving an 
 average of 5,000 persons each, to a maximum of 76,945 in 1900-01, or a 
 post office for less than each thousand of population. The increase in 
 rural free-delivery routes, making unnecessary many fourth-class offices, 
 has reduced the number to 71,131 in 1904. These are connected by 
 31,513 mail routes, 469,818 miles in length, with annual travel in 1904 
 of 505,585,526 miles. Of these 421 were electric car routes, covering 
 4,945 miles. A hundred years ago, the yearly postal receipts were about 
 half a million dollars, out of which as high as $100,000 profit was returned 
 to the Government. In 1900, the receipts passed the hundred-million 
 point, but showed a deficit exceeding $5,000,000. The largest deficit, in 
 1897, exceeded $11,000,000, but it is estimated that the deficit for 1905 
 will exceed $14,000,000. 
 
 When, in 1845, our American Post Office made a half-hearted adop- 
 tion of Rowland Hill's reform, letter postage became 5 cents per half- 
 ounce under and 10 cents over 300 miles; in 1851, the rate was made 
 3 cents under and 6 cents over 3,000 miles; in 1863, the rate became 
 3 cents for all distances, and in 1883, 2 cents; finally, the weight unit 
 at the 2-cent rate was increased to one ounce. The i-cent postal card 
 came into use in 1872. 
 
 CLASSIFICATION OF MAIL MATTER 
 
 Under the present classification, written communications, including 
 all matter of the nature of individual correspondence, even though printed 
 and all matter closed against inspection, constitute the first class, at the 
 rate of 2 cents for each ounce or fraction thereof, up to the limit of four 
 pounds, or i cent for postal cards or private mailing cards (officially 
 known as " post-cards "). "Drop-letters" at rural post offices, not in- 
 volving free delivery, may be posted at i cent each. The domestic rates 
 extend to Canada, Mexico, Cuba, possessions of the United States abroad, 
 the " Panama Canal Zone " and the United States Postal Agency at 
 Shanghai, China. Periodicals " entered at the post office as second-class 
 matter" can be prepaid by publishers or news-agents in bulk, at the rate 
 of i cent per pound. The third class includes, at the rate of i cent for 
 each two ounces or fraction thereof, or 8 cents per pound, to a limit of 
 
THE DEPARTMENTS 383 
 
 four pounds, except in the case of a single book, books, papers, and other 
 printed matter, including " point" for the blind, and proof-sheets and 
 manuscript copy therewith ; but periodicals of the second class may be 
 sent individually at i cent for four ounces, or 4 cents per pound. Books 
 printed for the blind may be sent between public libraries or public 
 institutions and blind people, free of postage. The fourth class includes 
 merchandise at the rate of i cent for each ounce or fraction thereof, or 
 1 6 cents per pound, to a limit of four pounds, except that seeds, plants, 
 etc., may be sent for i cent for each two ounces or fraction thereof. The 
 difficulty and needless cost of discriminating between third and fourth 
 class matter, and the prohibitory rate for the latter, have induced the 
 department to recommend the inclusion of both these in a new third 
 class, at the rate of i cent for each two ounces or fraction thereof, or 8 
 cents per pound, a wise proposal, which is now pending before Congress. 
 Third and fourth class matter must be prepaid by stamps, except that 
 under a recent law 2,000 or more identical pieces may be prepaid in 
 money without stamping. 
 
 NEWSPAPER POSTAGE 
 
 With the purpose of encouraging the printing of newspapers for the 
 education of the people, it was early provided that newspapers should 
 be sent free of postage within thirty miles, and later, within the county 
 of publication, except at letter-carrier offices. In 1879, a "bulk rate" 
 of 2 cent per pound was enacted for periodicals " entered at the post 
 office as second-class matter," permitting publishers to prepay periodicals 
 in bulk without affixing individual stamps requiring individual cancella- 
 tion, a saving both to the publisher and to the post office. This second 
 class was denned by law to cover " newspapers and other periodical pub- 
 lications, regularly issued, at stated intervals, and as frequently as four 
 times per year, bearing a date of issue and numbered consecutively, 
 issued from a known place of publication, without substantial binding, 
 and originated and published for the dissemination of information of a 
 public character, or devoted to literature, the sciences, arts, or some 
 special industry, and having a legitimate list of subscribers," exclu- 
 sive of "publications designed primarily for advertising purposes, or for 
 free circulation, or for circulation at nominal rates." 
 
 Foreign periodicals were included, and later, publications of institu- 
 tions of learning, etc. In 1886, this bulk rate was reduced, perhaps as 
 a sop to papers of political power, to i cent per pound, a rate below 
 average cost, which reduction further stimulated the Post Office Depart- 
 ment to hedge about this second-class rate with restrictive regulations. 
 These restrictions were aimed especially against cheap libraries or books 
 issued serially, which the Supreme Court has recently decided may not 
 
384 AMERICAN FEDERAL GOVERNMENT 
 
 be classed as periodicals ; the "return privilege " accorded to news agents ; 
 extravagant numbers of "sample copies"; periodicals from institutions 
 of learning which are really private affairs ; and advertising sheets with 
 circulations forced by nominal rates or premiums, such as are published 
 in great numbers at Augusta, Me. The aggregate amount of periodicals 
 mailed free or at pound rates in 1904 was 610,149,073 pounds, or over 
 305,000 tons. 
 
 Unfortunately, in the endeavor to prevent abuses, "such regulations 
 as the Postmaster General may direct" have developed and degenerated 
 into an elaborate and perplexing system of restrictions, now so complex 
 and detailed as to occupy 24 pages of the Postal Rules and Regulations 
 of 1902, arbitrarily applied and resulting in a petty interference with the 
 periodical press comparable only with Russian censorship. This bu- 
 reaucratic spirit has come to such a pass that well-known periodicals 
 have been " held up" in the post office for days because a page of illus- 
 tration or advertisement was slightly shorter or narrower than other 
 pages, and the legitimate business of the country has been subject to 
 incessant annoyances. When President Roosevelt's attention was called 
 to these absurdities, with an apology that such trivialities should be 
 brought before the President of the United States, he expressed with 
 characteristic vigor his regret "that such trivialities should exist to be 
 brought before the President." But even the hands of a President may be 
 tied by red tape, and the appeal found lodgment, as usual, in the pigeon- 
 holes of the very official appealed from, the statutory provision that "the 
 Postmaster General shall have the determination of appeals from the 
 action of the several Assistant Postmasters General" being practically 
 a dead letter. The Third Assistant Postmaster General, though pursuing 
 this policy of restriction, says, sensibly, in his recent report that "it would 
 undoubtedly facilitate the work of the department and subserve the 
 interests of the publishing business if the conditions of admissibility were 
 made to depend upon considerations of a more material and less ideal 
 character, and class and class distinguished only by physical tests." 
 
 RATE COMPLEXITIES 
 
 The law itself provides a sevenfold confusion of rates for periodical 
 publications of the second class: first, free to actual subscribers within 
 the county of publication, except through letter-carrier offices; second, 
 at i cent a pound to all offices, letter-carrier or otherwise, except the 
 office of publication if that be a letter-carrier office ; third, the same rate 
 for weekly publications even at the letter-carrier office of publication; 
 fourth, at i cent per copy for "newspapers," except weeklies, for delivery 
 by the letter-carrier office of publication; fifth, at i cent per copy for 
 other periodicals within two ounces in weight for delivery by the letter- 
 
THE DEPARTMENTS 385 
 
 carrier office of publication ; sixth, at 2 cents a copy for the same exceed- 
 ing two ounces in weight, all these six rates applying to publisher or 
 news agent only; a seventh rate of i cent for each four ounces or 
 fraction thereof being payable under all these circumstances by the 
 public for "second-class" periodicals, though for other printed matter 
 the rate is 8 cents per pound. 
 
 The contradictory result is that weeklies printed in New York will be 
 delivered in New York, San Francisco, or elsewhere for a cent a pound; 
 that any other periodical published in New York will be delivered in 
 San Francisco or anywhere except New York for i cent a pound, but in 
 New York, if a " newspaper," must pay i cent for a copy of any weight, 
 or if not a weekly or a " newspaper," i cent a copy under two ounces, 
 or 2 cents a copy thereover. These complexities, which propably are 
 not paralleled in any postal system in the world, are the direct result of 
 haphazard and piecemeal legislation. "This multiform classification 
 rate," says the Third Assistant Postmaster General, "is a relic of the 
 days when the postal business was in a more or less primitive state. In 
 this day of business methods, in government service the lack of business 
 simplicity and uniformity is keenly felt." As free county circulation is 
 now of diminishing importance, a simple uniform system might include 
 all regular periodicals formally registered in the second class at the rate 
 of i cent per pound to all regular subscribers, and 2 cents per pound for 
 all other copies ; or at the rate of i cent per pound except for delivery by 
 carrier, which should be at 2 cents per pound. 
 
 THE PARCELS POST 
 
 A "parcels post" has been a chief lack of our postal system. In Great 
 Britain, a parcel up to three feet in length may be sent for threepence, 
 or 6 cents, for one pound or less, and a penny, or 2 cents, for each addi- 
 tional pound, making thirteen pence, or 26 cents, for the maximum 
 weight of ii pounds. The presence in the Senate of the United States, 
 as Senators from New York, of the chairman of its greatest railroad 
 corporation and the president of an express company, is cited by critics 
 as indicating a reason why the Post Office Department is not authorized 
 by the law to obtain better rates from railroads and to compete with 
 express companies in sending parcels. 
 
 Since 1878 there has been no reduction in the rate provided by law 
 for railroad transportation of mails, which figures out, per ton-mile, $1.17 
 on a minimum of 200 pounds per day, 18.7 cents on a daily average of 
 5,000 pounds, and 5.8 cents on each additional 2,000 pounds average; 
 though an express company will carry for other patrons a hundred 
 pounds a thousand miles for $3.50, being 7 cents per ton-mile (involving 
 scarcely hah that payment for railroad transportation), and the railroads 
 
 2 5 
 
386 AMERICAN FEDERAL GOVERNMENT 
 
 themselves carry a hundred pounds of freight a thousand miles for from 
 $i down to 35 cents, being from 2 cents down to .7 cent per ton-mile. 
 A passenger is individually ticketed and 100 pounds of baggage individ- 
 ually checked at the mileage rate of 2 cents per mile, equivalent to 16 
 cents per ton-mile, while commuters are carried as low as J cent a mile, 
 or 4 cents per ton-mile. These figures suggest the need of a revision of 
 contracts, which would largely offset the postal deficit and fully justify 
 and make possible a proper parcels post. 
 
 There is now pending in Congress a bill promoted by the Postal Prog- 
 ress League, establishing a parcels post at the rate of i cent for each 
 three ounces, 5 cents for a single pound, and 2 cents for each additional 
 pound, making a maximum of 25 cents for an n -pound parcel. The 
 British parcels post insures a parcel up to $10 without charge, and for 
 a registration fee of 4 cents up to $25, with 2 cents additional fee for 
 each $50 up to $600; and in some countries packages may be mailed 
 C. O. D. for an additional fee, the valuation being collected and re- 
 turned through the post office. 
 
 The proposed consolidation of third and fourth class matter into a new 
 third class at i cent for two ounces, or 8 cents per pound, would furnish 
 a domestic parcels post to the limit of four pounds, and the objection that 
 the cost of the possible 3,000 miles of land transportation in this country 
 would involve loss on heavier parcels might be obviated by the adoption 
 of a zone system corresponding to the standard time zones, under which 
 a single rate might prepay within a single zone or between two adjacent 
 zones ; a once-and-a-half rate to a third zone, and a double rate to a fourth 
 zone ; so that a parcel might be sent from New York to Chicago for 8 cents, 
 to Denver for 12 cents, and to San Francisco for 16 cents, a pound. 
 
 We have for some time had parcels-post arrangements with Mexico, 
 the West Indies, and certain Central and South American states, and 
 with Newfoundland, New Zealand, and Hong-kong at a price of 1 2 cents 
 per pound (to Chile and Bolivia, 20 cents). A parcels post with Ger- 
 many has been experimentally established, and the arrangement with 
 the American Express Company, to which the British Government was 
 driven by the attitude of the United States, will presently be replaced by 
 parcels-post arrangements with Great Britain and France. To all the 
 countries of the Postal Union, an American may send commercial papers 
 for 5 cents for the first ten ounces and i cent for each additional two 
 ounces, being 8 cents per pound, and samples of merchandise at 2 cents 
 for the first four ounces and i cent for each additional two ounces, being 
 also 8 cents per pound. 
 
 FREE-DELIVERY SERVICE 
 
 The city free-delivery system, established in 1863, is now extended 
 to 1,100 letter-carrier post offices, and the special-delivery system, estab- 
 
THE DEPARTMENTS 387 
 
 lished in 1885, by which the special-delivery lo-cent stamp insures im- 
 mediate delivery by messenger, is now in use at all post offices. But the 
 great boon to the country has been the rural free-delivery service (de- 
 scribed and illustrated in this magazine for January, 1903), which, with 
 the electric trolley, the telephone, the telegraph, and the traveling library, 
 has done so much to relieve the isolation of that third of our population 
 connected with agricultural pursuits, and to bring to them the comforts 
 and conveniences of city life. This service, which began experimentally 
 in 1897 with 44 routes and an appropriation of $40,000, has increased 
 until in 1904 there were 24,566 routes, in every State of the Union, de- 
 livering over 900,000,000 pieces of mail matter, at a cost of $12,640,070, 
 or about ij cents each. This cost is more than the receipts from such 
 matter, and in itself exceeds the postal deficit, but its value to the 
 community is such as to render it one of the best investments that 
 the post office can make, if any service whatever is to be conducted 
 below cost. 
 
 The proposal of last year to prohibit rural carriers from carrying mer- 
 chandise has been wisely replaced this year by a recommendation for a 
 low postage rate on packages not exceeding five pounds in weight mailed 
 from a local post office for delivery on a rural-delivery route from the 
 same office, to be paid by a special stamp at three cents per pound or 
 fraction thereof. An even rate of one cent for four ounces might be more 
 in line with other postal rates and of greater convenience to the people. 
 The new plan will be of further benefit to the rural community, and 
 though for some years there will be an increase of expense over return, 
 the growth of rural population and this new source of revenue may be 
 expected to make the rural free-delivery system almost if not quite 
 self-sustaining, and its full development may prove a chief credit 
 of the present administration. An additional convenience has 
 been suggested, by the use of a special telephone stamp which would 
 authorize a rural postmaster to telephone a message to any telephone 
 subscriber. 
 
 The registry service (first authorized by Congress in 1855), for a fee of 
 8 cents in addition to regular postage, prepaid with ordinary stamps, 
 insures the registration of a letter at each point of its journey, a receipt 
 to the sender and one from the addressee, and insurance up to $25 value. 
 Post office money orders, first in use in 1865, can now be obtained at the 
 35,094 money-order offices for payment at any specified money-order 
 office, for from 3 cents within $2.50 to 30 cents for $100, these rates cov- 
 ering also Hawaii, Porto Rico, the Philippine Islands, Canada, New- 
 foundland, Cuba, and the United States Postal Agency at Shanghai, 
 China. In 1904, there were issued 50,392,554 domestic money orders, 
 to the amount of $378,511,407, paying the Government $2,089,250 
 profit. 
 
388 AMERICAN FEDERAL GOVERNMENT 
 
 FOREIGN POSTAL FEATURES 
 
 Foreign postal systems have gone much further than our own in some 
 respects. Great Britain, as well as several other countries, makes a 
 postal monopoly of its telegraph, at the rate of a halfpenny, or i cent 
 per word, address counted, with a minimum rate of sixpence, or 12 cents, 
 for each telegraph. But the 90,000,000 telegrams sent in 1904 involved 
 an operating loss of over 300,000, or $1,500,000. Great Britain has 
 also recently taken over the telephone service as part of the postal system, 
 but, as in Sweden and other countries, the competitive private systems 
 seem to give more satisfactory results. Postal savings-banks exist 
 throughout Great Britain as well as in other countries, that country 
 having at last report 14,362 post-office savings-bank offices, with 9,403,852 
 accounts, aggregating 146,000,000, or over $700,000,000, an average 
 of $75 each, on which $17,000,000 interest was paid during the year. A 
 system of postal annuities and life insurance is connected with the British 
 post-office savings-banks, but the use of this system at last report was 
 confined to about 2,500 persons in a year, and its chief value seems to 
 have been in keeping down the rates of friendly societies and regular life 
 insurance companies. 
 
 Among other foreign features are the "blow-post," or pneumatic-tube 
 service for quick delivery, as in Berlin and Paris, a system less desir- 
 able here in these days of the telephone and our special-delivery service. 
 Our own Post Office Department, however, uses pneumatic tubes for 
 the transmission of mail matter between main and branch offices in the 
 cities of New York, Brooklyn, Philadelphia, Boston, Chicago, and St. 
 Louis. In France, Italy, and elsewhere, local deliveries are expedited 
 by the use of automobiles. Switzerland has a library post, by which 
 packages can be sent from or to a public library at about three cents for 
 four pounds; and in Italy, the Scandinavian countries, and elsewhere, 
 books may be sent between the officially recognized libraries, for the use 
 of students, free of postage. A bill for a library post at one cent per 
 pound, promoted by the American Library Association, is now before 
 Congress. Belgium has a curious stamp, with a detachable coupon 
 reading, "Not to be delivered on Sunday," which is left on the letter 
 when Sunday delivery is not required, but otherwise detached. 
 
 DEPARTMENT ORGANIZATION 
 
 The Post Office Department, though it does a wonderful business in 
 the interest of the people, is handicapped by a traditional and bureau- 
 cratic internal administration. The Postmaster General, who has been 
 a cabinet officer since 1829, and has a salary of $8,000 only is mostly occu- 
 pied in affixing to unread documents the perfunctory personal signature 
 
THE DEPARTMENTS 389 
 
 required by law, and in listening to political applicants, though civil 
 service reform has much mitigated the political misuse of the Post Office. 
 His immediate staff includes First, Second, Third, and Fourth Assistant 
 Postmasters General, the ranking Assistant on duty becoming Acting 
 Postmaster General in the absence of the chief. Among these, the several 
 functions of the department are divided, mostly without method, illogi- 
 cally and inconveniently, and a bureaucracy has grown up, without a 
 real administrative head, which fact has been an obstacle in the way of 
 postal progress. The House Committee on Postal Affairs holds the 
 purse-strings, and its chairman becomes, in fact, an outside executive 
 of the department, while the many associations of post-office employees, 
 of which the United National Association of Post-Office Clerks of the 
 United States is a leading organization, though of excellent purpose, 
 have devoted themselves to " influencing" Congressmen and punishing 
 those who prove refractory. 1 
 
 The Post Office Department needs, at the hands of Congress, an organ- 
 ization which shall bring its administration up to the standard of private 
 corporations, with a well-paid executive of the highest ability as the right- 
 hand of the cabinet officer ; with competent superintendents of transpor- 
 tation; urban offices and delivery; rural offices and delivery; special 
 delivery and registry; money orders; supplies, equipment and repairs; 
 correspondence and records; dead letters; inspection; accounting and 
 legal relations ; making together an administrative council for the execu- 
 tive, as in the French post-office system. 
 
 Meantime, the spirit of bureaucracy, especially exemplified in the 
 petty treatment of periodical publishers, under restrictions not required 
 by law, should be replaced by common-sense business policy. The de- 
 partment also needs from Congress legal authorization to require from 
 the railroads transportation rates not greater than those made to express 
 companies, and it might not be unwise to remove the drastic restrictions 
 in the law which forbid the use of private service for transmitting cor- 
 respondence. The American public, in its righteous indignation at the 
 uneven and often excessive rates of the telephone, telegraph, express, 
 and railroad services, often forgets how wonderfully and effectively 
 organized are these corporate administrations; and a comparison be- 
 tween these and governmental postal administration would be wholesome 
 to both. 
 
 A REFORMED SYSTEM OF RATES 
 
 To represent the interests of the public, the Postal Progress League 
 and other organizations have been formed. In 1878, the Post Office 
 
 1 Under the control and pay of the department are postmasters at 71,131 offices, 1,654 
 assistant postmasters, 25,410 clerks in first and second class offices, 11,621 clerks in the 
 railway mail service, 20,761 city letter-carriers, and rural carriers on 24,566 routes; in all, 
 over 155,000 employees, without counting others partially or indirectly employed. 
 
390 AMERICAN FEDERAL GOVERNMENT 
 
 Department took the wise course of calling a conference of publishers 
 and other large users of the mails for consultation with the officers of 
 the department in devising what became the Act of 1879. The time has 
 come when there should be a revision of postal arrangements with the 
 public, not in the shape of piecemeal legislation, but in a well-considered 
 and unified plan of reform which should command the respect of Congress 
 and the people. The country needs a simple system of rates, a parcels 
 post, a postal check, and the better arrangements with foreign post 
 offices which they are eager to make. A useful pamphlet of "General 
 Postal Information for. the Public," recently issued by the Third Assist- 
 ant Postmaster-General, and to be had free at the post offices, illustrates 
 too well the present complexity. Perhaps the simplest system of postal 
 rates, of most convenience to the Government and the people, would be 
 somewhat as follows : For letters, 2 cents per ounce, drop-letters i cent ; 
 for postal cards, i cent; for periodicals from the office of publication 
 and books from public libraries, in bulk, i cent per pound without local 
 free delivery, and 2 cents per pound with local free delivery ; for periodi- 
 cals and books otherwise mailed, i cent for four ounces, 4 cents per pound 
 and i cent for each added half pound ; for all else, a simple parcels-post 
 system, including local free delivery, at i cent for two ounces, 8 cents 
 per pound, and i cent for each added half pound, with half-rate for 
 rural free delivery from the local office and extra rates on the zone system 
 for extreme distances on packages above four pounds ; the abolition of 
 the "county fee" system and the restriction of the franking privilege 
 to distinctly official correspondence ; and a foreign post, uniform to all 
 countries of the Postal Union, in accordance with the general practice, 
 comprehensive of the best features of the postal service of other countries. 
 Such a scheme, reforming rather than revolutionizing present methods, 
 classification, and rates, would greatly reduce the cost of the department, 
 possibly increase its revenue to the self-supporting point, and ^permit 
 in the future successive reductions of rates. The possibilities of the Post 
 Office as an agent for the people's good are indeed great, and the present 
 is a favorable time for giving to our own country a postal system which 
 shall in no respect be behind those of less-favored nations. 
 
 POST OFFICE DEPARTMENT: MAIL FRAUD ORDERS 
 
 [The post office department is the agency through which the federal govern- 
 ment comes into closest contact with the body of citizens. The efficiency of its 
 operations as compared with those of private companies gives the citizens a 
 general criterion for testing the effectiveness of public administration. The 
 use of the mails is a valuable privilege, the withdrawal of which by the govern- 
 ment may be made the instrument for punishing and preventing wrong. The 
 postal authorities refuse to allow the mailing facilities to be used for the pur- 
 pose of practicing schemes of fraud and deception. Controversy has recently 
 
THE DEPARTMENTS 391 
 
 arisen about the procedure of the department in the matter of mail fraud orders, 
 which will be illustrated by the following extracts.] 
 
 FRAUD ORDERS ISSUED BY THE POST OFFICE AUTHORITIES 1 
 
 NEW schemes of deception invite new measures of prevention. This 
 seems as apparent from a study of the Government's fraud-order busi- 
 ness, as the history of burglary shows the growth of safety appliances. 
 The Government has steadily tightened its rein over concerns using the 
 postal service apparently for the purpose of cheating the public. This 
 forms a valuable agency for the purification of advertising pages. 
 
 Uncle Sam has already issued 2,180 fraud orders. Assuming that each 
 concern with a get-rich-quick scheme had 20,000 victims and this 
 estimate of the average number seems modest a number equal to one- 
 half of the entire population of the country has been victimized within 
 the last fifteen years. There is no knowing how many innocent lambs 
 have been saved by the postal shepherds from these wolves of small 
 finance. A respectable minority of the American people might be placed 
 under the designation "an easy mark." It is practically certain that 
 the same fish must have risen repeatedly to the same shining bait, and fed 
 fat the get-rich-quick fraternity. Otherwise there could not have been so 
 many of them. 
 
 At first the executive departments of this Government dealt tenderly 
 with persons having get-rich-quick schemes. "Fraudulent" lotteries 
 only were under the ban of the law of 1872. The statute referred vaguely 
 to false-pretence schemes, but executive officers ignored this part of it. 
 The president of the famous Louisiana lottery company was No. i on 
 the list of banned enterprise-managers, accessible in the dockets of the 
 department. But a new law was necessary to put his undertaking out 
 of business. "Fraudulent" was dropped in designating lotteries which 
 were not to be permitted. The beneficent was added to the evil. After 
 that all lotteries looked alike to the Government. Under the law which 
 proved the beginning of the end for the gigantic Louisiana swindle, 
 which for a generation had filched large sums from Americans with a 
 speculative turn of mind, only registered letters and money-orders could 
 be withheld. Subsequently the law was extended to include all mail 
 matter. 
 
 The Louisiana Lottery people took the case to the Court of Appeals 
 of the District of Columbia, attacking the constitutionality of the law. 
 Judge Cox in a long opinion upheld the law, taking the ground that the 
 right of the citizen to use Government postal facilities for the transmission 
 of mail, was not a constitutional right, but a legislative privilege, which 
 must be utilized according to the conditions placed upon it by Congress. 
 
 1 New York Evening Post, April 25, 1905. 
 
392 AMERICAN FEDERAL GOVERNMENT 
 
 Lotteries, after the downfall of the Louisiana, have had a hard time in 
 this country. 
 
 Judge Thomas, in President Cleveland's second Administration, had 
 fraud orders issued against a number of persons whom he believed to 
 have been acquiring money in tortuous ways. His practice was to issue 
 the fraud order and have the mail held up on plausible complaint. In- 
 vestigation came afterward. If the fraud order was found unwarranted, 
 it was cancelled. This method was a trifle more summary than that of 
 Judge Thomas's successors. Fraud orders are not now issued until the 
 persons involved have had an opportunity to be heard. 
 
 As lotteries became scarce, the Post Office Department looked about 
 for other game. It found some in the case of a patent-procuring concern. 
 Would-be inventors, it seems, are almost as numerous as plain every-day 
 "suckers." In many respects it is difficult to distinguish between these 
 classes. The inventor furnished food for the patent concern. Putting 
 it out of business by holding up its mail marks one of the earliest impor- 
 tant cases decided on the ground of alleged fraud, or false-pretence, aside 
 from the lottery element. This case was decided in 1897. Even that 
 case was complicated by the disbarment of the head of the concern as a 
 patent attorney. 
 
 Another famous case, turning upon alleged fraud and false pretence, 
 was that of a concern, having headquarters at Fairfield, Me., which sold 
 its victims materials and taught them to make artificial flowers. The 
 flowers promised to be sources of great income to the victims, but they 
 never quite arrived. Some defects appeared which could be cured by 
 taking instruction in other lines, which the company would give for a 
 consideration. After the victim discovered that the corn was musty and 
 refused to follow further, he was dropped. A Federal judge, in passing 
 upon this case, cast doubt upon the constitutionality of the whole Fraud- 
 Order law, but the company had come into an equity court with hands 
 so unclean that he would not attack the law for its benefit. 
 
 Still another step in advance was taken in the case of a New York con- 
 cern which had a scheme for selling fountain pens for $2.50 each, and 
 employing at $8 a week in advertising letter-writing everybody who 
 bought a pen. It was an endless-chain scheme, growing constantly wider. 
 All revenues were derived from the sale of the pens. This inverted 
 financial pyramid was not thought stable by the Post Office people, and 
 the concern was put out of business by a fraud order, in October, 1902, 
 after having secured 19,000 patrons. 
 
 A most gentlemanly scheme, having no end of imitators, started by a 
 diamond company in San Francisco, came to grief about a year ago, 
 through the squeamishness of the postal authorities. This was such a 
 beneficent scheme, and the men behind the "graft" showed such pious 
 good faith, that the Department actually apologized for being obliged 
 to attack it, and point out its financial fallaciousness. It was proposed to 
 
THE DEPARTMENTS 393 
 
 give a $160 diamond to everybody who would pay $80 in weekly instal- 
 ments, thus putting each investor almost in the position of the chattel 
 loan man. The company depended upon lapses to "make good." Pos- 
 tal authorities said that was impossible, and the honest promoters went 
 under the shadow of the ban. All its fellows have followed suit. This 
 seems the lineal descendant of certain bond-investment schemes, which 
 at one time promised great possibilities. 
 
 Having gone to the limit in hunting down schemes of an alleged fraudu- 
 lent character, the postal authorities swung back toward the lottery idea, 
 as it invaded guessing enterprises. This included guessing for prizes as 
 to the attendance at the St. Louis Fair, and guessing the number of 
 ballots cast for Roosevelt or for Parker. These cases brought out last 
 November an opinion by Attorney- General Moody, holding the Fraud- 
 Order law constitutional. Before that, attorneys-general held almost 
 uniformly the opposite view. Mr. Moody followed the United States 
 Supreme Court in the case of Public Clearing House against Coyne, and 
 the New York Court of Appeals in the Lavin case. A formal judicial 
 opinion had held that a cigarette guessing contest was legitimate. But 
 Mr. Moody and the courts he followed found elements of lottery in guess- 
 ing contests. He also found that the term "due process of law," in the 
 Constitution, may mean hearing and action by an executive department, 
 when the parties have recourse to the courts, if aggrieved. 
 
 As it now stands, the powers of the Post Office Department are most 
 broad and sweeping. Racing schemes, bond investment schemes, em- 
 ployment schemes on the endless-chain plan, guessing schemes, and all 
 other such devious devices for getting into the private pocket of the pub- 
 lic, are banned. Not only are advertisers of such schemes in danger, but 
 even the periodicals which run the advertisements may be excluded from 
 the mails. It is not necessary for the Department to prove actual fraud, 
 but it may act on proof of advertising a scheme of finance not feasible. 
 Newspapers must look carefully at their circulation schemes. The 
 Woman's World came to grief after landing $500,000 good American 
 dollars. 
 
 Fraud orders grow by seasons. The harvest time is between September 
 and May, when the good American, surrounded by his household gods, 
 reads the alluring advertisements and becomes impromptu a financier. 
 In 1899 fraud orders numbered 99; in 1901, 62, and in each of the years 
 1902 and 1904 they numbered 247. If one has visions of high finance, 
 before plunging he may do well to ponder the warning: "The fraud 
 order man will get you if you don't watch out." 
 
394 AMERICAN FEDERAL GOVERNMENT 
 
 SPEECH OF HON. EDGAR D. CRUMPACKER ON THE 
 POST-OFFICE APPROPRIATION BILL 1 
 
 MR. CRUMPACKER said: 
 
 Mr. Chairman : I will take advantage of the opportunity afforded by 
 the debate upon this bill to submit some additional remarks upon the 
 bill providing for a judicial review of fraud orders issued by the Post- 
 master-General, which passed the House some weeks ago. There seems 
 to be some misunderstanding respecting the scope and purpose of that 
 bill, based, as far as I am able to learn, upon a careless or willful mis- 
 representation of its provisions by individuals who seem to have little 
 regard for the truth. It has come to be quite the fashion when any 
 legislation is proposed that curtails or modifies power that is being 
 exercised by a bureau officer in one of the Departments, however wise 
 and just the measure may be, for some dilettante reformer who is long 
 on theory and short on practical wisdom, and who has no faith in the 
 common people nor respect for the integrity of the courts, to open up a 
 tirade against the measure and to asperse the Representative who may 
 propose it and all those who give it support. 
 
 I have observed, also, that some of the chiefs of bureaus in the Depart- 
 ments stubbornly resist every attempt to reduce or modify the power 
 they exercise or to reduce in any measure the appropriations for the ad- 
 ministration of their bureaus. It is not always a question of patriotism 
 or public good with them, but often a question of personal and official 
 aggrandizement. Some bureau chiefs have gone so far in their opposition 
 to just and prudent measures as to inspire unjust attacks upon Members 
 advocating them and to recklessly, at least, misrepresent their purpose 
 and effect. These officers seem to have no difficulty in securing means 
 of communicating their opposition to the public. There are individuals 
 engaged in newspaper and magazine work who are willing to believe 
 anything that may be told them by a bureau chief in disparagement of 
 the ability and integrity of a representative of the people, and without 
 inquiry or investigation they send out broadcast over the country gross 
 misstatements concerning the provisions and purposes of proposed 
 legislation. Those individuals seem to be imbued with the idea that this 
 is a government of the bureaus, by the bureaus, and for the bureaus, 
 and that any proposition, however wise or salutary, that in any degree 
 minimizes the dignity or power of a bureau chief must of necessity be 
 against the public good. It is human nature for one who is in the enjoy- 
 ment of autocratic authority to resist every attempt made to limit or 
 modify the exercise of that authority. 
 
 The House has a most salutary rule that prohibits legislation upon 
 general appropriation bills. The object of the rule is to prevent " riders " 
 
 1 Congr. Record, Feb. 19, 1907. 
 
THE DEPARTMENTS 395 
 
 from being attached to appropriation bills and to secure the consideration 
 of each measure independently upon its own merits. 
 
 Recently a newspaper correspondent, prompted by personal enmity 
 or a general malicious instinct, assailed a Member of the House for 
 making a point of order against an item of legislation that was contained 
 in a general appropriation bill in violation of the rules of the House. 
 The fact that the point of order was sustained and the action of the 
 Member upheld by the presiding officer made no difference to the corre- 
 spondent. He wanted a story. Intelligent and fair criticism of proposed 
 legislation is of great good, but unjust and dishonest criticism is destruc- 
 tive of confidence in public men and even in government, and it does in- 
 calculable harm. Members of Congress must always be free to propose 
 and support measures they honestly believe to be for the public good, 
 and no Department officer should, under any circumstances, feel justified 
 in misrepresenting measures or in imputing bad faith to Representatives 
 who propose or support them. 
 
 THE FRAUD-ORDER LAW AND ITS ADMINISTRATION 
 
 The criticism of the bill for a judicial review of fraud orders has been 
 chiefly a misrepresentation and perversion of its provisions. Under the 
 existing law the Postmaster-General may issue a fraud order against 
 any person whom he believes is using the mails for criminal or fraudulent 
 purposes, and the law provides for no notice to the person to be effected 
 and no opportunity for him to appear and defend himself. A fraud order 
 is an order issued by the Assistant Attorney-General of the Post Office 
 Department, in the name of the Postmaster-General, to the postmaster 
 where the accused receives his mail, directing him to pay no money 
 orders to the accused and to deliver no mail to him, but to stamp all 
 mail that comes to him with the word "fraudulent" and return it to the 
 writer where the envelope bears a return card ; otherwise to forward it 
 immediately to the Post Office Department, to be disposed of through 
 the dead-letter office. The order covers all mail, business or social, with- 
 out discrimination. In many and perhaps in most instances, as a matter 
 of favor, the Department notifies the person to be effected by a fraud 
 order and gives him an opportunity to appear and show cause, if he can, 
 why the order should not be issued. The hearing is voluntary, and is 
 conducted by the Assistant Attorney-General, who is bound by no rules 
 and follows no fixed course of procedure. In some cases no notice is 
 given at all. The law does not require it, and the Assistant Attorney- 
 General decides when notice shall be given and when not. In numerous 
 instances fraud orders have been issued upon the mere confidential 
 report of a post-office inspector, without any notice whatever to the person 
 affected or any opportunity to disprove the charges against him. 
 
396 AMERICAN FEDERAL GOVERNMENT 
 
 CHARACTER OF EVIDENCE UPON WHICH FRAUD ORDERS ARE ISSUED 
 
 Now, I want to say a few words in regard to the evidence upon which 
 the Assistant Attorney-General acts in issuing fraud orders. I stated a 
 moment ago that his action was based, in the main, upon confidential 
 reports which were the result of secret investigations by post-office in- 
 spectors. They constitute the bulk of the evidence. The Assistant 
 Attorney- General for the Department is himself first convinced, and 
 then he notifies the person affected by the proposed action to appear 
 and show cause, without allowing him to see the report or know what it 
 contains. He is at once the prosecuting attorney, judge, and executioner, 
 and the privilege of appearing before that officer, who has already made 
 up his mind, to refute evidence that he can know nothing about is one 
 without any practical value. 
 
 The Supreme Court has held that the fraud-order power may be 
 conferred upon the Postmaster- General because the right to the mail 
 is a privilege and not a vested right and that the proceeding is not crimi- 
 nal in its character. While this may be the correct constitutional theory, 
 yet the party against whom a fraud order is issued is branded as a crimi- 
 nal and stigmatized as a perpetrator of fraud. It makes him an outlaw 
 as far as one of the most important branches of the Government is 
 concerned. The issuance of such an order covers all his mail and 
 deprives him of the right to communicate with his friends, his wife, 
 or his mother, or to receive any communication from them by means of 
 the mails. 
 
 All of this is done upon confidential reports, the result of secret investi- 
 gations based upon ex parte statements of persons whose motives can 
 not be known, who may be responsible or who may be irresponsible, who 
 may not be competent witnesses, and who are not sworn and do not 
 carry the responsibilities of ordinary witnesses. Their names and iden- 
 tity are not disclosed, and their evidence does not contain one single 
 safeguard against fraud or one single test of credibility. Such evidence 
 would not be received in the humblest magistrate's court of the country 
 in a case involving the investigation of the most inconsequential right 
 of person or property. 
 
 The confidential nature of such reports and the statements they contain, 
 including the names of persons giving information, is such that they are 
 never made public or disclosed to the parties vitally affected by them. 
 About a year ago this House adopted a resolution requesting the Post- 
 master-General to furnish it with the facts upon which a certain fraud 
 order was issued and copies of the inspector's reports in the case, and 
 that officer politely and respectfully returned the resolution to the House 
 with the statement that it would not be compatible with the public inter- 
 est to comply with the request. 
 
THE DEPARTMENTS 397 
 
 The investigation and decision of fraud-order cases under the practice 
 in the Department is necessarily made by the Assistant Attorney-General. 
 During the two years ending June 30 last 660 fraud orders were issued 
 and a number of cases investigated where the accused agreed to modify 
 his advertising matter so that it would conform to the ideas of propriety 
 of the Assistant Attorney- General, thereby obviating the issuing of an 
 order excluding him from the mails. Over one case a day had to be 
 examined and decided, and it would be out of the question for the Post- 
 master-General to give his personal attention to the examination and 
 decision of these cases and attend to the other arduous and multifarious 
 duties of his office. The Assistant Attorney-General devotes the bulk 
 of his time to the fraud-order business. He refers complaints to post- 
 office inspectors, examines reports, decides questions of law and fact, 
 hears matter in defense, and practically has the decision of the ultimate 
 question as to whether a fraud order shall be issued or not, although the 
 work is done in the name of the Postmaster-General. It is a matter of 
 common experience that men who represent the Government in hunting 
 down and ferreting out fraud and in conducting prosecutions become 
 imbued with an official prejudice to such an extent as to unfit them to 
 deal justly between their own client and paymaster and one whose 
 interests may be adverse. I do not say this in disparagement of this class 
 of officials, but a man who has the zeal and enthusiasm necessary to 
 make a success of the work in which he is engaged, unless he be excep- 
 tionally even tempered and well poised, is most apt to become inoculated 
 with that official bias that will prevent his dealing justly with those whose 
 interests he may have in charge. 
 
 The Assistant Attorney-General is a detective in a large sense, to hunt 
 down frauds, and is the prosecutor to convict the perpetrators, and in 
 the fraud-order practice he is the judge and jury to pass upon their guilt 
 or innocence. In view of the vital questions that are involved directly 
 and impliedly in the fraud-order practice, it is a most unsafe thing to 
 intrust an officer of this kind with such unlimited power. This Govern- 
 ment is said to be a Government of law and not of men. The personal 
 and property rights of the citizens should not be vitally affected by any 
 Department of Government, excepting in pursuance of law. In the 
 execution of the fraud-order law much may depend upon the tempera- 
 ment and the ideals of the Assistant Attorney- General. One person 
 occupying that position may have peculiarly high notions of business 
 ethics and little or no patience with men who do not deal absolutely 
 fairly with their fellows. On the other hand, another may have lax ideas 
 respecting these matters and much sympathy for wrongdoers. Under a 
 practice where the result must of necessity be largely colored by the 
 temperament and sentiment of a departmental official, the vital concerns 
 of the citizens ought not to be reposed. 
 
 I desire to impress upon the House, in addition, the dangerous char- 
 
398 AMERICAN FEDERAL GOVERNMENT 
 
 acter of the method of presenting proof on the part of the Government 
 in fraud-order cases. The same zeal that I have referred to in connection 
 with the Assistant Attorney- General characterizes the action of the post- 
 office inspectors. There seems to be a belief or feeling on the part of 
 these functionaries that unless they are able to discover official irregu- 
 larities or individual delinquencies in connection with the mails their 
 records as efficient officers will suffer. Their investigations are made 
 secretly and contain, largely, interviews with citizens in various com- 
 munities which are always private, and the names of the citizens who 
 give information are to be kept inviolate. 
 
 How many men, prompted by feelings of envy or jealousy against a 
 business rival, with the understanding that their names will not be dis- 
 closed under any circumstances, will be prompted to give information 
 that may be largely colored by business jealousy or personal envy 
 information that as citizens carrying the responsibilities of a witness in 
 public they would under no circumstances feel at liberty to give. Such 
 testimony is a positive menace to the safety of person, reputation, and 
 property under any system of administration. It is contrary to the com- 
 monest notions of justice and fair dealing. Due process of law, as is 
 commonly understood in our system of government, means that process 
 of law that is administered in the open, where the accused party may 
 have a right to confront his accusers ; where those who give testimony 
 on either side must carry the solemn responsibilities of their conduct 
 before the public. 
 
 I have no sympathy with or respect for the policy that affects the im- 
 portant rights of person, reputation, or property by means of confidential 
 reports of secret emissaries of the law. Reports containing evidence 
 respecting the rights of the citizen should always be made public. No 
 consideration of delicacy or embarrassment should justify the Govern- 
 ment in blasting the reputation and ruining the business of a citizen 
 without giving him an opportunity to know exactly who has testified 
 against him and to what he has testified. The reports of inspectors under 
 any practice should be open to the person who may be affected by the 
 fraud order. He should be allowed to know who have given information 
 or testified against him, and citizens who are interviewed should under- 
 stand that their names and statements would be open to inspection by 
 the person against whom they testify or give information. This would 
 have a most wholesome and salutary influence. Men would see that 
 the statements that were written up by the post-office inspectors and 
 credited to them were fair and just and absolutely true. There should be 
 no inducement or opportunity for men to attempt to stab the business 
 or reputation of rivals in the dark. 
 
 Even under the present law the investigation of fraud-order questions 
 should be conducted in as open a manner as possible. Star-chamber 
 procedure has no place in the administration of rights in this Govern- 
 
THE DEPARTMENTS 399 
 
 ment. It is contrary to the spirit of the age. The whole fraud-order 
 practice in the Post Office Department, however honest and pure the 
 intentions and purposes of its administrators may be, is out of harmony 
 with the principles of individual liberty, and it ought to be discontinued. 
 There is no adequate excuse for it. It is claimed, I know, that if reports 
 were made public and the names of men who give information were dis- 
 closed it would be difficult, if not impossible, for post-office inspectors 
 to secure necessary information in this class of cases. I make the asser- 
 tion that a citizen who will not give testimony except upon condition 
 that his name be withheld from the public, and particularly from the 
 individual against whom he testifies, as a rule is not worthy of credence. 
 His testimony is to be suspected and should not be regarded as sufficient 
 to deprive any citizen of any substantial right. 
 
 The Federal criminal code imposes penalties for almost every act that 
 would justify the issuing of a fraud order. If post-office inspectors, in 
 investigating crimes and frauds, would investigate them with a view of 
 detecting the perpetrators and their reports should be immediately 
 transmitted to the Department of Justice, where instructions could be 
 sent to arrest the criminals, it would largely tend to stop the practice of 
 debauching the mails. The Postmaster-General, in his recent report, 
 claims that under the fraud-order practice lotteries and other criminal 
 concerns have almost been driven out of existence. In my humble judg- 
 ment, if there were no penalty excepting that of a fraud order, the country 
 would be overrun with lotteries, "green-goods" institutions, and other 
 criminal concerns to-day. The criminal laws have suppressed lotteries 
 and "green-goods" dispensers. They have been the efficient power in 
 purifying the mails and protecting them against the schemes and devices 
 of evil doers. 
 
 In making these criticisms of the fraud-order practice, it is not my 
 intention to reflect in any degree upon the Postmatser-General, the 
 assistant attorney-general for the Post Office Department, or of any 
 other official. The result is the necessary and logical outcome of the 
 arbitrary system of investigation authorized by the statutes. It is not 
 the fault of the officers personally, but the fault of the system, and it is 
 the system that I am complaining about and which I believe ought to 
 be materially modified. 
 
 EXPANSION OF FRAUD-ORDER POWERS 
 
 If the fraud-order law were now administered according to its original 
 purpose and intention, I would be the last man to raise my voice against 
 it, arbitrary and despotic though it seems. I have no use for criminals 
 and swindlers who seek to debauch the mails for unlawful purposes, but 
 where men who honestly believe they are innocent of violations of law 
 
400 AMERICAN FEDERAL GOVERNMENT 
 
 are denied the right of the mails and branded with infamy I believe they 
 should be accorded the privilege of going into court and proving their 
 innocence if they can. 
 
 The fraud-order law was originally intended to enable the Postmaster- 
 General to withhold mails from the promoters of lotteries, " green-goods " 
 institutions, get-rich-quick concerns, and fly-by-night affairs that were 
 essentially and palpably fraudulent and criminal. It was not intended 
 that it should interfere with old established business institutions that 
 could be reached through the civil and criminal courts, but during the 
 last two or three years a surveillance has been instituted over old estab- 
 lishments using the mails in a mail-order business, and numerous 
 concerns of that kind have been brought before the Assistant Attorney- 
 General and subjected to all manner of embarrassment and humiliation, 
 and in some instances fraud orders have been issued against them and 
 their business and reputations forever ruined. It is the ambitious policy 
 of the Assistant Attorney-General for the Department in the fraud-order 
 line during the last few years that has subjected this salutary power to 
 the criticism that it is receiving all over the country at this time. 1 
 
 1 Opinion expressed by a Writer in the North American Review, April, 1907 : 
 
 In administering the present law the Department has been so consistently reasonable 
 that there is little apparent occasion for recourse to the courts. There is no opposition 
 on the part of the Department to such an amendment as will give court review, if it does 
 not deprive the Department of its present immediate effectiveness and therefore of its entire 
 usefulness in this means of public protection. There can be no objection to every man 
 having the right of appeal to the courts against any possible or apparent injustice; but 
 to carry that right so far as to take away the force of the order, to vitiate its effectiveness, 
 or remove the matter from the jurisdiction of the Department during court review, would 
 obviously render the position of the Department unreasonably embarrassing; as by law 
 it would be expected to protect the public while handicapped by an amendment rendering 
 it powerless to do so. 
 
 The present statutes overcome conditions with which the ordinary machinery of the 
 law is inadequate to deal. The convenient and almost necessary facility of communica- 
 tion afforded by the Post Office Department and the freedom of communication from 
 inspection obviously lay the service open to grave abuse. Without this authority which 
 enables the Postmaster-General to act quickly and effectively when unlawful use of mails 
 is established, the public would be. constantly at the mercy of hordes of rascals who have 
 become expert inventors and promoters of devices to defraud. 
 
 It is not the law, but the law's delay, which the operators of fraudulent methods would 
 be glad to obtain. For it must be borne in mind that many, if not most, of the schemes 
 to defraud are of the fly-by-night order; of the kind whose methods and base of opera- 
 tions are constantly changing ; who shift from name to name and city to city, for the ex- 
 press purpose of avoiding too close scrutiny; who are often hard to locate for the deeds 
 of the present and harder to convict for the deeds of the past. 
 
 In New York, recently, a dozen different names were successively used by one con- 
 cern, a change being made immediately on the discovery that it was attracting attention 
 made for the express purpose of escaping the detrimental effect of a fraud order. This 
 plan would obviously be much more successful if the restriction came from the slowly 
 moving courts. 
 
THE DEPARTMENTS 401 
 
 THE DEPARTMENT OF AGRICULTURE 
 
 [The United States Department of Agriculture carries on extensive services 
 for the purpose of investigating the conditions of agriculture, of improving 
 methods of introducing new plants and animals. The developmental work 
 of this department is illustrated by the following selections.] 
 
 FROM PRESIDENT ROOSEVELT'S MESSAGE, DECEMBER 6, 1904 
 
 Agriculture. The Department of Agriculture has grown into an edu- 
 cational institution with a faculty of two thousand specialists making 
 research into all the sciences of production. The Congress appropriates, 
 directly and indirectly, six millions of dollars annually to carry on this 
 work. It reaches every State and Territory in the Union and the islands 
 of the sea lately come under our flag. Cooperation is had with the State 
 experiment stations, and with many other institutions and individuals. 
 The world is carefully searched for new varieties of grains, fruits, grasses, 
 vegetables, trees, and shrubs, suitable to various localities in our country 
 and marked benefit to our producers has resulted. 
 
 The activities of our age in lines of research have reached the tillers 
 of the soil and inspired them with ambition to know more of the principles 
 that govern the forces of nature with which they have to deal. Nearly 
 half of the people of this country devote their energies to growing things 
 from the soil. Until a recent date little has been done to prepare these 
 millions for their life work. In most lines of human activity college- 
 trained men are the leaders. The farmer had no opportunity for special 
 training until the Congress made provision for it forty years ago. During 
 these years progress has been made and teachers have been prepared. 
 Over five thousand students are in attendance at our State agricultural 
 colleges. The Federal Government expends ten millions of dollars 
 annually toward this education and for research in Washington and in 
 the several States and Territories. The Department of Agriculture has 
 given facilities for post-graduate work to five hundred young men during 
 the last seven years, preparing them for advanced lines of work in the 
 Department and in the State institutions. 
 
 The facts concerning meteorology and its relations to plant and animal 
 life are being systematically inquired into. Temperature and moisture 
 are controlling factors in all agricultural operations. The seasons of 
 the cyclones of the Caribbean Sea and their paths are being forecasted 
 with increasing accuracy. The cold winds that come from the north 
 are anticipated and their times and intensity told to farmers, gardeners, 
 and fruiterers in all southern localities. 
 
 We sell two hundred and fifty million dollars' worth of animals and 
 animal products to foreign countries every year, in addition to supplying 
 our own people more cheaply and abundantly than any other nation is 
 
 26 
 
402 AMERICAN FEDERAL GOVERNMENT 
 
 able to provide for its people. Successful manufacturing depends pri- 
 marily on cheap food, which accounts to a considerable extent for our 
 growth in this direction. The Department of Agriculture, by careful 
 inspection of meats, guards the health of our people and gives clean bills 
 of health to deserving exports ; it is prepared to deal promptly with im- 
 ported diseases of animals, and maintain the excellence of our flocks and 
 herds in this respect. There should be an annual census of the live stock 
 of the Nation. 
 
 We sell abroad about six hundred million dollars' worth of plants 
 and their products every year. Strenuous efforts are being made to 
 import from foreign countries such grains as are suitable to our varying 
 localities. Seven years ago we bought three-fourths of our rice; by 
 helping the rice growers on the Gulf coast to secure seeds from the 
 Orient suited to their conditions, and by giving them adequate protec- 
 tion, they now supply home demand and export to the islands. of the 
 Caribbean Sea and to other rice-growing countries. Wheat and other 
 grains have been imported from light-rainfall countries to our lands in 
 the West and Southwest that have not grown crops because of light 
 precipitation, resulting in an extensile addition to our cropping area 
 and our home-making territory that can not be irrigated. Ten million 
 bushels of first-class macaroni wheat were grown from these experi- 
 mental importations last year. Fruits suitable to our soils and climates 
 are being imported from all the countries of the Old World the fig 
 from Turkey, the almond from Spain, the date from Algeria, the mango 
 from India. We are helping our fruit growers to get their crops into 
 European markets by studying methods of preservation through refrig- 
 eration, packing, and handling, which have been quite successful. We 
 are helping our hop growers by importing varieties that ripen earlier and 
 later than the kinds they have been raising, thereby lengthening the har- 
 vesting season. The cotton crop of the country is threatened with root 
 rot, the bollworm, and the boll weevil. Our pathologists will find immune 
 varieties that will resist the root disease, and the bollworm can be dealt 
 with, but the boll weevil is a serious menace to the cotton crop. It is a 
 Central American insect that has become acclimated in Texas and has 
 done great damage. A scientist of the Department of Agriculture has 
 found the weevil at home in Guatemala being kept in check by an ant, 
 which has been brought to our cotton fields for observation. It is hoped 
 that it may serve a good purpose. 
 
 The soils of the country are getting attention from the farmer's stand- 
 point, and interesting results are following. We have duplicates of the 
 soils that grow the wrapper tobacco in Sumatra and the filler tobacco in 
 Cuba. It will be only a question of time when the large amounts paid 
 to these countries will be paid to our own people. The reclamation of 
 alkali lands is progressing, to give object lessons to our people in methods 
 by which worthless lands may be made productive. 
 
THE DEPARTMENTS 403 
 
 The insect friends and enemies of the farmer are getting attention. 
 The enemy of the San Jose scale was found near the Great Wall of China, 
 and is now cleaning up all our orchards. The fig-fertilizing insect im- 
 ported from Turkey has helped to establish an industry in California 
 that amounts to from fifty to one hundred tons of dried figs annually, 
 and is extending over the Pacific coast. A parasitic fly from South Africa 
 is keeping in subjection the black scale, the worst pest of the orange and 
 lemon industry in California. 
 
 Careful preliminary work is being done towards producing our own 
 silk. The mulberry is being distributed in large numbers, eggs are being 
 imported and distributed, improved reels were imported from Europe 
 last year, and two expert reelers were brought to Washington to reel the 
 crop of cocoons and teach the art to our own people. 
 
 The crop-reporting system of the Department of Agriculture is being 
 brought closer to accuracy every year. It has two hundred and fifty 
 thousand reporters selected from people in eight vocations in life. It 
 has arrangements with most European countries for interchange of esti- 
 mates, so that our people may know as nearly as possible with what they 
 must compete. 
 
 Irrigation. During the two and a half years that have elapsed since 
 the passage of the reclamation act rapid progress has been made in the 
 surveys and examinations of the opportunities for reclamation in the 
 thirteen States and three Territories of the arid West. Construction has 
 already been begun on the largest and most important of the irrigation 
 works, and plans are being completed for works which will utilize the 
 funds now available. The operations are being carried on by the Recla- 
 mation Service, a corps of engineers selected through competitive civil- 
 service examinations. This corps includes experienced consulting and 
 constructing engineers as well as various experts in mechanical and legal 
 matters, and is composed largely of men who have spent most of their 
 lives in practical affairs connected with irrigation. The larger problems 
 have been solved and it now remains to execute with care, economy, 
 and thoroughness the work which has been laid out. All important details 
 are being carefully considered by boards of consulting engineers, selected 
 for their thorough knowledge and practical experience. Each project 
 is taken up on the ground by competent men and viewed from the stand- 
 point of the creation of prosperous homes, and of promptly refunding 
 to the Treasury the cost of construction. The reclamation act has been 
 found to be remarkably complete and effective, and so broad in its pro- 
 visions that a wide range of undertakings has been possible under it. 
 At the same time, economy is guaranteed by the fact that the funds must 
 ultimately be returned to be used over again. 
 
 Forests. It is the cardinal principle of the forest-reserve policy of this 
 Administration that the reserves are for use. Whatever interferes with 
 the use of their resources is to be avoided by every possible means. 
 
404 AMERICAN FEDERAL GOVERNMENT 
 
 But these resources must be used in such a way as to make them 
 permanent. 
 
 The forest policy of the Government is just now a subject of vivid 
 public interest throughout the West and to the people of the United 
 States in general. The forest reserves themselves are of extreme value 
 to the present as well as to the future welfare of all the western public- 
 land States. They powerfully affect the use and disposal of the public 
 lands. They are of special importance because they preserve the water 
 supply and the supply of timber for domestic purposes, and so promote 
 settlement under the reclamation act. Indeed, they are essential to the 
 welfare of every one of the great interests of the West. 
 
 Forest reserves are created for two principal purposes. The first is 
 to preserve the water supply. This is their most important use. The 
 principal users of the water thus preserved are irrigation ranchers and 
 settlers, cities and towns to whom their municipal water supplies are of 
 the very first importance, users and furnishers of water power, and the 
 users of water for domestic, manufacturing, mining, and other purposes. 
 All these are directly dependent upon the forest reserves. 
 
 The second reason for which forest* reserves are created is to preserve 
 the timber supply for various classes of wood users. Among the more 
 important of these are settlers under the reclamation act and other acts, 
 for whom a cheap and accessible supply of timber for domestic uses is 
 absolutely necessary ; miners and prospectors, who are in serious danger 
 of losing their timber supply by fire or through export by lumber com- 
 panies when timber lands adjacent to their mines pass into private own- 
 ership ; lumbermen, transportation companies, builders, and commercial 
 interests in general. 
 
 Although the wisdom of creating forest reserves is nearly everywhere 
 heartily recognized, yet in a few localities there has been misunderstand- 
 ing and complaint. The following statement is therefore desirable : 
 
 The forest-reserve policy can be successful only when it has the full 
 support of the people of the West. It can not safely, and should not in 
 any case, be imposed upon them against their will. But neither can we 
 accept the views of those whose only interest in the forest is temporary ; 
 who are anxious to reap what they have not sown and then move away, 
 leaving desolation behind them. On the contrary, it is everywhere and 
 always the interest of the permanent settler and the permanent business 
 man, the man with a stake in the country, which must be considered 
 and which must decide. 
 
 The making of forest reserves within railroad and wagon-road land- 
 grant limits will hereafter, as for the past three years, be so managed as 
 to prevent the issue, under the act of June 4, 1897, of base for exchange 
 or lieu selection (usually called scrip). In all cases where forest reserves 
 within areas covered by land grants appear to be essential to the prosperity 
 of settlers, miners, or others, the Government lands within such proposed 
 
THE DEPARTMENTS 405 
 
 forest reserves will, as in the recent past, be withdrawn from sale or 
 entry pending the completion of such negotiations with the owners of 
 the land grants as will prevent the creation of so-called scrip. 
 
 It was formerly the custom to make forest reserves without first getting 
 definite and detailed information as to the character of land and timber 
 within their boundaries. This method of action often resulted in badly 
 chosen boundaries and consequent injustice to settlers and others. There- 
 fore this Administration adopted the present method of first withdrawing 
 the land from disposal, followed by careful examination on the ground 
 and the preparation of detailed maps and descriptions, before any forest 
 reserve is created. 
 
 I have repeatedly called attention to the confusion which exists in 
 Government forest matters because the work is scattered among three 
 independent organizations. The United States is the only one of the 
 great nations in which the forest work of the Government is not con- 
 centrated under one department, in consonance with the plainest dictates 
 of good administration and common sense. The present arrangement 
 is bad from every point of view. Merely to mention it is to prove that 
 it should be terminated at onc. As I have repeatedly recommended, 
 all the forest work of the Government should be concentrated in the 
 Department of Agriculture, where the larger part of that work is already 
 done, where practically all of the trained foresters of the Government 
 are employed, where chiefly in Washington there is comprehensive first- 
 hand knowledge of the problems of the reserves acquired on the ground, 
 where all problems relating to growth from the soil are already gathered, 
 and where all the sciences auxiliary to forestry are at handifor prompt 
 and effective cooperation. These reasons are decisive in themselves, 
 but it should be added that the great organizations of citizens whose 
 interests are affected by the forest reserves, such as the National Live 
 Stock Association, the National Wool Growers' Association, the Ameri- 
 can Mining Congress, the National Irrigation Congress, and the Na- 
 tional Board of Trade, have uniformly, emphatically, and most of them 
 repeatedly, expressed themselves in favor of placing all Government 
 forest work in the Department of Agriculture because of the peculiar 
 adaptation of that Department for it. It is true, also, that the forest 
 services of nearly all the great nations of the world are under the respec- 
 tive departments of agriculture, while in but two of the smaller nations 
 and in one colony are they under the department of the interior. This 
 is the result of long and varied experience and it agrees fully with the 
 requirements of good administration in our own case. 
 
 The creation of a forest service in the Department of Agriculture will 
 have for its important results: 
 
 First. A better handling of all forest work, because it will be under 
 a single head, and because the vast and indispensable experience of the 
 Department in all matters pertaining to the forest reserves, to forestry 
 
406 AMERICAN FEDERAL GOVERNMENT 
 
 in general, and to other forms of production from the soil, will be easily 
 and rapidly accessible. 
 
 Second. The reserves themselves, being handled from the point of 
 view of the man in the field, instead of the man in the office, will be more 
 easily and more widely useful to the people of the West than has been 
 the case hitherto. 
 
 Third. Within a comparatively short time the reserves will become 
 self-supporting. This is important, because continually and rapidly 
 increasing appropriations will be necessary for the proper care of this 
 exceedingly important interest of the Nation, and they can and should 
 be offset by returns from the National forests. Under similar circum- 
 stances the forest possessions of other great nations form an important 
 source of revenue to their governments. 
 
 Every administrative officer concerned is convinced of the necessity 
 for the proposed consolidation of forest work in the Department of 
 Agriculture, and I myself have urged it more than once in former mes- 
 sages. Again I commend it to the early and favorable consideration 
 of the Congress. The interests of the Nation at large and of the West 
 in particular have suffered greatly because of the delay. 
 
 SPEECH OF HON. FRANKLIN E. BROOKS ON THE 
 AGRICULTURAL APPROPRIATION BILL 1 
 
 MR. BROOKS of Colorado said: 
 
 Mr. Chairman : I listened yesterday with considerable interest to the 
 fervid and sometimes rather hysterical eloquence of the gentlemen who 
 were rushing in rapid procession to express allegiance to the interests 
 of the farmers and the men who toil ; and, incidentally, to express their 
 appreciation of .the work of this Department. Now, gentlemen, I realize 
 that the period of nominating conventions is at hand, and therefore I 
 trust that all the remarks of all the gentlemen may be as seed sown in 
 good ground ; that they may bring forth fruit, and that the result may 
 abundantly justify the expectation at the time of harvest. 
 
 I yield to no man in my interest in the agricultural industries of this 
 country, in the great forces that are making for national prosperity. 
 These gentlemen do not say anything on behalf of those interests in 
 general, that I would not say if I could. But I am bound to take issue 
 with them on some of the conclusions that they draw. I recognize as 
 thoroughly as they do that agriculture is the great primary source of 
 productive wealth. I recognize more, that its prosperity is the necessary 
 and essential condition of national prosperity, advancement, and growth. 
 I recall that the classic and Chinese mythologies gave to agriculture a 
 divine origin, and that, in order further to dignify the subject, they 
 
 1 Congr. Record, May i, 1906. 
 
THE DEPARTMENTS 407 
 
 brought from the heavens a god to teach its mysteries to mankind. I 
 am inclined to think, however, that our latter-day, twentieth century, 
 practical point of view gives even more distinct recognition, when it 
 devotes to the study of agricultural problems, as it does, this body of 
 trained scientists who for the last twelve years have been shedding so 
 much luster on the Department of Agriculture and giving so much of 
 reputation and distinction to it. 
 
 I believe in the Department of Agriculture. I believe thoroughly in 
 its work. I believe in its great Secretary, who started it on its career of 
 advancement and growth and who for nearly ten years has so ably directed 
 its progress. I believe in the men who are under Secretary Wilson, the 
 able heads of departments, and in the faithful and energetic men who 
 are working under them. The work fascinates me. It appeals to me. 
 It appeals to my imagination. It appeals to my hopes of the future of 
 this country. It appeals to my sense of duty to the people and the con- 
 stituents whom I have the honor to represent. I am not afraid of the 
 man with the hoe, and I have no fears of the militant farmer. I am not 
 alarmed at the size of these appropriations. They seem very small, 
 comparatively, and entirely reasonable. They seem abundantly justified 
 by the work the Department has been doing. 
 
 Without going too much into detail, I should like to call the attention 
 of the committee briefly to a few of the results of this work before saying 
 anything on this question of free garden seeds which we are discussing. 
 
 The American farmer is by no means a babe in swaddling clothes. 
 Given a fair start and an open field he can take care of himself ; but his 
 work can be vastly facilitated, his efficiency tremendously increased, and 
 the highest interests of every citizen of the country promoted by the guid- 
 ance, suggestion, and helpful advice of such bureaus as have been estab- 
 lished in the last twelve years. 
 
 It was Mark Twain who said that the cauliflower was a cabbage with 
 a college education, and it has been the function of the national Depart- 
 ment of Agriculture to give college educations not only to the cabbage, 
 but to the orange and the sugar beet, the wheat of Minnesota and the 
 tobacco of Connecticut, to the cotton of Texas and the apple of New 
 York and Michigan, to the horses of the mountains and the dairy cows 
 of Iowa. True, they say that the Department reeks with paternalism, 
 but there is paternalism and paternalism, and there is nothing in the 
 helpful work of these bureaus which would disturb the shades even of 
 Jefferson. 
 
 I wish it had been in the power of every Member of this House to 
 listen to the statements made before the committee by the heads of the 
 various executive branches of the Department. Failing in that, I wish 
 that each might find time to read the reports of these hearings. They are 
 a liberal education in applied science in the field of agriculture, and if 
 anyone has had the bad taste to recall the earlier designation of the De- 
 
408 AMERICAN FEDERAL GOVERNMENT 
 
 partment in semi-derision as the "cow bureau," I think he will be heartily 
 ashamed of it before he gets through with his studies. The work is not 
 only theoretical, and it is not purely educational, although it is, and 
 should be in the main, experimental and suggestive. It is distinctly 
 practical and is more than justified by direct returns. 
 
 There is not one field of governmental activity where a dollar spent 
 brings a tenth of the return in actual good to the people that does the 
 little expenditure which we give, more or less grudgingly, to this Depart- 
 ment. It covers a wide field in national life, and in every line of its 
 activities it demonstrates every year in a cold matter of dollars and cents 
 its increasing financial importance. 
 
 The Weather Bureau saves in a month in the spring floods many 
 times its entire cost since its institution in the saving of property and life, 
 and its researches in the field of meteorological science are both wonder- 
 ful and fascinating. 
 
 If the Bureau of Animal Industry had done nothing else in its whole 
 career but to save the domestic animals of the country from the scourge 
 of the hoof-and-mouth disease, it would have abundantly justified every 
 dollar that it has cost, but that is only one small portion of its work. Its 
 daily routine is made up of the protection of the people's food supply 
 increasing its volume and decreasing its cost ; protecting the farmer and 
 stock grower from diseases and adding enormously to our national 
 wealth. It has done and is doing in its meat-inspection work perhaps 
 more than any one single agency to develop and hold a foreign market 
 for our agricultural productions, and our meats to-day find an entrance 
 into Germany, France, Belgium, and other European centers solely 
 because they are viseed by this Bureau. 
 
 The Department has recently taken over the immense forests on our 
 public lands, and forested areas to-day aggregating more than 100,000,000 
 acres are being cared for, preserved, and developed by the Department 
 of Agriculture. While there is a possibility for difference of opinion as 
 to the wisdom or some phases of this work, its importance and its pos- 
 sibilities of good in the preservation of the forest and the conservation of 
 the water supply, in the development of the arid regions, and the making 
 possible of steady and successful irrigation are absolutely beyond com- 
 putation, and the tact and skill with which this work has been done under 
 its present management has gone far toward removing any possible 
 ground for complaint. 
 
 It is useless to enumerate in detail the individual bureaus with their 
 almost spectacular work, but while we are talking of dollars and cents 
 let us bear in mind that the experiment stations in all the States and Ter- 
 ritories have cost the Government until now only $790,000 a year, and 
 the additional work in connection with the stations in Washington in- 
 creases these figures by only $200,000. That is a large sum of money, 
 but a Minnesota experiment station alone has added more than this sum 
 
THE DEPARTMENTS 409 
 
 per annum to the value of the wheat crop of the country in improving 
 the type and character of the wheat grown. Figures are dry and mean- 
 ingless things in the abstract, but in the concrete they tell their story. 
 
 The addition of a single kernel of wheat per head means an addition 
 of more than $5,000,000 per annum to our national wealth, and the 
 methods of seed selection introduced and practiced by these experiment 
 stations have far more than equaled this increase. 
 
 We are spending about $30,000,000 in building vast reservoirs, canals, 
 monumental dams, and structures, which we hope shall last to the end 
 of time, to conserve and preserve the waters in the semiarid regions. We 
 are doing this through the agency of trained and technical engineers 
 whose work is exciting the admiration of every beholder. A hundred 
 thousand dollars hardly pays for the reconnoissance for one of the 
 gigantic projects undertaken by the national Reclamation Service, but 
 the Reclamation Bureau spends not one cent of its millions in solving, 
 or attempting to solve, any of the myriad questions relating to the ap- 
 plication of water to the soil, relating to irrigation as an art, relating to 
 the economic use of the water it has cost these millions to save. 
 
 It remains for one of the bureaus of the Office of Experiment Stations, 
 with a sum of only $102,000 altogether, to work along these lines and to 
 achieve results which the western farmer regards as the most important 
 of anything connected with the work of reclamation. There is no part 
 of the work of the Department that meets with readier welcome at the 
 hands of those for whom it is done than does this work of the Bureau of 
 Irrigation and Drainage Investigation, and yet with this $102,000 that 
 has been given to this Bureau there is carried on not only the irrigation 
 work, but drainage development and experimentation in twenty States 
 and the reclamation of millions of acres of land rendered useless by alkali 
 and similar mineral elements. 
 
 I am very glad that the bill before us carries above $27,000 increase 
 for this work. 
 
 With a total expenditure of less than $5,000 the Department last year 
 located and detected the poison that, under the name of "loco," has cost 
 the stockmen of this country, speaking conservatively, $10,000,000, and 
 this was done although scientist after scientist and expert after expert 
 had declared the poison a myth. 
 
 No one of all these phases of this work is more beneficial than is that 
 of the particular Bureau which we have under contemplation in this item 
 the Bureau of Plant Industry. None is more ably officered and 
 directed. Its costs, according to the figures of this bill, about $575,000. 
 That is the equivalent in cost of a thousand rounds of ammunition for 
 a i2-inch gun, and the results of the work of the Bureau of Plant Industry 
 simply can not be computed. These results are not only a benefit to the 
 rural population, not only to the men for whom we plead so earnestly, 
 but they are a benefit to the whole people ; they increase our food supply ; 
 
410 AMERICAN FEDERAL GOVERNMENT 
 
 they promote our commerce; they help our people in every particular. 
 Because they are so far-reaching, and because they are so beneficent and 
 important, I protest against men of the character and caliber of those 
 who are at the head of this Department having their time and energies 
 and opportunities frittered away in sending out these absurd little dona- 
 tions of ordinary garden seeds to the farmer, to men who do not want 
 them. I do not want this important work interfered with. I do not 
 want this great bureau to continue under our direction doing something 
 that seems to me ignoble and unworthy unworthy of the Congress, 
 unworthy the Department of Agriculture, and, most of all, unworthy the 
 American farmer. 
 
 I do not think the committee intended to take anything from the farmer. 
 I know that I did not. I do not believe that that was the thought at all. 
 What we wanted to do was to substitute something that was of value for 
 something that was unimportant and inconsiderable; something that 
 really amounted to something, that would accomplish something, and 
 was of practical utility. 
 
 When the Department was first organized, Congress very aptly and 
 very properly made a part of its duty the distribution of rare and valu- 
 able seeds, but they were to be rare and valuable seeds, not the kinds 
 that had been known for three centuries ; not the variety that our for- 
 bears brought with them to Jamestown and Plymouth. They were to 
 be rare and valuable seeds ; something that would add to the productive 
 power and wealth of the country and advance the interest of the farming 
 population. 
 
 What the committee, if I understand it, attempted to do is simply this : 
 they attempted to confine this work to the legitimate field of the dis- 
 tribution of rare and valuable seeds. There was no thought, I am sure, 
 of dealing either illiberally or parsimoniously with it. On the other 
 hand, they believe that we have appropriated sufficiently so that that 
 work may be carried on with success according to its legitimate purpose. 
 
 There are endless instances of the importance of the distribution if 
 properly directed. The seedless orange was developed and introduced 
 by the Bureau of Plant Industry, and afterwards distributed through 
 this very appropriation. This one fruit has been worth more to the people 
 of this country than all the radishes, pumpkins, lettuce, and beans that 
 have been sent out through the Department of Agriculture since this dis- 
 tribution began. The statisticians tell us that the California crop of 
 seedless orange alone is worth from $7,000,000 to $8,000,000 annually. 
 
 In the same way and through the same distribution the Government 
 has been sending out macaroni wheat. The Bureau of Plant Industry 
 introduced it from Russia and Asia and distributed it freely to our farm- 
 ers, and to-day it is adding to the income-bearing possibilities of the 
 country infinitely more than all of these ordinary seeds that they are 
 sending out for us under our franks. This is something the farmer can 
 
THE DEPARTMENTS 411 
 
 not get at the corner grocery, and the cash value of the work is to be 
 figured in millions of dollars. Last year it is estimated that we produced 
 in this country from $10,000,000, to $15,000,000 in this product alone, 
 and the beauty of it is that it fills a new field and positively adds that 
 amount to our productive wealth. 
 
 Mr. WADSWORTH. And they have done that within the last three 
 years. 
 
 Mr. BROOKS of Colorado. And the chairman calls my attention to the 
 fact that this work has all been done within the last three years. The 
 same thing is true of the Kaffir corn, emmer, and brome. Those are 
 things that are of real value, and they are sent out under the appropria- 
 tion for the Congressional free-seed distribution, but they are not the 
 ordinary garden seeds that you can buy anywhere for i or 2 cents a 
 package. 
 
 I was much interested yesterday in the remarks of the gentleman from 
 South Carolina [Mr. Ellerbe]. They seemed to be very apt, very sound, 
 and very sensible. What he said about the wilt-resisting cotton is all 
 true. It has added enormously to the receipts of the cotton growing 
 States and the cotton growing section has not yet begun to reap the full 
 returns, but I did not notice any plea for free beans in the gentleman's 
 remarks or any argument for rhubarb or radishes or anything of that 
 sort. All that the gentleman said was the strongest possible argument 
 for the work of the Department in sending out rare seeds and against 
 garden seeds. 
 
 The wilt-resisting cotton was a rare and valuable thing that was 
 developed by the Bureau and sent out under this form of seed distribu- 
 tion. Now, the committee has attempted to still provide for the rare 
 and valuable plants and seeds. There is no disposition to leave out the 
 wilt-resisting cotton, there is no disposition to leave out the further pro- 
 duction of the seedless orange, or the Kaffir corn, or the macaroni wheat. 
 There will be an amendment offered by the committee that will make 
 that matter thoroughly clear, and will secure the continuance of the work 
 without any restrictions. What the committee attempted to do was to 
 leave in the bill all the appropriation that hitherto had been devoted to 
 the rare and valuable seeds, and to eliminate and leave out of the bill 
 this indefensible donation of no value which is, in many cases, regarded 
 with ridicule, and justly so, by the very men to whom it is sent. 
 
 There is an ample field for work with rare seeds and plants. There 
 are hundreds of localities all over the world where we still can get just 
 such plants as those which that Bureau has been finding for us in the 
 r last years. The scientists from the Department are now searching in 
 Asia, in Turkey, in India, in Africa, in northern Russia, and in Australia, 
 and from those sections we are getting things that our farmers can use 
 and render available from one end of this country to the other. It is 
 true that many of them are semi-tropical and will interest mainly the 
 
412 AMERICAN FEDERAL GOVERNMENT 
 
 South, like the orange, the mango, the fig, the grape fruit, and date, but 
 it is also true that many of them are hardy and will interest the North, 
 like the hardier kind of wheat, and the hardy crops that will grow clear 
 to the Canada line and in altitudes of 6,000 or 7,000 feet grains and 
 fruits from Siberia and northern Russia, which thrive wonderfully when 
 brought to our warmer sections. That is the kind of work I plead for 
 and have interest in. 
 
 We expend something like $500,000 a year in one single drug 
 opium and we import that from foreign countries, and our total 
 importation of foreign drugs and medicinal plants amounts to more than 
 $5,000,000 annually. 
 
 The CHAIRMAN. The time of the gentleman has expired. 
 
 Mr. WADSWORTH. Mr. Chairman, I ask unanimous consent that the 
 gentleman may be allowed to conclude his remarks. 
 
 The CHAIRMAN. The gentleman from New York asks unanimous 
 consent that the gentleman from Colorado may be permitted to conclude 
 his remarks. Is there objection? 
 
 Mr. FINLEY. Mr. Chairman, I understand that the gentleman is dis- 
 cussing the seed proposition. I would like to know if we have reached 
 that provision in the bill. 
 
 Mr. WADSWORTH. Oh, yes; we have. 
 
 Mr. FINLEY. Then I have no objection. 
 
 The CHAIRMAN. The Chair hears no objection. 
 
 Mr. BROOKS of Colorado. Mr. Chairman, I think I shall take only a 
 few minutes, for I shall very briefly conclude with one or two things 
 that I want to call attention to. As I was saying, we are expending 
 $500,000 a year for a single drug. That drug and many others can be 
 grown with profit, and great profit, in Maine, in New Hampshire, in 
 Vermont, and in the Northern States. Crops like these can be made a 
 kind of by-product to the farmer and ought to be introduced, and this 
 Department is trying to do it through this Bureau. Now, the committee 
 proposes to extend the usefulness of the Bureau along those lines and to 
 substitute in its distribution digitalis and stramonium and plants like 
 those for peas and beans and such plants as you can get anywhere. Only 
 last week there was a very apt illustration of what I am saying. There 
 is one concern engaged in the manufacture of celluloid in this country 
 that pays $500,000 a year for camphor. Camphor, as we all know, is 
 a monopoly of the Japanese Government in the island of Formosa. 
 Probably the other uses of camphor in this country amount to about 
 $2,000,000 a year. 
 
 Last year down in Florida one of the experts of this Department in 
 going around found a man who was trimming some ornamental camphor 
 trees. He got the clippings from those trees and experimented with them 
 in the Bureau. He found that he could get a higher content of camphor 
 oil and a better quality of camphor than they could in the island of 
 
THE DEPARTMENTS 413 
 
 Formosa, where they cut down and kill the tree. He further found that 
 large tracts of land in Florida which were comparatively valueless for 
 other purposes were admirably adapted for growing these trees. He 
 went immediately to the celluloid people, showed them the result of his 
 work, and explained to them the possibility of introducing the growth 
 of these trees into this country, and last week they concluded the pur- 
 chase of lands in Florida for the investment of $150,000 in the growing 
 of American camphor. How does that work compare with our donations 
 of 2-cent packages of cabbage and rhubarb and rutabaga? 
 
 We pay $500,000 a year to Germany and France for our beet-sugar 
 seed. The Department of Agriculture is developing a beet-sugar seed 
 to-day in this country that is superior in saccharine content, in hardness 
 and availability to anything that the Germans or French can produce; 
 and I prefer to see my Colorado farmers get this improved sugar-beet 
 seed than these common seeds that they do not want, and I know my 
 Michigan and Utah and Minnesota friends feel the same way. I believe 
 that Department can assist the gentleman from Tennessee [Mr. Gaines] 
 to find some rare seeds of this sort, that his people will think just as much 
 of as they do of the peas and beans which he says they prize so highly, 
 and if he does, he will accomplish a substantial result in developing new 
 agricultural possibilities for his section. 
 
 I do not agree with the gentleman from Maryland [Mr. Mudd], and 
 I do not believe that he got at the real point of this situation in his re- 
 marks yesterday. Shortly after I was first elected to Congress and before 
 I knew some of the mysteries of the work of a Congressman which I 
 have since learned, I was awakened in the dead vast and middle of night 
 by a telegram from a very enthusiastic rural constituent, and it read like 
 this: 
 
 Send seeds at once; no Republican seeds in this county. 
 
 I complied with that urgent demand as soon as I could, and the returns 
 at the succeeding election, in the Republican crop, were amply satis- 
 factory and highly commendable from my point of view. My enthusi- 
 astic rural friend had gotten at the real gist of this question. It is an 
 attempt to secure a little, petty, unworthy, ignoble influence for our- 
 selves as Congressmen in a way that we ought to be ashamed of, and it 
 is a way that I hope will be abandoned. 
 
 The American farmer is not a babe in swaddling clothes. He can see 
 through this little gift very easily. The man with the hoe is not what 
 he was even when Millet painted him or when Markham maligned him 
 into fame. In America he is not only a tiller of the soil; he is a me- 
 chanic, manufacturer, and business man, and in these later days he is a 
 chemist, physicist, bacteriologist, and entomologist as well. I think he 
 understands and values this 2-cent contribution at its real worth. 
 
4 i4 AMERICAN FEDERAL GOVERNMENT 
 
 I want to make myself entirely clear, and, at the risk of repetition, 
 let me repeat that I believe in proper and legitimate seed distribution. 
 It is only the kind of seeds that I object to. I do not and can not believe 
 that the sending out of ordinary common garden seeds is a proper or 
 legitimate distribution, and I shall oppose it. I will, however, vote any 
 reasonable sum for the work of sending out new, rare, and valuable seeds 
 and plants, and believe this would result in great good in the future, as 
 it has in the past. 
 
 For work such as I have described in some twenty bureaus we provide 
 this year $7,250,000. It reclaims our land; it renders fertile our ex- 
 hausted reaches ; it improves our crops ; it increases, cheapens, improves, 
 and diversifies the food supplies of our toiling millions ; it protects our 
 forests, our flocks, and our herds ; it increases by billions of dollars an- 
 nually our foreign and domestic commerce ; it furnishes the most whole- 
 some, safest, and most elevating form of employment to the people; it 
 injures no one; it is beneficent, helpful, and unobtrusive. Its total 
 cost represents an expenditure of a million dollars a day for a single 
 week. For the arts of war, including therein, as we properly should, 
 our pension budget, we spent this year, in round numbers, a million 
 dollars a day for the days of a whole year, and I venture to say that no 
 man on the floor of this House will begin to compare the usefulness, 
 beneficence, and far-reaching results of the work of the Department of 
 Agriculture with that of our Army and Navy combined. 
 
 I join with our friends of the Military and Naval Committees heartily, 
 cheerfully, and enthusiastically in every effort that they make to protect 
 this country at home and abroad, to advance its prestige, to make its 
 name and its flag honored, respected, and revered; I yield to no one in 
 my support of everything which makes for our national honor and ad- 
 vantage; I will vote battle ships as long as there is a real need. The 
 scare head of rampant militarism has no terrors for me, but in the name 
 of the thirty millions of farming population who make up the great pro- 
 ducing element of our body politic I protest against any cheeseparing or 
 restrictive economies as applied to the work of this Department. We 
 talk about the stupendous balance of trade in our favor. On this side 
 of the Chamber we point with pride, and justly point with pride, to an 
 aggregate balance for the twelve years of Republican ascendance amount- 
 ing to something like $4,000,000,000, but we should go further and pay 
 our respects and distinguished consideration to the farmers of this 
 country who have not only made that balance possible, but in order to 
 do so have wiped out an adverse balance against us for the same period 
 of over $890,000,000. 
 
 As the work grows it is necessary that comparatively new fields from 
 time to time be entered upon, and this bill and the two previous bills 
 have carried one item in itself somewhat novel, of which I wish to speak 
 very briefly. In 1904 we appropriated $25,000 for experiments in animal 
 
THE DEPARTMENTS 415 
 
 feeding and breeding. The appropriation was continued last year, and 
 it is carried in the bill before us. Under that appropriation, small and 
 meager as it is, the Department has inaugurated two small experiments 
 in the developing of an American type of horse, one in the East and one 
 in the West; has made instructive and valuable experiments in sheep 
 breeding in cooperation with the Iowa station ; has already done a great 
 work in the development of the poultry industry, which, although tremen- 
 dous in its returns, has never received the attention it deserved ; has been 
 carrying on a series of most valuable and, interesting experiments in 
 calorimetric tests of the heat and flesh producing power of different food 
 elements in connection with the Pennsylvania experiment station, and 
 in several places in the South has started, or has under contemplation, 
 similar work in feeding and breeding. 
 
 The field that this work opens upon is vast and important and has 
 been hitherto almost neglected by the Government. We have lagged 
 far behind the work of the other leading powers. We spend annually 
 hundreds of thousands of dollars in importing foreign stock. Our horses, 
 with the exception of two strains of trotting stock, which are really families 
 rather than types, are Percheron, Belgian, Oldenburg, and Clydesdale; 
 our cattle are Holsteins, Ayrshires, Swiss, Jerseys, or Herefords; our 
 sheep are Cotswolds, Southdowns, and Merinos, and our swine are 
 foreign in their origin and names ; only two breeds of chickens proudly 
 flaunt an American name and are the result of American breeding. It 
 is high time that the genius and energy of the American breeder should 
 be turned to the growth and development of native strains and American 
 types. We can learn much from our foreign friends on this subject. We 
 frequently hear how one or another phase of modern progress is due in 
 some direct or indirect manner to the Corsican first emperor of the 
 French. 
 
 It is interesting to know that the great Hungarian breeding stable at 
 Lipitza was started by an Arabian stallion captured from Napoleon at 
 the battle of Leipzig. With that beginning the Austro-Hungarian Gov- 
 ernment has gradually developed, until to-day it spends over $800,000 
 a year in its maintenance of its horse-breeding establishments, with 
 immense advantage to the individual horse breeders and without any 
 encroachment upon or interference with individual enterprises. There 
 is a single breeding station Mezohegyes extending over 50,000 
 acres, which employs 6,000 civil and military employees and obtains the 
 finest breeding stock available in the markets of the world, and to-day the 
 Imperial Government makes no more proper or beneficial use of its funds. 
 
 One of the Austrian royal stables at Kis Ber was headed by an old- 
 time English thoroughbred, "Buccaneer." The winner of the Derby 
 and the winner of the Grand Prix in 1876 both came from this stable, 
 and the descendants of Buccaneer from this stable had won in 1902 
 $1,100,000, in prizes. 
 
4i6 AMERICAN FEDERAL GOVERNMENT 
 
 After the fall of the second empire the French found their agricultural 
 industries terribly crippled, and none more than their breeding of horses, 
 caused largely by the terrible losses suffered in the Franco-Prussian war. 
 The French department of agriculture immediately took up this work 
 with tremendous activity, and it has grown to such an extent that the 
 budget of 1902, the last figures obtainable, carried an appropriation of 
 $1,600,000 for horse-breeding stations, and no one, to my knowledge, 
 has suggested that the French were other than frugal, careful, and busi- 
 nesslike in their governmental expenses. The work is a fixture in French 
 system and has demonstrated its great and increasing value. 
 
 The Prussian Government spent in 1900 a quarter of a million dollars, 
 and that is for Prussia alone. The Grand Duchy of Oldenburg for a 
 hundred years has been growing and developing a strain of coach horses, 
 until the name of Oldenburg is known, not for any statesmanship nor 
 for military prowess, but for the superior excellence of its horses, from 
 Australia to Siberia, from Germany to Japan, and from Lapland to 
 Cape Town and back. 
 
 With all their lack of initiative and sluggishness in many regards, 
 the Russian Government spends nearly a million dollars a year in its 
 breeding of remounts and domestic horses. 
 
 The Italian budget for 1900 carried nearly $100,000. In 1904 the 
 Government embarked upon a much more extensive scheme and, in 
 addition to its previous work, in round numbers, $50,000 was devoted 
 to the purchase of new animals, about as much for prizes and subsidies to 
 different organizations of breeders, $50,000 for veterinary surgeons, and 
 corresponding amounts for other purposes. Not long ago the Italian 
 Government paid $17,000 for a Derby winner to put in one of its breed- 
 ing establishments. The people are much interested and regard the 
 work with marked approbation. 
 
 The English Government, through prizes and subsidies, spends about 
 $30,000 a year, and its lack of initiative in this work is the subject of 
 general regret. For many years the royal commission appointed to 
 investigate the subject has pleaded with Parliament for larger appropria- 
 tions and has pointed out the fact that the English were falling behind 
 the other countries in this work. Some of the Canadian provinces have 
 just started, and the press reports a few days ago contained an item 
 that $25,000 had been paid for a single horse to start a stable at Truro, 
 Nova Scotia. 
 
 We have invested, all told, a little over $10,000 in horses, and the 
 State of Colorado, where the experiment was first tried, added almost 
 as much for stables and similar expenditures connected with the work. 
 We have to-day the beginning of an experiment which competent judges 
 consider of the greatest promise. There is no field to which the Ameri- 
 can farmer can more safely direct his energies with greater hope and 
 certainty of return than the breeding of fine horses, and there is no place in 
 
THE DEPARTMENTS 417 
 
 which the Government can more properly and more effectively render 
 him assistance than by putting the work on a systematic and scientific 
 basis. I do not mean breeding racing horses alone, but an average horse 
 of superior speed, courage, strength, and endurance, which is demanded 
 in increasing numbers by our domestic trade and by the foreign markets ; 
 of the kind for which there is a constantly increasing demand and rela- 
 tively decreasing supply. 
 
 The cost of carriage horses has increased in this country since 1891 
 in the average sum of over $100. The same fact is observed elsewhere. 
 The export value is given now at $308, as against $174 then. In 1900, and 
 the year was by no means extraordinary, Germany imported 90,000 
 horses, and for years Germany has spent from $17,000,000 to $20,000,000 
 abroad for horses annually. England in the ten years from 1891 to 1900 
 purchased abroad 342,000, at a total cost of about $100,000,000, and the 
 demand is steadily growing. France, on the other hand, from its greater 
 breeding facilities, had large numbers to sell. 
 
 As I understand it, it is not proposed to imitate the Italian or Austrian 
 systems, with their tremendous establishments of government-owned 
 horses, but rather, with small national expenditure, to direct and assist 
 cooperative circles of breeders, looking to the establishment of an avail- 
 able native type and to raising the general average of excellence of the 
 American road stock. 
 
 Rather something more or less resembling the French system, which 
 is essentially cooperative breeding under Government supervision. The 
 expenditure is large, but the returns are proportionately even larger. 
 As long ago as 1887, with a yearly maintenance charge and expenses for 
 renewals and new stock amounting to some 1,400,000 francs, there was 
 an income to the State, outside of sales, of 815,000 francs, and the 
 statistics show that if this were the primary object, the returns could 
 have been largely increased. 
 
 The real benefit has been the widespread general improvement in the 
 common stock the half-breeds, the work horse, and the ordinary 
 driving horses exactly the field in which we have done very little 
 systematic work. What France and Hungary and the Grand Duchy of 
 Oldenburg have done we certainly can, and should do. 
 
 At first the American breeders were inclined to look with some question 
 upon this venture, but as it has begun to work itself out it now meets 
 with almost universal approval, and I believe that a few years will dem- 
 onstrate that this is one of the wisest ventures that the Department has 
 undertaken. Similar work in the improvement of strains of dairy and 
 beef cattle, swine and poultry and sheep, instituted in response to a very 
 general request and demand, shows the importance of the work under- 
 taken. 
 
 I have devoted considerable attention to the work of two particular 
 bureaus, not because they excel the work of the other bureaus, but 
 
 27 
 
4 i8 AMERICAN FEDERAL GOVERNMENT 
 
 because of the particular interest which attaches to their work at the 
 present time. The whole Department of Agriculture is serving the people 
 in a most admirable way. It is increasing, cheapening, and improving 
 our food supply ; it is increasing the fertility of our country ; it is supply- 
 ing the enormous demands of our growing commerce; it is furnishing 
 the best and safest kind of employment to the people. There is no other 
 form of governmental activity that receives, or should receive, a more 
 liberal degree of support at the hands of Congress than does the Depart- 
 ment of Agriculture. 
 
 There is every reason why that should be so. The latter-day problems 
 which are pressing on this country for solution are almost without ex- 
 ception problems which come from, and are the result of a change of the 
 type of development over great areas of this country. A change from 
 an essentially rural and agricultural type to an essentially industrial and 
 manufacturing type. We view with alarm the great and disproportionate 
 growth of our industrial centers. We view with alarm the influx of alien 
 hordes, the growth of socialistic ideas, the growing urban discontent and 
 the strife of wage-earners and the masses. We regret and deplore the 
 drift from the country to the city, the passing of the saner forms of rural 
 life, the simpler form of living which characterized generations that have 
 gone, and thus far we have only deplored and only viewed with regret. 
 We have not done one single thing for a remedy. 
 
 Mr. Chairman and gentlemen, the remedy, if remedy there exists, in 
 my judgment, lies along the very line on which the Department of Agri- 
 culture is working. It lies in making the work of the American farmer 
 more elevating, more pleasant, more attractive and more profitable. It 
 lies in elevating his occupation to a proper plane of dignity, in recogniz- 
 ing the importance of his pursuit as a profession as well as a means of 
 livelihood. It lies in teaching young men they can devote to this work 
 just as much intelligent preparation, just as much thoughtful earnest- 
 ness, just as much ability, as to railroad problems or finance or any other 
 form of industry that occupies the human mind. It lies in keeping the 
 young men on the farms and preventing their crowding into the less 
 desirable, but apparently more attractive occupations. 
 
 And we can best do this, gentlemen, by liberally and generously sup- 
 porting these men, who for years, without flourish of trumpets and with- 
 out any accessories of military parade, have quietly, but with an efficiency 
 equaled by no other similar body of men in the world, been bringing 
 before the farmers of this country the richest fruit of all the ages and the 
 highest results of scientific investigation when applied to the field of 
 agricultural science, and we can not do it by this petty little distribution 
 of free garden seed. [Applause.] 
 
THE DEPARTMENTS 419 
 
 THE SCIENTIFIC WORK OF THE GOVERNMENT 1 
 
 BY S. P. LANGLEY 2 
 
 ANY attempt to make a survey of the distinctly scientific activities of the 
 Government must necessarily be brief in a series which has already else- 
 where considered the numerous incidental agencies for scientific work in 
 bureaus attached to one or another of the Executive Departments. How 
 numerous these are may be inferred from the subjoined list, which is 
 confessedly incomplete, being confined to those bureaus which have a 
 certain number of distinctly scientific employees: 
 
 Under the Department of the Treasury: 
 
 Supervising Architect's Office Coast and Geodetic Survey 
 
 Director of the Mint Marine Hospital Service 
 
 Light-House Board Bureau of Standards 
 
 Department of War: 
 
 Surgeon-General's Office Bureau of Ordinance 
 
 Chief of Engineers Chief Signal Officer 
 
 Department of the Navy: 
 
 Hydrographic Office Nautical Almanac 
 
 Naval Observatory Bureau of Medicine and Surgery 
 
 Department of the Interior: 
 Patent Office Geological Survey 
 
 Department of Agriculture: 
 
 Weather Bureau Bureau of Forestry 
 
 Bureau of Animal Industry Bureau of Soils 
 
 Bureau of Chemistry Division of Biological Survey 
 
 Office of Experiment Stations Bureau of Plant Industry 
 Division of Entomology 
 
 Commission of Fish and Fisheries. 
 
 
 Smithsonian Institution: 
 
 National Museum National Zoological Park 
 
 Astrophysical Observatory Bureau of American Ethnology 
 
 1 Part of an article in Scribner's Magazine, January, 1904. Reprinted by permission 
 Copyright. 
 
 2 Secretary of the Smithsonian Institution. 
 
420 AMERICAN FEDERAL GOVERNMENT 
 
 The newly created Department of Commerce and Labor will include, after 
 July i, 1903, the following before-mentioned bureaus: 
 
 National Bureau of Standards Commission of Fish and Fisheries 
 Coast and Geodetic Survey Light-House Board 
 
 Jefferson's interest in science made his administration an especially 
 noteworthy one from a point of view both scientific and educational, and 
 explorations and surveys which ultimately resulted in the establishment 
 both of the Geological Survey and of the Coast Survey, were initiated 
 under his presidency. 
 
 The Geological Survey, which was originally a topographic one, 
 practically originated in the expeditions of Lewis, Pike, and Lewis and 
 Clark, but was especially developed by the surveys for a Pacific railway, 
 followed by a long list of explorations which became systematized under 
 King, Hayden, and Wheeler, and definitely organized as the U. S. Geo- 
 logical Survey on March, 3 1879, with Clarence King as its first director, 
 Major J. W. Powell being his immediate successor, and Prof. C. D. 
 Walcott its present incumbent. 
 
 The Geological Survey has at present an extensive organization under 
 the Interior Department, devoting its energies to geological investigation 
 of the United States, to topographic surveys conducted on a large scale, 
 to a certain amount of paleontological work growing out of such scientific 
 activities in connection with geological investigations, and, more recently, 
 has had placed under its direction the initiation and carrying out of a 
 vast scheme for the irrigation of the arid regions of the West, which it is 
 expected will add to the fruitful soil of the United States many millions 
 of acres. This Survey is in friendly cooperation with other branches of 
 the Interior Department, notably the Land Office, and with each State 
 in the Union; with the Forestry Bureau of the Department of Agricul- 
 ture, and with the various State geological and hydrographic surveys, 
 exhibiting a highly intelligent organization of importance to science and 
 of utility to the people, giving to and deriving help from individual 
 geologists connected with many of the large and even small universities 
 and colleges of the country, and presenting altogether the most perfect 
 system of geological investigation, combined with topographic and 
 economic work known to any country. It has produced a body of most 
 capable men who are original in both their economic and scientific work. 
 It has earned the confidence of Congress and the people, and its require- 
 ments both for research and publication are being met with a generous 
 hand. 
 
 The credit for the inception of the Coast Survey is divided among 
 various persons, though it would appear to have early enlisted the inter- 
 est of President Jefferson and Secretary Gallatin, and to have been 
 powerfully stimulated by the arrival in this country of Ferdinand Ru- 
 
THE DEPARTMENTS 421 
 
 dolph Hassler, a Swiss, who virtually made the plans upon which the 
 subsequent operations of this Survey were prosecuted. 
 
 The Survey dates its origin from an Act of Congress passed in 1807 
 for surveying the coasts of the United States. It had a checkered and 
 somewhat intermittent career until 1832 when it was reorganized, though 
 its control has from time to time alternated between various departments. 
 It was attached to the Navy Department for a brief period; then for 
 many years it was under the Treasury, and by Act of Congress of this 
 year has been transferred to the new Department of Commerce. It 
 has had as its Superintendents after Hassler such eminent men as Bache, 
 Peirce, Patterson, Hilgard, Mendenhall, Pritchett and its present incum- 
 bent, Tittman. It has now over one hundred field officers, and a fleet 
 of twelve steamers and six sailing vessels, besides many launches and 
 small craft. In addition to topographic work it carries on geodetic and 
 magnetic surveys, it has had an office of weights and measures, and has 
 been custodian of the National standards. The development of this last 
 function recently, and with the fullest cooperation of the Coast Survey, 
 has resulted in the establishment of an independent Bureau of Standards 
 of large scope. 
 
 Superintendent Tittman, in a recent description of its work, stated 
 that it had since its inception made about 30,000 square miles of topo- 
 graphic surveys, sounded minutely nearly 300,000 square miles of water, 
 and made deep-sea soundings over little less than a million square miles. 
 It has completed a first survey of the Atlantic, Gulf, and Pacific Coasts of 
 the United States, and its triangulations cover between 300,000 and 
 400,000 square miles. It has published over 500 charts besides the Coast 
 Pilot volumes of the Atlantic and Pacific Coasts ; and carefully studied the 
 laws of the earth's magnetism (these latter being now investigated through 
 magnetic observatories in cooperation with foreign governments), and its 
 geodetic work is also being carried on with international cooperation. 
 
 The Coast Survey, moreover, is frequently called upon to serve, through 
 its officers as experts, in the determination of boundaries, whether be- 
 tween the States or in matters involving disputes with other nations hold- 
 ing territory adjacent to the United States. Since the Spanish- American 
 War, important labors have devolved upon the survey in Porto Rico 
 and in the Philippines, where coast surveys are urgently needed and are 
 of high importance for military and commercial purposes. 
 
 The difference between the unscientific and the scientific idea of the 
 order of this world, already alluded to, can hardly be emphasized more 
 than in the conception which made a meteorological bureau rational and 
 possible. "The wind bloweth where it listeth" was the conception of 
 ancient times, but the eighteenth century had already reached the idea 
 that the movements of the winds, from the Trades which blew across 
 the planet to the eddy that whirls the dust in the street, are as much 
 subject to law as are the courses of the stars. 
 
422 AMERICAN FEDERAL GOVERNMENT 
 
 The Weather Bureau is now a highly equipped organization under a 
 Chief, Willis L. Moore, the officer third in rank in the Department. The 
 country is covered with its stations. Its reports, issued twice daily, have 
 come to be looked for in every portion of the United States by all the 
 people, whose daily life is to a certain extent influenced by them, and 
 the value of it3 work in the saving of life and shipping on the coasts by 
 its prediction of storms and floods, as well as the saving to the crops 
 through timely notice of sudden changes, such as frosts, etc., is incal- 
 culable. 
 
 The work which the people know best is the general forecasts of the 
 weather, which are conducted on the best obtainable system; forecasts 
 which, though founded on an order of things as subject to law as the 
 courses of the stars, are far from having yet reached the precision of 
 astronomical science, though the results obtained are unrivalled in their 
 excellence by those of any other nation. The preparation of the weather 
 map involves the daily sounding of the heights of the aerial ocean above, 
 simultaneously by observers all over the country, and the joining of 
 these sounding stations on the map by contour lines which indicate the 
 direction of that great aerial ocean's flow. This direction can not of 
 course be dete: mined with anything like the certainty attainable in the 
 deduction of the path of a star, yet the result, though still a probability 
 only, is a very useful one by which we all guide our daily lives. Will it 
 be greatly better for us if it is ever otherwise, and we come to the time 
 when we know long in advance what the weather will be, and this and 
 many other like uncertainties are wiped out from the variety of our 
 daily life? 
 
 These general maps are prepared in the office at Washington, from 
 despatches sent by local offices, and the Bureau's use of the telegraph 
 service alone costs $300,000 per annum. It distributes in the shape of 
 cards, maps, and publications nearly 55,000,000 pieces yearly, and in 
 cases of special agricultural industries, particularly susceptible to de- 
 struction through changes in weather, special services have been estab- 
 lished, notably for cotton, sugar, and rice, in the Southern States, and for 
 fruit and wheat in California. 
 
 Meteorology is a science which, in the main, can only be prosecuted 
 successfully through the Government, owing to the fact that deductions 
 must be based upon a great number of observations carried on for long 
 periods and over wide areas; so that incidentally to, and prerequisite 
 for, the conduct and improvement of its practical and economic work, 
 scientific investigations of the highest moment have been from time to 
 time carried on under the auspices of this branch of the service. The 
 most notable of these in recent years has been the aerial research of 
 studying meteorological phenomena at high altitudes through the use 
 of kites, experiments in wireless telegraphy, and in other fields relating 
 to atmospheric phenomena. A scientific man whose name has long been 
 
THE DEPARTMENTS 423 
 
 honorably associated with this original work is Cleveland Abbe, who has 
 been connected with the service since 1867, and who still continues 
 active as a prosecutor of it, and as Editor of the Bureau's publications. 
 
 Historians and philosophers have not infrequently remarked that the 
 stress of war results in the advancement of science and learning. Napo- 
 leon's invasion of Egypt carried in its train the unlocking of the mysteries 
 of the hieroglyphs and the production of the great work " Description 
 de PEgypte." More recently the foundation of the University of Strass- 
 burg signalized the close of the Franco-Prussian War, while the estab- 
 lishment of the Johns Hopkins University was a direct resultant of the 
 war between the States, and was intended, at least in the mind of the 
 founder, to assist in healing the breaches this had created. 
 
 It was during the darkest days of this same war that Congress estab- 
 lished the National Academy of Sciences, whose creation, foreshadowed 
 by the organization of such private societies as the American Association 
 for the Advancement of Science, had been long in the minds of public 
 men. The actual need of scientific organization was shown during the 
 war, when this nation apparently first awakened to the fact that in every 
 department of activity, and more especially in the military and naval 
 establishments, the services of scientific experts were required. During 
 the war period, Joseph Henry, the Secretary of the Smithsonian Institu- 
 tion, was in almost constant intercourse with President Lincoln ; and in 
 that era, before the days of specialization, he was called on to give advice 
 on the most diverse subjects. 
 
 It was then that the idea of a nonresident National Academy, without 
 localization, like the National Academy of Paris or the Royal Society of 
 London, but composed of eminent men, whose services might be called 
 into requisition by the Government, was created. This body continues 
 in existence, as the most generally representative and dignified aggrega- 
 tion of American men of science, and while suffering under the disad- 
 vantages of not having a permanent home, nor officials whose time can 
 be exclusively devoted to its work, has in special cases when called upon 
 rendered valuable service to the Government by its advice. 
 
 The Department of Agriculture has become a large factor in the 
 scientific life of the Government, so large as to render possible in a brief 
 article only the barest enumeration of its activities. 
 
 As noted above, it acquired the weather service, which had been suc- 
 cessfully carried on through various agencies. In the distribution of 
 seeds already alluded to, its work has grown to vast proportions. 
 
 The systematic investigations in nearly every department of biological 
 science directly or remotely connected with the life and health and diseases 
 of animals and plants, the observations of the life habits of all forms which 
 may be either helpful or noxious to agriculture, investigations into the 
 
424 AMERICAN FEDERAL GOVERNMENT 
 
 origin and spread, the restriction and the cure of contagious diseases 
 among domestic animals, are but a part of its work. These are carried 
 on in highly equipped laboratories by great numbers of investigators, 
 whose work is welded by excellent organizers into a uniform, compact, 
 and intelligent whole, together with a system of distribution of infor- 
 mation of a popular and untechnical character through suitable publica- 
 tions. This is aided by a most efficient support on the part of Congress, 
 and all these and more have been the care of this Department, which 
 has rendered service of incalculable importance, not only in the spread 
 of ascertained knowledge of economic value, but in the enlargement in 
 all domains of such knowledge, presenting the most signal success of 
 such scientific organization yet undertaken by the National Government. 
 
 In 1902 a partial reorganization was effected, the most conspicuous 
 advance being the establishment and greater enlargement of the Depart- 
 ment of Forestry, which is seriously grappling with the most interesting 
 and important problem of the control of timberlands, not only upon the 
 public reserves, but even in the vast acreage in private hands; and to 
 such work the new division under the present charge of Gifford Pinchot 
 is devoting itself. 
 
 The surgeons of the Army and the Navy from early days exhibited 
 their interest in scientific work, a number of them being among the pio- 
 neer naturalists and ethnologists in America. As a result of the important 
 professional labors of the surgeons in the Army and again, as an out- 
 growth of the War between the States, the Army Medical Museum was 
 established, with the Surgeon- General's Library, which is believed to 
 be the most complete medical library in the world, and which, under the 
 direction of John S. Billings, aided by Robert Fletcher, not only collected 
 a unique library, but issued the most comprehensively arranged and 
 useful catalogue known in any department of learning. It has added 
 to it a medical and surgical collection of the highest importance to the 
 profession and has stimulated the growth within the last few years of a 
 military medical college. 
 
 The United States Fish Commission, established in 1871, has illus- 
 trated in a most gratifying manner the great possibilities of applying 
 earnest scientific work to the wants of the people, and these have brought 
 about results of vast importance and of great economic value. It was 
 established as an outgrowth of the Smithsonian Institution under its 
 Secretary, Spencer F. Baird, who is credited with the statement that a 
 mile of ocean along our coasts can furnish more food products than ten 
 miles of fertile land. During his lifetime it was to a certain extent carried 
 on in connection with the Smithsonian Institution, and has done a great 
 work for the advancement of our knowledge of the life of every descrip- 
 tion of creature inhabiting the fresh waters of our country and the oceans 
 surrounding it. It has increased to a degree hardly to be believed the 
 
THE DEPARTMENTS 425 
 
 quantity of fish available for our people, and has put within the reach 
 of the poor, healthful and nourishing food, at one time only possible for 
 the rich to enjoy. 
 
 The general work of the Commission as administered is under three 
 divisions, which are known as: 
 
 (1) Division of Inquiry respecting food fishes. 
 
 (2) Division of Fisheries. 
 
 (3) Division of Fish Culture. 
 
 The principal part of its scientific work is under the first division, 
 ordinarily known as the Division of Scientific Inquiry, and comprises : 
 
 1. The investigation of the fishing-grounds of the Atlantic, Gulf, and 
 Pacific Coasts and the inland waters of the United States, with the view 
 of determining the food resources and the developing of the commercial 
 fisheries. 
 
 2. The investigation of the causes of the decrease of food fishes in the 
 waters of the United States. 
 
 3. The study of the waters of the coast and interior to determine the 
 feasibility of increasing their natural resources. 
 
 4. The dissemination of information concerning the distribution and 
 habits of marine animals and their capture, and their preparation for 
 the markets. 
 
 5. Examination into the adaptability of sites for fish-cultural stations 
 and investigation of the diseases incident to fishes at such stations and 
 at large. 
 
 The second division, known as the Division of Fisheries, deals with 
 the economic phases of the fisheries themselves, such as the collection 
 of statistical data, the study of the apparatus and methods of capture 
 with special reference to their utility and their effect on the fisheries, 
 the best methods of utilizing the products, the effect of fishery legislation, 
 international fishery relations, and all other matters affecting the economy 
 of aquatic resources. 
 
 The work of the Division of Fish Culture consists in the hatching and 
 distribution of marine and fresh- water fishes for the purpose of maintain- 
 ing existing fisheries, restocking grounds that have been depleted by 
 over-fishing or injurious methods, and creating new fisheries either by 
 the introduction of foreign fishes in the waters of the United States or 
 transplanting native fishes as, for example, the establishment of the shad 
 and striped bass fishery on the Pacific Coast. The results of the work of 
 this division have been most gratifying. Millions of pounds of fish are 
 now captured in waters where they were originally unknown, and equally 
 valuable results have been secured not only in maintaining the various 
 important fisheries of the Atlantic and Pacific Coasts, but grounds which 
 had become depleted are now supporting valuable fisheries. This work 
 is carried on at thirty-five hatching stations established by Act of Con- 
 gress in the various States, and four railroad cars are in constant use in 
 
426 AMERICAN FEDERAL GOVERNMENT 
 
 distributing their products, besides a number of small boats, launches, 
 and vessels. 
 
 Entirely new avenues of scientific research have been opened by the 
 Commission, with which the name of G. Brown Goode will ever be asso- 
 ciated, most notably in the discovery of the deep-sea forms of the North 
 Atlantic basin. His work, with the cooperation of such men of distinc- 
 tion as Alexander Agassiz and David Starr Jordan, aided by the faithful 
 and efficient labors of a large staff of ichthyologists and fish-culturists, 
 has resulted in securing a systematic investigation of the waters of the 
 United States, and the biological and physical problems which they 
 present. By a study of the methods of fisheries past and present, the 
 causes of deterioration of fish in various waters have been discovered 
 and remedies applied, and useful food fishes have been enormously 
 multiplied throughout the country ; whilst important international prob- 
 lems dealing both with sea and fresh-water fisheries, and with the prob- 
 lem of the fur seals, have been powerfully aided by this Commission and 
 by the experts connected with it. 
 
 And yet the expense of the Commission is inconsiderable when com- 
 pared with the increase of wealth and the means of livelihood it affords 
 the American people. 
 
 It is not so very long, as nations count years, since the length of a king 
 of England's arm, marked rudely on an iron bar by a blacksmith's chisel, 
 was made a national standard of lengths; and this was a real advance 
 over a condition of things existing when almost every country had its 
 own measures. 
 
 In contrast to this, we have now in Washington the Bureau of Stand- 
 ards, alluded to above in connection with the Coast Survey, which is 
 intended for the purpose of the standardization of machines for measure- 
 ment and other service, together with the instruments used in everyday 
 life, as well as for philosophical apparatus. It is under the charge of a 
 capable physicist and administrator, S. W. Stratton. Its work will 
 comprehend researches in the domain of physics, extending both into 
 chemistry and engineering, and Congress has appropriated funds for 
 the erection of buildings and the purchase of apparatus. A mechanical 
 laboratory costing about $125,000 and a physical building costing about 
 $200,000 will be erected. This bureau is so new that its results can 
 hardly yet be spoken of, but in a country like ours, in which so much 
 of the national wealth and progress is due to inventive genius and im- 
 provement of machinery, any steps tending to the further introduction 
 of exactness in this important branch of our national life can not fail to 
 be productive of most useful results. 
 
 The Marine Hospital Service and the Department of Public Health, 
 which among other things has under its care all federal supervision of 
 
THE DEPARTMENTS 427 
 
 these departments of sanitation, and so far as possible without conflict- 
 ing with state laws, the control of all persons suffering from contagious 
 diseases, has rendered a great service to the country by its intelligent 
 handling of the various contagious diseases and plagues which from 
 time to time have invaded our shores. Under this service a laboratory 
 has been recently established where constant and successful experiments 
 are being made in that most important branch of medical science, pre- 
 ventive medicine. 
 
 The Bureau of Labor, established in 1885, has, incidentally to its 
 practical functions, done much valuable research work and in the col- 
 lection and publication of statistics bearing upon social and economic 
 problems, and has been effective in bringing about a better understand- 
 ing of the conditions of human labor. 
 
 Many agencies remain unspoken of, but among these, two, the Na- 
 tional Library, known to the law as the Library of Congress, and the 
 Smithsonian Institution, must have separate mention. 
 
 Scientific research in the modern sense is impracticable without access 
 to books, since it is incumbent upon each investigator to examine the 
 works of his predecessors, and in announcing his results to state the 
 extent of his dependence upon those who have preceded him in the field. 
 
 The Library of Congress was not established, of course, with any 
 such purpose in view. It was at first strictly what its name implies, and 
 its need was felt even as early as the Continental Congress. The origin 
 of the present library goes back to the removal of the Capitol to Wash- 
 ington, but in the very beginning, as early as 1806, it was recognized that 
 Congress itself required something different from mere law books or 
 important books of reference, and the general subjects which might now 
 be termed polite literature and "the humanities" began to be incorpo- 
 rated in the Library at that early date. This policy, which has been 
 kept up and extended, has made the Library in fact, if not in name, a 
 National Library. 
 
 From the Capitol it was removed in 1897 to its splendid new building, 
 one certainly better adapted to library purposes than any other in the 
 world. This Library contained, in 1902, nearly 800,000 books and over 
 300,000 pamphlets, a total of over 1,000,000 titles, this being exclusive 
 of the law library and manuscripts, maps, pieces of music, and prints, 
 which together make a total considerably over half a million. It is now 
 virtually a general library, and while it bears some special relation to 
 the needs of Congress, and of necessity devotes itself as one of its main 
 features to Americana, is still a library universal in scope, and in it there 
 is represented every department of human knowledge. Upon it the men 
 of science connected with the Government may draw freely. 
 
 By judicious expenditure of its enlarged means for the purchase of 
 
428 AMERICAN FEDERAL GOVERNMENT 
 
 books within recent years, it has added materially to its collections in 
 the physical and natural sciences. It is engaged in the publication of 
 special lists and bibliographies which, while not directly intended for 
 scientific purposes, yet have much value to science, and are a most effi- 
 cient aid to the prosecution of the scientific work of every branch of 
 the Government. 
 
 Of necessity special libraries also exist ; that of the Surgeon-General's 
 Office, the most notable, has already been alluded to, but the others, 
 maintained by the Geological Survey, the Department of Agriculture, 
 and indeed in every scientific bureau and office of the Government, are 
 of increasing value and utility to persons engaged in special work. 
 These are conducted and added to in harmonious relations with each 
 other, and with the Library of Congress; so that without a common 
 organization, there has grown up an understanding which avoids un- 
 necessary duplication, and which arranges for the interchange of books 
 among the various libraries, and altogether furnishes a most efficient 
 system for procuring and using scientific works. 
 
 I come last to speak of the Smithsonian Institution. I have endeavored 
 in the little space allotted, to briefly review the scientific activities of the 
 United States Government. Every administrator is prone to the natural 
 risk of magnifying the work of his own department, but the Smithsonian 
 Institution, occupying a unique position in that it is a kind of ward of 
 the Nation, has secured for itself so firm a hold upon the interest of the 
 people of this country, and so distinguished a position abroad, that it 
 may be spoken of objectively. 
 
 The Smithsonian Institution, as is known to all men, originated in the 
 bequest of an Englishman, James Smithson, who died in 1829 and left 
 his fortune to the United States to found at Washington an establish- 
 ment under the name of the Smithsonian Institution "for the increase 
 and diffusion of knowledge among men." Congress after much discus- 
 sion passed a law in 1846 founding the Institution. It created the "Es- 
 tablishment," or corporate body, consisting of the President of the United 
 States, the Vice-President, the Chief Justice and the members of the 
 Cabinet. It provided for a Board of Regents for its government, and 
 for a Secretary who, as Secretary to both of these Boards, should be the 
 executive officer. It named as the principal purposes to which the 
 Institution was to be devoted, the establishment of a library, of a museum, 
 of a gallery of art, the giving of lectures, and other cognate methods in 
 carrying out the will of its founder. 
 
 At the time of its organization, the Institution was relatively the best 
 endowed scientific establishment in America. Its various purposes 
 enumerated in its charter have been carried out. It formed a library 
 (now to a great extent deposited in the Library of Congress) which is the 
 best collection of transactions of learned societies and of scientific peri- 
 
THE DEPARTMENTS 429 
 
 odicals in the United States, and one of the great collections of the world. 
 It began a museum, now known as the National Museum, and still 
 under its charge, which in everything that pertains to the fauna and 
 flora, the ethnology and geology of North America, is the most consider- 
 able in existence, and which bears within itself the nuclei of most im- 
 portant collections in American History in the progress of mechanic arts 
 and in all the departments of learning which go to make up a museum 
 of universal scope. 
 
 The Institution exists for two main purposes: 
 
 1. The Increase, and 
 
 2. The Diffusion, of Knowledge. 
 
 In addition to carrying on the objects in furtherance of these purposes 
 enjoined upon it by its fundamental law, it has published from its private 
 fund contributions for the increase of human knowledge of almost every 
 description, resulting from explorations, the study of collections, original 
 investigations, and experiment. 
 
 It has established also a system of international scientific exchanges 
 which has become a recognized means of bringing the learned institu- 
 tions and learned men of all countries into closer relations. 
 
 The income of this original fund has been in later years supplemented 
 by annual appropriations from the Government, for extending and 
 carrying on the work of the Museum, the Exchanges, the maintenance 
 of a Zoological Park, an Astrophysical Observatory, and a Bureau of 
 American Ethnology. The relation of the Institution, as such, to these 
 various agencies, is that of a trustee for the National Government, 
 entrusted with their direction and supervision, and bearing the respon- 
 sibility for their proper and effective administration. 
 
 The National Museum, under the direction of the Smithsonian Institu- 
 tion, does not consist solely of objects for entertainment, but is rather 
 a vast organized collection of the ideas and works of man on this conti- 
 nent, beginning with primitive man, and showing how his simple arts 
 and his simple faith grew into complex culture and organized religions. 
 It is impossible here to give an adequate conception of the range of this 
 collection, which includes with the material products of this continent, 
 relics of the Nation's history in war and peace, and perhaps the finest 
 existing collection of personal relics of Washington and other historic 
 Americans. It is the place of deposit of the collections of the Bureau 
 of Ethnology, which, under the care of the late Major Powell, has de- 
 scribed and published the history of primitive American man. Congress 
 has just appropriated three and one-half millions of dollars for the ade- 
 quate housing of these great collections. 
 
 The Bureau of International Exchanges is rather for the convenience 
 of scientific men in the matter of diffusing their researches than a work 
 of science in itself, though it spreads its operations over the whole world 
 and has 30,000 correspondents outside of the United States. 
 
430 AMERICAN FEDERAL GOVERNMENT 
 
 The National Zoological Park grew from a small collection maintained 
 in the rear of the present building of the Institution to the occupancy of 
 its present picturesque grounds of 167 acres, now embraced in the ever- 
 growing city. Its fundamental object is the preservation of our North 
 American game. It is not supposed that it can in this small space alone 
 keep from extinction the races which are fast following the buffalo, but 
 it can offer a city of refuge for them and an object-lesson under the im- 
 mediate eye of Congress. 
 
 The Astrophysical Observatory is dealing with man's relations to the 
 sun and with problems which affect his welfare in a material sense. It 
 has extended the known spectrum, through the invisible infra-red, to 
 an extent many times that known to Sir Isaac Newton. 
 
 The establishment of the Smithsonian Institution at the time when it 
 came into existence was a matter of supreme importance for the develop- 
 ment of science in America. Sixty years ago, the funds for research were 
 small and the avenues of publication inconsiderable. Two or three 
 important scientific societies were in existence, but their funds were 
 limited. No body of scientific men anywhere acknowledged a leader, 
 and at a time, too, when most important investigations both in the 
 physical and natural sciences were being made. 
 
 The acceptance by the Government of the trusteeship of this fund of 
 Smithson's gave a national center for American science to gather about. 
 It brought into existence, too, an organization which in Joseph Henry 
 found a man strong enough to take up uninvestigated problems which 
 had not yet been moulded into definite practical shape, and to advance 
 their solution to a point where others might avail themselves of the 
 Institution's work. 
 
 This, in brief, was the early policy of the Institution, and continues so 
 to the present day. As indicated in the preceding portions of this article, 
 the Smithsonian Institution has had much to do with originating work 
 in other Government scientific departments. The importance of its 
 early contributions to meteorology and to the establishment of what is 
 now the weather service is universally acknowledged. It gave aid to 
 those explorations which in a large measure resulted in the formation of 
 the Geological Survey. The Fish Commission, the Bureau of Ethnology 
 and the National Herbarium originated here. The system of interna- 
 tional exchange of scientific publications, projected by the Smithsonian, 
 found no one to take it up until the Institution organized its work, and 
 this system both of Governmental exchanges and scientific exchanges, 
 it continues to administer. Not so well known are its relations to such 
 remote matters as the acoustics of the Hall of the House of Representa- 
 tives, the methods by which vessels signal in fogs and the work of the 
 Light-House Board. 
 
 In pursuance of its motto "Per Orbem," it has aided by grants not 
 only in the United States but in other parts of the world, investigators 
 
THE DEPARTMENTS 431 
 
 engaged in original scientific work. It has published treatises containing 
 new information of great value to students, and it has distributed among 
 the people probably more than a half million volumes containing accurate 
 scientific information in popular form. Ethnological researches among 
 the American Indians were powerfully stimulated by it from its incep- 
 tion, and the first volume of its well-known series of "Smithsonian Con- 
 tributions to Knowledge" was upon this subject. The researches made 
 here in connection with the problem of aerial navigation have been largely 
 instrumental in taking this work, heretofore derided and considered 
 impracticable, into the realms of respectable and active scientific 
 investigation. 
 
 Through a special fund, known as the Hodgkins Fund, a portion of 
 which is devoted to the investigation of atmospheric air in relation to 
 the welfare of man, our knowledge of the composition and properties 
 of the atmosphere has been greatly extended. The Institution laid the 
 foundation of methods of scientific library work in cataloguing, which 
 so distinguishes American libraries from others, it originated the project 
 of cataloguing all scientific papers by international cooperation and is 
 at present, in default of any action by Congress, acting as the represen- 
 tative of the United States in the present International Catalogue of 
 Scientific Literature published by a bureau with its seat at London. 
 Under its auspices, and through it, such organizations as the American 
 Historical Association have issued many works of value to historians 
 and public men. 
 
 It remains in conclusion to point out the fact not usually recognized, 
 that it was through the gift of Smithson and its acceptance by the Gov- 
 ernment that the steps for Governmental science, which were deemed 
 difficult under constitutional limitations, were gradually made easy after 
 the Institution was founded. Direct appropriations for science were, 
 and continue to be, resisted upon constitutional grounds, but when the 
 Smithson Fund was finally accepted by the Government and provision 
 for carrying out the will of its founder was made, and Congress imposed 
 upon the Institution obligations which its fund was not sufficient to meet, 
 notably the establishment of a museum for the reception, care, and 
 exhibition of the results of Government exploring expeditions, the step 
 was made easy for Congress to provide through the Institution for carry- 
 ing out its own behests ; and much easier than if the different organiza- 
 tion of such establishments outright and upon an independent basis had 
 been attempted. 
 
 It is difficult to get practical men to provide for projects which are 
 still in the experimental stage. The work necessary to the creation of 
 the Weather Bureau and the Fish Commission would probably never 
 have been accomplished but for the existence of an agency which pro- 
 vided for the initial and experimental stages of these two important 
 National scientific projects. Indeed, so obviously practical a thing as 
 
432 AMERICAN FEDERAL GOVERNMENT 
 
 scientific agriculture was promoted by the Smithsonian Institution in 
 conjunction with the Commissioner of Patents, in the days when Con- 
 gress had not yet seen its way clear to take this up. 
 
 It is not to be doubted that the philosophical workers of the United 
 States will in the future recognize as the two dominant factors which 
 produced the National scientific activity, first, the practical need of the 
 Government for expert work in every department, and second, the estab- 
 lishment of the Smithsonian Institution, which, without violating the 
 political consciences of our statesmen, enabled them to provide the means 
 for scientific work whose ultimate economic importance has proven of 
 the highest value to the Nation. 
 
 Such and so numerous are the scientific bureaus of the Government 
 that it has seemed impossible, in this brief space, to do more than cata- 
 logue them, though each would become an interesting study if treated 
 in detail, which would occupy a volume rather than an article. 
 
 SPECIAL AGENTS 
 
 [The numerous new functions which the federal administrative departments 
 have recently been undertaking call for a body of highly trained and able 
 officials. Although the rank and file of the clerical force in the departments 
 must chiefly be relied on for the performance of this work, there have also 
 been employed a great number of special agents for the purpose of conducting 
 investigations and supplying specific information. This matter is discussed 
 in the following speech of Mr. J. A. Tawney.J 
 
 SPEECH OF REPRESENTATIVE JAMES A. TAWNEY ON THE LEGIS- 
 LATIVE APPROPRIATION BILL * 
 
 MR. TAWNEY said: 
 
 Mr. Chairman: This bill carries appropriations for the expenses of 
 the legislative, executive, and judicial branches of the Federal Govern- 
 ment for the next fiscal year. It abolishes 308 places now provided for 
 by law, carrying salaries aggregating $360,360.25. It creates 243 new 
 places and appropriates salaries therefor aggregating $276,324. It 
 reduces 64 salaries for positions now provided and appropriated for by 
 law aggregating $8,400, and increases 104 salaries, the aggregate increase 
 equaling $16,930. In a word, therefore, the net reduction, as will be 
 seen from these figures, made by this bill on account of positions and 
 salaries abolished and reduced is $76,506.25. 
 
 These facts and figures ought to convince this House that your Com- 
 mittee on Appropriations has not neglected its duty in respect to inquir- 
 ing into the condition of the public service in the respective Departments 
 
 1 Congr. Record, March 19, 1906. 
 
THE DEPARTMENTS 433 
 
 of the Government, and also into the necessity for positions now exist- 
 ing or which the Departments ask to have created and the salaries which 
 ought to be provided for the positions thus created. 
 
 I listened with much interest to the remarks of the gentleman from 
 Maine [Mr. Littlefield] last Friday, when he presented to the House and 
 to the country facts tending to show the marvelous increase in the salaries 
 and in the number of positions during the last eight years. 
 
 From his statement it appears that from 1888 up to and including 1898 
 the average annual increase in salaries aggregates about $2,000,000, and 
 that the average annual increase in salaries since that time has been about 
 $11,000,000. While the gentleman from Maine [Mr. Littlefield] did not 
 seek to convey to the House the impression that the Committee on Appro- 
 priations was responsible for these increases, both in salaries and in 
 positions, I fear that his remarks may have left upon the minds of many 
 Members the impression that such is the case. 
 
 I therefore desire, Mr. Chairman, to call attention to the fact that 
 there are two principal causes for these increases. One is the creation of 
 the Department of Commerce, with an aggregate expenditure for salaries 
 for the fiscal year 1905 of $2,142,739.84. The other is the establishment 
 of the rural free-delivery service, increasing salaries annually to the ex- 
 tent of $20,480,000. Both of these causes have occurred since the date 
 mentioned by the gentleman from Maine. When you deduct the in- 
 creases made necessary by these two facts, together with some increases 
 demanded by laws enacted by Congress, you will find that the average 
 increase in both positions and salaries since 1898 created and carried in 
 the appropriation bills does not exceed to any material extent the average 
 increase in both positions and salaries prior to that time. 
 
 But, Mr. Chairman, it is nevertheless a fact, one that is well known 
 to every Member of this House who has had any extended service, that 
 in the enactment of legislation by Congress there is altogether too little 
 attention paid to the consequent increase in both salaries and positions 
 for which appropriations must thereafter be made. It is Congress, 
 therefore, and not the Committee on Appropriations that must assume 
 responsibility for originating practically all the increases in the past, for 
 when a law passed by Congress authorizes any of the Executive Depart- 
 ments to undertake a new work or to undertake a new investigation 
 which involves a vast amount of labor and a large number of Govern- 
 ment employees, there is thereby created a necessity for additional ex- 
 pense, additional positions and increases in salaries for which that 
 Department will submit to Congress its estimates, and thereupon the 
 Committee on Appropriations has no alternative except to report ap- 
 propriations for the purpose of meeting this additional expense. 
 
 I am glad, sir, that, as I have heretofore said, the present appropriation 
 bill is not open to this criticism. It is the first one I believe that the 
 Committee on Appropriations has reported in about ten years which 
 
 28 
 
434 AMERICAN FEDERAL GOVERNMENT 
 
 has not carried an aggregate increase in salaries and positions greater 
 than the last preceding appropriation bill or the current law. 
 
 I was therefore very glad to observe the independent investigation 
 and inquiry which the gentleman from Maine [Mr. Littlefield] has given 
 to the subject-matter of the appropriation bill now under consideration 
 and to the subject-matter of the same bill reported and enacted in previ- 
 ous Congresses. If other Members would exercise their right and their 
 privilege in a similar way, and devote time to the investigation and 
 inquiry into the expenditure of public money and into the estimates 
 submitted by the Departments, I feel confident that it would be of ma- 
 terial benefit to the House and of great advantage to the Government 
 and to the people. It would tend to prompt committees having jurisdic- 
 tion of appropriation bills to be more careful in their investigation, more 
 searching in their inquiries into the estimates submitted, and when their 
 bills come before the House there would be less occasion and less justifi- 
 cation for the superficial criticism which is so frequently indulged in upon 
 this floor. 
 
 Mr. Chairman, I have realized for some time that the Federal Govern- 
 ment was rapidly increasing its police supervision throughout the entire 
 country. I have realized to some extent that we were rapidly assuming 
 control and general supervision of the domestic affairs of the people of 
 the States in the doing of that which belongs peculiarly to the States. 
 But, sir, not until I came to examine the estimates of the several Depart- 
 ments of the Government for appropriations for the next fiscal year did 
 I have any conception of the rapidity with which this extension of the 
 Federal policing and Federal supervision of the domestic affairs of the 
 people of the States was growing and being extended. For the purpose 
 of ascertaining with some degree of certainty the extent to which the 
 power of the Federal Government in this respect has been extended, I 
 have ascertained from all the Executive Departments of the Govern- 
 ment the growth of the inspection and general agents service during the 
 past decade. I selected this branch of the public service for the purpose 
 of ascertaining the extent of the growth of the centralization of Federal 
 power and the extent to which the Federal Government is engaging to- 
 day in the work of doing that which belongs peculiarly to the States. I 
 have done this because it is through that service that this power is 
 exercised to a greater extent than through any other branch of the 
 public service. In the statement I have prepared and will submit as 
 a part of my remarks I have separated this service and given each 
 branch of the inspection and special-agent service of each Department 
 separately. 
 
 An examination of this statement shows the total number of inspectors 
 and special agents employed in the public service in 1896, the aggregate 
 amount appropriated for that service, and also the aggregate number 
 who were employed in that service in 1906 and the aggregate appropria- 
 
THE DEPARTMENTS 
 
 435 
 
 DATA CONCERNING AGENTS, INSPECTORS, EXAMINERS, ETC. 
 
 
 
 1896 
 
 I9O6 
 
 Title 
 
 Where employed 
 
 Num- 
 
 Compensa- 
 
 Num- 
 
 Compensa- 
 
 
 
 ber 
 
 tion 
 
 ber 
 
 tion 
 
 Special agents, etc. 
 
 Bureau of Labor . 
 
 20 
 
 $28,400.00 
 
 40 
 
 $57,200.00 
 
 Special agents . . 
 
 Census Office . . 
 
 
 
 735 
 
 500,000.00 
 
 Examiners and spe- 
 
 Department of 
 
 
 
 
 
 cial agents ... 
 
 Justice .... 
 
 ii 
 
 27,500.00 
 
 20 
 
 45,220.00 
 
 Special agents and 
 
 
 
 
 
 
 inspectors . . . 
 
 Treasury .... 
 
 149 
 
 257,927.00 
 
 168 
 
 315,827.50 
 
 Suppressing coun- 
 
 
 
 
 
 
 terfeiting and 
 
 
 
 
 
 
 other crimes . . 
 
 Treasury .... 
 
 
 65,000.00 
 
 
 125,000.00 
 
 Mine inspectors . . 
 
 Interior Depart- 
 
 
 
 
 
 
 ment .... 
 
 3 
 
 6,000.00 
 
 2 
 
 4,000.00 
 
 Inspectors, exam- 
 
 
 
 
 
 
 iners, and special 
 
 
 
 
 
 
 agents .... 
 
 do. 
 
 67 
 
 96,985.00 
 
 120 
 
 180,728.50 
 
 Special examiners . 
 
 Pension Office . . 
 
 15 
 
 195,000.00 
 
 I2 5 
 
 162,500.00 
 
 Inspectors .... 
 
 Indian Affairs . . 
 
 3 2 
 
 72,260.00 
 
 38 
 
 85,075.00 
 
 Inspectors, mail 
 
 Post Office De- 
 
 108 
 
 176,400.00 
 
 226 
 
 368,150.00 
 
 depredations . . 
 
 partment. 
 
 
 
 
 
 Agents 
 
 Alaskan seal fish- 
 
 A 
 
 12 Q^O.OO 
 
 
 12 Q^O.OO 
 
 
 eries. 
 
 
 
 
 
 Do 
 
 Salmon fisheries 
 
 
 
 2 
 
 7 ooo.oo 
 
 Do . . 
 
 Rural free delivery 
 
 
 
 167 
 
 227 TOO.OO 
 
 Special agents . . 
 
 Department of 
 
 
 .... 
 
 / 
 
 4 
 
 12,520.00 
 
 
 Commerce and 
 
 
 
 
 
 
 Labor. 
 
 
 
 
 
 Do 
 
 do. 
 
 
 
 3.1 
 
 62 1^2 .OO 
 
 Inspectors .... 
 
 Bureau of Immi- 
 
 9 1 
 
 128,504.00 
 
 o* 
 
 454 
 
 664,665.00 
 
 
 gration. 
 
 
 
 
 
 Do 
 
 Steamboat-Inspec- 
 
 T 72 
 
 
 16? 
 
 7. 1 I 8OO.OO 
 
 
 tion Service. 
 
 *a* 
 
 ' 
 
 * 5 
 
 
 Assistant superin- 
 
 Post Office De- 
 
 4 
 
 6,400.00 
 
 39 
 
 7O,2OO.OO 
 
 tendents and 
 
 partment. 
 
 
 
 
 
 agents. 
 
 
 
 
 
 
 Agents, inspectors, 
 
 Agricultural De- 
 
 1 60 
 
 .... 
 
 773 
 
 iiSSSt^o-oo 1 
 
 etc. 
 
 partment. 
 
 
 
 
 
 Total 
 
 
 O 7 I 
 
 T 7 T C C 26 OO 
 
 3T T 7 
 
 4 ^67 728.00 
 
 
 
 Vo A 
 
 *-1J J*J 
 
 t 1 A O 
 
 
 1 Amount from which authority is given to employ agents, inspectors, etc. 
 
436 AMERICAN FEDERAL GOVERNMENT 
 
 tions therefor. From this statement it will be observed that since 1896, 
 or in the last decade, the number of special agents and experts in the 
 Bureau of Labor has increased 100 per cent, and the amount expended 
 for this service has likewise increased about 100 per cent. It will also 
 be observed that the increase in the number of inspectors, examiners, 
 and special agents of the Interior Department during the last decade has 
 increased 79 per cent, and the amount of the expenditure for that service 
 has increased 86 per cent, while we have increased the number of ex- 
 aminers, inspectors, etc., by the establishment of the Department of 
 Commerce and Labor, in addition to the increases in the bureaus which 
 were taken into that Department, to the extent of thirty-five. 
 
 The most notable increase, perhaps, will be found in the Department 
 of Agriculture, where in 1896 they had only 160 inspectors, special agents, 
 etc., and in 1906 they have 773. The total number of special agents and 
 inspectors employed by the Government in the field and outside of the 
 District of Columbia in 1896 was 931, while the total number in 1906 
 employed for that service is 3,113, an increase of 383 per cent. In 1896 
 we were expending for this special-agent and inspection service only 
 $1,315,526, while to-day, ten years thereafter, we are appropriating 
 $4,567,728. 
 
 Another remarkable fact which will be observed from this statement 
 and which proves the rapid growth and extension of Federal control 
 over the domestic affairs of the people of the States is the fact that 
 although our revenue increased during the past decade 74 per cent the 
 increase in the number of revenue agents, inspectors, and customs col- 
 lectors and agents has been only 13 per cent and the amount appropriated 
 for this service has increased only 22 per cent. The same small increase 
 is true in all of the other Departments of the Government where this 
 inspection service is employed legitimately for the benefit of the Govern- 
 ment and for the purpose of collecting the revenue and protecting from 
 fraud the interests of the Government when those interests require pro- 
 tection. The enormous increase in this service, as shown by this state- 
 ment, is in those Departments of the Government which, under authority 
 of law, have to deal with the affairs of the States or the people of the 
 States, and much of this Federal service is rendered in conjunction with 
 the States, or, as it is so commonly called, " Federal cooperation with 
 the States," in the doing of that which belongs exclusively to the States. 
 It must be borne in mind, too, that when a service of this kind is estab- 
 lished or extended it at the same time involves a very large increase in 
 the administrative force of the Department which is charged with the 
 duty and responsibility of conducting the work or carrying on the service 
 thus required. 
 
 I call attention to these facts, Mr. Chairman, in the hope of arresting 
 the attention of Congress and the country to the marvelous growth 
 during the past decade of a service which, if continued on the demand 
 
THE DEPARTMENTS 437 
 
 of the people as they have demanded in the past, will in the near future 
 necessitate the expenditure of enormous sums from the Federal Treasury, 
 pauperize the power of the States, obliterate the rights of the States, 
 leaving the question only of State dependence or independence. 
 
 Mr. Chairman, we are directly responsible to the people for the money 
 we are authorizing administrative officers to expend. It is theirs, not 
 ours. These officers may justify their failure to comply with the law on 
 the ground of sympathy, influence, or because of political pressure, but 
 that excuse does not serve to relieve any Member of this House from his 
 individual responsibility in respect to the appropriation of money for the 
 public service or for any other purpose. The discharge of this duty 
 demands labor, time, and thorough investigation into all the intricate 
 and minute details of departmental administration. The Committee 
 on Appropriations devoted five weeks to the investigation of this service 
 and to a most careful inquiry into the estimates of the respective depart- 
 ments concerning their needs for the coming fiscal year. I am free to 
 say, Mr. Chairman, not having had any previous experience on the Com- 
 mittee on Appropriations, and like most Members, having paid less at- 
 tention to the subject than perhaps I ought to have done, that I was 
 amazed at many of the disclosures revealed by that investigation. I do 
 not insinuate or intimate that there is to-day or that there has been any 
 corrupt practices on the part of any administrative officer of the Govern- 
 ment; but I was surprised to find that the heads of the administrative 
 departments of the Government pay so little attention to the details of 
 the service in their respective Departments. I realize that they all have 
 grave and enormous responsibilities in connection with the work of their 
 Departments and the policies they must inaugurate and carry out, but 
 at the same time the discretion necessarily vested in them by law is 
 delegated to subordinate officers and clerks, who are not directly re- 
 sponsible to Congress, to a degree utterly inconsistent with good ad- 
 ministration. The investigation shows that these heads of bureaus and 
 chiefs of divisions, in almost every instance, are as susceptible to sym- 
 pathy and influence as their superiors. The result is that when Congress 
 says that a clerk, who is inefficient for any cause, shall be dismissed, the 
 duty of reporting the fact of inefficiency has been delegated to the chief 
 of the division in which that clerk is employed. Because of his intimate 
 relation to the clerk or because of favoritism that chief is not so apt to 
 enforce the law as he would be if it were practical for the departmental 
 head himself to ascertain the question of efficiency or inefficiency. Hence 
 we are told that one reason why this provision of law is not enforced is 
 the fact, first, that they have not ordinarily the jieart to turn these old 
 people out, and, second, if they had, they are not reported to them as 
 being inefficient, and therefore the evidence is not before them which 
 requires them to do so. 
 
 In the Library of Congress the Librarian informed the committee that 
 
438 AMERICAN FEDERAL GOVERNMENT 
 
 there was one man there over 70 years of age, totally, or almost totally, 
 incapacitated for the discharge of his duties. When the Librarian was 
 asked why he did not dismiss him he informed the committee that he 
 could not. Well, why not who is behind him ? And immediately the 
 answer came, " Chief Justice Taney." Further inquiry elicited the fact 
 that out of respect for the memory of Chief Justice Taney, who appointed 
 this man in the Library many years ago, the Supreme Court of the United 
 States insists upon his retention. 
 
 The Secretary of the Interior cited several instances of a similar char- 
 acter. The Secretary of War informed the committee that it was practi- 
 cally impossible for any head of a Department to enforce that law, not 
 alone because of his sympathy for the clerk who had arrived at that age 
 when he or she was no longer capable of rendering efficient services, 
 but also because of the pressure brought to bear by Members of Con- 
 gress and Senators and other public officials in order to continue the 
 employment of that particular clerk. This is not a condition, gentle- 
 men, peculiar to this Administration. It is a condition that has obtained 
 in all Administrations, and it will always obtain under our present system. 
 It is for this reason that the Congress of the United States must enact an 
 arbitrary law, whereby presumptive inefficiency resulting from age must 
 be accepted as sufficient cause for separation from the public service. 
 
 In this investigation, Mr. Chairman, there are several matters of ad- 
 ministration that the committees thought ought to be remedied. First 
 let me call your attention to the fact disclosed in the hearings, that the 
 Departments of Government are competing with one another for clerical 
 service, a condition that has grown out of the increases in salaries of 
 certain clerks in certain Departments doing identically the same char- 
 acter of work. One chief of a bureau, the Bureau of Standards, informed 
 us that in the last two years it has been impossible for him to keep a 
 stenographer and typewriter in his Bureau much more than six months. 
 Why ? He informed the committee that by the time the clerk had served 
 six months, or a little more, he discovered that in the Treasury Depart- 
 ment they were paying higher salaries for clerks doing identically the 
 same work, and as soon as there was a vacancy in the Treasury Depart- 
 ment he would ask for a transfer. The chief of that Bureau says he 
 has not the heart to refuse to consent to his transfer when he is told the 
 clerk can better his condition by transfer to the extent of from three to 
 four hundred dollars a year. 
 
 This practice, Mr. Chairman, leads to a demoralization of the public 
 service. The complaint is so universal on the part of the heads of De- 
 partments that your committee has deemed it necessary to report a 
 provision prohibiting the transfer of clerks from one Department to 
 another until the clerk has served in the Department from which he 
 asks to be transferred at least three years. I am informed by the heads 
 of Departments and bureau chiefs that from the standpoint of the public 
 
THE DEPARTMENTS 439 
 
 service this provision will be of great value. It will not only tend to 
 produce greater contentment among the clerks, but will also tend toward 
 an equalization of compensation for the same general character of work. 
 The other provision which has been reported, and which has been 
 commented on more or less in the general debate and in the public press 
 of this city, is the provision respecting super-annuation in the Executive 
 Departments and governmental establishments in the District of Colum- 
 bia. That some legislation is necessary on this subject I think every 
 Member of this House admits. It is a subject that has commanded 
 more or less of attention on the part of Congress ever since I have been 
 a Member of this body. 
 
 THE WORK OF THE KEEP COMMISSION 1 
 
 IN constituting the Committee on Departmental Methods, somewhat 
 more than two years ago, President Roosevelt chose five of the younger 
 officials of the civil service, each one of whom already had a reputation for 
 administrative ability and breadth of view. These men were named: 
 Hon. Charles A. Keep, Assistant Secretary of the Treasury ; Hon. Frank 
 H. Hitchcock, First Assistant Postmaster- General; Hon. Lawrence O. 
 Murray, Assistant Secretary of Commerce and Labor; Hon. James R. 
 Garfield, at that time chief of the Bureau of Corporations, but since ap- 
 pointed Secretary of the Interior, and Hon. Gifford Pinchot, Chief of the 
 Forest Service. 
 
 The Commission was directed by the President to ascertain where and 
 in what respects our present Government methods fall short of the best 
 business standards of to-day and to recommend measures of reform. 
 
 The commission carefully selected seventy employees of the Govern- 
 ment, with varied experience, and formed them into sub-committees, 
 which were used as probes to search the innermost recesses of the ad- 
 ministrative machinery and discover the actual existing conditions. The 
 committees made close inquiry into every condition and every phase of 
 work connected with the service, and the resultant reports and recom- 
 mendations exhaustively cover the ground, from sanitation of offices to 
 making of Government contracts. 
 
 The remedial recommendations of the commission have almost all met 
 with the approval of the President, and, where the authority of legislation 
 is not necessary, they have been put into effect with as little delay as pos- 
 sible, so that this reform movement has been in active operation for two 
 years and has advanced a long way toward the contemplated consumma- 
 tion. When the desired action of Congress has been secured the execu- 
 tive branches of our Government will be by far the most efficient and 
 economical of any in existence. 
 
 1 From an article by C. H. Forbes-Lindsay in the Review of Reviews, Febr., 1908. 
 
440 AMERICAN FEDERAL GOVERNMENT 
 
 A brief review of a few of the subjects treated by the commission will 
 afford an idea of the scope and direction of the inquiry and of the measure 
 of improvement likely to result from it. 
 
 PERSONNEL AND SALARIES OF THE SERVICE 
 
 The salaries now paid in the departmental service in Washington are 
 based upon a classification of the clerks made by acts of Congress of 
 1853 and 1854, which graded the entire clerical force (except the de- 
 partments of State and Justice) into four classes. To-day there are indi- 
 vidual bureaus that have more employees than the entire departmental 
 service had in 1853, and the responsibilities of their chiefs are incalcu- 
 lably greater than were those of the men who held similar positions fifty 
 years ago. Nevertheless, there has never been any attempt to reclassify 
 the positions, or to adjust the salaries with reference to these changed 
 conditions, so that, at the present time, the most startling anomalies and 
 inequities exist. Not only is there a great diversity of compensation for 
 the same kind of work, but persons receiving the higher salaries are 
 in many cases rendering the simplest routine service, while others in 
 the lowest grades are performing duties of the most exacting charac- 
 ter. Throughout the entire service the relation of the easier position, 
 the more difficult position, and the responsible supervisory position 
 has not for many years been adequately distinguished by the salary 
 grades. 
 
 The lower grades of clerical employees in the Government service are 
 better paid than the same class in private employment. Nevertheless, 
 these positions have been the hardest of all to fill with competent persons. 
 In the last fiscal year, 1462 eligibles were offered positions at less than 
 $900 a year in the departments at Washington. More than 30 per cent 
 declined, with the serious consequence that it was necessary to appoint in 
 their stead individuals of distinctly inferior qualifications. The effect 
 of this condition is far-reaching, since it is from the lower grades that 
 the service is built up. It may be inferred that the young man of parts, 
 who is confident of his ability to rise in the world, can not be tempted by 
 the higher salary at the outset of his career, when it is accompanied by 
 prospects of promotion decidedly limited as compared with those offered 
 by commercial corporations. 
 
 On the other hand, the difficulty experienced in securing properly 
 qualified clerks for positions paying from $1000 to $1500, and the great 
 number of resignations from these grades, clearly indicate that the same 
 character of service commands higher compensation in the business 
 market. As to the supervisory, professional, and technical positions, 
 they have long been recognized as very much underpaid in our 
 departments. 
 
 These conditions have the effect of attracting to the Government ser- 
 
THE DEPARTMENTS 441 
 
 vice two distinct classes of men: First, those who have little ambition 
 and no stomach for the struggle of the strong, and who find in a Washing- 
 ton clerkship a peaceful haven and a modest competence for life. Second, 
 men actuated by public spirit, hope of political preferment, or desire to 
 do big things, who are willing to sink monetary considerations for the 
 sake of exceptional opportunities. Illustrations of this class are: As- 
 sistant Secretary of State Robert Bacon; Mr. Gifford Pinchot, of the 
 Forest Service; Dr. Charles D. Walcott, of the Smithsonian Institution; 
 Mr. Frederick Newell, of the Reclamation Service. In such instances 
 we find men of the highest administrative ability directing interests 
 equivalent to the management of a great railroad, on salaries of $4000 
 or $5000 a year. 
 
 . The recommendations of the commission, which will require Congres- 
 sional approval, contemplate a complete reclassification of the service 
 and a corresponding readjustment of salaries. The proposed system 
 aims to attract a higher grade of recruits, by doing away with the $50 
 and $60 a month clerks and making the salary for the lowest grade $900 
 a year. Frequent promotion is provided for, favoritism is guarded 
 against, and the ultimate prospect is improved by a suggested long- 
 service pension and life insurance. In the upper grades the salaries are 
 placed sufficiently high to develop and retain the best executive and expert 
 service. 
 
 The commission estimates that these increases in remuneration will 
 entail no more than 10 per cent addition to the appropriations for sala- 
 ries, which would represent an amount trivial in comparison with the 
 sum that will be saved as a result of the economies already effected by the 
 investigation, and would be further justified by the higher class of en- 
 trants to the Government service and the enhanced standard of efficiency 
 that will be maintained in every grade. 
 
 INTRODUCING UP-TO-DATE COMMERCIAL METHODS 
 
 One of the most important features of latter-day commercial account- 
 ing is the analytical form of bookkeeping, which is styled "cost-keeping." 
 Manufacturing establishments employ it to ascertain in detail the cost 
 of articles produced ; railroads use it in the analyses of their operating 
 expenses, and insurance companies depend upon it for statistics of the 
 general costs of management and agency operation. States and munici- 
 palities are adopting the system with marked effect, and it has proved to 
 be of no less assistance in government work than in commercial busi- 
 ness. It will make comparison possible between the operations of estab- 
 lishments doing the same class of manufacturing, such as mints, arse- 
 nals, and navy yards. It will enable the head of a department or bureau 
 to determine where economies may be effected by introducing new ar- 
 rangements in organization, or new methods in practice, to estimate more 
 
442 AMERICAN FEDERAL GOVERNMENT 
 
 intelligently on the probable cost of future operations, to make contracts 
 with closer calculation, to fix selling prices on products transferred to other 
 branches of the Government, or sold to foreign governments, or to private 
 concerns. 
 
 Cost-keeping, heretofore practiced in only two or three recently organ- 
 ized government bureaus, will in future be employed wherever benefit 
 can be derived from it, and the resultant advantages in mere dollars and 
 cents must amount to millions every year. 
 
 In the matter of accounting, the commission found even the Treasury 
 deplorably behind the times. This was one of the first subjects investi- 
 gated, and reforms have been in force long enough to show the most 
 markedly beneficial effects. As examples: The Treasury, which for- 
 merly only balanced its books once a year, at the expenditure of a great 
 deal of time and trouble, now has a double-entry system of bookkeeping 
 in force which enables it to strike a true balance at the close of each day's 
 work. The account of the disbursing officer at New York, which used 
 to take six months to make out, is now completed in two weeks. In a 
 certain branch of the Government, where large and numerous financial 
 transactions are carried on, the officials, who were accustomed to take 
 ninety days to render an account, are now ready to do so daily. If a dis- 
 bursing officer makes his last payment, for instance, at ten o'clock in the 
 morning, he can give a complete account of his affairs at noon of the 
 same day. The Auditor of the Treasury, who has been in the habit, 
 and necessarily so under the old system, of settling disbursing officers' 
 accounts largely on faith, now has all the checks and vouchers before him 
 with which to verify them. 
 
 These improvements, be it understood, have not been achieved by any 
 increase of the machinery. They are simply the results of better system, 
 attained with less labor than was expended on the antiquated and cum- 
 bersome methods which have been abolished. 
 
 NEEDED REFORMS IN THE PURCHASE OF SUPPLIES 
 
 It would naturally be supposed that in an institution purchasing sup- 
 plies in such enormous quantities as does our Government the patent 
 opportunities for economy and standardization would be embraced. 
 Such has not, however, been the case. Each department, and, in 
 cases, a separate bureau or division, advertises independently for 
 what it needs, and contracts at a price without knowledge or regard for 
 what the same goods are costing other branches of the Government or 
 private corporations. A certain mucilage costs one department $1.84 per 
 dozen quarts and another $3 per dozen quarts. The prices of the same 
 make of pencils range from $2.27 per gross to $3.36 per gross. The cost 
 of ice varies from 13 to 30 cents per 100 pounds, and no two departments 
 contract for coal at the same figures. It should be borne in mind that arti- 
 
THE DEPARTMENTS 443 
 
 cles of small unit value are consumed in quantities that represent hun- 
 dreds of thousands of dollars, and the aggregate bills of the Government 
 for such ordinary supplies run into the millions yearly. 
 
 No attempt whatever has been made to standardize supplies, so that 
 133 varieties of pencils, 28 kinds of ink, 263 different styles of pen-points, 
 and all sorts of typewriter ribbon, are used in the various government 
 offices. Hardly any check is placed upon waste or peculation. It would 
 seem that every employee of the Government in Washington, from 
 cabinet minister to colored messenger, uses twenty-three pencils each 
 month, or, say, a total of 7,000,000 pencils a year, at a cost of $150,000. 
 
 A bill to provide for the betterment of these conditions was introduced 
 at the last session of Congress, but it was blocked in the Senate. How- 
 ever, in case the opposition to the measure continues in the present Con- 
 gress, the Keep Commission has devised a plan which will make for a 
 great improvement in the purchase of supplies. An inter-department 
 committee is suggested which shall insure uniformity in prices, and, with 
 the cooperation of the Bureau of Standards, shall establish standards of 
 quality and test goods furnished under contract. 
 
 RESULTS IN EFFICIENCY AND ECONOMY 
 
 There are many phases of the commission's work, and highly impor- 
 tant ones, which it is impossible to notice in the limits of this article. The 
 changes effected and suggested seem to be in almost every case adequate 
 and practicable. They must result in vast improvement of service and 
 enormous economy of administration. These are more than ever im- 
 portant considerations in this day, when modern civilization demands of 
 Government an ever increasing service and the exercise of entirely new 
 functions. 
 
 Of course, it is impossible to make a precise statement of the amount 
 of saving in money, or of the degree of improvement in service that may 
 be expected to result from the labors of the Keep Commission, but a few 
 concrete illustrations will afford the basis for a general idea on both 
 points. Careful inquiry among chiefs of bureaus and divisions elicited 
 the assurance that in a great majority of cases they anticipate at least 
 doubled efficiency, and economies averaging 30 per cent of former 
 expenditures. 
 
 The Interior Department has almost completed a thorough reorgani- 
 zation. There were formerly a number of divisions through which all 
 correspondence and matters for the consideration of the Secretary passed 
 and were prepared for his action. The system involved serious delays 
 and a great amount of unnecessary labor. There were other divisions, 
 one to furnish documents, another stationery, a third furniture, and so on, 
 which have all been consolidated, with important saving in work and 
 expense. In the Land Office the increase in efficiency is incalculable, 
 
444 AMERICAN FEDERAL GOVERNMENT 
 
 certainly several hundred per cent, and the saving in administration 
 will be $500,000 a year. The estimate for the Secretary's office proper 
 is $40,000 less than last year, despite the fact that the business to be done 
 is greater. The work of the department is performed in less than half the 
 time it used to consume, and the task of improvement is still in progress. 
 
 Public printing offers a good illustration of decrease in expenditures 
 accompanied by improved service. A member of the cabinet once said 
 to the writer: " If an official wants to hide something effectually from the 
 public he cannot do better than put it in his annual report. No one will 
 ever see it." This jest is almost a literal truth. The reports have been 
 cumbersome and repellent. They contained repetitions of the same 
 matter, scientific treatises, general discussions, philosophical reflections, 
 biographies and eulogies, and, in short, irrelevant and redundant matter 
 of all kinds, and illustrations that had no excuse for their presence. In 
 compliance with an executive order, the current reports have been re- 
 stricted to pertinent subjects and are free from the objectionable features. 
 They are, in consequence, much more useful, and have cost $200,000 less 
 than usual. 
 
 An enormous quantity of utterly useless printed material for which no 
 demand existed has been issued by the Government yearly. In the past 
 ten years 800,000 duplicate volumes have been returned to the Superin- 
 tendent of Documents, and he has, for lack of storage facilities, declined 
 the return of several hundred thousand more. And these figures relate 
 solely to duplication in distribution to libraries and take no* account of 
 similar waste in the distribution to individuals. How great that has been 
 may be inferred from the experience gained in the issue of two recent 
 publications where the usual method was departed from. By taking 
 care to prevent more than one copy going to the same individual a saving 
 of 85,000 volumes was effected in these cases alone. 
 
THE DEPARTMENTS 445 
 
 ADMINISTRATIVE TRIBUNALS AND REGULATIONS 1 
 
 [As the administration of the United States government comes in closer 
 touch with the people and as the functions of the administrative departments 
 increase, the citizens will be more directly affected by the adjudications of the 
 administrative bodies and by the regulations which are imposed by adminis- 
 trative authorities. The whole movement is indicative of a general change of 
 American attitude toward government in its relation to the general life of the 
 country and to the individual. From the spirit in which our earlier constitu- 
 tions were framed, with their explicit restriction of governments, to the 
 present readiness for supervision, regulation, and general administrative 
 expansion is a significant change.] 
 
 IN the United States we have a body of administrative tribunals, not 
 courts, whose decisions are in many instances as final as those of the 
 regular judicial establishments. They limit liberty and control prop- 
 erty; and in the matters in which their decisions are final, the day in 
 court becomes a day in the presence of administrative authorities only. 
 And numerous as are our courts, the body of our administrative tribu- 
 nals is perhaps larger. Under a strict definition they may be num- 
 bered by the scores, under a more liberal definition by the hundreds. 
 Though they are not dignified by the formal recognition which has been 
 accorded to the administrative tribunals of France, Germany and Aus- 
 tria, their power is in some matters even more substantial. 
 
 The administrative tribunals. The administrative authorities in the 
 United States which have powers of adjudication, or of discretionary 
 determination, have usually been termed tribunals rather than courts. 
 This term has been employed by the president, the circuit court of ap- 
 peals, officers of the department of justice and writers on administrative 
 law here and abroad. But the American administrative tribunal, 
 because of the rank growth of the law on which it depends, is generally 
 a thing of indefinite outlines. In a broad and, it must be confessed, 
 loose sense the term "tribunal" may be, and has been, applied to all 
 administrative officers exercising discretionary powers. If we use the 
 term in this sense, then the administrative tribunals in the state and 
 national governments are manifold in number and type. But there is a 
 narrower usage yet still an indefinite usage which applies it only 
 to administrative authorities which either in their procedure, their con- 
 stitution or their powers, or in one or more of these matters, closely re- 
 semble courts of general jurisdiction. It is rather with the latter class 
 that we are here concerned, for while the former is well known, in connec- 
 tion with the law of public officers, the latter has scarcely a niche in our 
 accepted legal classification. 
 
 1 " American Administrative Tribunals," by Harold M. Bowman, in Political Science 
 Quarterly, 21, 609. Reproduced in part, by permission. 
 
446 AMERICAN FEDERAL GOVERNMENT 
 
 The administrative tribunals of the states and of the nation are even 
 more^ distinct, each from the other, than are the state and national 
 judicial courts. They form two separate systems. Though the federal 
 judges have displayed a tactful policy of non-interference, the national 
 courts may in some cases control the state courts, directly or indirectly. 
 But the national administration seldom or never interferes with the state 
 administration by administrative as distinguished from judicial process. 
 Their remoteness is even more emphasized by their diverse characters 
 and by the difference in the matters with which they have to deal. 
 
 The state boards, bureaus, or offices which have the power of adjudica- 
 tion or discretionary determination, and which are assimilated in their 
 procedure, constitution, or powers to the judicial courts, are of many 
 kinds. They range from dairy commissions up to boards of health and 
 superintendents and boards of education; and of recent years they are 
 to be found in almost every branch of commonwealth administration. 
 One of the most remarkable tendencies in commonwealth administra- 
 tion at the present time is the rapid multiplication of such authorities. 
 In 1903 alone, about 140 new permanent state boards and offices were 
 created, as well as some 75 temporary commissions and 39 special 
 investigating committees. 1 Of course many of these organs of govern- 
 ment are not tribunals even in the loose sense in which the term is here 
 employed, but are more properly merely administrative authorities. 
 
 The administrative tribunals of the national government are more 
 highly developed than those of the states, one of them being so like a 
 court in its organization and procedure as to have received that designa- 
 tion. The more conspicuous among them are the boards of general 
 appraisers, the comptroller of the treasury, the interstate commerce com- 
 mission, the 'court of claims, the commissioner of internal revenue and 
 the secretary of the interior. There are in addition many minor and 
 inferior tribunals. Their number is accounted for not so much by the 
 variety of subjects which fall under the national administration as by 
 the hierarchical organization of that administration. This has resulted 
 in a system of appellate jurisdiction which is seldom found in the states. 
 Among these minor tribunals are the commissioner of pensions, the 
 board of pension appeals, the patent office's board of examiners-in-chief, 
 the register and receiver of the general land-office. 
 
 French writers on administrative law, such as M. Laferriere, whose 
 attitude is adopted by M. Jacquelin, refuse to consider our federal court 
 of claims as in any sense an administrative court, because, "like all the 
 federal courts," it is subject to the control of the supreme court. It is, 
 says Laferriere, a judicial tribunal, deciding administrative causes. 
 These two writers seem to take the position that if the court of claims 
 can not be considered an administrative tribunal, much less can any 
 other board or office that is found in the United States. For this reason, 
 
 1 New York State Library Bulletin, " Review of Legislation for 1903." 
 
THE DEPARTMENTS 447 
 
 perhaps, they do not examine the other tribunals in any detail. And 
 seemingly they fail in due appreciation of the fact that many acts of our 
 administrative tribunals may not be reviewed by the courts. 1 The 
 courts may entertain jurisdiction to ascertain whether these tribunals 
 are competent to act in the particular case, but this is far different from 
 actual control. 
 
 It is also to be noted that the interstate commerce commission has 
 generally received little or no consideration in the scanty literature of 
 American administrative law. The reason for this is not clear, but the 
 most plausible explanation seems to be found in the fact that the com- 
 mission, except in so far as it may be deemed an arm of the criminal 
 courts, does not have to do with the relations between the government 
 and natural or artificial persons, but rather with the relations between 
 such persons themselves. From this point of view it is like the ordinary 
 civil courts. In the judgment of the present writer the interstate com- 
 merce commission is sufficiently peculiar to be placed in a category by 
 itself; but it should not be excluded from the list of administrative 
 tribunals, in any broad consideration of this subject, especially as its 
 activity seems likely to develop important principles of administrative 
 law. It should finally be noted that, to make the consideration of the 
 subject complete, the activity of the ordinary courts in their employment 
 of the injunction and other extraordinary legal remedies would have to 
 be considered, but this topic is beyond the limits of the present article. 
 
 Powers and Organization. It is in the powers and organization of 
 the administrative tribunals that their chief interest lies. What are the 
 extent and limits of their powers of " administrative adjudication"? 
 The decisions of the state courts and of the United States supreme court 
 indicate that the United States constitution and the constitutions of the 
 states do not bar the grant to administrative authorities of the power to 
 make a final determination after a hearing. Even when the determina- 
 tion seriously affects property rights, its finality has in many cases been 
 upheld, though of course the administrative authority, like a court, must 
 be careful to keep within its jurisdiction. Thus some of the state courts 
 have admitted the finality of the determinations of boards of health in 
 respect to nuisances. It is true that certain of these cases preserve a 
 judicial review of such determinations through the writ of certiorari; 
 but the review does not extend over the findings of fact but is limited 
 to the jurisdiction of the board and the regularity of its proceedings. 
 The law of some states affords even less protection from arbitrary action 
 in this matter than the French law, though a bill of rights is unknown 
 
 1 How strong the statement of the American situation with respect to this matter may 
 be made will be suggested by an extract from a recent book on American administrative 
 law: "Within the scope of its jurisdiction the adjudication of the administration is final 
 unless there be a provision to the contrary." Wyman, Administrative Law, sec. 115. 
 But it is evident from other passages in this book that the author would qualify this 
 statement somewhat. It is too general. 
 
448 AMERICAN FEDERAL GOVERNMENT 
 
 to the French constitution. The United States supreme court has held 
 that the finding by administrative officers of the amount of a tax to be 
 paid (the tax being a license tax) was final, even though the complainant 
 had no opportunity to be heard before the assessment of the tax. 1 The 
 same court has held that the determination of an administrative authority 
 is final as regards the admission into this country of Chinese who claim 
 that they are American citizens. 2 An administrative tribunal may thus 
 in effect deprive a man of his citizenship. And these findings will not 
 be reviewed by the courts at least in the absence of complaint of abuse 
 of discretion even on the writ of habeas corpus. The conclusion from 
 this must be either that an administrative tribunal will protect the 
 liberties of the individual as scrupulously as a judicial court, or that the 
 citizen has been deprived of one of his greatest historic rights. 3 Perhaps 
 the former is the true conclusion. In any event, these decisions indicate 
 the great power that may be granted to the administration. 
 
 The determination of the board of general appraisers upon a question 
 of valuation is final, and it is stated that only upon allegation of fraud 
 will a rehearing be granted. The decisions of state educational authori- 
 ties are often not subject to review by the courts. The authority of the 
 New York commissioner of education in the decision of appeals from 
 lower school authorities is final. The code of Iowa provides that the 
 decision of the state superintendent of public instruction on appeal shall 
 be final, and the supreme court of the state has refused to interfere with 
 such decision when the superintendent has acted within his jurisdiction. 
 It is curious to note that in an early case this court described this function 
 of the superintendent as "ministerial." Later it called it "judicial"; 
 then "<?<m-judicial." The terms "administrative," "<?wa"- adminis- 
 trative," "discretionary," etc., have been applied elsewhere. Such are 
 the mutations of the judicial mind. And how well they illustrate the 
 pains with which anything like a scientific nomenclature for the ad- 
 ministrative law is born ! The existing nomenclature has all the defects 
 of a fortuitous development. 
 
 1 McMillen v. Anderson, 95 U. S. 37, and Gary v. Curtis, 3 Howard, 236, cited in 
 Goodnow, op. cil., p. 336. 
 
 2 United States v. Ju Toy, 198 U. S. 253. 
 
 3 Mr. Justice Brown, with whom Mr. Justice Peckham concurred, said in dissenting : 
 "It has been seen that under these rules [concerning immigration] it is the duty of the 
 immigration officer to prevent communication with the Chinese seeking to land by any 
 one except his own officers. He is to conduct a private examination with only the witnesses 
 present whom he may designate. ... If this be not a star-chamber proceeding of the 
 most stringent sort, what more is necessary to make it one? I do not see how any one 
 can read these rules and hold that they constitute due process of law for the arrest and 
 deportation of a citizen of the United States. . . . Such a decision is to my mind appalling. 
 By all the authorities the banishment of a citizen is punishment, and punishment of the 
 severest kind. . . . This petitioner has been guilty of no crime, and so judicially deter- 
 mined. Yet in defiance of this adjudication of innocence, with only examination before 
 a ministerial officer, he is compelled to suffer punishment as a criminal and is denied the 
 protection of either a grand or petty jury." Ibid., pp. 268, 269, 273. 
 
THE DEPARTMENTS 449 
 
 Not only may the jurisdiction of the administrative tribunal be final ; 
 in some cases it is also exclusive. In others it is concurrent or alternative 
 with that of the courts. Some decisions by these tribunals are binding 
 upon the administration, but are subject to review and modification by 
 the courts. And if the authority in some cases is of great importance, 
 in others it is shadowy. The interstate commerce commission was at 
 first believed to have very material powers, but to-day it is characterized 
 as merely "an investigating and prosecuting administrative body, whose 
 findings are given a prima facie force in judicial proceedings." Justice 
 Jackson in the Kentucky and Indiana Bridge case, the first important 
 decision under the act to regulate commerce, described the commission 
 as the referee of each and every circuit court of the United States. It 
 may also institute proceedings in the courts, "and thus be a prosecutor 
 in the same cases wherein it has acted as judge." 
 
 The incidental powers of the administrative tribunals vary quite as 
 widely as their determinative authority. The power to subpoena wit- 
 nesses and in effect compel them to testify is possessed by some tribunals 
 and is totally denied to others. It is of course true that in those instances 
 where this power is possessed, the actual punishment for contempt 
 with rare exceptions, if any will be imposed by a court. In some 
 cases the administrative tribunal is so constituted and its powers are of 
 such a nature as to admit of self-execution of its orders. A board of 
 health may thus not only order a quarantine but, in the exercise of its 
 police power, it may enforce it. The judgments of the federal court of 
 claims are of themselves mandatory upon the secretary of the treasury. 
 But for the actual enforcement of its orders the administrative tribunal 
 must very generally depend upon the assistance of a court. The scope 
 of the order which may be issued by the administrative authority is 
 determined by common law or statute, as indeed is the extent of its powers 
 generally. Thus the definition of nuisances and the scope of an order 
 of abatement are largely matters of common law. The statute may give 
 an administrative tribunal power to issue an order so general in scope 
 as in effect to amount to legislation. In the American Warehousemen's 
 Association case the interstate commerce commission, in reliance upon 
 the statute and a decision of the supreme court, while expressly negativ- 
 ing its intention "to make any order in this case as such," issued a gen- 
 eral order requiring carriers to state in their tariffs what free storage was 
 granted and the terms and conditions under which it was granted. 
 Instructed by the abuses in the particular instances the commission thus 
 made a regulation to meet the general situation. 1 
 
 It is apparent from the preceding discussion that even the property 
 and liberty of the individual are in some measure subject to adminis- 
 trative tribunals, and that the review of the action of these bodies by 
 
 1 American Warehousemen's Association v. Illinois Central R. R, Co. et a!., 7 I. C. C. 
 Rep. 556, at 591 and 592. 
 
 29 
 
450 AMERICAN FEDERAL GOVERNMENT 
 
 the courts is frequently no more than a review for regularity. But on 
 these points the courts are sensitive. Liberty and property are their 
 special wards, just as the private law is their peculiar demesne. This 
 explains the contention of some lawyers that power to make a rate could 
 not be given to the interstate commerce commission because the exercise 
 of such a power would amount to a taking of property, and the milder 
 contention that the courts must be allowed to step in whenever they 
 deem the rate confiscatory. One of the most tangible expressions of this 
 jealous devotion to the authority of the courts in the United States is 
 found in the extent to which contracts are kept under judicial control. 
 Even when the power of the administrative tribunal is plenary with 
 respect to other matters, it may be denied any shred of authority over 
 contracts. On the other hand, in those countries, notably France, where 
 the administration is more scientifically organized, there is a division of 
 authority. In France the administration may act in three different 
 capacities in making contracts: first, in connection with its functions 
 as superintendent of the private domain ; second, in connection with its 
 administration of public services ; and third, in connection with its action 
 as puissance ptiblique, for example in connection with its concessions 
 of certain franchises or privileges. In the last case the contract is said 
 to be administrative in its nature, and the administrative tribunals 
 therefore almost necessarily have jurisdiction over it. In the first and 
 second cases the contract is administrative only when the law declares 
 it to be so; hence in these cases the ordinary courts have sole jurisdic- 
 tion, subject to exceptions, the exceptions being more frequent in the 
 first case than in the second. Many of the American administrative 
 tribunals indeed have jurisdiction in respect to contracts, but it is a 
 ragged, uncertain, and in some cases almost accidental jurisdiction. The 
 comparative precision of the French law is absolutely wanting. This is 
 not to say that the French law is without defects. Certain of the com- 
 plexities which have resulted from the separation of its administrative 
 and judicial courts have at least the factitious character and the super- 
 ficial absurdity of some of the fictions of our common law. 
 
 Administrative procedure. The administrative tribunals of the 
 United States differ as much in their processes as in their powers. In 
 some of them the procedure has much of the formalism of the regular 
 courts. In general, while they have their own peculiar make of red tape, 
 they are impatient of the punctilious give-and-take of plea, demurrer, 
 replication, motion, and amendment. 1 They aim at expedition and 
 economy. They are primarily executive agents and as such prone to 
 take the substance and let the shadow go. The very spirit of adminis- 
 
 1 "Things are done in administrative adjudication which could never be done in 
 judicial process. Principles are violated in administrative process which are funda- 
 mental in the courts. Often the whole solemn procedure is upset so that there may be 
 prompt administration." Wyman, op. cit., sec. 119. 
 
THE DEPARTMENTS 451 
 
 tration is the accomplishment of things. This may and no doubt does 
 at times result in the sacrifice of rights. But safeguards are established. 
 For example, in the case of pension claims, after the preliminary ad- 
 judication of fact and law there may be a reference to the commissioner 
 of pensions, and then an appeal to the secretary of the interior which 
 is in effect decided by a special board of pension appeals. Safeguards 
 in the way of administrative appeal in cases of interference in applica- 
 tions for a patent and in cases of protest before the land office are even 
 more detailed and conservative of rights. Still the administrative tribu- 
 nals incline toward the laxer rules of ex parte proceedings. These tribu- 
 nals are often as well satisfied by written as by oral testimony. The 
 rules of evidence are little known to them and even less employed. The 
 court of claims acts without a jury, the court itself being judge of both 
 the law and the facts. Indeed, it may be said that the jury system is 
 foreign to the administrative tribunals. Parties whose names do not 
 appear on the record are often allowed to intervene with little or no 
 formality. The interstate commerce commission, in its more important 
 investigations, frequently extends a general invitation to all interested 
 to appear and testify before it. In numerous cases it has allowed the 
 attorneys of special interests to displace its own attorneys, and this has 
 generally been much to the advantage of the inquiry. Examination of 
 the testimony in some of the commission's inquiries reveals that at times 
 "a voice" has asked a question and "a voice" has made reply. The 
 evidence given by such mediums in the commission's seances appears 
 as a part of the printed record and no motion for its exclusion seems to 
 have been made. 
 
 Some further light is thrown upon the methods of administrative 
 tribunals by an examination of their respect for their own previous 
 decisions. The influence of that sovereign principle of the common law 
 which bids the court to follow precedents prevails even here. It could 
 not well be otherwise in a country whose jurisprudence is Anglo-Saxon. 
 Thus the school tribunals in the states frequently publish extensive 
 reports or copious digests of their decisions for the guidance of their 
 successors. The decisions of the court of claims, of the treasury, of the 
 comptroller of the treasury, of the interstate commerce commission and 
 of other administrative authorities are published. The comptroller of 
 the treasury has held that a decision of a comptroller should not be 
 reversed by a successor upon the presentation of a case involving the 
 same state of facts unless there was a manifest error in the interpretation 
 of the law. Many other illustrations of this attitude might be given. 
 The interstate commerce commission has manifested a keen sense of 
 the importance of continuity in its interpretation of the law. But after 
 all, the application of the rule which dictates adherence to established 
 principles is quite different from its application in the courts of law. 
 Administrative tribunals are not careful to make due distinctions be- 
 
452 AMERICAN FEDERAL GOVERNMENT 
 
 tween the dicta and the rulings in preceding cases. Often their findings 
 are based so distinctly upon the special facts of the single case that 
 precedent can hardly be said to exist. An instructive and amusing 
 illustration of an attempt to reconcile a decision with alleged precedents 
 is found in a case decided by the interstate commerce commission. In 
 maintaining tliat the shipper of petroleum in barrels should not be 
 charged for the weight of the barrel, since the shipper in tanks was not 
 charged for the weight of the tank, the commission stoutly protested 
 that it was following its precedents. The contrary had been contended 
 with much vigor by those who opposed this ruling. And on the face of 
 the cases it fully appears that the commission's language, although it 
 was not as clear as it might have been, gave much warrant for this con- 
 trary assumption. The commission, after having asserted at many 
 pages' length that its decisions were consistent and that it had followed 
 its own precedents, wound up with the assertion that it was an adminis- 
 trative body and was therefore not obliged to follow precedent when it 
 saw fit to do otherwise. 1 It would of course arrest the necessary develop- 
 ment of law in the new fields in which these tribunals are working if they 
 observed the rule of stare decisis in anything like the degree in which it 
 is observed in the ordinary courts. 
 
 The fact that the procedure is so largely untechnical and often ex- 
 peditious, if not summary, conduces to a result which affords one of the 
 best arguments for the maintenance and extension of these tribunals. 
 This is the comparative inexpensiveness to private individuals of pro- 
 ceedings before them. Frequently the expense is borne almost entirely 
 by the government, and the cost to the government is much less than 
 that of prosecutions in criminal courts. 
 
 GOVERNMENT BY EXECUTIVE RULINGS 2 
 BY ALBERT DEAN CURRIER 
 
 THE recent extensive exercise of the power of Congress "to regulate 
 commerce," etc., under the provisions of the Constitution, has revived, 
 at this time, a close scrutiny and study of the letter and spirit of our 
 national Constitution, not only by our statesmen, but also by all persons 
 who are interested in good government. The rapid growth of Federal 
 power involves not only the power of Congress, under some attempted 
 constructions of the Constitution, to enact general laws which frequently 
 clash with the laws of the States, but also involves the rapidly increasing 
 practice by Congress of delegating to the executive heads of govern- 
 
 1 Rice, Robinson and Witherop v. W. N. Y. &" Penna. R. R. Co., 4 I. C. C. Rep. 131, 
 at 155. 
 
 2 North American Review, September, 1907. Reproduced in part, by permission. 
 
THE DEPARTMENTS 453 
 
 mental departments the power to exercise functions which properly 
 belong to the legislative and judicial branches of the Government. 
 
 The people of the United States are a very busy people, interested in 
 the progress of their individual affairs. They are so busy that they are 
 inclined to leave the study and enforcement of those principles which 
 make for good government to those who make politics their business. 
 So great has become this laissez-faire policy of the people, and so great 
 has been their faith in the executive officials of the Government, that they 
 have not fully realized the rapid growth of the executive branch of our 
 Government, which is silently and surely usurping many of the func- 
 tions of government that properly belong to the legislative and judicial 
 branches. This growth of power in the executive branch appears to be 
 due, principally, to the tendency of the legislative branch of the Gov- 
 ernment, as heretofore mentioned, to delegate to the executive heads of 
 departments the power to make " Rules and Regulations" under general 
 laws enacted by Congress, with power to interpret such laws wherein 
 they may appear ambiguous or silent upon specific matters. 
 
 ******** 
 The Constitution vests the executive power of the Government in 
 the President of the United States, but, inasmuch as it is physically im- 
 possible for one person to perform all the executive duties and functions 
 of the Government, Congress has prescribed by statutory laws (Sees. 
 158 to 161, inclusive, of the United States Statutes) that the executive 
 functions shall be distributed among "executive departments"; and it 
 is also prescribed (Sec. 161, United States Statutes) that "the head of 
 each department is authorized to prescribe regulations, not inconsistent 
 with law, for the government of his department, the conduct of its officers 
 and clerks, the distribution and performance of its business, and the 
 custody, use, and preservation of the records, papers, and property ap- 
 pertaining to it." The direction of the President is to be presumed in 
 all the instructions and rules issuing from the competent departments. 1 
 
 Although the Constitution and the statutes creating such executive 
 offices do not anticipate or legally permit the promulgation of regula- 
 tions except for the purpose of enforcing such rights, duties and obliga- 
 tions as are clearly defined by statute, yet, in those specific matters upon 
 which the Federal statutes are ambiguous or silent, by virtue of the dis- 
 cretionary power vested in the executive heads of departments by Con- 
 gress and the authority delegated to such executive officers by certain 
 acts of Congress, portions of the laws are interpreted by executive officials, 
 and the deficiencies in such laws are supplied by executive rulings thereon. 
 Such executive rulings are often based upon forced and strained con- 
 structions of the statutory laws. 
 
 1 See Wilcox v. Jackson, 13 Pet. (U. S.) 513; Confiscation Cases, 20 Wall. (U. S.) 92; 
 Wolsey v. Chapman, 101 U. S. 769; U. S. v. Fletcher, 148 U. S. 89, and other legal au- 
 thorities. 
 
454 AMERICAN FEDERAL GOVERNMENT 
 
 In recent years, the extensive and rapid growth of all sorts of indus- 
 tries and business pursuits in the United States has imposed, both upon 
 the State Legislatures and Congress, duties which require much expert 
 knowledge in the framing of just laws. Congressional Committees rely 
 greatly for recommendation and advice upon departmental officials, 
 who are often inclined to recommend the delegation of more authority 
 and greater discretionary power to the executive heads of departments. 
 The public too often fails in properly advising its representatives in 
 Congress, especially upon matters which require technical knowledge, 
 and the experts who represent various industries before Congressional 
 Committees are frequently regarded as being prejudiced in favor of 
 private interests. Thus, many specific questions which should be deter- 
 mined by Congress and which should be adjusted by proper Congres- 
 sional Acts, are, by the terms of the Acts themselves, left to the executive 
 heads of departments to be determined and enforced by them. 
 
 The exercise of such discretionary power by the executive heads of 
 departments involves, first, a legal interpretation of the laws, which is a 
 judicial function, and, second, the preparation and adoption of rules 
 and regulations thereunder, which are properly legislative functions. 
 
 Such rulings by the executive head of any department may have the 
 effect of destroying one class of industries and the building up of another 
 class. 
 
 As an example of such power, a commission of the executive branch 
 of the Government consisting of the Secretary of the Treasury, the Sec- 
 retary of Agriculture and the Secretary of Commerce and Labor, may, 
 by virtue of the extraordinary discretionary powers vested in it under the 
 Food and Drugs Act of 1906, in any ruling which it may see fit to promul- 
 gate, prohibit the manufacture and sale of some articles of food which 
 it considers adulterated, but which many food experts may have decided 
 to be wholesome and free from deleterious substances. It may prohibit 
 the use of a label bearing the name by which such article has for many 
 years been known to the public, if it considers such label to be false or 
 misleading, although the majority of the people, and even the minority 
 of the commission who have had a more extensive experience and knowl- 
 edge in connection with the same, may dissent from its opinion. The 
 same executive commission may, by virtue of its authority, under the 
 same law, prohibit the use of labels which are duly registered trade 
 marks, thereby destroying the use of properties which, by reason of long 
 use, have become valuable assets of the parties which have so used them. 
 
 Under the Congressional Appropriation Act of 1907, the Secretary 
 of Agriculture may, "whenever he has reason to believe that any articles 
 are being imported from foreign countries which are dangerous to the 
 health of the people of the United States," request the Secretary of the 
 Treasury to refuse delivery of such articles to the consignee; and such 
 request is mandatory upon the Secretary of the Treasury. It is true 
 
THE DEPARTMENTS 455 
 
 that these specific Acts now referred to provide that manufacturers and 
 importers of food who may be accused of violations of such rules and 
 regulations shall be granted hearings before the executive head of the 
 Agricultural Department, but the decision of the question of criminal 
 prosecution lies wholly with such executive official. On the other hand, 
 the Secretary of Agriculture may, in his discretion, neglect or refuse to 
 enforce the manifest purpose and intent of the laws above referred to, 
 if he so desires. 
 
 Similar conditions prevail to a greater or less extent in nearly all execu- 
 tive departments of the Government, and the Federal courts cannot 
 issue a writ of mandamus to compel an executive head of a department 
 to perform his duties in accordance with the manifest purpose of an 
 Act of Congress, as to those specific matters in which discretionary 
 power has been delegated to such executive by such Act. 1 
 
 A certain condition of affairs, alleged to have arisen under the powers 
 granted to the executive head of the Post-office Department to make 
 "rules and regulations," is well described in a memorable speech delivered 
 by the Hon. Edward Dean Crumpacker, a member of Congress from 
 Indiana, before the House of Representatives on April nth, 1906, in 
 discussing the Post-office Appropriation Bill then before the House, 
 from which speech, as it appears in the Congressional Record, the follow- 
 ing extracts are quoted: 
 
 "Mr. CRUMPACKER. 'I understand there is a system of penalties imposed 
 by the regulations of the Post-office Department. The gentleman must re- 
 member that that Department has legislative, executive and judicial powers 
 combined. It exercises all the powers of the Government over the postal 
 business of the country. . . . 
 
 "'The criticism that I am making is of the law and not of the officers, be- 
 cause I assume that they are performing their duties in accordance with the 
 postal regulations or the law. I do not know which it is; possibly it may be 
 both. . . . 
 
 "There is a system of postal espionage in this country that is absolutely 
 inconsistent with the spirit of free institutions, and it is not what should be 
 expected in a land of law and liberty. 
 
 '"Post-office inspectors may lodge complaints with the Postmaster-General 
 that the business of an individual is fraudulent. The Postmaster-General 
 may be satisfied from the secret reports of the inspectors that there are some 
 irregularities in the character of the business the particular individual is con- 
 ducting, and he may peremptorily enter a fraud order and withhold from that 
 individual the privileges of the mails, absolutely ruining his business and blast- 
 ing forever his business reputation. When that citizen calls upon the Post- 
 master-General, asking permission to see the charges that have been made 
 against him, he is informed that they are confidential and is refused the 
 privilege."' 
 
 1 See U. S. v. Elaine, 139 U. S. 306; U. S. v. Guthrie, 17 How. (U. S.) 284 and other 
 citations thereunder. 
 
456 AMERICAN FEDERAL GOVERNMENT 
 
 There have also been many bitter complaints from a large number of 
 citizens as to alleged unjust rulings by the executive officials of the De- 
 partment of the Interior as to the methods of the disposition of certain 
 Government lands, concerning which Congress has given to the Secretary 
 of the Interior discretionary powers. 
 
 Recently a ruling issued by the Secretary of Agriculture proclaimed, 
 in apparent contradiction to the intent and purpose of the Food and 
 Drugs Act of 1906, that butter is exempt from certain provisions of the 
 Act referred to, while other articles of food and drink are not favored 
 with such exemption. This ruling is alleged to have been based upon a 
 technical definition of the term by which the product referred to is usually 
 known, created in a Congressional Act of a radically different nature 
 and purpose over twenty years ago, which definition was so created by 
 the words of that Act itself "for the purpose of this Act." Although 
 often requested so to do, the executive head of the department referred 
 to has refused to submit the legal phase of this question to the Depart- 
 ment of Justice for an opinion thereon. 
 
 Congress frequently delegates to executive officials authority not only 
 to make rules and regulations as to the conduct of the general executive 
 business of their departments, but also delegates discretionary power 
 in the promulgation of rules and regulations under certain statutory 
 laws with reference to matters which are not soecifically mentioned in 
 such laws. 
 
 And the rules and regulations promulgated by executive heads of 
 departments are endowed with the full force and effect of law, and are 
 to be so regarded until the courts shall have decided that they are incon- 
 sistent with the statutory laws. Where the language in a statute is 
 ambiguous and open to different interpretations, the construction put 
 upon it by the executive department is regarded as decisive. 1 
 
 Moreover, violations of the rules and regulations promulgated by the 
 executive heads of departments, thus having the force and effect of law, 
 are frequently punishable by severe penalties prescribed in general 
 statutory Acts. Generally there is no provision for direct appeal by the 
 accused person to the courts from such executive rulings. Persons who 
 may believe that injustice has been done, that they have been discrimi- 
 nated against by such rules and regulations, and that such rulings are 
 not consistent with the statutory laws, must submit to the injustice, by 
 compliance, or to the only alternative, which is an indictment and crimi- 
 nal prosecution for an alleged violation of such rules and regulations. 
 Again, the rules and regulations prescribed to-day by an executive official 
 may be stricken out and a new set of rules and regulations promulgated 
 by him to-morrow, concerning the same subject. This may be done 
 without any alteration whatever of the statutory laws, but simply by 
 
 1 See Brown v. U. S., 113 U. S. 568; St. Paul, Minnesota, etc., Ry. Co. v. Phelps, 137 
 U. S. 528, and other citations thereunder. 
 
THE DEPARTMENTS 457 
 
 reason of a new interpretation of the law by the executive officer to 
 whom the power to make rules and regulations is delegated by 
 Congress. 
 
 In one division of the Treasury Department, the Division of Customs, 
 the exercise of discretionary power by executive officials formerly worked 
 so much injustice in the appraisal of importations under the tariff 
 schedule that Congress found it necessary, under pressure of a popular 
 demand, to create by the act of June ioth, 1890, a Board of General 
 Appraisers, from whose decisions the importer may, under certain con- 
 ditions, apply to the Circuit Court of the United States for a review of 
 the questions of law and fact involved. However, there appears to be 
 no such provision for appeal to the courts from the rulings of the Com- 
 missioner of Internal Revenue, when approved by the Secretary of the 
 Treasury; and it was only after a gigantic struggle in Congressional 
 Committees and upon the floors of both Houses of Congress that the Act 
 of Congress for the enlargement of the powers of the Interstate Com- 
 merce Commission, approved June 2Qth, 1906, was so amended as to 
 provide an appeal to the courts, under certain conditions, from the de- 
 cisions of the Interstate Commerce Commission, which Commission is 
 practically a part of the executive branch of the Government. 
 
 In accepting delegated powers to construe Congressional acts which 
 are general in their scope, and to make rules and regulations there- 
 under, the executive branch of the Government assumes great 
 responsibilities and arbitrary power. Yet the Chief Executive of our 
 Government is apparently requesting that Congress shall delegate still 
 greater discretionary powers to the executive heads of Government 
 departments. 
 
 It was, perhaps, with a sense of such responsibility that the Hon. 
 John W. Yerkes, Commissioner of Internal Revenue, when his advice 
 was requested by the Committee on Ways and Means in the House of 
 Representatives on February yth, 1906, in consideration of the House 
 Bill relating to free alcohol in the arts and manufactures, said: "I do 
 not want a general bill, leaving everything to be determined as to methods, 
 modes, processes, rules and regulations by the Department." In con- 
 nection with the same bill, when he appeared before the Senate Com- 
 mittee on Finance on May 5th, 1906, he repeated the same statement, 
 and further said: " There was my view with regard to the bill, and it 
 indicates clearly that I did not want the scope of power and authority 
 that is given under the House Bill." 
 
 It may, therefore, be noted that not all the executive officials of the 
 Government are seeking greater discretionary powers in their respective 
 departments. 
 
 The foregoing paragraphs are probably sufficient to indicate the general 
 tendency of the executive branch of our Government to usurp the powers 
 and functions of the legislative and judicial branches. 
 
458 AMERICAN FEDERAL GOVERNMENT 
 
 It is the belief of many of our best statesmen that the true intent 
 and spirit of the Constitution are thus being thwarted, and that the 
 fundamental principles of our Government are thus being gradually 
 undermined. 
 
 Congress, as a body, appears to be slow to recognize the evils which 
 result from the delegation of its powers to the executive branch of the 
 Government. The judiciary conservatively guards against encroach- 
 ments upon the legislative and executive branches of the Government 
 and generally refrains from interfering with the discretionary powers 
 delegated by Congress to the executive heads of departments.. 
 
 Upon a review of these conditions, questions naturally arise as to the 
 proper remedy for the evils which thus appear. Is Congress, burdened 
 with its multiplying duties, able to enact all the laws demanded by the 
 people in forms so clear and specific, as to all the new problems of our 
 rapidly growing industries and general business interests, that rulings 
 by executive heads of departments shall be unnecessary, except as to 
 the conduct of the persons working under them and the purely executive 
 business of their respective departments? Is the executive branch 
 of our Government exercising functions in excess of its constitutional 
 powers ? Are the citizens of our country performing their civic duties 
 in fully and properly advising their representatives in Congress, and 
 insisting upon proper legislation? Are the people of the various 
 States neglecting the studies of political science and the practice 
 of those civic virtues which make for good government? Are we 
 to give the constitutional powers of the legislative and judicial 
 branches of our Government, wholly or in part, into the hands of 
 the executive? 
 
 The Hon. Elihu Root says, in his recent admirable book on "The 
 Citizen's Part in Government": 
 
 "More than all, our hopes must depend upon the general and active par- 
 ticipation of the whole governing body of the American democracy in working 
 out the problems and applying the principles of government with wisdom, 
 with integrity, with just and kindly consideration for the rights of others 
 every citizen doing his full and manly duty for his country." 
 
 The sovereignty which is vested in the people may be maintained only 
 by its proper exercise. Should we not, therefore, in the interests of 
 personal rights and civil liberty, strive to abolish the evils of our politi- 
 cal system as they appear, to the end "that the Government of the 
 people, by the people, and for the people, shall not perish from the 
 earth"? 
 
THE DEPARTMENTS 459 
 
 GOVERNMENT PRINTING 1 
 
 THE article in the September Atlantic on "The Problem of Federal 
 Printing," by W. S. Rossiter of the Census Bureau, is a quiet, mostly 
 statistical account of the enormous development and great cost of this 
 branch of governmental activity. The Public Printer of the United 
 States, in a word, directs the greatest printing office in the world, it 
 being in capacity and output five or six times as large as the Imprimerie 
 Nationale. 
 
 Mr. Rossiter's figures show strikingly how the Government at Wash- 
 ington has become more and more adrip with printer's ink. In 1790 the 
 total cost of Federal printing was $8,785; in 1904, $7,080,906. By the 
 graphic chart illustrating the expansion of this business, it appears that 
 there have been ups and downs in it, but that since about 1892 the curve 
 has swept upward continuously and portentously the total outlay 
 having nearly doubled in that period. Mr. Rossiter estimates that the 
 cost of Government printing in the decade 1900-1909 will exceed 
 $60,000,000 or more than had been spent on it from 1790 to 1880. 
 It is not surprising that alarm has been taken at this making of many 
 books in the Government Printing Office. President Roosevelt has dis- 
 covered a superfluity here, much of the sort that Baring-Gould de- 
 nounced in German printing, and has called for retrenchment, though 
 it has not been observed that he himself has furnished the Government 
 printers less "copy" than before. Congress has appointed a joint com- 
 mittee to inquire into the matter. On all sides it seems to be agreed 
 that the public printing has increased, is increasing, and ought to be 
 diminished. 
 
 But to discover the vestigia retrorsum is always the rub, in such matters. 
 Everybody is willing that everybody else should leave a report or mono- 
 graph inedited, but as for his own why, the machinery of Govern- 
 ment could scarcely go on- unless it were got up handsomely with charts 
 and plates. The truth is that the printing habit has grown upon us 
 immensely. It is not confined to the Government at Washington. The 
 various States show an increase in public printing almost as marked as 
 that voted by Congress. Their total outlay on this item, Mr. Rossiter 
 informs us, has nearly doubled in twenty years rising from $1,561,350 
 in 1880 to $2,740,323 in 1900. Five or six States, and those in general 
 the most backward, have been able to curtail this expense, but the others 
 have pushed it to higher and higher figures. New York's printing bill, 
 for example, was $145,610 in 1880; in 1900, it was $654,330. Doubt- 
 less there has been extravagance in State work of this kind, though most 
 of the States let it by contract ; yet there can be no question that the great 
 
 1 New York Evening Post, 1905. 
 
460 AMERICAN FEDERAL GOVERNMENT 
 
 increase in Government publications has met a popular demand. The 
 people have been rather proud of the elaborate State and Federal re- 
 ports on forests and fisheries, on mines and water-supplies, on insect 
 pests and improved grains and better methods of cultivation in short, 
 on every topic or entity in the heavens above or the earth beneath that 
 could interest a village Solomon. And we Americans are, in this respect, 
 the envy of foreigners. More than once has the London Spectator sighed 
 over some elaborate volume de luxe issued by our Printing Office, of a 
 scientific or social interest, and regretted that such work could so seldom 
 be matched in Great Britain. 
 
 No utility, however, no aesthetic gratification can justify waste; and 
 that the Government Printing Office at Washington is extravagantly 
 conducted, Mr. Rossiter's showing leaves one in no possible doubt. The 
 cost of printing is "decidedly higher than the charge for similar commer- 
 cial work." Indeed, asserts the writer we follow, if this Government 
 plant doing a business of $7,000,000 a year were transformed into a 
 private concern, "the owners would discover that the charges for prod- 
 uct, although they do not include the usual and important items of rent, 
 interest, and profit, are nevertheless from one and one-half to ten times 
 as high as the prices charged for similar work by printers who include 
 the omitted items." Let prescribers of the Government ownership 
 panacea take due note of this. It is the ugliest symptom of the disease 
 they are treating. 
 
 Mr. Rossiter's explanation of the fact that "it is practically impossible 
 to secure from Government employees the work clerical or manual 
 that is expected and exacted from employees of private concerns," is, 
 to say the least, engagingly simple. The reason is not, he protests, poli- 
 tics. It is not wrapped up in the nature of public administration. No ; 
 the trouble is with "the climate of Washington." He must mean moral 
 climate, for printers certainly do the average amount of work in far 
 hotter cities; Kipling describes a scene of almost demonic activity in 
 the office of the Pioneer of Allahabad. But in Washington, avers Mr. 
 Rossiter, there is a "lack of commercial excitement," and that "rush 
 and bustle" which keys up workers elsewhere. Yes; and there is also, 
 as every one knows, the feeling that Uncle Sam is the sleepiest and most 
 lenient of employers; that there are Representatives and Senators to 
 keep you in your job, no matter how worthless you are ; and all the other 
 complex of motive and influence which makes Government work notori- 
 ously more costly and less efficient than private. If a really competent 
 Public Printer were employed, paid what his services were worth (not 
 the mere $4,500 now assigned to the superintendent of a $7,000,000 
 business), and given an absolutely free hand, with a warning to the poli- 
 ticians not to meddle, he could doubtless effect great economies and 
 tone the Printing Office up as it needs; but short of some such radical 
 reform we are likely to see small improvement. 
 
THE DEPARTMENTS 461 
 
 SPEAKER CANNON'S MAIDEN SPEECH, ON PUBLIC 
 DOCUMENTS * 
 
 MR. CANNON said: 
 
 "Suppose, however, that it really will cost to send these public docu- 
 ments through the mails free as much as the postage at full rates would 
 be if it were prepaid, still I think it would be wise to distribute them. In 
 this Republic of ours the people are sovereign, and to govern properly 
 they must have not only patriotism and honesty, but also intelligence 
 and a knowledge of the principles of the Government and the manner 
 in which the Government is administered, and therefore they have estab- 
 lished free schools all over the country for the instruction of the people 
 at the public expense; and the temper of our people is to make that 
 instruction compulsory, and properly so, for each citizen practically is 
 as much interested in the proper exercise of the right of franchise by the 
 humblest and poorest citizen of the Republic, as he is in his own proper 
 action ; and as the different executive officers of the Government, as well 
 as persons constituting the legislature, are only for the time being acting 
 as the agents of the people, it is important, aye, not only important, but 
 indispensable, if the genius of our institutions is preserved and the Gov- 
 ernment properly administered, that the people should keep track of 
 the acts and doings of their agents. It is true that now news is given 
 very generally to the people through the newspapers of the country; 
 but when we consider the hurried manner in which it is prepared, as 
 well as in which it is read, and that the papers frequently, I may say 
 generally, contain a mere digest of the proceedings of Congress, of the 
 transactions of the different Departments connected with the Executive, 
 and that from the very nature of things the reports, as digested and pub- 
 lished, frequently contain errors, and are warped by partisan feeling, 
 the necessity of a correct and complete record of the proceedings of the 
 legislative and executive branches of the Government being published 
 in convenient form for use and preservation, and distributed to the 
 people for their information, is at once seen. 
 
 "The truth is, the people get valuable information concerning the 
 administration of the Government in all its departments and branches 
 from these documents, and my observation is that information obtained 
 therefrom passes orally from man to man ; and while I am proud of our 
 great cities, and many of the citizens who reside therein, noted for their 
 proficiency in their respective callings and their great energy and industry 
 in accomplishing that which they undertake, yet in the country, among 
 
 1 Congr. Record, Feb. 18, 1874. 
 
462 AMERICAN FEDERAL GOVERNMENT 
 
 the producers, the men who earn bread by the sweat of their faces, you 
 find equally as great industry, and I dare say more general intelligence 
 and patriotism; and this class of men especially are anxious to receive 
 public documents and read them." 
 
 A MEMBER. "The gentleman must have oats in his pocket." 
 "I understand the gentleman. Yes; I have oats in my pocket and 
 hay seed in my hair [great laughter] ; and the Western people generally 
 are affected in the same way ; and we expect that the seed, being good, 
 will yield a good crop, I trust tenfold ; and the sooner legislation is had, 
 not only as proposed by this bill, but in all other respects as the people 
 desire and equity and justice shall dictate, the better it will be in the 
 long run for all people in this country, whatever may be their calling or 
 wherever they may reside." 
 
 In closing he said: 
 
 "And last, but not least, we are told that the city press of the country 
 oppose this bill, or any other measures that will give the people free 
 public documents, for the reason, as alleged, that the individuals or 
 incorporated companies conducting the same are desirous of monopoliz- 
 ing the means of information touching the affairs of the Government, 
 at least to the exclusion of information to be furnished by the Govern- 
 ment at the general expense. And it is also claimed by some that Mem- 
 bers can not afford to advocate and vote for this bill, for the reason that 
 the city press will declare war upon them and continue the same until 
 they lose standing with their constituency. I do not believe that the 
 city press will as a unit oppose this bill. A portion of it may from selfish 
 motives, in some instances, and honestly in others. I certainly have no 
 desire to call upon myself the assaults of the city press, or any portion 
 of it. Nor do I fear it as long as I truly represent my constituents and 
 act, in my representative capacity, for the interest of the people generally. 
 Nor would I change the power of the press to assail my acts or those of 
 anyone else. On the contrary, every Member of Congress, or other 
 agent of the people, should court a fair criticism of his acts, and if he 
 vitally misrepresents the people, they should, and no doubt would, fail 
 to continue him in places of trust. But no man is a proper person to 
 represent the people unless he has the honesty and the backbone to 
 stand and do what is right and for the interest of the people, without 
 reference to what anyone may say of him, or what the action of the press 
 may be in the premises." 
 
THE DEPARTMENTS 463 
 
 INSTRUCTIONS TO THE PHILIPPINE COMMISSION 
 
 [After the Philippine Islands had been acquired under the Treaty of Paris, 
 the administration of the Islands was for awhile carried on by military authority. 
 President McKinley, however, sent a commission to the Islands to report on 
 conditions and to make recommendations for future action. In 1900 a Civil 
 Commission was appointed for the government of the Islands. The instruc- 
 tions which were issued by the President to this commission are given below.] 
 
 "!N the message transmitted to the congress on the 5th of December, 
 1899, I said, speaking of the Philippine Islands: 'As long as the insurrec- 
 tion continues the military arm must necessarily be supreme. But there 
 is no reason why steps should not be taken from time to time to inau- 
 gurate governments essentially popular in their form as fast as territory 
 is held and controlled by our troops. To this end I am considering the 
 advisability of the return of the commission or such of the members 
 thereof as can be secured to aid the existing authorities and facilitate this 
 work throughout the islands.' 
 
 "To give effect to the intention thus expressed, I have appointed Hon. 
 William H. Taft of Ohio, Prof. Dean C. Worcester of Michigan, Hon. 
 Luke E. Wright of Tennessee, Hon. Henry C. Ide of Vermont, and Prof. 
 Bernard Moses of California, commissioners to the Philippine Islands 
 to continue and perfect the work of organizing and establishing civil 
 government already commenced by the military authorities, subject in 
 all respects to any laws which Congress may hereafter enact. 
 
 "The commissioners named will meet and act as a board, and the 
 Hon. William H. Taft is designated as president of the board. It is 
 probable that the transfer of authority from military commanders to 
 civil officers will be gradual and will occupy a considerable period. Its 
 successful accomplishment and the maintenance of peace and order in 
 the meantime will require the most perfect cooperation between the 
 civil and military authorities in the island and both should be directed 
 during the transition period by the same Executive department. The 
 commission will therefore report to the secretary of war and all their 
 action will be subject to your approval and control. 
 
 "You will instruct the commission to proceed to the city of Manila 
 where they will make their principal office and to communicate with the 
 military governor of the Philippine Islands whom you will at the same 
 time direct to render to them every assistance within his power in the 
 performance of their duties. Without hampering them by too specific 
 instructions, they should in general be enjoined, after making themselves 
 familiar with the conditions and needs of the country to devote their 
 attention in the first instance to the establishment of municipal govern- 
 ments, in which the natives of the islands both in the cities and in the 
 
464 AMERICAN FEDERAL GOVERNMENT 
 
 rural communities shall be afforded the opportunity to manage their 
 own local affairs to the fullest extent of which they are capable and sub- 
 ject to the least degree of supervision and control which a careful study 
 of their capacities and observation of the workings of native control 
 show to be consistent with the maintenance of law, order and loyalty. 
 
 "The next subject in order of importance should be the organization 
 of government in the larger administrative divisions corresponding to 
 countries, departments or provinces in which the common interests of 
 many of several municipalities falling within the same tribal lines, or 
 the s'ame natural geographical limits may best be subserved by a common 
 administration. Whenever the commission is of the opinion that the 
 condition of affairs in the islands is such that the central administration 
 may be safely transferred from military to civil control they will report 
 that conclusion to you, with their recommendations as to the form of 
 central government to be established for the purpose of taking over the 
 control. 
 
 "Beginning with the first day of September, 1900, the authority to 
 exercise subject to my approval, through the secretary of war, that part 
 of the power of government in the Philippine Islands which is of a legis- 
 lative nature is to be transferred from the military governor of the islands 
 to this commission to be thereafter exercised by them in the place and 
 stead of the military government under such rules and regulations as 
 you shall prescribe, until the establishment of the civil central govern- 
 ment for the islands contemplated in the last foregoing paragraph, or 
 until congress shall otherwise provide. Exercise of this legislative au- 
 thority will include the making of rules and orders, having the effect of 
 law for the raising of revenue by taxes, customs duties, and imposts; 
 the appropriation and expenditure of public funds of the islands; the 
 establishment of an educational system throughout the islands; the 
 establishment of a system to secure an efficient civil service ; the organi- 
 zation and establishment of courts; the organization and establishment 
 of municipal and departmental governments and all other matters of 
 a civil nature for which the military governor is now competent to pro- 
 vide by rules or orders of a legislative character. 
 
 "The commission will also have power during the same period to 
 appoint to office such officers under the judicial, educational, and civil 
 service systems and in the municipal and departmental governments as 
 shall be provided for. Until the complete transfer of control the military 
 governor will remain the chief executive head of the government of the 
 islands and will exercise their executive authority now possessed by him 
 and herein expressly assigned to the commission, subject, however, to 
 the rules and orders enacted by the commission in the exercise of legis- 
 lative powers conferred upon them. In the meantime the municipal 
 and departmental governments will continue to report to the military 
 governor and be subject to his administrative supervision and control, 
 
THE DEPARTMENTS 465 
 
 under your direction, but that supervision and control will be confined 
 within the narrowest limits consistent with the requirements that the 
 powers of government in the municipalities and departments shall be 
 honestly and effectively exercised and that law and order and individual 
 freedom shall be maintained. 
 
 "All legislative rules and orders, establishments of governments and 
 appointments to office by the commission will take effect immediately 
 or at such time as they shall designate, subject to your approval and 
 action upon the coming in of the commission's reports, which are to be 
 made from time to time as their action is taken. Wherever civil govern- 
 ments are constituted under the direction of the commission such military 
 posts, garrisons, and forces will be continued for the suppression of in- 
 surrection and brigandage and the maintenance of law and order as 
 the military commander shall deem requisite and the military forces shall 
 be at all times subject under his orders to the call of the civil authorities 
 for the maintenance of law and order and the enforcement of their 
 authority. 
 
 "In the establishment of municipal governments the commission will 
 take as the basis of their work the governments established by the 
 military governor under his order of Aug. 8, 1899, and under the report 
 of the board constituted by the military governor by his order of Jan. 29,- 
 1900, to formulate and report a plan of municipal government, of which 
 his honor, Cayetano Arellano, president of the audienca, was chairman 
 and they will give to the conclusions of that board the weight and con- 
 sideration which the high character and distinguished abilities of its 
 members justify. 
 
 "In the constitution of departmental or provincial governments they 
 will give especial attention to the existing government of the island of 
 Negros, constituted, with the approval of the people of that island, under 
 the order of the military governor of July 22, 1899, an d after verifying, 
 so far as may be practicable, the reports of the successful working of that 
 government they will be guided by the experience thus acquired so far 
 as it may be applicable to the condition existing in other portions of the 
 Philippines. They will avail themselves to the fullest degree practicable 
 of the conclusions reached by the previous commission to the Philippines. 
 
 "In the distribution of powers among the governments organized by 
 the commission the presumption is always to be in favor of the smaller 
 subdivision, so that all the powers which can properly be exercised by 
 the municipal government shall be vested in that government and all 
 the powers of a more general character which can be exercised by the 
 departmental government shall be vested in that government and that 
 in the governmental system, which is the result of the process, the central 
 government of the island, following the example of the distribution of 
 the powers between the states and the national government of the United 
 States, shall have no direct administration except of matters of purely 
 
 3 
 
466 AMERICAN FEDERAL GOVERNMENT 
 
 general concern and shall have only such supervision and control over 
 local governments as may be necessary to secure and enforce faithful 
 and efficient administration by local officers. 
 
 "The many different degrees of civilization and varieties of custom 
 and capacity among the people of the different islands preclude very 
 definite instructions as to the part which the people shall take in the selec- 
 tion of their own offices, but these general rules are to be observed ; that 
 in all cases the municipal officers who administer the local affairs of the 
 people are to be selected by the people, and that wherever officers of 
 more extended jurisdiction are to be selected in any way natives of the 
 islands are to be preferred, and if they can be found competent and willing 
 to perform the duties, they are to receive the offices in preference to any 
 others. 
 
 " It will be necessary to fill some offices for the present with Americans 
 which after a time may well be filled by natives of the islands. As soon 
 as practicable a system for ascertaining the merit and fitness of candi- 
 dates for civil office should be put in force. An indispensable qualifica- 
 tion for all offices and positions of trust and authority in the islands must 
 be absolute and unconditional loyalty to the United States and absolute 
 and unhampered authority and power to remove and punish any officer 
 deviating from that standard must at all times be retained in the hands 
 of the central authority of the islands. 
 
 "In all the forms of government and administrative provisions which 
 they are authorized to prescribe the commission should bear in mind 
 that the government which they are establishing is designed not for our 
 satisfaction, or for the expression of our theoretical views, but for the 
 happiness, peace, and prosperity of the people of the Philippine Islands, 
 and the measures adopted should be made to conform to their customs, 
 their habits, and even their prejudices, to the fullest extent consistent 
 with the accomplishment of the indispensable requisites of just and 
 effective government. 
 
 "At the same time the commission should bear in mind, and the people 
 of the islands should be made plainly to understand that there are certain 
 great principles of government which have made the basis of our govern- 
 mental system which we deem essential to the rule of law and the main- 
 tenance of individual freedom, and of which they have, unfortunately, 
 learned by experience possessed by us ; that there are also certain prac- 
 tical rules of government which we have found to be essential to the 
 preservation of these great principles of liberty and law and that these 
 principles and these rules of government must be established and main- 
 tained in their islands for the sake of their liberty and happiness, how- 
 ever much they may conflict with the customs or laws of procedure with 
 which they are familiar. 
 
 "It is evident that the most enlightened thought of the Philippine 
 Islands fully appreciates the importance of these principles and rules 
 
THE DEPARTMENTS 467 
 
 and they will inevitably within a short time command universal assent. 
 Upon every division and branch of the government of the Philippines, 
 therefore, must be imposed three inviolable rules: 
 
 "That no person shall be deprived of life, liberty, or property without 
 due process of law ; that private property shall not be taken for public 
 use without just compensation; that in all criminal prosecutions the 
 accused shall enjoy the right to a speedy and public trial, to be informed 
 of the nature and cause of the accusation, to be confronted with the wit- 
 nesses against him, to have compulsory process for obtaining witnesses 
 in his favor, and to have the assistance of counsel for his defense ; that ex- 
 cessive bail shall not be required, nor excessive fines imposed, nor cruel 
 and unusual punishment inflicted; that no person shall be put twice in 
 jeopardy for the same offense, or be compelled in any criminal case to 
 be a witness against himself; that the right to be secure against unrea- 
 sonable searches and seizures shall not be violated ; that neither slavery 
 nor involuntary servitude shall exist except as a punishment for crime; 
 that no bill of attainder or ex post facto law shall be passed; that no law 
 shall be passed abridging the freedom of speech or of the press or the 
 rights of the people to peacefully assemble and petition the government 
 for redress of grievances ; that no law shall be made respecting an estab- 
 lishment of religion or prohibiting the free exercise thereof; and the free 
 exercise and enjoyment of religious profession and worship without dis- 
 crimination or preference shall forever be allowed. 
 
 " It will be the duty of the commission to make a thorough investi- 
 gation into the titles to the large tracts of land held or claimed by 
 individuals or by religious orders; into the justice of the claims and 
 complaints made against such land holders by the people of the island 
 or any part of the people and to seek by wise and peaceable measures 
 a just settlement of the controversies and redress of wrongs which have 
 caused strife and bloodshed in the past. In the performance of this 
 duty the commission is enjoined to see that no injustice is done; to have 
 regard for substantial rights and equity, disregarding technicalities so far 
 as substantial right permits and to observe the following rules : 
 
 "That the provision of the treaty of Paris pledging the United States 
 to the protection of all rights of property in the islands and as well the 
 principle of our own government which prohibits the taking of private 
 property without due process of law, shall not be violated ; that the wel- 
 fare of the people of the islands which should be a paramount considera- 
 tion shall be attained consistently with this rule of property right ; that if 
 it becomes necessary for the public interest of the people of the islands 
 to dispose of claims to property which the commission finds to be not 
 lawfully acquired and held disposition shall be made thereof by due legal 
 procedure in which there shall be full opportunity for fair and impartial 
 hearing and judgment; that if the same public interests require the 
 extinguishment of property rights lawfully acquired and held due com- 
 
4 68 AMERICAN FEDERAL GOVERNMENT 
 
 pensation shall be made out of the public treasury therefor; that no 
 form of religion and no minister of religion shall be forced upon any 
 community or upon any citizen of the islands ; that upon the other hand, 
 no minister of religion shall be interfered with or molested in following 
 his calling, and that the separation between state and church shall be 
 real, entire, and absolute. 
 
 "It will be the duty of the commission to promote and extend and as 
 they find occasion, to improve, the system of education already inaugu- 
 rated by the military authorities. In doing this they should regard as 
 of first importance the extension of a system of primary education which 
 shall be free to all and which shall tend to fit the people for the duties 
 of citizenship and for the ordinary avocations of a civilized community. 
 This instruction should be given in the first instance in every part of the 
 islands in the language of the people. In view of the great number of 
 languages spoken by the different tribes, it is especially important to the 
 prosperity of the islands that a common medium of communication may 
 be established and it is obviously desirable that this medium should be 
 the English language. Especial attention should be at once given to 
 affording full opportunity to all the people of the islands to acquire the 
 use of the English language. 
 
 " It may be well that the main changes which should be made in the 
 system of taxation and in the body of the laws under which the people 
 are governed, except such changes as have -already been made by the 
 military government, should be relegated to the civil government, which 
 is to be established under the auspices of the commission. It will, how- 
 ever, be the duty of the commission to inquire diligently as to whether 
 there are any further changes which ought not to be delayed, and if so, 
 they are authorized to make such changes, subject to your approval. 
 In doing so they are to bear in mind that taxes which tend to penalize 
 or repress industry and enterprise are to be avoided ; that provisions for 
 taxation should be simple so that they may be understood by the people ; 
 that they should affect the fewest practicable subjects of taxation which 
 will serve for the general distribution of the burden. 
 
 "The main body of the laws which regulate the rights and obliga- 
 tions of the people should be maintained with as little interference as 
 possible. Changes made should be mainly in procedure, and in the 
 criminal laws to secure speedy and impartial trials, and at the same 
 time effective administration and respect for individual rights. 
 
 "In dealing with the uncivilized tribes of the islands the commission 
 should adopt the same course followed by Congress in permitting the 
 tribes of our North American Indians to maintain their tribal organiza- 
 tion and government and under which many of those tribes are now living 
 in peace and contentment surrounded by a civilization to which they are 
 unable or unwilling to conform. Such tribal governments should, how- 
 ever, be subjected to wise and firm regulation, and, without undue or 
 
THE DEPARTMENTS 469 
 
 petty interference, constant and active effort should be exercised to pre- 
 vent barbarous practices and introduce civilized customs. 
 
 "Upon all officers and employees of the United States both civil and 
 military, should be impressed a sense of the duty to observe not merely 
 the material, but the personal and social rights of the people of the islands, 
 and to treat them with the same courtesy and respect for their personal 
 dignity which the people of the United States are accustomed to require 
 from each citizen." 
 
 The articles of capitulation of the city of Manila on the i3th of 
 August, 1898, concluded with these 'words: "This city, its inhabitants, 
 its churches and religious worship, its educational establishments and 
 its private property of all descriptions, are placed under the special safe- 
 guard of the faith and honor of the American army." I believe that this 
 pledge has been faithfully kept. As high and sacred an obligation rests 
 upon the government of the United States to give protection for property 
 and life, civil and religious freedom, and wise, firm, and unselfish guid- 
 ance in the paths of peace and prosperity to all the people of the Philip- 
 pine Islands. I charge this commission to labor for the full performance 
 of this obligation, which concerns the honor and conscience of their 
 country, in the firm hope that through their labors all the inhabitants of 
 the Philippine Islands may come to look back with gratitude to the day 
 when God gave victory to American arms at Manila and set their lands 
 under the sovereignty and the protection of the people of the United 
 States. 
 
 ADMINISTRATION OF CUBA, PORTO RICO AND 
 THE PHILIPPINE ISLANDS 1 
 
 THE master mind in the work of administering the Government of 
 Porto Rico, Cuba, and the Philippine Islands under military occupation, 
 and in building up civil government in those islands, was that of the 
 Secretary of War. He was obliged to construct even the tools with which 
 he worked. The War Department had no bureau or administrative 
 organization for disposing of the vast amount of department work oc- 
 casioned by the acquisition and government of our new possessions, yet 
 such organization was necessary to keep the Secretary of War from 
 being overwhelmed in hopeless confusion ; thereupon, what is now the 
 Bureau of Insular Affairs was created. With reference thereto Secretary 
 Root, in his report for 1901, said: "It performs, with admirable and 
 constantly increasing efficiency, the great variety of duties which, in 
 other countries, would be described as belonging to a colonial office, 
 and would be performed by a much more pretentious establishment." 
 
 1 From an article on the War Department by Governor Charles E. Magoon, in Scrib- 
 ner's Magazine, 1903. 
 
470 AMERICAN FEDERAL GOVERNMENT 
 
 The responsibility of determining the problems which arose, devolved 
 upon the Secretary of War, and practical necessities required a deter- 
 mination in advance of Congressional action or judicial decision. Many 
 problems raised new or long forgotten questions as to the character of 
 the Federal Government, the nature and extent of the Nation's sover- 
 eignty, the division of its powers, and the extent of its authority at home 
 and abroad. It was necessary to ascertain and observe precedents in 
 dealing with unprecedented situations, and duly regard a long line of 
 judicial decisions touching but not meeting the issue involved. Differ- 
 ent civilizations, different systems of law and procedure, and different 
 modes of thought brought into contact evolved a great crowd of difficult 
 questions. New facts and changed conditions called for the interpreta- 
 tion and application of our own rules of policy and the establishment 
 of further rules. Different views as to the scope of authority under the 
 distribution of powers required reconciliation. The application of the 
 law of military occupation to rights and practices existing under the laws 
 of Spain, and the process of overturning inveterate wrongs brought about 
 frequent appeals to the highest authority, which, being made in the name 
 of justice, compelled consideration. At the same time the work of con- 
 struction of civil government was carried to successful completion. A 
 delicate and difficult task was that of transferring the public powers 
 from the military to the civil organization, to bridge the chasm between 
 the military camps and the forums of peace. In Cuba the change was 
 effected by means of a constitutional convention which adopted a form 
 of government and a constitution therefor; officials were elected there- 
 under at elections held under the auspices of the Military Government. 
 The necessities of the public service being provided for, the military 
 authorities withdrew from place and power, the civilian officials entered 
 upon the discharge of their duties, and the Republic of Cuba took its 
 place in the family of nations. 
 
 At this stage in the affairs of Cuba it became necessary for Secretary 
 Root to solve the far-reaching problem of fixing the general principles for 
 the permanent regulation of the relations between Cuba and the United 
 States, so as to preclude the possibility of complications which might 
 interfere with the amity essential to the welfare of both countries. Cuba 
 is so situated, geographically, that it must be either the steadfast ally or 
 the natural enemy of the United States. Internationally, the United 
 States is bound to see that the Government of Cuba is conducted with 
 due regard to the standards erected by modern civilization and the obliga- 
 tions devolving upon a member of the family of nations. Nationally, the 
 United States is bound to promote its own industrial welfare, military de- 
 fense, and domestic tranquillity, and especially to prevent the recurrence 
 of yellow fever, that in the past periodically ravaged our shores. The 
 measures adopted necessarily must be projected into the period when 
 Cuba would be an independent State; mutuality was essential to their 
 
THE DEPARTMENTS 471 
 
 continuance, if not to their adoption ; the inhabitants of the island were 
 eager to exercise the powers of independent sovereignty ; and, therefore, 
 the task presented was that of permitting the exercise of the powers of 
 the on-coming Government of Cuba, in respect of these matters, and at the 
 same time insure that said powers would not be employed in an unwar- 
 ranted or ill-advised manner, so as to embarrass or delay the accomplish- 
 ment of the laudable purposes of the United States. The plan adopted 
 by Secretary Root was to make the general relations to be sustained by 
 the Republic of Cuba to the United States part and parcel of the basic 
 structure of the Republic of Cuba; the declaration of those relations 
 to be a condition precedent to the establishment of independent govern- 
 ment in the island, and the surrender thereto of the powers and authority 
 acquired by the United States by the war with Spain and the Treaty of 
 Paris. The order of the Military Government dated July 25, 1900, 
 authorizing the election and assemblage of the delegates to the Constitu- 
 tional Convention, declared the purpose of the convention to be "to 
 frame and adopt a constitution for the people of Cuba, and, as a part 
 thereof, to provide for and agree with the Government of the United 
 States upon the relations to exist between that Government and the 
 Government of Cuba." When the Convention assembled the Military 
 Governor, pursuant to instruction, admonished them as follows : 
 
 It will be your duty, first, to frame and adopt a constitution for Cuba, and 
 when that has been done, to formulate what, in your opinion, ought to be the 
 relations between Cuba and the United States. When you have formulated 
 the relations which, in your opinion, ought to exist between Cuba and the 
 United States, the Government of the United States will, doubtless, take such 
 action on its part as shall lead to a final and authoritative agreement between 
 the people of the two countries to the promotion of their common interests. 
 
 The wisdom of this course was soon manifest. The Cuban convention 
 formulated a constitution, but omitted action with reference to the 
 relations to exist between Cuba and the United States; whereupon 
 Congress took the initiative and adopted what is known as the "Platt 
 Amendment,'' specifically setting forth the general characteristics of 
 such relations. The provisions of that amendment were adopted by 
 the Constitutional Convention, and thereby became as much a part of 
 the governmental organization and polity of the Cuban State as is the 
 Constitution of Cuba. 
 
 The construction and maintenance of popular government in the 
 Philippines presented no problem more serious than how to accomplish 
 the transition from military to civil government, for the change was to 
 be made "under fire" and in the presence of a formidable insurrection. 
 The task set before Secretary Root was to devise a plan which would 
 enable civil government to keep abreast with the success of our arms 
 and at the same time continue available at all times the authority and 
 
472 AMERICAN FEDERAL GOVERNMENT 
 
 organization of the Military Government to meet possible emergencies. 
 The task was nearly as difficult as the impossible proposition of causing 
 two bodies to occupy the same space at the same time. The plan adopted 
 and successfully carried out was that set forth in the instructions to the 
 Philippine Commission, dated April 7, 1900. These instructions were 
 prepared by Secretary Root. They constitute the Magna Charta of the 
 Philippines, and will contest with the Emancipation Proclamation for 
 the rank of first of American State documents. 
 
 It is remarkable and gratifying that the work of developing civil govern- 
 ment in Porto Rico, Cuba, and the Philippines was accomplished by 
 exercising the military powers of the United States. The army, organized, 
 trained, and equipped for the work of destruction, was utilized by the 
 President and the Secretary of War as an instrument of construction. 
 That which was fashioned to overthrow and expel one government was 
 devoted to the purpose of erecting another. The war powers of this 
 nation, although outside of the limitations of our laws and Constitution, 
 knowing nothing of their restrictions, bound only by the discretion of 
 the Commander-in-Chief and the practices of civilized warfare, were 
 effectively used to construct, out of and for a people ignorant of our form 
 of government and the principles on which it is founded, a government 
 incorporating and inculcating the principles and theories which have 
 made the United States foremost among the nations of the earth. 
 
LEGISLATIVE AND ADMINISTRATIVE 
 PROBLEMS 
 
 [The article by Mr. Samuel W. McCall, Member of Congress from Massa- 
 chusetts, on the Fifty-ninth Congress, gives an excellent account of the legisla- 
 tive problems before the nation at that time. The matters upon which action 
 was then taken do not yield in importance even to the great structural activities 
 at the beginning of our national life. Then it was the framework of the state 
 that was to be fitly planned and carefully erected, now it is the conditions of 
 social and economic life themselves that are to be given legislative form. The 
 first session of the Fifty-ninth Congress thus becomes a turning point in our 
 national development.] 
 
 THE FIFTY-NINTH CONGRESS 1 
 BY SAMUEL W. MCCALL 
 
 IT is easy to overestimate the historical importance of our contemporary 
 politics, although it is far from being the worst fault that we should treat 
 them too seriously. Questions that are discussed with a vast deal I 
 will not say of passion, for there is little genuine passion in our current 
 politics but with a vast deal of noise, are somehow quickly displaced 
 by other questions no more important nor more closely related to the 
 real life of the nation, and permanently disappear. We have witnessed 
 in the last decade the sudden rise of statesmen, almost purely the crea- 
 tures of executive favor, who have in a moment blazed from the horizon 
 to the zenith, whose greatness has been established by executive procla- 
 mations and solemnly ratified by university degrees conferred with 
 academic eloquence, and we are already asking ourselves what they really 
 said or did that history will trouble itself to recall. Its verdicts we may 
 be sure will not be greatly influenced by the extravagance of contemporary 
 censure or contemporary praise. Whether or not a President really 
 said not long ago, as reported, "In Mr. - - I have a great Secretary 
 of State, in Mr. - a great Attorney- General" and so on throughout 
 nearly the whole Cabinet list and then, "in Mr. I have the great- 
 est war minister that has appeared on either side of the ocean in our 
 time," there are plenty of contemporary utterances to prove amply that 
 now, not in the troubled times that try men's souls, but in the fat era 
 
 1 The Atlantic Monthly, Nov. 1906. Reprinted with permission. Copyright. 
 
 473 
 
474 AMERICAN FEDERAL GOVERNMENT 
 
 of a gross material prosperity, the real golden age of statesmen has at 
 last dawned. 
 
 All this leads to caution in expressing emphatic opinions concerning 
 contemporary politics, although the extreme of censure is more often 
 met with than that of praise in dealing with Congress, except when it 
 suits the whim of the moment to treat that department of the govern- 
 ment as the mere organ of the executive. It is somewhat the fashion 
 to rank the present Congress, in the importance of its work, with the 
 congresses immediately following the Civil War. I think this opinion 
 may safely be treated as an exaggerated one ; and that it has done noth- 
 ing that can equal in constitutional importance the first act for the gov- 
 ernment of Porto Rico, or, in point of industrial importance, the Wilson 
 or the Dingley Tariff Act, or that can approach in the logical response 
 to a critical condition of the country the repeal of the silver-purchasing 
 clause of the Sherman Act. And if one ventured farther back he would 
 find other legislation of equal importance this side of the period of 
 Reconstruction. 
 
 But the record of the first session of the Fifty-ninth Congress is very 
 notable both for what was done and what was not done, although the 
 balance is strongly in favor of actual achievement. It failed to pass the 
 bill granting free trade to the Philippine Islands, and the tariff escaped 
 that judicious revision which it has so often been proclaimed to be the 
 peculiar prerogative of its friends to bestow; but it passed the bills for 
 untaxed industrial alcohol, for meat inspection, for pure food, for the 
 admission of the territories, and for a form of government railroad rate- 
 making. It also displayed a remarkable capacity for spending money, 
 and granted a total of appropriations of almost fantastic proportions. 
 
 The membership of the two houses in point of character and ability 
 will compare not unfavorably with the best congresses that have ever 
 been sent to Washington. Although they lacked the very few over- 
 shadowing figures associated with the congresses of past times, they 
 contained men of rare talent, while their average membership was of a 
 character scarcely to encourage those who delight in disparaging their 
 own time in comparison with the past, or with the future their imagina- 
 tions paint. 
 
 It would not be difficult to name a score of senators who in debate or 
 in some other important feature of the work of a senator will be likely 
 to be remembered at least by the next generation. "There does not 
 seem to be a quorum in the divine presence," Mr. Reed once sarcastically 
 observed, as he entered the Senate Chamber when a senator was deliver- 
 ing an elaborate and carefully prepared speech to a small number of 
 sleepy colleagues. But Mr. Reed, who signalized his speakership by his 
 daring way of counting a quorum, and who always went to the heart of 
 the subject himself, rarely making a speech in the House over fifteen 
 minutes long, did not regard with favor the average set speech. The set 
 
LEGISLATIVE PROBLEMS 475 
 
 speech of a senator is usually one of portentous length. Senatorial 
 dignity seems to demand the quality of length as a tribute to the impor- 
 tance of the rule for unlimited debate. Many long speeches were spoken 
 in the Senate during the late session, some of them unnecessarily long 
 doubtless, and devoted to the elaboration of points that were not always 
 of the first magnitude, but on the whole the debates in that body, especi- 
 ally that upon the railroad rate bill, displayed a very high order of ability. 
 Some of the strongest men in the Senate had previously been members 
 of the House, where they had passed unrecognized by the public at any- 
 thing like their real value. Men who had served in the House with Mr. 
 Bailey, for instance, knew that he was a man of rare talent; but the 
 newspapers, which generally employed themselves in ridiculing him at 
 that period of his career, made the discovery after he became a member 
 of the Senate that he was a debater of commanding ability. 
 
 The House did not lack in able men. It chose as Speaker the most 
 picturesque character in current American politics, a very efficient pre- 
 siding officer, but seen at his best in debate upon the floor of the House. 
 The floor leaders of the majority were Payne, the chairman of Ways and 
 Means, and Dalzell and Grosvenor of the Committee on Rules; and 
 when to these are added Hepburn, Hitt, Williams, Littlefield, Burton, 
 Clark, Cockran, Russell, and others whom space forbids to name and 
 whom not to name seems invidious, there is presented a variety of talent 
 that would add strength to any legislative chamber in the world. Ninety 
 men, the number of the membership of the Senate, might be chosen from 
 the House, and in aggregate of ability they would equal the present 
 Senate. 
 
 The bill for free trade with the Philippine Islands passed the House, 
 but failed in the Senate. It was supported by the Democrats generally 
 and by a majority of the Republicans, but it encountered the opposition 
 of a formidable contingent of Republican members who came chiefly 
 from the agricultural states, and feared that the unrestricted competition 
 of Philippine sugars would have an adverse effect upon our beet sugar 
 industry. As an economic measure simply, little could be said in its 
 favor save from the standpoint of absolute free trade, for no people in 
 the world differ from us more widely in their social system, standard of 
 wages and of living, and in industrial conditions generally. From con- 
 siderations of commerce and industry alone, there is scarcely a country 
 in the world with which we should not more quickly have free trade 
 than with the Philippine Islands. And as to their importance to us as 
 customers, the grandiloquent prophecies so freely indulged in, in 1898 
 and 1899, about the markets for our products that we were about to 
 conquer, become for the first time impressive when we read them to-day 
 in the light of that magnificent total of $6,000,000 of exports, which we 
 have at last been able to attain after eight years of benevolent assimila- 
 tion, to say nothing of reconcentration and war. But from the stand- 
 
476 AMERICAN FEDERAL GOVERNMENT 
 
 point of justice the measure was irresistible. Having forcibly taken from 
 them and arrogated to ourselves the power of deciding what taxes those 
 people should pay, having levied in all their ports our own high duties 
 against other nations, and especially against those nations with which 
 they would naturally trade, it would not merely be unjust, it would be 
 inhuman, for us to deny them the benefits of the system of which we 
 had imposed upon them all the burdens. They should have nothing 
 less than free trade with this country until we shall again remember our 
 own history and reestablish the principles upon which our government 
 was founded. When that time shall come, the people of those islands 
 will decide for themselves what taxes they shall pay. 
 
 The most important measure of the session from an industrial stand- 
 point was the "denatured" alcohol bill, so called, as if the prime object 
 of nature in making alcohol was to provide a beverage. The bill removed 
 the entire tax from alcohol which had been rendered undrinkable, so 
 that this important agent in the arts might be used with comparative 
 freedom. The tax remains as it was before upon alcohol which might 
 be used for drink. Free alcohol in the arts was a feature of the tariff act 
 of 1894, but Mr. Carlisle, then Secretary of the Treasury, found difficulty 
 in preparing regulations which would clearly separate alcohol used in 
 the arts from that used as a beverage, and prevent frauds upon the 
 treasury ; and the provision, although the law of the land, was never put 
 in force. But some foreign countries have successfully employed the 
 device of mingling with the alcohol substances that would render it 
 poisonous or. revolting to the human stomach, and have thus baffled the 
 ingenuity of those who would sell it for drink. The legislation of the 
 last session was based upon the experience of those countries, and it 
 cannot fail to have a most important effect. Free alcohol in the arts lies 
 almost at the basis of industrial Germany, which employs it to the 
 extent of 75,000,000 gallons a year. Our own tax of $2.18 on each 
 gallon was practically prohibitive, and in those important manufac- 
 tures which depended upon its use we were at the mercy of our rivals. 
 The possibilities of the employment of alcohol in producing light, heat, 
 and power are also enormous, as gallon for. gallon it has a far greater 
 potency than the best grade of refined petroleum, and need not much, 
 if at all, exceed it in price. The only opposition to the bill came from 
 the wood alcohol interests, but as the use of that article even in the arts 
 is attended with danger to life and health, no reason appeared for 
 taxing for its benefit a more efficient and safer rival product, and the 
 bill passed by a nearly unanimous vote. 
 
 The pure food bill was designed to prevent the transportation across 
 state lines of adulterated, deleterious, and misbranded foods, and the 
 chief instrumentality created to accomplish this purpose was a system 
 of federal inspection supported by penalties of varying degrees of severity. 
 The bill was based upon an enlarged, and possibly an unjustifiable, con- 
 
LEGISLATIVE PROBLEMS 477 
 
 struction of the commerce clause of the Constitution, just as the taxing 
 power has been amplified and often employed, not to provide revenue, 
 but for purposes essentially foreign to it, and to regulate, suppress, and 
 promote business and industry. The passage of the bill was largely due 
 to Mr. Hepburn, chairman of the Committee on Inter-State and Foreign 
 Commerce, under whose leadership it had, in a modified form, passed the 
 House of Representatives in a previous congress. The most valuable 
 portion of the legislation is that aimed at the traffic in patent medicines 
 containing deadly poisons covered by false and attractive labels, a 
 form of industry which all the resources of federal and state law might 
 well be employed to suppress. 
 
 Of the same general character as the pure food law was the meat 
 inspection amendment to the Agricultural Appropriation Bill. The 
 methods of preparing animal food even in the best regulated home 
 kitchens would not always seem appetizing, if reported with a too close 
 attention to detail, lit up by a sufficient play of fancy. But the colossal 
 slaughter houses of Chicago, however well conducted, would inevitably 
 afford a field for the higher imagination, which, if properly exercised, 
 would turn the stomach of an Esquimau. But it is sufficient to say with 
 regard to this amendment that it was not at all necessary to nauseate a 
 nation, and strike down for the time an important foreign trade, in 
 order to obtain an enactment which the great packers themselves may 
 well have been eager to secure. For, in addition to the benefit of the 
 certificate of purity, placed upon their product at the expense of the 
 Government, the law will tend to drive out of the interstate and foreign 
 trade some of those establishments which are too small to occupy an 
 inspector, and will thus still further centralize the industry. 
 
 The legislation to which I have just been referring illustrates very well 
 the striking principle dominating the work of the entire session. Con- 
 gress was apparently animated by a profound faith in the infallibility of 
 federal supervision. That the federal inspector was made of the same 
 stuff as the state inspector, that some of the most sweeping financial 
 swindles of the age, some of the most appalling disasters upon the ocean, 
 occurred under a system of direct federal supervision, were facts that 
 either were lost sight of entirely or were not regarded of the first conse- 
 quence. And it is probably correct to say that Congress was responsive 
 to the popular opinion of the moment. It is a most attractive way of 
 dealing with an evil, not for one to fight it himself and face the disgusting 
 details, nor for the community which is immediately affected to combat 
 it, but to call upon the great central deity at Washington. What more 
 powerful f ulmination can there be against crime than a federal statute ? 
 Against this magnificent device the old-fashioned notion of keeping power 
 near the people has little weight. The inhabitant of a city sees the water 
 works which have been stolen, he knows the aldermen who helped to 
 carry them away, and within fair limits he can reach a just conclusion 
 
478 AMERICAN FEDERAL GOVERNMENT 
 
 upon the questions of guilt or innocence, and whether the law has been 
 justly enforced. But the distance of the Washington stage is suited to 
 sleight-of-hand and the red fire of the tableaux, and it matters not that 
 the guilty may be dramatically absolved and the innocent attacked, and 
 that mere suspicion or laudation may more easily take the place of proof, 
 if only the central performer on the stage is willing to work the machinery 
 of justice for political ends. The unknown and the distant have an 
 obvious advantage over the near and the commonplace, for they strongly 
 appeal to the imagination. 
 
 Excessive federal supervision of course disregards the boundaries that 
 have been established between the national and state governments, and 
 by centralizing authority more and more at a greater distance from the 
 mass of the people it causes power when exercised to strike with a heavier 
 incidence, just as a falling body acquires momentum and strikes the 
 harder the farther it has fallen. But still worse, it tends to establish a 
 relation between the government and the individual which ought never 
 to exist, and which leads him to rely upon the government to do those 
 things which he should do for himself. The debate upon the appropria- 
 tion for the geological survey well illustrates this tendency. When once 
 an executive bureau has been established it is the well-settled rule for it, 
 not merely to "grow up with the country," but to expand with far greater 
 rapidity than the country's growth. In reaching out for an enlarged 
 jurisdiction it not infrequently duplicates the work already performed 
 by some other bureau. If a special appropriation is granted it for a 
 temporary work, the temporary appropriation is apt to grow into a fixed 
 or an increasing annual charge upon the Treasury. The splendid propor- 
 tions to which the appropriations for the geological survey have grown 
 showed that that excellent bureau was no exception to this rule. A few 
 years ago a special work of testing such substances as fuels and building 
 materials was put in the charge of this bureau. This special work was 
 established in connection with the St. Louis Exposition, which, of course, 
 has passed into history. But it was proposed on an appropriation bill 
 at the" last session to continue this work, which was not the testing of 
 materials and fuels upon the public domain, but of materials and fuels 
 belonging to private individuals. It proposed to have the government do 
 something at its own expense which the individual had in times past 
 done for himself and done very successfully. But from the debase one 
 would perceive the greatly superior way in which a private work could 
 be performed by men holding an office under the government, and 
 at its cost ; he would wonder that we had on the whole made some prog- 
 ress upon individual initiative, and that the telephone, the telegraph, 
 and the other marvels of invention had not first been brought to light 
 by men in the classified service or wearing a federal uniform; and 
 listening to the debate, he would have marveled still more when he re- 
 called some government institution, the naval observatory for instance, 
 
LEGISLATIVE PROBLEMS 479 
 
 with its wonderful equipment of telescopes and other instruments, its 
 large and talented staff paid by the government to explore the heavens, 
 and its magnificent appropriation, and remembered that omitting 
 one rare man its discoveries would not compare in importance with 
 those of some half-starved college professor in charge of a meagre and 
 poorly equipped observatory upon some New England hillside. A 
 noteworthy feature of the incident was that the appropriation was favored 
 by conspicuous members of the party claiming as its own the time- 
 honored creed that the government which governs best governs least. 
 
 I have referred to the efficiency of the present Congress in the expendi- 
 ture of public money. The total appropriations of the session amounted 
 to $880,000,000, and if the appropriations for the Panama Canal and 
 on account of the public debt are deducted, there will still remain nearly 
 $800,000,000, as the cost of running all the departments of government 
 for a single year, including the post office. It may perhaps be urged 
 that appropriations amounting in all to $35,000,000, to cover deficiencies 
 in previous years, should also be deducted; but deficiency has become 
 a regular feature of our budget, and, if we may judge from the precedents, 
 Congress at a future time will be called upon to provide for the defici- 
 encies of the current fiscal year. This total of $800,000,000 of annual 
 expenditure is about $300,000,000 greater than the corresponding ex- 
 penditures for the first fiscal year of the McKinley administration. This 
 astounding increase of about sixty per cent in the period of nine years 
 demands some scrutiny and explanation. 
 
 An analysis of the appropriations will show that much the larger part 
 of the entire increase is due to our vastly greater expenditures for military 
 purposes. That our appropriations for these purposes might be some- 
 what lessened with safety is doubtless true, but the greater part of the 
 increase is the necessary consequence of the policy of empire and glory 
 upon which we entered at the conclusion of the Spanish War. That 
 policy affected the United States no more profoundly in the principles 
 of its government than in its military problem. In 1898 a great ocean 
 separated our territory from every nation that might make itself formid- 
 able to us in war. If prior to that year Japan, for instance, had desired 
 to attack us she would have been compelled to bring her war ships, with 
 their limited steaming radius, and her armies, across the Pacific, and to 
 fight *s upon the American side of that sea a task she could not hope 
 successfully to perform. And the hopelessness of the undertaking would 
 have made it practically certain that she would never attempt it. But 
 to-day, if she determined to attack us, all she would need to do would be 
 to seize some little island of ours lying at her own doors, and we should 
 be compelled to cross the Pacific to give her battle; for as a practical 
 question, I think no one doubts that the United States in the present 
 temper of its people would defend the least of its possessions from forcible 
 capture. In other words, our "world power" statesmen at a stroke of 
 
480 AMERICAN FEDERAL GOVERNMENT 
 
 the pen converted this superb ocean rampart into a rampart for a pos- 
 sible foe, which it would be necessary for us to cross for the purposes of 
 defending our own territory. Since then we have rendered ourselves so 
 vulnerable to attack, it would scarcely be the part of wisdom to rely 
 entirely upon the pacific intentions of other nations and permit an abject 
 military weakness to appeal too strongly to their warlike ambition. 
 
 A further scrutiny of the appropriations will also bring to light the 
 fact that there has been a very considerable increase in the cost of running 
 the machinery of civil government, made necessarily large by the steady 
 encroachment of the national government. The plea that our national 
 expenditure on the basis of population is less than that of some of the 
 other great powers contains an obvious fallacy. It does not take into 
 the account the federated character of our system. Our state and muni- 
 cipal governments support the weight of public education, of construct- 
 ing and maintaining roads, furnishing protection against fire, providing 
 the courts which decide the great mass of controversies, and maintaining 
 the internal peace and order. The people of Massachusetts, for instance, 
 tax themselves each year about $25 per capita in order to carry out these 
 great purposes of government which are partly or wholly performed by 
 the more centralized governments of foreign nations. When all our 
 governmental expenditures are taken into account there is not more than 
 one great foreign power, if, indeed, there is a single one, that can vie with 
 us in amount of taxation. 
 
 Undoubtedly the most important enactment of the session, judged by 
 the effort expended to secure its passage, and by that feature of the legis- 
 lation from which it took its name, was the Railroad Rate Bill. 1 No 
 subject in our recent politics has been talked about more vaguely nor 
 been less understood than the precise form of the railroad question in- 
 volved in the bill. It would not be an exaggeration to say that public 
 opinion, the argument upon the subject in the first presidential message, 
 and the body of the debate, were directed to a point which was absolutely 
 unrelated to the controverted principle of the bill. Every feature of the 
 legislation which might tend to prevent or punish discrimination by 
 railroads could have been passed without debate and by unanimous 
 consent ; but when government rate-making was put forth as a cure for 
 discrimination there was presented an economic non-sequitur, so pal- 
 pable as not to stand the test of a moment's serious thought. %. 
 
 To understand the situation more clearly, and to discover how far, 
 if at all, the rate-making provision of the bill responded to any evil 
 related to it and to any well-developed public opinion, it will be neces- 
 sary to revert to the session before the last, when the subject first en- 
 gaged the attention of Congress. In his annual message in December, 
 1904, the President dealt at length with the evils of discrimination and 
 the giving of rebates by railroads, and concluded by proposing as a 
 
 1 Mr. McCall was one of the few Congressmen who voted against this bill. 
 
LEGISLATIVE PROBLEMS 481 
 
 remedy that authority be conferred upon the interstate commission, 
 when a given rate was complained of, to establish a new rate which 
 should have effect immediately and stand until set aside by the courts. 
 There was undoubtedly a strong public sentiment at that time against 
 railroad discrimination, but such sentiment as existed in favor of giving 
 the commission authority to fix rates was confined to the commission 
 itself or to isolated utterances of a few individuals. Certainly, if one 
 looks for the manifestation of a public opinion in favor of government 
 rate-making prior to the last presidential election, in the important news- 
 papers, the platforms of the great parties, or the utterances of their 
 candidates, he will look in vain. 
 
 It was pointed out very early in the debate that followed the introduc- 
 tion of a rate bill in the preceding congress, that there was no logical 
 relation between the fixing of rates by the government and the giving 
 of rebates or secret rates by the railroads. If a governmental agency 
 should set aside a rate established by a railroad and substitute another 
 for it, the railroad could as easily give a secret rebate from the new rate 
 as from the one that had been set aside. The making of rates by the 
 commission would do no more to prevent rebates, as was said by Mr. 
 Ack worth, a leading British authority, than would the reenactment of 
 Magna Charta. Senator Dolliver, the leading Republican supporter, 
 in the Senate, of government rate-making, formally admitted during the 
 debate at the last session that it would not prove a remedy for rebates. 
 
 But the recommendation had been made by a Republican president, 
 and it at once became party policy; it was enthusiastically supported 
 by the Democratic party, with the modern principles of which it was 
 precisely in line ; every known instance of railroad favoritism, the graft- 
 ing of insurance officials, the magnitude of swollen fortunes, almost every 
 financial and economic evil of the times very naturally served the pur- 
 poses of argument in favor of a measure the inception of which had vio- 
 lated every logical rule, and government rate-making finally passed with 
 only seven dissenting votes in the House and three in the Senate. 
 
 The debate upon the bill will rank among the notable congressional 
 debates of the generation. In the House, where the rules and the practice 
 make it easy to limit discussion, it was much more brief than in the Senate 
 and for that reason perhaps the speeches were devoted much less to 
 detail and dealt more broadly and comprehensively with the important 
 features and the vital policy of the bill. If the volume of the debate in 
 the House is reduced one half by rejecting the glowing anti-corporation 
 sentiments which might perhaps be expected in a body whose members 
 were about to come before the people for reelection, there will remain a 
 thorough and informing discussion of the bill. 
 
 Most of the speeches in the Senate ignored the broad economic and 
 constitutional grounds of debate, and there was an imposing display of 
 technical but rather irrelevant learning. This scrutiny of detail resulted 
 
 3' 
 
482 AMERICAN FEDERAL GOVERNMENT 
 
 from the rules of the Senate, which secure the unlimited right of amend- 
 ment and debate. But with the exception of the court-review amend- 
 ment and that prohibiting common carriers from engaging in other forms 
 of business, the contributions of the Senate to the bill were not of the first 
 importance. Great legal skill was shown in debating whether the bill 
 would be constitutional if it did not contain an express and broad provi- 
 sion for a court review, as if the courts would not protect all constitu- 
 tional rights without the express direction of Congress. Whether the 
 bill attempted to delegate legislative power was a much more robust 
 constitutional point. This point received little attention in the Senate 
 outside of the masterly speech of Senator Foraker, which in its luminous 
 treatment of the broad legal and constitutional questions involved was 
 the incomparable speech of the senatorial debate. Admitting for the 
 purpose of argument that the making of railroad rates was within the 
 power of Congress to regulate commerce between the states, Congress 
 itself would have to exercise the power and could not delegate it to any 
 other body. But it was asserted by the friends of the bill that in giving 
 the commission authority to fix only such rates as were just and reason- 
 able, Congress established the rule of rates, and that nothing was left 
 for the commission but to perform a merely ministerial act without the 
 exercise of any legislative discretion. This would seem equivalent to 
 asserting that Congress itself does not exercise legislative discretion unless 
 in such acts as are unjust and unreasonable. If Congress can confer 
 the power to fix just and reasonable railroad rates upon a commission, 
 then it can in the same way confer any of its other great powers, and 
 commissions may be created to establish reasonable tariff rates or to 
 declare just wars, or to make just and reasonable regulations upon any 
 federal subject. The principle of the bill would thus seem to involve 
 nothing less than congressional abdication. 
 
 The opponents of the bill contended that the law should require all 
 rates to be just and reasonable, and that under such a provision the indi- 
 vidual could always secure redress in the courts for any extortion by the 
 railroad. Judging by the readiness of juries to award round verdicts 
 against railroads for damages to persons and property, it cannot be 
 doubted that the railroads would maintain a system of unjust or pref- 
 erential rates at the peril of bankruptcy if the individual should proceed 
 in the courts, which are the forum where rights are made practical, and 
 a government by law is secured. If the commission were endowed with 
 greater power to initiate proceedings where upon investigation it believed 
 a rate to be unjust, the practical remedy against excessive charges would 
 be more effective than in the Hepburn bill. The power of testing every 
 rate exercised by judges scattered over the whole country would in no 
 degree tend to centralization, but the fixing of rates by a central commis- 
 sion at Washington, whose members were appointed by the President, 
 and were subject to removal by him at any time, would mean centraliza- 
 
LEGISLATIVE PROBLEMS 483 
 
 tion of the worst character. For what greater power could an ambitious 
 president, seeking reelection, ask than the power, by his coercive au- 
 thority over the commission, to fix every freight rate between the two 
 oceans, and to discriminate in favor of a community whose vote he was 
 attempting to secure as against a community which was hopelessly 
 antagonistic. 
 
 Fifteen years ago Chief Justice Cooley, then the chairman of the com- 
 mission, declared that the task of fixing freight rates for the whole 
 country would be a superhuman one for the commission to perform. 
 To-day the task would be twice as great, owing to the expansion of our 
 railroad system. Instead, then, of the flexible American system of ad- 
 justing rates to the demands of business and the competition of railroads 
 and localities, any material interference by the commission in the making 
 of rates would be likely to give us the unyielding and wooden schedules 
 characteristic of bureau rate-making abroad; and instead of the low 
 long-distance rate which has enabled the most remote parts of our 
 country to trade with one another and has been responsible for the 
 settlement of the interior portions of the Union, we should need to pre- 
 pare ourselves, if foreign experience is of any weight, to witness a rate 
 based upon distance which would be fatal to the long-distance traffic. 
 An important practical safeguard against the chief evils of commission 
 rate-making so far as the railroads are concerned will be found in the 
 fact that their task, as Chief Justice Cooley said, is superhuman, and 
 therefore impossible of performance, and in the sweeping provision for 
 a court review. 
 
 So far as the prevention of discrimination is involved it is noteworthy 
 that there is nothing in the bill which approaches in its definite and 
 sweeping terms the Elkins Law, which had been upon the statute books 
 nearly two years before the rate-making programme was proposed, and 
 which had never been seriously enforced. There was nothing of mystery 
 about this statute. It required no profound legal knowledge, but only 
 the ability to read, to discover in its provisions the most comprehensive 
 remedy for rebates, both against the railroad which gave and the shipper 
 who received them. The effective proceedings against discrimination 
 instituted under the Elkins Act during the last six months, which have 
 almost uniformly been upheld by the courts, make it certain that if that 
 act had been enforced prior to the President's first recommendation for 
 commission rate-making, the recommendation, if made at all, would 
 have been based upon some other ground than the prevention of rebates 
 and discrimination. And as there was at that time no general complaint 
 that railroad charges were excessive, the recommendation would probably 
 never have been made at all. 
 
 The work of the Congress is, of course, not yet complete, although it 
 is not probable that important legislation of a general character will be 
 secured at the short session. The Immigration bill, which has passed 
 
484 AMERICAN FEDERAL GOVERNMENT 
 
 both houses in different forms and is now in conference, may be enacted. 
 The situation in Cuba may demand legislative action, which it is to be 
 hoped will not destroy the independence of the little republic, in line 
 with those flamboyant speeches which were made for Philippine annexa- 
 tion, and are now being repeated. But almost the whole time of the ten 
 weeks' session will be required for the passage of the great annual supply 
 bills. 
 
 I have referred to those features of the record of the session which 
 seemed to me of the chief importance. It remains for me to suggest an 
 obvious question of a general character, and not related to any particular 
 measure. Did the course of legislation show that enlarged participation 
 of the executive in the work of Congress, the tendency towards which 
 had been witnessed in recent years ? To this question I imagine only a 
 single answer will be given. The influence of the executive upon legisla- 
 tion is to-day by no means confined to those common constitutional 
 methods of expression, the veto and the message recommending legisla- 
 tion, but it is chiefly shown by an influence exerted upon the individual 
 members, upon the legislative machinery of the two houses, and even by 
 special messages upon amendments proposed to particular bills, which 
 in effect amount to written speeches upon the mere details and phrase- 
 ology of measures, and are read in that House in which the debate is pro- 
 ceeding. There are concentrated in the person of the President the great 
 authority of the party leadership and the far greater practical authority 
 which results from the vast powers of his office, of which by no means the 
 least important, and certainly the most corrupting, is the control of the 
 patronage. Unless there is a scrupulous and restrained exercise of these 
 enormous powers, the presidential office becomes a formidable engine 
 for throwing the whole mechanism of the Constitution out of gear. The 
 practical absorption of the great prerogatives of Congress has gone as 
 far as it can be permitted to go with safety to our system of government. 
 
 After all the laudations upon mere rapidity of motion without regard 
 to direction, and the supreme importance of "doing things," with dis- 
 crimination as to the character of the "things" a secondary matter, 
 something still remains to be said in favor of parliamentary institutions, 
 which in Great Britain and in this country have furnished the world 
 with the best models of free government. One representative will be 
 slow, over-cautious, and never disposed to action; another will be all 
 impulse, and in reaching his conclusions will scorn to indulge in the 
 process of thought ; but in a great body of representatives the influence 
 of extremes will be largely nullified and a comparatively safe average 
 will be struck. But where you have a government of one man, it is apt 
 to be a government by fits and starts, depending rather upon individual 
 traits than upon the law. If your ruler is ultra-conservative, your govern- 
 ment may never move at all. If he is erratic and emotional, ready to 
 
LEGISLATIVE PROBLEMS 485 
 
 settle over night the problems that have vexed the ages, you will have a 
 government of instability, and the great ship will be sailed, not by the 
 charts and the settled currents of opinion, but like a cat-rigged boat, 
 trimmed to catch every whiff of wind that may at the moment be blow- 
 ing. At a time when Parliamentary institutions are becoming more 
 powerful in Europe, and our people are looking with extreme sympathy 
 upon the attempt in Russia to establish a duma, it is significant that we 
 should be regarding with silence and apparent unconcern a movement in 
 the direction of the practical obliteration of the Congress of the United 
 States, and that we should apparently be turning our faces away from 
 those nations with which we are most closely allied in civilization and 
 ranging ourselves by the side of those South American countries where 
 congresses and even courts employ themselves in registering executive 
 decrees. And although it must be confessed that executive government 
 is likely to afford a loftier stage for the exhibition of those arts with which 
 the rapidly increasing breed of political acrobats and sword-swallowers 
 may thrill the galleries of the country, the American people are not yet 
 ready consciously to adopt such a system however entertaining it might 
 be. The clear and general understanding of the danger will provide a 
 certain remedy. 
 
 FEDERAL CONTROL OF CORPORATIONS 
 
 [When the government of the United States was founded, business was 
 carried on almost entirely by individuals acting singly or in partnerships. 
 The government then dealt practically only with natural persons, corporate 
 action being rather the exception. In our own age important business matters 
 are carried on almost entirely through corporations. The relation of the gov- 
 ernment to these artificial creations of the law, which have nevertheless de- 
 veloped an exceedingly strong vitality, is one of the most important problems 
 of the day. This is true especially since corporations have through the process 
 of concentration extended their field of activity over the entire national territory, 
 so that the states can not effectively control their action. The problems thus 
 arising are dealt with in the following selections.] 
 
 FROM PRESIDENT ROOSEVELT'S MESSAGE OF DECEMBER, 1906 
 
 THE present Congress has taken long strides in the direction of securing 
 proper supervision and control by the National Government over cor- 
 porations engaged in interstate business and the enormous majority 
 of corporations of any size are engaged in interstate business. The pas- 
 sage of the railway rate bill, and only to a less degree the passage of the 
 pure food bill, and the provision for increasing and rendering more 
 
4 86 AMERICAN FEDERAL GOVERNMENT 
 
 effective national control over the beef-packing industry, mark an im- 
 portant advance in the proper direction. In the short session it will 
 perhaps be difficult to do much further along this line; and it may be 
 best to wait until the laws have been in operation for a number of months 
 before endeavoring to increase their scope, because only operation will 
 show with exactness their merits and their shortcomings and thus give 
 opportunity to define what further remedial legislation is needed. Yet 
 in my judgment it will in the end be advisable in connection with the 
 packing-house inspection law to provide for putting a date on the label 
 and for charging the cost of inspection to the packers. All these laws 
 have already justified their enactment. The interstate commerce law, 
 for instance, has rather amusingly falsified the predictions, both of those 
 who asserted that it would ruin the railroads and of those who asserted 
 that it did not go far enough and would accomplish nothing. During 
 the last five months the railroads have shown increased earnings and 
 some of them unusual dividends ; while during the same period the mere 
 taking effect of the law has produced an unprecedented, a hitherto un- 
 heard-of, number of voluntary reductions in freights and fares by the 
 railroads. Since the founding of the Commission there has never been 
 a time of equal length in which anything like so many reduced tariffs 
 have been put into effect. On August 27, for instance, two days 
 before the new law went into effect, the Commission received notices 
 of over five thousand separate tariffs which represented reductions from 
 previous rates. 
 
 It must not be supposed, however, that with the passage of these laws 
 it will be possible to stop progress along the line of increasing the power 
 of the National Government over the use of capital in interstate com- 
 merce. For example, there will ultimately be need of enlarging the 
 powers of the Interstate Commerce Commission along several different 
 lines, so as to give it a larger and more efficient control over the railroads. 
 
 It can not too often be repeated that experience has conclusively 
 shown the impossibility of securing by the actions of nearly half a hun- 
 dred different State legislatures anything but ineffective chaos in the way 
 of dealing with the great corporations which do not operate exclusively 
 within the limits of any one State. In some method, whether by a na- 
 tional license law or in other fashion, we must exercise, and that at an 
 early date, a far more complete control than at present over these great 
 corporations a control that will among other things prevent the evils 
 of excessive overcapitalization, and that will compel the disclosure by 
 each big corporation of its stockholders and of its properties and business, 
 whether owned directly or through subsidiary or affiliated corporations. 
 This will tend to put a stop to the securing of inordinate profits by favored 
 individuals at the expense whether of the general public, the stockholders, 
 or the wage workers. Our effort should be not so much to prevent con- 
 solidation as such, but so to supervise and control it as to see that it 
 
LEGISLATIVE PROBLEMS 487 
 
 results in no harm to the people. The reactionary or ultraconservative 
 apologists for the misuse of wealth assail the effort to secure such control 
 as a step toward socialism. As a matter of fact it is these reactionaries 
 and ultraconservatives who are themselves most potent in increasing 
 socialistic feeling. One of the most efficient methods of averting the 
 consequences of a dangerous agitation, which is 80 per cent wrong, is 
 to remedy the 20 per cent of evil as to which the agitation is well founded. 
 The best way to avert the very undesirable move for the governmental 
 ownership of railways is to secure by the Government on behalf of the 
 people as a whole such adequate control and regulation of the great inter- 
 state common carriers as will do away with the evils which give rise to 
 agitations against them. So the proper antidote to the dangerous and 
 wicked agitation against the men of wealth as such is to secure by proper 
 legislation and executive action the abolition of the grave abuses which 
 actually do obtain in connection with the business use of wealth under 
 our present system or rather no system of failure to exercise any 
 adequate control at all. Some persons speak as if the exercise of such 
 governmental control would do away with the freedom of individual 
 initiative and dwarf individual effort. This is not a fact. It would be a 
 veritable calamity to fail to put a premium upon individual initiative, 
 individual capacity and effort ; upon the energy, character, and foresight 
 which it is so important to encourage in the individual. But as a matter 
 of fact the deadening and degrading effect of pure socialism, and especi- 
 ally of its extreme form communism, and the destruction of individual 
 character which they would bring about, are in part achieved by the 
 wholly unregulated competition which results in a single individual or 
 corporation rising at the expense of all others until his or its rise effectu- 
 ally checks all competition and reduces former competitors to a position 
 of utter inferiority and subordination. 
 
 In enacting and enforcing such legislation as this Congress already 
 has to its credit, we are working on a coherent plan, with the steady 
 endeavor to secure the needed reform by the joint action of the moderate 
 men, the plain men who do not wish anything hysterical or dangerous, 
 but who do intend to deal in resolute common-sense fashion with the real 
 and great evils of the present system. The reactionaries and the violent 
 extremists show symptoms of joining hands against us. Both assert, 
 for instance, that if logical, we should go to government ownership of 
 railroads and the like ; the reactionaries, because on such an issue they 
 think the people would stand with them, while the extremists care rather 
 to preach discontent and agitation than to achieve solid results. As a 
 matter of fact, our position is as remote from that of the Bourbon reaction- 
 ary as from that of the impracticable or sinister visionary. We hold that 
 the Government should not conduct the business of the nation, but that 
 it should exercise such supervision as will insure its being conducted in 
 the interest of the nation. Our aim is, so far as may be, to secure, for all 
 
4 88 AMERICAN FEDERAL GOVERNMENT 
 
 decent, hard working men, equality of opportunity and equality of 
 burden. 
 
 The actual working of our laws has shown that the effort to prohibit 
 all combination, good or bad, is noxious where it is not ineffective. Com- 
 bination of capital like combination of labor is a necessary element of 
 our present industrial system. It is not possible completely to prevent 
 it; and if it were possible, such complete prevention would do damage 
 to the body politic. What we need is not vainly to try to prevent all 
 combination, but to secure such rigorous and adequate control and sup- 
 ervision of the combinations as to prevent their injuring the public, or 
 existing in such form as inevitably to threaten injury for the mere fact 
 that a combination has secured practically complete control of a neces- 
 sary of life would under any circumstances show that such combination 
 was to be presumed to be adverse to the public interest. It is unfor- 
 tunate that our present laws should forbid all combinations, instead of 
 sharply discriminating between those combinations which do good and 
 those combinations which do evil. Rebates, for instance, are as often 
 due to the pressure of big shippers (as was shown in the investigation of 
 the Standard Oil Company and as has been shown since by the investiga- 
 tion of the tobacco and sugar trusts) as to the initiative of big railroads. 
 Often railroads would like to combine for the purpose of preventing a 
 big shipper from maintaining improper advantages at the expense of 
 small shippers and of the general public. Such a combination, instead 
 of being forbidden by law, should be favored. In other words, it should 
 be permitted to railroads to make agreements, provided these agree- 
 ments were sanctioned by the Interstate Commerce Commission and 
 were published. With these two conditions complied with it is impossible 
 to see what harm such a combination could do to the public at large. 
 It is a public evil to have on the statute books a law incapable of full 
 enforcement because both judges and juries realize that its full enforce- 
 ment would destroy the business of the country ; for the result is to make 
 decent railroad men violators of the law against their will, and to put a 
 premium on the behavior of the wilful wrongdoers. Such a result in 
 turn tends to throw the decent man and the wilful wrongdoer into close 
 association, and in the end to drag down the former to the latter's level ; 
 for the man who becomes a lawbreaker in one way unhappily tends to 
 lose all respect for law and to be willing to break it in many ways. No 
 more scathing condemnation could be visited upon a law than is con- 
 tained in the words of the Interstate Commerce Commission when, in 
 commenting upon the fact that the numerous joint traffic associations 
 do technically violate the law, they say: "The decision of the United 
 States Supreme Court in the Trans-Missouri case and the Joint Traffic 
 Association case has produced no practical effect upon the railway 
 operations of the country. Such associations, in fact, exist now as they 
 did before these decisions, and with the same general effect. In justice 
 
LEGISLATIVE PROBLEMS 489 
 
 to all parties, we ought probably to add that it is difficult to see how our 
 interstate railway could be operated with due regard to the interest of 
 the shipper and the railway without concerted action of the kind afforded 
 through these associations." 
 
 This means that the law as construed by the Supreme Court is such 
 that the business of the country can not be conducted without breaking 
 it. I recommend that you give careful and early consideration to this 
 subject, and, if you find the opinion of the Interstate Commerce Com- 
 mission justified, that you amend the law so as to obviate the evil 
 disclosed. 
 
 FROM PRESIDENT ROOSEVELT'S MESSAGE OF DECEMBER, 1907 
 
 "In order to insure a healthy social and industrial life, every big corporation 
 should be held responsible by, and be accountable to, some sovereign strong 
 enough to control its conduct. I am in no sense hostile to corporations. This 
 is an age of combination, and any effort to prevent all combination will be not 
 only useless, but in the end vicious, because of the contempt for law which the 
 failure to enforce law inevitably produces. We should, moreover, recognize 
 in cordial and ample fashion the immense good effected by corporate agencies 
 in a country such as ours, and the wealth of intellect, energy, and fidelity de- 
 voted to their service, and therefore normally to the service of the public, by 
 their officers and directors. The corporation has come to stay, just as the trade 
 union has come to stay. Each can do and has done great good. Each should 
 be favored so long as it does good. But each should be sharply checked where 
 it acts against law and justice. 
 
 "... The makers of our National Constitution provided especially that 
 the regulation of interstate commerce should come within the sphere of the 
 General Government. The arguments in favor of their taking this stand were 
 even then overwhelming. But they are far stronger to-day, in view of the 
 enormous development of great business agencies, usually corporate in form. 
 Experience has shown conclusively that it is useless to try to get any adequate 
 regulation and supervision of these great corporations by State action. Such 
 regulation and supervision can only be effectively exercised by a sovereign 
 whose jurisdiction is coextensive with the field of work of the corporations 
 that is, by the National Government. I believe that this regulation and super- 
 vision can be obtained by the enactment of law by the Congress. . . . Our 
 steady aim should be by legislation, cautiously and carefully undertaken, but 
 resolutely persevered in, to assert the sovereignty of the National Government 
 by affirmative action. 
 
 "This is only in form an innovation. In substance it is merely a restoration ; 
 for from the earliest time such regulation of industrial activities has been 
 recognized in the action of the lawmaking bodies ; and all that I propose is to 
 meet the changed conditions in such manner as will prevent the Commonwealth 
 abdicating the power it has always possessed, not only in this country, but also 
 in England before and since this country became a separate nation. 
 
 "It has been a misfortune that the National laws on this subject have 
 
490 AMERICAN FEDERAL GOVERNMENT 
 
 hitherto been of a negative or prohibitive rather than an affirmative kind, and 
 still more that they have in part sought to prohibit what could not be effectively 
 prohibited, and have in part in their prohibitions confounded what should be 
 allowed and what should not be allowed. It is generally useless to try to 
 prohibit all restraint on competition, whether this restraint be reasonable or 
 unreasonable ; and where it is not useless it is generally hurtful. . . . The 
 successful prosecution of one device to evade the law immediately develops 
 another device to accomplish the same purpose. What is needed is not sweeping 
 prohibition of every arrangement, good or bad, which may tend to restrict 
 competition, but such adequate supervision and regulation as will prevent any 
 restriction of competition from being to the detriment of the public, as well as 
 such supervision and regulation as will prevent other abuses in no way con- 
 nected with restriction of competition." 
 
 I have called your attention in these quotations to what I have already 
 said because I am satisfied that it is the duty of the National Govern- 
 ment to embody in action the principles thus expressed. 
 
 No small part of the trouble that we have conies from carrying to an 
 extreme the national virtue of self-reliance, of independence in initiative 
 and action. It is wise to conserve this virtue and to provide for its 
 fullest exercise, compatible with seeing that liberty does not become a 
 liberty to wrong others. Unfortunately, this is the kind of liberty that 
 the lack of all effective regulation inevitably breeds. The founders of 
 the Constitution provided that the National Government should have 
 complete and sole control of interstate commerce. There was then prac- 
 tically no interstate business save such as was conducted by water, and 
 this the National Government at once proceeded to regulate in thorough- 
 going and effective fashion. Conditions have now so wholly changed 
 that the interstate commerce by water is insignificant compared with the 
 amount that goes by land, and almost all big business concerns are now 
 engaged in interstate commerce. As a result, it can be but partially and 
 imperfectly controlled or regulated by the action of any one of the sev- 
 eral States; such action inevitably tending to be either too drastic or 
 else too lax, and in either case ineffective for the purposes of justice. 
 Only the National Government can in throughgoing fashion exercise 
 the needed control. This does not mean that there should be any exten- 
 sion of Federal authority, for such authority already exists under the 
 Constitution in amplest and most far-reaching form; but it does mean 
 that there should be an extension of Federal activity. This is not 
 advocating centralization. It is merely looking facts in the face, and 
 realizing that centralization in business has already come and can not 
 be avoided or undone, and that the public at large can only protect itself 
 from certain evil effects of this business centralization by providing 
 better methods for the exercise of control through the authority already 
 centralized in the National Government by the Constitution itself. There 
 must be no halt in the healthy constructive course of action which this 
 
LEGISLATIVE PROBLEMS 491 
 
 Nation has elected to pursue, and has steadily pursued, during the 
 last six years, as shown both in the legislation of the Congress and the 
 administration of the law by the Department of Justice. The most 
 vital need is in connection with the railroads. As to these, in my judg- 
 ment there should now be either a national incorporation act or a law 
 licensing railway companies to engage in interstate commerce upon cer- 
 tain conditions. The law should be so framed as to give to the Inter- 
 state Commerce Commission power to pass upon the future issue of 
 securities, while ample means should be provided to enable the Com- 
 mission, whenever in its judgment it is necessary, to make a physical 
 valuation of any railroad. As I stated in my message to the Congress a 
 year ago, railroads should be given power to enter into agreements, sub- 
 ject to these agreements being made public in minute detail and to the con- 
 sent of the Interstate Commerce Commission being first obtained. Until 
 the National Government assumes proper control of interstate commerce, 
 in the exercise of the authority it already possesses, it will be impossible 
 either to give to or to get from the railroads full justice. The railroads 
 and all other great corporations will do well to recognize that this control 
 must come; the only question is as to what governmental body can 
 most wisely exercise it. The courts will determine the limits within 
 which the Federal authority can exercise it, and there will still remain 
 ample work within each State for the railway commission of that State ; 
 and the National Interstate Commerce Commission will work in har- 
 mony with the several State commissions, each within its own province, 
 to achieve the desired end. 
 
 Moreover, in my judgment there should be additional legislation look- 
 ing to the proper control of the great business concerns engaged in inter- 
 state business, this control to be exercised for their own benefit and 
 prosperity no less than for the protection of investors and of the general 
 public. As I have repeatedly said in Messages to the Congress and else- 
 where, experience has definitely shown not merely the unwisdom but 
 the futility of endeavoring to put a stop to all business combinations. 
 Modern industrial conditions are such that combination is not only 
 necessary but inevitable. It is so in the world of business just as it is so 
 in the world of labor, and it is as idle to desire to put an end to all cor- 
 porations, to all big combinations of capital, as to desire to put an end 
 to combinations of labor. Corporation and labor union alike have come 
 to stay. Each, if properly managed, is a source of good and not evil. 
 Whenever in either there is evil, it should be promptly held to account ; 
 but it should receive hearty encouragement so long as it is properly 
 managed. It is profoundly immoral to put or keep on the statute books 
 a law, nominally in the interest of public morality, that really puts a 
 premium upon public immorality, by undertaking to forbid honest men 
 from doing what must be done under modern business conditions, so 
 that the law itself provides that its own infraction must be the condition 
 
492 AMERICAN FEDERAL GOVERNMENT 
 
 precedent upon business success. To aim at the accomplishment of too 
 much usually means the accomplishment of too little, and often the 
 doing of positive damage. 
 
 As I have elsewhere said: 
 
 "All this is substantially what I have said over and over again. Surely it 
 ought not to be necessary to say that it in no shape or way represents any 
 hostility to corporations as such. On the contrary, it means a frank recognition 
 of the fact that combinations of capital, like combinations of labor, are a natu- 
 ral result of modern conditions and of our National development. As far as 
 in my ability lies my endeavor is and will be to prevent abuse of power by either 
 and to favor both so long as they do well. The aim of the National Govern- 
 ment is quite as much to favor and protect honest corporations, honest business 
 men of wealth, as to bring to justice those individuals and corporations repre- 
 senting dishonest methods. Most certainly there will be no relaxation by the 
 Government authorities in the effort to get at any great railroad wrecker 
 any man who by clever swindling devices robs investors, oppresses wage- 
 workers, and does injustice to the general public. But any such move as this 
 is in the interest of honest railway operators, of honest corporations, and of 
 those who, when they invest their small savings in stocks and bonds, wish to be 
 assured that these will represent money honestly expended for legitimate busi- 
 ness purposes. To confer upon the National Government the power for which 
 I ask would be a check upon overcapitalization and upon the clever gamblers 
 who benefit by overcapitalization. But it alone would mean an increase in the 
 value, an increase in the safety of the stocks and bonds of law-abiding, honestly 
 managed railroads, and would render it far easier to market their securities. 
 I believe in proper publicity. There has been complaint of some of the in- 
 vestigations recently carried on, but those who complain should put the blame 
 where it belongs upon the misdeeds which are done in darkness and not 
 upon the investigations which brought them to light. The Administration is 
 responsible for turning on the light, but it 'is not responsible for what the light 
 showed. I ask for full power to be given the Federal Government, because no 
 single State can by legislation effectually cope with these powerful corporations 
 engaged in interstate commerce, and, while doing them full justice, exact from 
 them in return full justice to others. The conditions of railroad activity, the 
 conditions of our immense interstate commerce, are such as to make the Cen- 
 tral Government alone competent to exercise full supervision and control. 
 
 "The grave abuses in individual cases of railroad management in the past 
 represent wrongs not merely to the general public, but, above all, wrongs to 
 fair-dealing and honest corporations and men of wealth, because they excite a 
 popular anger and distrust which from the very nature of the case tends to in- 
 clude in the sweep of its resentment good and bad alike. From the standpoint 
 of the public I cannot too earnestly say that as soon as the natural and proper 
 resentment aroused by these abuses becomes indiscriminate and unthinking, 
 it also becomes not merely unwise and unfair, but calculated to defeat the very 
 ends which those feeling it have in view. There has been plenty of dishonest 
 work by corporations in the past. There will not be the slightest let-up in the 
 effort to hunt down and punish every dishonest man. But the bulk of our 
 business is honestly done. In the natural indignation the people feel over the 
 
LEGISLATIVE PROBLEMS 493 
 
 dishonesty, it is all essential that they should not lose their heads and get drawn 
 into an indiscriminate raid upon all corporations, all people of wealth, whether 
 they do well or ill. Out of any such wild movement good will not come, can not 
 come, and never has come. On the contrary, the surest way to invite reaction 
 is to follow the lead of either demagogue or visionary in a sweeping assault 
 upon property values and upon public confidence, which would work incalcul- 
 able damage in the business world and would produce such distrust of the agi- 
 tators that in the revulsion the distrust would extend to honest men who, in 
 sincere and sane fashion, are trying to remedy the evils." 
 
 The antitrust law should not be repealed ; but it should be made both 
 more efficient and more in harmony with actual conditions. It should 
 be so amended as to forbid only the kind of combination which does 
 harm to the general public, such amendment to be accompanied by, or 
 to be an incident of, a grant of supervisory power to the Government 
 over these big concerns engaged in interstate business. This should be 
 accompanied by provision for the compulsory publication of accounts 
 and the subjection of books and papers to the inspection of the Govern- 
 ment officials. A beginning has already been made for such supervi- 
 sion by the establishment of the Bureau of Corporations. 
 
 The antitrust law should not prohibit combinations that do no injus- 
 tice to the public, still less those the existence of which is on the whole 
 of benefit to the public. But even if this feature of the law were abol- 
 ished, there would remain as an equally objectionable feature the 
 difficulty and delay now incident to its enforcement. The Government 
 must now submit to irksome and repeated delay before obtaining a 
 final decision of the courts upon proceedings instituted and even a 
 favorable decree may mean an empty victory. Moreover, to attempt to 
 control these corporations by lawsuits means to impose upon both the 
 Department of Justice and the courts an impossible burden; it is not 
 feasible to carry on more than a limited number of such suits. Such a 
 law to be really effective must of course be administered by an executive 
 body, and not merely by means of lawsuits. The design should be to 
 prevent the abuses incident to the creation of unhealthy and improper 
 combinations, instead of waiting until they are in existence and then 
 attempting to destroy them by civil or criminal proceedings. 
 
 A combination should not be tolerated if it abuse the power acquired 
 by combination to the public detriment. No corporation or association 
 of any kind should be permitted to engage in foreign or interstate com- 
 merce that is formed for the purpose of, or whose operations create, a 
 monopoly or general control of the production sale, or distribution of 
 any one or more of the prime necessities of life or articles of general use 
 and necessity. Such combinations are against public policy; they vio- 
 late the common law ; the doors of the courts are closed to those who are 
 parties to them, and I believe the Congress can close the channels of 
 interstate commerce against them for its protection. The law should 
 
494 AMERICAN FEDERAL GOVERNMENT 
 
 make its prohibitions and permissions as clear and definite as possible, 
 leaving the least possible room for arbitrary action, or allegation of such 
 action, on the part of the Executive, or of divergent interpretations by 
 the courts. Among the points to be aimed at should be the prohibition 
 of unhealthy competition, such as by rendering service at an actual loss 
 for the purpose of crushing out competition, the prevention of inflation 
 of capital, and the prohibition of a corporation's making exclusive trade 
 with itself a condition of having any trade with itself. Reasonable 
 agreements between, or combinations of, corporations should be per- 
 mitted, provided they are first submitted to and approved by some 
 appropriate Government body. 
 
 The Congress has the power to charter corporations to engage in 
 interstate and foreign commerce, and a general law can be enacted 
 under the provisions of which existing corporations could take out Fed- 
 eral charters and new Federal corporations could be created. An essen- 
 tial provision of such a law should be a method of predetermining by 
 some Federal board or commission whether the applicant for a Federal 
 charter was an association or combination within the restrictions of the 
 Federal law. Provision should also be made for complete publicity in 
 all matters affecting the public and complete protection to the investing 
 public and the shareholders in the matter of issuing corporate securities. 
 If an incorporation law is not deemed advisable, a license act for big in- 
 terstate corporations might be enacted ; or a combination of the two might 
 be tried. The supervision established might be analogous to that now 
 exercised over national banks. At least, the antitrust act should be 
 supplemented by specific prohibitions of the methods which experience 
 has shown have been of most service in enabling monopolistic combina- 
 tions to crush out competition. The real owners of a corporation should 
 be compelled to do business in their own name. The right to hold 
 stock in other corporations should hereafter be denied to interstate cor- 
 porations, unless on approval by the proper Government officials, and a 
 prerequisite to such approval should be the listing with the Government 
 of all owners and stockholders, both by the corporation owning such 
 stock and by the corporation in which such stock is owned. 
 
 To confer upon the National Government, in connection with the 
 amendment I advocate in the antitrust law, power of supervision over 
 big business concerns engaged in interstate commerce, would benefit 
 them as it has benefited the national banks. In the recent business 
 crisis it is noteworthy that the institutions which failed were institu- 
 tions which were not under the supervision and control of the National 
 Government. Those which were under National control stood the test. 
 
 National control of the kind above advocated would be to the benefit 
 of every well-managed railway. From the standpoint of the public 
 there is need for additional tracks, additional terminals, and improve- 
 ments in the actual handling of the railroads, and all this as rapidly as 
 
LEGISLATIVE PROBLEMS 495 
 
 possible. Ample, safe, and speedy transportation facilities are even 
 more necessary than cheap transportation. Therefore, there is need 
 for the investment of money which will provide for all these things 
 while at the same time securing as far as is possible better wages and 
 shorter hours for their employees. Therefore, while there must be just 
 and reasonable regulation of rates, we should be the first to protest 
 against any arbitrary and unthinking movement to cut them down with- 
 out the fullest and most careful consideration of all interests concerned 
 and of the actual needs of the situation. Only a special body of men 
 acting for the National Government under authority conferred upon it 
 by the Congress is competent to pass judgment on such a matter. 
 
 Those who fear, from any reason, the extension of Federal activity 
 will do well to study the history not only of the national banking act, 
 but of the pure-food law, and notably the meat inspection law recently 
 enacted. The pure-food law was opposed so violently that its passage 
 was delayed for a decade; yet it has worked unmixed and immediate 
 good. The meat inspection law was even more violently assailed; and 
 the same men who now denounce the attitude of the National Govern- 
 ment in seeking to oversee and control the workings of interstate 
 common carriers and business concerns, then asserted that we were "dis- 
 crediting and ruining a great American industry." Two years have not 
 elapsed, and already it has become evident that the great benefit the law 
 confers upon the public is accompanied by an equal benefit to the repu- 
 table packing establishments. The latter are better off under the law 
 than they were without it. The benefit to interstate common carriers 
 and business concerns from the legislation I advocate would be equally 
 marked. 
 
 Incidentally, in the passage of the pure-food law the action of the 
 various State food and dairy commissioners showed in striking fashion 
 how much good for the whole people results from the hearty cooperation 
 of the Federal and State officials in securing a given reform. It is prima- 
 rily to the action of these State commissioners that we owe the enact- 
 ment of this law; for they aroused the people, first to demand the 
 enactment and enforcement of State laws on the subject, and then 
 the enactment of the Federal law, without which the State laws were 
 largely ineffective. There must be the closest cooperation between the 
 National and State governments in administering these laws. 
 
 PRESIDENT ROOSEVELT AND THE TRUSTS 1 
 BY S. J. MCLEAN 
 
 THE framers of the Constitution of the United States, fearing to place 
 wide powers and unlimited sovereignty in the hands of the Federal Gov- 
 1 The Quarterly Review, July, 1907. 
 
496 AMERICAN FEDERAL GOVERNMENT 
 
 ernment, specified the powers granted to the central authority, the 
 powers not so granted being reserved either to the States or to the people. 
 Under this arrangement the most important powers possessed by Con- 
 gress in regard to industry are conferred by the interstate commerce 
 clause, which empowers Congress "to regulate commerce with foreign 
 nations, and among the several States, and with the Indian tribes." 
 Supplementary authority is derived from the power to levy taxes, to 
 establish post offices and post-roads, and to coin money. The right 
 "to make all laws which shall be necessary and proper for carrying into 
 execution the foregoing powers " must also be read as indicating the 
 scope of the Federal jurisdiction. 
 
 The commanding position of the Supreme Court, which is the final 
 judge of all Federal legislation, claims for its decisions the closest atten- 
 tion. In the famous series of judgments given, at an early period in the 
 Court's history, by Chief Justice Marshall, the principle of giving a broad 
 construction of the powers conferred on the Federal Government was 
 adopted. Although there has from time to time been an ebb and flow, 
 dependent on the personnel of the Court, the precedents set by Marshall 
 have on the whole been followed. It may therefore be said that it has 
 been the policy of the Court to construe broadly the constitutionality 
 of the powers exercised by Congress, while at the same time a technical 
 legal interpretation has been given to the terms of the statutes under 
 which such powers are exercised. Under a rigid written Constitution 
 for the process of amendment provided is so cumbrous as to be practi- 
 cally unavailable the Supreme Court is the elastic portion of the 
 Constitution which provides, by implication, for the broadening of 
 power to meet new exigencies. In the definition of constitutionality, 
 questions of policy, as well as of strict law, have their weight. 
 
 However correct in theory, from an historical standpoint, the strict- 
 construction theory of the Constitution may have been, it received a 
 deathblow from the Civil War. Though it was not wholly true that the 
 laws were silent while arms were being borne, it was no time for niceties 
 of construction ; and a national support was given to the broad-construc- 
 tion tendencies of the Court. In the Legal-Tender cases, which upheld 
 the constitutionality of the issue of inconvertible paper with a legal- 
 tender attribute, a broad justification was found in the necessities of war. 
 In the exercise of the power to tax Congress has a wide discretion. A 
 tax may be levied either for revenue or for prohibitive purposes. When 
 Congress, in 1869, excluded State bank-notes from circulation by im- 
 posing upon them a tax of 10 per cent, the Court upheld this as a legiti- 
 mate exercise of power, and stated that "the judicial department can not 
 prescribe to the legislative department of Government limitations upon 
 the exercise of ^acknowledged powers." 1 
 
 1 Veazie Bank v. Fenno, 8 Wallace, U. S., 532. 
 
LEGISLATIVE PROBLEMS 497 
 
 The breadth of construction of the interstate commerce clause is 
 especially noteworthy. Marshall's decision in 1824, that commerce 
 includes not only traffic but intercourse as well, gave a trend to more 
 recent decisions; but interstate commerce was of minor importance in 
 the earlier days. During the first forty years of the Supreme Court's 
 existence, only five cases came before it in which the construction of 
 this clause was involved. With the expansion of the railway system and 
 the general industrial development of the country, questions arising 
 under this head have become increasingly frequent. In 1895, in a case 
 which arose out of the aggression of organized labor during the Chicago 
 strike, it was stated: 
 
 The constitution has not changed. . . . But it operates to-day upon modes 
 of interstate commerce unknown to the fathers ; and it will operate with equal 
 force upon any new modes of such commerce which the future may develop. 1 
 
 When the need of railway regulation was appreciated, it was under 
 the interstate commerce clause that regulative legislation was passed. 
 This legislation was stoutly opposed by the railway interests, which 
 stigmatized it as an unwarrantable interference with private industry. 
 One pessimistic critic contended that it was a movement towards cen- 
 tralization, and that "the next natural step must be the purchase and 
 absolute control by the same power of all this vast railroad property." 
 There were others who argued that this legislation was an unjustifiable 
 interference with State activity. 
 
 The next exercise of power under this clause was concerned with an 
 attempt to regulate industrial combinations. In two years one hundred 
 and thirty-eight Bills dealing with this subject were introduced in Con- 
 gress. Finally, in 1890, the anti-trust legislation known as the Sherman 
 Law was passed. This was a compromise measure, and, like so many of 
 the compromise measures passed by Congress, was inexact in phrase- 
 ology. It is entitled "an Act to protect trade and commerce against 
 unlawful restraints and monopolies." This implies that there are lawful 
 restraints and monopolies. But the Act states that "every contract, 
 combination, in the form of trust or otherwise, or conspiracy in restraint 
 of trade or commerce among the several States ... is illegal." While 
 "monopolizing " is prohibited, no definition of this term is given; and 
 it must be remembered that "monopolizing" is not a word of legal 
 precision. 
 
 The regulation of Trusts is complicated by the fact that there is no 
 Federal corporation law. Corporations engaging in interstate commerce 
 do so under a State charter. The difficulty thus presented is well exem- 
 plified by the United States Steel Corporation. This organization 
 attracts attention, not only because of its huge capitalization, but also 
 because of the wide sweep of its business and of its resources. This giant 
 
 1 In re Debs, 158 U. S., 564. 
 32 
 
498 AMERICAN FEDERAL GOVERNMENT 
 
 corporation, which is well described by Dr. Gutmann in the book men- 
 tioned in our list, is chartered under a law of New Jersey. Congress has 
 no power over manufacture as such. In 1895, in a decision in an action 
 against the Sugar Trust, the Supreme Court held that, although a com- 
 bination had been formed controlling 98 per cent of the sugar-refinery 
 of the country, this did not come within the scope of the anti-trust legis- 
 lation. Only the consequences of combination, not the combination 
 itself, could be dealt with. 
 
 Although it was generally supposed that railways were exempt from 
 the anti-trust legislation, since they were already covered by the Act to 
 regulate commerce, some of the most signal decisions have been those 
 concerned with railways. In 1897 and in 1898, in the Traffic Association 
 cases, 1 organizations formed to maintain "reasonable" rates were de- 
 clared to be combinations to maintain rates, and therefore prohibited 
 by the anti-trust legislation. Railways were declared to be " instruments 
 of commerce," and their business is commerce itself. This was carried 
 further in the Northern Securities decision in 1904. In this case a 
 "holding company " of exceedingly wide powers was formed under a 
 New Jersey charter. By control of majority stock-holdings in the Great 
 Northern and the Northern Pacific, it controlled these railways and their 
 subordinate lines. Not one mile of the railways concerned was situated 
 in the State from which the charter was obtained. The holding company 
 did not operate the railways; it simply controlled them through its 
 majority holdings. By deciding that this company was a combination 
 in restraint of trade, the Court, while avoiding a direct expression of 
 opinion on the subject, in reality decided that ownership of property 
 falls within the scope of the legislation whenever such ownership, if 
 allowed to continue, might result in restraint of interstate commerce. 
 
 The powers of Congress over Trusts under existing legislation, as 
 established by court decisions, are substantially as follows. The power 
 to regulate gives the power to prohibit; this may be exercised either 
 under the taxing power or under the interstate commerce clause. Every 
 combination which directly or necessarily operates in restraint of trade 
 or commerce among the several States is illegal. Railways engaged in 
 interstate commerce are subject to the anti-trust Act. Congress has es- 
 tablished the rule of free competition among those engaged in interstate 
 commerce; every combination which would extinguish competition 
 between otherwise competing railways engaged in interstate commerce, 
 and which would in that way restrain such commerce, is illegal. The 
 provisions of the anti-trust Act apply to private manufacturers or dealers 
 as well as to corporations. The natural effect of competition is to 
 increase commerce; and an agreement whose direct effect is to prevent 
 this play of competition restrains instead of promoting trade and com- 
 merce. The legislative prohibitions are not limited to "unreasonable 
 
 1 167 U. S., 290, and 171 U. S., 505. 
 
LEGISLATIVE PROBLEMS 499 
 
 restraints," but are directed against all restraints, whether reasonable or 
 unreasonable ; therefore the Court will not consider evidence in regard 
 to the reasonableness of the restraint. It is not necessary to show that 
 a combination results or will result in a complete monopoly; it is only 
 essential to show that by its necessary operation it tends to restrain inter- 
 state commerce or to create a monopoly in such commerce, and to deprive 
 the public of the advantages that flow from free competition. 
 In his message to Congress in 1901, President Roosevelt -said : 
 
 In the interest of the whole people the nation should, without interfering 
 with the powers of the States in the matter, itself also assume powers of super- 
 vision and regulation over corporations doing an interstate business. 
 
 In annual messages and in addresses he has from time to time returned 
 to the subject, and in stronger terms. A large part of the rising tide of 
 opposition to the Trusts and desire for their adequate regulation, arises 
 from the appreciation of their evils which his educational campaign has 
 evoked. At the same time, when the question of remedies arises, the 
 limitations due to his political connections appear. To those who urge 
 that the Trust problem is to be settled by depriving monopolized prod- 
 ucts of protection through duties, President Roosevelt, in his letter to 
 Congressman Watson, of Indiana, August 20, 1906 a letter intended 
 to be used as a campaign document replied as follows : 
 
 The cry that the problem can be met by any changes in the tariff, represents, 
 consciously or unconsciously, an effort to divert public attention from the only 
 method of taking regulative action. 
 
 The protective tariff is not so important a factor in Trust preservation 
 as some, including Mr. Bryan, think; nor is it a negligible quantity, as 
 President Roosevelt contends. While he has become more radical in 
 his attitude towards domestic industry, he has become more conserva- 
 tive in regard to the tariff. He has inclined more and more to the 
 reactionary attitude of the " stand pat " section of the Republican party 
 a section which fears that the pillars of the existing edifice will be 
 pulled down if repairs are made on the roof. This attitude was apparent 
 in the President's speech at Milwaukee on April 3, 1903, when he said 
 that to regulate Trusts through the tariff would be to put an end to the 
 prosperity of the Trusts by putting an end to the prosperity of the 
 nation. The speech of Mr. Roosevelt's lieutenant, Mr. Taft, Secretary 
 of War, at Bath, Maine, on Sept. 5, 1906 may be taken as summarizing 
 the President's position. 
 
 It is impracticable, by a revision of the tariff, to destroy Trusts. The effect 
 which a protective tariff has in aid of Trusts is a partial exclusion or hampering 
 of foreign competition in articles manufactured by Trusts, thus narrowing the 
 competition to be met and overcome by illegal Trust methods ; but the principle 
 
500 AMERICAN FEDERAL GOVERNMENT 
 
 of excluding or burdening foreign competition with home competition is the 
 protective system. . . . The question presented is whether it is wiser to main- 
 tain the benefits of the protective system, and deal with the evils of the manage- 
 ment of Trusts by specific legislation directed to those evils, or, in an attempt 
 to curb Trusts, to pull down the whole protective system. 
 
 To the President the Trust problem is one of domestic policy. The 
 policy favored by him and accepted by the Republican party, although 
 not without protest, is summed up under the words publicity and regu- 
 lation. In his message to the Legislature of New York in 1900, President 
 (then Governor) Roosevelt said: 
 
 Supervision and publicity are needed quite as much for the sake of the honest 
 corporations as for the sake of the public. The corporation that manages its 
 affairs honestly has a right to demand protection against the dishonest cor- 
 poration. . . . The first essential is knowledge of the facts publicity. 
 
 Under legislation enacted in 1903, on the recommendation of the Presi- 
 dent, provision was made for publicity in regard to corporate affairs by 
 the establishment of a Bureau c^f Corporations, a sub-department of the 
 new department of Commerce and Labor. Mr. James R. Garfield, a 
 son of the late President Garfield, was appointed Commissioner of Cor- 
 porations. He was given power to investigate the business of corpora- 
 tions, joint-stock companies, or corporate combinations engaged in 
 interstate commerce ; and to gather information to enable the President 
 to make recommendations to Congress in regard to the regulation of 
 interstate commerce. The reports made to the President are to receive 
 such publicity as he may direct. Under this legislation investigations of 
 the conditions existing in the beef and oil industries have been conducted 
 by Mr. Garfield. The work of the Bureau of Corporations is primarily 
 an inquiry into the industrial and legal methods used by the agencies 
 engaged in interstate and foreign commerce; and the purpose of such 
 inquiry is to afford accurate knowledge of the industrial conditions upon 
 which there may be based intelligent legislative action. 
 
 The power in regard to regulation has been exercised under the inter- 
 state commerce clause. While Mr. Bryan, in his recent speech at Louis- 
 ville, Kentucky, held that strict regulation of the railways is advisable, 
 he at the same time holds that the country must ultimately accept gov- 
 ernment ownership in order to escape not only the corrupting effect of 
 the railway in politics, but also the evils arising from extortionate rates 
 and rebates. To President Roosevelt government ownership is a last 
 resort. He believes in railway regulation; and he has been successful 
 in getting the Railway Commission legislation strengthened. He has 
 throughout held that, if rebating were abolished, much of the strength 
 of the Trusts would disappear. 
 
 Though the Interstate Commerce Commission has contended almost 
 
LEGISLATIVE PROBLEMS 501 
 
 from the outset that the power to establish a reasonable rate, when a 
 rate has been found unreasonable in an action before the Commission, 
 is essential, its contention was not taken seriously until President Roose- 
 velt, in his annual message in 1904, said: 
 
 As a fair security to the shipper, the Commission should be vested with the 
 power, when a given rate is challenged, and after full review found to be un- 
 reasonable, to decide, subject to judicial review, what will be a reasonable rate 
 to take its place. 
 
 As a result of his urgent advocacy, both in 1904 and in 1905, amendatory 
 legislation was passed in the last session of Congress. In addition to 
 conferring the amendatory rate-making power, the abuses of the " mid- 
 night tariff " system are prevented by requiring thirty days' notice of 
 changes in rates, instead of the shorter period formerly demanded. 
 Rebating in any form is forbidden ; and stringent penalties are provided. 
 The railway company which shall "offer, grant, or give" a rebate is 
 subject to a fine varying from $1000 to $20,000 for each offense; and 
 railway officials participating in such an arrangement are punishable by 
 fine, or by fine and imprisonment. The shipper who shall "solicit, 
 accept, or receive " a rebate is liable to similar penalties. To ascertain 
 whether rebates are given, the Interstate Commerce Commission is em- 
 powered to appoint examiners to inspect the books of the railway com- 
 panies. Further, in an action dealing with rebates, all rebates received 
 during a period six years prior to the commencement of the action may 
 also be dealt with. Private cars are also placed under the supervision 
 of the Commission. 
 
 Though the scope of the anti-trust Act was not extended during the 
 last session of Congress, additional powers of regulation under the inter- 
 state commerce clause were granted in regard to other matters. Under 
 the new meat-inspection law, which became effective on October i, 1906, 
 meat and meat-products can not enter into interstate commerce unless 
 they are marked "inspected and passed." The purpose of the Act is 
 to prevent the use in interstate or foreign commerce of meat and meat- 
 products which are unwholesome or otherwise unfit for human food. 
 The determination of these conditions is delegated to the Bureau of 
 Animal Industry, a sub-department of the Department of Agriculture, 
 under whose immediate authority more than six hundred inspectors 
 have been assigned to places in half as many packing establishments 
 and railway shopping points in the meat-producing districts. As the 
 result of many years agitation, a "pure food " law was passed, which 
 applies to food, drink, and drugs. For the breach of the law fines and 
 imprisonment are provided. 
 
 The present is a period of great activity in the prosecution of Trusts, not ' 
 only in the Federal field, but also in the States. In New York the local 
 ice combination has been prosecuted because of artificial enhancement 
 
5 02 
 
 AMERICAN FEDERAL GOVERNMENT 
 
 of prices. In the District of Columbia and in the city of Philadelphia 
 actions have also been initiated against local ice combinations. In 
 Toledo, Ohio, the Circuit Court recently upheld a decision, whereby 
 three ice-dealers, who were convicted of violating the State anti-trust 
 Act, were sentenced to fines of $2500 and six months' imprisonment in 
 the work-house. In the same State, on October 19, the Standard Oil Co. 
 was found guilty of infractions of the State anti-trust Act under which 
 fines totalling $5,000,000 may be imposed. An appeal has been lodged 
 against this decision. 
 
 But, while in the States some action has been taken against the Trusts, 
 it is in the Federal field that the greatest activity is shown. This activity 
 has been especially noteworthy since President Roosevelt's accession to 
 office. In 1903 a special appropriation of $500,000 was made by Con- 
 gress to aid in the enforcement of the anti-trust law and the Act to regu- 
 late commerce. By legislation of the same year provision was made that 
 in suits under these Acts, when the United States is the complainant and 
 there is a sufficient public interest involved, the case may, on the certifi- 
 cate of the Attorney- General, take precedence on the docket. This 
 power was exercised in the Northern Securities case. The increased 
 activity under these laws is shown in the following table of original 
 proceedings begun and prosecuted: 
 
 Periods 
 
 For viola- 
 tion of anti- 
 trust Act 
 
 For viola- 
 tion of Act 
 to regulate 
 
 
 commerce 
 
 Under 
 
 Pres. Harrison .... 
 
 7 
 
 i7 
 
 " 
 
 " Cleveland .... 
 
 6 
 
 3 2 
 
 " 
 
 " McKinley .... 
 
 3 
 
 12 
 
 
 " Roosevelt .... 
 
 16 
 
 60 
 
 In the prosecutions arising under the interstate commerce clause there 
 has been a cooperation of the various agencies. Investigations and pro- 
 ceedings have been conducted by the Interstate Commerce Commission ; 
 prosecutions under the anti-trust Act have been made by the Department 
 of Justice; while investigations on which actions have been based have 
 been made by the Commissioner of Corporations. Without attempting 
 an exhaustive list, we may mention some of the more salient actions. 
 
 In the year 1905 a perpetual injunction was obtained from the Supreme 
 Court against the principal packing companies, restraining them from 
 combining and agreeing on prices at which their products were to be 
 disposed of in States other than those of manufacture. In 1902 an injunc- 
 tion was obtained against the Federal Salt Company. This company 
 
LEGISLATIVE PROBLEMS 503 
 
 had made arrangements whereby other companies agreed neither to 
 import, buy, nor sell salt except from and to the Federal Salt Company, 
 and not to engage in or assist in the production of salt west of the Mis- 
 sissippi River during the continuation of this contract. This arrangement 
 had enhanced the price of salt 400 per cent. 
 
 The decision in the Northern Securities case frustrated the attempt 
 to centralize through a holding company the control of competing rail- 
 ways. Proceedings under the rebating section of the railway legislation 
 led on June 22, 1906, to the imposition of fines totalling $75,000 on four 
 of the packing companies and the Chicago, Burlington, and Quincy 
 Railway. Two individual defendants in New York, who had received 
 rebates, were punished by fines and imprisonment, the penalty being 
 $6000 and four months' imprisonment in the first case, and $4000 and 
 three months' imprisonment in the second. This is the first time that 
 rebating has actually been punished by imprisonment; and Attorney- 
 General Moody hopes that it will have "the most potent effect in check- 
 ing the 'widespread practice of unlawful discriminations." Early in 
 October the New York Central Railway was found guilty of granting 
 rebates on shipments made by the Sugar Trust. An arrangement had 
 been entered into in 1904 whereby a rebate of five cents per hundred 
 pounds was to be made. The information which led to this action being 
 taken was collected in the first instance by the lieutenants of Mr. W. R. 
 Hearst, and was handed over by him to the Attorney-General. The 
 railway was fined $108,000, or about two dollars in fines for every dollar 
 which it has recently received in rebates. The result is excellent ; there 
 is a stability in railway rates that has long been absent. So far, the suits 
 instituted by the Attorney- General have led to the collection of over 
 $300,000 in fines, and the imprisonment of two freight brokers who 
 conspired to get rebates. President Roosevelt's administration claims 
 that the enforcement of the law has greatly improved the situation ; and 
 that, to quote the words of Secretary Taft, "the fear of the law has 
 been put into the hearts of the members of these great corporations." 
 
 The most important of the actions the Government now has in hand 
 is that against the Standard Oil Co. It is intended to proceed against 
 this company on the ground that it has, contrary to law, been receiving 
 discriminative rates. Investigations have been conducted by Federal 
 grand juries in Ohio, New York, Kansas, and Illinois. In August the 
 grand jury at Chicago returned ten indictments, covering 6428 counts 
 against the Standard Oil Co. for receiving rebates. These investigations 
 are simply preliminary to more general action by the Government. In 
 addition to the proceedings in the Federal courts, the Interstate Com- 
 merce Commission is conducting investigations under a resolution of 
 Congress passed at its last session. In November last, Attorney-General 
 Moody instituted an action against the Standard Oil Co. under the anti- 
 trust Act. The stock at once fell from about 700 to 512. A favorable 
 
504 AMERICAN FEDERAL GOVERNMENT 
 
 outcome in such a case will mean a very significant expansion of Federal 
 power. In the prohibitions of the anti-trust legislation no provision is 
 made for a company or a corporation which by mere accretion has come 
 to control a dominating part of a particular industry. The Standard 
 Oil claims to be a company, not a combination. In an action against 
 it there will be involved, if its contention that it is a company is upheld, 
 the question whether a monopoly possessed by one company is forbidden ; 
 and the further question whether mere size, apart from any overt act, 
 subjects a company to the provisions of the anti-trust legislation. It is 
 probable that, even with an expedited procedure, two years will elapse 
 before the case is decided by the Supreme Court. 
 
 There is a danger at the present time that the prevailing fear of Trusts 
 may go too far. The opinion of M. Leroy-Beaulieu, in his "The United 
 States in the Twentieth Century" (p. x), that "an unduly high opinion 
 has been entertained of the dangers as well as of the strength of the 
 Trusts, and of the part they have played in the development of American 
 manufacture," is undoubtedly justified. Especial attention has been 
 devoted to the public dangers arising from inflated capitalization; but 
 time has shown that this is a weakness in the combinations. But the 
 days of "hands off" have passed; and it is well that it is so. At the 
 same time the division of power between the Federal Government and 
 the States renders difficult the work of regulation a work which, apart 
 from any question of constitutional limitations, has inherent difficulties 
 and attracts attention to the limitations of the constitution. The 
 State Governments, which were intended to be bulwarks of private 
 right, have too often been the protectors of private greed. Regulation 
 through the individual States is, in default of concerted action, futile; 
 it means irritation, not control. 
 
 It may be argued that it is within the power of Congress to pass an 
 incorporation Act, and to grant to corporations so chartered the right 
 to produce. But such corporations would carry on their manufacturing 
 within the confines of some State or States; they would therefore be 
 subject to local regulation and taxation. This would involve radical 
 industrial and political changes. It is the expediency, rather than the 
 legality, of a Federal corporation law which presents a difficulty. The 
 President said, in his Harrisburg speech, 
 
 It is the narrow construction of the powers of the national government which 
 in our democracy has proved the chief means of limiting the national power to 
 cut out abuses, and which is now the chief bulwark of the great moneyed inter- 
 ests which oppose and dread any attempt to place them under efficient govern- 
 mental control. 
 
 It is on this ground that he has favored the placing of insurance under 
 national control, although the Courts have repeatedly decided that 
 
LEGISLATIVE PROBLEMS 505 
 
 insurance is not commerce. But in the extension of powers, which he 
 favors, the Government will have to proceed indirectly. The most that 
 can be expected in the way of more thorough control of corporations is 
 that they shall be required to take out licenses before engaging in inter- 
 state commerce. Under such an arrangement the granting of licenses 
 could be made conditional on submission to regulation. Substantially 
 this arrangement is involved in the provisions of the recent meat-inspec- 
 tion law, whose rigid provisions must be met, under penalty of exclusion 
 from interstate commerce. 
 
 The weakness of the legislation passed under the interstate commerce 
 clause is patent. The an ti- trust law, a hurried compromise measure, 
 in its sweeping prohibitions, makes no distinction between predominat- 
 ing industrial influence due to illicit favors or improper combinations 
 and that due to legitimate economic conditions. The Act to regulate 
 railways has, by its prohibition of pooling (i. e. joint-purse arrangements), 
 accelerated the movement towards consolidation. The Supreme Court 
 has held that the rule of free competition laid down in the anti-trust Act 
 applies to railways as well. By declaring illegal all agreements to main- 
 tain rates it laid down a technical doctrine which, if upheld in its entirety, 
 would be subversive of business. Whether established formally or inform- 
 ally, agreements as to rates are absolutely essential. Such agreements 
 exist to-day, and must of necessity exist ; and, in acting under them, the 
 railways are in technical disobedience to the law. 
 
 In his message to the New York Legislature in 1900, Governor Roose- 
 velt said: 
 
 Much of the legislation not only proposed but enacted against Trusts is not 
 one whit more intelligent than the medieval Bull against the comet, and has 
 not been one particle more effective. 
 
 As President, in his annual message to Congress in 1905, he said: 
 
 It is generally useless to try to stop all restraint on competition, whether this 
 restraint be reasonable or unreasonable ; and, when it is not useless, it is gen- 
 erally hurtful. 
 
 In his message of Dec. 1906 he reiterated the warning. 
 
 It is not possible completely to prevent it [consolidation]; and, if it were 
 possible, such complete prevention would do damage to the body-politic. 
 
 Though the Supreme Court has said that Congress has established the 
 rule of free competition, and that it is not for the Court to question the 
 industrial expediency of such legislation, there are some signs of a modi- 
 fication of this position. The Circuit Court of Appeals has held l that 
 
 1 Whitwdl v. Continental Tobacco Co., 60 C. C. A. Reports, 290. 
 
506 AMERICAN FEDERAL GOVERNMENT 
 
 the Act must have a reasonable construction, and that it could not be 
 the true meaning of the law that every attempt to monopolize any part 
 of interstate commerce was illegal. Somewhat greater strength is given 
 to this position by the decision of Mr. Justice Brewer in the Northern 
 Securities case. This decision was rendered by a bare majority, four 
 judges, including the Chief Justice, dissenting. Though Justice Brewer 
 was of the majority, he filed a separate decision, in which he said that 
 
 Congress did not intend to reach and destroy those minor contracts in par- 
 tial restraint of trade which the long course of decisions at common law had 
 affirmed were reasonable, and ought to be upheld. 
 
 This line of reasoning would cause the Court to look to the intent, not 
 to the mere fact, of combination. It is abundantly manifest that, if the 
 movement for Trust regulation in the United States is to be efficiently 
 regulative, not simply prohibitory, it must recognize that the beneficial 
 effect of untrammeled competition even if it were possible to obtain 
 it is an outworn sophistry ; and that the public is interested not in 
 the mere limitation of competition, whatever be the cause of such limita- 
 tion, but its effect on national prosperity. 
 
 In the enforcement of the laws against combinations, the punitive 
 methods have been prohibitions and fines. Mr. Bryan asks "how many 
 of the Trust magnates are in jail?" He contends that " safety lies not 
 in futile attempts at the restraint of Trusts, but in legislation which will 
 make a private monopoly impossible." As to what constitutes a "private 
 monopoly" he is extremely vague. "The plan of attack," he continues, 
 "must contemplate the total and complete overthrow of the monopoly 
 principle in industry." Again: "The man who is in favor of regulating 
 it [the private monopoly] might just as well take off the mask and declare 
 himself; for you can not regulate a private monopoly; it regulates you." 
 
 While President Roosevelt stands for such regulation as will, to quote 
 his favorite phrase, "give a square deal," he is, as the size and intricacy 
 of the problem grow upon him, becoming more radical. The investiga- 
 tions of the Bureau of Corporations (whose latest reports appeared in 
 May) show that illicit railway favors have done much to build up the 
 Standard Oil monopoly. The President holds that railway control is 
 the central matter. The Government must possess full power to super- 
 vise and control the railways engaging in interstate traffic power as 
 thorough as that which it already exercises in regard to the banking 
 system. But it appears that he is at times doubtful of the successful 
 outcome of the regulative policy. To him the problem is becoming two- 
 fold the regulation of the Trusts and the regulation of large fortunes. 
 Recently he has shown that he regards these as a complementary phase 
 of the problem. In his "muck-rake" speech, April 13, 1906, he said 
 that ultimately the nation would have to consider the imposition of pro- 
 gressive taxation with a view to preventing the owners of enormous 
 
LEGISLATIVE PROBLEMS 507 
 
 fortunes handing on more than a certain amount to any one individual. 
 To most this was a mere statement of his beliefs in regard to ultimate 
 tendencies. But in his Harrisburg speech, on October 4, 1906, he stated 
 his position in stronger language. 
 
 It is our clear duty to see . . that there is adequate supervision and con- 
 trol over the business use of the swollen fortunes of to-day, and also to de- 
 termine the conditions upon which those fortunes are to be transmitted, and 
 the percentage they shall pay to the Government whose protecting arm alone 
 enabled them to exist. Only the nation can do this work. ... I maintain that 
 the national Government should have complete power to deal with all of this 
 wealth which in any way goes into the commerce between the States and 
 practically all of it that is employed in the great corporations does thus go in. 
 
 Had the proposition been simply one to obtain increased revenue through 
 an inheritance tax it would, no doubt, have obtained a generous sup- 
 port. But the ultra-radicalism of a plan whereby social policy, not rev- 
 enue, is to be the end in view is far in advance of public opinion. The 
 connection between the large fortunes and the illicit phases of the Trust 
 problem is assumed, not proven. If the regulation and limitation of 
 private wealth is to be undertaken, and if the Government is, in its dis- 
 cretion, to determine when a fortune is dangerous to the public such 
 determination being dependent upon the size of the fortune, not upon its 
 use such a course will not only be a dangerous invasion of private 
 rights, but will also, of necessity, entail upon the Federal Government a 
 systematic redistribution of wealth a task for which it is manifestly 
 unsuited. 
 
 REPRESENTATIVE COCKRAN ON CORPORATE POWER 1 
 
 MR. SPEAKER, it is a stupendous issue this between the President 
 and the mighty forces of corruption whose challenge of battle he has 
 accepted. The elements arrayed against him are the most formidable 
 that ever did battle in a struggle for privilege. The powers they can 
 invoke are stronger in many respects than the powers exercised by govern- 
 ment itself. I wonder if Members of this body realize the extent of the 
 powers these embattled interests can put in motion. 
 
 In a lecture delivered in my own State a few weeks ago, I undertook 
 to say that our political system had undergone a silent but radical revo- 
 lution during the last few years, that the greatest powers in the com- 
 munity were no longer exercised in legislative bodies, in the council 
 chambers of cabinets, or in the offices of a chief executive, but in the 
 rooms where a few men direct the administration of great corporations 
 or plan new corporate enterprises. True, there has been no change in 
 
 1 Congr. Record, Feb. 15, 1908. 
 
508 AMERICAN FEDERAL GOVERNMENT 
 
 the outward structure of our institutions, but the most profound revolu- 
 tions have been those that affect not the form but the substance of govern- 
 ment. All the forms of republican government survived in Rome long 
 after the Republic itself had been replaced by absolute despotism. The 
 atrocities of Caligula and Nero and Domitian, perpetrated under the 
 authority of a republic, show that forms the most venerable may be pre- 
 served to perpetration of oppressions the most atrocious. And so, sir, 
 the outward structure of our Government remains wholly unchanged. 
 Not merely does our Constitution survive in form, but all our con- 
 stitutional formulas are still acknowledged universally and invoked 
 exclusively. 
 
 Constitutionally each man has the right to go where he pleases, to 
 work when he pleases for whom he pleases and for what he pleases, but 
 between him and the exercise of these privileges lie formidable powers 
 which the Constitution never contemplated and which government does 
 not control. Practically no man can take one step from his own door to 
 engage in the ordinary competitions of life except on conditions and 
 terms fixed by some corporation operating a transit system, controlled 
 by a few persons generally by one with whose selection govern- 
 ment has nothing to do, whose orders and regulations, though binding 
 on a whole community, government hardly pretends to regulate. What 
 avails it a citizen that legally, constitutionally, theoretically he can sell 
 his labor for what he pleases when the value of the wages he may earn is 
 fixed absolutely by a few men in whose selection he has no voice, whose 
 course he can not control or even influence? The cost of implements 
 necessary to his calling, of the clothes that cover him, the food he eats, 
 the fuel he burns, the materials used in constructing the house that shel- 
 ters him, are all determined absolutely and even arbitrarily by some half 
 a dozen men, who are also believed to control the chief highways of com- 
 merce throughout the country, and, . therefore, the immense capital 
 necessary to their operation. With the vast banking deposits which the 
 control of production and transportation places at their disposal these 
 same men dominate the financial institutions of every great city. And 
 thus they govern not merely the volume of production and the means 
 of transportation by which commodities are exchanged, but also, through 
 control of the banks, they regulate credit, which is the very lifeblood of 
 commerce. 
 
 Compared with these enormous powers exercised in secret by men 
 clothed with no official authority, subject to no public supervision, ac- 
 knowledging no responsibility, how trivial are the powers exercised by 
 the nominal or constitutional government, whether State or Federal, or 
 both combined. The National Government never comes in contact 
 with me except when it delivers my letters or examines my baggage at 
 the dock on my return from a foreign trip. These men affect closely 
 every act of my life, every exercise of my muscular energy, every effort 
 
LEGISLATIVE PROBLEMS 509 
 
 that I make for the improvement of my own condition, every plan that I 
 contemplate for the employment of my resources and my talents. While 
 I refrain from crime I have no reason to be conscious that government, 
 Federal or State, exists. But I can not take a step about my daily affairs 
 without paying tribute to these forces, whose authority is undisputable, 
 yet whom it is often impossible to locate, whose power is boundless, yet 
 whose very identity is unknown. [Applause on the Democratic side.] 
 
 Sir, the powers wielded by these forces must be controlled by law or 
 they must themselves become actually the government. It has been said 
 that these powers are necessary and inevitable products and features of 
 a highly organized industrial system. The President's message does not 
 discuss the extent of these powers nor the justification of them. It 
 merely insists that whatever they be they must remain subordinate and 
 subject to the law of the land. When we consider the influences they 
 exercise, their power to reward the public man who serves them and to 
 assail the one who obstructs their plans or assails their privilege, it would 
 seem as if the outcome of a conflict between them and the constitutional 
 government might be doubtful. Certain it is that the rewards in their 
 power to bestow are preferred by many men of great talent to the highest 
 honors of public life. 
 
 Twenty years ago a seat in the Senate was considered the supreme 
 reward of political success, ample compensation for a lifetime of arduous 
 labor, fitting crown for the most splendid career. Have we not recently 
 seen the toga surrendered by one of the most distinguished Senators to 
 become the adviser of financiers ? And it is widely suspected that there 
 are others ready, aye, eager, to follow his example if opportunity offer. 
 
 In New York I speak here of that which is within my own knowledge 
 there was a time, and that not long ago, when a seat on the bench was 
 the prize toward which every lawyer aspired, the success for which he 
 labored, the fulfillment of his highest ambition. Within a few years we 
 have seen one judge after another quitting that exalted post to accept 
 the retainers of financiers, and it is quite generally believed that those 
 who remain on the bench are straining their eyes for an opportunity to 
 quit the severe atmosphere of the courts for the profitable though less 
 honorable service of corporations. 
 
 Sir, this is a spectacle which may well cause thoughtful men the gravest 
 apprehension. The very life of the Republic is involved in maintaining 
 the vigor and independence of the courts. We have restricted the powers 
 of legislature and no injury has followed to the body politic. We may 
 reduce the scope of Executive authority, and no serious harm may ensue. 
 But there must be in every system of government some depository of 
 ultimate power, some department that can fix limits to the authority 
 of all others. In a republic that power must always remain with the 
 courts. It is a significant fact that whenever one of these judges ex- 
 changed the judicial ermine that is honorable for the livery of corpora- 
 
510 AMERICAN FEDERAL GOVERNMENT 
 
 tions that is profitable he invariably became a mouthpiece and exponent 
 of the apprehensions entertained by his new employers that the 
 President is inclined to carry his love of justice too far. 
 
 Sir, not even when the doubts proceed from the mouths of ex-judges 
 transformed into corporation attorneys can it be admitted that love of 
 justice, however strong, in any public servant is incompatible with the 
 material interest of the people. 
 
 Never, at least, sir, will that be admitted on this side of the Chamber. 
 Here we believe that justice is the true fountain of prosperity. [Applause.] 
 So long as justice governs any enterprise it can have no fear of injury 
 from enforcement of the law. Law can never be the foe of industry, 
 but always its companion and handmaiden. Through law it enjoys 
 peace, which is the essential condition of its efficiency. By law its fruits 
 are defended and its prosperity promoted. It is crime which fattens 
 on wrong, and its beneficiaries the dishonest in commerce, the rotten 
 in morals, the corrupt in politics that can have any reason to fear the 
 light of publicity or the sword of justice, and against these may that 
 light never be obscured, may that sword never be sheathed. [Applause.] 
 
 Sir, if the rewards bestowed on their adherents, advocates, advisers, 
 and apologists by these forces of intrenched wrong be so large that they 
 are preferred to places of highest honor in the public service, so are the 
 penalties formidable that they seek to inflict on their opponents, critics, 
 or prosecutors. It would seem as if the man who incurs their resentment 
 must be prepared to renounce hopes of the most profitable professional 
 employment or of admission to the charmed circle of high finance with 
 its opportunities for enormous profit. He must risk even his hopes of 
 public approval. The storm which has raged round the ears of the 
 President ever since he dared to take up the challenge thrown down by 
 these great interests shows strikingly the extent to which they can affect 
 public opinion by poisoning the sources of public information through 
 their ownership of many leading newspapers. The public man whom 
 they pursue will find his words misquoted or suppressed, if distortion be 
 impossible, his motives assailed, purposes attributed to him which are 
 furthest from his own conception, a thousand difficulties created in his 
 way when he returns to the constituents whom he tried to save from 
 spoliation. The corrupt need no incitement to hostility against the honest. 
 But hitherto many of the well disposed were cajoled into serving these 
 interests by appeals cunningly directed to their fears and prejudices. 
 
 When we measure the enormous powers wielded by these interests 
 whose gage of battle the President has now picked up, controlling, as 
 they do, every avenue of success in the professions, in politics, and in 
 commerce, we must realize that hitherto opposition to their unlawful 
 privileges by a public man demanded qualities little short of heroic. 
 Here, sir, is the capital value of the President's message, which all good 
 men must applaud, however they may have criticised or reflected on any 
 
LEGISLATIVE PROBLEMS 511 
 
 former acts of the Administration. It states in unmistakable terms the 
 exact nature of the contest before the country. Whoever reads it will 
 see that the issue is between enforcing the law against all men and sus- 
 pending the law in favor of a few men. On that issue, once stated, it will 
 be impossible to divide the American people. The demand for justice 
 embodied in this message neither party will undertake to ignore or deny 
 in its platform the Republican party because it will not dare and this 
 party of ours because it will not want to evade it. [Applause on the 
 Democratic side.] It results, sir, that the campaign now opening will not 
 be a contest between conflicting principles, but a choice of the champion 
 who will do most effective battle for a cause which all will cherish, or 
 at least profess to cherish. While no one will openly antagonize the Presi- 
 dent's position, the prospect of their being loyally maintained will turn 
 entirely on the character of the man chosen to enforce them during the 
 next four years. 
 
 Sir, it is no ordinary political contest, but a crusade to which the Presi- 
 dent invites us. The man to make the fight successfully must be animated 
 by the spirit, the courage, and the unselfishness of a crusader. But, sir, 
 the qualities of heroism are not common. The stuff of which crusaders 
 are made is not to be found on every side. These qualities were described 
 vividly more than eight hundred years ago, when Pope Urban II preached 
 the first crusade to the great gathering at Clermont. You remember, sir, 
 that while urging his hearers to take up arms for the delivery of the Holy 
 Land from impious domination he told them they must not expect prizes 
 of any earthly value, but they must renounce all hopes of gain or fortune. 
 They must turn their backs upon the homes they loved ; in frail barks 
 they must cross seas wide and stormy ; they must walk with bleeding feet 
 over burning sands ; they must face with dauntless breasts the scimiter 
 of the Saracen ; they must even, if need be, with naked hands climb the 
 walls surrounding the city of the Holy Sepulcher profaned by the infidel's 
 possession, and all these sacrifices must be made, all these fatigues under- 
 gone, all these perils incurred without any hope of reward or return, 
 except the consciousness of a high duty loyally done. And as that vast 
 assemblage, moved by his words, cried out with one mighty voice "It is 
 God's will!" "It is God's will!" the Pope added, "Be those words 
 your motto : Id Deus vult It is God's will ! Go forward in His name ! " 
 
 Mr. Chairman, that spirit of readiness to face all difficulties for the 
 sake of justice because it is God's will is the spirit which must animate 
 the man fit to lead this campaign. Whoever undertakes the burden of 
 this contest hoping for personal reward will very probably be disap- 
 pointed. With all the avenues to success professional, financial, and 
 political guarded, patrolled, policed by sentries of the enemy whom 
 he must fight, he must be ready to suffer, if need be, pecuniary embarrass- 
 ment, misrepresentations of his motives and conduct, seduction of his 
 allies, betrayal by men he trusts, defeat of his policies by treason even if 
 
512 AMERICAN FEDERAL GOVERNMENT 
 
 he be successful at the polls. But, sir, though he be forced to taste all 
 the bitterness of hopeless conflict, his sacrifice will not be in vain, his 
 defeat will not be final. Sooner or later his cause will triumph. Though 
 both parties be complaisant, though legislatures be corrupt, though 
 courts be subservient, though judges may prefer to win the favor of 
 powerful interests than do justice upon wealthy criminals, none the less 
 the cause of the people will prevail, because it embodies that justice 
 against which no organization of men has ever yet been able to make a 
 successful stand. [Applause.] 
 
 But, sir, where is this champion to be found who, animated by the 
 spirit of a crusader, will cheerfully face disappointment or disaster 
 rather than compromise a principle, resting his hope of success not upon 
 political finesse, but on devotion to an ideal? There is no crusader on 
 the Republican side except one [applause on the Democratic side], and 
 he is disqualified from the fray. His acceptance of a nomination by 
 either party, or by both parties, would not be elevation, but abasement, 
 almost dishonor. He has renounced the field of politics, and through 
 that renunciation he has been lifted to a nobler plane by the spontaneous 
 judgment of civilization. [Applause on the Democratic side.] Never 
 before in the history of this country has a President, while still in office, 
 succeeded in embodying so completely and voicing so emphatically the 
 conscience of the people that a message of his will be embodied in the 
 platforms of both political parties. And this domination of the whole 
 political field has been accomplished in the face of a rancor fiercer than 
 ever was evoked by any of his predecessors, not while he enjoys even a 
 prospect that his official term may be prolonged, but after he has openly 
 and finally renounced every chance of remaining in office. That, sir, 
 is a position no President has ever before achieved, at least not till long 
 after he had passed from the scenes of contentious politics and the grasses 
 had been growing for many seasons above his breast. [Applause.] The 
 position reached by this man no party success could improve, but any 
 partisan affiliation must lower. For him to become the nominee of a 
 party, whatever the outcome, would be to put on a duller armor, to 
 enlist in a baser cause, to fight behind a meaner banner. [Applause on 
 the Democratic side.] No friend would tempt him to such a descent; 
 no patriot would deem him capable of contemplating it. [Applause.] 
 
 THE RAILWAY RATE ACT OF 1906 1 
 SUMMARY BY GEORGE R. PECK 
 
 BY the act approved June 29, 1906, and made effective sixty days 
 after its passage, Congress has increased the membership of the Inter- 
 
 1 This summary is taken from the annual address of the President of the American 
 Bar Assoc., 1906. 
 
LEGISLATIVE PROBLEMS 513 
 
 state Commerce Commission to seven ; increased the salary of the office 
 to ten thousand dollars, and made the term of appointment seven years. 
 The law has been extended to include interstate carriage by pipe lines; 
 the term " common carrier" to include " express companies and sleep- 
 ing car companies"; the term " railroad" to include "all bridges and 
 ferries used or operated in connection with any railroad," all switches, 
 spurs, tracks and terminal facilities of every kind, as also all freight 
 depots, yards and grounds used or necessary in transportation or delivery 
 of property; and the term " transportation " to include cars and other 
 vehicles and all instrumentalities and facilities of shipment or carriage, 
 irrespective of ownership, and all services in connection with the receipt, 
 delivery, elevation and transfer in transit, ventilation, refrigeration or 
 icing, storage and handling of property so transported. Every carrier 
 subject to the act is required to provide and furnish such transportation 
 upon reasonable request and to establish through routes and just and 
 reasonable rates applicable thereto. 
 
 All carriers subject to the act must on application construct, maintain 
 and operate on reasonable terms switch connections with any lateral 
 branch line of railroad or shipper tendering interstate traffic where such 
 connection is reasonably practicable, can be safely made, and will furnish 
 sufficient business to justify it. The Commission is empowered to order 
 such connection on complaint of any shipper if the carrier refuses vol- 
 untarily so to construct, maintain and operate the demanded connection. 
 
 Tariffs must be filed with the Commission and conspicuously posted 
 "in every depot, station or office of such carrier where passengers are 
 received for transportation, in such form that they shall be accessible 
 to the public and can be conveniently inspected," showing all local, 
 through, interstate and interforeign rates and charges of every kind 
 relating to the transportation. Where through lines do not provide 
 through rates, the separate rates of each carrier must appear, and if 
 through rates on freight shipped from the United States through a 
 foreign country into the United States are not so made, public customs 
 duties, "as if said freight were of foreign production," are imposed. 
 No changes in such tariff rates can be made except after thirty days 
 notice, unless the Commission shall, in its discretion, in particular 
 instances, or under special or peculiar circumstances or conditions per- 
 mit. The names of all carriers, parties to any tariff, must appear thereon 
 and each must file with the Commission express concurrence therein, 
 and copies of all agreements between carriers in respect to transportation 
 covered by the act must be filed with the Commission. 
 
 The Commission is authorized to prescribe the form of the schedules 
 or tariffs the carriers are required to keep posted for public inspection. 
 All carriers are forbidden to engage in any transportation of any 
 freight or passenger not covered by such published schedules or to 
 charge "a greater or less or different compensation" than shown by the 
 
 33 
 
5 i4 AMERICAN FEDERAL GOVERNMENT 
 
 published schedules, for any service, or extend to any shipper "any 
 privileges or facilities" not specified in such tariffs. 
 
 After May i, 1908, interstate or foreign transportation by any carrier 
 is forbidden of any article or commodity "other than timber and the 
 manufactured products thereof," which has been manufactured, mined 
 or produced by it or under its authority, or which it may own or be inter- 
 ested in, whether in whole or in part, except where necessary and in- 
 tended for its own use as a common carrier. 
 
 Passes and reduced rates are forbidden after this year, except to rail- 
 road men and their families, ministers and persons engaged in religious 
 and charitable work, inmates of soldiers' and sailors' homes, and a few 
 other classes. 
 
 The act requires that all charges shall be "just and reasonable," and 
 prohibits all others. 
 
 The Commission may, sua sponte, or on complaint, investigate any 
 rate, charge, regulation or practice, and may determine whether such 
 rate or practice is "unjust or unreasonable, or unjustly discriminatory, 
 or unduly preferential or prejudicial, or otherwise in violation of any of 
 the provisions of this act" ; may prescribe a maximum "just and reason- 
 able rate or rates, charge or charges," and "what regulation or practice 
 in respect to such transportation is just, fair and reasonable to be there- 
 after followed." Its orders (except for the payment of money) shall 
 take effect in such reasonable time, not less than thirty days, and shall 
 continue in force not exceeding two years, as the Commission may pre- 
 scribe, unless "suspended or modified or set aside by the Commission or 
 be suspended or set aside by a court of competent jurisdiction." 
 
 Whenever carriers, parties to a joint tariff, fail to agree as to the divi- 
 sion thereof, the Commission may determine for them. 
 
 The Commission may, on complaint and hearing, establish through 
 routes and joint rates; determine the proportions of division of rates 
 among them where the carriers refuse or neglect to establish such 
 through routes and joint rates, "provided no reasonable or satisfactory 
 through route exists, and this provision shall apply when one of the con- 
 necting carriers is a water line." 
 
 Where the shipper renders any service or furnishes "any instrumen- 
 tality " used in the transportation, the Commission may hear and de- 
 termine what is a reasonable maximum charge to be paid by the carrier 
 therefor. 
 
 The Commission may, on complaint, after hearing, order the defend- 
 ant carrier to pay complainant the sum of any "award of damages" 
 for a violation of the act. Refusal to pay may be followed by suit by the 
 party entitled, in a Federal Court, wherein the findings and order of 
 the Commission "shall be prima facie evidence of the facts therein 
 stated." If the petitioner prevails, costs, including "a reasonable attor- 
 ney's fee," shall be taxed against the carrier. The complaint must be 
 
LEGISLATIVE PROBLEMS 515 
 
 filed with the Commission within two years from the time "the cause 
 accrues," and court proceedings to enforce any order of the Commission 
 awarding damages within one year from the date of the order. Claims 
 accrued prior to the act may be presented within one year. Where 
 money damages are awarded, a single order may embrace joint plain- 
 tiffs and joint defendants, and suit may be brought in any federal judicial 
 district for its enforcement, " where any one of such joint plaintiffs could 
 maintain such suit against any one of such joint defendants." 
 
 Process may also be served in any other district where any other joint 
 defendant has its principal operating office. 
 
 Service of the Commission's orders are to be made by sending copy 
 thereof through registered mail "to any one of the principal offices or 
 agents of the carrier at his usual place of business," and the registry 
 mail receipt shall be prima facie evidence of the "receipt of such order 
 by the carrier in due course of mail." 
 
 On failure or neglect of any carrier to obey any order of the Commis- 
 sion (other than for the payment of money) the injured party or the 
 Commission may apply "to the Circuit Court in the District where such 
 carrier has its principal operating office or in which the violation or dis- 
 obedience of such order shall happen for an enforcement of such order." 
 Such application is to be by petition and the Court may enforce the 
 order by any proper process. Appeals go direct to the Supreme Court 
 and have precedence over all cases except criminal ones, but do not 
 vacate or suspend the order. These suits are to be brought in the District 
 where the carrier has his principal office. 
 
 In time of actual or threatened war and upon demand of the President, 
 preference must be given over all other traffic to the transportation of 
 troops and materials of war, and the carriers are required to adopt every 
 means within their control to facilitate and expedite the military 
 traffic. 
 
 The act provides that anything done or omitted by any officer or 
 agent of the carrier constituting a misdemeanor under the interstate 
 Commerce acts shall also subject the carrier corporation to like penalties, 
 and if any official shall knowingly offer and give, or any shipper ask or 
 receive any rebate or discrimination, they shall severally be fined from 
 one thousand dollars to twenty thousand dollars or imprisoned not ex- 
 ceeding two years, or be both fined and imprisoned. 
 
 The Commission may require and the carriers must furnish under 
 prescribed penalties annual reports for the preceding year ending 
 June 3oth, as well as monthly reports of earnings and expenses, "or 
 special reports within a specified period and subject to like penalty for 
 default." The annual reports are to be in great detail and show nearly 
 everything concerning the financial condition and physical operation of 
 the road. 
 
 The Commission may also prescribe forms "of any and all accounts, 
 
516 AMERICAN FEDERAL GOVERNMENT 
 
 records and memoranda to be kept by carriers subject to the provisions 
 of this act, including the accounts, records and memoranda of the 
 movement of traffic as well as the receipts and expenditures of moneys," 
 to which the Commission shall at all times have access by its agents, 
 and it is made unlawful under drastic penalties for the carriers to deny 
 such access thereto or "to keep any other accounts, records, or memo- 
 randa than those prescribed or approved by the Commission." False 
 entries thereon by any person is made a misdemeanor punishable by 
 fine not less than one thousand dollars or more than five thousand 
 dollars, or by imprisonment for not less than one nor more than five 
 years, or by both fine and imprisonment. 
 
 Any examiner who divulges any information, except upon judicial 
 direction, is made subject to a fine not exceeding five thousand dollars 
 or imprisonment not exceeding two years, or both. 
 
 On interstate shipments carriers may no longer limit their liability to 
 their own line, but are responsible for loss or damage on the. lines of 
 connecting carriers. 
 
 All existing laws relating to attendance of witnesses, production of 
 evidence, and compelling testimony are made applicable to all proceed- 
 ings and hearings under the new act. 
 
 By a separate act approved on the same date (June 30, 1906), it is 
 provided that in respect to proceedings under the interstate commerce 
 and related acts "immunity shall extend only to a natural person who, 
 in obedience to a subpoena, gives testimony under oath or produces evi- 
 dence, documentary or otherwise, under oath." 
 
 By an act approved June 20, 1906, the time for continuous inter- 
 state transportation of cattle, sheep, swine or other animals has been 
 extended from twenty-eight to thirty-six hours where the owner or 
 custodian so requests the carrier in writing, and requiring unloading, 
 water and feeding under prescribed penalties. 
 
 By an act approved June n, 1906, all interstate carriers are made 
 liable to all employees for injury or death caused by negligence of any 
 of the employees or the defect or insufficiency due to negligence in 
 track equipment, machinery or works. Negligence is made a question 
 of fact for the jury, and slight negligence of the injured employee shall 
 not bar recovery when the negligence of the employer was gross in 
 comparison. No contract of employment nor benefit agreements shall 
 constitute a bar or defense to actions for death or personal injury. 1 
 
 By an act approved June 12, 1906, the importation, exportation or 
 carriage in interstate commerce of falsely or spuriously stamped articles 
 of merchandise made of gold or silver or their alloys is forbidden, and all 
 persons found guilty of violating the act are to be punished as therein 
 prescribed. The act is made effective one year after its passage. 
 
 1 [This act was held unconstitutional by the Supreme Court in 1907. A new act was 
 passed in 1908. See infra, p. 527.] 
 
LEGISLATIVE PROBLEMS 517 
 
 EXTRACTS FROM THE REPORT OF THE INTERSTATE 
 COMMERCE COMMISSION, DECEMBER 23, 1907 
 
 To THE SENATE AND HOUSE OF REPRESENTATIVES: 
 
 The Interstate Commerce Commission has the honor to submit its 
 twenty-first annual report for the consideration of the Congress. 
 
 Little more is attempted in this report than a general statement of 
 the wprk performed by the Commission during the past year in the 
 discharge of its official duties. A considerable part of the time has 
 been occupied in giving administrative construction to various provi- 
 sions of the law for the guidance of both shippers and carriers. To 
 secure the best results of legislation with the least possible delay there 
 was obvious need of a correct and uniform interpretation of the statute. 
 Therefore, without reference to questions arising in particular cases, 
 and to avoid unnecessary controversy, it has seemed our duty to con- 
 strue the law in advance wherever it appeared obscure or ambiguous, 
 so that the obligations of the railroads and the rights of the public 
 might be promptly understood. This has resulted in numerous rulings 
 explaining our view of the meaning and application of different sections 
 and paragraphs of the statute. These rulings have in practically every 
 instance been accepted by the carriers, even in cases where their legal 
 advisers were not entirely in accord with the opinion of the Commission. 
 The rulings and regulations already promulgated will be revised and 
 printed in a separate document. 
 
 The benefits of this course are beyond question. The Commission 
 has endeavored to adopt a workable construction of the law in all cases, 
 and has as a rule announced its conclusions in matters of importance 
 only after conference and discussion with representative shippers and 
 traffic officials. This is especially true with reference to tariff regula- 
 tions, a subject which is treated at some length in a subsequent part of 
 this report. This matter is fundamental in any scheme of public regu- 
 lation. There is scarcely a complaint or controversy which is not based 
 upon the schedules of rates and charges established by the carriers. If 
 those schedules are clear and definite in their statements, there is no 
 excuse for disregarding them. If the rates and regulations are reason- 
 able and plainly announced, the shipper knows his rights and the rail- 
 way official knows the obligations of his company. If the charges are 
 claimed to be excessive or discriminatory, the question can be intelligently 
 determined after the full hearing which the statute provides. It is believed 
 that the efforts of the Commission in this direction have already been 
 fruitful of good results and that they will prove of increasing value, in 
 the future. 
 
 The amended law has now been in force for upwards of fifteen months, 
 and some opinion may be expressed as to its operation and effects. The 
 
5i8 AMERICAN FEDERAL GOVERNMENT 
 
 substantive provisions of the original act, forbidding the exaction of 
 unreasonable charges and prohibiting discriminations between persons 
 and places, were unchanged by the legislation of 1906. The main pur- 
 pose of that legislation was to provide more adequate means for the 
 enforcement of rights and duties already declared to exist. The vital 
 principle of a right is found in the obligation to respect it. Without 
 remedial procedure the declaratory portion of any law is little more than 
 the statutory expression of a sentiment, but when efficient machinery 
 for securing observance is provided the performance of definite .duties 
 and the recognition of definite rights may be expected to follow in ordi- 
 nary conduct without resort to litigation. That this is true in regard 
 to the amended act, and to an extent not generally appreciated, is con- 
 fidently asserted. Just as the value of criminal laws is measured by the 
 peace and security of society rather than the occasional conviction of 
 offenders, so the salutary effects of the present statute are shown in the 
 more general enjoyment of previously existing rights rather than by 
 the number of cases in which the authority of the Commission has been 
 invoked or the list of decisions and prosecutions which makes up the 
 record of administration. 
 
 It is likewise true that the substantial and permanent benefits of this 
 law are indirect and frequently unperceived even by those who in fact 
 profit by its observance. It means much for the present and more for 
 the future that the principles of this law have gained greatly in gen- 
 eral understanding and acceptance. The injustice of many practices 
 which were once almost characteristic of railway operations is now 
 clearly apprehended, and an insistent public sentiment supports every 
 effort for their suppression. By railway managers almost without ex- 
 ception the amended law has been accepted in good faith, and they 
 exhibit for the most part a sincere and earnest disposition to conform 
 their methods to its requirements. It was not to be expected that 
 needed reforms could be brought about without more or less difficulty 
 and delay, but it is unquestionably the fact that great progress has been 
 made and that further improvement is clearly assured. To a gratifying 
 extent there has been readjustment of rates and correction of abuses 
 by the carriers themselves. Methods and usages of one sort and another 
 which operated to individual advantage have been voluntarily changed, 
 and it is not too much to say that there is now a freedom from forbidden 
 discriminations which is actual and general to a degree never before 
 approached. As this process goes on, as special privileges disappear 
 and favoritism ceases to be even suspected, the indirect but not less 
 certain benefits of the law will become more and more apparent. 
 
 An incidental respect in which equality of treatment has been greatly 
 promoted is in such matters as switching, terminal, demurrage, recon- 
 signment, elevation, and other charges making up the aggregate cost of 
 transportation. In the past it was often within the power of a carrier 
 
LEGISLATIVE PROBLEMS 
 
 519 
 
 to waive charges of this nature in favor of particular shippers while 
 collecting them from business rivals. Now the law and the rules of the 
 Commission require all charges of this description to be plainly stated 
 in the tariffs and to be applied with the same exactness and uniformity 
 as the transportation rate itself. This is only one of the ways in which 
 distinct advance has been made toward placing competing shippers in 
 each locality upon a basis of equality in the enjoyment of a public 
 service. 
 
 It is this general and marked improvement in transportation con- 
 ditions that the Commission observes with special gratification. The 
 amended law with its enforceable remedies, the wider recognition of its 
 fundamental justice, the quickened sense of public obligation on the 
 part of railway managers, the clearer perception by shippers of all 
 classes that any individual advantage is morally as well as legally in- 
 defensible, and the augmented influence of the Commission resulting 
 from its increased authority have all combined to materially diminish 
 offensive practices of every sort and to signally promote the purposes 
 for which the law was enacted. 
 
 This results in the voluntary adjustment by the parties without resort 
 to the Commission of a vast number of controversies which otherwise 
 would ripen into complaint and litigation, while in numerous instances 
 a settlement is effected by the friendly intervention of the Commission, 
 through correspondence or personal interviews, between the shipper and 
 carrier directly concerned. The nature and extent of the Commission's 
 efforts in this direction are summarized in another part of this report. 
 
 Where formal proceedings were necessary the Commission has gen- 
 erally been able to afford prompt relief when the facts disclosed appeared 
 to warrant a corrective order. Between August 28, 1906, and Nov- 
 ember 4, 1907, the Commission rendered decisions, after full hearing 
 upon complaint and answer, in 107 contested cases, a list of which 
 appears in a subsequent chapter of this report. In 46 of these cases 
 orders were made against the defendant carriers; in 46 the complaints 
 were dismissed; in the remaining 15 no orders were made, for reasons 
 stated in each proceeding. With a single exception every order made 
 by the Commission in these cases was promptly complied with by the 
 carrier or carriers against which it was directed. In one case a bill was 
 filed to restrain the enforcement of an order, mainly on the ground that 
 the Commission had no authority to make it, and a preliminary stay 
 granted. But the motion for an injunction pendente lite was denied, 
 with the result that the order became effective and is now being com- 
 plied with by the carrier in question. The case has not yet been tried 
 in the Circuit Court. 
 
 Two subjects are discussed in subsequent chapters of this report to 
 which, and the recommendations made in connection therewith, special 
 attention is invited. One is the matter of advances in rates, which the 
 
520 AMERICAN FEDERAL GOVERNMENT 
 
 Commission is wholly without power to prevent; the other, the dread- 
 ful destruction of life in railway accidents, which are not now the 
 subject of official investigation under Federal authority. Other recom- 
 mendations are made in connection with various matters which are 
 deemed of sufficient importance to require consideration in this report. 
 
 In our last annual report mention was made of the car shortage pre- 
 vailing at that time and the consequent distress in certain parts of the 
 country. The inability of the Commission to afford any effective relief 
 was pointed out, and it was further stated that the Commission was 
 not prepared to recommend a definite scheme of legislative action. 
 While the car shortage is not at present so acute as a year ago, it still 
 exists in some sections, and the general question of the provision of 
 adequate transportation facilities unquestionably merits serious con- 
 sideration by the Congress. The whole problem, involving insuffi- 
 cient car and track capacity, congested terminals, slow train movement, 
 and other incidents, may be said to be due to the fact that the facilities 
 of the carriers have not kept pace with the commercial growth of the 
 country. One eminent railroad president has estimated that during 
 the period from 1895 to 1905 the traffic offered for carriage in the 
 United States increased no per cent, while during the same period the 
 instrumentalities for handling this traffic increased only 20 per cent. 
 
 During the past decade the commercial condition of the country has 
 been one of increasing prosperity. If business undertakings propor- 
 tionately increase during future years, the railroads of the country must 
 add to their tracks, cars, and other facilities to an extent difficult to 
 estimate. The ability of the carriers to transport traffic measures the 
 profitable production of this vast country, with its ninety millions of 
 people, abundant capital, and practically unlimited resources. Mani- 
 festly, it is an economic waste for the farm, the mine, or the factory to 
 put labor and capital into the production of commodities which can not 
 be transported to market with reasonable despatch. If the present out- 
 put can not in many instances be transported except after ruinous 
 delays, it is not reasonable to presume that capital will readily seek 
 investment in new undertakings. It may conservatively be stated that 
 the inadequacy of transportation facilities is little less than alarming; 
 that its continuation may place an arbitrary limit upon the future pro- 
 ductivity of the land, and that the solution of the difficult financial and 
 physical problems involved is worthy the most earnest thought and 
 effort of all who believe in the full development of our country and the 
 largest opportunity for its people. 
 
 Under the operation of the Interstate Commerce Act the right to 
 initiate interstate rates rests entirely with the railway, which may, 
 by giving thirty days' notice, put into effect any rate or any regulation 
 or practice affecting a rate which it sees fit. The Commission is not 
 required to approve these rates and has no authority whatever to con- 
 
LEGISLATIVE PROBLEMS 521 
 
 demn them. It can only act upon a rate so established by the railway 
 in case a formal complaint is filed attacking that rate and after a full 
 hearing. This is the express provision of the statute. 
 
 RATE SCHEDULES AND APPLICATION OF RATES 
 
 Definiteness, clearness, and simplicity in stating transportation 
 charges, uniformity in applying the rates so stated, and stable condi- 
 tions are ends aimed at in the law and sought by the Commission in 
 administering it. 
 
 Prior to the enactment of the amended law the time of notice of 
 changes in rates required by the act was too short to give stability to 
 conditions of transportation, even if the terms of the law had been 
 carefully observed. Tariffs were issued upon statutory notice and upon 
 no notice at all. Opportunities to get business were met by issuing a 
 tariff "expiring with this shipment; " by quotation of rates found in 
 some other carrier's tariffs and applicable via another route ; by quota- 
 tion of rates not found in any tariff ; by forwarding under regular tariff 
 rates and refunding an agreed-upon portion thereof and by forwarding 
 under regular tariff rates and agreeing to "protect " any rate of any 
 competing carrier. Some carriers openly published declarations of 
 which the following is a sample: 
 
 "Tariffs published by connecting lines to competitive points on this road, 
 or to points beyond, which do not read in connection with this road, will be 
 protected by this road, if the rates in such tariff are less than those published 
 by originating line in connection with this road." 
 
 As a necessary outcome of such practices the official files of tariffs 
 were very voluminous and contained an endless number of contradic- 
 tions and conflicts. To bring order out of this condition and at the 
 same time have all the carriers conducting transportation to the utmost 
 extent of their overtaxed facilities was an important, a delicate, and a 
 large undertaking. 
 
 This work was approached by the formation, after exhaustive con- 
 ferences with traffic officials of carriers, of a code of regulations gov- 
 erning the construction of tariffs, which was promulgated to become 
 effective May i, 1907, and June i, 1907, as to freight and passenger 
 tariffs, respectively. 
 
 This code has been supplemented from time to time, as occasion 
 demanded, by administrative rulings of the Commission, by which 
 many misunderstandings and differences of opinion have been har- 
 monized. It is pleasing to note that such rulings have, very generally, 
 been cheerfully accepted by carriers and shippers. 
 
522 AMERICAN FEDERAL GOVERNMENT 
 
 As an aid to elimination of the objectionable, contradictory, and 
 conflicting features which were contained in the tariffs that were on 
 file and in use when the amended act became effective, and for the 
 purpose of permitting carriers to promptly adjust interstate rates in 
 harmony with interstate rates that were changed by State authorities, 
 the Commission has exercised its discretion to permit changes in rates 
 and schedules on less than statutory notice more freely than it would 
 under different conditions. 
 
 Many of the features that have been eliminated affected the interests 
 of so many shippers and localities that considerable time was necessarily 
 consumed in arranging for and providing superseding rates and regula- 
 tions which would not work severe or irreparable injury to innocent 
 parties. Much has been done along this line, much is now being done, 
 and much remains to be done. The task is by no means hopeless and, 
 now that a good foundation is laid for it, more progress will be apparent 
 on the surface in the future. In this work the Commission has insisted 
 upon all of the progress that was possible within the limits of the ability 
 of the carriers' tariff and rate forces and the capacity of -the available 
 printing facilities. In the twelve months ended November 30, 1907, 
 there were filed with the Commission 220,982 tariff publications, all 
 containing changes in rates and rules governing transportation, and 
 about 400,000 notices of concurrence in tariffs. 
 
 Under former practices, adopted and followed by the carriers, no 
 provision was made for definite concurrence by a carrier in tariffs issued 
 by another carrier. The general, if not universal, understanding was 
 that a carrier accepted any rates published by another carrier if it did 
 not file specific notice of nonconcurrence therein. This liability was not, 
 however, always accepted, and numerous complications and controver- 
 sies arose from a carrier denying responsibility under a tariff on the 
 ground that it had not specifically concurred therein. The tariff regula- 
 tions adopted by the Commission require affirmative, definite concurrence 
 from a carrier before it may be named as a party to a joint tariff. 
 
 Much traffic is moved under joint tariffs, participated in by many 
 carriers, and issued by joint agent, who acts under powers of attorney 
 given by his several principals. This plan commends itself strongly. 
 It operates to reduce the number of tariff publications and assists greatly 
 in avoiding conflict between tariffs of a given carrier in two or more of 
 which conflicting rates upon the same commodity, between the same 
 points and at the same time are, under old practices, not infrequently 
 found. 
 
 The unrestrained and run-mad competition which has been resorted 
 to in the past has resulted in the establishment of some conditions, privi- 
 leges, contracts, and allowances in connection with the furnishing of 
 transportation by carriers, which created, or which contain the elements 
 of, the discriminations which the law condemns. Many of these are 
 
LEGISLATIVE PROBLEMS 523 
 
 of long standing, are far-reaching in their effects, and involve some fine 
 questions of law. The requirement that every privilege or charge in 
 connection with the transportation offered by a carrier shall be plainly 
 stated in a duly published, filed, and posted tariff will, no doubt, elimi- 
 nate the discriminatory practices, except such as may be the subject of 
 litigation before this Commission or in the courts. 
 
 DIVISION OF PROSECUTIONS 
 
 Early in the present year the Commission organized a new division 
 known as the " division of prosecutions," to take full charge of investiga- 
 tions into criminal violations of the act to regulate commerce. On 
 receipt of information of any violation of the act amounting to a criminal 
 infraction of the law, it becomes the duty of this division to make such 
 investigations as may be necessary to determine whether or not the 
 matter is one proper to be brought to the attention of the Department 
 of Justice. In any case where it is finally determined by the Commission 
 that a criminal prosecution is proper, it is the duty of the division to pre- 
 pare the case for presentation to the United States attorney in the district 
 having jurisdiction. 
 
 In connection with this work of enforcement of the law by means of 
 criminal prosecutions, the Department of Justice and its various dis- 
 trict attorneys have, throughout the year, been active and effective. 
 Almost without exception those prosecutions brought to trial have re- 
 sulted in convictions ; also a number of highly important cases have been 
 won in the appellate courts. 
 
 Investigations during the year by the division of prosecutions give 
 warrant for the statement that rebating by the direct payment of money 
 or by billing at less than the published rates is now far less common 
 than ever before. The amendments to the act to regulate commerce 
 and to the Elkins Act, made in June, 1906, by which imprisonment as 
 a possible penalty was restored, are chiefly responsible for this cessation 
 in rebating by direct methods. 
 
 Preferences are undoubtedly enjoyed by some shippers by which they 
 are given a substantial advantage over their unfavored competitors. 
 The means by which the bulk of these preferences are given are so 
 plainly devices to evade the law that no new legislation is necessary for 
 their suppression. 
 
 OPERATING DIVISION or THE COMMISSION 
 
 Since the twentieth annual report of the Commission was submitted 
 to Congress, 5,156 complaints have been filed with the Commission for 
 
524 AMERICAN FEDERAL GOVERNMENT 
 
 consideration and action. These cases include both formal and informal 
 complaints, as well as proceedings and investigations instituted by the 
 Commission upon its own motion and under resolutions of the Congress. 
 The number of formal cases and investigations instituted during the 
 year was 415, relating directly to the rates and practices of 2,236 carriers. 
 This shows a very great increase over previous years, as the number of 
 such complaints filed in 1905 was 65 and 82 in the year 1906, while the 
 total number filed during the six years previous to 1907 was 350, or 65 
 less than in the present year. A detailed statement of the formal com- 
 plaints docketed during the year, with a brief statement of the provisions 
 of the law claimed to be violated, will be found in Appendix C of this 
 report. In addition to these formal complaints, 359 petitions for repara- 
 tion have been filed and served on more than 2,500 carriers as a result 
 of the decisions of the Commission in the cases of H. H. Tift and others 
 against the Southern Railway Company and others, and Central Yellow 
 Pine Association against the Illinois Central Railroad Company and 
 others, which decisions were sustained by the Supreme Court of the 
 United States. Accompanying these petitions were thousands of pages 
 of tabulated statements showing the shipments of lumber upon which 
 reparation is claimed, adding materially to the work necessary to the 
 filing and serving of these petitions. 
 
 The work of the Commission in all its branches has increased to such 
 an extent that it seems almost impossible to prepare a statement that 
 will show the relative yearly increase with any degree of accuracy. Take, 
 for example, the increase in the number of complaints filed, which, of 
 course, means a corresponding increase in the amount of work performed 
 in the Operating Division alone. In the year 1905, when only 65 com- 
 plaints were filed, it required in the .service of the complaints and the 
 assignment of the cases for hearing the preparation of 2,500 letters and 
 notices, while during the present year this branch of the work, not count- 
 ing general correspondence in regard to the cases, amounted to more 
 than 15,000 letters and notices. In addition to this something like 
 2,500 answers and other pleadings were filed, each one of which had to 
 be filed, docketed, and acknowledged. 
 
 As shown in a detailed statement further on in this report, 276 hear- 
 ings were held during the year at various places in the United States, 
 at which more than 35,000 pages of testimony were taken, amounting 
 to something like 88,000 folios. A comparison with the hearings of 
 former years shows an increase of 350 per cent, as 79 hearings were 
 held in 1905 and 73 in 1906. Some of these hearings occupied the at- 
 tention of one or more Commissioners or special examiners from one 
 day to a week. In one instance eighteen days were occupied in the 
 hearing of one complaint, while a number required more than a week 
 each. 
 
 In the matter of informal complaints filed during the present year an 
 
LEGISLATIVE PROBLEMS 525 
 
 even greater increase is found. During the present year 4,382 complaints 
 of this character were filed with the Commission, as against 503 in the 
 year 1905, and 1,002 in the year 1906, showing an increase of more than 
 400 per cent over the preceding year. It is found impracticable to give 
 a more detailed statement of these informal proceedings "in this report, 
 but it may safely be stated that they allege violations of every section 
 of the law. 
 
 During the year informal reparation claims were awarded to injured 
 shippers by the Commission in 561 cases, aggregating about $104,700. 
 A synopsis of these cases appears in Appendix F of this report, which 
 shows the causes for which the money damages were allowed. About 
 200 reparation claims were denied. So important has this branch of 
 the work become that it has recently been made a special division and 
 transferred to the Division of Statistics and Accounts. 
 
 In the matter of the correspondence of the Commission this steady 
 yearly increase is still further manifested. During the year 1905 the 
 Commission received 23,720 letters and in 1906, 29,966 letters, while 
 during the present year 66,933 letters were received, briefed, filed, and 
 answered, averaging more than 218 letters for each working day in the 
 year. This statement relates entirely to the operating branch of the 
 Commission. 
 
 The increased power vested in the Commission by the recent amend- 
 ments to the act has naturally led to the multiplication of the number 
 of complaints presented by letter, and these complaints relate to every 
 conceivable subject connected with the rates, methods, practices, and 
 service of interstate carriers. 
 
 A fair conception of the work performed by the Commission in the 
 field of regulation is not possible without reference to the results attained 
 in respect to these cases in which formal complaint is not filed, nor 
 proceedings of a formal nature pursued by the complainant. The 
 public is not advised of the full extent of the work accomplished in 
 securing, through correspondence, the voluntary adjustment by carriers 
 of questions in dispute relating to interstate transportation, nor is the 
 public cognizant of the extreme importance and value of the results 
 attained. 
 
 Through the medium of correspondence is secured the settlement of 
 many matters extremely vexatious to shippers. The questions thus 
 amicably adjusted are not alone questions affecting the interest of indi- 
 viduals ; on the contrary, the effect of the action taken by carriers in the 
 adjustment of these complaints is often of widespread interest and ad- 
 vantage to large communities, if not indeed of vital importance to con- 
 siderable sections of country. Controversies arising out of the relations 
 between the carriers themselves are likewise, in many instances, pre- 
 sented to the Commission for arbitration. The Commission is also 
 called upon frequently by traffic officials of carriers to indicate what is 
 
526 AMERICAN FEDERAL GOVERNMENT 
 
 considered to be the proper and lawful course to be pursued in respect 
 to the application of rates or regulations affecting transportation. Thus 
 it will be seen that many great benefits result from the adjustment or 
 settlement through correspondence of questions informally submitted 
 for investigation. 
 
 The traffic officials of the carriers have manifested to a commendable 
 degree a disposition and willingness to fairly and carefully consider the 
 merits of complaints thus called to their attention by the Commission, 
 and have voluntarily reduced their rates and applied corrective measures 
 in numerous cases. 
 
 Naturally many of the informal complaints presented, while involving 
 grievances growing out of conditions related to interstate transportation, 
 are yet not within the purview of the provisions of the statute or the 
 jurisdiction of the Commission. Of the total number of complaints filed 
 almost one-half were cases of this nature. In approximately 2,500 cases 
 the informal complaint made had relation to matters within the juris- 
 diction of the Commission, and in nearly 1,400 cases relief has been 
 secured and amicable adjustment effected through correspondence, 
 without the necessity or expense of formal proceedings. In respect to 
 600 of these cases, including those in which special reparation orders 
 were granted upon submission of claims to the Commission by the con- 
 signee, consignor, or by the carriers themselves, the remedy thus applied 
 by the carriers involved the reduction of rates. 
 
 The adjustment of more than 600 cases, including those claims in 
 respect to which authority was granted to carriers to make special repa- 
 ration, resulted in refund to shippers of a portion of the charges previ- 
 ously collected. Relief has also been secured through the intervention 
 of the Commission in respect to many other miscellaneous matters, 
 among which may be specially mentioned the securing of improved 
 service in cases where shippers complained of being subjected to incon- 
 venience and loss owing to the failure or refusal of carriers to furnish 
 equipment for the transportation of their commodities; also through 
 expediting the settlement of claims filed against railroad companies in 
 cases where unreasonable delay in making final disposition is charged. 
 
 The carriers declined to take action for the removal of the cause of 
 complaint in 875 cases, basing their refusal upon the contention that 
 the rates or practices in regard to which complaint related were just 
 and reasonable. Quite a large number of the informal complaints filed 
 during the year are still pending, awaiting further information or advice 
 from the complainant or action by the carrier. 
 
 Two hundred and seventy-six hearings and investigations of alleged 
 violations of the act to regulate commerce, including several investiga- 
 tions under joint resolutions of Congress, have been had at general ses- 
 sions of the Commission at its office in Washington and at special ses- 
 sions held in New York, and other cities throughout the United States. 
 
LEGISLATIVE PROBLEMS 527 
 
 THE EMPLOYERS' LIABILITY BILL 1 
 
 WASHINGTON, April 10. By far the most important bill of the pres- 
 ent session of Congress has passed the two houses, with only one dis- 
 senting vote recorded against it. Political exigencies demanded that the 
 Republicans enact an employers' liability law to replace the one recently 
 shattered by a Supreme Court decision. The terms and provisions of 
 the law were, in a manner of speaking, unimportant. The main thing 
 was to enact a law which could bear the title of an employers' liability 
 measure. 
 
 Therefore, it has come to pass that the measure of largest general con- 
 sequence passed by Congress at this session, affecting thousands of 
 people, was enacted after forty minutes of restricted discussion in the 
 House, and a brief afternoon of superficial and perfunctory debate in 
 the Senate. Many of the able lawyers in both branches of Congress 
 believe the act will not stand the test of the Supreme Court. If an em- 
 ployers' liability law is finally to take its place on the statute book, they 
 believe, all of the work will have to be done over again. Indeed, so 
 widely prevalent is this belief that the bill, which has been sent to the 
 President for its approval, is in several of its features so clearly uncon- 
 stitutional that in the House Mr. Parker of New Jersey, Mr. Payne of 
 New York, Mr. Keifer of Ohio, openly said as much. Nevertheless, 
 they voted for the bill, leaving Mr. Littlefield of Maine the sole dissenter 
 in either branch against the bill. 
 
 The conditions in the Senate, under which the bill was hurriedly 
 passed yesterday afternoon, caused Senator Teller to make earnest pro- 
 test. Senator Teller was not the only person who confessed to a lack of 
 information about the. bill. Many Senators said privately yesterday 
 afternoon that they had not even read the House bill, which the Senate 
 passed without amendment. It is absurd on the face of it that there 
 should be unanimous agreement in both Houses of Congress on a bill 
 involving important Constitutional questions. In so small a body as 
 the Supreme Court, the proverbial division of the justices is five to four 
 on all cases involving grave Constitutional problems. This was the 
 division on the previously enacted employers' liability law. 
 
 The Senate's hasty action yesterday afternoon came as a surprise. It 
 is no uncommon thing for the members of the House to follow, sheep-like, 
 in a trail blazed for them by their so-called leaders. Observers of legis- 
 lation in Washington have become accustomed to seeing the House 
 passing up undigested legislation to be properly whipped into shape 
 after thorough and intelligent discussion in the Senate. It is. also no 
 uncommon sight to see one of the great annual appropriation bills au- 
 thorizing an expenditure of $20,000,000 or more yawned through the 
 
 1 The New York Evening Post, April 10, 1908. 
 
528 AMERICAN FEDERAL GOVERNMENT 
 
 Senate on a dreary afternoon, and practically without debate. But it 
 does cause comment and surprise when a bill involving Constitutional 
 rights is rattled through the Senate without deliberation and without any 
 debate worthy of the name. 
 
 Senator Knox was so confident that the employers' liability law, which 
 recently failed to meet the Supreme Court test, was unconstitutional, 
 that, before the court had handed down its decision, he had ready for 
 introduction in the Senate another measure intended to meet the objec- 
 tions which he felt sure the court would raise. He precisely foreshadowed 
 the court's decision, and immediately introduced his bill. This is the 
 measure that Senator Teller referred to as "the Senate bill." 
 
 On January 6 last the Supreme Court declared the previously enacted 
 employers' liability act unconstitutional upon the one main ground that 
 it undertook to apply its provisions to all common carriers engaged in 
 interstate commerce, regardless of the fact that injuries may often hap- 
 pen to employees of such carriers who are not at the time of the injury 
 engaged in forwarding interstate commerce. The decision, in which the 
 court was divided four to five held that the failure of Congress to 
 separate the employees who are engaged in interstate commerce at the 
 time of the injury from the mass of the employees of the common carrier, 
 was sufficient to destroy the validity of the act. 
 
 Senator Dolliver, in explaining the enactment which now awaits the 
 approval of the President, asserted that it contained four substantive 
 propositions, which he outlined. 
 
 First, it modifies the old law of the negligence of coemployees. The 
 old law, which took root in the United States two generations ago, was 
 to the effect that an employee injured by the negligence of a fellow- work- 
 man could not recover. This bill abolishes that doctrine, and gives the 
 employee the right to recover for injuries arising from the negligence of 
 his fellow-workman. 
 
 The second proposition modifies the law whereby, in other generations, 
 workmen were held by the court to assume the risks arising from de- 
 fective machinery. 
 
 In the third place, the present enactment modifies radically the law 
 of contributory negligence. As administered by our courts it has been 
 uniformly held that an employee suffering an injury to which his own 
 negligence contributed can not, by reason of that participation in the 
 injury, have any recovery at law. This act liberalizes that doctrine of 
 the law. It is based upon the theory that where an injury occurs partly 
 by reason of the negligence of the employer and partly by reason of the 
 negligence of an employee, the jury ought to determine what part of the 
 injury arises from the negligence of the plaintiff and take away from 
 the sum total of his damages allowed that part which can properly be 
 apportioned to his own negligence. That principle has been called in 
 some of the books the " doctrine of comparative negligence." 
 
LEGISLATIVE PROBLEMS 529 
 
 In the fourth place, the present bill undertakes to modify somewhat 
 the common law applicable to certain agreements or contracts made 
 between employers and their workmen, in which the latter agree, in 
 consideration of some form of insurance or indemnity fund, to give up 
 the right to sue in the courts. 
 
 THE BUREAU OF CORPORATIONS 
 
 [The newly created Department of Commerce and Labor numbers among 
 its subdivisions the Bureau of Corporations. The nature of the work of this 
 bureau is set forth in the following synopsis of the first report of the bureau and 
 by extracts from the report of December, 1906.] 
 
 THE REPORT OF DECEMBER, 1904 
 
 THE first general report of the Commissioner of Corporations, James 
 R. Garfield, covering the period from the organization of the bureau to 
 June 30, 1904, shows that the work of the bureau up to that date had 
 been almost entirely the laying of a foundation of accurate knowledge 
 of the legal and general business conditions with which the bureau 
 must deal and a clear definition of the problems for the consideration of 
 which it was created. The result of the work is summarized as 
 follows : 
 
 (1) Commercial and industrial conditions present the foremost problems 
 of to-day. There exists a deep-rooted general feeling of dissatisfaction with 
 existing conditions. Some causes of dissatisfaction are apparent, and the evils 
 very real and great. 
 
 (2) The present legal conditions under which corporate business is carried 
 on are extremely unsatisfactory. They admit of, and invite, extreme abuse. 
 They are the result of forced growth under divergent pressures, and in their 
 present anomalous state represent the needs or demands of special interests 
 and are not a permanent body of law adopted to provide properly for all the 
 interests involved. Furthermore, the "State system," applied to interstate 
 businesses, has developed additional and peculiar evils; a diversity so great 
 as to amount in operation to anarchy ; an inevitable tendency toward the lowest 
 level of lax regulation, and the unequal and disastrous contest between State 
 Legislatures and commercial forces of national size and power. 
 
 (3) No satisfactory reform is to be expected under the "State system" of 
 incorporation. 
 
 (4) The Federal Government has at its command sufficient power to remedy 
 these conditions in its control of interstate commerce, supplemented by sub- 
 sidiary and incidental powers. 
 
 (5) So far the commerce clause of the Constitution has had a negative de- 
 velopment only, both under Congress and by judicial interpretation. With 
 
 34 
 
530 AMERICAN FEDERAL GOVERNMENT 
 
 the exception of the interstate commerce act the force of which has been 
 seriously weakened by judicial interpretation and the navigation laws, 
 there has been no really affirmative attempt to regulate interstate commerce. 
 The commerce clause has been chiefly used to prevent the interference by States 
 with interstate commerce. 
 
 (6) The creation of this bureau affords a means for getting essential facts. 
 In addition to the value to Congress of such information, the publication of 
 facts, the dissemination of knowledge, will bring into existence the influence 
 of an enlightened public opinion which properly applied would go far to develop 
 the sense of public trust involved in the control of private wealth and the sense 
 of personal responsibility on the part of officers or managers of corporations. 
 
 (7) The work of the bureau can proceed along the lines of inquiry and re- 
 port, adding fact upon fact in proof of existing conditions, but no real remedy 
 can be expected until Congress takes action by affirmative use of the great 
 powers granted under the commerce clause of the Constitution. 
 
 (8) The possible Congressional actions are: 
 
 (a) Delegation to the States of control over interstate commerce. This is 
 believed to be unconstitutional, and secondly subject to all the objections ap- 
 plicable to the present "State system." 
 
 (b) Compulsory Federal incorporation of interstate commerce companies. 
 This is probably legally practicable, but it involves radical industrial and politi- 
 cal changes by the centralization of power in the Federal Government, and 
 presents serious difficulties because of its effect upon the authority of the 
 States over such corporations in matters of taxation and local regulation. Any 
 optional law of this character would not overcome these difficulties. 
 
 (c) Federal license or franchise for interstate commerce. Legally this is 
 practicable; it avoids the legal difficulties of national incorporation as well as 
 the practical one of centralization of power, and gives the national Govern- 
 ment direct regulation of the agencies of interstate and foreign commerce. 
 
 (9) I therefore beg to suggest that Congress be requested to consider the 
 advisability of enacting a law for the legislative regulation of interstate and 
 foreign commerce under a license of franchise, which in general should provide 
 as follows: 
 
 (a) The granting of a Federal franchise or license to engage in interstate 
 commerce. 
 
 (b) The imposition of all necessary requirements as to corporate organ- 
 ization and management as a condition precedent to the grant of such franchise 
 or license. 
 
 (c) The requirement of such reports and returns as may be desired as a 
 condition of the retention of such franchise or license. 
 
 (d) The prohibition of all corporations and corporate agencies from en- 
 gaging in interstate and foreign commerce without such Federal franchise or 
 license. 
 
 (e) The full protection of the grantees of such franchise or license who obey 
 the laws applicable thereto. 
 
 (f) The right to refuse or withdraw such franchise or license in case of vio- 
 lation of law, with appropriate right of judicial appeal to prevent abuse of 
 power by the administrative officer. 
 
 This bureau, under the direction of the secretary of Commerce and Labor, 
 affords the appropriate machinery for the administration of such a law. It is 
 
LEGISLATIVE PROBLEMS 531 
 
 fully appreciated that this recommendation is not new, but has been the sub- 
 ject of most serious and exhaustive consideration by public officials and com- 
 missions, as well as private persons technically well qualified to speak. The 
 Industrial Commission, in its final report on this subject, recommended, among 
 other things, the adoption of a plan quite similar to this. It is neither necessary 
 nor wise to attempt, in this report, to elaborate the details of such an act ; but 
 the bureau has upon its files abundant, and in many particulars, exhaustive 
 information which would be immediately available for the use of Congress or 
 any committee thereof which might have under consideration such a measure. 
 
 WORK OF THE BUREAU 
 
 The report begins with a recital of the law under which the bureau 
 was created, followed by a description of its organization. Its first work 
 was a thorough study of the purposes of its organic law and the jurisdic- 
 tion and powers of the Commissioner. The report says that the work of 
 the bureau falls naturally into the following divisions : 
 
 (a) Special investigations of particular corporations, joint stock companies, 
 or corporate combinations engaged in interstate and foreign commerce. For 
 this purpose the commissioner is given power to compel the production of 
 testimony. 
 
 (b) The collection and publication of useful information regarding corpora- 
 tions engaged in interstate and foreign commerce. 
 
 (c) Insurance companies are included specifically under the work of ob- 
 taining useful information ; but because of the decisions of our courts regarding 
 insurance the question of the power of the commissioner over insurance com- 
 panies requires special consideration. Federal control over insurance and the 
 exercise over insurance corporations of the compulsory powers of the com- 
 missioner rest upon the same legal basis, raising at the outset the question 
 whether insurance is in any of its forms interstate commerce. . . . The rapid 
 development of insurance business, its extent, the enormous amount of money 
 and the diversity of interests involved, and the present business methods sug- 
 gest that under existing conditions insurance is commerce, and may be sub- 
 jected to Federal regulations through affirmation action. by Congress. The 
 whole question is receiving most careful consideration upon both legal and 
 economic grounds. 
 
 (d) Legal research A most important branch of work is the determina- 
 tion of the entire legal situation applicable to the bureau, to its powers, and to 
 its present and future work, developing the same along the following lines : 
 
 (1) Compiling and digesting court decisions applicable to the bureau, to its 
 powers of investigation, its legal status and the means by which it shall per- 
 form its functions, and to the great questions and problems which are before 
 the bureau. 
 
 (2) Compiling and digesting Federal and State statute laws relating to the 
 purposes of the bureau. 
 
 (3) Compiling and comparing the laws of foreign countries upon kindred 
 subjects. 
 
532 AMERICAN FEDERAL GOVERNMENT 
 
 (4) Compiling and digesting in summarized and available form facts show- 
 ing the actual operation of such laws now in existence. 
 
 (5) Preparing in outline such possible and desirable modifications of exist- 
 ing laws relating to the subject-matter of the Bureau's work as may be from 
 time to time indicated by development of that work. 
 
 (6) Determining the legal relations that would be established by the enact- 
 ment of such possible modifications with especial reference to the effects thereof 
 on State laws, and the interrelation of Federal and State jurisdictions. 
 
 (e) Economic and statistical work In this work there will be the greatest 
 possible use of all material available from other Government offices in order 
 to avoid unnecessary duplication of effort, expense, and almost inevitable con- 
 flicts in results. Statistics will be compiled and published only for the purpose 
 of properly presenting the special problems with which the Bureau is dealing. 
 The economic work will necessarily be of vital importance in preparing and 
 presenting the results of special investigations, and in rightly interpreting the 
 mass of information obtained. 
 
 The commissioner's powers are defined as follows: 
 
 Subject to the direction of the secretary of commerce and labor, to investi- 
 gate the organization, conduct, and management of corporations (other than 
 common carriers) engaged in interstate commerce ; to compel by subpoena the 
 attendance of witnesses, and the production of books, papers, and documents 
 for such purpose; to administer oaths; to obtain the aid of the Federal courts 
 in the procuring of such testimony ; to require reports from such corporations ; 
 to investigate the legal conditions applicable to such corporations, and the 
 legal questions raised thereby; and to report to the President the informa- 
 tion so acquired. The commissioner may determine the form of procedure 
 in investigations, subject to the qualification that hearings may not be in 
 public. 
 
 The commissioner has no judicial powers, nor can he make or enforce any 
 orders against corporations or private individuals other than those directly 
 necessitated in procuring information. He can impose no fines or penalties. 
 Even within the scope of his duties, he must invoke the aid of a Federal court 
 for the enforcement of his proper orders or requirements. .... His entire 
 compulsory powers of inquiry are further confined to the consideration of facts 
 relating to corporations, joint stock companies, or corporate combinations. 
 
 The study of the law and industrial conditions, as above outlined, 
 resulted in the adoption of the following general policy regarding the 
 Bureau and the conduct of its work: 
 
 As the commissioner is not charged with the enforcement of any law nor 
 with the prosecution of persons or corporations alleged to be or found to be 
 violating any law, the work of the Bureau is primarily an inquiry into the in- 
 dustrial and legal methods used by the agencies engaged in interstate and for- 
 eign commerce, and the purpose of such inquiry to afford accurate knowledge 
 of industrial conditions upon which there may be based intelligent legislative 
 action. 
 
LEGISLATIVE PROBLEMS 533 
 
 In the investigation of special corporations the commissioner will necessarily 
 acquire knowledge of business facts, the publication of which would be an in- 
 fringement of private rights. The method of reporting and making public the 
 results of these investigations affords a means, through the President, for pro- 
 tecting private rights. In this particular the method of procedure is similar 
 to the action and reports of the comptroller of the currency regarding national 
 banks. There will thus be presented to Congress all relevant facts except such 
 as would afford to any corporation information which would injure the legiti- 
 mate business of a competitor and destroy the incentive for individual superi- 
 ority and thrift. 
 
 While the purpose of inquiries and special investigations is not to discover 
 violations of Federal statutes, yet, if facts are found showing such violation, 
 they will be reported as other facts to the President for such consideration and 
 action as may be appropriate or necessary. 
 
 Under present industrial conditions, secrecy and dishonesty in promotion, 
 overcapitalization, unfair discrimination by means of transportation and other 
 rebates, unfair and predatory competition, secrecy of corporate administration, 
 and misleading or dishonest financial statements are generally recognized as 
 the principal evils. It is admitted that the chief difficulty in the way of pro- 
 viding ample remedies has been the conflict between Federal and State au- 
 thority as to jurisdiction over many of the acts of great industrial agencies, and 
 the uncertainty of the extent of regulation exercised or to be exercised by the 
 Federal Government over agencies engaged in both State and interstate 
 commerce. 
 
 The immediate work is, hence, not to prove the existence of such evils and 
 difficulties, but to find possible remedies for them. The remedies must not be 
 simply to destroy existing bad conditions mere destruction affords only 
 temporary relief but they must provide something better to take the place 
 of what is changed. The imposition of severe penalties will not end industrial 
 evils. We must find and remove their cause, leaving only the extreme or ex- 
 ceptional cases to be dealt with by criminal statutes. 
 
 The Government should secure means for fair business competition, free- 
 dom from unjust discrimination, such publicity of corporate organization and 
 management as will disclose real financial worth and methods, should pro- 
 vide a jurisdiction broad enough to meet existing conditions, and then should 
 fully protect the person or corporation obeying the law and promptly punish 
 the violator of the law. 
 
 The facts upon which remedial legislation must be based are in the pos- 
 session of persons and corporations engaged in business some have been 
 given to the public, others have been incidentally furnished through judicial 
 and legislative proceedings, and others have been held as business secrets. As 
 to the first two classes, the Bureau has been systematically collecting them 
 from all available sources; as to the last class, special inquiries have been 
 made or are being made from particular corporations. In dealing with this 
 class of facts it is recognized that there is a fair ground for discussion as to 
 whether certain questions are infringements upon private rights; hence the 
 following method of procedure has been adopted: 
 
 Inquiry is made directly from the persons or corporations under investiga- 
 tion ; if it be determined that the Government is entitled to the information, it 
 must be given voluntarily or the compulsory process of the statute will be in- 
 
534 AMERICAN FEDERAL GOVERNMENT 
 
 yoked ; if the Government is not entitled to the information, then no detective 
 method will be used to discover it. 
 
 There has been no attempt to define the scope of the inquiry to be made, 
 nor to limit it to certain classes of facts. All facts which will give information 
 regarding interstate and foreign commerce, or will assist Congress in regulating 
 such commerce, are subjects of legitimate inquiry. 
 
 One line of inquiry concerning which question has been raised is as to the 
 cost of production of articles used in or subjects of interstate and foreign com- 
 merce. So far it has not been necessary to test this question in court, but it is 
 believed that aside from any other reason the question is proper because of the 
 power of Congress to impose tariff duties in the regulation of commerce. The 
 ideal tariff duty is the difference between the cost of production at home and 
 abroad ; hence Congress has the right to know what is the cost of production. 
 Furthermore, it is claimed that the tariff gives an unfair advantage to corpora- 
 tions and persons engaged in the manufacture and distribution of protected 
 articles which are the subjects of interstate and foreign commerce. Congress 
 has the right to know whether this be true or not, and this Bureau affords a 
 most appropriate and efficient means for obtaining such information. 
 
 In brief, the policy of the Bureau in the accomplishment of the purposes of 
 its creation is to cooperate with, not antagonize, the business world; the im- 
 mediate object of its inquiries is the suggestion of constructive legislation, not 
 the institution of criminal prosecutions It purposes, through exhaustive in- 
 vestigations of law and fact, to secure conservative action and to avoid ill- 
 considered attack upon corporations charged with unfair or dishonest prac- 
 tices. Legitimate business -- law-respecting persons and corporations 
 have nothing to fear from the proposed exercise of this great governmental 
 power of inquiry. 
 
 The report goes on to discuss corporation law, and the present system 
 of incorporation by States; the various Federal and State anti-trust 
 laws, tax laws, and laws against unfair competition ; the constitutional 
 powers of Congress over corporate business, concluding with remedial 
 legislation. 
 
 ANNUAL REPORT OF THE COMMISSIONER OF CORPORATIONS 1906 
 
 SIR: I have the honor to submit the report of the Commissioner of 
 Corporations for the fiscal year ended June 30, 1906. 
 
 There have been no changes in the Act of Feburary 14, 1903, by 
 which the Bureau was created. Certain important statutory changes, 
 however, have taken place, which do affect the Bureau; first, the Act 
 of Congress approved June 30, 1906, defining the extent to which 
 immunity from prosecution shall be allowed to those giving informa- 
 tion under the compulsory powers of the Commissioner, which act 
 merely declares and makes unquestionable the clear intent of the exist- 
 
LEGISLATIVE PROBLEMS 535 
 
 ing law; and second, the so-called railway-rate law, which amends the 
 Interstate Commerce Act and acts amendatory thereof. 
 
 The total appropriations for the Bureau for the said fiscal year were 
 $217,879.40. The amount of $136,535.80 was expended. The appro- 
 priations for the fiscal year 1906 to 1907 are $185,920. 
 
 The number of persons employed by the Bureau on June 30, 1906, was 
 73. The estimates for the year ending June 30, 1908, are $248,220. 
 
 As the investigations conducted by the Bureau often expand in un- 
 foreseen directions it is impossible to estimate with accuracy the specific 
 work which will be done in a given period. It has been, therefore, wise 
 to keep the organization in a flexible condition, so that its force may 
 be applied as the exigencies of the work develop; with the lump sum 
 appropriation it has been possible to adapt the means to the end desired 
 with comparatively little waste of time or money. 
 
 The legal work of the Bureau in the past year has been largely con- 
 cerned with the interpretation of statutes relating to transportation, 
 together with a consideration of numerous proposed forms of legisla- 
 tion on this subject. Considerable time also has been devoted to 
 laws relating to railway discriminations. The report of the Commis- 
 sioner on the Transportation of Petroleum, which dealt almost entirely 
 with railway discriminations in favor of the Standard Oil Company, 
 has led to a very careful consideration of the interstate commerce act, 
 the Elkins Act, and various other laws affecting transportation. Pur- 
 suant to the letter of the President, submitting the said report to Con- 
 gress, the Department of Justice has taken up the discriminations set 
 forth in the said report and assistance has been given by this Bureau 
 to the Department of Justice in preparing criminal cases in connection 
 therewith. 
 
 Digests of the various State corporation laws in the Bureau have been 
 kept up to date and compilations have been made of certain branches 
 of such laws. 
 
 During the course of the investigation of the oil industry it was dis- 
 covered that a very widespread system of railway discriminations existed 
 in favor of the Standard Oil Company, affecting a very large propor- 
 tion of the country and resulting substantially in giving to the Standard 
 Oil Company an overwhelming advantage in transportation in almost 
 all sections of the country; that this system had been in existence for 
 a number of years, and that largely by virtue of it the Standard had 
 been able to restrict or eliminate competition throughout many parts of 
 the country and thereafter reap the benefits of monopoly. These rail- 
 way discriminations took various forms, often very ingenious in their 
 nature, and so skilfully concealed that their existence was very rarely 
 suspected even by the active competitors of the Standard, although such 
 competitors knew that in general they were doing business at a disad- 
 vantage. This system of discriminations was discovered by the agents 
 
536 AMERICAN FEDERAL GOVERNMENT 
 
 of the Bureau when examining the oil-shipping records and accounts 
 of the various railroads. 
 
 So important was the effect of these discriminations that it was deemed 
 best to make a special report on the Transportation of Petroleum. 
 This report was submitted to the President and by him transmitted 
 to Congress on May 2, 1906. The regular adjournment of Federal 
 Courts for the summer has made it impossible as yet to secure the trial 
 of any of the criminal cases growing out of this investigation, but in- 
 dictments containing 8,193 counts have been returned by the various 
 grand juries. It is claimed that the various devices by which these 
 discriminations were obtained are permissible under the law, but this 
 contention seems untenable. The purpose of the law is to provide 
 equality of opportunity and treatment to all shippers. The law deals 
 with the result, not the device by which the result is accomplished. 
 The more clever the device the more flagrant is the violation of the 
 law, for wilful intent to evade is shown. If this be not the true inter- 
 pretation of the law, it becomes worse than useless, because it offers 
 false security and opens the door to fraud. 
 
 A most striking and important result immediately followed the in- 
 vestigation of the Bureau; the railroads canceled substantially all the 
 secret rates, illegal or improper discriminations, and in many cases the 
 discriminations in open rates. Thus a widespread system of railway 
 discrimination was wiped out of existence because of the discovery by 
 the agents of the Bureau and before any prosecutions were brought 
 thereon. The shippers of oil advise the Bureau that for the first time 
 in many years they are now rapidly obtaining equality of treatment 
 from the transportation companies. 
 
 Work on the "other phases of the oil industry and the investigations 
 of the tobacco, steel, sugar, and coal industries are well advanced; 
 special reports thereon will be made in due course. An inquiry into 
 canal and water transportation has been started. 
 
 The work of the Bureau during the past year presents very strik- 
 ingly the power of efficient publicity for the correction of corporate 
 abuses wholly apart from the penal or remedial processes of the Courts. 
 No more convincing illustration of this power has been given than the 
 experience of the Bureau in connection with the above-mentioned 
 system of railway discriminations in favor of the Standard Oil Com- 
 pany and the change of the system by its mere exposure. In most 
 cases, as soon as the officers of a railroad were aware that the agent of 
 the Bureau had discovered a discrimination, the improper rate was 
 canceled or the discrimination removed. This action on the part of 
 the railroad officers was all the more striking inasmuch as it could hardly 
 have been taken with a view to escape from criminal liability, because 
 that criminal liability, if existing at all, had already been incurred and 
 could not be mitigated or evaded by cancellation of the discriminatory 
 
LEGISLATIVE PROBLEMS 537 
 
 rate or regulation ; and further, the fact of that voluntary action was a 
 convincing admission of the unfairness of the rate or regulation. In 
 short, the experience of the Bureau indicates that enforced publicity of 
 facts is a most efficient means of putting an end to such discriminations. 
 
 A great advance toward publicity has been made by the new law 
 increasing the powers of the Interstate Commerce Commission. All 
 books and records of railroad companies are now open to the examina- 
 tion of agents of the Commission. The Government will no longer be 
 hampered by being limited to search for single items, but every entry, 
 every record will be scrutinized. 
 
 The meat-inspection and pure-food laws are the most recent examples 
 of the extension of the principle of publicity. The meat-inspection 
 law goes further by affirmatively .establishing the principle of impos- 
 ing a condition precedent upon the right to engage in interstate com- 
 merce. Meat products cannot be transported in interstate and foreign 
 commerce until they have been subjected to Federal inspection and 
 such inspection evidenced by labels. This is in effect the requirement 
 of a license to engage in interstate commerce. 
 
 The investigations conducted by the Bureau, the effect of the inter- 
 state-commerce laws, the results of prosecutions under the anti-trust 
 law, the reasons which compelled the enactment of the meat-inspection 
 and pure-food laws, all lead me to earnestly urge again the desirability 
 of and necessity for the establishment of Federal inspection and super- 
 vision of the greater industrial corporations engaged in interstate and 
 foreign commerce, substantially as outlined in the license plan sug- 
 gested in my annual reports for 1904 and 1905. 
 
 Such a plan is but the extension of a well-tried and efficient means 
 for the proper regulation of business. It will not interfere with the 
 power and authority of the States over the corporations created under 
 State laws. It will be the exercise of direct affirmative power by the 
 Federal Government over the actions of corporations when engaged in 
 interstate and foreign commerce, which cannot be dealt with by State 
 authority. It will give a simple and effective method of dealing with 
 such corporations in a jurisdiction coextensive with their field of 
 operation. 
 
 Such inspection is not an invasion of private rights. A corporation 
 should not be treated as an individual; it has great powers and enjoys 
 public rights which an individual cannot exercise; it is given some of 
 the attributes of sovereignty, i. e., perpetual life, and in some instances 
 the right of eminent domain; the unrestricted exercise of its powers 
 may permit it to grow strong enough to unduly influence and in meas- 
 ure control the political life of the State which created it. Such a result 
 would be intolerable. Hence, for reasons of public safety and self- 
 preservation a government must retain and exercise proper regulation 
 of and control over corporations. Such regulation and control can not 
 
538 AMERICAN FEDERAL GOVERNMENT 
 
 be wisely exercised unless the government has full and accurate knowl- 
 edge of the ownership, management, and properties of corporations. 
 This knowledge can only be obtained by opening all the books and 
 records of corporations to public inspection, but protecting, of course, 
 the corporation from unreasonable examination or the injurious ex- 
 posure of its legitimate business. 
 
 The suggested Federal license law will restore individual responsi- 
 bility and prevent the corporation from being the hiding place of the 
 irresponsible, dishonest, or corrupt manager. As long as the individ- 
 ual can hide behind a corporation, can conceal his acts upon the records 
 of a corporation, can escape personal responsibility by means of the 
 corporation, so long will the corporation be used as an agency for im- 
 position, fraud, and corruption. The moment the books and records 
 of a corporation are open to proper public inspection the danger of 
 such wrongs will be reduced to a minimum. The corporation is not 
 then soulless, for the individuals who control it are known, and personal 
 responsibility for its actions can be instantly fixed upon them. 
 
 Such a law will afford a means for gaining accurate information, so 
 that the people of our country may form an intelligent opinion of indus- 
 trial conditions, and not be driven to extreme and unwise action by 
 the clamor of those who assail all great corporate interests because some 
 have done ill. 
 
 Above all, a license system will provide the most effective method 
 for dealing with the corporation whose managers violate law, by pro- 
 viding that the penalty for such violation shall be the revocation of 
 the license, and the consequent denial of the opportunity to engage in 
 interstate commerce. Such a penalty should not, of course, be imposed 
 without affording the corporation opportunity to appeal to the courts 
 and obtain necessary protection against unjustifiable or improper ex- 
 ecutive action. 
 
 Respectfully, JAMES RUDOLPH GARFIELD, 
 
 Commissioner of Corporations. 
 
 The SECRETARY OF COMMERCE AND LABOR. 
 
 PRESERVATION AND DEVELOPMENT OF NATURAL 
 RESOURCES 
 
 [The natural resources of the United States appeared unlimited even in the 
 last generation, but at the present time the nation and its leaders are coming to 
 realize that the wasteful methods of exploitation which have thus far been em- 
 ployed can no longer be tolerated lest the county should lose its rich inheritance. 
 In order to preserve and develop the natural resources, new administrative 
 services have been established in the federal and state governments, and laws 
 
LEGISLATIVE PROBLEMS 539 
 
 have been passed designed to protect the national wealth against wasteful 
 methods of exploitation. The questions involved in this matter are illustrated 
 by the following selections.] 
 
 FROM THE SECOND ANNUAL MESSAGE OF PRESIDENT CLEVELAND, 
 
 DECEMBER, 1886 
 
 THE recommendations of the Secretary of the Interior and the Commis- 
 sioner of the General Land Office looking to the better protection of 
 public lands and of the public surveys, the preservation of national for- 
 ests, the adjudication of grants to States and incorporations and of 
 private land claims, and the increased efficiency of the public-land 
 service, are commended to the attention of Congress. To secure the 
 widest distribution of public lands in limited quantities among settlers 
 for residence and cultivation, and thus make the greatest number of 
 individual homes, was the primary object of the public-land legislation 
 in the early days of the republic. This system was a simple one. It 
 commenced with an admirable scheme of public surveys, by which the 
 humblest citizen could identify the tract upon which he wished to estab- 
 lish his home. The price of lands was placed within the reach of all the 
 enterprising, industrious, and honest pioneer citizens of the country. 
 It was soon, however, found that the object of the laws was perverted, 
 under the system of cash sales, from a distribution of land among the 
 people to an accumulation of land capital by wealthy and speculative 
 persons. To check this tendency a preference right of purchase was 
 given to settlers on the land, a plan which culminated in the general Pre- 
 emption Act of 1841. 
 
 The foundation of this system was actual residence and cultivation. 
 Twenty years later the homestead law was devised more surely to place 
 actual homes in the possession of actual cultivators of the soil. The 
 land was given without price, the sole conditions being residence, im- 
 provement, and cultivation. Other laws have followed, each designed 
 to encourage the acquirement and use of land in limited individual 
 quantities. But in later years these laws, through vicious administra- 
 tive methods and under changed conditions of communication and 
 transportation, have been so evaded and violated that their beneficent 
 purpose is threatened with entire defeat. The methods of such evasions 
 and violations are set forth in detail in the reports of the Secretary of the 
 Interior and Commissioner of the General Land Office. The rapid 
 appropriation of our public lands without bona fide settlement or culti- 
 vation, and not only without intention of residence, but for the purpose 
 of their aggregation in large holdings, in many cases in the hands of 
 foreigners, invites the serious and immediate attention of Congress. 
 
 The energies of the land department have been devoted, during 
 the present administration, to remedy defects and correct abuses in the 
 
540 AMERICAN FEDERAL GOVERNMENT 
 
 public-land service. The results of these efforts are so largely in the 
 nature of reforms in the processes and methods of our land system as to 
 prevent adequate estimate; but it appears by a compilation from the 
 reports of the Commissioner of the General Land Office, that the im- 
 mediate effect in leading cases which have come to a final termination, 
 has been the restoration to the mass of public lands of 2,750,000 acres; 
 that 2,370,000 acres are embraced in investigations now pending before 
 the Departments of the courts, and that the action of Congress has been 
 asked to effect the restoration of 2,790,000 acres additional; besides 
 which four million acres have been withheld from reservation, and the 
 rights of entry thereon maintained. 
 
 I recommend the repeal of the Preemption and Timberculture Acts, 
 and that the homestead laws be so amended as better to secure 
 compliance with their requirements of residence, improvement, and cul- 
 tivation for the period of five years from date of entry, without com- 
 mutation or provision for speculative relinquishment. I also recommend 
 the repeal of the desert-land laws, unless it shall be the pleasure of the 
 Congress so to amend these laws as to render them less liable to abuses. 
 As the chief motive for an evasion of the laws, and the principal cause 
 of their result in land accumulation instead of land distribution, is the 
 facility with which transfers are made of the right intended to be secured 
 to settlers, it may be deemed advisable to provide by legislation some 
 guards and checks upon the alienation of homestead rights and lands 
 covered thereby until patents issue. 
 
 ADDRESS OF PRESIDENT ROOSEVELT ON NATURAL 
 
 RESOURCES, BEFORE THE MEETING OF 
 
 GOVERNORS, 1908 
 
 GOVERNORS of the several States ; and gentlemen : I welcome you to 
 this conference at the White House. You have come hither at my re- 
 quest so that we may join together to consider the question of the con- 
 servation and use of the great fundamental sources of wealth of this 
 nation. So vital is this question, that for the first time in our history the 
 chief executive officers of the States separately, and of the States together 
 forming the nation, have met to consider it. 
 
 With the Governors come men from each state chosen for their special 
 acquaintance with the terms of the problem that is before us. Among 
 them are experts in natural resources and representatives of national 
 organizations concerned in the development and use of these resources ; 
 the Senators and Representatives in Congress ; the Supreme Court, the 
 Cabinet, and the Inland Waterways Commission have likewise been 
 invited to the conference, which is therefore national in a peculiar sense. 
 
LEGISLATIVE PROBLEMS 541 
 
 This conference on the conservation of natural resources is in effect 
 a meeting of the representatives of all the people of the United States 
 called to .consider the weightiest problem now before the nation ; and 
 the occasion for the meeting lies in the fact that the natural resources of 
 our country are in danger of exhaustion if we permit the old wasteful 
 methods of exploiting them longer to continue. 
 
 With the rise of peoples from savagery to civilization, and with the 
 consequent growth in the extent and variety of the needs of the average 
 man, there comes a steadily increasing growth of the amount demanded 
 by this average man from the actual resources of the country. Yet, 
 rather curiously, at the same time the average man is apt to lose his 
 realization of this dependence upon nature. 
 
 Savages, and very primitive peoples generally, concern themselves only 
 with superficial natural resources; with those which they obtain from 
 the actual surface of the ground. As peoples become a little less primitive, 
 their industries, although in a rude manner, are extended to resources 
 below the surface ; then, with what we call civilization and the extension 
 of knowledge, more resources come into use, industries are multiplied, 
 and foresight begins to become a necessary and prominent factor in life. 
 Crops are cultivated; animals are domesticated; and metals are 
 mastered. 
 
 Every step of the progress of mankind is marked by the discovery and 
 use of natural resources previously unused. Without such progressive 
 knowledge and utilization of natural resources population could not 
 grow, nor industries multiply, nor the hidden wealth of the earth be 
 developed for the benefit of mankind. 
 
 RAPID PACE OF PRESENT-DAY LIVING 
 
 From the first beginnings of civilization, on the banks of the Nile and 
 the Euphrates, the industrial progress of the world has gone on slowly, 
 with occasional setbacks, but on the whole steadily, through tens of 
 centuries to the present day. But of late the rapidity of the process has 
 increased at such a rate that more space has been actually covered 
 during the century and a quarter occupied by our national life than 
 during the preceding six thousand years that take us back to the earliest 
 monuments of Egypt, to the earliest cities of the Babylonian plain. 
 
 When the founders of this nation met at Independence Hall in Phila- 
 delphia the conditions of commerce had not fundamentally changed 
 from what they were when the Phoenician keels first furrowed the lonely 
 waters of the Mediterranean. The differences were those of degree, not 
 of kind, and they were not in all cases even those of degree. Mining was 
 carried on fundamentally as it had been carried on by the Pharaohs in 
 the countries adjacent to the Red Sea. 
 
 The wares of the merchants of Boston, of Charleston, like the wares 
 
542 AMERICAN FEDERAL GOVERNMENT 
 
 of the merchants of Nineveh and Sidon, if they went by water, were 
 carried by boats propelled by sails or oars ; if they went by land, were 
 carried in wagons drawn by beasts of draught or in packs on the backs 
 of beasts of burden. The ships that crossed the high seas were better 
 than the ships that had once crossed the ^gean, but they were of the 
 same type, after all they were wooden ships propelled by sails ; and 
 on land, the roads were not as good as the roads of the Roman empire, 
 while the service of the posts was probably inferior. 
 
 In Washington's time anthracite coal was known only as a useless 
 black stone ; and the great fields of bituminous coal were undiscovered. 
 As steam was unknown, the use of coal for power production was un- 
 dreamed of. Water was practically the only source of power, save the 
 labor of men and animals; and this power was used only in the most 
 primitive fashion. But a few small iron deposits had been found in this 
 country, and the use of iron by our countrymen was very small. Wood 
 was practically the only fuel, and what lumber was sawed was consumed 
 locally, while the forests were regarded chiefly as obstructions to settle- 
 ment and cultivation. 
 
 Such was the degree of progress to which civilized mankind had at- 
 tained when this nation began its career. It is almost impossible for us 
 in this day to realize how little our revolutionary ancestors knew of the 
 great store of natural resources whose discovery and use have been such 
 vital factors in the growth and greatness of this nation, and how little 
 they required to take from this store in order to satisfy their needs. 
 
 RESOURCES AND GROWTH OF THE UNITED STATES 
 
 Since then our knowledge and use of the resources of the present ter- 
 ritory of the United States have increased a hundredfold. Indeed, the 
 growth of this nation by leaps and bounds makes one of the most strik- 
 ing and important chapters in the history of the world. Its growth has 
 been due to the rapid development, and alas ! that it should be said, to 
 the rapid destruction, of our natural resources. Nature has supplied 
 to us in the United States, and still supplies to us, more kinds of resources 
 in a more lavish degree than has ever been the case at any other time or 
 with any other people. Our position in the world has been attained by 
 the extent and thoroughness of the control we have achieved over nature ; 
 but we are more, and not less, dependent upon what she furnishes than 
 at any previous time of history since the days of primitive man. 
 
 Yet our fathers, though they knew so little of the resources of the 
 country, exercised a wise forethought in reference thereto. Washington 
 clearly saw that the perpetuity of the States could only be secured by 
 union, and that the only feasible basis of union was an economic one ; 
 in other words, that it must be based on the development and use of 
 
LEGISLATIVE PROBLEMS 543 
 
 their natural resources. Accordingly, he helped to outline a scheme of 
 commercial development, and by his influence on Interstate Waterways 
 Commission was appointed by Virginia and Maryland. 
 
 It met near where we are now meeting, in Alexandria, adjourned to 
 Mount Vernon, and took up the consideration of interstate commerce 
 by the only means then available, that of water. Further conferences 
 were arranged, first at Annapolis and then at Philadelphia. It was in 
 Philadelphia that the representatives of all the States met for what was 
 in its original conception merely a waterways conference ; but when they 
 had closed their deliberations the outcome was the Constitution which 
 made the States into a nation. 
 
 The Constitution of the United States thus grew in large part out of 
 the necessity for united action in the wise use of one of our natural 
 resources. The wise use of all of our natural resources, which are our 
 national resources as well, is the great material question of to-day. I 
 have asked you to come together now because the enormous consump- 
 tion of these resources, and the threat of imminent exhaustion of some 
 of them, due to reckless and wasteful use, once more calls for common 
 effort, common action. 
 
 Since the days when the Constitution was adopted, steam and elec- 
 tricity have revolutionized the industrial world. Nowhere has the revo- 
 lution been so great as in our own country. The discovery and utiliza- 
 tion of mineral fuels and alloys have given us the lead over all other 
 nations in the production of steel. The discovery and utilization of coal 
 and iron have given us our railways, and have led to such industrial 
 development as has never before been seen. The vast wealth of lumber 
 in our forests, the riches of our soils and mines, the discovery of gold 
 mineral oils, combined with the efficiency of our transportation, have 
 made the conditions of our life unparalleled in comfort and convenience. 
 
 PRESENT DRAIN ON OUR RESOURCES 
 
 The steadily increasing drain on these natural resources has promoted 
 to an extraordinary degree the complexity of our industrial and social 
 life. Moreover, this unexampled development has had a determining 
 effect upon the character and opinions of our people. The demand for 
 efficiency in the great task has given us vigor, effectiveness, decision, and 
 power, and a capacity for achievement which in its own lines has never 
 yet been matched. So great and so rapid has been our material growth 
 that there has been a tendency to lag behind in spiritual and moral 
 growth ; but that is not the subject upon which I speak to you to-day. 
 
 Disregarding for the moment the question of moral purpose, it is safe 
 to say that the prosperity of our people depends directly on the energy 
 and intelligence with which our natural resources are used. It is equally 
 
544 AMERICAN FEDERAL GOVERNMENT 
 
 clear that these resources are the final basis of national power and per- 
 petuity. Finally, it is ominously evident that these resources are in the 
 course of rapid exhaustion. 
 
 This nation began with the belief that its landed possessions were 
 illimitable and capable of supporting all the people who might care to 
 make our country their home ; but already the limit of unsettled land is 
 in sight and, indeed, but little land fitted for agriculture now remains 
 unoccupied, save what can be reclaimed by irrigation and drainage. We 
 began with an unapproached heritage of forests ; more than half of the 
 timber is gone. We began with coal fields more extensive than those of 
 any other nation, and with iron ores regarded as inexhaustible, and many 
 experts now declare that the end of both iron and coal is in sight. 
 
 The mere increase in our consumption of coal during 1907 over 1906 
 exceeded the total consumption in 1876, the centennial year. The enor- 
 mous stores of mineral, oil, and gas are largely gone. Our natural water- 
 ways are not gone, but they have been so injured by neglect, and by the 
 division of responsibility and utter lack of system in dealing with them, 
 that there is less navigation on them now than there was fifty years ago. 
 Finally, we began with soils of unexampled fertility, and we have so 
 impoverished them by injudicious use and by failing to check erosion 
 that their crop-producing power is diminishing instead of increasing. 
 In a word, we have thoughtlessly, and to a large degree unnecessarily, 
 diminished the resources upon which not only our prosperity but the 
 prosperity of our children must always depend. 
 
 We have become great because of the lavish use of our resources, and 
 we have just reason to be proud of our growth. But the time has come 
 to inquire seriously what will happen when our forests are gone, when 
 the coal, the iron, the oil, and the gas are exhausted, when the soils shall 
 have been still further impoverished and washed into the streams, pol- 
 luting the rivers, denuding the fields, and obstructing navigation. These 
 questions do not relate only to the next century or to the next generation. 
 It is time for us now as a nation to exercise the same reasonable foresight 
 in dealing with our great natural resources that would be shown by any 
 prudent man in conserving and widely using the property which contains 
 the assurance of well-being for himself and his children. 
 
 Two CLASSES OF RESOURCES 
 
 The natural resources I have enumerated can be divided into two 
 sharply distinguished classes accordingly as they are or are not capable 
 of renewal. Mines, if used, must necessarily be exhausted. The min- 
 erals do not and can not renew themselves. Therefore, in dealing with the 
 coal, the oil, the gas, the iron, the metals generally, all that we can do is 
 to try to see that they are wisely used. The exhaustion is certain to 
 come in time. 
 
LEGISLATIVE PROBLEMS 545 
 
 The second class of resources consists of those which can not only be 
 used in such manner as to leave them undiminished for our children, 
 but can actually be improved by wise use. The soil, the forests, the 
 waterways come in this category. In dealing with mineral resources, 
 man is able to improve on nature only by putting the resources to a 
 beneficial use which in the end exhausts them; but in dealing with the 
 soil and its products man can improve on nature by compelling the 
 resources to renew and even reconstruct themselves in such manner as 
 to serve increasingly beneficial uses - while the living waters can be so 
 controlled as to multiply their benefits. 
 
 Neither the primitive man nor the pioneer was aware of any duty to 
 posterity in dealing with the renewable resources. When the American 
 settler felled the forests, he felt that there was plenty of forest left for 
 the sons who came after him. When he exhausted the soil of his farm 
 he felt that his son could go West, and take up another. So it was with 
 his immediate successors. When the soil-wash from the farmer's fields 
 choked the neighboring river he thought only of using the railway rather 
 than boats for moving his produce and supplies. 
 
 Now all this is changed. On the average the son of the farmer of to- 
 day must make his living on his father's farm. There is no difficulty in 
 doing this if the father will exercise wisdom. No wise use of a farm 
 exhausts its fertility. So with the forests. We are over the verge of a 
 timber famine in this country, and it is unpardonable for the nation or 
 the States to permit any further cutting of our timber, save in accordance 
 with a system which will provide that the next generation shall see the 
 timber increased instead of diminished. Moreover, we can add enor- 
 mous tracts of the most valuable possible agricultural land to the na- 
 tional domain by irrigation in the arid and semi-arid regions and by 
 drainage of great tracts of swamp land in the humid regions. We can 
 enormously increase our transportation facilities by the canalization 
 of our rivers so as to complete a great system of waterways on the Pacific, 
 Atlantic, and Gulf coasts, and in the Mississippi valley, from the Great 
 Plains to the Alleghenies, and from the northern lakes to the mouth of 
 the mighty Father of Waters. But all these various uses of our natural 
 resources are so clearly connected that they should be coordinated, and 
 should be treated as part of one coherent plan and not in haphazard 
 and piecemeal fashion. 
 
 It is largely because of this that I appointed the Waterways Commis- 
 sion last year, and that I have sought to perpetuate its work. I wish 
 to take this opportunity to express in heartiest fashion my acknowl- 
 edgment to all the members of the Commission. At great personal 
 sacrifice of time and effort they have rendered a service to the public 
 for which we cannot be too grateful. Especial credit is due to the initi- 
 ative, the energy, the devotion to duty, and the far-sightedness of Gifford 
 Pinchot, to whom we owe so much of the progress we have already 
 
 35 
 
546 AMERICAN FEDERAL GOVERNMENT 
 
 made in handling this matter 0f the coordination and conservation of 
 natural resources. If it had not been for him this convention neither 
 would nor could have been called. 
 
 DUTY OF THE NATION 
 
 We are coming to recognize as never before the right of the nation to 
 guard its own future in the essential matter of natural resources. In the 
 past we have admitted the right of the individual to injure the future of 
 the republic for his own present profit. The time has come for a change. 
 As a people, we have the right and the duty, second to none other but 
 the right and duty of obeying the moral law, of requiring and doing 
 justice, to protect ourselves and our children against the wasteful devel- 
 opment of our natural resources, whether that waste is caused by the 
 actual destruction of such resources or by making them impossible of 
 development hereafter. 
 
 Any right-thinking father earnestly desires and strives to leave his son 
 both an untarnished name and a reasonable equipment for the struggle 
 of life. So this nation, as a whole, should earnestly desire and strive to 
 leave to the next generation the national honor unstained and the national 
 resources unexhausted. There are signs that both the nation and the 
 States are waking to a realization of this great truth. On March 10, 
 1908, the Supreme Court of Maine rendered an exceedingly important 
 judicial decision. This opinion was rendered in response to questions 
 as to the right of the Legislature to restrict the cutting of trees on private 
 land for the prevention of droughts and floods, the preservation of the 
 natural water supply, and the prevention of the erosion of such lands, 
 and the consequent filling up of rivers, ponds, and lakes. The forests 
 and water power of Maine constitute the larger part of her wealth and 
 form the basis of her industrial life, and the question submitted by the 
 Maine Senate to the Supreme Court and the answer of {he Supreme 
 Court alike bear testimony to the wisdom of the people of Maine, and 
 clearly define a policy of conservation of natural resources, the adoption 
 of which is of vital importance, not merely to Maine, but to the whole 
 country. 
 
 POLICY OF PRESERVATION 
 
 Such a policy will preserve soil, forests, water power as a heritage for 
 the children and the children's children of the men and women of this 
 generation ; for any enactment that provides for the wise utilization of 
 the forest, whether in public or private ownership, and for the conserva- 
 tion of the water resources of the country, must necessarily be legislation 
 that will promote both private and public welfare ; for flood prevention, 
 
LEGISLATIVE PROBLEMS 547 
 
 water-power development, preservation of the soil, and improvement of 
 navigable rivers are all promoted by such a policy of forest conservation. 
 
 The opinion of the Maine supreme bench sets forth unequivocally the 
 principle that the property rights of the individual are subordinate to 
 the rights of the community, and especially that the waste of wild timber 
 land derived originally from the State, involving as it would the im- 
 poverishment of the State and its people, and thereby defeating one 
 great purpose of government, may properly be prevented by State 
 restrictions. 
 
 The court says there are two reasons why the right of the public to 
 control and limit the use of private property is peculiarly applicable to 
 property in land: " First, such property is not the result of productive 
 labor, but is derived solely from the State itself, the original owner; 
 second, the amount of land being incapable of increase, if the owners 
 of large tracts can waste them at will without State restriction, the State 
 and its people may be helplessly impoverished, and one great purpose 
 of government defeated. . . . We do not think the proposed legislation 
 would operate to 'take' private property within the inhibition of the 
 Constitution. While it might restrict the owner of wild and unculti- 
 vated lands in his use of them, might delay his taking some of the prod- 
 uct, might delay his anticipated profits and even thereby might cause 
 him some loss of profit, it would nevertheless leave him his lands their 
 product and increase, untouched, and without diminution of title, estate, 
 or quantity. He would still have large measure of control and large 
 opportunity to realize values. He might suffer delay but not privation. 
 . . . The proposed legislation . . . would be within the legislative power 
 and would not operate as a taking of private property for which com- 
 pensation must be made." 
 
 The Court of Errors and Appeals of New Jersey has adopted a 
 similar view, which has recently been sustained by the Supreme Court 
 of the United States. In delivering the opinion of the court on April 6, 
 1908, Mr. Justice Holmes said: 
 
 "The State as quasi-sovereign and representative of the interests of the 
 public has a standing in court to protect the atmosphere, the water, 
 and the forests within its territory, irrespective of the assent or dissent 
 of the private owners of the land most immediately concerned. ... It 
 appears to us that few public interests are more obvious, indisputable, 
 and independent of particular theory than the interest of the public of 
 a^State to maintain the rivers that are wholly within it substantially un- 
 diminished, except by such drafts upon them as the guardian of the 
 public welfare may permit for the purpose of turning them to a more 
 perfect use. This public interest is omnipresent wherever there is a 
 
 State, and grows more pressing as population grows We are of 
 
 opinion, further, that the constitutional power of the State to insist 
 that its natural advantages shall remain unimpaired by its citizens is 
 
548 AMERICAN FEDERAL GOVERNMENT 
 
 not dependent upon any nice estimate of the extent of present use or 
 speculation as to future needs. The legal conception of the necessary 
 is apt to be confined to somewhat rudimentary wants, and there are 
 benefits from a great river that might escape- a lawyer's view. But the 
 State is not required to submit even to an aesthetic analysis. Any analy- 
 sis may be inadequate. It finds itself in possession of what all admit 
 to be a great public good, and what it has it may keep and give no one a 
 reason for its will." 
 
 These decisions reach the root of the idea of conservation of our 
 resources in the interests of our people. 
 
 FROM THE MESSAGE OF PRESIDENT ROOSEVELT, 
 DECEMBER 3, 1907 
 
 Inland Waterways. The conservation of our natural resources and 
 their proper use constitute the fundamental problem which underlies 
 almost every other problem of our National life. We must maintain for 
 our civilization the adequate material basis without which that civiliza- 
 tion cannot exist. We must show foresight, we must look ahead. As a 
 nation we not only enjoy a wonderful measure of present prosperity 
 but if this prosperity is used aright it is an earnest of future success 
 such as no other nation will have. The reward of foresight for this 
 Nation is great and easily foretold. But there must be the look ahead, 
 there must be a realization of the fact that to waste, to destroy, our 
 natural resources, to skin and exhaust the land instead of using it so as 
 to increase its usefulness, will result in undermining in the days of our 
 children the very prosperity which we ought by right to hand down 
 to them amplified and developed. For the last few years, through sev- 
 eral agencies, the Government has been endeavoring to get our people 
 to look ahead and to substitute a planned and orderly development of 
 our resources in place of a haphazard striving for immediate profit. 
 Our great river systems should be developed as national water high- 
 ways ; the Mississippi, with its tributaries, standing first in importance, 
 and the Columbia second, although there are many others of impor- 
 tance on the Pacific, the Atlantic, and the Gulf slopes. The National 
 Government should undertake this work, and I hope a beginning will 
 be made in the present Congress ; and the greatest of all our rivers, the 
 Mississippi, should receive especial attention. From the Great Lakes to 
 the mouth of the Mississippi there should be a deep waterway, with 
 deep waterways leading from it to the East and the West. Such a 
 waterway would practically mean the extension of our coast line into 
 the very heart of our country. It would be of incalculable benefit to 
 our people. If begun at once it can be carried through in time appreci- 
 ably to relieve the congestion of our great freight-carrying lines of rail- 
 
LEGISLATIVE PROBLEMS 549 
 
 roads. The work should be systematically and continuously carried 
 forward in accordance with some well-conceived plan. The main 
 streams should be improved to the highest point of efficiency before the 
 improvement of the branches is attempted ; and the work should be kept 
 free from every taint of recklessness or jobbery. The inland waterways 
 which lie just back of the whole eastern and southern coasts should 
 likewise be developed. Moreover, the development of our waterways 
 involves many other important water problems, all of which should be 
 considered as part of the same general scheme. The Government dams 
 should be used to produce hundreds of thousands of horsepower as an 
 incident to improving navigation; for the annual value of the unused 
 water power of the United States perhaps exceeds the annual value of 
 the products of all our mines. As an incident to creating the deep 
 waterway down the Mississippi, the Government should build along its 
 whole lower length levees which taken together with the control of the 
 headwaters, will at once and forever put a complete stop to all threat 
 of floods in the immensely fertile Delta region. The territory lying 
 adjacent to the Mississippi along its lower course will thereby become 
 one of the most prosperous and populous, as it already is one of the most 
 fertile, farming regions in all the world. I have appointed an Inland 
 Waterways Commission to study and outline a comprehensive scheme 
 of development along all the lines indicated. Later I shall lay its report 
 before the Congress. 
 
 Reclamation Work. Irrigation should be far more extensively de- 
 veloped than at present, not only in the States of the Great Plains and 
 the Rocky Mountains, but in many others, as, for instance, in large 
 portions of the South Atlantic and Gulf State^, where it should go 
 hand in hand with the reclamation of swamp land. The Federal 
 Government should seriously devote itself to this task, realizing that util- 
 ization of waterways and water-power, forestry, irrigation, and the recla- 
 mation of lands threatened with overflow, are all interdependent parts 
 of the same problem. The work of the Reclamation Service in devel- 
 oping the larger opportunities of the western half of our country for 
 irrigation is more important than almost any other movement. The 
 constant purpose of the Government in connection with the Reclama- 
 tion Service has been to use the water resources of the public lands for 
 the ultimate greatest good of the greatest number; in other words, to 
 put upon the land permanent home-makers, to use and develop it for 
 themselves and for their children and children's children. There has 
 been, of course, opposition to this work; opposition from some inter- 
 ested men who desire to exhaust the land for their own immediate 
 profit without regard to the welfare of the next generation, and opposi- 
 tion from honest and well-meaning men who did not fully understand 
 the subject or who did not look far enough ahead. This opposition is, 
 I think, dying away, and our people are understanding that it would 
 
550 AMERICAN FEDERAL GOVERNMENT 
 
 be utterly wrong to allow a few individuals to exhaust for their own 
 temporary personal profit the resources which ought to be developed 
 through use so as to be conserved for the permanent common advan- 
 tage of the people as a whole. 
 
 Public Lands. The effort of the Government to deal with the public 
 land has been based upon the same principle as that of the Reclamation 
 Service. The land law system which was designed to meet the needs 
 of the fertile and well-watered regions of the Middle West has largely 
 broken down when applied to the dryer regions of the Great Plains, 
 the mountains and much of the Pacific slope, where a farm of 160 
 acres is inadequate for self-support. In these regions the system lent 
 itself to fraud, and much land passed out of the hands of the Govern- 
 ment without passing into the hands of the home-maker. The Depart- 
 ment of the Interior and the Department of Justice joined in prosecuting 
 the offenders against the law ; and they have accomplished much, while 
 where the administration of the law has been defective it has been 
 changed. But the laws themselves are defective. Three years ago a 
 public lands commission was appointed to scrutinize the law, and 
 defects, and recommended a remedy. Their examination specifically 
 showed the existence of great fraud upon the public domain, and their 
 recommendations for changes in the law were made with the design 
 of conserving the natural resources of every part of the public lands 
 by putting it to its best use. Especial attention was called to the pre- 
 vention of settlement by the passage of great areas of public land into 
 the hands of a few men, and to the enormous waste caused by unre- 
 stricted grazing upon the open range. The recommendations of the 
 Public Lands Commission are sound, for they are especially in the 
 interest of the actual home-maker; and where the small home-maker 
 can not at present utilize the land they provide that the Government 
 shall keep control of it so that it may not be monopolized by a few men. 
 The Congress has not yet acted upon these recommendations; but 
 they are so just and proper, so essential to our National welfare, that I 
 feel confident, if the Congress will take time to consider them, that they 
 will ultimately be adopted. 
 
 Some such legislation as that proposed is essential in order to pre- 
 serve the great stretches of public grazing land which are unfit for cul- 
 tivation under present methods and are valuable only for the forage 
 which they supply. These stretches amount in all to some 300,000,000 
 acres, and are open to the free grazing of cattle, sheep, horses and goats, 
 without restriction. Such a system, or rather such lack of system, 
 means that the range is not so much used as wasted by abuse. As the 
 West settles the range becomes more and more over-grazed. Much of 
 it can not be used to advantage unless it is fenced, for fencing is the only 
 way by which to keep in check the owners of nomad flocks which roam 
 hither and thither, utterly destroying the pastures and leaving a waste 
 
LEGISLATIVE PROBLEMS 551 
 
 behind, so that their presence is incompatible with the presence of 
 home-makers. The existing fences are all illegal. Some of them rep- 
 resent the improper exclusion of actual settlers, actual home-makers, 
 from territory which is usurped by great cattle companies. Some of 
 them represent what is in itself a proper effort to use the range for those 
 upon the land, and to prevent its use by nomadic outsiders. All these 
 fences, those that are hurtful and those that are beneficial, are alike 
 illegal and must come down. But it is an outrage that the law should 
 necessitate such action on the part of the Administration. The unlaw- 
 ful fencing of public lands for private grazing must be stopped, but 
 the necessity which occasioned it must be provided for. The Federal 
 Government should have control of the range, whether by permit or 
 lease, as local necessities may determine. Such control could secure 
 the great benefit of legitimate fencing, while at the same time securing 
 and promoting the settlement of the country. In some places it may 
 be that the tracts of range adjacent to the homesteads of actual settlers 
 should be allotted to them severally or in common for the summer 
 grazing of their stock. Elsewhere it may be that a lease system would 
 serve the purpose; the leases to be temporary and subject to the rights 
 of settlement, and the amount charged being large enough merely to 
 permit of the efficient and beneficial control of the range by the Gov- 
 ernment, and of the payment to the county of the equivalent of what it 
 would otherwise receive in taxes. The destruction of the public range 
 will continue until some laws such as these are enacted. Fully to pre- 
 vent the fraud in the public lands which, through the joint action of 
 the Interior Department and the Department of Justice, we have been 
 endeavoring to prevent, there must be further legislation, and especially 
 a sufficient appropriation to permit the Department of the Interior to 
 examine certain classes of entries on the ground before they pass into 
 private ownership. The Government should part with its title only to 
 the actual home-maker, not to the profit-maker who does not care to 
 make a home. Our prime object is to secure the rights and guard the 
 interests of the small ranchman, the man who plows and pitches hay 
 for himself. It is this small ranchman, this actual settler and home- 
 maker, who in the long run is most hurt by permitting thefts of the 
 public land in whatever form. 
 
 Forests. Optimism is a good characteristic, but if carried to an excess 
 it becomes foolishness. We are prone to speak of the resources of this 
 country as inexhaustible; this is not so. The mineral wealth of the 
 country, the coal, iron, oil, gas, and the like, does not reproduce itself, 
 and therefore is certain to be exhausted ultimately; and wastefulness 
 in dealing with it to-day means that our descendants will feel the ex- 
 haustion a generation or two before they otherwise would. But there 
 are certain other forms of waste which could be entirely stopped the 
 waste of soil by washing, for instance, which is among the most dangerous 
 
552 AMERICAN FEDERAL GOVERNMENT 
 
 of all wastes now in progress in the United States, is easily prevent- 
 able, so that this present enormous loss of fertility is entirely unneces- 
 sary. The preservation or replacement of the forests is one of the most 
 important means of preventing this loss. We have made a beginning 
 in forest preservation, but it is only a beginning. At present lumbering 
 is the fourth greatest industry in the United States; and yet, so rapid 
 has been the rate of exhaustion of timber in the United States in the 
 past, and so rapidly is the remainder being exhausted, that the coun- 
 try is unquestionably on the verge of a timber famine which will be felt 
 in every household in the land. There has already been a rise in the 
 price of lumber, but there is certain to be a more rapid and heavier rise 
 in the future. The present annual consumption of lumber is certainly 
 three times as great as the annual growth ; and if the consumption and 
 growth continue unchanged, practically all our lumber will be exhausted 
 in another generation, while long before the limit to complete exhaus- 
 tion is reached the growing scarcity will make itself felt in many blight- 
 ing w,ays upon our National welfare. About 20 per cent of our forested 
 territory is now reserved in National forests; but these do not include 
 the most valuable timber lands, and in any event the proportion is too 
 small to expect that the reserves can accomplish more than a mitigation 
 of the trouble which is ahead for the nation. Far more drastic action is 
 needed. Forests can he lumbered so as to give to the public the full 
 use of their mercantile timber without the slightest detriment to the 
 forest, any more than it is a detriment to a farm to furnish a harvest; 
 so that there is no parallel between forests and mines, which can only 
 be completely used by exhaustion. But forests, if used as all our for- 
 ests have been used in the past and as most of them are still used, will 
 be either wholly destroyed, or so damaged that many decades have to 
 pass before effective use can be made of them again. All these facts 
 are so obvious that it is extraordinary that it should be necessary to 
 repeat them. Every business man in the land, every writer in the 
 newspapers, every man or woman of an ordinary education, ought to 
 be able to see that immense quantities of timber are used in the country, 
 that the forests which supply this timber are rapidly being exhausted, 
 and that, if no change takes place, exhaustion will come comparatively 
 soon, and that the effects of it will be felt severely in the every-day life 
 of our people. Surely, when these facts are so obvious, there should be 
 no delay in taking preventive measures. Yet we seem as a nation to be 
 willing to proceed in this matter with happy-go-lucky indifference even 
 to the immediate future. It is this attitude which permits the self- 
 interest of a very few persons to weigh for more than the ultimate interest 
 of all our people. There are persons who find it to their immense pecu- 
 niary benefit to destroy the forests by lumbering. They are to be blamed 
 for thus sacrificing the future of the Nation as a whole to their own 
 self-interest of the moment; but heavier blame attaches to the people 
 
LEGISLATIVE PROBLEMS 553 
 
 at large for permitting such action, whether in the White Mountains, 
 in the southern Alleghenies, or in the Rockies and Sierras. A big 
 lumbering company, impatient for immediate returns and not caring 
 to look far enough ahead, will often deliberately destroy all the good 
 timber in a region, hoping afterwards to move on to some new country. 
 The shiftless man of small means, who does not care to become an 
 actual home-maker but would like immediate profit, will find it to his 
 advantage to take up timber land simply to turn it over to such a big 
 company, and leave it valueless for future settlers. A big mine owner 
 anxious only to develop his mine at the moment, will care only to cut all 
 the timber that he wishes without regard to the future probably not 
 looking ahead to the condition of the country when the forests are ex- 
 hausted, any more than he does to the condition when the mine is 
 worked out. I do not blame these men nearly as much as I blame the 
 supine public opinion, the indifferent public opinion, which permits their 
 action to go unchecked. Of course to check the waste of timber means 
 that there must be on the part of the public the acceptance of a tempo- 
 rary restriction in the lavish use of the timber, in order to prevent the 
 total loss of this use in the future. There are plenty of men in public 
 and private life who actually advocate the continuance of the present 
 system of unchecked and wasteful extravagance, using as an argument 
 the fact that to check it will of course mean interference with the ease 
 and comfort of certain people who now get lumber at less cost than they 
 ought to pay, at the expense of the future generations. Some of these 
 persons actually demand that the present forest reserves be thrown 
 open to destruction, because, forsooth, they think that thereby the price 
 of lumber could be put down again for two or three or more years. 
 Their attitude is precisely like that of an agitator protesting against the 
 outlay of money by farmers on manure and in taking care of their farms 
 generally. Undoubtedly, if the average farmer were content absolutely 
 to ruin his farm, he could for two or three years avoid spending any 
 money on it, and yet make a good deal of money out of it. But only a 
 savage would, in his private affairs, show such reckless disregard of the 
 future ; yet it is precisely this reckless disregard of the future which the 
 opponents of the forestry system are now endeavoring to get the people 
 of the United States to show. The only trouble with the movement for 
 the reservation of our forests is that it has not gone nearly far enough, 
 and was not begun soon enough. It is a most fortunate thing, however, 
 that we began it when we did. We should acquire in the Appalachian 
 and White Mountain regions all the forest lands that it is possible to 
 acquire for the use of the Nation. These lands, because they form a 
 National asset, are as emphatically national as the rivers which they 
 feed, and which flow through so many States before they reach the 
 ocean. 
 
 There should be no tariff on any forest product grown in this coun- 
 
554 AMERICAN FEDERAL GOVERNMENT 
 
 try; and, in especial, there should be no tariff on wood pulp; due 
 notice of the change being of course given to those engaged in the busi- 
 ness so as to enable them to adjust themselves to the new conditions. 
 The repeal of the duty on wood pulp should, if possible, be accompanied 
 by an agreement with Canada that there shall be no export duty on 
 Canadian pulp wood. 
 
 Mineral Lands. In the eastern United States the mineral fuels have 
 already passed into the hands of large private owners, and those of the 
 West are rapidly following. It is obvious that these fuels should be 
 conserved and not wasted, and it would be well to protect the people 
 against unjust and extortionate prices, so far as that can still be done. 
 What has been accomplished in the great oil fields of the Indian Terri- 
 tory by the action of the Administration, offers a striking example of 
 the good results of such a policy. In my judgment the Government 
 should have the right to keep the fee of the coal, oil, and gas fields in 
 its own possession and to lease the rights to develop them under proper 
 regulations ; or else, if the Congress will not adopt this method, the coal 
 deposits should be sold under limitations, to conserve them as public 
 utilities, the right to mine coal being separated from the title to the soil. 
 The regulations should permit coal lands to be worked in sufficient 
 quantity by the several corporations. The present limitations have 
 been absurd, excessive, and serve no useful purpose, and often render it 
 necessary that there should be either fraud or else abandonment of the 
 work of getting out the coal. 
 
 SENATE DEBATE ON FOREST RESERVATIONS 1 
 
 MR. SPOONER. Now, all I started out to say was that the policy of 
 the Government has been, so far as the forestry laws are concerned, ex- 
 ercising the option which it possesses to hold its timber lands in order to 
 conserve the timber supply of the States and of the country rather than 
 to open it, except in a qualified way, to homestead settlement. It would 
 be opening it, as I said a few moments ago, to corporations cutting, 
 manufacturing, and selling lumber, enabling them to save their own 
 timber supply and obtain that for present uses from homesteaders. 
 The average homesteader can not carry on to any large extent lumbering 
 operations. They clear a little piece for agricultural purposes, for the 
 erection of a cabin. They fence a little space, but for many, many years 
 they do not go beyond that. It is a work of years, and many years 
 ordinarily, to clear a forest farm, and, as the Senator from Utah [Mr. 
 Smoot] says to me, half of it is lost. 
 
 Mr. President, that is not all. The Congress had another thing in 
 view in establishing the forest reserves, and that is of the utmost con- 
 
 1 Congr. Record, Feb. 19-23, 1907. 
 
LEGISLATIVE PROBLEMS 555 
 
 sequence to the people of the West, of some consequence to those States 
 whose forests have been denuded or destroyed, and that was to conserve 
 the water supply. That is of peculiar consequence to all the people 
 living in the semiarid region of the country. That plays an important 
 part in carrying to successful consummation the splendid irrigation 
 scheme which is upon the statute book and is now being wrought out. 
 The water supply in the far West and its conservation is of the utmost 
 consequence. Congress had a wise purpose expressed in the act for the 
 establishment of these reserves. The act of June i, 1897, provides 
 
 No public forest reservation shall be established, except to improve and pro- 
 tect the forest within the reservation, or for the purpose of securing favorable 
 conditions of water flows, and to furnish a continuous supply of timber for the 
 use and necessities of citizens of the United States. 
 
 Without this forest-reserve policy, leaving the land open to settlement, 
 except upon the mountain tops, where no man could live, it would not be 
 twenty years until the State of Idaho would have supplied the East and 
 the Middle States with her timber, and her own forests would, in the 
 main, be gone. 
 
 Mr. HEYBURN. Will the Senator permit me to suggest something ? 
 
 Mr. SPOONER. Certainly. 
 
 Mr. HEYBURN. I looked at the question from that standpoint four 
 years ago and three years ago. It so happened at the last session of 
 Congress that I was ill and unable to be present. I had therefore kept 
 in the law an exception in the interest of Idaho, providing that lumber 
 should not be shipped by the Government out of the State of Idaho, but 
 during my absence last winter that provision was stricken out. I am 
 going to ask that it be inserted this year. 
 
 Mr. SPOONER. Why should it not be shipped out of the State of Idaho ? 
 
 Mr. HEYBURN. Why should the Government ship it out of Idaho if 
 the forests are being conserved for the future uses of the people of 
 Idaho? 
 
 Mr. SPOONER. The conservation of the forests requires that some 
 timber shall be cut. 
 
 Mr. HEYBURN. But let it be sold in Idaho. 
 
 Mr. SPOONER. Dead and down timber must be removed. A hurri- 
 cane sweeps through the forest. The timber affected should be cut 
 away, and for two reasons. It will otherwise be destroyed by worms, 
 and worse than that, it invites a fire which may devastate the whole 
 region. That is what conservation of the timber supply means. It 
 means to take out those trees which ought to be taken out in the interest 
 of the timber conservation, and it means that all cutting in the forest 
 reserves shall be done in a manner which will not invite fires, and, second, 
 which will not prevent reforesting. 
 
 I am not speaking without some personal knowledge of this particular 
 
556 AMERICAN FEDERAL GOVERNMENT 
 
 phase of it. I am not speaking of the details. You may have some 
 things to complain of, and no one would be more prompt to aid in correct- 
 ing them than I. I am speaking for there has been generalization 
 here without limit on this subject in support of this great national 
 policy for the benefit of all the people, both as to the conservation of the 
 forests and the conservation of the water supply ; and if I am not very, 
 very, very much mistaken no people anywhere have as acute interest in 
 it as the people who occupy these States and those who are yet to occupy 
 these States. 
 
 I once spent six weeks in a city in the West, and during all that time 
 I could not see a vast mountain not far away, because it was obscured by 
 the smoke of forest fires which destroyed millions, untold millions, of 
 property and which worked a lasting harm to people who yet are to go 
 into these sections. So it will not do to say the Government has no right 
 to hold its lands, if it chooses, nor will it do to say that the Government 
 is not far-sighted and kindly in the policy which it has adopted to hold 
 its lands and to protect its lands, and so to utilize them as to benefit the 
 people of the localities and benefit the people of the country. 
 
 When Senators balk about the Government becoming a lumber 
 merchant, that is incidental. The forests would be swept away by fire, 
 spoliation, and otherwise but for these timber reservations. You would 
 have the same experience .we had, and we had forests which, I have 
 been told, could not be exceeded anywhere in beauty white pine 
 except in a part of Idaho. I met one man who had years ago ridden 
 through the Bitter Root Mountains and down along the stream for miles 
 and for days, and he told me that he never had seen such a forest in his 
 life; and he had seen forests. Ten days' fire would have ruined it for 
 miles and miles; and there is no one on earth who hungers more for 
 such trees and who have more money with which to buy them than a 
 great many lumber corporations. It is a legitimate business. I am not 
 reprobating them, but there is no reason, founded in public policy, why 
 the Government of the United States should open to homestead entry 
 every i6o-acre tract of timber land which it owns, provided that land 
 when denuded of its trees would be arable. And that doctrine, I repeat, 
 would simply destroy the forests and turn over not to be too carefully 
 exercised, either, in the public interest as to the manner of cutting and 
 clearing to corporations and wealthy firms the timber supply of the 
 West. 
 
 Thousands of men who have been driven out by the destruction of 
 our forests in Wisconsin have gone to Idaho and to other Western States 
 to purchase timber. They are good men. 
 
 Mr. HEYBURN. May I make a suggestion to the Senator from Wis- 
 consin ? 
 
 Mr. SPOONER. If it pertains to this subject. 
 
 Mr. HEYBURN. I should like to suggest that those who got the most 
 
LEGISLATIVE PROBLEMS 557 
 
 of the forests of Wisconsin and realized the benefit of them are now in 
 Idaho. I admit that. 
 
 Mr. SPOONER. I do not know anything about that. 
 
 Mr. HEYBURN. I do. 
 
 Mr. SPOONER. That makes no difference. The lumberman of Wis- 
 consin is, I think, as good as the lumberman from Idaho or anywhere 
 else in the world. There is no distinction to be drawn between people 
 of different States on that basis. 
 
 The question is, Shall the Government dispose of these lands, take 
 no care for the future either as to the water supply or the timber supply, 
 or shall it go along in a wise, not extravagant, but liberal prosecution 
 of the work of forest reservations ? For myself, I have no doubt about it. 
 I know it has its hardships to the people of Idaho, to the people of Mon- 
 tana, and to the people of other Western States. I know in a way it 
 deters settlement. I know perfectly well the truth of what the Senator 
 from Oregon and the Senator from Idaho say, that a man with a family 
 is loath to settle upon a piece of land to live for years without neighbors, 
 unable to establish schools, and all that. 
 
 But, Mr. President, this law, notwithstanding, is a wise and generous 
 law. I have traveled for days in beautiful valleys along the Snake River 
 and other streams in Wyoming, fertile, susceptible of cultivation, which 
 could be entered under this law. The mountains are full of valleys, 
 some of them extensive, other less so, susceptible of cultivation and all 
 open to settlement under existing law. 
 
 There has been no conflict, and is none between the Government and 
 the States as to the enforcement of the game laws. I am told that the 
 officials of the Forest-Reserve Service are under instructions to cooperate 
 in the enforcement of the State laws in respect to game, and that they 
 are doing it. 
 
 As to coal, we have a bill pending here which without impeding the 
 development from the agricultural standpoint of the State in which there 
 are deposits of coal owned by the Government, the coal can be conserved 
 by disposing of the surface for agricultural purposes and reserving to 
 Government the coal and under reasonable conditions to permit its being 
 taken out. 
 
 There is a wise public policy in that, Mr. President. So taking it by 
 and large I have no doubt that this forest-reserve policy as a policy is of 
 the greatest benefit to the people of this country, and especially to the 
 people of the far West. 
 
 Now, take the lumber business. I want to read a few words, better 
 used than I could use them, from a statement which I asked from Mr. 
 Pinchot. The Senator from Colorado spoke of him as a person of miracu- 
 lous excellence. I am sure he claims no perfection. I am sure he would 
 not ask any man to put him above his fellows. But he is remarkable 
 for his knowledge in a practical and a theoretical way of forestry, of 
 
558 AMERICAN FEDERAL GOVERNMENT 
 
 conserving the existing forests and of planting and rearing trees for 
 future forests. He is remarkable for another thing, that being a young 
 man, a man of brains, a man of wealth, a man of education, to whom 
 larger possibilities in politics or business open themselves, but has chosen 
 to devote himself, sacrificially in some respects, to this great work of 
 forest conservation, of perpetuating for the people yet to come, who will 
 inhabit the valleys and the arable lands and the semiarid lands of the 
 West, a water supply without which it is an irreclaimable desert. He 
 does it for the love of it, not for your little pitiful salary. There are not 
 many men within my knowledge who have been willing to do that. 
 
 Instead of being criticised he deserves the highest commendation, Mr. 
 President, in my judgment. Of course he may have made mistakes. 
 This policy began not many years ago. It has made great progress, not 
 simply in the increase in acreage of the forest reserves, but in the system, 
 in the methods adopted, and in the results. It has gone far enough under 
 his supervision to vindicate the policy as one of great public value. 
 
 He sent me this statement at my request, and I will read a part of it. 
 It is a statement in which I have the utmost confidence. 
 
 In the creation of reserves agricultural land is carefully excluded so far as 
 possible, but since the nature of the country makes it impossible to avoid in- 
 cluding occasional small isolated areas, such areas, when shown to be in fact 
 agricultural are opened to bona fide settlers under the act of June n, 1906. 
 
 All the resources of the reserves wood, water, and grass are open to 
 the fullest use and development, the only restriction being that they shall be so 
 used as to be permanently usable. 
 
 That is the object and the value of the policy. It looks not simply 
 to to-day, but to long years to come ; not simply to the people who are 
 living in the section now, but to the people who are yet to come and who 
 will come. 
 
 I ask leave to incorporate this statement in my remarks, Mr. President, 
 and I have nearly finished. 
 
 The VICE-PRESIDENT. Without objection, permission is granted. 
 
 The matter referred to is as follows : 
 
 The forest reserves cover mountainous land in the West more valuable for 
 forestry than for any other purposes. The act of June 4, 1897, specifically 
 provides that no forest reserves shall be established except to improve and pro- 
 tect the forest or to secure favorable conditions of water flow, and to furnish a 
 continuous supply of timber for the use of citizens. 
 
 In the creation of reserves agricultural land is carefully excluded so far as 
 possible, but since the nature of the country makes it impossible to avoid in- 
 cluding occasional small isolated areas, such areas, when shown to be in fact 
 agricultural, are opened to bona fide settlers under the act of June n, 1906. 
 
 All the resources of the reserves wood, water, and grass are open to 
 the fullest use and development, the only restriction being that they shall be so 
 used as to be permanently usable. 
 
LEGISLATIVE PROBLEMS 559 
 
 The mineral laws apply in forest reserves exactly as they do outside, as pro- 
 vided in the act of June 4, 1897. 
 
 Timber on the forest reserves which can be cut safely and for which there is 
 actual need is for sale. Applications to purchase are invited. Green timber 
 is for sale except where its removal makes a second crop doubtful or reduces 
 the timber supply below the point of safety for local needs or injures the streams. 
 All dead timber is for sale. 
 
 So far as the requirements of law for sale after advertisement to the highest 
 bidder will permit, sales are made to small men, so as to prevent monopoly by 
 disposing of timber to large corporations. 
 
 Timber valued at $500,945.76 was sold during the last fiscal year. The 
 time allowed for cutting was from one to five years, and amount actually re- 
 ceived for timber cut and removed amounted to $242,668.23. 
 
 Settlers and residents are given free use of timber in establishing and main- 
 taining their homes. During the last calendar year 13,575 free-use permits 
 were issued, to the value of $68,547.41. 
 
 Living trees to be cut are carefully selected and marked. Careful and 
 effective provision is made for the reproduction and safety of the forests. 
 
 The grazing industry of the West depends on the forest reserves, because 
 the summer range, without which the winter range is useless, lies almost 
 wholly in the mountains. Grazing animals are excluded from cut-over areas 
 to safeguard the reproduction. 
 
 It would be impossible to exclude all grazing from the western reserves 
 without ruining the live-stock business of the country and raising the price of 
 meat. Under proper regulation the grazing does little or no harm. 
 
 Since the transfer of the Forest Service to the Department of Agriculture 
 two years ago the area of the reserves has increased from 58,000,000 to 
 127,000,000 acres; the personnel has more than doubled; the use of the re- 
 serves by the western people has increased many fold, and yet under the esti- 
 mates the total cost to the Government of forest work during the coming fiscal 
 year will have increased only from $800,000 to $900,000. 
 
 During the last fiscal year of the administration of the reserves in the Land 
 Office the total expenses of the Government forest work in the Interior and 
 Agricultural Departments were $800,000 and the receipts were $60,000, a net 
 charge of $407,000. During the first full fiscal year of administration by the 
 Forest Service the expenses were $1,195,000, the receipts $767,000 a net 
 cost to the Government of $430,000. 
 
 The policy thus inaugurated, if allowed to continue, would have made the 
 Forest Sen-ice self-sustaining in five years from the transfer, or three years 
 more, and while vastly increasing the use of the reserves by the western people 
 and the efficiency of their administration over an area more than double. 
 
 Protection against fire is very successful, fires having almost disappeared. 
 The last fiscal year they burned over less than one-tenth of i per cent of the 
 total area. 
 
 Trespass is practically at an end. 
 
 The best supporters of forest reserves are the people who live in them or 
 immediately about their borders. The great associations of stockmen, lumber- 
 men, miners, and others support the policy. 
 
 The following instructions from the Secretary of Agriculture to the Forrester 
 outline the policy: 
 
560 AMERICAN FEDERAL GOVERNMENT 
 
 "In the administration of the forest reserves it must be clearly borne in 
 mind that all land is to be devoted to its most productive use for the permanent 
 good of the whole people and not for the temporary benefit of individuals or 
 companies. All the resources of forest reserves are for use, and this must be 
 brought about in a thoroughly prompt and businesslike manner, under such 
 restrictions only as will insure the permanence of these resources. The vital 
 importance of forest reserves to the great industries of the Western States will 
 be largely increased in the near future by the continued steady advance in settle- 
 ment and development. The permanence of the resources of the reserves is 
 therefore indispensable to continued prosperity, and the policy of this Depart- 
 ment for their protection and use will invariably be guided by this fact, always 
 bearing in mind that the conservative use of these resources in no way conflicts 
 with their permanent value. 
 
 "You will see to it that the water, wood, and forage of the reserves are con- 
 served and wisely used for the benefit of the home builder first of all, upon 
 whom depends the best permanent use of lands and resources alike. The con- 
 tinued prosperity of the agricultural lumbering, mining, and live-stock interests 
 is directly dependent upon a permanent and accessible supply of water, wood, 
 and forage, as well as upon the present and future use of these resources under 
 businesslike regulations, enforced with promptness, effectiveness, and common 
 sense. In the management of each reserve local questions will be decided upon 
 local grounds. The dominant industry will be considered first, but with as 
 little restriction to minor industries as may be possible; sudden changes in 
 industrial conditions will be avoided by gradual adjustment after due notice, 
 and where conflicting interests must be reconciled the question will always be 
 decided from the standpoint of the greatest good to the greatest number in the 
 long run." 
 
 In a word, the object of the Forest Service, as the President has declared, is 
 to create and maintain prosperous homes and conserve the natural resources 
 upon which those homes depend. 
 
 Just what does it mean when unreserved public lands are proclaimed public 
 forest reserves ? Let us get down to simple facts and see what kind of a change 
 really takes place. 
 
 We have, to start with, throughout the Rocky Mountains and Pacific coast 
 regions vast areas of high and rocky land, sometimes densely, sometimes 
 sparsely timbered, frequently covered with brush, and usually producing good 
 crops of grass and other herbage; vast areas which contain the sources of in- 
 numerable streams, the waters of which are used for irrigation, power, and 
 transportation. These lands are worthless for settlement. If unreserved, they 
 will not be taken up for homes or cultivated for the support of families. Their 
 altitude, their generally poor soil, their very nature makes agriculture impos- 
 sible or unprofitable. That they are in no sense of the word homestead lands 
 has been determined beyond all doubt through careful examinations on the 
 ground by western men familiar with western conditions; by men who know 
 from practical experience what lands can be cultivated and what lands can not 
 be cultivated with success. 
 
 What are these vast areas good for? 
 
 The production of timber and wood, for one thing. The production of 
 summer range for cattle and sheep for another thing. And last, but not least, 
 they are the all -important conservers of the water supply for the farms and 
 
LEGISLATIVE PROBLEMS 561 
 
 manufactures of the lowlands. They are the great reservoirs upon which the 
 solid prosperity of the valleys depends. 
 
 How are these resources used when the lands are still unreserved? 
 
 The timber is rapidly taken up by individuals under several of the land 
 laws. From individuals it passes to companies and corporations, by whom 
 the most valuable portion of it is cut and marketed. That which remains is 
 burned up, and nine times out of ten the land becomes a nonproductive waste, 
 utterly valueless to the county, State, and nation. The large timber owner 
 profits, but only by what he makes on the timber cut. The county and State 
 profit, but only temporarily, while taxes come in and before the land becomes 
 a waste. The wage-earner profits, but also only temporarily. When the timber 
 is gone beyond repair his occupation goes with it. The Government receives 
 at the most but $2.50 an acre for timber which has an actual market value of 
 from $5 to $100 an acre or more. 
 
 When this unreserved public land is made into a forest reserve the timber is 
 still available. It is not locked up or withdrawn from market. It is not left 
 to rot from age and be wiped out by fire. It is still ready to assist in the general 
 development of the region concerned. Anybody can buy it a thousand feet 
 or ten million feet. It is there to be used by the settler, or, if the settler does 
 not need it, by the big corporation ; neither is excluded. But with this very 
 important difference the land must be wisely. used so used that it will 
 continue to produce timber, the greatest possible quantity of it, and forever. 
 The timber is so harvested that future crops are assured, just as with cotton, 
 wheat, or corn. The lands are protected against fire, and millions of dollars' 
 worth of timber are saved to the Government each year which on the unre- 
 served public domain goes up in smoke. The timber resources are made 
 permanent. The lands are kept productive, and the county, State, and nation 
 reap the benefit. The prosperity which use brings is lasting prosperity, not a 
 transitory boom. Present greed is forced to yield to the requirements of future 
 development. Moreover, the nation receives a fair price for its own. If private 
 or corporate timber in the same locality sells for $50 an acre, the United 
 States can sell its own timber for $50 an acre for what it is worth. Is there 
 any reason why it should be given away for $2.50 an acre, as it must be if the 
 land is unreserved? 
 
 So far, then, as timber is concerned, throwing the public lands into forest 
 reserves means simply that their timber resources are better and more wisely 
 used, for the general benefit, now and in the long run. That is all. There is no 
 other difference. 
 
 How is the range used when the lands are still unreserved? 
 
 STOCKMEN 
 
 It is open to all, without restriction or regulation. As a consequence, there is 
 continual warfare between the big stockmen and the little stockmen, between 
 sheep and cattle men, and the range deteriorates constantly from overgrazing. 
 Take almost any part of the West and ask the old settlers how the grass com- 
 pares with that of former years. In many localities the range is almost totally 
 destroyed. 
 
 If a forest reserve is made out of this public land, the range is not locked up. 
 It does not cease to benefit the general welfare. It is grazed by cattle and 
 
562 AMERICAN FEDERAL GOVERNMENT 
 
 sheep. It is used by the small man and the big man. But with this important 
 difference its use is so regulated that the big man and the small man are 
 both assured of the share which rightfully belongs to them through prior use 
 and settlement ; and the grazing is so regulated that the range will support the 
 total number of stock allowed without deterioration. It is kept at its highest 
 productive capacity. It is precisely the same with the range as with the timber. 
 A forest reserve makes sure of a better and wiser use and a permanent prosper- 
 ity. The stockman wants it. 
 
 What happens to these vast areas from the standpoint oi water supply when 
 they are still a part of the unreserved public domain? 
 
 They are left to the ravages of fire, to destructive lumbering, and destructive 
 grazing. Their cover of forest, brush, and grass is slowly, but surely destroyed. 
 They gradually lose their sponge-like properties as great reservoirs for holding 
 and regulating the waterflow. The rains rush quickly down the slopes, causing 
 floods in the wet season and droughts in the dry seasons. 
 
 In forest reserves these lands are systematically protected. The most im- 
 portant protection is from fire. There is an organized force on the ground 
 whose business it is to prevent this destruction. It is not a perfect force at 
 present, but it is all the time becoming more efficient. If anyone doubts the 
 effectiveness of this systematic protection, let him compare the chaotic condi- 
 tions on the unreserved pubjic domain with those on the forest reserve. The 
 results are there to speak for themselves. 
 
 Let us look at this whole matter from the standpoint of what it really means. 
 In many of the Western States there are very considerable areas of public 
 lands brought together into forest reserves. Maps which show these areas 
 colored in green seem to conjure up grave fears in the minds of the opponents 
 of the Government's policy, and these green areas are pointed to as if they 
 were huge tracts surrounded by stone walls dropped upon the mountains as a 
 blanket to all future development. The cry goes up that so and so many mil- 
 lion acres have been closed to settlement. The truth is that settlement is im- 
 possible from the nature of the case. If there were a chance of settlement, 
 these areas would not be in forest reserves. Nobody wants to make forest re- 
 serves out of agricultural lands. 
 
 Then the cry is raised that the resources are locked up and that the present 
 and future development of the region is crushed beyond hope. This objection 
 is absolutely without foundation for the simple reason that all the resources on 
 each and every forest reserve are now being used. 
 
 They are being used by those who have the best right to their use. They 
 are being used for the greatest good of the greatest number in the long run. 
 And their use will continue in just this way. 
 
 Forest reserve is an unfortunate term. As a matter of fact, the resources of 
 these mountain areas are not reserved, they are conserved. In other words, 
 they are wisely used. The name misleads. 
 
 Mr. SPOONER. It is a question which is the wisest and best, to do 
 away with this policy, except up on the mountains where the land never 
 can be utilized for farming purposes, or keep it for the people's use. 
 
 Mr. HEYBURN. What people? 
 
 Mr. SPOONER. The people who live out there now and the people 
 who are to live out there after the Senator which I hope will be a 
 
LEGISLATIVE PROBLEMS 563 
 
 great many years shall have passed to his last sleep. It is not for 
 to-day, and that is where the mistake is. It is in looking upon Idaho 
 purely from the standpoint of to-day. You can pay too much for the 
 too rapid development of a new State. You can pay too much for rapid 
 increase in population in such States. You can lay now a foundation 
 deep and broad and strong for future wealth for all the people of Idaho 
 and the West generally. I think this policy does it. I think Congress 
 ought not to be penurious in carrying it on. I think this notion that 
 no money shall be expended in a work of this kind without estimates is 
 fatal to the work. It is full of vicissitudes. More men may be required 
 to-morrow by a thousand than are required to-day. It depends upon 
 fire ; it depends upon whether a whirlwind shall sweep over the timber, 
 as to what will be required to take it out and preserve it. There are 
 many things, Mr. President. 
 
 **#* #*#* 
 
 Mr. PATTERSON. When you say my proposition is a subtle plan to 
 destroy the forest reservation, that is pretty near to charging a motive. 
 
 Mr, SPOONER. I did not intend to impugn any improper motive to 
 the Senator. 
 
 Mr. PATTERSON. I do not take offense at it, but I want to make a 
 statement in that connection. Then I will give way to the Senator. 
 
 The VICE-PRESIDENT. Does the Senator from Wisconsin yield to 
 the Senator from Colorado? 
 
 Mr. SPOONER. Certainly. 
 
 Mr. PATTERSON. Mr. President, the Senator from Wisconsin utterly 
 mistakes my attitude and the attitude of the people of my State upon 
 the question of forest reserves. I want to say to him that I am heartily 
 in favor of forest reserves, and if there were a proposition to abolish 
 absolutely those which have been made, as far as I am able I would be 
 in the front rank to oppose their abolition, for I want to tell you that we 
 in the mountains realize far more keenly than you gentlemen of the plains 
 the benefit to us of forest reserves in the way of restraining the melting 
 snows in the spring and early summer. 
 
 We are at the source of the water supply of nearly all of our great 
 streams, in whatever direction they flow and to whatever ocean, and as 
 a rule our waters flow through our State with tremendous speed and 
 velocity and power. Now and then, when the snows melt under a sud- 
 denly heated atmosphere, we have great calamities in the mountains by 
 reason of the unusual and unrestrained volume of water. Therefore 
 we want the forest reserves held intact. We desire to cherish them, to 
 help to maintain them, to support them, to regulate them, and to do 
 whatever is necessary to preserve them from fire and to extinguish fires 
 when they occur. 
 
 Let me suggest another thought with which those who do not live in 
 the mountains, perhaps, are not familiar, and that is that we do not 
 
564 AMERICAN FEDERAL GOVERNMENT 
 
 have homesteads made by clearing forests. In my thirty-odd years' 
 experience in Colorado and I have traveled from one end of the 
 State to the other, in all forms of conveyances and upon all sorts of 
 animals I want to say to the Senator from Wisconsin I have not 
 known of a single farm or homestead made by clearing the land of 
 timber. The general rule is that our timber lands are not good agri- 
 cultural lands, and therefore we do not desire to denude the lands of 
 timber for the purpose of opening them up to settlement, for we have 
 had no settlements upon such lands and no desire to make settlements 
 on timber lands. As a rule spruce and pine timber lands do not make 
 good agricultural land, especially in the mountain section of the country. 
 
 Then, what motive can we have? Certainly those of us who live 
 there do not wish to see the timber of the country go into the hands of 
 great speculators. We want so much timber as may be needed for 
 domestic uses or even for outside commerce cut and disposed of under 
 wise rules and regulations, and we want the Government to get the 
 benefit of the value of every stick of timber that is cut from the public 
 domain. That is the attitude of the Senators and Representatives. from 
 the mountain States upon the subject of forest reserves. 
 
 And why should we have a subtle or any other plan to destroy forest 
 reserves when forest reserves were first championed by western Senators, 
 and when those of us who are making this struggle upon the floor of the 
 Senate to-day are the real friends of forest reserves and may be required 
 to interpose our influence to preserve them, if this method of their ad- 
 ministration* is continued ? It is a serious matter, Mr. President, to take 
 from a great State two-thirds or a fourth or a fifth of its agricultural area 
 and turn it over to live stock and to silence when men and women and 
 children are hungry for land; and the desire for land ownership is 
 the dominating desire of the real patriotic American citizen. We do 
 not want this system to break down. So indignant are the people of 
 the western portion of the State I represent about the administration 
 of forest reserves that they are to-day in a state of rebellion, and 
 meeting after meeting has been called where resolutions have been 
 passed resolving to interpose all obstacles to the continuation of such 
 an administration and refusing to pay the license fees demanded of 
 them before they can put a head of stock of any kind within a forest 
 reserve. 
 
 The truth of it is that within forest reserves in my State there are 
 millions upon millions of acres which are not forest lands at all, but 
 they are agricultural and grazing lands, which are taken from the portion 
 that is open to the people of the country for settlement, and we shut 
 them up to meet the hobby of the gentleman who is at the head of this 
 Bureau. Like the Senator from Idaho, whoever represents Colorado 
 and whoever continues to represent the mountain States and the States 
 affected by this new-fangled system of taking care of the public lands 
 
LEGISLATIVE PROBLEMS 565 
 
 within them will fight, and they must fight all such institutions as this. 
 If they do not they will be rejected by their constituencies, for to hold 
 an office of this kind from the West a man must represent the sentiment 
 of his people. 
 
 Mr. SPOONER. Mr. President, I do not yield my assent to the prop- 
 osition made by the Senators from the Western States that they are the 
 only members of this body who have to do with this question, or the 
 imputation, if I may call it such, or criticism, which is suggested as to 
 those of us who do not live in the far West, for having the temerity to 
 entertain or to express views upon this subject. We are all Senators of 
 the United States. The Senator from Idaho is a Senator from Idaho, 
 but he is not a Senator of Idaho. He is a Senator of the United States 
 from Idaho. I am a Senator of the United States from a State. My 
 first duty, and the first duty of every Senator, as I understand it, is to 
 represent the general public interest, and subordinate to the general 
 public interest the local interest of his State. The Senator from a State 
 in which there happens to be fifteen, twenty, twenty-five, or fifty million 
 acres of Government land can not ask that he and his colleague shall 
 be permitted to say, all others by courtesy following them, what disposi- 
 tion shall be made of that property belonging to the Government within 
 his State. 
 
 This is property of the United States, 127,000,000 acres, in forest 
 reserves ; and it is not only the right, but it is the duty of every Senator 
 of the United States to give the matter thought, and to determine, if it 
 be possible to do it, upon that line of policy with reference to its disposi- 
 tion which will best conserve the general public interest of the United 
 States and the interest as well of the State in which that land happens 
 to be located. 
 
 I do not live in a mountainous State, but I live in a State the northern 
 portion of which was covered within my memory with magnificent 
 forests. It is gone, and within a very few years vast quantities have 
 been wasted, affecting detrimentally the water supply and affecting in 
 economic ways injuriously the people of that State. Taking account 
 of my observation in a lumber region in which I live, reasoning from 
 the past to the future, knowing or having reason to believe that, if un- 
 restricted, what happened in Wisconsin forests will happen in Idaho, 
 and will happen in other States having virgin forests of timber. I believe 
 with all my heart that in the interest of those States on general principles, 
 as well as in the interest of all the people, it is important that the forest 
 reservation policy be not essentially crippled. 
 
 If land in large bodies has been included within forest reservations 
 that ought to be without them, that is one thing. I would not ask nor 
 would I vote to exclude, because of a forest reservation, settlers from 
 occupying the land in any State of the West; and if lands ought to be 
 taken out of the reservation, if the lines of the reservation should be 
 
566 AMERICAN FEDERAL GOVERNMENT 
 
 changed in order to throw open to homestead, to settlement, to occupa- 
 tion, and cultivation lands in Idaho or anywhere else I would not for one 
 moment oppose it. But, Mr. President, to take valleys within a reserva- 
 tion, not along its border, but in its heart or near it, fit for agriculture, 
 out of the reservation would be to destroy the reservation. To my mind 
 it is impossible to go further than the law now goes in the direction of 
 throwing open such land within the reservation to settlement without 
 destroying the reservation. 
 
 I am in favor of the Appalachian reservation when the facts in regard 
 to it can be ascertained. I believe it will be a wonderful boon to the 
 South and as well of vast advantage in many ways to some of the North- 
 ern States, and a matter of great wealth in the long run to the country 
 at large. I am in favor of the policy. If lands are devoted under im- 
 proper regulations to sheep raising or grazing, let those regulations be 
 changed. No one can object to that change. If it be improper from a 
 governmental standpoint to charge stock owners and sheep owners for 
 grazing privileges on the Government lands let that practice be abol- 
 ished. That and all of those matters might very well be urged by way 
 of amendment to the forest reservation act instead of being projected or 
 attempted to be projected into this bill, the object of which is to 
 maintain and support the general policy. There is not an item of 
 either of these amendments proposed to be offered to this bill which is 
 in order. They all propose to change the existing law and they are 
 general legislation. 
 
 I hope when my friend from Idaho reads some of his observations 
 uttered this morning he will feel, as I feel, that he allowed himself to 
 indulge in suggestions, as to some of those who support this general 
 proposition and have advocated a larger appropriation, far away from 
 any foundation in justice. I would not be willing that the Senator from 
 Idaho should consciously and deliberately impute to me or to my action 
 upon a public measure here personal friendship for an official or social 
 fondness for an official. Senators who deal with the public interest, 
 under oath, can not be supposed to do that. I have met but few times 
 the Chief Forester. What I have said of him is of his ability and knowl- 
 edge of the subject as it impresses me. Except for my belief in the 
 policy and my belief in the present administration, subject, perhaps, to 
 some remodeling in matters complained of which can be easily disposed 
 of, I would not support this nor any other bill or appropriation on per- 
 sonal ground, nor do I know any Senator here who would. 
 
 That is all I want to say, Mr. President. 
 
LEGISLATIVE PROBLEMS 567 
 
 SPEECH OF SENATOR ALBERT J. BEVERIDGE ON 
 THE FOREST SERVICE 1 
 
 The Senate having under consideration the bill (H. R. 24815) making ap- 
 propriations for the Department of Agriculture of the fiscal year ending 
 June 30, 1908 
 
 MR. BEVERIDGE said: 
 
 Mr. President : The question immediately before the Senate is whether 
 or not the appropriation for the Forest Service, which the other day, per- 
 haps without full information, was reduced, is to be restored. After the 
 very long attack upon the .Government's policy, I may be permitted 
 some time to explain and defend it. No debate which has occurred this 
 session has been so useful as this in informing both the Senate and the 
 country on a policy of such high importance. 
 
 There are those of us who were deeply interested in this question and 
 yet who were not informed about what this Service meant and about 
 the priceless work for the whole country which it was doing. There 
 have been in the course of this debate some points made, charges made, 
 and various statements made which require some attention; and it is 
 to do this that I rise to address the Senate before we take any vote, if a 
 vote, indeed, shall be necessary upon this amendment. 
 
 SIGNIFICANCE OF RESERVE POLICY 
 
 The Senator from Wyoming [Mr. Clark] the other day began his 
 remarks by asking the question, "What does this great forest-reserve 
 system," which he said included some 200,000 square miles, "mean?" 
 Since then, Mr. President, the question has been pretty fully answered. 
 It means, perhaps, a wiser piece of public policy, so far as the present 
 and future prosperity of this people is concerned, than any one single 
 other piece of public policy affecting our lands. It means, Mr. Presi- 
 dent, at the bottom the conservation and the distribution of the waters, 
 upon which agriculture depends, and upon which the population of the 
 Senator's State and of other States similarly situated depend for its 
 growth more than upon any one other single element that can be named. 
 
 RESERVES THE MAINSTAY OF IRRIGATION 
 
 Mr. President, we are spending now, or arranging to spend, some 
 $50,000,000 for the irrigation of what was once thought was the "arid 
 West." I remember very well the great fight which was made for the 
 irrigation law. It was finally put through the Senate and the House 
 
 1 Congr. Record, Reported March i, 1907. 
 
5 68 AMERICAN FEDERAL GOVERNMENT 
 
 against the counsel of some of the most conservative members of each 
 body, but I think its wisdom now is universally recognized by men of 
 all parties and men of all sections. 
 
 But, Mr. President, you can not irrigate with a word you have to 
 irrigate with water. You can not irrigate merely by digging a hole in 
 the desert ; not enough water is supplied. In the last analysis it must 
 come from rainfall in the mountains. The Senator knows better, no 
 doubt, than I do that unless the forests on those mountains are conserved 
 irrigation is impossible. Because if the forests are felled the rain which 
 falls in equal abundance sweeps down in torrential floods and either 
 takes away the reservoirs or fills them up with silt. So the basis of the 
 whole irrigation system, which means so much to the western country, 
 and therefore to the whole country, rests .upon the foundation of the 
 forest-reserve system. 
 
 Mr. F. H. Newell, Chief of the Reclamation Service, has repeatedly 
 emphasized the very great importance of forest reserves in connection with 
 the Government's irrigation work. In the second annual report of the 
 Reclamation Service (1902-03) Mr. Newell stated: "One of the most 
 important matters in connection with the permanent development of the 
 water resources of the country is the protection of the catchment basins 
 from destructive influences. It is essential to preserve in such locations 
 a certain amount of forest cover, and to prevent the destruction of these 
 by fire or by overgrazing. The headwaters of many of the important 
 streams are already included within forest reserves, and some of the 
 important reservoir sites are thus guarded from injury. In other locali- 
 ties the forest reserve boundaries should be extended to include the 
 country from which comes the greatest part of the run-off. This land 
 usually has no value for cultivation, is rugged, and suitable only for the 
 production of trees. Grazing to a limited extent is practicable and will 
 not interfere with the best use of the waters, but if unrestricted, the 
 number of cattle and sheep may be increased to such an extent that 
 the grass is destroyed and the bare soil is washed by storms." 
 
 Again, at the hearing before the Committee on the Public Lands of 
 the House of Representatives (January n to 30, 1901), Mr. Newell 
 explained himself as follows: 
 
 "As Mr. Walcott has outlined, the great undertaking of national im- 
 portance is first to hold the timber-clad mountains of arid country from 
 which the water comes in forest reserves, not keeping the timber from 
 use, but letting it be cut under such restrictions as will enable the ma- 
 tured timber to be taken and keep the forest itself as a perpetual crop. 
 This has already been entered upon by the National Government." 
 
 ALL RESERVES CONSERVE TIMBER OR WATER 
 
 Forest reserves are created for these main objects: To conserve and 
 regulate stream overflow, and to maintain a permanent supply of timber. 
 
LEGISLATIVE PROBLEMS t 569 
 
 Some forest reserves are valuable for both these purposes; others are 
 valuable mainly for their effect upon stream flow. In southern Cali- 
 fornia, for example, forest reserves have been created in the San Gabriel 
 Mountains, not with the chief purpose of the production of timber, 
 because these mountains are largely covered with brush known as 
 chaparral and have few trees growing upon them. But these southern 
 California reserves serve a most valuable purpose in maintaining the 
 flow of streams rising in them, which supply important cities, such as 
 Los Angeles, and are essential for the development of water power, and, 
 above all, in the conservation of streams used in the irrigation of arid 
 lands. Again, large areas in these reserves are capable of growing trees, 
 although no trees are growing upon them at present. As rapidly as its 
 funds permit, and conditions warrant, the Forest Service is planting up 
 these areas. 
 
 To make the boundaries of forest reserves conform exactly to the 
 boundaries of existing forests would be to leave out of these reserves 
 large areas which are of immense value as a protection to the water flow, 
 and which have grown trees and will grow trees again under proper 
 methods. Obviously the boundaries of forest reserves must be drawn 
 not to conform to the boundaries of existing forests, but based on the 
 actual character of the country in its relation to the objects for which 
 reserves are created. Brush and grass covered areas of natural forest 
 land in the mountains, even if they do not now produce trees, ought to 
 be given exactly the same protection as existing forests receive, because 
 they often exercise a not less important effect in conserving and regulat- 
 ing stream flow. 
 
 The Forest Service has never recommended the creation of a single 
 reserve the land inclosed in which can not serve its main purpose either 
 by the regulation of stream flow or by the production of timber. No 
 considerable bodies of open range are included in forest reserves. So 
 far as open range is included, it has been included not as range land, 
 but because it is necessary to the protection of stream flow or because it 
 is suitable for forest planting. 
 
 RESERVES BASED ON THOROUGH EXAMINATION OF LANDS 
 
 Mr. President, the Senator from Wyoming [Mr. Clark] said further 
 and it was a most important charge, one that we should carefully con- 
 sider, one that the country should know the truth about that the 
 reserves had been created without knowledge of actual conditions upon 
 the ground. So far from that being accurate (and I am satisfied that 
 neither the Senator nor any other Senator who spoke meant to make an 
 inaccurate statement) perhaps as much as in the case of any other 
 scientific department of the Government the most careful, detailed, 
 painstaking, and scientifically accurate examinations were made. 
 
570 AMERICAN FEDERAL GOVERNMENT 
 
 These reserves, I say, are created after the most painstaking, compre- 
 hensive, and scientific examination of conditions on the ground. If it 
 were earlier in the day, I should stop here first to read to the Senate the 
 details of the plan upon which information is gathered for determining 
 whether or not a forest reserve shall be made. None of us could have 
 more valuable information upon that subject, which is quite as im- 
 portant as any other subject we now have before us, than the method 
 by which this vast reserved forest system, which is the heart and source 
 of all the water for the great irrigation system, is made. 
 
 I hold in my hand, and I shall ask to have entirely inserted in the 
 Record in my remarks, the instructions to the field men who make the 
 examinations. 
 
 The VICE-PRESIDENT. In the absence of objection, it will be so 
 ordered. 
 
 The matter referred to is as follows: 
 
 The following outline must be considered in the examination and used in 
 writing the full report, or it will be returned for correction : 
 
 1. Location and area. 
 
 2. Description and topography. 
 
 3. Climate, showing any difference between the reserve and adjacent agri- 
 cultural regions. Precipitation, prevailing rain-laden winds, etc. 
 
 4. The forest. 
 
 (a) A map on a scale of 2 miles to the inch, showing the distribution and 
 character of the cover (to be compiled by the drafting division from data 
 furnished by the examiner). The following classes of cover should be distin- 
 guished and mapped: 
 
 1. Commercial forest. Actual saw, stull, or tie timber, irrespective of 
 its accessibility. A merchantable forest. 
 
 2. Timber land. Land-bearing commercial species, either reproduction 
 under 20 feet high or too scattering to be a merchantable forest. Potential 
 forest land capable of producing merchantable timber. 
 
 3. Woodland. Juniper, pinon, oak, aspen, etc., without mixture of com- 
 mercial species. It may be a cord-wood forest. 
 
 4. Cut-over land. Wherever logging has been carried on, whether stripped 
 or merely culled. 
 
 5. Burns. Where the cover has been totally destroyed. 
 
 6. Chaparral. 
 
 7. Open grass land. Parks or open range. 
 
 8. Sagebrush. 
 
 9. Cultivated land. 
 
 10. Cultivable land. 
 
 11. Barren land. Above timber line, slide rock, cliffs, etc. 
 
 (&) A brief description of the various silvicultural types of forest cover; 
 reproduction. 
 
 (c) A rough estimate of the amount of merchantable timber, according to 
 watersheds or logging units; its accessibility, and means of logging that must 
 be used, and prevailing stumpage price. Definite recommendations as to 
 
LEGISLATIVE PROBLEMS 571 
 
 stumpage prices and method of sale to be pursued in the event of creation of 
 the reserve. 
 
 5. The forest as a protection cover: Its effect on the regulation of the water 
 flow. Use of water for irrigation and power at present and possible acreage 
 and value of irrigated and irrigable lands dependent on the reserve for water 
 supply. Location of reservoir sites and possibility of ditch applications. Any 
 areas or slopes from which timber should not be sold. 
 
 6. Industries: Nature, relative importance, dependence on water and 
 timber in proposed reserve and adjacent affected regions. Extent and value 
 of most important interests. 
 
 7. Settlements: Location, size, importance, and industry. Table of alien- 
 ated lands, showing area in acres of each class and per cent of recommended 
 reserve. 
 
 8. Roads, trails, and railroads. 
 
 9. Lumbering: Extent of lumbering in the past and at present. Its effect 
 upon the forest. The condition of cut-overlands. Effect which creation of 
 reserve would have upon lumbering. Need for reserve timber. Means of sup- 
 plying it from elsewhere. Standing and retail prices of different species in the 
 local market. 
 
 10. Grazing: To what extent the prosperity of the local residents depends 
 upon live stock, and to what extent is the stock dependent on this range. How 
 many stock now using reserve and how distributed. Where owned. Whether 
 stockmen own ranches or reside in reserve. 
 
 To what extent as a summer range proposed reserve limits use outside 
 range. Whether it includes lambing grounds. Conflicting interests, such as 
 between sheep and cattle, local and outside stock, etc. Merits of the con- 
 troversy. 
 
 Description of pasture lands, their nature, brush, grass, etc. Extent of 
 open parks and pasture in timber. To what extent grazing has injured the 
 range or forest. Manner of handling. Size of herds. 
 
 Areas, if any, from which stock should be excluded. Division of pasture 
 lands. Give plan, number to be allowed, length of season, any special regula- 
 tion necessary. Practicability of a division of range into individual ranges. 
 Necessity for counting wings, drift fences, dipping vats, windmills, etc. Cost 
 and location. 
 
 11. Fire: Damage from fire; usual causes. Threatened points. Season. 
 History of burns. Prevention. Area burned. Outline a definite plan of pro- 
 tection and patrol. Are fire lines feasible? 
 
 12. Situation. A brief description of the political and economic situation 
 of the locality (settlements, county, or State) in its bearing on the reserve 
 question. From whom will opposition come and why? Attitude and motives 
 of influential men or corporations. Any illegal settlements or operations. Any 
 concessions that the Forest Service should make. Labor prices and cost of 
 living in the surrounding communities. 
 
 13. Local sentiment in regard to the creation of a forest reserve: A special 
 effort should be made to obtain all arguments possible both for and against 
 the creation of a reserve. 
 
 14. Conclusion and recommendations: A clear recommendation for or 
 against the creation of a reserve. 
 
 15. If recommended, boundaries to be shown on maps in red pencil. If not, 
 
572 AMERICAN FEDERAL GOVERNMENT 
 
 write "not recommended" in red pencil on the map and on the title page of the 
 report. 
 
 16. Administration. Number of men needed to handle current business. 
 Ranks and rates of pay. Length of service. How many men in summer ? In 
 winter? Indicate ranger districts on map where ranger should be stationed 
 in each district. 
 
 In what town should the officer in charge make his headquarters. What are 
 office, mail, railroad, telegraph, and telephone facilities there. Regions where 
 patrol is most needed. Where sales, free use, trespass, and privilege cases will 
 be numerous. Improvement work, such as cabins, phones, pastures, roads, or 
 trails necessary at once and cost of each. Special regulations desirable, not in 
 present rules. Revision of present rules or practice. 
 
 The administrative feature is a very important one, and complete plan of 
 administration for the proposed reserve should be outlined. 
 
 Names and addresses of men who would make good forest officers. 
 
 The importance of photographs can not be overestimated. They should be 
 taken to illustrate particular points in the reports. Also views over consider- 
 able areas, showing the general character of the country should be taken. 
 
 Mr. BEVERIDGE. Furthermore, I have here, and will exhibit that the 
 Senate may see it, a map of the Shoshone or Coeur d'Alene Reserve in 
 Idaho. The Senate will notice the various colors. This deep green here 
 [indicating] in the southwest portion is the heavily forested portion of 
 this reservation. These brown patches [indicating] throughout that 
 reservation are the burnt-over districts, where millions of dollars, the 
 property of the United States, has been destroyed by forest fires. The 
 lighter portions here [indicating] are the young timber. There are other 
 portions that represent sagebrush. 
 
 With reference to this green portion here [indicating], within these 
 lines, heavily wooded, it is nearly all taken up by the State or by settlers. 
 That is the "ruthless" and "infamous" way in which the Government 
 of the United States has destroyed the resources of the State, as Senators 
 have charged. 
 
 TIMBER FREE TO SMALL USERS FOR HOME BUILDING AND OTHER 
 
 NEEDS 
 
 Mr. President, having located a reserve, what occurs? In the first 
 place, it is again carefully mapped, classified, and examined. The 
 Department knows just exactly what kind of timber is in every part of 
 the reserve. What is done with that timber ? Two things are done with 
 it. It is given away by the Government to the small users without 
 charge to the settler, to the homesteader, to those men that we have 
 been led to believe were so badly treated by this "tryannical" Govern- 
 ment and who with this timber build their homes. Lumber and 
 timber are given free of charge. Not only is the place to build their homes 
 given them, but all the timber they need. 
 
LEGISLATIVE PROBLEMS 573 
 
 In order to show how fairly and with what careful detail the law pro- 
 viding for the free use of timber and stone is applied, I will quote the 
 regulation in this respect: 
 
 "Regulation 10. The free-use privilege may be granted to settlers, 
 farmers, prospectors, or similar persons who may not reasonably be 
 required to purchase, and who have not on their own lands or claims, 
 or on lands controlled by them, a sufficient or practicably accessible sup- 
 ply of timber or stone for the purposes named in the law. It may also 
 be granted to school and road districts, churches, or cooperative organi- 
 zations of settlers desiring to construct roads, ditches, reservoirs, or 
 similar improvements, for mutual or public benefit. Free use of material 
 to be used in any business will be refused, as, for example, to sawmill 
 proprietors, owners of large establishments or commercial enterprises, 
 and companies or corporations. The free-use privilege will not be given 
 to any trespasser." 
 
 TIMBER SOLD so THAT FOREST is CONSERVED 
 
 Next certain timber is sold, and to whom? To those who wish it, 
 whether in small or in large quantities; not for their own use, but for 
 commercial purposes. Ought the Government give it to them? Hereto- 
 fore men have made millions sawing into lumber the timber that belonged 
 to the people of this Nation. Shall we return to that policy? 
 
 Now, then, what timber is sold? 
 
 I will come in a moment to the question of policy that was raised as 
 to "the Government being a merchant." 
 
 Not only is what is known as "down" timber, to which the Senator 
 from Wisconsin [Mr. Spooner] referred yesterday, sold, but what is 
 called "ripe" timber is sold. 
 
 Mr. SPOONER. I said that. 
 
 Mr. BEVERIDGE. I did not hear the Senator when he said it. Perhaps 
 I had been called out of the Chamber. Then the Senator did cover that. 
 The truth about it is that these forest reserves are merely great natural 
 wood factories, and unless reserves are so treated, and trees cut that 
 should be cut and when they should be cut the result is bad to the forest 
 itself. It is blown down, it rots, and is itself a source of decay. What 
 shall the Government do ? Let it fall and let it rot ? It is the Govern- 
 ment's property, just as much as the chairs in this Chamber; just as 
 much as the money we seem to be so afraid to appropriate is Government 
 property. 
 
 The prime object of the forest reserves is use. While the forest and its 
 dependent interests must be made permanent and safe in preventing 
 overcutting or injuring the young growth, every reasonable effort is 
 made to satisfy legitimate demands. Timber cut from forest reserves 
 may be handled and shipped like any other timber, except that it is not 
 
574 AMERICAN FEDERAL GOVERNMENT 
 
 sold for shipment in regions where local construction requires the entire 
 supply, or is certain to do so in the future. Anyone may purchase timber 
 except trespassers. Forest rangers are authorized to sell timber in 
 amounts not exceeding $20 in value; forest supervisors not more than 
 $100 worth, and the Forester larger sales. 
 
 We talk about " economy." Economy of what? Of the Govern- 
 ment's resources, and those resources consist in cash, in land, in trees, 
 in ships, in anything else that the Government owns. So, if we are con- 
 serving these trees, and derive revenue from them, we are practicing the 
 highest economy just as much as if we are careful and we should be 
 careful of the actual dollars appropriated. 
 
 So that, Mr. President, is what is done with that wood, and that is 
 not only bringing a revenue into the Treasury, but it is creating a con- 
 tinuous revenue from the same source for the future. I ask any Senator 
 who objects to the Government being a " merchant," as we have heard, 
 whether or not any Administration could be justified in not saving to 
 the people of the United States the revenue that comes from the sale of 
 this timber. What else would you do with it? 
 
 Would you give to one man to receive freely and sell for his own 
 profit the timber for which another man stands ready to pay two or 
 three or five dollars a thousand feet millions upon millions of feet 
 of it ? For there is no other choice than this either some favored 
 individual or the people of the United States must receive the benefit. 
 Under sales already made the Government will receive hundreds of 
 thousands of dollars. The timber sold cannot be removed except in 
 large quantities ; expensive plants must be provided to make it possible 
 to utilize the timber at all. Should the Government abstain from re- 
 ceiving this revenue that some private individual may gratuitously reap 
 a fortune? If so, on what principle shall selection of the person to 
 receive this princely favor be made? 
 
 TECHNICAL INVESTIGATIONS ADD TO COUNTRY'S WEALTH 
 
 But this is not all, Mr. President, nor is it perhaps the most important 
 thing. We are developing this country, developing its resources. I 
 very greatly doubt whether we have had any source of tangible wealth 
 to the people so great as the aid that has been given the people in infor- 
 mation, scientific direction, and help by the department of Agriculture. 
 An entire day might be most usefully spent, both so far as the people 
 and the Senate are concerned, in reviewing the actual practical help to 
 the people by the information that is gathered and given to the farmers 
 of the country by the Department of Agriculture. 
 
 So the next thing the Forest Service does is to constantly test the trees 
 and the various kinds of wood for new uses. It is found that some 
 woods which formerly were supposed to be worthless are most valuable ; 
 
LEGISLATIVE PROBLEMS 575 
 
 so that, as one kind of timber is cut off and the lumber disappears an- 
 other kind of timber is found. 
 
 I cite as examples of that two trees with which some Senators here 
 will be especially familiar. One is the western hemlock and the other 
 the southern gum. The southern gum was a tree which afforded excel- 
 lent lumber, but which immediately warped, so that the stock expression 
 of a lumberman was that if you were to go to sleep on one side of a 
 southern gum board you would wake up next morning on the other side 
 of it, because it would warp so. But the Department has found a 
 method of cutting and treating it so that it has become one of the con- 
 siderable resources of the States where it grows. It has taken the place 
 of wood which heretofore was used almost exclusively, but which now 
 has become practically exhausted, just because we did not have such 
 forest preservation as is now proposed. 
 
 Another is the western hemlock. Up to a few years ago the western 
 hemlock was supposed to be like the eastern hemlock, unfit for lumber. 
 This Department has developed the fact that it makes an admirable 
 lumber; and now it constitutes a source of real revenue to the States 
 where it grows. 
 
 The Forest Service is active in finding new uses for sawmill waste; 
 testing new woods to be used for paper in place of those which are be- 
 coming exhausted or too expensive ; testing new woods for mine props, 
 railroad ties, box boards, vehicle woods, wooden pavements, cooperage, 
 and many other uses. It is studying methods of preserving woods against 
 decay, and is thus increasing enormously the service that can be got out 
 of wood in some of its commonest uses. In this one field its work is 
 equivalent to increasing the timber resources of the country by creating 
 out of nothing thousands and hundreds of thousands of acres of stand- 
 ing forest. Both by promoting economy in the use of wood and by pre- 
 venting waste in harvesting the forest crop it has added millions of 
 dollars' worth of material to the national wealth in private ownership. 
 
 Mr. President, that is not only creating wealth for the Government as 
 such, but it is creating wealth for the people, because, of course, most 
 everybody knows that most of the forest land of the United States is 
 held by private owners. I think perhaps less than one-fifth the 
 Senator from Wyoming may know about that, and I want to be cor- 
 rected if the statement is wrong, and that it is too high, if anything is 
 held in Government reserves. 
 
 Mr. CLARK of Wyoming. It is very much too low. 
 
 Mr. BEVERIDGE. You mean that much more than the amount I 
 named is held by private owners? 
 
 Mr. CLARK of Wyoming. Yes. 
 
 Mr. BEVERIDGE. I think that very much more than I have stated is 
 held by private individuals, but the private owners do not and can not, 
 unless they operate upon a scale almost as great as the Government 
 
576 AMERICAN FEDERAL GOVERNMENT 
 
 itself, make these scientific examinations which discover the unknown 
 properties of their wood. So in this one way the Department is creating 
 enormous wealth for the American people. 
 
 Mr. CLARK of Wyoming. Right on that point, will the Senator allow 
 me a question as to the scientific work of the Bureau? 
 
 The VICE-PRESIDENT. Does the Senator from Indiana yield to the 
 Senator from Wyoming? 
 
 Mr. BEVERIDGE. Certainly. 
 
 Mr. CLARK of Wyoming. Is it not a fact that nearly all of the scien- 
 tific experiments of the kind to which the Senator is referring are con- 
 ducted by the private owners, and that nearly all these experiments are 
 made upon private timber lands ? I ask him if that is not the general 
 fact. 
 
 Mr. BEVERIDGE. No; not all of them by any manner of means. 
 I understand the fact to be 
 
 Mr. CLARK of Wyoming. I did not say all of them; I said pretty 
 generally the experiment was not a united experiment between the 
 private owner of the timber and the Government. 
 
 COOPERATION WITH PRIVATE OWNERS AND INDUSTRIES 
 
 Mr. BEVERIDGE. I understand the fact to be and I desire to get 
 it right and I will put it in the Record right if I do not get it correct 
 now, because we are trying to get information and we have no pride of 
 opinion, and if any of us find that we have made a mistake we are all 
 equally willing to admit it I understand the fact to be about these 
 experiments that they are conducted to ascertain the best uses of timber 
 on the Government's forest lands, and also the best uses of timber on the 
 lands of private owners. Where any private owner of forest land de- 
 sires to test his wood, the Government cooperates very cheerfully, and 
 even invites such cooperation. I am sure that every Senator here, no 
 matter what may be his opinion upon any other subject, would approve 
 that plan as a wise and common-sense thing. 
 
 In addition to cooperative work in timber tests, the Forest Service 
 gives advice and assistance to private owners of timber lands all over 
 the country. Unless these forests also are preserved, a timber famine 
 not less dangerous than a coal famine is in sight. Applications for help 
 of this kind come from both owners of small wood lots and holders of 
 large timber tracts. What are called " working plans " are made; that 
 is, certain rules are recommended for the proper protection, management, 
 and utilization of the timber, to the end that the owner may be assured 
 of a continuous supply of wood, at the same time cutting what is neces- 
 sary for present needs. 
 
 The object of the wood-lot work is to give, free of cost to farmers and 
 other small owners, advice and assistance in the improvement and use 
 
LEGISLATIVE PROBLEMS 577 
 
 of their woodlands. The cooperative work on large timber tracts em- 
 braces the whole country, and in many cases the plans recommended by 
 the Forest Service are now actually being carried out very successfully. 
 
 Cooperative work is also undertaken with the various States, and 
 this branch of the work has been taken up with the greatest detail in 
 California. 
 
 So, Mr. President, we see what the Department is doing. I am trying 
 to forward the work as much as possible. Of course there is a tremen- 
 dous and far-reaching and deeply founded policy beneath it which I 
 stated in the beginning, and that is the prevention of that portion of this 
 country and, if we could, of every portion of this country from 
 continuing a desert or being made into one if it is not one already. We 
 are in a great work and how characteristically American it is the 
 work of reclaiming, of saving, of developing, of making two blades of 
 grass grow where none grew before. We have passed the period of 
 destruction. We have abandoned that ruinous exploitation which was 
 called "development," but was the reverse. We are replacing as fast 
 as we can those gigantic resources which, in the strength and in conse- 
 quence of our national youth, we so ruthlessly and thoughtlessly de- 
 stroyed. It is a great constructive policy designed to create conditions 
 that will supply homes for hundreds of thousands and millions in the 
 near future and even a denser population in the more distant future. 
 
 RESERVES NATURAL FOREST LAND 
 
 I come now to a statement made and it was an illustrative state- 
 ment yesterday afternoon by the Senator from Colorado [Mr. Pat- 
 terson] and I am sorry that he is not in his seat. But the Senate has 
 heard him and I think possibly one or two other statements were 
 made like it. The Senator from Colorado yesterday described, with 
 that vigorous eloquence which so characterizes him and charms us all, 
 the establishment in Colorado of a great reserve, larger, he said, than 
 some States, without a single tree upon it or any tree ever having grown 
 upon it. I took pains to look up the fads as to that statement; and 
 what are the facts? 
 
 It is true, in part, Mr. President, that such a reserve has been taken 
 up so far as the existing trees are concerned. But it was originally land 
 every foot of which was covered with magnificent woods which have 
 Jong since been burned away until parts of the mountains and it is 
 a mountain region where that reserve is are as bare of trees as three 
 mountains I saw in the States of Colorado and California though 
 they were bare from a different cause as the surface of this desk. 
 But it is natural forest land. It is ideal for reforesting; it is being re- 
 forested. But the reforesting is impossible if all the herds and all the 
 flocks of Colorado belonging to her great cattle and sheep kings and 
 
 37 
 
578 AMERICAN FEDERAL GOVERNMENT 
 
 princes and I have no objection to them ; I should like to be a king 
 of that kind myself are allowed to pasture over that reserve at will and 
 without control as well as without charge. 
 
 Mr. President, it was held out by intimation, if not by direct state- 
 ment, that this land was fit for agricultural purposes and that the policy 
 of the Department, therefore, had been to despotically take a principal- 
 ity in size, where no trees grew, and keep off the "sweeping tide of 
 immigrants " from " founding homes." The fact is that it is above the 
 agricultural line where homes are not "founded," and "immigrants" 
 do not "pour in tides " or "pour " in any other way. Most of it is over 
 8,000 feet above the sea level, where farms are not practicable, except, 
 I believe, a certain kind of farming, which is not worth taking into 
 account. It is one of nature's natural forest reservoirs of water for the 
 purpose of distributing that water for the uses of the people where the 
 land farther down is agricultural. 
 
 What exists with reference to that land now is this : It is grown over 
 with grasses; those grasses are good for grazing, and over that great 
 extent, which belongs to the Government of the United States, the 
 stockmen and the sheep men of Colorado have been fattening their 
 herds. And they ask to do it still more and that, too, without pay- 
 ing the Government a dollar. 
 
 RESERVES NOT UNPEOPLED SOLITUDES 
 
 Let us bear in mind the actual conditions. A forest reserve contains 
 lands "chiefly valuable for timber." Yet if the farmer finds up and 
 down some valley that creeps back into these mountains a site for set- 
 tlement, it is open to him as much as any other part of the public do- 
 main, if he enters in good faith. The reserves have been pictured as 
 vast stretches of unbroken wilderness, empty solitudes trod only by the 
 forester. In point of fact, they contain thousands of ranches; they 
 contain hamlets, villages, and towns, to say nothing of lumber camps 
 and railroad construction camps and mining camps. Wherever signs 
 of mineral can be found the prospector stakes out his claim. In summer 
 they are alive with those who resort thither for health and recreation 
 50,000 of them in one season in southern California alone and with 
 the cowboys and sheep herders, who guard and care for the 7,000,000 
 head of animals that last year grazed in the forest reserves. 
 
 BENEFITS or REGULATED GRAZING 
 
 These forests of the West are unlike those of the 'East. They are 
 often open and park like, with forage plants growing beneath the trees. 
 These grasses, like the trees themselves, will be wasted if they are not 
 used. For this reason the Forest Service permits grazing in the reserves, 
 
LEGISLATIVE PROBLEMS 579 
 
 but in every case is careful to exclude grazing from areas in which it has 
 been found harmful. For example, grazing is not permitted in forests 
 " under reproduction," as the Forester speaks of it that is, forests 
 in which cuttings are in progress to invite young growth. Forest re- 
 serves have never been created out of lands which are merely grazing 
 lands. Yet this resource is like the forest in that it may be greatly 
 impaired and even destroyed by unwise use. Unrestricted admittance of 
 all stock would bring, and in many cases has brought, a decline in the 
 number which the range would support. By licensing only so many 
 head as the range can well support the Forest Service has proved to the 
 satisfaction of the stockmen themselves that the carrying power of the 
 range season after season is actually increased. 
 
 It was said that this was the crowning " infamy " of the Department, 
 that the Department actually charged a ''license fee" before any of 
 these men were permitted to graze their cattle. I ask the Senate what 
 else could the Government do? Ought the Government to give that 
 privilege to the cattle and the sheep men, and if the Government ought 
 not to give it to them can anybody imagine a safer or more practicable 
 system of charging than the permit system? 
 
 RESPONSIBILITY FOR LIEU LAND ABUSES 
 
 Now I come to the question of lieu land. I thought when I heard 
 the Senator from Oregon make his charge the other day that he made a 
 very serious charge, and when it was renewed by the Senator from 
 Montana it appeared to me even grave. I knew that neither one of those 
 Senators would make such a charge as that thoughtlessly. I have looked 
 it up, and, in my opinion, that charge is entirely true. 
 
 I think it is entirely well founded, and after my investigation I think 
 the language of the Senator from Montana, which I thought at the time 
 was severe, is entirely justified, when he said that the relations of the 
 Department at one time with the land-grant railroads would bear 
 looking into. 
 
 I find that it is true, as the Senator from Oregon described, that large 
 tracts of land in Washington which were worthless had been released 
 and lieu lands taken up in valuable portions of Oregon. But what has 
 this Bureau to do with that? What are the facts? Let us be just to 
 everybody. Nobody intends to accuse any man falsely nor condemn 
 any man unjustly. The truth is that was done under a construction of 
 the law by the Land Office some years ago, and one of the first objections 
 to it that was made within the Government itself was made by the Bureau 
 of Forestry and personally by Gifford Pinchot, the Chief Forester. 
 
 The Senator from Minnesota, who was most active in repealing that 
 law to which a false meaning had been given by this construction of the 
 Land Office will bear me out in that. 
 
580 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. CARTER. Will the Senator permit an interruption ? 
 
 Mr. BEVERIDGE. I will. 
 
 Mr. CARTER. The situation of which complaint is made presented 
 this aspect, to wit : This Government owned large areas of very valuable 
 timber land. The ownership of the Government over the land was 
 undisputed. The superb character of the timber growing upon the land 
 no one questioned and everybody knew. That character of land was 
 not included in forest reservations until a lot of destitute, barren land in 
 Arizona and elsewhere had been included in forest reserves land 
 which at the time of such inclusion was largely in the ownership of 
 railroad companies, and that private ownership of these barren lands 
 gave to the railroad companies the right to exchange the barren lands 
 for the superb timber lands to which I referred. 
 
 Now permit me to ask why these great, superb, and valuable timber 
 lands were not first withdrawn as forest reservation, so as to be protected 
 from the rapacious grasp of the land-grant railroad, seeking lieu land 
 for its trifling land in Arizona and elsewhere ? 
 
 Mr. BEVERIDGE. The original fault was in Congress, which made 
 the law capable of the construction the Land Department put upon it. 
 
 Mr. CARTER. Mr. President 
 
 Mr. BEVERIDGE. Let me answer your question. The secondary 
 fault was in the Land Department for putting that construction upon it 
 and the remedy for which and let us spend no more time on that point, 
 because the Senator ought generously to admit it was suggested by 
 the present Chief of the Bureau. So the fault, whatever there is, lies 
 with us. 
 
 Mr. CARTER. Will the Senator inform us now why it was, when this 
 great body of splendid timber land was in peril, the power of the Gov- 
 ernment was not exercised to protect it by withdrawing it and put- 
 ting it in a forest reserve, and thus beyond the grasp of the lieu-land 
 speculator ? 
 
 Mr. BEVERIDGE. That has been a long time ago, and was because 
 of the law which we ourselves had passed 
 
 Mr. CARTER. Mr. President 
 
 Mr. BEVERIDGE. Now pardon me. I have gone over this two or 
 three times and which this Bureau, and the head of this Bureau as 
 one of this Commission, was the first to suggest the correction of. 
 
 Mr. CARTER. But the law which allowed poor land to be withdrawn 
 certainly allowed good timber land to be likewise withdrawn. Why was 
 not the good land withdrawn first ? 
 
 Mr. FLINT. Mr. President 
 
 The VICE-PRESIDENT. Does the Senator from Indiana yield to the 
 Senator from California? 
 
 Mr. BEVERIDGE. Certainly. 
 
 Mr. FLINT. I would like to ask a question of the Senator from 
 
LEGISLATIVE PROBLEMS 581 
 
 Montana. How long was it after the Secretary of the Interior had made 
 the ruling he has mentioned before Congress acted and repealed the 
 statute permitting the selection of good lands for the bad lands 
 surrendered ? 
 
 Mr. CARTER. From the very beginning it was within the power of 
 the Interior Department to protect all the valuable timber land in the 
 United States by including it in a forest reserve before any barren land 
 at all was put in a forest reserve. The policy pursued was to put the 
 barren land in forest reservations first and leave the superb timber land 
 open, to be taken in exchange for the base lands in the forest reserves. 
 
 Mr. BEVERIDGE. If that was the policy, it never has been the policy 
 under the present administration of the office. 
 
 Mr. CARTER. I refer to things done and not to policy. I refer to 
 accomplished facts and public records and not to chimerical policies or 
 uncertain data. 
 
 Mr. BEVERIDGE. That is rhetoric, but as a matter of fact the Senator 
 must be as fair to me as I was to him and admit, and not only admit, 
 but gladly assert, and I know the Senator will, that none of the things 
 of which the Senator complains had its source in the present administra- 
 tion of the Forestry Bureau. 
 
 Mr. CARTER. I admit that Mr. Pinchot complained early and 
 earnestly of the law. 
 
 Mr. BEVERIDGE. Yes. 
 
 Mr. CARTER. I place the responsibility where I think it belongs 
 
 Mr. BEVERIDGE. That is right. 
 
 Mr. CARTER. On the shoulders of those who so connived with the 
 construction of this law as to pass to the land-grant railroads the splen- 
 did timber lands of Washington, Idaho, and western Montana in ex- 
 change for chaparral land in Arizona. 
 
 Mr. BEVERIDGE. I heartily agree with the Senator. 
 
 EFFECTIVE ADMINISTRATION OF THE NATIONAL FORESTS 
 
 Mr. President, I have examined briefly the policy, the three grounds 
 of public good upon which this whole forest-reserve system rests. Now 
 as to the question of administration, by which we mean the manage- 
 ment of the reserves, it includes several things. After the reserves have 
 been located in the painstaking way they are, as I have shown here by 
 these maps and by the instructions to the locators of reserves, they are 
 remapped. They are classified as to trees. There is now under the 
 actual practical administration of this Bureau 128,000,000 acres, I be- 
 lieve. The Senator from Montana will correct me if I am wrong. 
 
 Mr. CARTER. One hundred and twenty-seven million acres. 
 
 Mr. BEVERIDGE. One hunderd and twenty-seven million acres. Now, 
 through that runs a great system of forest patrol. It is policed by a 
 
582 AMERICAN FEDERAL GOVERNMENT 
 
 network of forest rangers. One Senator yesterday referred to the fact 
 that the examination of the land could not have been thorough, because 
 one man had gone over 4,000,000 acres in two weeks. Was it not that ? 
 It was something like that, in any event, Mr. President. What does that 
 mean ? Merely that instead of cutting down the appropriation for the 
 proper care of the reserves it ought to be increased. As a matter of fact, 
 the forest policing is very careful, thorough, systematic. They police 
 the forests, and I will tell in a minute what that means. If any man 
 thinks that a forest police is not valuable, I shall show in a moment that 
 there is no individual service in this Government that is more valuable or 
 more delicate. 
 
 This policing is done by the rangers 900 of them employed last 
 year to patrol 100,000,000 acres of land one ranger to 110,000 acres, 
 or 172 square miles. In the highly profitable forests of Prussia there is 
 one forest guard on the average to every 1.7 square miles. Small wonder 
 that the cost of administration in the United States in spite of the higher 
 scale of wages has been kept below that of any other European country 
 except Russia. 
 
 The Forest Service is now expending annually, in administering the 
 reserves, 1.6 cents per acre. Doubtless it should spend more, and must 
 spend more as use of the reserves increases, for wise use means super- 
 vision and supervision means expense. Every live tree that is cut on 
 the reserves is first marked by the forest ranger's axe ; every log that is 
 used is scaled; and this is but one of their many duties, which include 
 guarding the range against trespass and the forests against fire. And all 
 this with one ranger to 172 square miles ! It needs no further evidence 
 to show that these are not invalids, or Eastern tenderfeet, or college-bred, 
 impractical theorists. They are men of the West, woodsmen, cowboys, 
 lumberjacks men who can ride the mountain trails and live a frontiers- 
 man's life. As to their efficiency, the record of forest fires throws some 
 illumination on that point. I shall have something to say on that subject 
 presently. 
 
 The next thing that the Forest Service does in the actual administra- 
 tion, after the test of the trees, after the marking of the "ripe" or mature 
 timber, after arranging for the sale of that and the "down" timber, is to 
 make trails and build roads, so that it is possible to communicate with 
 one part of the reservation from another, and, further, so that if any 
 agricultural lands are taken up by homesteaders there is a system of 
 communication. 
 
 Then along this road there are built telephone lines, so that if in one 
 portion of the forest a fire starts a ranger who finds himself unable to 
 put it out may instantly telephone for help, so that men may be sent there 
 and extinguish the fire while it is still young. Also, they build bridges, 
 so that instead of a wild, ruinous, and rotting tangle of forest land you 
 have a forest land which is woven together by trails, by a network of 
 
LEGISLATIVE PROBLEMS 583 
 
 roads, and by telephones. You have the "ripe" timber cut and taken 
 off so as to increase the growth of that which is left. You have the 
 "down" timber disposed of by selling it instead of permitting it to rot. 
 You create a natural and healthy and perpetual forest, and therefore a 
 profitable forest. 
 
 SUCCESS OF PROTECTION AGAINST FOREST FIRES 
 
 Mr. President, about the question of fires. In conversation yesterday 
 I said that one of the most valuable services the Forest Service does was 
 to preserve the forests from fires. I myself have had a little experience 
 with forest fires and considerable observation about them, and there are 
 Senators here from the West who have had a great deal more. It was 
 suggested to me that the men who put out the fires are not the foresters, 
 but really farmers. But that shows that there is still not as much knowl- 
 edge in the Senate or the country as there ought to be as to what this 
 Bureau is doing in the way of practical administration; because nearly 
 all the fires that are now started in these mighty western forests are ex- 
 tinguished before they are old fires. 
 
 When a forest fire gets under way hardly all the farmers in a State 
 could stop it; and I, in common with other Senators, have seen great 
 areas of forest land, where millions and I might also be accurate in 
 saying tens of millions of dollars' worth of Government property has 
 been destroyed in less than two weeks' time. Then this is another part 
 of its administration, and so excellent has it been and I call the atten- 
 tion of the Senator from Montana to this, because he will know better 
 than I so excellent has this fire protection been that the entire West 
 has been practically clear of smoke during the summer time for the last 
 two years. 
 
 Mr. President, that last circumstance is something which, to those 
 who live near great forest districts, is of absolutely incalculable conse- 
 quence. I myself have seen in the forests of the Northeast mighty con- 
 flagrations raging which swept away villages and towns ; and in one such 
 fire, I remember, more than a hundred human beings lost their lives. I 
 have seen, and the Senator from Montana has seen much more that I, 
 the whole atmosphere clouded for weeks with smoke from these criminal 
 acts of negligence because that is what they are. When the Forest 
 Service of the United States stops one of these fires they have saved 
 more money to the Government than ten appropriations like this. We 
 speak of economy, but we mean economy of resources, and trees are 
 resources and soil is a resource as much as actual dollars. 
 
 The Forest Service keeps careful records of all fires on the reserves. 
 These include even the smallest fires, which are put out before they 
 have covered more than a few square rods fires which, but for the 
 vigilance of the forest officers, might become great conflagrations, but 
 
584 AMERICAN FEDERAL GOVERNMENT 
 
 which are extinguished without cost beyond the salary of the rangers 
 who patrol these forests as a part of their regular duties. During the 
 year 1906, out of a total of 97,000,000 acres under administration, one- 
 eighth of i per cent was burned over, and three one-hundredths of i per 
 cent of the estimated standing timber was destroyed. But of over 1,100 
 fires reported, 450 were extinguished without one cent of extra cost to 
 the Government. Nearly 700 large fires were fought, at a total cost of 
 less than $9,000 for extra labor and supplies. That is pretty good evi- 
 dence of the efficiency of the protection which the Forest Service gives, 
 at a lower cost per acre, as I have already shown, than any European 
 country except Russia and Russia's figure is so low because the 
 greater part of her forests are not under administration at all. 
 
 INCREASE IN THE FLOW OF STREAMS 
 
 The next thing is the exactly opposite thing, and yet closely connected 
 with it I am now talking about the actual tangible administration of 
 this Service. The next thing which shows how completely the Service 
 is practical and results in a definite and tangible benefit to the people 
 is whether or not, as a matter of fact, it increases the waterflow in the 
 streams. If we can show that it has kept the West, that mighty area 
 of imperial forests, clear of smoke for two summers, we have vindicated 
 it. But now if we can show, as a matter of fact, it has kept the streams' 
 banks full, we have done more than that. 
 
 As a matter of fact, actual stream measurements made in southern 
 California show an increase of 25 per cent in the flow of water since the 
 reserves were created. No wonder the two Senators from California 
 are hearty supporters of this policy. That means life to the people of 
 California. That means prosperity to the people of that region. That 
 means happy homes for hundreds and thousands of people. And so the 
 Senators from California, speaking from actual experience, can testify, 
 as they have so repeatedly testified, to the practical excellence of the 
 tangible administration of these reserves. The same is true elsewhere. 
 
 So we see that in all the details of actual administration the Bureau 
 is well-nigh perfect. I do not use that adjective unwittingly or lightly. 
 I do not use it without having something of an official nature to support 
 it. It is my purpose in the Senate to make no statement that I can not 
 substantiate by something recognized as authoritative. I myself have 
 never been greatly impressed by statements, however powerful they may 
 seem, which could not be sustained by authorities. 
 
 The Department's conduct of these reserves has been criticised, even 
 as to its administration here in Washington. This Department and all 
 of the Executive Departments were examined by a commission called 
 "the Keep Commission." I do not know whether that Commission is 
 very popular or not, and the question is not whether it is. The ques- 
 
LEGISLATIVE PROBLEMS 585 
 
 tion is whether what that Commission found of this Department is true. 
 I wish to state in the beginning that a member of that Commission was 
 Mr. Pinchot. But the man who testified before the House Committee on 
 the Expenditures of the Agricultural Department was not Mr. Pinchot. 
 It was Mr. Garfield, who is about to be the Secretary of the Interior. 
 They went through all the Departments and one model department 
 was found as to its actual administration, and particularly as to its 
 system of auditing accounts, particularly as to the extreme care it took 
 of the people's money. And so admirable was this Bureau found to be 
 that it has been taken as an example upon which to recast and remodel 
 other Departments and bureaus of the Government. 
 
 ******** 
 
 Mr. President, I think that we have gone pretty thoroughly into this 
 thing. I have tried to do it briefly, and still I have tried not to forget 
 anything. I have here some other data which I shall ask the permission 
 of the Senate to insert in my remarks without reading. 
 
 The VICE-PRESIDENT. Without objection, permission to do so is 
 granted. 
 
 The matter referred to is as follows : 
 
 The administrative policy under which the forest reserves are managed 
 was laid down by the Secretary of Agriculture in his letter to the Forester 
 dated February i, 1905: 
 
 In the administration of the forest reserves it must be clearly borne in mind 
 that all land is to be devoted to its most productive use for the permanent good 
 of the whole people, and not for the temporary benefit of individuals or com- 
 panies. All the resources of forest reserves are for use, and this use must be 
 brought about in a thoroughly prompt and businesslike manner, under such 
 restrictions only as will insure the permanence of these resources. The vital 
 importance of forest reserves to the great industries of the Western States will 
 be largely increased in the near future by the continued steady advance in 
 settlement and development. The permanence of the resources of the reserves 
 is therefore indispensable to continued prosperity, and the policy of this De- 
 partment for their protection and use will invariably be guided by this fact, 
 always bearing in mind that the conservative use of these resources in no way 
 conflicts with their permanent value. 
 
 You will see to it that the water, wood, and forage of the reserves are con- 
 served and wisely used for the benefit of the home builder first of all, upon 
 whom depends the best permanent use of lands and resources alike. The 
 continued prosperity of the agricultural, lumbering, mining, and live-stock 
 interests is directly dependent upon a permanent and accessible supply of 
 water, wood, and forage, as well as upon the present and future use of these 
 resources under businesslike regulations, enforced with promptness, effective- 
 ness, and common sense. In the management of each reserve local questions 
 will be decided upon local grounds ; the dominant industry will be considered 
 first, but with as little restriction to minor industries as may be possible; sudden 
 changes in industrial conditions will be avoided by gradual adjustment after 
 
586 AMERICAN FEDERAL GOVERNMENT 
 
 due notice, and where conflicting interests must be reconciled the question will 
 always be decided from the standpoint of the greatest good of the greatest 
 number in the long run. 
 
 Mr. BEVERIDGE. Mr. President, I do not know that I should have 
 gone so much into the discussion but I am glad I have gone into it 
 if it had not been for the original question of the character of the services 
 rendered by that remarkable public servant, the Chief Forester of the 
 United States, whom I have known intimately since I was chairman of 
 the Forestry Committee of the Senate years ago, and whose work I have 
 observed with increasing wonder and admiration a man who never 
 spares himself mental or physical fatigue. Mr. President, when that 
 man shall have completed his work on earth his monument will be no 
 shaft of stone or image of brass. No ! it will be the great and splendid 
 forest reserves reclothed with nature's garment. It will be mighty moun- 
 tain peaks now bare, then covered with the woods nature once put there 
 and which he has restored. It will be the streams now dry, running 
 bank full for the welfare of the people. It will be human welfare and 
 human happiness. 
 
 THE NATIONAL FOREST POLICY 1 
 
 SINCE Mr. Roosevelt has been President and Gifford Pinchot chief of 
 the forest service, forest reserves in the West have been increasing with 
 such rapidity as to provoke a great deal of criticism from Western 
 Senators and lumber interests. The forest service, beginning as an un- 
 important bureau in the Department of Agriculture, has now come to 
 have an entity of its own and broad powers over selected portions of the 
 public lands. In the closing days of Congress Easterners, who give but 
 little attention to matters in the far Western States, were considerably 
 surprised at the concerted attack made by several Western Senators on 
 the forest policy of the Administration. 
 
 This opposition to the forest service is declared by those in a position 
 to know best, to have sprung from two sources opposition to the gen- 
 eral public lands policy urged by the President, and misconception of 
 the actual purpose and probable results of the forest service policy. For 
 reasons not unremotely allied to this wave of criticism, and because the 
 name was a misnomer, the designation National Forest has been sub- 
 stituted for forest reserves. 
 
 The discussion by the President, in his successive messages to Con- 
 gress, of public land questions seems to have aroused a very general 
 feeling of alarm among Western men. Naturally, the interests which 
 have found their profit in fraudulent operations under the present laws 
 land-grabbers, timber-grabbers, and range-fencers were not likely 
 
 1 New York Evening Post, March 20, 1907. 
 
LEGISLATIVE PROBLEMS 
 
 587 
 
 to favor the changes intended to put a stop to their operations. It would 
 be a mistake, however, to suppose that desire for illicit gain is the motive 
 which actuates the majority of the Western people not willing to follow 
 the President's lead. 
 
 The whole tendency of things in the West tends to promote reckless- 
 ness in the use of national resources, and to cause many Western people 
 to look with leniency on questionable methods of acquiring title to 
 property from the public domain. The people are too new to the region, 
 too unattached, too hustling, to give great thought to the distant future. 
 Boom development is far too much the ideal for which most people are 
 working. The distinction between exploitation and real upbuilding is 
 that between the man who develops the country and the man who skins 
 the land. This is the Administration argument: 
 
 THE ADMINISTRATION ARGUMENT 
 
 The national forests are undeveloped properties. They contain re- 
 sources basic to the industrial life of the several Western States, so that 
 their wise conservation is essential to the permanent welfare of these 
 States. But, to make them useful, large capital expenditures are neces- 
 sary. Even to protect them properly calls for a far greater sum than 
 Congress would be likely to vote. Nor would it be just for Congress to 
 take from the national Treasury this money, which would be expended 
 for local benefits, when the money can be raised perfectly well by a 
 moderate charge upon the users of the national forests for valuable 
 privileges or materials. The only way to find the means for develop- 
 ing the national forests at the present time as they should be developed 
 lies in securing a revenue from them. 
 
 State 
 
 Number 
 of 
 reserves 
 
 Acres 
 
 Arizona 
 
 1 3 
 
 o ,4.co 82 < 
 
 California 
 
 IQ 
 
 19,882,487 
 
 Colorado 
 
 16 
 
 12,698,825 
 
 Idaho 
 
 16 
 
 19,048,806 
 
 Kansas ............ 
 
 i 
 
 97,280 
 
 Montana ............... 
 
 20 
 
 17,344,883 
 
 Nebraska 
 
 3 
 
 556,072 
 
 Nevada 
 
 
 766,959 
 
 New Mexico 
 
 12 
 
 7,024,504 
 
 Oklahoma 
 
 I 
 
 60,800 
 
 Oregon . ........... 
 
 12 
 
 12,500,728 
 
 South Dakota 
 
 4 
 
 1,263,720 
 
 Utah 
 
 16 
 
 6,731,300 
 
 Washington 
 
 5" 
 
 7,785,606 
 
 Wyoming . . . 
 
 8 
 
 8,637,366 
 
 
 
 
588 AMERICAN FEDERAL GOVERNMENT 
 
 The area of the national forests in 1891 was 2,437,120 acres. This 
 has increased steadily except during the period from 1893 to 1896 in- 
 clusive, until to-day the acreage of the national forests is 148,281,230. 
 On February i, 1907, there were 136 forest reserves in the United States 
 with a total acreage of 123,850,161. How these were located and their 
 acreage are shown in the above table. 
 
 THE PRESIDENT'S RECENT PROCLAMATION 
 
 One of the last acts of Congress before adjournment this month was 
 to pass a law forbidding the creation of forest reserves, except by Con- 
 gress in the six States of Washington, Oregon, Montana, Idaho, Wyo- 
 ming, and Colorado. The effect of this act would have been to delay 
 the extension of national forests in these States had not the President, 
 as soon as he became aware of the purpose of Congress, rendered the 
 legislative will practically void by adding 17,000,000 acres to the national 
 forest area in those States by executive order. This great acreage is 
 divided into thirty-two separate reserves of forests. 
 
 It is impossible to say how much remaining public land though 
 probably but a very small proportion is adapted for national forest 
 purposes, because no satisfactory examinations have been made of this 
 land to determine its best use. Instead of answering this question, the 
 following statement, comparing the stumpage of the national forest with 
 the stumpage of the Western States as a whole, may prove interesting : 
 
 The estimated stumpage of the national forests is 330 billion feet. An 
 estimate of the Western States, which includes only some of the States for 
 certain species, and omits several species, gives 800 billion feet as the 
 total stumpage of the region. Probably only 25 per cent of the timber 
 of the States in which they are located is included in the national forests. 
 
 The only lands among the national forests which have been thrown 
 open to settlement are those which were restored to the public domain 
 March 16 last. This was not forested land, but a part of it was intended 
 to be used for experiments in forest planting. It was restored because 
 agriculture on part of the area had become possible by means of the 
 Campbell system of dry farming. 
 
 Lands temporarily withdrawn from entry, comprising 550,000 acres 
 in Colorado and 370,000 in Washington, were released this month. 
 No other areas of importance have recently been released, though it is 
 the active policy of the Forest Service to withhold no land more im- 
 portant for other purposes than for forest growth. 
 
 Under the Administration of President Harrison 13,416,710 acres 
 were added to the forest reserve; under President Cleveland the total 
 became 25,686,320, and under President Roosevelt the total is 56,876,934. 
 The following table shows the growth in area of the national forests from 
 1891 to the present time: 
 
LEGISLATIVE PROBLEMS 589 
 
 GROWTH IN AREA OF THE NATIONAL FORESTS 
 
 1891 2,437,120 1900 46,571,359 
 
 1892 5,752,840 1901 46,082,719 
 
 1893 17,928,070 1902 59,966,090 
 
 1894 17,928,070 J 93 62,962,849 
 
 1895 17,928,070 1904 63,093,164 
 
 1896 17,928,070 1905 97,716,860 
 
 1897 39,103,030 1906 127,154,371 
 
 1898 43,744,424 1907, March 15 .... 148,281,230 
 
 1899 46,726,879 
 
 In area the reserves were increased during the fiscal year 1905 to 1906 
 from 85,693,422 to 106,999,138 acres. In revenue they brought in 
 $767,219.96, as against $60,142.62 for the previous year. In timber 
 sales there were disposed of for immediate or early removal nearly 
 300,000,000 board feet of lumber at stumpage prices ranging up to $4 
 per thousand (besides other material to a large value), as against 
 96,060,258 board feet, with a maximum price of $2.50 per thousand in 
 1904-5 and 69,257,710 board feet in 1903-4. The number of free-use 
 permits granted in the same years also showed progressive increase. 
 In the year 1904-5 the reserves were under forest service control only 
 after February i. 
 
 Local sentiment has sometimes been unfavorable to the creation of 
 reserves before their effect upon the public welfare was understood ; but 
 opposition has always dissolved under the test of actual experience. The 
 reserves do not withhold land from agricultural use. Though they were 
 made from the most rugged and mountainous parts of the West and 
 were intended to include only land unsuited for agriculture, by the act of 
 June n, 1906, the right is given settlers to homestead within the reserves 
 wherever strips and patches of tillable land can be found. At the same 
 time, through their water-conserving power, these forests fix in regions 
 of scanty rainfall the amount of land which can be brought under the 
 plough, since at best much otherwise fertile land must go uncultivated 
 for want of water. Without forest preservation much of the land now 
 under irrigation would have to be abandoned again to the desert. 
 
 NOT A MONEY-MAKING SCHEME 
 
 It is not the policy of the forest service to make money out of the 
 reserves of the. Government. They are administered on the same prin- 
 ciple that a private estate is administered by an executor; to make it 
 pay the greatest returns to the beneficiaries in this case the people of 
 the United States. By an act of Congress, 10 per cent of the gross re- 
 ceipts from the national forests are made over to the several States in 
 w r hich the reserves are situated, for the benefit of the counties which 
 
590 AMERICAN FEDERAL GOVERNMENT 
 
 would otherwise receive no revenue from a part of their area. This re- 
 dressed a real grievance. Eventually, it is hoped, the counties affected 
 will find themselves far better off than they would have been without the 
 reserves, for, it is argued, private ownership followed by exploitation 
 would have destroyed the sources of revenue by leaving little or nothing 
 of permanent taxable value. 
 
 On the floor of the Senate opponents of Mr. Pinchot's forest policy 
 conceded that he had won over the stockmen to his way of thinking. 
 On this point Secretary Wilson said: 
 
 I wish to commend the heartiness and good spirit with which the associa- 
 tions of Western stockmen have cooperated in our efforts to enforce fair and 
 just measures for the regulation of grazing in the interest of all users of the 
 forests, and in the interest of the public, to whom these forests belong. The 
 charge of a grazing fee, made for the first time during the last year, though 
 reasonable in view of the advantages of grazing regulation to the stockmen and 
 the cost of reserve administration to the Government, and justly due to the in- 
 terest of the public, might have been expected to cause dissatisfaction and fric- 
 tion. On the contrary, as soon as the reasons for the charge and the method in 
 which it would be applied had been explained, it was generally approved and 
 paid willingly and promptly. It was followed by no falling off in the number of 
 stock grazed in the reserves. In some cases the associations of stockmen have 
 voluntarily aided the service in settling local difficulties. Their whole conduct 
 has shown remarkable moderation, far-sightedness, and readiness to recognize 
 and accept what is in the permanent interest of their industry, even though it 
 involves the sacrifice of immediate personal advantage. 
 
 SPEECH OF SENATOR FRANCIS G. NEWLANDS ON 
 INLAND WATERWAYS 1 
 
 MR. NEWLANDS said: 
 
 Mr. President, the agitation for a deep waterway from St. Louis to 
 the Gulf and from the Lakes to the Gulf has reached such proportions 
 as to create a general demand from every section of the country that a 
 broad and comprehensive plan should be inaugurated for the improve- 
 ment of all the navigable waterways of the country, and that legislation 
 should be adopted creating a fund for continuous and uninterrupted 
 work, securing a fair apportionment of the work between the different 
 sections of the country, and providing for a businesslike administration 
 with reference both to examination and construction. 
 
 The President, realizing this demand, determined to investigate the 
 matter with a view to recommending to Congress such a broad and 
 comprehensive plan; and, as a step in that direction, appointed the 
 Inland Waterway Commission to look into the various questions relat- 
 ing to the inland waterways and their full economic development, and to 
 
 1 Congr. Record, reported Jan. 6, 1908. 
 
LEGISLATIVE PROBLEMS 591 
 
 report to him, with the expectation that, if their recommendation was 
 approved by him, it would be submitted to Congress for its action. The 
 Commission has been in frequent sessions since April last. It has visited 
 nearly every section of the country. Several members of the Commis- 
 sion visited the Pacific coast and inspected the Sacramento, the San 
 Joaquin, and the Columbia rivers. The entire Commission took a tour 
 of the Great Lakes, and also made a trip from St. Paul to the Gulf upon 
 the Mississippi River. Subsequently a majority of the Commission 
 made an examination of the Missouri River. 
 
 WATERWAY CONVENTIONS 
 
 In addition to this the Commission has been represented at various 
 conferences and conventions which have been held throughout the 
 country from the Pacific to the Atlantic and from the Lakes to the Gulf 
 upon this important question. 
 
 The general interest which the country is showing in the improvement 
 of waterways is manifest in the organization of various river-improvement 
 associations in all parts of the country and in meetings of these and other 
 associations, the principal object of which is to consider waterway im- 
 provement. I shall enumerate some of these. 
 
 The Inland Waterways Commission is now engaged in framing a 
 preliminary report to the President, but it has not yet reached a final 
 conclusion. I wish to say, as a member of that commission, that I 
 simply express here my individual views and that I have introduced in 
 the Senate a bill (S. 500) providing for the appointment of an inland 
 waterway commission for the development of the inland waterways 
 of the country, purely in a tentative way. I invite suggestion, criticism, 
 and amendment, so that the commission may have the advantage of the 
 consideration of this question by Members of both bodies of Congress 
 and by the country at large before it reaches a final conclusion. 
 
 GOVERNMENT WORKS 
 
 In the past, Mr. President, it has been the general view of the country 
 that the Government was unable to do constructive work; that it was 
 unable to do such work efficiently ; that it was unable to do it economi- 
 cally ; that it was unable to do it quickly. The experience of the country 
 within the past few years with two great systems of constructive work 
 has proved the contrary and has proved that the Government is able 
 to do its own work. 
 
 Mr. BEVERIDGE. I will ask the Senator what are the two examples 
 to which he refers? 
 
 Mr. NEWLANDS. Those two exceptions are the construction of the 
 Panama Canal and the work of the Reclamation Service. For the work 
 
592 AMERICAN FEDERAL GOVERNMENT 
 
 of the Panama Canal service $75,000,000 has already been appropriated, 
 of which about $39,000,000, I believe, has already been spent. The 
 Reclamation Service has a fund of about $39,000,000, a very large pro- 
 portion of which has already been spent on about twenty-three different 
 projects in fourteen or fifteen different States and Territories. I will 
 not enlarge upon the work of either one of these services. It is sufficient 
 to say that the country is satisfied with the work of both. So far as the 
 region which I represent is concerned the arid and semiarid region 
 there is a feeling of universal satisfaction with the energetic and efficient 
 work and the thoroughly organized work that has been done by the 
 Reclamation Service. 
 
 Now, Mr. President, in shaping this bill I have endeavored to unite 
 the best features of both those bills. 
 
 Mr. BEVERIDGE. Mr. President 
 
 The VICE-PRESIDENT. Does the Senator from Nevada yield to the 
 Senator from Indiana? 
 
 Mr. NEWLANDS. If the Senator will permit me a moment further 
 
 Mr. BEVERIDGE. I am profoundly interested in what the Senator is 
 saying on this whole great plan, and I think the Senator might enlarge 
 there upon the fact that the Reclamation Service and the Panama Canal, 
 as enterprises, are conducted also by officers of the Government, and in 
 the case of the Panama Canal it finally came down to the most efficient 
 work by the officers of the Regular Army. Those two instances I call to 
 the Senator's attention, so that he might put them into his speech. They, 
 however, are not the only ones. There is the telegraph service in Alaska, 
 covering 8,000 miles or more, and other things of that kind. 
 
 I ventured to interrupt the Senator for the purpose of directing his 
 attention more particularly to those facts. 
 
 Mr. NEWLANDS. I am very glad to receive the suggestion of the 
 Senator from Indiana. It is true, as he says, that both of these services 
 are being conducted by officers of the Government. 
 
 My individual view is that within the next ten years the United States 
 should expend at least $500,000,000 in the improvement of its inland 
 waterways; that we ought to enter upon this work contemporaneously 
 in every section of the country ; that we should enter upon the work 
 of the rivers of the Pacific coast, upon the rivers of the Atlantic coast, 
 upon the Gulf coast, and upon the Mississippi River and its tribu- 
 taries, and upon the coastal canals or sheltered waterways which will 
 connect the rivers of the Gulf and Atlantic coast from Texas to Maine. 
 All these works should be commenced and prosecuted contemporane- 
 ously. I wish to say further that that is the sentiment of the people of 
 the United States, and Congress will, I have no doubt, accommodate 
 itself to that view of- the great public. 
 
LEGISLATIVE PROBLEMS 593 
 
 A BROAD AND COMPREHENSIVE TREATMENT 
 
 Now, I ask, what is a broad and comprehensive treatment of a river 
 that is to be used in interstate or foreign commerce for navigation? 
 Take the Mississippi, so far as its western tributaries are concerned; 
 the Missouri, and its tributaries; the Yellowstone; the Madison; the 
 Gallatin; and the Jefferson rivers; farther down, the Platte and the 
 Kaw; farther down, the Arkansas River. All these rivers have their 
 source in the region to which the Senator and I belong in the snows 
 of the mountains. 
 
 PREVENTION OF FLOODS 
 
 Now, what does a rational treatment of that river, so far as concerns 
 its utilization for navigation, involve? It involves for one thing the 
 prevention of floods, for these waters rush down in torrential streams 
 in the spring months and destroy property, and then during the summer 
 and fall months, the waters having rushed down to the ocean and having 
 been wasted, the river itself is reduced to an attenuated stream upon 
 which boats can not float. What does a rational treatment of that river 
 involve? Obviously storage, all along the line, wherever it can be done 
 practicably and economically and with a view to the reasonable cost 
 of the entire enterprise. What does storage upon those upper rivers 
 mean? It means the construction of artificial reservoirs in which these 
 waters are impounded during the period of flood, and from these reser- 
 voirs waters are led over the great plains, the arid and the semiarid plains, 
 and used for purposes of cultivation. These plains absorb the water 
 like a sponge and gradually give it out by the process of seepage to the 
 tributary streams of the great river. Give it out when? Give it out 
 when it is most needed for navigation, during the months of July, August, 
 and September. So irrigation is a proper method of treating the river 
 for navigation, for it is one method of impounding the flood waters of 
 these tributary streams, preventing those flood waters from creating 
 destruction below in the spring and preserving them for a beneficent 
 purpose later on in the summer and fall months. In the more humid 
 regions, in which irrigation is not required and in which evaporation is 
 less rapid than in the arid and semiarid districts, the reservoir may be 
 used for the storage of storm and thaw waters, which may be kept im- 
 pounded, as is now done, for example, in the upper Mississippi and in 
 some foreign countries, until the time of low water, when the contents 
 may be let out in such manner as to maintain navigation throughout the 
 summer. 
 
 Now, the Senator's view doubtless would be that the Government 
 has no power to enter upon the reclamation per se of arid lands not in 
 its own ownership. There is no power expressly granted in the Con- 
 
 38 
 
594 AMERICAN FEDERAL GOVERNMENT 
 
 stitution for that purpose, and I believe with the Senator from Colorado 
 that this is a Government of granted powers, and that we can only exer- 
 cise the granted powers. I shall simply contend for the full exercise of 
 these powers. No one will deny the full power of the Government over 
 the question of interstate and foreign commerce. No one will deny the 
 power of the Government to make a river navigable. If you do not deny 
 that, then the Government can adopt any practicable means to make it 
 navigable, and it need not confine itself to digging a channel when it can 
 by this process of the storage of waters at the heads of these streams and 
 by this process of spreading those waters over the vast arid and semiarid 
 plains suspend the flow of that water until by the process of seepage it 
 gradually goes back to the streams at the time when it is most needed 
 for the maintenance of a full, safe, and sure channel for the purposes of 
 navigation. 
 
 FORESTRY 
 
 So it is with forestry. The forests are the conservators of moisture. 
 In a state of nature the streams gathering in forests run clear and in 
 fairly uniform volume throughout the year. The soil is protected from 
 the beating of the storm by the branches and foliage, which break the 
 drops into spray, and this trickles gently down the trunks and along the 
 roots, so that the soil remains open and pervious. This soft, spongy 
 soil is further protected by a mulch of partly decayed leaves, twigs, and 
 shreds of bark and wood ; and in the mulch and friable mold the waters 
 of rains and thaws are absorbed as in a sponge, and do not flow off 
 quickly in rills and freshets, but seep slowly through the soil into the per- 
 manent springs by which the streams are fed. Denude large areas of 
 their forests, and the rains falling from the heavens rush off the lands in 
 torrential streams and increase the volume of the floods that are so de- 
 structive below. We all know that one of the causes of these great and 
 destructive floods has been the destruction of our forests. If, then, the 
 forests are conservators of moisture, if they are natural storage reservoirs 
 of moisture, and if the impounding of these waters in artificial reservoirs 
 for the purpose of holding them until they can swell the volume of the 
 stream below for the purpose of navigation is constitutional, can we 
 not make use of the reservoirs that nature has created and develop them ; 
 and if we can do that, can we not take control over large areas of land 
 and replace the forests that have been destroyed ? 
 
 Of course the Constitution grants no power to the National Govern- 
 ment to enter into the timber business or the lumber business as such, 
 but it has the power to make a sure, stable, equal stream for purposes 
 of navigation; and if it can accomplish this by developing the forests, 
 the natural reservoirs of the country, so as to hold these waters in sus- 
 pense until the time when they are most needed, it has the power to 
 
LEGISLATIVE PROBLEMS 595 
 
 preserve and protect the existing forests, it has the power to replace the 
 forests ; and certainly in that connection it has the power to plant trees ; 
 and if it has the power to plant trees, it has the power to sell the timber 
 which is planted when it becomes unnecessary to the main purpose of 
 the enterprise the conservation of moisture. 
 
 If the forest becomes too crowded, is there any objection to the re- 
 moval of useless trees, and can you say that because the Constitution has 
 not granted to the Government the power to enter into the lumber busi- 
 ness it therefore can not sell that timber as a part of the compensation 
 of the enterprise itself? Would you say with reference to these great 
 reclamation enterprises, which constitute a rational method of treating 
 the river for the purpose of navigation, that the Government can not 
 compensate this fund and diminish the cost of the entire enterprise by 
 selling irrigation rights, thus getting back proportionately from all the 
 lands benefited the cost of the reclamation work and diminishing the 
 cost of the main enterprise the promotion and development of a navi- 
 gable stream? 
 
 RECLAMATION OF SWAMP LANDS 
 
 But the comprehensive plan for the development of these waterways 
 not only involves reclamation by irrigation and the protection and re- 
 placement of forests, but it also involves the drainage of swamp lands 
 below. The reclamation of swamp lands is the antithesis of the irriga- 
 tion of arid lands. "There is too little water on the land above and there 
 is too much below. Why is there too much below? Because the river 
 breaks through its banks, divides itself into numerous channels, creates 
 bayous and sloughs, and thus dedicates vast areas of cultivable land, the 
 richest in the world, to proverty and death. 
 
 Mr. BEVERIDGE. Will the Senator from Nevada permit an interrup- 
 tion? 
 
 Mr. NEWLANDS. Certainly. 
 
 Mr. BEVERIDGE. As I said, and as the Senator from New Hampshire 
 said, I think this is one of the very greatest subjects before the American 
 people, and one, perhaps, in which they are as much interested as any 
 other just at the present time. I wish the Senator would follow, till he 
 establishes it more closely, the analogy between the Government's power 
 over the conservation of waters and their control as navigable waters 
 and the power of the Government over forests. For example, one of the 
 most fundamental rules in statutory and constitutional interpretation is 
 that if the power is conceded it carries with it any incidental power 
 necessary to make it complete. So if it be conceded and that has been 
 thrashed out that we have the right as a Government to control cer- 
 tain forest reserves, it follows as an incident of that that it is not only our 
 right and our power, but our duty to dispose of what is called "down 
 
596 AMERICAN FEDERAL GOVERNMENT 
 
 timber" and "express timber"; and therefore the Government not only 
 has the right, but it becomes its duty, to become a lumber merchant to 
 that extent. 
 
 Again, our power to build the Panama Canal is conceded, let us say. 
 That carries with it the power to do what the Government is now doing ; 
 that is, to operate a line of steamships and also to operate a railroad 
 across the Isthmus of Panama. So it can be carried out in numberless 
 instances. 
 
 I would be glad if the Senator would spend a little more time in 
 establishing the analogy between the Government's power over the con- 
 servation of waters and their control as navigable waters and these other 
 things which the Senator has referred to. 
 
 If the Senator from Nevada will permit me for just a moment further. 
 In reference to what was said by the Senator from Colorado, of course 
 it has been held, since Gibbons v. Ogden until now, that the power of 
 the National Government over navigable waters, even wholly within a 
 State, goes to the point that signals and lights may be maintained by 
 the National Government, and it may do everything else that is necessary. 
 The State has no right to establish lights, or signals, even in its own 
 waters, because they might interfere with the navigation of commerce 
 that passes beyond the State lines. 
 
 So again, the National Government, in improving waterways, for 
 which we now expend scores of millions every year in the river and 
 harbor bill, has the right to prevent the State from in any way obstruct- 
 ing that waterway. If that was not conceded, of course, it would be 
 destructive of the power to improve it. Therefore, if the establishment 
 by the State of an electric-light plant upon the waters running through 
 the State, which were navigable, interfered with that purpose, the Na- 
 tional Government would have the right to prevent the erection of such 
 an electric-light plant. But per contra, if the erection of such an electric- 
 light plant became necessary as an aid to the navigability of the waters, 
 it would necessarily follow, would it not, that we would have the right 
 to construct it? 
 
 The Senator will pardon me, but I think it is a vital point in his argu- 
 ment, and if he will follow that analogy a little more closely, it will be 
 agreeable to many of the friends of his measure. 
 
 Mr. NEWLANDS. I have already gone further into the argument of 
 these questions than I intended when I rose. My purpose was simply to 
 present a statement of the bill and an explanation of its provisions, but 
 I have been drawn out somewhat by the challenge of the Senator from 
 Colorado. It was not my intention to go into all these refinements. 
 However, I will pursue the argument that I was pursuing regarding the 
 various uses of the waters of a stream which tend to the promotion of 
 its navigability, and I will take up in its turn the suggestion that the 
 Senator from Indiana makes with reference to electric power. 
 
LEGISLATIVE PROBLEMS 597 
 
 I was upon the question of the reclamation of swamp lands, which I 
 stated was the antithesis of the reclamation of arid lands, the swamp 
 lands being at the lower reaches of the streams, the arid lands at the 
 sources of the streams. We all know that a great river in making its 
 way through these lowlands during periods of flood divides itself into 
 numerous channels, which make bayous and sloughs, and create these 
 vast areas of swamp lands, incomparably rich, for they are composed of 
 alluvial soil, and yet are incapable of cultivation because of an excess of 
 moisture. Now, the reclamation of swamp lands as such, unless the 
 Government is the owner of those lands, would not be one of the functions 
 of Government under the granted powers of the Constitution. But the 
 control of the river for purposes of navigation is ; and if the control of 
 that river involves the construction of levees along its banks so as to keep 
 the river in its channel, so that the large volume of water can scour the 
 bottom and create a channel fit for navigation, then that is clearly within 
 the powers of the Government. In like manner, when the needs of navi- 
 gation demand, it is competent for the Government to maintain the 
 volume and regimen of rivers required for commerce by laying drains 
 in such manner as to maintain a flow at low- water stages. The reclama- 
 tion in both cases is simply incidental and collateral. 
 
 COMPENSATORY PROJECTS 
 
 Would you say that when the Government goes to this great expendi- 
 ture, which involves an incidental benefit to the lands of private owners, 
 it can not seek in some way compensation to the fund for this beneficial 
 work, and thus diminish the cost of the primary enterprise ? Can not the 
 Government by cooperation with States, by cooperation with districts, 
 so organize this work as to divide the cost between the States or the locali- 
 ties affected and the National Government ? The project might not be 
 feasible at all unless the Government could diminish the cost by putting 
 a certain amount of the cost upon incidental and collateral works of this 
 kind. And so this great plan of developing a river for navigation may 
 involve, and in most cases does involve, the actual reclamation of large 
 areas of swamp land. 
 
 WATER POWER 
 
 Now we come to the question of water power. The Government will 
 be compelled not only to construct dams on the tributary streams for 
 irrigation, but sometimes on the great river itself for the purpose of 
 constructing locks through which vessels can pass, and thus avoid danger- 
 ous rapids. If the Government does construct such a dam for the pur- 
 pose primarily of promoting navigation, will the Senator from Colorado 
 contend that the Government can not diminish the cost of the enterprise 
 by selling the water power created by that dam? 
 
598 AMERICAN FEDERAL GOVERNMENT 
 
 Mr. TELLER. Does the Senator want me to answer his question now ? 
 
 Mr. NEWLANDS. Yes. 
 
 Mr. TELLER. That is the very point I wanted to bring to the Senator's 
 attention. That is exactly what I wish to deny. The Government has 
 not any power under the Constitution, for any purpose whatever, to go 
 into business of that character. It has not any right to create a water 
 power and sell the power. If the State did not interfere, the Govern- 
 ment would have no such authority under the Constitution. But the 
 State, if it had a proper conception of its rights, would not allow that to 
 be done. The State would say it would do it if it was to be done ; and 
 if the Senator will pardon me, some day I will present him a brief on 
 this subject which I think will convince him that my suggestions are fully 
 supported by the decisions of the Supreme Court of the United States. 
 
 I am not afraid that the Senate will go into anything of that kind. But 
 I do not want to have this initial step, as it were, in this waterway business 
 complicated by what will appear to those who study the law on the sub- 
 ject as an utter impossibility. 
 
 Mr. NEWLANDS. I take issue with the Senator upon that question. 
 I shall be very glad to read the brief to which he has referred me, but 
 I can not question the power of the Government to build a dam in a 
 river for the purpose of constructing locks which will be serviceable 
 to navigation. 
 
 Mr. TELLER. The Senator has no business to put me in that category. 
 I have never suggested that the Government could not do that. 
 
 Mr. NEWLANDS. I was going one step further. 
 
 Mr. TELLER. I say most emphatically the Government may do that, 
 but the Government has no right, then, to establish an electric-light plant 
 on it and sell the light. That is -what I assert. 
 
 Mr. NEWLANDS. If the Senator had heard my sentence through, I 
 think he would not have taken exception to it. I will repeat part of 
 what I did say and add to it what I intended to say. 
 
 I do not doubt for a moment the power of the Government to con- 
 struct a dam for the purpose of establishing a lock which will be service- 
 able to navigation. 
 
 Mr. TELLER. Neither do I. 
 
 Mr. NEWLANDS. Thus far the Senator agrees with me. Now, I was 
 going to add, nor do I doubt the power of the Government to diminish 
 the cost of that enterprise to the Government by availing itself of the 
 sale of the power created by that dam. 
 
 Now, another thing. If the Senator insists that the Government can 
 not do that without the consent of the Slate, then I say we should take 
 steps in this bill for obtaining the consent of the State. 
 
 Mr. TELLER. I deny the right of the Government to do it even with 
 the consent of the State. This Government can not go into any commer- 
 cial business of that kind. 
 
LEGISLATIVE PROBLEMS 599 
 
 Mr. NEWLANDS. I would not expect the Government to go into the 
 commercial business of peddling out light 
 
 Mr. TELLER. Or water. 
 
 Mr. NEWLANDS. Of constructing poles and stringing wires and dis- 
 tributing light throughout an entire community, or distributing power 
 throughout an entire community, but I do contend that it would be 
 entirely within the governmental function to diminish the cost of the 
 great work; and if it can accomplish that result by some method of 
 leasing the power, at the same time so controlling the lease that it will 
 not result in monopoly and oppression, I should say it had that power as 
 a means of diminishing the cost of the enterprise. 1 
 
 But if there is anything in our dual government that prevents the nation 
 from acting without the consent of the State, then I see no reason why 
 the two sovereigns affected should not confer together about the matter 
 the Union of States, the one sovereign, the individual State where 
 the dam is located, the other. Can we doubt that they would come to 
 some rational conclusion ? Would the lesser sovereign deny to the greater 
 sovereign the right to get a value out of that which it itself had created 
 that would be in a measure compensatory of its own expenditures ? The 
 two sovereigns can do business with each other just as individuals can; 
 and there is no reason why the Union of States should not enter into an 
 arrangement with an individual State that will present a just solution 
 of the question. If the State has the property rights, for which the 
 Senator contends, it can share with the nation the burden of cost of a 
 work necessary or useful for both navigation and power. If the Govern- 
 ment spends millions of dollars in the construction of a dam, it should 
 certainly have compensation for the power which it itself has created. 
 Common honesty would dictate that. 
 
 I did not intend at this time to discuss the question of governmental 
 functions at all ; it is a matter of business, and that is what I hope to see 
 established as the basis of this enterprise. I hope to see this great work 
 put upon a business basis. I believe the Government can do work in a 
 businesslike way in carrying out the granted powers, and I believe in giv- 
 ing its agents a pretty free hand to enable them to do business effectively. 
 
 1 In fact, that is just what the Government is doing now, and has done for several 
 years, under statutory authority. The legislation has so often been repeated and has so 
 long remained unquestioned that the governmental policy with respect to water power may 
 be regarded as established. Under this policy the Federal Government reserves the 
 right, when authority is given to private corporations to dam actually or possibly navigable 
 streams for the development of power, to use without charge so much of that power as 
 may be required for specific uses by the Government, this reservation being in the nature 
 of a consideration. When the works are constructed cooperatively between the Federal 
 Government and prospective powers users, then the Government reserves rights of 
 administration and specific uses, and also limits the lease or authority to the private party 
 to use the power to a specified period ; while, if the work is constructed at the cost of the 
 Federal Government, then the statutes authorize the leasing of the power developed 
 thereby under customary governmental restrictions as to advertising, etc. 
 
6oo, AMERICAN FEDERAL GOVERNMENT 
 
 The reason why I present this bill now is because I fear that in the 
 future should we enter upon this work Congress may without consider- 
 ing these related questions of use and compensation and cooperation put 
 the administrative agents of the Government in a strait- jacket and thus 
 prevent them from conducting the work in a businesslike way. 
 
 I do not intend, Mr. President, to be drawn off into nice refinements 
 as to constitutional power. I do not propose to balance the power of the 
 National Government with the power of the State in an individual matter. 
 Here is an enterprise which is of the greatest importance to the entire 
 country. We propose in aid of the development of commerce between 
 the States, and commerce with foreign nations, exclusively within the 
 jurisdiction of the National Government, to enter upon this great work 
 of utilizing our rivers in a businesslike way for every beneficial purpose 
 to which they can be put. 
 
 We must realize that it is not wise to take up simply one use of the 
 river, for navigability, and lose sight of all the other uses, when the 
 adoption of the other uses and the development of the other uses will 
 diminish the cost of the enterprise and make it more efficient for the 
 public good. The cost might be entirely prohibitory if it were not for 
 the correlated uses and the contribution or compensation secured through 
 them, for this is a work which can be accomplished either by the National 
 Government itself or by the cooperation of the National Government 
 with States, with corporations, with municipalities, and with individuals. 
 
 CLARIFICATION OF STREAMS 
 
 We can not only take up this question of the utilization of water power 
 beneficial to the entire people, and with a view to economy in the enter- 
 prise itself, but we can take up with it the question of the clarification 
 of the streams. That is a matter, you say, of sanitation, affecting the 
 people of the towns and cities along the borders of the streams. But 
 you must recollect that these great rivers are full of sediment and sand, 
 every particle of which is a destructive tool when directed against the 
 banks of the river. Clear waters are not nearly so destructive or ob- 
 structive as muddy waters, as water filled with sand or soil. It is well 
 demonstrated that every particle of soil, every particle of sand in the 
 water, is a destructive agent. When deposited in the shoals and bars it 
 obstructs the channel. When suspended in the water and driven by the 
 force of the current against the banks of the river it breaks them down, 
 and the broken bank carried down in the current sinks within a few 
 miles and makes the shoal or bar. 
 
 What do we find in the great rivers that pass through alluvial bottoms ? 
 The banks dissolve like sugar when the force of the water is directed 
 against them. A capricious stream like the Missouri River makes its 
 way through a bottom of this kind from Kansas City to St. Louis, a 
 
LEGISLATIVE PROBLEMS 601 
 
 distance of about 300 miles, a valley from 4 to 10 miles in width, bounded 
 by bluffs on either side; and that river, during the period of flood, its 
 banks dissolving like sugar before the force of the water, can make its 
 way anywhere in the alluvial bottom between the bluffs, so that the farm 
 of to-day becomes the swamp to-morrow, and the river bed of to-day 
 becomes the cultivated farm to-morrow. 
 
 We can clarify that turgid water, swollen with sediment and sand. 
 How ? By the prevention of soil waste and by the protection of the banks 
 by willow and stone revetment. There washes down the Mississippi 
 River every year pretty nearly a continent of the best soil. At New 
 Orleans to-day, the alluvial soil is twelve hundred feet deep. 
 
 The great problem we have had in the lower reaches of the Mississippi 
 has been the control of the passes, the river making its way to the Gulf 
 through three passes, building up on either side, by the deposit of sand 
 and sediment, a continent. So it is hardly an exaggeration to say that 
 in time the great Gulf itself will become a continent. 
 
 Now, is the Government simply to dredge out that sand and sediment 
 when it settles down in the bed of the stream and deposit it somewhere 
 else, whence it will make its way gradually back to the stream, or can it 
 take measures to prevent that sediment and sand from coming into the 
 stream? Can it not take measures to prevent this soil waste and this 
 bank destruction? It is fair to say that in time the prevention of soil 
 waste can be brought about by proper methods of cultivation enjoined 
 by the National Government, perhaps as a matter of persuasion at first, 
 though it might well become a matter of compulsion. The conservation 
 and development of the natural resources of the country the forest, 
 the land, the water for every purpose require the scientific treatment 
 of a stream and the full consideration of every related use. 
 
 How is this to be done ? In the first place, this fund is created to which 
 I have referred, a fund for uninterrupted and continuous work, the dedi- 
 cation of $50,000,000 immediately to this work. The Senator from 
 Idaho says it may lie idle for a time. There is $250,000,000 or 
 $300,000,000 in the Treasury now that is lying idle. The Treasury 
 deposits a large portion of it in banks of the country and receives no 
 compensation from it. It will be no more idle than it is now. 
 
 It is incumbent upon us to show our fixed and determined purpose 
 that this work shall commence, and that it shall be prosecuted without 
 interruption, and not in the elusive and disjointed way in which it has 
 been prosecuted heretofore. 
 
 AN ADMINISTRATIVE MATTER 
 
 Now, this bill gives the executive department great power, and I have 
 no doubt that objection will be urged. I believe in giving the executive 
 department full power in this matter, because it is an administrative 
 
602 AMERICAN FEDERAL GOVERNMENT 
 
 matter. I believe in preserving the boundaries of the functions of the 
 Government ; and I insist upon it that Congress has attended too much 
 to administrative matters, and the very reason of the inefficiency of our 
 work upon our rivers and harbors has been that Congress has sought 
 to do administrative work and has done it badly, as it always will do it 
 badly. 
 
 Ninety men in the Senate and four hundred or more in the House 
 working on legislation for the country do not constitute efficient bodies 
 for administrative work. Wherever administrative work is to be done 
 I believe in intrusting it to the executive department and putting the 
 responsibility upon the Executive. We did this with reference to the 
 reclamation act. After having educated the entire country to the desir- 
 ability of entering upon the great reclamation work, the Western men 
 found that they were unable to move because they were divided among 
 themselves as to what should be done. Each man wanted a project first 
 undertaken in his own State and was unwilling to concede that another 
 State had superiority or advantage as to priority. We were in confusion 
 as to the methods of administration. Finally we got together, and what 
 did we conclude to do ? We passed a bill creating a fund derived from 
 the sales of the public lands of the country and dedicated that fund for- 
 ever to this work. Then we gave the power to the Secretary of the 
 Interior to go ahead and investigate the projects and if he found them 
 feasible, to do the work, and the only limitation put upon his power was 
 that he should not let a contract unless the money for its payment was 
 in the fund. That was the only limitation. We did not go into details 
 regarding the organization. There can be no, effective organization 
 which is not the result of the process of evolution. Let Congress attempt 
 to organize at the start a great working force of this kind, and it will 
 always fail. They will have to come back to Congress for amendatory 
 and supplementary legislation, all delaying the prosecution of the work. 
 We did the simple thing and put the responsibility upon the Secretary 
 of the Interior, and the Secretary of the Interior accepted the responsibility 
 and held the responsibility. Congress of course reserved to itself all the 
 powers of supervision, of criticism, of examination. Reports were re- 
 quired. The officers of the Service were compelled to come before the 
 committees and give full expositions of their work. Committees visited 
 the works themselves and made actual inspection, and then upon their 
 return to Congress summoned the officials before them and examined 
 them upon matters concerning which they desired information. 
 
 So the whole service, under the critical eye of Congress, but with full 
 powers of administration, has advanced and accomplished a great work. 
 It has in the short period of its existence removed, I believe, twice as 
 many cubic yards of earth as have been removed in the Panama Canal. 
 It has constructed works of great magnitude and has considered problems, 
 many of which were as difficult as those involved in the Panama construe- 
 
LEGISLATIVE PROBLEMS 603 
 
 tion. We have organized in the Reclamation Service a body of skilled 
 engineers capable of undertaking any work of construction from the 
 construction of a canal to the construction of a railroad and the develop- 
 ment of the inland waterways themselves. 
 
 So it was with the Panama construction. Accidentally we blundered 
 there into wise legislation. Congress was divided into contending forces 
 as to whether we should have the canal at Panama or at Nicaragua. Dif- 
 ferent views prevailed as to whether it should be a lock canal or a sea- 
 level canal. There would have been the widest divergence of views as 
 to all the details of operation. But in the confusion a simple bill, I be- 
 lieve drawn by Senator Spooner of Wisconsin, appropriated $50,000,000 
 for the work and gave the President full power to go ahead and do it. 
 We all know how that has worked out. 
 
 Suppose we had started in the first place and insisted upon it that all 
 the plans should be submitted to committees of Congress with their 
 differences of opinion, and to Congress itself with their differences of 
 opinion, we would have been debating to-day over mere matters of 
 detail. But out of the very necessity of the situation, inasmuch as Con- 
 gress was unable to agree, a simple bill was prepared which gave the 
 President full power. Does anyone contend that the President has 
 abused that power? Is there any President whom we can elect who will 
 be so dishonest or so inefficient as to abuse that power? He has gone 
 about in a businesslike way to create an organization, each organization 
 in itself tentative at the start. I believe the Panama Canal service has 
 been reorganized three times. First we had the Walker Commission, 
 and then we had the Shonts Commission, and then we had the Goethals 
 Commission, a commission the same in number, authorized, I believe, by 
 Congress, but maintained in organization at the will of the Executive. 
 We were probably unwise in compelling the Executive to have a com- 
 mission of nine men. He himself in a recent message or in a recent 
 speech has indicated that perhaps a more efficient method of organiza- 
 tion would be one commissioner, with subordinates, so that one person 
 could be held responsible for the work. 
 
 The first two commissions held their sessions here. The last com- 
 mission is located in Panama, and consists mainly of officers of the 
 Government, an engineer officer of the Army, an engineer officer of the 
 Navy, and a medical officer of the Army, who has done the sanitation 
 work of that district. After various experiments the President has 
 placed the control of the work in the Engineer Corps of the Army, noted 
 for its efficiency, integrity, and high sense of honor a corps which has 
 been compelled thus far to adapt itself to the repressive policy of the 
 nation as to rivers and harbors, but which, under a progressive policy 
 and aided by the other scientific services of the Government in matters 
 relating to their jurisdiction, will accomplish as brilliant a work in our 
 inland waterways as it is now accomplishing at Panama. We have given 
 
604 AMERICAN FEDERAL GOVERNMENT 
 
 the Executive a free hand, and we have been wise in giving him a free 
 hand. Had we sought to impose upon him Congressional restraints 
 and put him in a Congressional strait- jacket, the work would not have 
 advanced as it has advanced. 
 
 So I contend that in this case we should give the President the power 
 not only to enter upon the construction of the work, but to make the ex- 
 aminations and the surveys, and to do it without further authority from 
 Congress, and to appoint such boards and commissions and agents and 
 experts as in his judgment may seem proper, and to fix their salaries 
 until Congress fixes them. The organization can best be worked out 
 by an executive officer and not through the wisdom of Congress. 
 
 It will be observed that the Forest Service, the Reclamation Service 
 and the Panama Canal Service are all engaged in a variety of works 
 incidental to the main enterprises, and they are engaged not only in 
 constructing them, but in operating them. Such works include water- 
 works, electric-light plants, roads, railroads, electric roads, cement mills, 
 and other works of similar character, all incidental and collateral to the 
 main enterprises. 
 
 Can it be maintained that the Government should have less power 
 when, in the interest of interstate and foreign commerce, it enters upon 
 the artificialization of rivers and the construction of canals? 
 
 It will also be observed that the Panama Canal Service is to be made 
 compensatory by the charging of tolls, the Forest Service by the sale 
 of timber and by charges for grazing permits, and the Reclamation 
 Service by the sale of water rights. So far as the Forest Service and the 
 Reclamation Service are concerned, they will be absolutely self-com- 
 pensatory. In the case of the Inland Waterways Service it is proposed 
 that the artificialized rivers and canals shall be free to navigation and 
 that no tolls shall be imposed. Is it not, therefore, of all the more im- 
 portance that the collateral work's undertaken by this service through 
 other appropriate services of the Government for the purpose of fully 
 developing every profitable and beneficial use of our rivers shall be made 
 self-compensatory as far as practicable and that wherever the coopera- 
 tion of States, municipalities, communities, corporations, or individuals 
 is necessary to accomplish this purpose, such cooperation shall be 
 secured? No one can measure the future value of the water power of 
 the country in the development of electricity. It is probable that this 
 new force has a future value equal to that of all the coaLsupplies of the 
 country. 
 
 In organizing this great work, an ample fund should be immediately 
 provided and as free a hand as possible given to the Executive. In the 
 case of the Reclamation Service, the method of securing a revolving 
 fund from the proceeds of the sales of public lands and of water rights 
 has proven an incentive and an inspiration to the best efforts of these 
 in charge of the work. The methods are those of a business house which 
 
LEGISLATIVE PROBLEMS 605 
 
 knows its condition at all times. Under such a method the Government 
 organization knows just what to depend upon. It can plan for the future 
 and look ahead without uncertainty as to the size of appropriations. 
 Furthermore, it is inspired to work for practical results, for early and 
 considerable returns which, by the application of business methods, can 
 be again applied to produce more returns. No questions of such magni- 
 tude, where a long look ahead is necessary and a comprehensive plan for 
 the future imperative, should be hampered at its beginning by uncertainty 
 of Congressional action. Those in charge should know at all times on 
 what they can depend and what results are expected of them. It is 
 therefore essential that an ample fund should be provided and that pro- 
 vision should be made for its replenishment by the sale of bonds when- 
 ever Congressional appropriation fails. As free a hand as possible in 
 organization should be given, and particularly during the first few years. 
 After the organization is perfected and its work reduced to a system, 
 then Congress can, if it chooses, substitute the old plan of Congressional 
 initiative as to investigation, as to projects, and as to construction in 
 each particular case. 
 
 BREAKING DOWN OF THE RAILWAY SYSTEM 
 
 Mr. NEWLANDS. I wish to add that this question of waterway trans- 
 portation is, of course, only a part of the general subject of transporta- 
 tion. The railway service of the country is much broken down. The 
 railroads of the country, when there was less business than there is now, 
 sought to increase their tonnage by carrying cheap and bulky products 
 long distances at low prices, and they thus entered upon a carriage 
 which has been mainly absorbed in other countries by waterways. This 
 bulky carriage has absorbed so large a proportion of their facilities that 
 suddenly, with the great increase in production and population, they 
 found themselves unable to meet the demands of the country. At that 
 time an agitation arose for the regulation of rates and for the better con- 
 trol of the railroads themselves. The railroads, on the one side, regarded 
 their properties as private properties and resented legislative intrusion. 
 The people, on the other hand, regarded them as public servants charged 
 by the law with the performance of public duties, entitled only to a just 
 compensation, that compensation to be fixed by the public either in the 
 shape of tolls or the limitation of return upon capital in the shape of 
 dividends. That contest has not yet reached the end. 
 
 The railroads have now reached the point where they admit in some 
 degree the powers and the rights of the public. They now talk about 
 cooperation ; they will talk later on about obedience ; and obedience is 
 what the American people demand. The only limitation upon the power 
 of the American people over the highways and over common carriers 
 is that the legislation shall not be confiscatory in character. That con- 
 
606 AMERICAN FEDERAL GOVERNMENT 
 
 test is not yet ended. Meanwhile the finances of the railroads have been 
 embarrassed; rates of interest have gone up; and the very agitation 
 which has gone on has affected their negotiations in foreign countries 
 for cheap money. They have been unable, even if they willed it, to keep 
 up with the necessary construction in order to meet the demands of in- 
 creasing population and of business. One eminent railway man declares 
 that it will be necessary for these railroads to expend, I believe, within 
 the next five years, five and one-half billions of money in order to meet 
 the requirements of the country. We all realize that it is now impossible 
 for them to get the money. We might enable them to get the money if 
 we stopped this agitation ; but the American people will not rest, what- 
 ever may be the consequences, until the true status of the common 
 carrier is ascertained and determined as that of a public servant. So 
 that we cannot hope for such conditions as will enable them to finance 
 the construction that is necessary. It is therefore of great importance 
 that we should develop these waterways and that we should develop 
 them quickly. 
 
 COORDINATION or RAIL AND WATER TRANSPORTATION 
 
 It would startle the country, perhaps, if we were to say that 
 $100,000,000 annually for the next five years should be expended; but 
 I believe it ought to be expended in order to meet the requirements of 
 transportation, and the public mind must become accustomed to it. 
 After it is all expended the business of the railroads will not be injured. 
 They will have more than they can then carry, and their carriage will 
 be, of products more compensatory than the cheap and bulky products 
 that will be carried by water transportation. 
 
 We have had a most marvelous railroad development in this country, 
 which has surpassed that of any other part of the world. But our de- 
 velopment has not been as rational, as comprehensive, and as scientific 
 in the matter of transportation as has that of Germany. Her railway 
 transportation, her river and canal transportation, and her ocean trans- 
 portation have been dovetailed together in such a fashion as to make her 
 carriers the most efficient servants of production and of commerce in 
 the world. 
 
 This movement is not one of hostility to the railroads. It is one that 
 supplements the railroad system of the country. If we can add to our 
 ocean service so that that ocean service and the river and canal service 
 and the railroad service of the country will act in cooperation as the hand- 
 maidens of production and commerce, we shall have marvelous results. 
 
 After we get these waterways developed the question then will be, 
 How shall we administer them ? Are the railroads to be allowed to put 
 down their rates during the navigation season to the destruction of their 
 river competitors and to put them up during the winter season when that 
 
LEGISLATIVE PROBLEMS 607 
 
 competition ceases? Shall we permit one public servant to destroy 
 another public servant necessary to the public good ? We might crowd 
 these rivers with boats, but capital, regardful of the bitter experience of 
 the past, will hesitate to enter upon the enterprise. As we passed down 
 the Mississippi River we hardly saw a boat. On both sides of the river 
 we saw long trains of cars carrying the products to the country. If the 
 railroads refuse to act in cooperation with the rivers in the future, as 
 they have in the past, they may paralyze the very instrumentalities 
 which we create for interstate and foreign commerce. 
 
 We must ourselves the nation must create the corporations that 
 are to act as waterway carriers. We should not submit the incorporation 
 of these great public servants engaged in interstate carriage to the shift- 
 ing legislation of 46 different States. There is no river boat that on its 
 course will not in going from bank to bank move from one State to 
 another in interstate commerce. The nation should create its own 
 public corporate servants, and we should protect them. 
 
 We may find it necessary in creating these instrumentalities of inter- 
 state commerce to exempt them from taxation, State and national, for 
 a limited period. The power is, in my judgment, clear. The nation 
 can certainly exempt them from its own taxation, and can refuse to per- 
 mit a sovereign State, without the nation's consent, to place a burden 
 that might be destructive upon a national instrumentality. We may 
 have to protect them against unfair and unjust competition. We may 
 have to compel the coordination of the railroads with them. The rail- 
 roads to-day have all the terminal facilities upon the rivers. They have 
 the depots and the stations and the tracks. They have all the spaces 
 that will be required for river commerce. The nation cannot permit 
 these national instrumentalities to be subject to the caprice of self- 
 ish interests. 
 
 All this can be adjusted if we only go further and provide that as to 
 the great national system of railways, eight or ten in number, each one 
 of them having from ten to twenty thousand miles of track and traversing 
 between fifteen and twenty States these mergers shall come under a 
 national charter. We shall then ourselves have created the public agents 
 of the nation the servants of the nation for the adequate development of 
 interstate and foreign transportation. 
 
 THE NATIONAL POWERS 
 
 It may be said that we have not the power to compel the merger of 
 such corporations under a national charter. I admit that we can not 
 forcibly go into a State and compel a State to force a State corporation 
 to come within the national merger, but the nation can authorize public 
 carriers, common carriers, incorporated under its laws, to construct new 
 interstate lines, and it can, by the process of persuasion, induce the States, 
 
6o8 AMERICAN FEDERAL GOVERNMENT 
 
 driven by the demands of their own people, to permit these parts of 
 great interstate systems to get together under one national control and 
 charter. 
 
 The change will not mean an invasion of the powers and rights of the 
 States. At present we have State corporations engaging also in inter- 
 state transportation. Is it not just as logical to have national interstate 
 corporations engage in State transportation? The same public agent, 
 whether State or national, can now engage in both State and interstate 
 transportation. As to the former it would be subject to the State regu- 
 lation ; as to the latter it would be subject to national regulation, whether 
 the corporate agent were incorporated under State or national charter. 
 Nor would the police powers of the States or the jurisdiction of the State 
 courts be affected by national charter. The National-bank Act, under 
 which the jurisdiction of State courts is maintained, is an illustration of 
 that. If we can nationally incorporate these great railway carriers, and 
 if we can nationally incorporate river carriers, and if we can nationally 
 incorporate ocean carriers, the entire people will then have these public 
 servants under their control, and by the unity and simplicity of the 
 operation the service can be made profitable to the carriers, just to 
 the public, and efficient in the promotion of interstate and foreign 
 commerce. 
 
 I am aware that some of my friends call this a centralization of power. 
 Some of my friends on this side of the House are accustomed to apply 
 that term to any power which is exercised by the National Government. 
 
 The National Government has not, in my judgment, commenced to 
 exercise its powers under the interstate commerce clause of the Consti- 
 tution. It has been prevented from exercising the powers which the 
 people granted to the nation for a beneficent purpose. The main pur- 
 pose of the formation of the Union was to unite all the States in matters 
 relating to the national defense and to the protection of interstate and 
 foreign commerce. The development of interstate and foreign commerce 
 was the primary cause of the Constitution and of the Union. The 
 growth of transportation has been an accidental growth from a point in 
 one State to another point in the same State. Gradually this accidental 
 growth has advanced until, either under the laws of the States, or out- 
 side of the law, or against the law, or in evasion of the law, great systems 
 of railways have been in fact, though not in law, nationalized, unionized, 
 running almost from the Atlantic to the Pacific and from the Lakes to 
 the Gulf. Will any one deny that the combination has been beneficial, 
 whatever we may say about the methods employed, about the capitali- 
 zation issued, about the power in politics exercised by these great 
 political masters that ought to be public servants? 
 
 Would you to-day enter upon a process of decentralization? Would 
 you attempt to divide these systems up into the units of which they were 
 once composed, each unit comprised within State lines ? You would not ? 
 
LEGISLATIVE PROBLEMS 609 
 
 Then legalize them under proper restraints as to capitalization, under 
 proper restraints as to profits, and legalize them by the action of the only 
 sovereign capable of dealing with the question. 
 
 NOT CENTRALIZATION, BUT UNIONIZATION 
 
 Centralization I Is that the right term? I should say "unionization." 
 The exercise of the granted powers of the Constitution does not involve 
 the centralization of power. It involves simply the unionizing of the 
 forces of the entire people of the country in matters clearly intrusted to 
 the Union of States. This union is composed of forty-six States. We are 
 all parts of this Union. This nation is not a separate entity afar off, 
 exercising jurisdiction and control and dominion without our partici- 
 pation in it. The States constitute this Union; and they entered into 
 this Union for certain beneficiarpurposes, one of which was the advance- 
 ment of interstate and foreign commerce. That involves the creation 
 of the instrumentalities for interstate and foreign commerce, the creation 
 of the public servants that are to engage in interstate and foreign com- 
 merce by the nation and not by a single State of the least public virtue, 
 absolutely controlled by the corporate carriers, who ought to be the 
 servants of the nation. There is no centralization about it. We unionize 
 the forces of the nation under the powers granted to the nation, of which 
 each State forms a component part. If the States were all separate, 
 then would they not have to get together by treaty and settle many mat- 
 ters? We have the best kind of treaty making under our system, the 
 treaty making of this legislative body and the other legislative body 
 the Congress of the United States a permanent treaty-making Con- 
 gress, imposing its will upon each one of the forty-six sovereign States in 
 matters intrusted to it for final determination. 
 
 39 
 
XI 
 ARMY AND NAVY 
 
 FROM PRESIDENT ROOSEVELT'S MESSAGE, DECEMBER 3 
 
 1907 
 
 The Army. Not only there is not now, but there never has been, any 
 other nation in the world so wholly free from the evils of militarism as 
 is ours. There never has been any other large nation, not even China, 
 which for -so long a period has had relatively to its numbers so small a 
 regular army as has ours. Never at any time in our history has this 
 nation suffered from militarism or been in the remotest danger of suffer- 
 ing from militarism. Never at any time of our history has the Regular 
 Army been of a size which caused the slightest appreciable tax upon the 
 tax-paying citizens of the Nation. Almost always it has been too small 
 in size and underpaid. Never in our entire history has the Nation suf- 
 fered in the least particular because too much care has been given to the 
 Army, too much prominence given it, too much money spent upon it, or 
 because it has been too large. But again and again we have suffered 
 because enough care has not been given to it, because it has been too 
 small, because there has not been sufficient preparation in advance for 
 possible war. Every foreign war in which we have engaged has cost us 
 many times the amount which, if wisely expended during the preceding 
 years of peace on the Regular Army, would have insured the war ending 
 in but a fraction of the time and but for a fraction of the cost that was 
 actually the case. As a Nation we have always been shortsighted in 
 providing for the efficiency of the Army in time of peace. It is nobody's 
 especial interest to make such provision and no one looks ahead to war 
 at any period, no matter how remote, as being a serious possibility; 
 while an improper economy, or rather niggardliness, can be practiced at 
 the expense of the Army with the certainty that those practicing it will 
 not be called to account therefor, but that the price will be paid by the 
 unfortunate persons who happen to be in office when a war does actually 
 come. 
 
 I think it is only lack of foresight that troubles us, not any hostility 
 to the Army. There are, of course, foolish people who denounce any 
 care of the Army or Navy as "militarism," but I do not think that these 
 
 610 
 
ARMY AND NAVY 611 
 
 people are numerous. This country has to contend now, and has had to 
 contend in the past, with many evils, and there is ample scope for all 
 who would work for reform. But there is not one evil that now exists, or 
 that ever has existed in this country, which is, or ever has been, owing in 
 the smallest part to militarism. Declamation against militarism has no 
 more serious place in an earnest and intelligent movement for righteous- 
 ness in this country than declamation against the worship of Baal or 
 Astaroth. It is declamation against a non-existent evil, one which never 
 has existed in this country, and which has not the slightest chance of 
 appearing here. We are glad to help in any movement for international 
 peace, but this is because we sincerely believe that it is our duty to help 
 all suc.h movements provided they are sane and rational, and not because 
 there is any tendency toward militarism on our part which needs to be 
 cured. The evils we have to fight are those in connection with indus- 
 trialism, not militarism. Industry is always necessary, just as war is 
 sometimes necessary. Each has its price, and industry in the United 
 States now exacts, and has always exacted, a far heavier toll of death 
 than all our wars put together. The statistics of the railroads of this 
 country for the year ended June 30, 1906, the last contained in the 
 annual statistical report of the Interstate Commerce Commission, show 
 in that one year a total of 108,324 casualties to persons, of which 10,618 
 represent the number of persons killed. In that wonderful hive of human 
 activity, Pittsburg, the deaths due to industrial accidents in 1906 were 
 919, all the result of accidents in mills, mines, or on railroads. For 
 the entire country, therefore, it is safe to say that the deaths due to in- 
 dustrial accidents aggregate in the neighborhood of twenty thousand 
 a year. Such a record makes the death rate in all our foreign wars utterly 
 trivial by comparison. The number of deaths in battle in all the foreign 
 wars put together, for the last century and a quarter, aggregate con- 
 siderably less than one year's death record for our industries. A mere 
 glance at these figures is sufficient to show the absurdity of the outcry 
 against militarism. 
 
 But again and again in the past our little Regular Army has rendered 
 service literally vital to the country, and it may at any time have to do 
 so in the future. Its standard of efficiency and instruction is higher now 
 than ever in the past. But it is too small. There are not enough officers ; 
 and it is impossible to secure enough enlisted men. We should maintain 
 in peace a fairly complete skeleton of a large army. A great and long- 
 continued war would have to be fought by volunteers. But months 
 would pass before any large body of efficient volunteers could be put in 
 the field, and our Regular Army should be large enough to meet any 
 immediate need. In particular it is essential that we should possess a 
 number of extra officers trained in peace to perform efficiently the duties 
 urgently required upon the breaking out of war. 
 
 The Medical Corps should be much larger than the needs of our 
 
612 AMERICAN FEDERAL GOVERNMENT 
 
 Regular Army in war. ,Yet at present it is smaller than the needs of 
 the service demand even in peace. The Spanish war occurred less than 
 ten years ago. The chief loss we suffered in it was by disease among the 
 regiments which never left the country. At the moment the Nation 
 seemed deeply impressed by this fact ; yet seemingly it has already for- 
 gotten, for not the slightest effort has been made to prepare a medical 
 corps of a sufficient size to prevent the repetition of the same disaster 
 on a much larger scale if we should ever be engaged in a serious conflict. 
 The trouble in the Spanish war was not with the then existing officials 
 of the War Department; it was with the representatives of the people 
 as a whole, who for the preceding thirty years, had declined to make the 
 necessary provision for the Army. Unless ample provision is now made 
 by Congress to put the Medical Corps where it should be put disaster in 
 the next war is inevitable, and the responsibility will not lie with those 
 then in charge of the War Department, but with those who now decline 
 to make the necessary provision. A well organized medical corps, 
 thoroughly trained before the advent of war in all the important admin- 
 istrative duties of a military sanitary corps, is essential to the efficiency 
 of any large army, and especially of a large volunteer army. Such knowl- 
 edge of medicine and surgery as is possessed by the medical profession 
 generally will not alone suffice to make an efficient military surgeon. 
 He must have, in addition, knowledge of the administration and sanita- 
 tion of large field hospitals and camps, in order to safeguard the health 
 and lives of men intrusted in great numbers to his care. A bill has long 
 been pending before Congress for the reorganization of the Medical 
 Corps; its passage is urgently needed. 
 
 But the Medical Department is not the only department for which 
 increased provision should be made. The rate of pay for the officers 
 should be greatly increased ; there is no higher type of citizen than the 
 American regular officer, and he should have a fair reward for his ad- 
 mirable work. There should be a relatively even greater increase in the 
 pay for the enlisted men. In especial provision should be made for 
 establishing grades equivalent to those of warrant officers in the Navy 
 which should be open to the enlisted men who serve sufficiently long 
 and who do their work well. Inducements should be offered sufficient 
 to encourage really good men to make the Army a life occupation. 
 The prime needs of our present Army is to secure and retain competent 
 noncommissioned officers. This difficulty rests fundamentally on the 
 question of pay. The noncommissioned officer does not correspond with 
 an unskilled laborer; he corresponds to the best type of skilled workman 
 or to the subordinate official in civil institutions. Wages have greatly 
 increased in outside occupations in the last forty years, and the pay of the 
 soldier, like the pay of the officers, should be proportionately increased. 
 The first sergeant of a company, if a good man, must be one of such 
 executive and administrative ability, and such knowledge of his trade, 
 
ARMY AND NAVY 613 
 
 as to be worth far more than we at present pay him. The same is true 
 of the regimental sergeant major. These men should be men who had 
 fully resolved to make the Army a life occupation and they should be 
 able to look forward to ample reward; while only men properly quali- 
 fied should be given a chance to secure these final rewards. The in- 
 crease over the present pay need not be great in the lower grades for the 
 first one or two enlistments, but the increase should be marked for the 
 noncommissioned officers of the upper grades who serve long enough to 
 make it evident that they intend to stay permanently in the Army, while 
 additional pay should be given for high qualifications in target practice. 
 The position of warrant officer should be established and there should 
 be not only an increase of pay, but an increase of privileges and allow- 
 ances and dignity, so as to make the grade open to noncommissioned 
 officers capable of filling them desirably from every standpoint. The 
 rate of desertion in our Army now in time of peace is alarming. The 
 deserter should be treated by public opinion as a man guilty of the 
 greatest crime ; while on the other hand the man who serves steadily in 
 the Army should be treated as what he is, that is, as preeminently one 
 of the best citizens of this Republic. After twelve years' service in the 
 Army my own belief is that the man should be given a preference ac- 
 cording to his ability for certain types of office over all civilian applicants 
 without examination. This should also apply, of course, to the men who 
 have served twelve years in the Navy. A special corps should be pro- 
 vided to do the manual labor now necessarily demanded of the privates 
 themselves. 
 
 Among the officers there should be severe examinations to weed out 
 the unfit up to the grade of major. From that position on appointments 
 should be solely by selection and it should be understood that a man of 
 merely average capacity could never get beyond the position of major, 
 while every man who serves in any grade a certain length of time prior 
 to promotion to the next grade without getting the promotion to the next 
 grade should be forthwith retired. The practice marches and field 
 maneuvers of the last two or three years have been invaluable to the 
 Army. They should be continued and extended. A rigid and not a 
 perfunctory examination of physical capacity has been provided for the 
 higher grade officers. This will work well. Unless an officer has a 
 good physique, unless he can stand hardship, ride well, and walk fairly, 
 he is not fit for any position, even after he has become a colonel. Before 
 he has become a colonel the need for physical fitness in the officer is 
 almost as great as in the enlisted man. I hope speedily to see introduced 
 into the Army a far more rigid and thoroughgoing test of horsemanship 
 for all field officers than at present. There should be a Chief of Cavalry 
 just as there is a Chief of Artillery. 
 
 Perhaps the most important of all legislation needed for the benefit of 
 the Army is a law to equalize and increase the pay of officers and en- 
 
614 AMERICAN FEDERAL GOVERNMENT 
 
 listed men of the Army, Navy, Marine Corps, and Revenue-Cutter 
 Service. Such a bill has been prepared, which it is hoped will meet 
 with your favorable consideration. The next most essential measure 
 is to authorize a number of extra officers as mentioned above. To make 
 the Army more attractive to enlisted men, it is absolutely essential to 
 create a service corps, such as exists in nearly every modern army in the 
 world, to do the skilled and unskilled labor, inseparably connected with 
 military administration, which is now exacted, without just compensa- 
 tion, of enlisted men who voluntarily entered the Army to do service of 
 an altogether different kind. There are a number of other laws neces- 
 sary to so organize the Army as to promote its efficiency and facilitate 
 its rapid expansion in time of war; but the above are the most 
 important. 
 
 The Navy. It was hoped The Hague Conference might deal with 
 the question of the limitation of armaments. But even before it had as- 
 sembled informal inquiries had developed that as regards naval arma- 
 ments the only ones in which this country had any interest, it was hopeless 
 to try to devise any plan for which there was the slightest possibility of 
 securing the assent of the nations gathered at The Hague. No plan was 
 even proposed which would have had the assent of more than one first 
 class Power outside of the United States. The only plan that seemed at 
 all feasible, that of limiting the size of battleships, met with no favor at 
 all. It is evident, therefore, that it is folly for this Nation to base any 
 hope of securing peace on any international agreement as to the limita- 
 tion of armaments. Such being the fact it would be most unwise for us 
 to stop the upbuilding of our Navy. To build one battleship of the best 
 and most advanced type a year would barely keep our fleet up to its pres- 
 ent force. This is not enough. In my judgment, we should this year 
 provide for four battleships. But it is idle to build battleships unless in 
 addition to providing the men, and the means for thorough training, we 
 provide the auxiliaries for them, unless we provide docks, the coaling 
 stations, the colliers and supply ships that they need. We are extremely 
 deficient in coaling stations and docks on the Pacific, and this deficiency 
 should not longer be permitted to exist. Plenty of torpedo boats and 
 destroyers should be built. Both on the Atlantic and Pacific coasts, 
 fortifications of the best type should be provided for all our greatest 
 harbors. 
 
 We need always to remember that in time of war the Navy is not to 
 be used to defend harbors and sea-coast cities; we should perfect our 
 system of coast fortifications. The only efficient use for the Navy is 
 for offense. The only way in which it can efficiently protect our own 
 coast against the possible action of a foreign navy is by destroying that 
 foreign navy. For defense against a hostile fleet which actually attacks 
 them, the coast cities must depend upon their forts, mines, torpedoes, 
 submarines, and torpedo boats and destroyers. All of these together are 
 
ARMY AND NAVY 615 
 
 efficient for defensive purposes, but they in no way supply the place of a 
 thoroughly efficient navy capable of acting on the offensive ; for parry- 
 ing never yet won a fight. It can only be won by hard hitting, and an 
 aggressive sea-going navy alone can do this hard hitting of the offensive 
 type. But the forts and the like are necessary so that the Navy may be 
 footloose. In time of war there is sure to be demand, under pressure of 
 fright, for the ships to be scattered so as to defend all kind of ports. 
 Under penalty of terrible disaster, this demand must be refused. The 
 ships must be kept together, and their objective made the enemies' 
 fleet. If the fortifications are sufficiently strong, no modern navy will 
 venture to attack them, so long as the foe has in existence a hostile navy 
 of anything like the same size or efficiency. But unless there exists such 
 a navy then the fortifications are powerless by themselves to secure the 
 victory. For of course the mere deficiency means that any resolute 
 enemy can at his leisure combine all his forces upon one point with the 
 certainty that he can take it. 
 
 Until our battle fleet is much larger than at present it should never be 
 split into detachments so far apart that they could not in event of emer- 
 gency be speedily united. Our coast line is on the Pacific just as much 
 as on the Atlantic. The interests of California, Oregon, and Washington 
 are as emphatically the interests of the whole Union as those of Maine 
 and New York, of Louisiana and Texas. The battle fleet should now 
 and then be moved to the Pacific, just as at other times it should be kept 
 in the Atlantic. When the Isthmian Canal is built the transit of the 
 battle fleet from one ocean to the other will be comparatively easy. 
 Until it is built I earnestly hope that the battle fleet will be thus shifted 
 between the two oceans every year or two. The marksmanship on all 
 our ships has improved phenomenally during the last five years. Until 
 within the last two or three years it was not possible to train a battle 
 fleet in squadron maneuvers under service conditions, and it is only 
 during these last two or three years that the training under these condi- 
 tions has become really effective. Another and most necessary stride in 
 advance is now being taken. The battle fleet is about starting by the 
 Straits of Magellan to visit the Pacific coast. Sixteen battleships are 
 going under the command of Rear-Admiral Evans, while eight armored 
 cruisers and two other battleships will meet him at San Francisco, 
 whither certain torpedo destroyers are also going. No fleet of such 
 size has ever made such a voyage, and it will be of very great educational 
 use to all engaged in it. The only way by which to teach officers and 
 men how to handle the fleet so as to meet every possible strain and 
 emergency in time of war is to have them practice under similar condi- 
 tions in time of peace. Moreover, the only way to find out our actual 
 needs is to perform in time of peace whatever maneuvers might be neces- 
 sary in time of war. After war is declared it is too late to find out the 
 needs ; that means to invite disaster. This trip to the Pacific will show 
 
616 AMERICAN FEDERAL GOVERNMENT 
 
 what some of our needs are and will enable us to provide for them. The 
 proper place for an officer to learn his duty is at sea, and the only way in 
 which a navy can ever be made efficient is by practice at sea, under all 
 the conditions which would have to be met with if war existed. 
 
 I bespeak the most liberal treatment for the officers and enlisted men 
 of the Navy. It is true of them, as likewise of the officers and enlisted 
 men of the Army, that they form a body whose interests should be close 
 to the heart of every good American. In return the most rigid perform- 
 ance of duty should be exacted from them. The reward should be 
 ample when they do their best ; and nothing less than their best should 
 be tolerated. It is idle to hope for the best results when the men in the 
 senior grades come to those grades late in life and serve too short a time 
 in them. Up to the rank of lieutenant-commander promotion in the 
 Navy should be as now, by seniority, subject, however, to such rigid 
 tests as would eliminate the unfit. After the grade of lieutenant-com- 
 mander, that is, when we come to the grade of command rank, the 
 unfit should be eliminated in such a manner that only the conspicuously 
 fit would remain, and sea service should be a principal test of fitness. 
 Those who are passed by should, after a certain length of service in their 
 respective grades, be retired. Of a given number of men it may well be 
 that almost all would make good lieutenants and most of them good 
 lieutenant-commanders, while only a minority will be fit to be captains, 
 and but three or four to be admirals. Those who object to promotion 
 otherwise than by mere seniority should reflect upon the elementary fact 
 that no business in private life could be successfully managed if those 
 who enter at the lowest rungs of the ladder should each in turn, if he 
 lived, become the head of the firm, its active director, and retire after 
 he had beld the position a few months. On its face such a scheme is an 
 absurdity. Chances for improper favoritism can be minimized by a 
 properly formed board ; such as the board of last June, which did such 
 conscientious and excellent work in elimination. 
 
 If all that ought to be done can not now be done, at least let a begin- 
 ning be made. In my last three annual Messages, and in a special 
 Message to the last Congress, the necessity for legislation that will 
 cause officers of the line of the Navy to reach the grades of captain and 
 rear-admiral at less advanced ages and which will cause them to have 
 more sea training and experience in the highly responsible duties of 
 those grades, so that they may become thoroughly skillful in handling 
 battleships, divisions, squadrons, and fleets in action, has been fully 
 explained and urgently recommended. Upon this subject the Secretary 
 of the Navy has submitted detailed and definite recommendations 
 which have received my approval, and which, if enacted into law, will 
 accomplish what is immediately necessary, and will, as compared with 
 existing law, make a saving of more than five millions of dollars during 
 the next seven years. The navy personnel act of 1899 has accomplished 
 
ARMY AND NAVY 617 
 
 all that was expected of it in providing satisfactory periods of service in 
 the several subordinate grades, from the grade of ensign to the grade 
 of lieutenant-commander, but the law is inadequate in the upper grades 
 and will continue to be inadequate on account of the expansion of the 
 personnel since its enactment. Your attention is invited to the follow- 
 ing quotations from the report of the personnel board of 1906, of which 
 the Assistant Secretary of tne Navy was president: 
 
 "Congress has authorized a considerable increase in the number of mid- 
 shipmen at the Naval Academy, and these midshipmen upon graduation are 
 promoted to ensign and lieutenant (junior-grade). But no provision has been 
 made for a corresponding increase in the upper grades, the result being that 
 the lower grades will become so congested that a midshipman now in one of the 
 lowest classes at Annapolis may possibly not be promoted to lieutenant until 
 he is between 45 and 50 years of age. So it will continue under the present 
 law, congesting at the top and congesting at the bottom. The country fails to 
 get from the officers of the service the best that is in them by not providing 
 opportunity for their normal development and training. The board believes 
 that this works a serious detriment to the efficiency of the Navy and is a real 
 menace to the public safety." 
 
 As I stated in my special Message to the last Congress: "I am firmly 
 of the opinion that unless the present conditions of the higher com- 
 missioned personnel is rectified by judicious legislation the future of 
 our Navy will be gravely compromised." It is also urgently necessary 
 to increase the efficiency of the Medical Corps of the Navy. Special 
 legislation to this end has already been proposed ; and I trust it may be 
 enacted without delay. 
 
 It must be remembered that everything done in the Navy to fit it 
 to do well in time of war must be done in time of peace. Modern wars 
 are short ; they do not last the length of time requisite to build a battle- 
 ship; and it takes longer to train the officers and men to do well on a 
 battleship than it takes to build it. Nothing effective can be done for 
 the Navy once war has begun, and the result of the war, if the combat- 
 ants are otherwise equally matched, will depend upon which power has 
 prepared best in time of peace. The United States Navy is the best 
 guaranty the Nation has that its honor and interest will not be neglected ; 
 and in addition it offers by far the best insurance for peace that can by 
 human ingenuity be devised. 
 
 I call attention to the report of the official Board of Visitors to the 
 Naval Academy at Annapolis which has been forwarded to the Congress. 
 The report contains this paragraph : 
 
 "Such revision should be made of the courses of study and methods of con- 
 ducting and marking examinations as will develop and bring out the average 
 all-round ability of the midshipman rather than to give him prominence in 
 any one particular study. The fact should be kept in mind that the Naval 
 
6i8 AMERICAN FEDERAL GOVERNMENT 
 
 Academy is not a university but a school, the primary object of which is to 
 educate boys to be efficient naval officers. Changes in curriculum, therefore, 
 should be in the direction of making the course of instruction less theoretical 
 and more practical. No portion of any future class should be graduated in 
 advance of the full four years' course, and under no circumstances should the 
 standard of instruction be lowered. The Academy in almost all of its depart- 
 ments is now magnificently equipped, and it would be very unwise to make 
 the course of instruction less exacting than it is to-day." 
 
 THE WAR DEPARTMENT MILITARY ADMINISTRATION 1 
 BY BRIGADIER-GENERAL WILLIAM H. CARTER, U. S. A. 1 
 
 WHEN the great Civil War Secretary, Edwin M. Stanton, took up the 
 work of the Department, which for four years laid such a mental and 
 physical strain upon him as few men could bear, he found a condition 
 calculated to bring discouragement to the stoutest heart. The relations 
 between the Secretary of War and the Commanding General of the Army 
 had long been of such a character that the latter officer had removed 
 his headquarters to New York City. He was now brought back to the 
 seat of government with the expectation that his staunch loyalty, knowl- 
 edge of the army and professional ability would render him useful in the 
 hour of peril. Advancing years, however, soon compelled his retirement 
 from active service. 
 
 Immediate measures were taken to insure the safety of the Capital 
 and to bring into service armies sufficient in size and number to cope 
 with the grave question of preserving the Union. It became necessary 
 to reorganize the business methods of the various bureaus to meet the 
 exceptional tasks confronting them in the organization, equipping and 
 supplying of an army suddenly increased from about ten thousand to 
 ultimately more than one million men in actual service. 
 
 The general system of administration was similar to that pursued 
 during the Mexican War, and much reliance was placed on the veterans 
 of that conflict. It did not take long to make it evident, to thoughtful 
 and alert friends of the Union, that the magnitude of the conflict then 
 raging was little understood by the general public, and that preparation, 
 in the shape of money, material, and men, for a prolonged and bloody 
 war was the immediate duty of the War Department. The history of 
 the great struggle is still fresh in the minds of the American people, but 
 it may be safely stated that only a very limited number have a proper 
 appreciation of the great administrative work performed by the War 
 Department during the days and nights of the whole four years of war. 
 There were periods of marching, of battle, and of monotonous camp life 
 
 1 Part of an article in Scribner's Magazine, June, 1903. Reprinted by permission. 
 Copyright. 
 
ARMY AND NAVY 619 
 
 for the average regiment; but for the Secretary of War and his coad- 
 jutors there was one unending round of high tension work. 
 
 Armies are useless without food, clothes, ammunition and transporta- 
 tion, and to obtain and distribute these essential requisites in the quan- 
 tities demanded during the Civil War required administrative and 
 executive ability of a high order. The absence of a directing and co- 
 ordinating professional authority in the scheme of army organization 
 threw an immense strain upon the Secretary of War and President. No 
 student of the art of war can read the war orders and instructions of 
 President Lincoln without noting the rapid and wonderful growth of 
 his mind during the early years of the war, especially as to the military 
 policy and grand strategy. It was his knowledge of the value of co- 
 ordinated and united action that led him to a constant effort to have all 
 the various armies operate under a general policy, and prevent the 
 Confederates from continually availing themselves of interior lines of 
 communication to reenforce threatened points. It took a long time and 
 untold millions to bring all the. separate armies to a condition of readi- 
 ness, but when this agressive, hammer-and-tongs policy was instituted 
 all along the line the Department was able to see the end of the enor- 
 mous burden the country was patiently bearing, in the drain upon its 
 resources. 
 
 Nothing in all military history equals the business administration of 
 the War Department as exemplified in the muster-out and transporta- 
 tion of the great volunteer armies to their homes at the close of the Civil 
 War. The great burden of current expense was quickly reduced, a 
 matter of vital importance at the time. 
 
 After so much experience in handling large numbers of men during 
 four years of war, the preparation of General Sheridan's army, for a 
 descent upon the French troops in Mexico, was attended with no special 
 difficulties. Fortunately wise counsels prevailed in the French nation, 
 and this, together with some rather active pressure on the part of the 
 Mexican people, caused the withdrawal of Bazaine's army from our 
 neighboring republic, and enabled the War Department to dispense 
 with the volunteers assembled in Texas. 
 
 Following close upon the muster-out of the volunteers a reorganiza- 
 tion of the regular army, involving an increase of the various staff de- 
 partments and a considerable augmentation of the line, took place. A 
 portion of the new army was destined for service in the Southern States 
 during the reconstruction period. The duties required of the army 
 during the long and disastrous efforts at sustaining "carpet-bag" gov- 
 ernments were intensely distasteful to both officers and men, as well 
 as to the better element amongst the Southern people. To be sure the 
 Civil War had just closed, and it was necessary to reestablish law and 
 order throughout a vast territory inhabited by a negro population, which 
 regarded the army as the embodiment of that power which had struck 
 
620 AMERICAN FEDERAL GOVERNMENT 
 
 off the shackles of slavery. The use of the army at the polls and in civil 
 matters generally has ever been repugnant to American ideas, and at 
 this period it only succeeded in embittering the Southern people to such 
 an extent that one of their first and most insistent policies, after the 
 reconstruction, was to demand a reduction of the regular army. Under 
 this pressure the strength of the army was fixed and remained at 25,000 
 men until the outbreak of the war with Spain. 
 
 During the quarter of a century following the close of the Civil War 
 the army was constantly overworked in the Far West, where advancing 
 civilization was resisted by the warriors of nearly all the Indian tribes 
 in their fruitless effort to stem the tide, which was steadily circumscrib- 
 ing and overflowing their hunting grounds. The wasteful slaughter of 
 millions of buffaloes within the brief period of half a dozen years com- 
 pletely changed the history of the nomadic Plains Indians. The many 
 stories of wagon trains, and even railroad trains, being stopped to wait 
 the passing of countless thousands in some of the great migrating buffalo 
 herds now read like visionary tales of disordered minds. 
 
 The War Department had continued in charge of the Indians until 
 the close of the Mexican War, after which period their affairs were mail- 
 aged by Indian agents, with minimum salaries and maximum tempta- 
 tions. Many times the army was compelled to stand idly by and witness 
 the perpetration of wrongs, and when the Indians, in desperation, 
 "broke out," the War Department was called upon to produce another 
 era of peace. Year after year regiments were summoned to the field, 
 sometimes under tropical suns, and again in the land of blizzards, where 
 the icy winds made campaigning miserable alike to pursuer and pur- 
 sued. With each recurring surrender the Indians were restored to the 
 tender mercies of the agent and his harpies, only to find their grievances 
 multiplied. 
 
 As years wore on the settlers, with their wire fences, closed in slowly 
 but surely around the reservations, and the fact dawned upon the Indians 
 that the wild, free life of the Golden West had gone. The march of 
 civilization had swept away the old life and left but mere remnants of 
 once proud tribes stranded as drift-wood along the shores of progress. 
 Encountering only the worst elements amongst the whites, too often 
 the mere outcasts of society, the poor warriors, shorn of the power 
 wielded by their ancestors, turned restlessly for some light to those with 
 whom they had battled and at whose hands they had often suffered 
 defeat. Army officers were again installed as Indian agents and gradu- 
 ally laid the foundations of lasting peace by showing the Indians the 
 utter futility of contending against inevitable fate. 
 
 The Indian question having been practically settled for all time, a 
 plan was adopted by the War Department of bringing together the 
 scattered fragments of the regular army, which in its entirety did not 
 equal in numbers a single army corps. The necessity for guarding iso- 
 
ARMY AND NAVY 621 
 
 lated and exposed points had for years presented proper instruction of 
 officers and men in the administration and maneuvers of battalions, 
 regiments, and brigades, but in minor warfare they were not outclassed 
 by any soldiers the world over. To accomplish the best results numerous 
 small posts were abandoned and regimental posts established. Coin- 
 cident with the inception of this plan, work of construction proceeded 
 along the seacoast under the general scheme adopted under authority 
 of Congress. During actual Indian hostilities the urgent need for men 
 in the cavalry and infantry had caused a reduction in the strength of 
 artillery organizations, which rendered them incapable of fulfilling their 
 proper functions in seacoast defense. To meet this emergency in a 
 mediocre way, two troops of each cavalry regiment and two companies 
 of each infantry regiment were "skeletonized." This scheme left the 
 cavalry regiments with two squadrons and a half, but gave the infantry 
 regiments two complete battalions, that branch having at the time only 
 ten companies to each regiment. One of the results of recent experi- 
 ence has been to fix by statute a minimum limit for each troop of cavalry 
 and company of infantry, so that in future it will not be legal to skele- 
 tonize any portion of the army. 
 
 The unwillingness of Congress to recognize the urgent need of men to 
 garrison the growing coast defenses, while continuing to spend millions 
 upon fortifications and guns, caused the Department grave concern. 
 After years of pleading for proper legislation, a piteous appeal was finally 
 made for two additional regiments of artillery, and action was slowly 
 maturing in this regard when other events occurred which rapidly roused 
 the country to action. 
 
 For more than half a century Cuba had been a source of incessant 
 anxiety and trouble to every administration. Forty years back De- 
 cember, 1858 President James Buchanan, in complaining in a message 
 to Congress of past conditions, said: " Spanish officials under the direct 
 control of the Captain General of Cuba have insulted our national flag, 
 and in repeated instances have from time to time inflicted injuries on the 
 persons and property of our citizens. ... All our attempts to obtain 
 redress have been baffled and defeated. . . . The truth is that Cuba, 
 in its existing colonial condition, is a constant source of injury and an- 
 noyance to the American people. ... It has been made known to the 
 world by my predecessors that the United States have on several occa- 
 sions endeavored to acquire Cuba from Spain by honorable negotiation. 
 . . . We would not, if we could, acquire Cuba in any other manner. 
 This is due to our national character. . . . Our relations with Spain, 
 which ought to be of the most friendly character, must always be placed 
 in jeopardy whilst the existing Colonial government over the island 
 shall remain in its present condition." 
 
 There was a widespread sentiment throughout the United States in 
 behalf of the Cubans in their insurrection against Spanish domination. 
 
622 AMERICAN FEDERAL GOVERNMENT 
 
 Many well-informed newspapers protested against the circulation of 
 unreliable stories calculated to create false sympathy, but the tide was 
 flowing full, and the minority in Congress constantly twitted the majority 
 because of the failure to intervene in the Cuban struggle. Captain Gen- 
 eral Weyler was held up to universal scorn because he had turned back 
 the methods of war to the days of the Spanish Inquisition. The estab- 
 lishment of reconcentrado camps, done to prevent Spanish soldiers from 
 being murdered in a war in which there were no battles in the open, 
 brought down upon Spain the antagonism of all Cuban sympathizers. 
 
 The Secretary of War and his co-workers were advised of the un- 
 prepared state of the army and of the defenses for immediate war. 
 Everything which could be legitimately done at the time was hastened 
 forward to make up for past neglect, but guns, ammunition and armies do 
 not appear by magic. When the battleship Maine met destruction in 
 Havana harbor on the fateful night of February 15, 1898, the nation was 
 so horrified that it required all the wisdom and statesmanship of Presi- 
 dent McKinley to delay the inevitable conflict while preparations were 
 hurried forward. On March 8th Congress unanimously voted $50,000,000 
 for the national defense, but as the new Spanish Minister, Sefior Palo y 
 Bernabe, entered upon his duties at Washington a few days later, the 
 appropriation was not regarded as a war measure. The brief period 
 intervening before the passage of the resolutions authorizing intervention 
 in the Island of Cuba was used to advance preparation for war, but the 
 Secretary of War was greatly embarrassed by the failure of Congress to 
 pass any measure for raising an army until after war was actually de- 
 clared. The nation was unprepared, yet when war was declared every 
 shoulder was put manfully to the wheel, and Europe saw with amaze- 
 ment the capacity of the young giant whose whole energies had long been 
 turned to the upbuilding of new States and the extension of an indus- 
 trial development hitherto unknown to any like period of the world's 
 history. 
 
 The country had not engaged in war since the close of the gigantic 
 struggle of 1861 to 1865 ; no progress in legislation had been made in 
 a hundred years so far as utilization of organized militia was concerned, 
 and there was no law extant under which the President could take any 
 of those preliminary steps so essential to success in war. During April 
 all of the little regular army which could be spared was assembled in 
 Southern camps and organized in brigades and divisions. This was a 
 measure of extreme precaution ; the results at Santiago prove it to have 
 been one of those fortunate strokes upon which the fate of nations often 
 hang. 
 
 Within a few hours after the passage of the Act authorizing a volunteer 
 army a call for 125,000 men was made; this was followed by another 
 for 75,000, which, with the increase of the regular army, made a total 
 of nearly 250,000 men. The volunteers under the first call were put in 
 
ARMY AND NAVY 623 
 
 the field in thirty days, and the entire work of organization the mighty 
 task of putting a quarter of a million men under arms and equipping 
 them for service, in face of all obstacles was completed in ninety days. 
 There was no lack of volunteers ; on the contrary the War Department 
 was embarrassed with offers of service. 
 
 Notwithstanding all this, well-informed officials recognized that the 
 country had not advanced in military methods one iota in half a century, 
 for every effort of the War Department to profit by the lessons of the 
 past met with opposition. There was a determination in many States 
 to cast aside the one pronounced lesson of the Mexican and Civil Wars, 
 and it was only through President McKinley's acceptance of the views 
 of experienced officers that a complete breakdown of the system was 
 avoided. To be more explicit on this important point; in our military 
 system, organization and recruitment pertain to the adjutant general's 
 bureau of the War Department; that bureau insisted that the scheme 
 which allowed volunteer regiments to be mustered in with all their officers, 
 but with only half a quota of men, to be soon reduced below a basis of 
 efficiency, should not prevail. The anxiety to get mustered into service 
 caused many excellent officers of the National Guard to join in a move- 
 ment, which was calculated to break down the whole militia system, and 
 did cause it to lose the respect of well-informed veterans of the Civil 
 War. The pressure brought by Pennsylvania was so great that it secured 
 a modification of the rule which Grant, Sherman, and all the great 
 leaders of the Civil War, had contended for as of vital importance in 
 maintaining the efficiency of volunteer armies. As soon as the first call 
 was completed, President McKinley came to the rescue by making 
 another call for 75,000 men, and giving an order that no new organiza- 
 tion should be accepted from any State until the ranks of all existing 
 volunteer organizations from that State should be recruited to the maxi- 
 mum. This is a military principle indispensable to economical success 
 with volunteer armies. 
 
 Coincident with this work, the selection and appointment of general 
 officers of the line and officers of the various staff and supply departments 
 went on apace. In anticipation of war the Department had for some 
 years been preparing lists of graduates of the officers' service or post- 
 graduate schools in the regular army, with a view to the assignment of 
 specially qualified officers to staff duty with the brigades, divisions and 
 corps of volunteers. The first promotions and assignments were made 
 from experienced regulars; then followed a rush of applicants urged 
 by congressional delegations and those with official and social influence. 
 The test of efficiency and experience was necessarily abandoned under 
 this pressure, and appointments followed the usual lines of patronage 
 and expediency. In these modern days, wars are of too short duration 
 to justify appointment of inexperienced men to important military 
 offices ; it is a matter within the control of the President, and if he gives 
 
624 AMERICAN FEDERAL GOVERNMENT 
 
 way to the fierce pressure, the army and country must suffer during the 
 period while the new men are learning the trade of arms. Notwith- 
 standing the many years of threatening clouds, there was no well-defined 
 plan for organizing the army when called into active service. Brigades, 
 divisions and corps gradually came into being through the expediency 
 of the moment. A heterogeneous mass of staff officers was distributed 
 to the general officers, and in many instances, instead of being useful, 
 they proved to be encumbrances. In numerous cases the generals in 
 command detailed subordinate regular officers to perform the duties 
 while the volunteer officers held the higher staff rank and drew the pay 
 of offices requiring technical knowledge, which is not immediately sup- 
 plied through patriotism and willingness to serve. The humiliating 
 experience of some of the great volunteer camps should be enough to 
 prevent a repetition of such mistakes, but there is no assurance that like 
 methods will not obtain in the next war unless some change in our 
 military system is brought about. 
 
 Having in view the advantage to be derived by not overcrowding rail- 
 way terminals and docks, provision was made for distributing the forces 
 destined for service over sea at New Orleans, Mobile and Tampa. 
 Influences of various kinds prevailed against this scheme with the result 
 that Tampa will always be to the army and the people a synonym of 
 blunder and reproach. Taking advantage of the sharp criticisms brought 
 upon the department because of conditions at Tampa, certain railroad 
 and hotel interests urged the pretended advantages of Miami, and in 
 face of adverse reports on the site by military experts, an order was 
 given to move a division of troops to that point, with no good results. 
 
 The need for ships was urgent, and the navy was seeking them at the 
 same time as the army. Our officers had had no previous personal ex- 
 perience with transports, and the history of the Vera Cruz expedition 
 of the Mexican War appeared to have been forgotten ; so General Shaf- 
 ter's magnificent corps was sent to Santiago, inadequately equipped, and 
 had the navy not come to the rescue, the whole campaign must of neces- 
 sity have been a failure through the impossibility of, or long delay in, 
 effecting a landing. Once in contact with the enemy, the American 
 army, as usual, added laurels to its already long list of successful cam- 
 paigns. In face of all theory and academic teaching victory was wrested 
 from brave and well-armed adversaries, but the general and honest 
 opinion of army men well qualified to judge is, that an extremely lucky 
 star hovered over America during the war with Spain. 
 
 The expedition to Porto Rico, and 'that across the wide Pacific to Manila 
 were sent with less haste, and therefore better equipped. But experi- 
 ence was being obtained, and now, after having become possessed of a 
 magnificent fleet of transports, the quartermaster department is enabled 
 to point with just pride to four years of such successful endeavor that its 
 record is not exceeded by that of any of the great' steamship lines. This 
 
ARMY AND NAVY 625 
 
 service ultimately reached such a degree of efficiency that thousands of 
 troops have been transported seven thousand miles across the Pacific in 
 sufficient comfort to have them ready for immediate field service on 
 arrival. 
 
 With the signing of the protocol, it became necessary to reduce the 
 forces, but as the Spanish army in Cuba was still intact, it was decided 
 to proceed at once with the muster out of only 100,000 volunteers. The 
 occupation of posts in Cuba to be evacuated by Spanish garrisons em- 
 ployed 50,000 troops. The question of withdrawing the volunteers from 
 the Philippine Archipelago caused the War Department much concern. 
 Peace once an accomplished official act, all volunteers would become 
 entitled to discharge. The department concluded, therefore, to ask 
 outright for a regular army of 100,000 men, and the House of Represen- 
 tatives passed a bill to that effect, but the minority in the Senate took 
 up a line of speechmaking concerning the administration's Philippine 
 policy and stifled the bill. To avoid an extra session, the minority was 
 allowed to dictate a compromise of a temporary regular army and an- 
 other force of volunteers. The muster out of the volunteers for the war 
 with Spain was completed as rapidly as possible, having in mind the 
 economy of the moment as well as protection from fraudulent claims 
 for pensions in the future. 
 
 In the Philippines the army was confronted with many serious prob- 
 lems, the solution of which demanded a showing of well-organized force. 
 The enlistment and transportation of volunteers to a scene of action 
 ten thousand miles from their homes for a comparatively brief service, 
 involved such an appalling expenditure of public funds that the President 
 withheld his consent to the organization of the new regiments until con- 
 ditions became so critical that the reenforcement could no longer be 
 delayed. The excess of cost of this force of volunteers over what the 
 cost would have been had regulars been employed, with the usual three 
 years' enlistments, has been estimated by the various staff bureaus to 
 be $16,374,009.04, quite an item even in these days of abounding pros- 
 perity. The new volunteer regiments were raised and commanded by 
 regular officers, and were splendid organizations, but they were of neces- 
 sity brought home and mustered out with an average of fifteen to eight- 
 een months' service over sea, altogether a very expensive proceeding. 
 
 The exchange of troops in the Philippines to enable the volunteers 
 who went out in the first expedition to come home, was effected during 
 active insurrection which continued until a force of nearly 70,000 men 
 was assembled in the Islands. The War Department has been sub- 
 jected to much criticism concerning the conduct of the army while quell- 
 ing the insurrection. While the Department has not come unscathed 
 from the wordy conflict, the fact remains, if recent political events are 
 correctly interpreted, that the army has never stood higher in the con- 
 fidence and esteem of the people than now. Whatever motives may 
 
 40 
 
626 AMERICAN FEDERAL GOVERNMENT 
 
 have actuated the detractors of the army, it can only be regretted that 
 the conduct of the Philippine campaigns has been made a matter of 
 political controversy. In the years to come the names of the heroes of 
 the swamp and jungle campaigns of the recent past will be found upon 
 the pages of history with those of Yorktown, Molino del Rey, and the 
 Wilderness. 
 
 It became evident that makeshift devices would no longer serve 
 the purpose, and the Secretary of War presented the needs of the 
 service in carefully prepared legislation, which, while not accomplishing 
 everything desired, gave the Department a sufficient force to meet the 
 urgent demands upon the army in Cuba, Porto Rico, the Philippines, 
 Alaska, and at home. In addition to an increase of strength, the Depart- 
 ment secured the long-contested-for three battalion organization for 
 the infantry branch. The artillery was largely increased and merged 
 into a corps which enabled the department to concentrate the defense 
 of each harbor or district, including submarine adjuncts, under the con- 
 trol of the senior artillery officer. 
 
 The Secretary of War, after a careful study of the situation, with 
 particular reference to the difficulties encountered at the outbreak of the 
 war with Spain, urged and secured a change in the laws which had 
 hitherto perpetuated the staff departments as close corporations by 
 virtue of life appointments. A detail system was introduced which will 
 gradually supersede the old method of permanent appointments. 
 
 The variegated character of the militia system in the past caused the 
 entire force which volunteered in bodies at the outbreak of the war with 
 Spain to be judged by the weakest and most inefficient organizations. 
 This was unjust to many excellent regiments, but the penalty paid by 
 them for the association may be considered very light if the knowledge 
 gained by the country at large eventuates in the honest reformation of 
 the whole system and the placing of the organized militia upon a basis 
 of self-respecting efficiency. Even under the favorable legislation recently 
 enacted, it will require a long time to perfect the details of the system 
 which is intended to secure immediate and efficient service from the 
 militia at the outbreak of war. Our forefathers dreamed of the militia 
 as the bulwark of a nation, yet the system failed utterly in the War of 
 1812. The " Continentals" left an indelible impression on the pages 
 of Revolutionary history. The Mexican war proved the value of United 
 States Volunteers in contradistinction to militia, and the world never 
 saw better armies than those composed of the volunteers of 1861 to 1865. 
 The National Guard organizations were recognized in 1898, but no effort 
 was made to call into service the "militia," as contemplated by the 
 Constitution. In all proposed legislation for improving the militia many 
 varying opinions are advanced as to interpretations of the Constitution. 
 This does not obtain in regard to United States Volunteers, who, once 
 mustered into the service, are on the same footing exactly as regulars, 
 
ARMY AND NAVY 627 
 
 except as to length of enlistment. At the outbreak of the war with Spain, 
 Congress enacted that hereafter, in war, the army shall consist of the 
 regular army and the volunteer army; in the former, enlistments are 
 for three years, and in the latter for two years. This departure from the 
 teachings of the Civil War was not called for by any emergency; an 
 enlistment for "three years or the war" should be required of all volun- 
 teers, for, if this is not done, it makes it difficult to fill the ranks of old 
 and valuable regular regiments where the three years' enlistment prevails. 
 
 Ever since the spring of 1898 the officials of the War Department have 
 discussed the confusion which arose at Tampa and elsewhere, and have 
 constantly sought the best means of preventing a repetition of conditions 
 which might lead to humiliation and temporary defeat in a war with an 
 enterprising and audacious enemy. After mature consideration, the 
 Secretary of War settled upon a plan for the establishment of a General 
 Staff Corps, with a chief at its head who will be Chief of Staff for the 
 whole army. Under this plan the misnamed office of Commanding 
 General will disappear. It has ever been a delusion and a disappoint- 
 ment for the distinguished soldiers who have occupied it, with constant 
 but fruitless efforts to invest the office with something more than a name. 
 This is the final army reform of a general nature, to the accomplishment 
 of which Secretary Root has devoted himself. It will be a fitting capstone 
 to the long series of definite and comprehensive improvements secured 
 in the War Department and army methods by the Secretary. The new 
 scheme once in successful operation, all the business of the army will be 
 brought under the advisory control of a selected and highly trained body 
 of experts, who, working in harmony with all the bureau chiefs, should 
 accomplish cooperation and achievement of the most satisfactory 
 character. 
 
 And now, with the advent of the third year of the new century, the 
 great wave of prosperity which followed the close of the war with Spain, 
 a not uncommon result of wars, has reached dimensions far beyond the 
 expectations of the most optimistic of our public men. The extension 
 of American commerce is following in the trail of war, and all our people 
 are participating in its practical results. The conduct of our troops, 
 and the frankness and honesty of our policies, in Cuba, the Philippines 
 and China, has challenged the attention of the civilized world. American 
 diplomacy, backed by our highly civilized and intelligent troops, has 
 become a synonym for fair dealing and unswerving honesty. There is 
 abundant cause for pride in the respect now entertained for the United 
 States throughout the world, as evidenced by the treatment of our rep- 
 resentatives. Resting under the aegis of the Constitution and an honest 
 interpretation of the Monroe doctrine, there is no possibility of the 
 military arm ever becoming a tool to subvert our own or the liberties of 
 other people. Sophistry and concealment find no place in our treatment 
 of other nations, and this country will fulfil its duties as a newly dis- 
 
628 AMERICAN FEDERAL GOVERNMENT 
 
 covered world power with only such an army and navy as will prevent a 
 decadence of the military art, and yet strong enough not to offer an 
 invitation to attack. 
 
 SPEECH OF HON. ALBERT F. DAWSON ON NAVAL 
 ADMINISTRATION 1 
 
 THE House being in Committee of the Whole House on the state of the 
 Union, and having under consideration the bill (H. R. 20471) making ap- 
 propriations for the naval service for the fiscal year ending June 30, 1909, and 
 for other purposes 
 
 Mr. Dawson said: 
 
 Mr. Chairman : We have heard the naval subject discussed here this 
 afternoon from a scientific standpoint, a sentimental standpoint, and, I 
 am almost tempted to add, from a hysterical standpoint. I would like 
 to ask the committee at this hour to consider it from the business stand- 
 point, and to direct attention to one of the most important questions in 
 the whole naval service the question of naval administration. 
 
 Mr. Chairman, this is not a sentimental proposition; this is a 
 great business proposition, involving as it does the expenditure of the 
 $100,000,000 which we appropriate annually for this great arm of the 
 national defense. Upon this problem of administration rests the question 
 of whether these millions are expended economically and wisely or 
 whether they shall be expended wastefully and extravagantly. But this 
 question of naval administration, Mr. Chairman, is even more than a 
 business proposition. It is a question which goes to the very root of the 
 efficiency of the naval service itself; it has a most important bearing 
 upon the efficiency of the material of the Navy ; it is vital to whether or 
 not we will have good guns, good ammunition and good ships; it is 
 vital likewise to the personnel of the Navy, because on the question of 
 administration depends the esprit de corps of the officers and men of 
 the entire Navy. 
 
 It may be a matter of surprise to some Members of the House to know 
 that the present administrative organization of the Navy Department is 
 almost seventy years old. Is it any wonder, Mr. Chairman, with the 
 tremendous advances that have been made, both in naval and in com- 
 mercial matters, during these seventy years that the present administra- 
 tive system in the Navy Department does not measure up to present-day 
 business standards? I say, is it any wonder that this system of admin- 
 istration is outworn, out of date, and obsolete? 
 
 The present plan of administration in the Navy Department was 
 
 1 Congr. Record, Reported April 15, 1908. 
 
ARMY AND NAVY 629 
 
 adopted in 1842, and the law has been only slightly amended since. At 
 that time, upon the recommendation of Secretary Upshur, Congress 
 passed a law creating five bureaus in the Navy Department. Since that 
 time three other bureaus have been added, with some rearrangement 
 and readjustment of duties, and now we have in the Navy Department 
 eight separate bureaus, as follows: 
 
 Navigation, having charge of the personnel and the movements of the fleet, 
 under the direction of the Secretary of the Navy. 
 
 Yards and Docks: The construction and maintenance of public works in 
 navy yards and at naval stations. 
 
 Supplies and Accounts: Provisions, clothing, small stores, accounts, and 
 pay of the Navy. 
 
 Medicine and Surgery: Its name explains its duties. 
 
 Construction and Repair: The ships' hulls, turrets, ammunition hoists, etc. 
 
 Steam Engineering: Steam-propelling machinery of the ships. 
 
 Ordnance : Guns, ammunition, and parts of the electrical machinery on the 
 ships. 
 
 Equipment: Equipment of ships, and supplying most of their electrical 
 apparatus. 
 
 It should be remembered, Mr. Chairman, as we go along, that the 
 Bureau of Construction and Repair, the Bureau of Steam Engineering, 
 the Bureau of Ordnance, and the Bureau of Equipment are the ones 
 principally concerned in the construction and the repair of ships. 
 
 Under the law as it stands now it is provided that the orders of these 
 chiefs of bureaus, pertaining to their respective duties, shall be considered 
 as emanating from the Secretary of the Navy, and " shall have full force 
 and effect as such." Mark that. The orders of each chief of bureau 
 shall have the full force and effect as though the orders had been issued 
 by the Secretary of the Navy himself. In other words, instead of one 
 head of Department we have under this old organization nine heads 
 operating within one Department. 
 
 There is nothing in existing law which provides for any cooperation 
 or any coordination among those several bureaus. Each is entirely 
 independent, subject only to the Secretary himself. They all stand on 
 an equal footing. Under the law each bureau may proceed in its own 
 way according to the chief's idea of what is for the best interest of that 
 bureau. The system is lacking in that one feature that is most essential 
 for good administration and best results there is no single controlling in- 
 fluence below the Secretary to correlate the work of the different bureaus. 
 Thus responsibility is divided among eight different heads, which has 
 the effect of there being practically no responsibility at all for the work 
 as a whole. Secretary Moody, when he was at the head of that great 
 Department, recognized and set forth in his annual report some of the 
 defects of the system as he found them. What did he say ? 
 
630 AMERICAN FEDERAL GOVERNMENT 
 
 The distribution of business among bureaus independent of and correlated 
 to each other (except through the action of the Secretary) unquestionably 
 creates the condition out of which grow conflicts of jurisdiction between the 
 bureaus, sometimes injurious, and a tendency to consider the interests of 
 the bureaus rather than the interests of the Navy. The division of business 
 in the bureaus extends to the navy yards and even to some extent to ships 
 in commission. This leads sometimes to excessive and cumbersome organ- 
 ization, and lack of harmony of effort resulting from the fact that there is no 
 coordination except by the voluntary action of the bureau chiefs. 
 
 That is testimony of one who was in the Department long enough to 
 familiarize himself with conditions there. But, Mr. Chairman, how does 
 this system operate, both in the Department and in the navy yards 
 throughout the country ? Perhaps we can best determine the character 
 of its operation by examining its work in the repair of ships, which is 
 conducted at these navy yards. Last summer the Committee on Naval 
 Affairs made a tour of inspection of all the navy yards on the Atlantic 
 coast from Norfolk north to Portsmouth, and we went in and examined 
 carefully the condition at each of these yards. This examination dis- 
 closed a wasteful duplication and multiplication of plants, buildings, 
 and equipment which can not be otherwise than extravagant in the ex- 
 penditure of the public money, and it emphasized the necessity for some 
 consolidation of bureaus. Each of the four bureaus which have to do 
 with the repair or the construction of ships had at the different navy 
 yards a separate and independent plant. Each had sought to build up 
 its own bureau there, that it might be entirely independent of all the 
 others. Thus, at every one of these navy yards, instead of finding one 
 complete, fully organized, well-trained enterprise, we found what was 
 virtually four separate plants at each yard. 
 
 Each of the bureaus has its own force of workmen, each has its own 
 machinery, its own buildings, and its own peculiar method of doing 
 business. For instance, at the navy yard at New York we found that 
 the Bureau of Construction and Repair had a paint shop, and so did the 
 Bureau of Yards and Docks, the Bureau of Equipment, and the Bureau 
 of Steam Engineering Equipment maintaining a shop with three 
 painters, while the Steam Engineering had another shop in which was 
 employed one lone painter. The same was true of the carpenter shops, 
 except the Ordnance Bureau had one in addition to these other four, 
 making five carpenter shops in a single yard. Of those five shops, three 
 were employing less than ten men each. And so it went. What was 
 true of paint shops and carpenter shops was equally true of pattern shops, 
 blacksmith shops, coppersmith shops, and foundries. 
 
 Will anyone contend that this is anything except a most wasteful and 
 extravagant method of carrying on a purely industrial business, because 
 the repair of ships is not military in its character, it is purely the industrial 
 side of the Navy ? Such a plan of course requires a useless duplication 
 
ARMY AND NAVY 631 
 
 of machinery, of buildings, and of supervising force. But this condition 
 is only the natural result of a system which makes each bureau inde- 
 pendent of the other, and where at every navy yard each bureau is watch- 
 ing every other bureau with jealous eye. With Congress making separate 
 appropriations for each of these bureaus, it becomes, as one naval officer 
 tersely stated it, simply a game of "grab." If a given bureau has secured 
 an appropriation for a new building at a certain yard, the following year 
 each of the other bureaus are supplicating Congress to treat it with like 
 liberality. 
 
 This whole bureau system, as exemplified at the navy yards, is un- 
 businesslike ; it is cumbersome and extravagant and, as Secretary Long 
 so well said in one of his official reports while he was Secretary of the 
 Navy, "No private business in the world would be run on such a waste- 
 ful and inharmonious plan." 
 
 But how does the present bureau system operate in the Navy Depart- 
 ment itself? The public has had many striking instances within the 
 last year of the friction and contentions that arise in that Department 
 by reason of the fact that there are eight separate and independent 
 bureaus, each practically supreme in the duties which are assigned to it 
 by the Secretary of the Navy. The heads of these bureaus are but human, 
 and it is too much to expect that they will not take advantage of every 
 opportunity which occurs that will increase the magnitude or the impor- 
 tance of their respective duties. As Secretary Moody says, the operation 
 of the system has a tendency to cause the bureau chiefs to consider "the 
 interests of the bureaus rather than the interests of the Navy." 
 
 I hope gentlemen will understand that I am not criticising individuals. 
 I am simply offering these suggestions regarding a system which prevails, 
 in the hope that we can accord to the Navy Department in due course 
 better and more modern machinery with which to conduct the work of 
 that great Department. 
 
 I need not relate in detail the incidents which have arisen from time 
 to time, and some of which have been alluded to in this debate, showing 
 the clashing of interests and authority under this system of independent 
 bureaus, each, mind you, with the power to issue independent orders 
 of the same authority as those issued by the Secretary of the Navy himself. 
 
 If we are in any doubt as to the workings of this system in the Depart- 
 ment, let us summon a witness here who is eminently qualified to speak 
 with authority, one who by experience, by knowledge, and by courage 
 is entitled to the consideration of this House. I allude to the Hon. John 
 D. Long, who for five years was Secretary of that great Department, 
 and it might be added parenthetically, that he was in charge of that 
 Department for a longer period than any other man who has held that 
 portfolio in the last decade. He was there long enough to understand 
 the workings of that Department and to master its defects. He recog- 
 nized the faults of the existing bureau system, and in his annual report 
 
632 AMERICAN FEDERAL GOVERNMENT 
 
 for 1899 he recommended that three of these bureaus, these three bureaus 
 that have to deal with the construction and fitting out of vessels, should 
 be merged into a single bureau. That recommendation was as follows : 
 
 CONSOLIDATION OF BUREAUS 
 
 In the opinion of the Department it would be in the interest of good business 
 organization and economy to consolidate the three Bureaus of Construction 
 and Repair, Steam Engineering, and Equipment under one head the Bureau 
 of Ships. These Bureaus have to do with the construction and fitting out of 
 vessels; in one word, the material of the ship. It is an integral work. When 
 a contract is made for the construction of a ship, it is made with one builder. 
 It is not given part to a constructor of hulls, part to a steam-engine manu- 
 facturer, and part to an outfitting firm. Whatever various trades enter into the 
 work are all under one head. This is the method of private shipyards which 
 build the largest ships and which are not left to the administration of three 
 heads between whom delicate questions of respective authority and responsi- 
 bility are liable to arise, resulting in delays and too often in friction and lack of 
 harmony of cooperation. 
 
 Each of the above Bureaus has now, during tne construction of naval vessels, 
 its separate inspectors at each yard. A consolidated bureau could, of course, 
 be run much cheaper than three bureaus, and a great saving made by a re- 
 duction of the now three separate working forces, both clerical and mechanical, 
 especially in our navy yards. Fewer naval officers would be needed, as there 
 would be but one staff instead of three, so that more officers would be available 
 for other duty. Under the present system one Bureau brings its work to the 
 point of readiness for the work of another, which is not always ready for it. 
 There is necessarily a lack of that adaptation and harmony of movement which 
 one head would secure. 
 
 If this consolidation were effected, the matter of furnishing coal and other 
 current supplies, which is now under the direction of the Bureau of Equipment, 
 could be easily transferred to the Bureau of Supplies and Accounts, and such 
 other incidental changes made as became necessary. 
 
 The foregoing suggestion is made solely with a view to an improvement in 
 departmental organization, and with the highest appreciation of the ability and 
 dutifulness with which these Bureaus have been administered under their 
 present heads. Efficient as they have been, however, their consolidation is 
 recommended, because it is believed that if consolidated under the direction of 
 any one of their present heads, or of any competent officer, that efficiency would 
 be still greater, less expense incurred, and a better business organization would 
 succeed. 
 
 The terms of office of the chiefs of the three Bureaus will all expire in a little 
 more than a year, one of those officers then going upon the retired list, and it is 
 due to them all, as an assurance that the change is recommended on systematic 
 and not personal grounds, to suggest that if made, it shall not go into effect 
 until the beginning of the fiscal year after the expiration of their said terms. 
 
 It is most interesting, in the consideration of the workings of the pres- 
 ent system, to note what he has to say in his annual report for the year 
 1900 when he renewed that recommendation. Here is what he said: 
 
ARMY AND NAVY 633 
 
 CONSOLIDATION OF BUREAUS 
 
 The recommendation heretofore made that the organization of the Navy 
 Department be simplified by the consolidation of the three Bureaus of Con- 
 struction and Repair, Steam Engineering, and Equipment is renewed. Under 
 the present system, from the inception of its design until completed and placed 
 in commission, the plans and specifications of a naval vessel are in the hands 
 of three bureaus, each with a distinct organization, each having exclusive 
 jurisdiction within certain lines, and all charged with the duty of carrying on 
 work within, but not beyond, their respective provinces, as nearly as may be 
 at the same time. 
 
 Such a system is, in practical administration, cumbrous and expensive, and 
 from its very nature tends to develop controversies respecting the scope of each 
 bureau's duties and to occasion friction, delay, and want of harmony in doing 
 whatever approaches border lines of jurisdiction. It is to the credit of the 
 officers in charge of the bureaus concerned that work upon ships now under 
 construction has been carried on without more friction; but the system itself 
 is none the less objectionable, and is a source of inconvenience, delay, largely 
 increased cost, and occasional confusion. 
 
 The present divided organization is the outgrowth of conditions which no 
 longer exist. The hull, the propelling machinery, and the articles of equip- 
 ment of a modern steamship no longer constitute simple, -distinct, and sep- 
 arable elements in construction, but, on the contrary, in their multiplicity of 
 details are so interwoven as to render embarrassing theirsupervision by three 
 sets of independent administrative officials. 
 
 The union of these three bureaus, the chief function of which is to deal with 
 the material of the ship, into one bureau, which might appropriately be called 
 the " Bureau of Ships;" the consolidation of their several corps of assistants 
 and inspectors, and the conduct of the really integral work of building and 
 equipping vessels, under the management of one responsible chief instead of 
 three chiefs, would promote the efficient and economical administration of this 
 important part of the business of the Navy Department. 
 
 A chief of bureau is practically an assistant secretary. The proposed con- 
 solidation would not only reduce three of these assistants to one, but in like 
 manner reduce the supervising, mechanical, and clerical forces in every navy 
 yard, and thus save great and unnecessary expense. At present each of these 
 bureaus in question has at each yard its separate shops, inspectors, foremen, 
 and workmen, all often doing the same kind of work. No private business is 
 run on such a wasteful and inharmonious plan. I renew the recommendation 
 in this respect of my last annual report. 
 
 Let me cite to the House one or two instances to show the compli- 
 cations arising out of the present divided organization in the Navy De- 
 partment to which Secretary Long alluded. In the installation of the 
 fire-control apparatus on a battle ship and you all understand what 
 the fire-control apparatus is ; it is, in comparison with the other elements 
 of the ship, a very simple matter it would naturally be supposed that 
 one bureau would be sufficient to install the fire-control apparatus, and 
 
634 AMERICAN FEDERAL GOVERNMENT 
 
 yet under the existing system three separate and distinct bureaus have 
 .cognizance of the installation of this apparatus on a battle ship. Again, 
 we find that the Bureau of Steam Engineering owns the steam pipes on 
 the pumps and the engines which are under the jurisdiction of the Bureau 
 of Construction and Repair. The Bureau of Steam Engineering like- 
 wise controls the deck hatches and gratings leading to the boiler and 
 engine rooms, and also that part of the hull-drainage pipes that drain 
 these compartments. Countless other instances might be cited to show 
 that the lines of authority between the different bureaus within a single 
 battle ship are mixed in bewildering confusion. These are not faults of 
 the bureau method, but they are faults of the bureau system which, in 
 its present form, can not be adjusted to suit the natural divisions in 
 shipbuilding which have come about by reason of the change from 
 wooden sailing vessels to steel steamships. 
 
 I am not one of those Members of this House who believe that he has 
 done his duty in any matter when he has pointed out the defects. It is 
 easy enough to criticise; anybody can find fault. I believe it is equally 
 a part of his duty to come forward with some remedy to correct existing 
 defects as he may find them. In my judgment, Mr. Chairman, the 
 remedy for the present situation which exists in the administration of 
 the Navy Department rests in reorganization and in the consolidation 
 of certain bureaus in that Department. 
 
 NAVAL ADMINISTRATION 1 
 
 BY T. G. ROBERTS, NAVAL CONSTRUCTOR, U. S. N. 
 
 IT is necessary to recognize, in the first place, that three separate and 
 distinct methods of administration are found within the operations of 
 the Navy Department, comprising what we understand as naval admin- 
 istration. These three divisions may be classified under the heads (i) 
 Political, (2) Military, and (3) Industrial. 
 
 The political system is represented by the head of the Navy Depart- 
 ment, who is, and ever will be, a civilian, because the spirit and essence 
 of our Government is based on a subjection of the military to the civil 
 institution. 
 
 The political administration, as above classified, is frequently referred 
 to as civil administration, which it is; but so also is industrial admin- 
 istration, and to avoid confusion, the foregoing classification will be ad- 
 hered to throughout. 
 
 Military administration refers to that under the line officers, who 
 alone are eligible to the supreme command of a ship, a squadron, or a 
 
 1 Part of a paper read before the United States Naval Institute in 1905, and reprinted 
 in the Congr. Record, April 15, 1908. 
 
ARMY AND NAVY 635 
 
 fleet. Line officer means a naval officer in the line of promotion to such 
 command. The functions are purely military, and the purely military 
 field of operations finds its most correct example on board a ship or in a 
 fleet. Shipboard administration will be considered the exact expres- 
 sion of military administration in the Navy. The strategy and directing 
 power of a fleet are included in the same definition. 
 
 By industrial administration is meant that portion engaged in the 
 production and manufacture of a ship and its accessories, which may 
 be more closely defined as those departments engaged in procuring ma- 
 terials and operating civilian mechanics in producing the ship. Navy- 
 yard administration is industrial in all that applies to workshop and 
 civil employees as found to exist in the analogous institution of a pri- 
 vate shipyard, being military only by virtue of the supreme authority 
 vested in a commandant. 
 
 (i) POLITICAL ADMINISTRATION 
 
 The Secretary of the Navy represents the political administrator. 
 Politics is our method of securing government of the people, by the 
 people, for the people. The politically successful man is one selected 
 by the majority as their representative, because of personal attributes 
 most acceptable to the people, whose actions the people believe will be 
 most agreeable to themselves concerned. He is, presumably, the em- 
 bodiment of our form of government, and to his authority the military 
 and industrial considerations must bow. 
 
 The political feature finds its expression in various ways in naval 
 administration, over and above all other considerations contemplated 
 in the military establishment as laid down in the Navy regulations. 
 If a ship must be overhauled and repaired and two navy yards desire 
 to get the work, the workmen's representatives that clamor loudest 
 usually get it, that being the will of the majority that care anything 
 about it. Within the service the opinion always holds that such matters, 
 as all others, should be- determined by the absolute merits of the case, 
 regardless of clamors. The military administrator must determine his 
 actions by merit, that being the root and foundation of his education 
 and training, and he cares little about the will of the people where his 
 position is not influenced by such a regard. A naval officer is not in 
 the best position to be a political administrator he can read from the 
 mercurial barometer an approach of a storm at sea, but he is handi- 
 capped where it comes to feeling the pulse of the people from the touch 
 of the political barometer. 
 
 Political administration finds its way into the service in shifting ships 
 and work from one station to another, in shifting personnel in like man- 
 ner, in the location of navy yards and naval stations, in appropriations 
 for new buildings and new expenditures of all kinds at the various sta- 
 
636 AMERICAN FEDERAL GOVERNMENT 
 
 tions; it determines whether vessels shall be built or repaired at navy 
 yards. In time of war political considerations divert naval vessels from 
 the fleet to patrol the coasts in the vicinity of frightened political com- 
 munities. It has given high position to political favorites and has deter- 
 mined the command of ships and squadrons. Sometimes it goes even 
 farther and influences the actions of naval boards in their duties under 
 the regulations. Boards have been known to have their recommenda- 
 tions returned for revision until they meet the political desires, or another 
 board may be called to reverse their actions, and so on until the desired 
 results are attained. This operates to promote personnel in some cases, 
 or discharge or retire it in others. It operates sometimes to increase the 
 pay of the navy-yard mechanic. Its existence has been alleged in politi- 
 cal contests against nonpartisan shipbuilders in the trials of vessels, and 
 it shows itself in various forms in the distribution of contracts for new 
 ships, and is constantly at work in the purchase and acceptance of all 
 sorts of materials for Government use. The head of a Government De- 
 partment is sensitive to the representations of the people; if he is not, 
 someone soon takes his place who is. Of course there have been abuses, 
 as in every other department of life, but a good administrator knows 
 enough not to try to reform the people or the political system of which 
 he is a part; he does his part best if he recognizes facts as they exist; 
 and he concedes to political demands, if they are logical, where it makes 
 no material difference otherwise, and where it does not interfere with the 
 object for which his institution was created. 
 
 I am not attempting to lay down rules, but merely to place an esti- 
 mate on what appears to have been the guiding features of political ad- 
 ministration from the evidences that have come to notice in the past. 
 
 Is such a political government an abuse ? Should the people rule the 
 people ? If the public's wishes be disregarded, the Government becomes 
 autocratic by definition, and how else can their wishes be made known 
 except through their representatives? If reform, who will attempt it, 
 and how ? Would the creation of a general staff, or any other sort of a 
 mechanism inside the Navy Department destroy, limit, or influence in 
 any way the politics of the head of the Department as it applies to the 
 military and industrial establishments ? It may as well be conceded, in 
 the light of history, that the political administration, whatever its good 
 or evil, will remain untrammeled as long as our form of government 
 exists. 
 
 (2) MILITARY ADMINISTRATION 
 
 Only on board a naval vessel does military discipline hold complete 
 sway. The order of the captain is the law and must be obeyed without 
 question, argument, or appeal to a higher power. The captain must 
 confine his actions to the limits prescribed by law, but inside those 
 
ARMY AND NAVY 637 
 
 limits he can cover almost any sort of overbearing conduct toward those 
 beneath him, officers and men alike. He can not strike them, or punish 
 them physically beyond the lawful limit; but he can harangue them 
 and institute such a personal bearing toward them as to punish them 
 mentally beyond degree. There is no appeal from an order, which must 
 be obeyed with alacrity whether right or wrong, and he who refuses 
 classifies his actions with the mutineers, the limit of which, in grave cases, 
 is death. He who answers back goes to prison, but he can not resign or 
 be discharged. I am merely specifying the limits in order to distinguish 
 more clearly between military and industrial administration and to show 
 that a trained military administrator is as different from an industrial as 
 from a political administrator. 
 
 Our bureau system is represented in miniature on the ship. The 
 captain represents the Bureau of Navigation, which directs his own 
 actions and the movements of the ship. Although the other bureaus 
 are represented, not one of them has any right or power of appeal that 
 would modify in the least the perfect and absolute control of the directing 
 administrative bureau and its captain in the wielding of the ship as a 
 fighting machine. In this point it differs from navy-yard administra- 
 . tion, as we shall see presently. The executive officer represents the 
 Bureau of Construction and Repair, and the ordnance, equipment, med- 
 ical, pay, and marine officers represent the corresponding bureaus. In 
 the operation of the bureau system in the use of tools, stores, etc., there 
 are no conflictions; they are used where needed indiscriminately by 
 shipboard authority or without. If one bureau's machine breaks down 
 another bureau's force repairs it, if more handy. The bureau represen- 
 tatives themselves are not expert in the lines of demarcation and cogni- 
 zance of the bureaus, a line officer representing a staff bureau, and there 
 is no provision for appeal beyond the ship if one should so desire. In 
 other words, the captain has complete control of the ship and all her ac- 
 cessories, and the bureau system divides the duties of officers into a 
 convenient distribution of the work. Military efficiency is attained by 
 drilling, innate intelligence, alacrity in obedience to orders, and the 
 good example and rigid discipline that must be maintained by the officers 
 at all hazards. Admiral Farragut laid down a military rule for all time 
 when he said to his officers: " Whatever is to be done must be done 
 quickly." Shipboard efficiency consists in preparedness and alacrity. 
 It has little to do with dollars and cents. Military economy is exer- 
 cised in taking care of the materials and avoiding waste, in about the 
 same way as one would take care of a new suit of clothes, or would eat 
 sparingly of his provisions during a long journey. It has nothing to do 
 with saving money by a judicial distribution of the laboring forces, to 
 obtain the best returns for the money expended, which forms the essence 
 of industrial administration. 
 
 On the contrary, shipboard administration contemplates expending 
 
638 * AMERICAN FEDERAL GOVERNMENT 
 
 the maximum amount of labor in order to fill up the time. Those who 
 have been to sea know the monotony of having nothing to do, which 
 tends to generate the spirit of unhappiness. Hence, the sailor's proverb 
 that the best commander keeps his crew happy by keeping them busy. 
 Happiness is healthy for the mind, labor is healthy for the body, and 
 these essentials permit of the attainment of military preparedness, 
 alertness, and efficiency. Industrial economy is a different profession. 
 It is a law of humanity that a man is most proficient in the line of his 
 ambitions. The highest ambition of a line officer is to command at sea. 
 In that position the eyes of the whole world may be turned on him in 
 war, and his name may be in every mouth. He may bring honor or dis- 
 grace to his country. He must be a specialist in the strictest sense, but 
 not a general practitioner. Besides familiarity with the methods of 
 wielding the men and the tools at his disposal, he must be familiar with 
 strategy, international law, naval history, navigation, and tactics. None 
 can afford to be an indifferent expert in these branches, for a single 
 blunder in one might lose all. No profession in civil life forms any sort 
 of analogy or comparison to that of a line officer, and it is a matter of 
 current belief that the easy habits and disciplinary notions of naval 
 training unfit an officer for civil pursuits; and it is likewise apparent 
 that civilians never have been, and can not be, eligible to the position 
 of a line officer without the necessary course of training. It requires no 
 analytical mind to discern the irreconcilable differences between indus- 
 trial and military administration. 
 
 (3) INDUSTRIAL ADMINISTRATION 
 
 The peaceful arts of the shipbuilding mechanics comprise the in- 
 dustrial features of naval administration, as is represented by a navy 
 yard. The business of such an institution is to manufacture, repair, or 
 assemble the vessel and her outfit. The production of the vessel belongs 
 purely to civil industry, being the product of the shipbuilding trades 
 under the cognizance of labor unions. The pay of a sailor is merely 
 nominal in comparison with that of the mechanical tradesman, which 
 furnishes an opening for a considerable loss of funds unless the quality 
 of administration secures the best combination in outlay of plant, in 
 the purchase and handling of materials, and, most important of all, in 
 the distribution and handling of the difficult and very expensive labor 
 that fills up the navy yards. The workmen may not be tongue-lashed, 
 nor put in the brig, but they may be discharged if the administrator has 
 a good case. 
 
 Now, let us examine the operations of the bureau system as it applies 
 to the industry of a navy yard. The local representatives of bureaus 
 comprise the corresponding departments of Construction and Repair, 
 Steam Engineering, Equipment, Yards and Docks, Ordnance, Supplies 
 
ARMY AND NAVY 639 
 
 and Accounts, and Medicine and Surgery. The Bureau of Navigation is 
 represented by the commandant. 
 
 The division of work assigned to each bureau or department is a de- 
 velopment of the natural and convenient divisions that existed in ship- 
 building when the bureaus were first formed in 1842. The original 
 Bureau of Construction, Equipment, and Repair controlled practically 
 all the industry that was required to build a ship. It included all that 
 is now represented by the three bureaus Construction and Repair, Equip- 
 ment, and Steam Engineering, the latter subdivisions having been made 
 in 1862 during the stress of war. Had the Construction Bureau not 
 been thus subdivided there would be a different tale to tell about the 
 cost of navy-yard administration to-day. But no one could have fore- 
 seen the effect at that date. The subdivisions were natural ones, inas- 
 much as the Chief Constructor before that time had an engineer as 
 assistant to look after the steam machinery of the new motive power. 
 
 The wood shipbuilder viewed with suspicion the advent of steam, 
 and the motive power of the future passed out of his hands to those who 
 were willing to master it. A ship was then a simple affair, and there 
 was no question as to where the propelling machinery left off and where 
 the ship began. The Equipment Bureau undertook to relieve the Con- 
 struction Bureau of assembling movable articles not strictly a part of 
 a ship, but corresponding more nearly to the furnishings, such as sails, 
 rigging, anchors and chains, the electrical outfit, and the like. With 
 the changes that have come about in modern shipbuilding, the steel 
 ships of to-day, with their complex machinery, have merged all pro- 
 fessions into one. The wood shipbuilder, as represented in the modern 
 shipwright, has been driven almost out of business. His cognizance 
 included the whole vessel in 1842, while now he is limited to the decks 
 and the outside sheathing, if any. The steam engineer finds himself 
 replacing his own auxiliary machinery with equipment motors, and he 
 has to tolerate rival steam engines that form essential portions of the 
 equipment and construction machinery. Likewise the Equipment 
 Bureau finds rivals with electrical machinery in the Bureaus of Steam 
 Engineering and Construction. 
 
 The original natural divisions of these three bureaus have become 
 unnatural and very complex and illogical. All three operate both steam 
 and electrical machinery, and generally throughout are trying to do 
 similar work that now falls under one profession. I shall not endeavor 
 to relate all the unreasonable subdivisions or the work in these bureaus, 
 but will cite only a few samples. As new methods have been adopted, 
 each bureau has claimed as much of the work as possible, and each head 
 of department, disagreeing, has written out his case, and all the papers 
 have gone to the Secretary of the Navy for decision. In the meantime, 
 in many instances the work has waited several months until the matter 
 was settled. The decisions have not followed any rule, but the bureau 
 
640 AMERICAN FEDERAL GOVERNMENT 
 
 in most favor at the time has generally won. If the question was referred 
 to a board composed mostly of line officers, the decision was given very 
 frequently to the line officer contestant, if there was the slightest possi- 
 ble justification for it. I would remark here that with a general staff of 
 pure line officers to pass on such questions, the bulk of industrial ad- 
 ministration would pass from the staff bureaus into the hands of the 
 military administrators, in case human nature should not unexpectedly 
 reform. To-day the department of Steam Engineering owns the steam 
 pipes of Construction pipes and engines, the deck hatches and gratings 
 and their fastenings leading to the boiler and engine rooms, and also 
 that portion of the hull drainage pipes that drain these compartments; 
 Equipment owns the dynamos, and the dynamo foundations if there are 
 any, and the railing around them if attached to these foundations. Shall 
 I go any further ? Suffice it to say, that the lines of cognizance between 
 these bureaus are more mixed up than the present Navy pay table. The 
 fault is not in the bureau method, but in the fact that the bureau system 
 has not been readjusted to suit the natural divisions of shipbuilding as 
 they exist since the steel ship has created a revolution in shipbuilding 
 methods. 
 
 Shipbuilding was originally made up of several professions, but to- 
 day it has merged into a single profession, and it not only includes the 
 production of the whole ship, but it operates the shipbuilding plant, by 
 which it controls the profit which forms the measure of efficiency in 
 industrial administration. The remedy is the simplest business propo- 
 sition in the country consolidation. There is no economy in shifting 
 cognizance from one bureau to another, as now organized; each de- 
 partment has developed according to its needs, by virtue of experience, 
 and to shift its power, plant, or shop to some other department only 
 acts to deprive the one that needs it and prevents the responsible party 
 from controlling its own profits. There is a great deal of talk about 
 consolidating the power plants of a navy yard. The idea seems to be 
 that only the power plants are duplicated. That is a very great error. 
 Everything is duplicated and multiplied. In the navy yard with which 
 the writer has been associated for the past five years there are in the 
 several departments the following shops, viz. : 
 
 Six power plants, eight machine shops, five joiner shops, five paint 
 shops, five laborers' lobbies, four blacksmith shops, four pattern shops, 
 four tin shops, four fuel-oil plants, four testing laboratories, three elec- 
 trical workshops, three copper shops, three riggers' gangs, three polish- 
 ing shops, three fuel-gas plants, three foundries, two steel-plate shops, 
 two electroplating shops, thirty-two storehouses under separate roofs, 
 fifty material fields, or piles of materials not under cover, and thirteen 
 coal sheds and bins under separate roofs. 
 
 The shops and forces of the departments being duplicated, it follows 
 that the heads of departments, and hence the departments themselves, 
 
ARMY AND NAVY 641 
 
 are pretty nearly duplicated, which is, actually, from a shipbuilder's 
 point of view, a fact. Nothing short of industrial consolidation will 
 be worth while, and the establishment should not only be consolidated, 
 but it should be divorced from the military, so to speak; that is 
 to say, the one shipbuilding department should be a unit under the 
 one shipbuilding head, responsible for the economy of the work. Our 
 navy yards would then be as in France. We are moving toward the 
 French methods. We tried the British Admiralty Board from 1779 to 
 1781, but abolished it. It was tried again from 1815 to 1842 in the 
 form of 'the Navy Commissioners, but it was again abolished as being 
 unsuitable. Every young nation tries the British Admiralty method. 
 It suits England for reasons purely English. The posts of honor and 
 command are kept in the aristocracy for the benefit of the younger sons 
 of the nobility. The line of the British navy is sought by them as a pro- 
 fession. The "Board of Commissioners for the Execution of the Office 
 of Lord High Admiral of His Britannic Majesty's Navy," belongs to a 
 privileged class. In this country we expect a man to be responsible 
 only for what he knows ; our lords of industry are the engineering no- 
 bility who have won their titles by actual achievement in their own 
 particular line. 
 
 We have left the British Admiralty method far behind long ago and 
 are approaching the French system. We hear of a general staff that 
 is what we sometimes erroneously translate the French etat-major to 
 mean. We hear that we need a "bureau of personnel" and a "bureau 
 of materiel." That is all French in name and method, and all our own 
 bureaus are adopted and named after the French. Then let us have the 
 French "bureau of materiel" precisely as it exists, which consolidates all 
 industrial shops and works under the one head of "naval construction"; 
 its directing "personnel" is composed of "Ingenieurs des constructions 
 navales." It includes also all ordnance workshops and fittings in navy 
 yards. Unlike our ordnance, theirs is manufactured by civil industry 
 and shipped to navy yards, where it is handled and installed by the de- 
 partment of naval constructions. French navy-yard industry is confined 
 to the one department, which combines every shop and tradesman under 
 a single head, and that not a military head, nor a number of mixed 
 military and industrial heads, but rather an industrial head who is com- 
 petent to take the responsibility for the things he knows, the things of 
 his special education and training, the things of his pride and ambition, 
 the only things by virtue of which eminent ability may permit him to 
 rise to any sort of distinction. Not that he needs distinction and should 
 be allowed to attain it, but that the human composition is such that the 
 best efficiency can not be attained by any other inducements in a system 
 where hope of reward must be the stimulus; where neither capital, 
 salary, nor interest, from a personal investment, are at stake. "Indi- 
 vidual responsibility reposing in the head who instructed in the things 
 
 41 
 
642 AMERICAN FEDERAL GOVERNMENT 
 
 he is responsible for is at the root of efficiency." Our bureau method is 
 preeminently such a method, and is the most perfect yet devised, but 
 has become uneconomical for the plain reason that the system of the 
 bureaus has not been readjusted to suit the natural subdivisions of the 
 present times, until the supposedly " sharply defined duties and respon- 
 sibilities of overspecialized bureaus," to adopt Captain Mahan's diction, 
 have become interlaced, interwoven, and intertangled to such an extent 
 as to exist only in theory and imagination, but have no semblance in 
 reality. 
 
 The Bureaus of Construction and Repair, Steam Engineering, Equip- 
 ment, and Yards and Docks should be combined under the heading of 
 Bureau of Naval Construction; the Bureaus of Ordnance, Supplies and 
 Accounts, and Medicine and Surgery to remain practically as at pres- 
 ent; excepting that, as in France, the Bureau of Naval Construction 
 should have cognizance of its own materials so as to control the economy 
 in their purchase and handling. 
 
 The Bureau of Ordnance should remain as now, excepting that its 
 duties should end with the manufacture and shipment of ordnance and 
 armor; its plans should be limited to these items and should not include 
 any portion of the vessel to which they are applied. This is in order to 
 unify the manufacture of plans at the Navy Department and the plans 
 and building work at shipyards as the nearest approximate measure of 
 economy. Strictly speaking, ordnance and armor belong to the broad 
 Division of Materiel, along with the rest of the ship, by definition, and 
 by the example of the Navy furnishing us with the term, and hence, logi- 
 cally, should be combined with the other bureaus of materiel. In that 
 event it would become advisable to detail line officers as inspectors, 
 since in this country, unlike some other countries, naval ordnance has 
 been developed and manufactured almost purely by line officers, and it 
 would not be advantageous to take it out of their hands. This renders 
 it less advisable to include the Bureau of Ordnance in the consolidation ; 
 but since the ordnance and armor factories are not situated so as to 
 duplicate work of any kind, a result almost equal to consolidation will 
 be obtained by consolidating the designs and building of ship and ma- 
 chinery, exclusive only of ordnance and armor, under the single industrial 
 bureau. This arrangement need not exclude the inspector of ordnance 
 when guns are being installed on shipboard, but should require his pres- 
 ence, as in France. 
 
 There is sufficient evidence to believe that the Bureau of Navigation 
 has grown too large and that it should be separated into two bureaus, 
 the new one to be called the "Bureau of Personnel." This bureau should 
 take over the items suggested by its name, and other kindred duties 
 that will leave only the items concerning strategy to the Bureau of 
 Navigation. The latter bureau would retain, of course, the Intelli- 
 gence Office, the War College, the direction of the fleet, war plans, and 
 
ARMY AND NAVY 643 
 
 all those functions which go to make up the sum total of "the wielding 
 of the Navy as a weapon" ; and besides would inherit, from the defunct 
 bureaus, the Naval Observatory, coaling stations, other naval stations, 
 and in fact everything else except navy yards, stations, and docks en- 
 gaged in the building or repair of vessels. I merely suggest, not advise, 
 the latter subdivision. It can not, in any wise, affect industrial ad- 
 ministration. 
 
 The present necessity is the unification of navy-yard industry, so that 
 it can not duplicate itself, and so that naval industrial administration 
 may operate in the full benefit of modern methods as developed with 
 such eminent success in the private industries of this country. All power 
 plants, shops, heads of departments, assistants, draftsmen, clerks, fore- 
 men, leading men, and mechanics may be combined into one set of each 
 class or kind. The result would effect a reduction of the number of 
 buildings in use, the working forces, and the total cost of the establish- 
 ment by an amount that would be startling to predict. The military 
 authority should remain supreme in a commandant, but the industrial 
 establishment, being in subjection to the military, need not be sub- 
 divided into a number of mixed administrations interwoven as now, 
 but combined and divorced as a pure industrial unit. 
 
 EVILS TO BE CURED 
 
 Of the present evils of greatest moment is the unsystematic method of 
 laying out new yard plants and the distribution of shop buildings among 
 the various departments. The sites for the plants themselves are se- 
 lected, usually, by people having an eye only to the depth of water, 
 facilities for military protection, and the nature of the soil. The most 
 important economic industrial consideration contained in the contour 
 of the site and water frontage and in the economic arrangement of 
 shops have seemingly had no part whatever in the establishment of our 
 navy-yard plants. 
 
 Economy in arrangement, whereby labor and material travel by the 
 shortest route between shop and ship, is an asset which means a goodly 
 percentage in profit as long as the plant endures. A steel plate that will 
 travel 300 yards from plate rack to its place on the ship's side in a poorly 
 arranged plant may travel only a hundred yards in its course from ma- 
 chine to machine in a well-arranged plant. The reduction in cost of 
 handling is very appreciable ; and if this be applied to all the multitude 
 of articles that go to complete a modern ship, the difference in cost is 
 considerable. The same condition obtains with labor, which is more 
 important, because more expensive. The shipfitting and joiner shops 
 belong nearest the building slips and fitting-out berths, so that the class 
 of men that fit and refit from shop to ship will have to walk the shortest 
 distance ; for the similar reason that the engine and boiler shops would be 
 
644 AMERICAN FEDERAL GOVERNMENT 
 
 at the rear, as near the fitting-out berths as possible, since the engines 
 and boilers may be built complete in the shops, and when ready may 
 be hauled any distance by rail to the fitting-out berths. Every shop has 
 a logical location in a shipyard, yet no shop can have its proper place 
 by our methods. Each department seeks the main business street as 
 centrally located as possible. Sites and shops are let in a haphazard 
 way, and, even if determined by a board, the most influential member 
 gets the most central location. In the navy yard of my most intimate 
 acquaintance the distance of the farthest buildings from the power 
 house of one department is so great that the cost of the electric-power 
 wires is something extraordinary; one department is widely separated 
 into two large halves by another department lying between, and the 
 joiner shop is farthest away from slips and berths, while the engine and 
 boiler shops are nearest the slips and docks, just the reverse of where 
 they ought to be. Yet the losses on first cost and circuitousness must 
 appear in the figures of cost as long as the plant exists. 
 
 Another great source of loss lies in the lack of harmony that usually 
 exists between the heads of departments. There are two sorts of inter- 
 department administration; one where controversy is rife, another 
 where obliging tact prevails. It may be observed here, incidentally, 
 that the one who willfully enters into a squabble is a downright enemy 
 to economy, for when at their best, heads of departments are far enough 
 apart by the very nature of things. One department finishes its work to 
 where another begins, and then endeavors to get the other department 
 to supply the connecting link. The second department may have its 
 men on a more pressing job, or may not even have obtained funds for 
 the work in hand. The delay in connecting may be anywhere from an 
 hour to a month. Worse than that has happened. These misconnec- 
 tions are very frequent, due to the simple fact that the various heads 
 of departments have different trains of thought, and one can not divine 
 what the other intends to do until the time arrives. The great effort of 
 working ahead of time in all the mass of details is not to be expected 
 from men whose capital or income does not bind them to it, and whose 
 salary depends on the limits of the single duties of their own depart- 
 ment as laid down in the Navy regulations. Unintentional misconnec- 
 tions between departments are the source of the greatest loss of time 
 and money in the operation of the plants as they now stand. One de- 
 partment owns a crane, a second department is using it, while a third 
 department waits for it. The time of making connections, getting per- 
 mission, and waiting may keep a whole gang of men out of work for 
 some time. One department builds a shop, the second department 
 buys an elevator for it ; the original plans made to fit are changed by 
 one department without the knowledge of the other, and the elevator 
 is found not to suit the shaft, so the floor just completed must be cut 
 out again. 
 
ARMY AND NAVY 645 
 
 A load of steel plates arrives and must be immediately removed by 
 one department from the receiving station. This causes one handling. 
 Another department has the list of plates, what they are and who they 
 are for, and retains it sometimes a week or two. When the list arrives 
 the third department has to inspect them, one by one, to examine the 
 inspector's mark on each. The first department does not find it con- 
 venient to handle them until the broken crane of the fourth department 
 is mended, to avoid rehandling them twice again. At the end of some 
 months the inspection is completed and the contractor has lost several 
 months' interest on his money. 
 
 One department buys a lot of materials that it thinks the other depart- 
 ment will need, and owing to a miscalculation of the other department's 
 habits the goods lie in store for an indefinite time. Two departments 
 disagree on a matter touching both. The first one begins the work and 
 the other writes a letter to the commandant, who refers it to the first 
 one for his arguments. If the work is important the commandant author- 
 izes the one he thinks is right, and forwards the papers to the Assistant 
 Secretary of the Navy for a decision to guide in future cases. If unim- 
 portant, the work may await the decision. Sometimes friction arises 
 between two departments ; they begin to make caustic remarks and in- 
 dorsements to each other. The clerks, foremen, and workmen soon 
 catch it, and there is a regular blockade of the interlying work between 
 the two. When this happens, lords of old in feudal castles were not in 
 more impregnable fortresses than are the two belligerent heads. The 
 warf are is waged silently by mutual understanding ; each puts the other 
 out as much as possible, and there is no power on earth to stop them 
 except by mutual consent. The commandant seldom has evidence of its 
 existence. If anything comes up in correspondence he settles the point 
 at issue ; if one reports the other verbally or by letter, the other always 
 has a plausible reason to offer. It is simply impossible for one to make 
 the other come to time, and reports are liable to cut both ways, like a 
 two-edged sword, and are out of fashion. 
 
 A dry dock belongs to one department, also its operating power plant. 
 The operation of it belongs to the second department, and if the engines 
 and boilers become old, dilapidated, and uneconomical, needing to be 
 repaired or replaced, the first department must obtain the appropria- 
 tions and make the repairs, if it approves the changes; its uninterested 
 opinion governs, and in the meantime the second department bears on 
 its books the unwilling losses from uneconomical operation, sometimes 
 for a period of years. 
 
 The most unnatural scope of bureau cognizance is exemplified in the 
 modern floating dry dock which falls under the bureau bearing a similar 
 name, due undoubtedly to the circumstance of a name inherited from 
 the graving dock. The design and building of a floating dock belongs 
 purely to naval architecture (and not to civil engineering) ; yet the Gov- 
 
646 AMERICAN FEDERAL GOVERNMENT 
 
 ernment fails to utilize its own naval architects in such work, but pays 
 the premiums, going to the naval architects of civil industry. 
 
 Each department is not complete in itself, but may require another 
 department to do work it can not perform. One having no foundry may 
 make requisition for the one with foundry to make its castings. The 
 first department must furnish the materials, while the other department 
 does the work and transfers back the charges so the labor may be paid 
 from the appropriations of the department having cognizance of the 
 work. Thus the cost appears against the first department, whereas it 
 really had no hand in controlling the amount, which may be exorbitant. 
 This occurs constantly, and it is evident the total expense account of a 
 department includes a portion made outside of its control and for whose 
 excess it can not be responsible. Another feature is illustrated in the 
 effect of shifting cognizance from one department to another. Once 
 the Government decided to economize by centralizing the lighting plants 
 into a single department. The result was the department that needed 
 light on ship work was supplied with inadequate lights, the ancient 
 practice of using candles grew to an unnecessary extent, and hundreds 
 of men have stood many hours in the dark, glad at the opportunity for 
 a rest. The authority shifting the lighting from the department that 
 controlled its cost and operation for its own work could not have under- 
 stood how its details were going to work out. With all power plants 
 shifted and consolidated under one department as the bureaus are now 
 adjusted, the operation and cost of power would be beyond the control 
 of the department using it, but the cost would be charged against that 
 department, which would be held responsible for it notwithstanding, 
 since this cost must have been included in the estimates and appears 
 on the books against it. Such reform as that is truly "straining at a 
 gnat and swallowing a camel." 
 
 Another illustration of interdepartmental methods may be shown by 
 the following example : An appropriation is made to build a ship and is 
 apportioned at Washington between the three bureaus producing the 
 hull, machinery, and equipment. The department building the hull 
 must be responsible for its cost. Incidentally, the building slip and 
 launching ways must be prepared. A fourth department, having no 
 allotment, must drive the piles by virtue of its cognizance as determined 
 in the Navy regulations. The hull department must require the piles 
 to be driven by the fourth department, and the latter determines all 
 features included in the cost. The pile-driving department answers to 
 nobody for expense, being the supreme judge of all matters touching its 
 technical duties, while the cost is transferred back to the hull depart- 
 ment, who must answer for it, though having no command over it. This 
 requires the hull department to detail an inspector to watch the pile 
 
ARMY AND NAVY 647 
 
 department to determine whether the men charged to the work have 
 actually been present and properly engaged on the work as paid for. 
 No regular inspectors having been provided for such work, this inspection 
 is delegated to someone who is most handy ; but only on large work of 
 importance can inspection be employed, for there is so much small work 
 going on of a similar character that it is impossible to anticipate it or 
 to check it up after it is done ; for in some cases where such charges 
 have been transferred it has been found that men so charged for a whole 
 day may have been engaged on the work only an hour, or perhaps a 
 few of them may only have handled some of the material in the shops 
 or may have done nothing at all on the work. This result may be quite 
 unintentional and due to the methods of preparing accounts; but I 
 shall not descend into those minutiae. A day never passes but what 
 every department transfers accounts of work done for the other depart- 
 ments, and they are of such varied and irregular character that practi- 
 cally no one can be held responsible for their correctness, much less for 
 the economy exercised in producing them. The same is true of work 
 within the cognizance of one department which has not the shops to do 
 it with and must request another department to do it, with the same 
 transferring of accounts and uncertainty of costs. 
 
 Is this evidence enough, or shall other instances be cited? How 
 should it be remedied? 
 
 Shall the commandant be vested with authority to violate the Navy 
 regulations defining bureau cognizance, or shall he be permitted to vio- 
 late the appropriation act and charge the work to the most convenient 
 appropriations, to avoid the paper and other evils? If so, will some- 
 one venture to explain in what features will navy-yard administration 
 be benefited thereby? 
 
 If not that, then how will a General Staff, composed of military ad- 
 ministrators, line officers only, interposed between the present bureaus 
 and the Secretary of the Navy, ameliorate the situation ? 
 
 There is no possible solution other than consolidation. 
 
 At the moment of this writing, out of a yard force of 1,426 workmen 
 at the yard I have in mind, 761 of them belong to the construction and 
 repair department and 665 to all other departments combined. At all 
 navy yards in full operation the construction and repair department 
 force is usually greater than all the others combined, and always has been. 
 The reason is because navy yards exist principally for the construction 
 and repair of ships. To consolidate the whole is not far to go. 
 
 Consolidation would cure also the spasmodic economy evil : One de- 
 partment has no money to do absolutely necessary work, while another 
 department can not find enough work to expend all its funds ; one can 
 obtain all the material it needs, another has to take what it can get; 
 one can supply motors for all its power on shipboard, another can not 
 afford generators to give the crew electric lights; one can supply ma- 
 
648 AMERICAN FEDERAL GOVERNMENT 
 
 hogany furniture for every need, another can not replace an article of 
 furniture that falls to pieces from old age; one is worked to the limit 
 of mental and bodily strain to reduce the costs, another rocks along 
 easily, waiting for the quitting bell to ring. One wastes what the other 
 saves. 
 
 One of the most expensive luxuries indulged in by the Government 
 is a haphazard administrator a merely accomplished officer, whose 
 only necessity is to know enough to keep out of trouble, and perhaps, 
 after some experience, to accumulate enough data to engage in a con- 
 troversy. He is putty in the hands of his foremen. A ship arrives to 
 be overhauled. The foremen make his estimates for him, and in so 
 doing they determine the limits of the estimates. Shall this work be 
 repaired or renewed? The foreman says it must be made new, with 
 suitable gestures. The foreman's judgment usually governs the totals 
 of the estimates. One who is not in a position to know better than his 
 foremen must retreat when the latter present arguments which he knows 
 not how to refute. Likewise the foremen determine the actual limits 
 of the work undertaken, which may overrun the estimates. Foremen 
 are from among the workmen, who are their friends and companions, 
 and it is but natural to look out for new work and hold fast to that in 
 hand. Otherwise it means discharges for the tradesmen, which is not 
 a popular idea among them. Usually when an old ship gets safely moored 
 alongside a navy yard for a general overhauling she may bid farewell 
 to the world 'until there is other work in sight. 
 
 One must know more than his foremen and have the will power of 
 his convictions in order to be able to limit the work to its proper amount 
 and cost, and he must be very energetic and diplomatic in exemplifying 
 his superiority by a vigorous line of action. When several hundred ex- 
 pensive mechanics are engaged on a single ship, at a cost of several hun- 
 dred dollars a day, more money can be sunk in shorter time than in 
 any other way at a navy yard, especially if the workmen are holding 
 on to the job like grim death, with no other work in sight, with a figure- 
 head in charge of the department. If the electric lights go out and the 
 men stand idle for an hour, that is of little consequence where the work 
 of repairs may be drawn out for several months without half trying. 
 
 Recently the captain of a ship forwarded to Washington a letter ac- 
 companied by a sample copy of each of the different bureaus' blank 
 forms for survey, his contention being that all these forms should be 
 reduced to a single one, applying to all bureaus alike. The stores be- 
 longing to one bureau must be included on a separate form supplied by 
 that bureau, and the bureaus' forms differ on account of the differences 
 of the methods and usages of the bureaus themselves. The consolida- 
 tion of the bureaus handling material would reduce these forms to unity, 
 and thus ameliorate a number of kindred inconveniences. 
 
 Another evil which combination would cure is to be found in the 
 
ARMY AND NAVY 649 
 
 prevention of improvements to shipboard machinery where such im- 
 provement would transfer its cognizance to another bureau. Thus, 
 steam auxiliaries have refused, at times, for such a reason to give way 
 to motors, long after the auxiliary steam engine stands discredited 
 everywhere else. The limit of bureau cognizance influences and in- 
 jures the design of a ship in various details, and stands in the way of 
 many improvements. 
 
 Likewise, no one may encompass, and be responsible for, the design 
 of a ship as a whole. The art of shipbuilding is amply provided for 
 in point of quality of workmanship, for where a poor job of work occurs 
 the person who did it can always be definitely located ; but the science of 
 shipbuilding has no connecting link provided to unit the interdependent 
 functions governing the mobility of a ship. The speed, vibrations, coal 
 consumption, radius of action, economy of power, water consumption, 
 and horsepower of a ship depend upon three separate and interrelated 
 things, viz., the model, the propeller, and the engines. On the model 
 depend the speed, vibrations, wake coefficient, bow and stern waves, and 
 horsepower. The functions of the propeller influence and depend upon 
 the model, wake coefficient, speed, revolutions, slip, vibrations, depth 
 of water, coal and water consumption, radius of action, indicated horse- 
 power, and economy of operation. On the engines depend the speed, 
 vibrations, horsepower, coal and water consumption, revolutions, radius 
 of action, and economy of operation. The bureau that designs the hull 
 has no "say" with respect to the propeller and engines, and the bureau 
 that designs the latter has no say about the hull ; so that no competent 
 person is provided for, or permitted, by the Government to design these 
 three component parts, or to adjust them to secure the best results, or 
 to locate the errors in the completed vessel. 
 
 If a new ship fails to attain the desired speed, it may be due to the 
 insufficient horsepower or inefficient propeller of one bureau, or to the 
 lines of hull, foul bottom, displacement, trim, or lack of depth of water 
 at trial of another bureau's consideration. If there are excessive vibra- 
 tions it may be due to an unbalanced engine, an improperly designed 
 propeller, or a wrong location of the engines with respect to the hull's 
 nodes of vibration of one bureau's cognizance. If the vessel is uneco- 
 nomical and has a large coal and water consumption and a small radius 
 of action, it may be due to a foul bottom, wrong propeller, excessive 
 steam consumption of engines, or inefficient boilers. There is no one 
 in a position to locate the fault and denote whether it belong to one 
 bureau or the other, nor is anyone in a position to profit by the experi- 
 ence and correct future designs. There is greater reason to combine 
 the design of the whole ship under one head than to combine the two 
 departments building it. A ship is too small to separate its design or 
 its building under any but one head. It may have been necessary forty- 
 two years ago when the shipwright knew nothing of steam or electricity 
 
650 AMERICAN FEDERAL GOVERNMENT 
 
 and the separate professions had to be employed to obtain the whole, 
 but at this epoch when a war ship has merged into a machinery plant 
 where hull, engines, boilers, dynamos, and all the other fittings are 
 formed into shape by the same or similar machinery from iron, steel, 
 brass, and copper by the same class of mechanics, there no longer re- 
 mains an excuse for unnatural subdivisions descended from the olden 
 times. The whole field of the shipbuilding profession to-day is not more 
 than a specialized branch of mechanical engineering steam engines, 
 boilers, electricity, and naval architecture. Not even so diversified as 
 the mechanical engineering of commerce, which encompasses the broad 
 field covered by the great variety and differences in machinery, plants, 
 and methods employed in the private industries of the country, but 
 merely the comparatively narrow field of mechanical engineering ap- 
 plying to a shipyard plant only, and the architecture of naval vessels 
 and machinery only; merely the same profession now covered by the 
 curriculum of a single school and encompassed by a single diploma. 
 There is no real barrier to the achievement of modern methods in our 
 tape-ridden navy yards. 
 
XII 
 THE AMERICAN FOREIGN SERVICE 
 
 [The growth of the national interest on the part of the United States in 
 Foreign affairs has been accompanied with a desire to improve our foreign 
 service especially by making the consular and diplomatic service a more satis- 
 factory and continuous career. This policy is discussed by Mr. Huntington 
 Wilson, now third assistant secretary of state, and in the discussions between 
 Mr. Root and certain senators in a committee hearing. The article by Judge 
 Francis C. Lowell upon American diplomacy brings out the advantage which 
 the United States has derived through being represented in foreign affairs by 
 men who, while they had not passed through a continuous diplomatic career, 
 were representative of their country in the sense of being personages of na- 
 tional reputation and importance.] 
 
 THE AMERICAN FOREIGN SERVICE 1 
 
 BY HUNTINGTON WILSON 2 
 
 THERE is evident a growing sentiment among Americans in favor of 
 reorganizing and improving the foreign service, diplomatic and consular, 
 and placing it upon a stable basis. Indeed, this feeling has become so 
 general and so strong that but for our extreme conservatism something 
 would have been done in that direction before the present time. 
 
 The diplomatic service is the machinery by which the relations of our 
 Government with other Governments are carried on. It is the spokes- 
 man of our policies in the council of the nations; the channel through 
 which flows peace or war. It is the eyes and ears of our Government 
 in our foreign affairs ; and it is the every-day means of attending to our 
 rights and obligations towards other Governments and peoples. A 
 hermit nation needs no diplomacy; but once a nation abandons isola- 
 tion, the efficiency of its diplomacy is a matter of serious concern to 
 every citizen. 
 
 The consular service is the machinery for carrying on, improving, 
 and increasing foreign commerce. First, there is an enormous amount 
 of routine business. For all goods imported into the United States 
 invoices must be authenticated at our consulates at the ports of export 
 or places of original shipment. Consulates are the custodians of the 
 
 1 From the Outlook, March 3, 1906. Reprinted by permission. 
 
 2 Secretary of Legation of the United States at Tokyo. 
 
 651 
 
652 AMERICAN FEDERAL GOVERNMENT 
 
 ship's papers of American vessels while at ports within their districts. 
 They discharge sailors, assist destitute or sick seamen, adjust difficulties 
 between ship's captains and their crews, and generally extend the con- 
 trol of the home Government over the merchant marine in foreign 
 ports. Marriages of Americans in foreign countries must be witnessed 
 by the Consul. Deceased Americans' estates in foreign lands are, to a 
 degree varying in different countries, under consular protection. Deeds, 
 powers of attorney, protests, affidavits, patent applications, and other 
 instruments executed abroad to be effective in the United States, are 
 attested at the consulates. Such are the ordinary administrative and 
 notarial consular duties. In those countries where extraterritoriality is 
 in force the consular officers exercise a much wider administrative func- 
 tion. There the American Consular Court is the only forum in which 
 an American can be pursued by civil or criminal law. 
 
 After giving some idea of the variety and responsibility of the consular 
 function, we come to what is to-day the all-important object of that ser- 
 vice. That is, the extension and increase of American business by open- 
 ing up, widening, and developing fields for our export trade. A consular 
 district generally comprises all that part of the country in which a given 
 consulate is situated which is nearer to it than to any other American 
 consulate. It is the duty of the consul to make a deep and special study 
 of the industrial and mercantile conditions existing in his district. He 
 must know what the country needs or would take in raw materials, in 
 commodities, and in manufactured articles. He should learn how these 
 needs are being supplied, with particular attention to those of them which 
 the American producer farmer, miner, manufacturer, or merchant 
 might supply. He should investigate and report as to whether the 
 American import could not, by a change in form or a variation in 
 manufacture, by a different method of packing, by more convenient 
 accommodation in payment, or in any other way, be brought into greater 
 demand and American trade be thus increased. 
 
 Each consular district may reveal a peculiar phase of the general im- 
 port possibilities of a country. Hence, general reports are made by an 
 official who looks over the field as a whole. These reports are made at 
 consulates-general, and sometimes also at embassies and legations. Of 
 course the capital of a country affords the best facilities for obtaining 
 from official sources information bearing on trade. Also, in some coun- 
 tries government contracts are an important item in the competition for 
 import orders. Therefore it may be wise for us, as some European 
 Governments have done, to appoint commercial attaches to some of 
 our embassies and legations. 
 
 Our consular service, then, exists to facilitate and promote the material 
 and personal interests of the American people in foreign countries. Our 
 diplomatic service adds a care for these same interests to its duty to pro- 
 tect and further America's political interests in the world. 
 
THE AMERICAN FOREIGN SERVICE 653 
 
 The Department of State is charged with the duty of making the diplo- 
 matic and consular services of the greatest possible use to the Govern- 
 ment and people. It is not generally realized how large a number of 
 officers the State Department has under it in the service abroad, nor how 
 vast and varied is the volume of its business. It has a personnel smaller 
 and more poorly paid than that of the Foreign Office of Great Britain; 
 but, besides being the American Foreign Office, it has a number of other 
 duties superadded. The Secretary of State is keeper of the seal of the 
 United States. He publishes the Federal laws of the land. Contentious 
 matters between foreigners and the State sovereignties of the Union at 
 times give rise to questions between those governments and the govern- 
 ments of foreign countries. All these have to be settled by elaborate 
 domestic correspondence between the State Department and the Gov- 
 ernors of our States, other departments, and various officials. So that 
 functions corresponding in other countries to such offices as Keeper 
 of the Seal, Chancellor of the Empire, etc., devolve upon the one Depart- 
 ment. What with our new colonial possessions, it seems likely that the 
 scope of the State Department's work may before long be still further 
 extended. Yet the Department of State has a very small personnel and 
 very small appropriations. The wonder is how its handful of officials 
 acquit themselves so well in grappling with so enormous a volume of 
 business. Certainly high praise is due them. 
 
 The fact is that all three components of the foreign service, that is, 
 the Department of State and the diplomatic and consular services under 
 it, were founded long ago on a small scale, just after our emergence from 
 colonial days. They can never catch up with the country's present needs 
 unless the will of the people express itself through Congress in the form 
 of the required legislation, and Congress take a deeper interest in the 
 work of the foreign service. 
 
 This brings me to one of the most distressing difficulties of our system. 
 I refer to the lack of any constituted channel of communication for keep- 
 ing Congress and the foreign service in sympathetic touch and effective 
 cooperation. In other countries this undoubted need is supplied by a 
 parliamentary secretary ; or the Minister for Foreign Affairs speaks on 
 the floor of the House. With us there are the President's occasional 
 messages. Congress sometimes calls for correspondence when some 
 question has become acute. Or, suppose a Senator or a Representative 
 or an official of the State Department to be greatly interested in a piece 
 of legislation touching foreign affairs, or in a treaty to be negotiated; 
 he may by personal effort have a number of conversations which will 
 greatly help both the Senate or Congress and the Department. But 
 there is no sufficiently continuous keeping in touch between the Senate, 
 the House, their committees, and the State Department ; and the matter 
 is too important not to be thoroughly provided for. Why should not an 
 Assistant Secretary of State be charged with this duty? 
 
654 AMERICAN FEDERAL GOVERNMENT 
 
 Because of the heterogeneity of its business and the numerical inade- 
 quacy of its personnel; the State Department has been irreverently com- 
 pared to the former Chinese Tsungli-Yamen. Our diplomatic and 
 consular services have been, with less irreverence and more truth, called 
 the " catch-as-catch-can system." There is enough truth in this pessi- 
 mism to suggest that there is much room for improvement, and that the 
 time is ripe and the way open for framing and putting into operation 
 an ideal foreign service. 
 
 The Department needs a larger personnel to do its great intellectual 
 work, and a more logical division of work. At present, in the Diplo- 
 matic Bureau the countries of the earth are apportioned for working 
 purposes alphabetically. .Yet it cannot be said that a knowledge of 
 Cuba and Costa Rica is particularly useful to the men who must study 
 the intricacies of Chinese policy. The Diplomatic Bureau should be 
 divided into sections on some politico-geographical basis of reason. 
 Several new bureaus and sections should be added. And, as said before, 
 some official should be charged with keeping the Department in touch 
 with the whole Congress on legislation respecting foreign affairs, and 
 with the Senate on treaty matters. 
 
 The reform of first necessity is the extinction of the " spoils system" 
 in filling offices in the foreign service. Here civil service is absolutely 
 indispensable ; but the application of it requires very careful working out. 
 
 Inefficiency in the foreign service may be divided, according to cause, 
 into two classes. The first is inefficiency due to lack of natural qualifi- 
 cations, to inadequate professional education, and to want of experience. 
 These are the vices of our unsystematized service. The zeal of a man 
 trying to do a difficult thing quite new to him is sometimes its saving 
 grace. The second is inefficiency arising from apathy and indifference. 
 This is the vice of a thoroughgoing, closed civil service. Our problem is 
 how to get the natural qualifications, the special education, and the ex- 
 perience, and at the same time to inspire zeal in the service. 
 
 Examinations will insure the special knowledge, a permanent service 
 will supply the experience, promotion for meritorious work will secure 
 the zeal. How are we to obtain the best men? Every college man 
 knows that the men who pass the highest examinations are by no means 
 always the ablest men in the class. Especially in diplomacy, a number 
 of very intangible qualities are wanted. Tact, address, quick perception, 
 an analytical mind, balance, and self-control are some of the natural 
 qualities a good diplomatist has. These should therefore be sought in 
 the young candidates for the service, and obviously they can not be de- 
 tected by a written examination. 
 
 A famous Russian Minister for Foreign Affairs emphasized the indu- 
 bitable importance of this personal element. It was his custom to have 
 all the candidates who had successfully passed the diplomatic service 
 examination call upon him next day. He then selected from among 
 
THE AMERICAN FOREIGN SERVICE 655 
 
 them the candidates to put into the service; and he is recorded as say- 
 ing that his decision was based rather upon the impression each candi- 
 date personally made on him during the call than upon the relative 
 merits of their examination papers. 
 
 Why should not the Secretary of State, perhaps assisted by a small 
 board, select from among the successful candidates those to be put into 
 the service after the examinations each year the choice to be made after 
 an informal and verbal examination of the men who had successfully 
 passed the main written one? 
 
 Now that the days of the telegraph have made the envoy rather his 
 Government's spokesman and advocate than its plenipotentiary states- 
 man, some people too greatly minimize his duties. Surely it behooves us, 
 as a practical people, to have for our Government the best possible 
 spokesmen and advocates. In private life his personal abilities leave 
 one advocate in the law to starve, while another's bring him a huge 
 income. Success or failure in the Government's foreign affairs depends 
 enormously much more than people realize upon the skill or the 
 bungling of the Government's advocates abroad. And these are its 
 diplomatic representatives. 
 
 For efficiency in a consular officer the personal factor presents some- 
 what fewer difficulties, yet it is questionable whether an examination 
 should be the sole criterion for the admission of men eligible to all grades. 
 Although the two services have a number of things in common, and what 
 is true of the one is often to some extent true of the other, what next 
 follows applies particularly to the diplomatic branch. 
 
 A charge which may be brought against an organized foreign service 
 in which men spend their lives, except for occasional leaves of absence in 
 going from post to post in foreign countries, is that they sometimes lose 
 touch with the ideas of their own country. They are too long away from 
 home. There is, however, a ready means of removing this danger. 
 
 The successful candidates for the service should first pass a year or 
 more as clerks in the State Department, learning, from the big end, 
 the practical work of their profession. These young men would be 
 distributed in the bureaus and sections where the work would teach 
 them most about their future duties, whether consular or diplomatic, 
 and would be required to familiarize themselves with the general work 
 of the Department. 
 
 Next, these clerks would be sent abroad to serve as attaches at embas- 
 sies or legations, or as clerks in consulates, this depending upon which 
 service they had been examined for and entered. Later, they would be 
 transferred from one post to another, and, if they did good work, gradu- 
 ally promoted. In their respective services they would become third 
 secretaries of embassy or legation, second secretaries, secretaries, and 
 so on; and, in the consular service, higher grades of clerks, consular 
 agents, vice and deputy consuls, consuls, consuls-general. 
 
656 AMERICAN FEDERAL 'GOVERNMENT 
 
 In connection with the regular diplomatic and consular service exami- 
 nations there should be examinations for positions as student interpreters. 
 A few years ago student interpreters were attached to our legation at 
 Peking, and that was an admirable innovation. It should be extended, 
 however, at least to our legation in Japan, and perhaps also to that in 
 Turkey. The written language is practically the same in China, Japan, 
 and Korea. These student interpreters, after an apprenticeship in the 
 State Department, would be sent out and attached to the legations in 
 the Far East. There they would spend several years in mastering the 
 difficulties of the Oriental languages. After that they would be pre- 
 pared to join the staffs of the consulates in China, Japan, and Korea 
 as clerks, and so enter on a career in the Oriental consular service. The 
 interpreters of our legations and their assistants would also be drawn 
 from this body. 
 
 Now we come to the above-mentioned safeguard against a tendency 
 to what may be loosely called expatriation. The plan which follows 
 is most of all desirable because of the great benefits it carries with it. 
 
 It is difficult to gainsay that a man can do better work in the service 
 abroad if he has first served in the Department at Washington. It also 
 seems evident that it would be useful to have in the Department men 
 who had made recent special studies of the political and trade conditions 
 in various foreign countries. The suggestion, then, is that a mobility 
 and interchange of posts be established, to a certain extent, between the 
 Department of State and the diplomatic service, and perhaps also, in 
 certain bureaus and sections, between the Department and the consular 
 service. A parity of grade could be fixed between the posts in the De- 
 partment and the posts abroad. For example, the different grades of 
 clerks, the chiefs of section, the chiefs of bureau, and the assistant secre- 
 taries might correspond to attaches, to grades of secretaries of embassy 
 or legation, to ministers resident, and to ministers plenipotentiary. A 
 limited shifting between the two ends of the service could be ordered 
 from time to time by the Secretary of State. Among other things, this 
 system would give to the heads of the service a more intimate knowl- 
 edge of the abilities of their personnel ; and it is safe to say that in the 
 long run it would be of great use to the Department and benefit to the 
 diplomatic service. 
 
 Fairly frequent shifting between posts abroad is also desirable, and 
 transfers should as far as possible invariably accompany promotions. 
 For considerations which, if somewhat abstruse, are none the less cogent, 
 it is best that a secretary should be transferred when promoted rather 
 than be promoted to be minister at the same post. The two official 
 characters of minister and secretary, and the subtle relations attaching 
 to them, are different. Each position occupies a certain place in the 
 mind of the local official circle ; and these associations are not to be sud- 
 denly thrown off or assumed. An important reason why three or four 
 
THE AMERICAN FOREIGN SERVICE 657 
 
 years is generally long enough to leave a man at the same post is that he 
 almost inevitably becomes somewhat "stale." His observation becomes 
 less keen. Also, at difficult posts an energetic representative is not 
 unlikely to wear out his welcome, and so lose much of his usefulness. 
 Furthermore, frequent transfer gives wider experience and so increases 
 efficiency. With this system each official would be commissioned by 
 the President in a particular grade, and the Secretary of State would 
 designate, from time to time, the post he should fill. From every point 
 of view, a more mobile diplomatic service, including limited inter- 
 change to the State Department, has much to recommend it. 
 
 A closed service, in which a man has only to live in order to be steadily 
 promoted and finally retired with a pension, tends to induce apathy. 
 What we want is a service in which every man who gives his best years 
 and energies to the work will be sure of a life career, and, at the end of 
 his career, a pension. Only those who do signally fine work should 
 expect to be rewarded with ultimate promotion to the highest grades. 
 In this way justice is meted to faithful service and a reward is in store 
 for brilliant service. 
 
 The best pension system would probably be to make retirement op- 
 tional after, say, twenty-five years' service, with a pension computed on 
 the salary of the grade from which the officer retired. The pension could 
 be increased proportionally to the excess of the period of service rendered 
 over twenty-five years. In private life it is deemed a hard lot when a 
 man who has given the best twenty-five or thirty years of his life to a 
 business or profession can not have accumulated enough to support him 
 during his declining years. And if the foreign service is to have the good 
 men it needs, their livelihood must not be made too precarious. 
 
 Nor would it be necessary to have an absolutely closed service. There 
 is every reason why, with an organized service, the President should still 
 have the power to appoint an ambassador or minister from outside the 
 diplomatic service. The preeminent talents and conspicuous fitness of 
 some countryman of ours, or the special nature of some mission to be 
 carried out, may at times point unmistakably to such a selection. 
 
 Our ambassadors and ministers receive relatively small pay and no 
 allowances worth mentioning, and are not provided with houses. Their 
 colleagues representing other Powers receive generally better pay, be- 
 sides funds for the costly and necessary outlays for " representation," 
 and permanent buildings owned by their governments, in which to 
 reside during their missions. Every truly democratic American should 
 be shocked to realize that, because of our penury in this matter, only 
 very rich men can possibly uphold the dignity of the United States at 
 certain capitals. The very undemocratic result is that men of moderate 
 fortune, however talented, can not be appointed to, nor could they afford 
 to accept, those posts. 
 
 American travelers are constantly chagrined to find their legations and 
 
 42 
 
658 AMERICAN FEDERAL GOVERNMENT 
 
 consulates abroad housed in a haphazard manner, comparing very un- 
 favorably with those of other countries. Our Government owns legation 
 buildings only at Tokyo, Peking, Seoul, and Bangkok. The owner- 
 ship of these was practically forced upon us by the peculiar conditions 
 existing in those countries. Similarly, we possess a few rather inferior 
 consular premises. Let us see what other countries do countries 
 which place importance on foreign policy and its corollary, foreign com- 
 merce, as, for example, Germany and Great Britain. In every capital, 
 in every port or commercial center, they aim to have the eye met by an 
 embassy or legation or a consulate substantial, permanent, and archi- 
 tecturally good which stands in a foreign land as a reminder of the 
 dignity, the strength, and the enterprise of the country whose flag flies 
 over it. And then one finds (if, indeed, one can succeed in finding them) 
 the American embassy or legation, shabby or creditable, according to 
 the purse and generosity of the representative, and the consulate some- 
 times a dusty second floor in some back street. Is this what the American 
 people want? 
 
 I have outlined a number of points for a reorganization which I 
 believe would be entirely practical and feasible, and would vastly amelio- 
 rate the service. There are many minor reforms which can hardly be 
 taken up with any enthusiasm while the service is left in its present 
 unsettled condition. 
 
 A number of Senators and Representatives have done hard work and 
 have introduced bills which it was hoped would place the service on a 
 sound footing. But the ideal foreign service for which the way is now 
 open needs for its accomplishment the support of an active, not passive, 
 public opinion ; and it needs the cooperation of the Senators and Rep- 
 resentatives interested with the President and the Secretary of State, 
 and with some of those who have studied the service from within. The 
 foreign services of all countries must be studied and examined. What 
 is good must be adopted, or what is better must be devised. Then will a 
 bill be framed and passed which will give us the efficient foreign service 
 that a great commercial world power like the United States has the right 
 and the obligation to possess. 
 
 FROM A SENATE HEARING ON THE REORGANIZA- 
 TION OF CONSULAR SERVICE, 1906 l 
 
 SECRETARY ROOT. The scheme of reorganization which is embodied 
 in the first n sections of the bill includes, first, the classification of the 
 consular officers in grade, the assignment of the members of the present 
 force to those grades in accordance with their present positions, the 
 
 1 Senate Report No. 112, 59th Congr., i Session. 
 
THE AMERICAN FOREIGN SERVICE 659 
 
 importance, the salary, and the existing conditions of their present 
 offices, and authority to the President to transfer these graded officers 
 from one station to another according to the interests of the service. 
 
 Senator BACON. The promotion then requires a separate confir- 
 mation ? 
 
 Secretary ROOT. Yes; it provides for original appointments only to 
 the lower grades upon examination. An examination would be by a 
 board composed of the Chief of the Consular Bureau, an officer of the 
 State Department designated by the President, and the chief examiner 
 of the Civil Service Commission or other person designated by the Com- 
 mission practically such examiner as they designate. 
 
 Senator LODGE. The examination is not competitive. 
 Secretary ROOT. No; the examination is to be of such persons as 
 the President designates for examination. 
 
 Senator LODGE. Like the Marine Corps to-day? 
 
 Secretary ROOT. Yes, and the Army ; the board to accompany their 
 report of the list of those who pass the examination with a detailed state- 
 ment of the reasons for their report and of the qualifications shown by 
 the examination. The reorganization contemplates that the appoint- 
 ments made to the higher grades shall be by promotion that is to say, 
 the original appointments to be only to the lower grade, and the appoint- 
 ments to the higher grades to be by promotion from the lower grade. 
 
 Senator BACON. Pardon an inquiry right there, Mr. Secretary. In 
 section 2 you speak of the number of consuls-general of the first class, 
 then consuls-general of the second class, etc. Do I understand that 
 there can be no original appointments to those positions? 
 
 Secretary ROOT. No; it is all by promotion. 
 
 Senator MORGAN. Based upon examination? 
 
 Secretary ROOT. No ; the promotion is not based upon examination. 
 The original appointment is based upon examination. The promotion 
 is based upon what the man does in the service. We have already 
 started in the State Department an efficiency record, under which there 
 will be entered, under the name of every officer in the consular service, all 
 the information that can be now collected as to what sort of an officer he 
 is. I have called upon the Department of Commerce and Labor to inform 
 me what their estimate is upon the reports that are sent in by the consuls 
 and are sent over to the Department to be published. I have called 
 upon the Bureau of Trade Relations in the State Department for the 
 same information, upon the Consular Bureau for the same information, 
 and I am searching the records of the State Department to get information 
 as to whether a man is a good man, an indifferent man, or a poor man. 
 Then I have given directions that hereafter every specially good thing 
 that a consul does shall be entered to his credit, and every poor thing 
 that he does shall be entered to his discredit. 
 
 Senator MORGAN. Like a military record? 
 
66o AMERICAN FEDERAL GOVERNMENT 
 
 Secretary ROOT. Yes. I am practically applying experience that I 
 gained in the War Department in regard to the efficiency records of 
 officers. 
 
 The two things to be gained by the classification and confining the 
 appointments to a lower grade and filling the upper ones by promotion 
 are, first, that it will enable the President to assign the officers to stations 
 in accordance with the interests of the service. We have now a great 
 many square pegs in round holes and round pegs in square holes. There 
 are men in the service whose health is suffering and whose families' 
 health is suffering, and they are holding on because there is no way to 
 get out except to leave the service. There are men in places for which 
 their peculiar faculties are not fitted, but they are holding on instead of 
 being put in places where they could do far better work, because there 
 is no way of remedying that situation except for them to get out of the 
 service or turn somebody else out and reappoint them. I can not see 
 any reason why they should not be assigned as the service requires, just 
 as an army officer is assigned. 
 
 Senator MORGAN. Anywhere in the world? 
 
 Secretary ROOT. Anywhere. There is one man now, a gentleman 
 Senator Cullom spoke to me about some time ago, who is consul in 
 China, a most excellent man. I do not believe he is going to be able to 
 stay at the place where he is. I think considerations of health will 
 make it impossible. He has to go out of the service unless somebody 
 else is turned out who perhaps ought not to be turned out, and this 
 gentleman's name sent to the Senate upon an entirely new original 
 appointment for another place. It is very difficult to find such a place, 
 too, because you have either got to punish him because his health and 
 his family's health will not stand the place where he is, by putting him 
 in a place with a lower salary, or reward him for it, by putting him in 
 a place with a higher salary, unless you can find one with just the same 
 salary. There are many men who could do much better work in much 
 better places, and we can not move them. 
 
 Senator BACON. The question as to the advisability of introducing 
 this elastic feature into the service is somewhat different from the ques- 
 tion which arises upon this classification in the matter of promotions. 
 
 Secretary ROOT. I was coming to that. That is the second advantage 
 to be gained by classification, that it makes possible the filling of higher 
 grades by promotion and confining the appointments to the lower grades. 
 Now, it is not possible to have the best service from men who are hopeless 
 of receiving any recognition of the best service. It is a fact that now it 
 makes very little difference whether a consul does well or ill. He may 
 be in a lower station, doing the highest kind of work, and a vacancy 
 may occur in a better place in the very country where he is, and he ex- 
 pects nothing else but that somebody from home here will be shoved 
 in over his head. He is away "out of sight, out or mind." He is 
 
THE AMERICAN FOREIGN SERVICE 661 
 
 doing excellent service, but there is no recognition of it whatever, and 
 there is no way of recognizing it unless we can have some established 
 system under which the higher places shall be filled by promotion. That 
 would give an incentive to good work. It would make it possible to 
 recognize good work, and it would get us out of the rut that we are in, 
 of having the consular service as an opportunity for retirement of gentle- 
 men who have to be provided for because they have failed in life here. 
 
 Senator MONEY. I was going to ask a question along that line. There 
 is nothing in the present system, is there, to prevent the recognition of 
 a man who makes a splendid record? Why can he not be appointed, 
 directly on your recommendation to the President, to this vacancy which 
 occurs over him? There is no use of rushing anyone from here over 
 there when he is on the ground and you know what he has done. You 
 have his splendid record there before you. 
 
 Secretary ROOT. Senator, it is a long-established practice, and it is 
 a practice which it will be exceedingly difficult to change without the 
 consent of the Senate. The Senate is a part of the appointing power. 
 The practice of making such appointments has continued ever since I 
 have known anything about public life. It is embedded in the procedure 
 of our Government, and I apprehend that if the President were to under- 
 take now alone, by himself, to make an entire change in that matter, 
 and were to say, "I will appoint no more citizens of the various States 
 of consequence or importance whose interests are pressed by Senators 
 and Representatives," without first having the approval of the Senate 
 for the change, it would be regarded as revolutionary and would create 
 ill feeling, and it would be an exceedingly difficult resolution to adhere 
 to. I want you to say that that is the thing that ought to be done, and 
 if it is the thing that ought to be done, it seems to me that, as a part of 
 the appointing power, you ought to give it your approval; and if you 
 approve this bill you do give that approval. 
 
 Senator BACON. Mr. Secretary, I recognize the force of what you say 
 as to the value of the hope of promotion as an incentive to industry and 
 good conduct, and possibly, within certain limitations, that principle 
 could be advantageously applied. The thought in my mind, though, 
 is as to the limitation of the appointment of these highest offices to those 
 who are already in the service and having those offices filled by promotion. 
 It is altogether possible that a man most eminently qualified for one of 
 these highest consul-generalships may not have been in the consular 
 service. Take, as an illustration, the case of Mr. Wynne, who is now 
 consul-general at London. Under the proposed system he would not 
 be eligible to that position. There is another case which is probably 
 a little more marked in its application to this suggestion the case of 
 a man who was for a long time consul at Habana. I do not know whether 
 he had the rank of consul-general or not. 
 
 Senator LODGE. Yes; he was consul-general. 
 
662 AMERICAN FEDERAL GOVERNMENT 
 
 Senator BACON. He was also highly esteemed by the commercial 
 interests of the country. I assume he has gone out of the service and is 
 possibly now beyond the age when he would be eligible ; but, for illustra- 
 tion, suppose in the mutations of political fortune he had lost that place 
 and an incoming Administration desired to reappoint him to a place 
 where he had shown by his experience and his performances that he 
 was eminently qualified for the place, his services could not be availed 
 of. I recollect that I once went to see Mr. Cleveland, during his Ad- 
 ministration, in the interest of a gentleman whom I thought would make 
 a good consul-general at Habana. Williams had been appointed by a 
 Republican President. Mr. Cleveland said to me that Williams was 
 too valuable to be displaced, that a matter of politics could not be con- 
 sidered, and he must be retained because of the great interests of the 
 country which were conserved by his retention. 
 
 I just gave that as an illustration, and what I say is more in the line 
 of suggestion than argument. I do not wish you to understand me as 
 taking issue with you upon that feature of the bill, but I think it is a 
 matter of sufficient importance for consideration, whether this elastic 
 feature might not of advantage be confined to some of the lower posi- 
 tions, or at least not extended to the higher positions. 
 
 I think it is frequently the case that men who make the most excellent 
 subordinates makes very inefficient and poor principals. There have 
 been a great many good colonels spoiled by being made generals. 
 
 Secretary ROOT. That is quite true, but it would be difficult to find 
 a situation less open to that difficulty than this. That is very often the 
 case in the Army and Navy. You will find that a good enlisted man 
 often makes a poor lieutenant, and a good subaltern officer is very poor 
 when he comes to be made a general officer ; but here every consul has 
 an independent command. The lowest-grade consul is an independent 
 officer, and he is performing the same kind of duties that the highest 
 consul-general is performing, and you have an opportunity to judge 
 by the way he performs the duties of the lower-grade office how he 
 would perform the duties of the high office. 
 
 Indeed, it is frequently the case that the lower-grade offices are the 
 most difficult offices ; but they are of the lower grade and lower salaries, 
 because, while the duties may be much more difficult than those of the 
 higher grade, they are less important. I do not know anything more 
 difficult than the position of our consuls in some of the Central and South 
 American countries, particularly consuls in countries where we have no 
 resident minister. Some of them exhibit great ability, but they are low- 
 grade consulates. 
 
 Senator LODGE. Your theory would be that by the time you got to 
 the high grade of consul-general, you would have your men so 
 thoroughly sifted out that you could not very well go wrong in getting 
 a competent man ? 
 
THE AMERICAN FOREIGN SERVICE 663 
 
 Secretary ROOT. My idea is, that with the number we have of low- 
 grade consuls and the great bulk of these consuls are low-grade con- 
 suls there is the best possible opportunity of determining whether a 
 man is to hold one of the highest positions. 
 
 With regard to the Williams illustration, there would be no difficulty 
 in framing this bill so that a reappointment could be made without going 
 through the grades. It would be quite appropriate. That would cover 
 the case like the one of Williams, going out and then being put 
 back. 
 
 Senator LODGE. Going out from any cause? 
 
 Secretary ROOT. Yes; from any cause. If a man has once been in 
 the service, I see no reason why he should not be treated, for the pur- 
 pose of reappointment, just as a man who is in the service now for 
 purposes of reassignment. 
 
 Senator CULLOM. His qualifications being already proven. 
 
 Secretary ROOT. Being already proven. 
 
 Senator MONEY. I do not recollect whether you said confirmations 
 are necessary upon these promotions or. not. 
 
 Secretary ROOT. Yes, sir. 
 
 Senator MONEY. Confirmations are necessary, just as in the case of 
 an original appointment? 
 
 Secretary ROOT. Yes. 
 
 Then, as to the other illustration. Such an arrangement would have 
 cut Mr. Wynne out, but I feel pretty confident on the general proposi- 
 tion that you would gain much more than you would lose. You would 
 lose some good men, but you would gain by barring a great many men 
 who are not good men. As a rule, I think it is safe to say that a man 
 who has passed the age of the youngest of us at this table has become 
 too old to learn new tricks. 
 
 Senator FRYE. He ought to be chloroformed? 
 
 Secretary ROOT. No; far from it. But he ought not to undertake 
 an entirely new business and enter upon an entirely new field of action. 
 There may be exceptional men who could, but the exceptions would be 
 so few that, as a general proposition, in the interest of the service, men 
 who have lived through the greater part of their lives ought not to be 
 taken into the new field. The Government will have better service if 
 it picks men comparatively young, who still have enthusiasm, energy, 
 ambition, and the power of making a career, and lets them learn the 
 consular business then, instead of taking men who have lived through 
 the greater part of their lives and who have reached the time when they 
 rather want rest. 
 
 Senator BACON. Mr. Secretary, what is the term of office proposed 
 in this bill? Are they life appointments? 
 
 Secretary ROOT. There is no time fixed. It is left just as it is now. 
 
 Senator MORGAN. During good behavior. 
 
664 AMERICAN FEDERAL GOVERNMENT 
 
 Senator LODGE. It is not changed. 
 
 Senator BACON. I understand ; but, then, the new system, if adopted, 
 would raise some question on that subject. For instance, as it is now, 
 when an administration changes it is perfectly competent and rather 
 recognized as a rule that all of the consuls except such as those in the 
 class to which Mr. Williams belonged should go out and the representa- 
 tives of the other party come in. 
 
 Senator LODGE. That has been the great misfortune of the service. 
 
 Senator BACON. Under this you say there is no change. The right 
 of the President to reappoint would be the same as now, but the origi- 
 nal appointment could only be to the lowest grade. In other words, 
 he could only displace the lowest grade. 
 
 Secretary ROOT. He could displace anybody he chose, filling his 
 place by promotion and making vacancies in the lower grades. 
 
 Senator BACON. What I mean is this : He could not appoint a man 
 to any position except the lowest grade. 
 
 Senator LODGE. Of course, constitutionally, he can disregard the 
 law altogether. 
 
 Senator BACON. I am not so sure of that. 
 
 Senator LODGE. Consuls are specifically expressed in the Constitu- 
 tion, and we can not limit or restrict his right of appointment. 
 
 Senator BACON. You might say the same thing of an officer in the 
 Army. I am not so sure about that. 
 
 Senator FORAKER. It would be better for the two Departments to 
 work in harmony, especially when it comes to a matter of 
 appropriations. 
 
 Senator BACON. Yes. I am asking that question simply for the 
 purpose of seeing what the practical working of it will be. For instance, 
 without any change of administration, the President could, of course, 
 remove anyone from any grade; but then when he removes a man he 
 can only fill the lowest place, and if there were a change in administra- 
 tion the same rule would hold good. 
 
 Senator LODGE. I would ask the Secretary if it is not the point of 
 the law to give to the service greater stability, and whether that is not 
 what it needs more than anything else. 
 
 Senator BACON. I think that, within bounds, is a very desirable 
 thing. 
 
 Secretary ROOT. That does produce this effect, Senator. It takes 
 away the opportunity to turn a given man out for the purpose of put- 
 ting another given man in his place. I think that ought to be taken 
 away. It leaves the opportunity to turn out a given man because he 
 is not doing good work, thereby creating a vacancy in the lower grade 
 which can be filled by somebody else. It leaves it still possible, in case 
 of a change of administration, to effect a gradual substitution of men 
 of one party for men of another party, but it makes it a little more dif- 
 
THE AMERICAN FOREIGN SERVICE 665 
 
 ficult, which, I suppose, is about all that can be done. It takes the ele- 
 ment of personal pressure out of it. 
 
 Secretary ROOT. I have written into the bill a few words which seem 
 to me to accomplish the object that seemed to me to be the first impres- 
 sions of the committee in regard to taking the consular service out of 
 political limitations. 
 
 In section 8, on page 4 of the bill, insert, after the word "shall," in 
 line 15, the words " without regard to their political affiliations." 
 
 Senator FORAKER. What precedes it? 
 
 Secretary ROOT. I will read the whole. Section 8 would then read: 
 
 That it shall be the duty of said board 
 
 That is, the examination board 
 
 to formulate rules for and hold examinations of applicants for admission to the 
 consular service; and whenever a vacancy shall occur in the sixth or seventh 
 class of consuls which the President deems it expedient to fill, the Secretary of 
 State shall require the said board to examine such applicants as shall, without 
 regard to their political affiliations, be designated therefor by the President. 
 
 Senator BACON. Mr. Secretary, is that sufficient? If you are going 
 to take this out of politics, is it not necessary to do in that case as we 
 do in some other instances where it is expressly provided that the offices 
 shall be filled in certain proportions between the political parties ? 
 
 Senator LODGE. That is where we fill boards. I do not think you 
 could take an appointive service and do that. 
 
 Senator BACON. Pardon me a minute. In the civil service that is not 
 necessary because it is competitive and any man is eligible to make the 
 effort; but where the designation is exclusive, where no man can be 
 eligible for examination unless he has the designation, it is quite differ- 
 ent, and while it would possibly not be proper to say that they should 
 be filled in the exact proportions that we provide for in the case of boards, 
 it could be said that they shall be filled as nearly as practicable with an 
 equal division between the parties, and I think also something ought 
 to be said to desectionalize it. 
 
 Senator LODGE. That is going to be covered by the registered quota. 
 
 Secretary ROOT, I would say that it -was desirable, with regard to 
 that, to accomplish the object it is only a suggestion ; I am not bigoted 
 about it to employ a certain reserve in language in dealing with the 
 exercise of the President's power to appoint consuls, which is specifically 
 vested in him by the Constitution. I drafted it first with the statement 
 "it shall be," and that grated a little in the treatment by Congress of 
 the President's constitutional power, and it seemed to me that language 
 
666 AMERICAN FEDERAL GOVERNMENT 
 
 a little more reserved, which really did establish a rule morally binding 
 upon the President, was rather more to be desired. 
 
 Senator BACON. You could still regard that consideration and at 
 the same time effect the purpose, which is to apply that moral obliga- 
 tion without a strict legal necessity to distribute them as nearly as pos- 
 sible equally between the opposing political parties; and this further 
 is to be said, that while this might be construed or considered an at- 
 tempt at limitation upon the constitutional authority of the President, 
 it is not to be overlooked that this bill proposes to confer upon him very 
 much enlarged powers, and to put, in the administration of the consular 
 service, very much larger discretion and control in the hands of the 
 President, really taking it out almost entirely from the legislative control. 
 
 So long as this statute remains upon the books, the only participation 
 of Congress would be in the part of Congress which we represent in the 
 confirmation or rejection of the nominees. Outside of that the service 
 would be absolutely removed from all legislative control except the 
 control which would still remain of the right and power to amend and 
 change the law. 
 
 So that when we consider the question whether the suggestion would 
 be an encroachment upon the executive constitutional power, there is 
 to be taken into consideration the fact that it is a very great enlargement 
 in other respects, and while you could not say it was a quid pro quo, the 
 enlarged power which would be conferred by this would remove, I think, 
 any possible suggestion that the effort was to limit the power of the 
 President. 
 
 I can not entirely overlook in this consideration the fact that our 
 system of government is very different from that of the English. The 
 English put large powers in the hands of the executive. They are really 
 putting them in the hands of the legislative department of the govern- 
 ment, because the executive powers are exercised by the legislative 
 branch. 
 
 Secretary ROOT. By a committee of the House of Commons. 
 
 Senator BACON. It is a very different thing here. The tendency 
 here is exactly the other way, that the executive begins to control the 
 legislative. People now, when they want legislation which will affect 
 certain things, do not come to Senators and Representatives as formerly, 
 but go to the White House and the Departments. I see they are even 
 now going to the Bureau of Insular Affairs to get legislation about the 
 Philippines. They are ignoring my friend on the other side of the table, 
 the chairman of the Committee on the Philippines, and going to Edwards. 
 
 Senator McCREARY. I think Senator Bacon has raised the point that 
 is of vital importance in this bill. I like the general provisions of the 
 bill. I have felt and known for a long time that the consular service 
 needed reorganizing. My experience with it was not encouraging at all. 
 It needs reorganization very badly, and there are many things in this bill 
 
THE AMERICAN FOREIGN SERVICE 667 
 
 I like very much; but the great obstacle, to me, has been that this bill 
 of course seeks to put in for life certain men. If there is no provision 
 in the bill such as is suggested by the Senator from Georgia, the prob- 
 abilities are that pretty much all the people that would be put in would 
 belong to one political party. The consular service is a great service. 
 It seeks to accomplish great ends and good ends, and I think it ought 
 to be just as nearly nonpolitical as possible. 
 
 Our Government, as the Senator stated, is different from the Gov- 
 ernment of Great Britain and from most of the other governments in 
 Europe. Ours is a popular Government. While one party is in power 
 to-day, another party may come into power by and by, and that party, 
 if it should come into power, would of course find men in the service, 
 unless we have something like that suggested by the Senator from 
 Georgia, all differing, or most of them differing; and we ought to have 
 in this bill some kind of provision which would necessitate, which would 
 cause a division, so that each political party should have representation. 
 I am not sure that I would contend for as much as Senator Bacon con- 
 tends, that they should be equally divided, but there ought to be in the 
 first place a distribution of the consuls among the States. 
 
 Secretary ROOT. In endeavoring to meet the suggestion on another 
 point, I have drawn this clause in order to get something on paper for 
 consideration : 
 
 So far as practicable, and except as the President shall otherwise determine 
 in particular cases, the designation of candidates for examination shall be made 
 in such manner as most effectively to distribute the appointments among the 
 several States and Territories in proportion of their representation in Congress. 
 
 And such designation shall in all cases be made without regard to the politi- 
 cal affiliations of the candidates. 
 
 I, naturally enough, had in mind the practice in army appointments, 
 and I think it is worth your while to consider the experience which we 
 have had in that regard. I do not think it is too much to say that we 
 have taken the Army out of politics. I do not think, during the last 
 years that I was in the War Department, that the Democratic Senators 
 had any feeling that when there was a question of an appointment to 
 the Army there was any difference between a Democrat and a Republi- 
 can. I think I had the confidence of Senator Cockrell just as completely 
 as I had the confidence of any Republican member of the Committee 
 on Military Affairs, and that feature of it made no difference. The 
 State of Virginia led in the number of appointments to the Army, and 
 it led because it had the Virginia Military Institute, which has turned 
 out a great number of very fine, able young fellows. 
 
 Senator BACON. I think there has always been a general feeling 
 I know I have had it that there is a distinction between appointments 
 in the military service and appointments in the civil service. I never 
 
668 AMERICAN FEDERAL GOVERNMENT 
 
 asked for the appointment of anybody in the civil service. I have not 
 hesitated to ask it in the military service. I thought they stood on dif- 
 ferent platforms altogether, and I think the Spanish war, which put so 
 many of these young men in the line of appointment, had very much 
 the effect that you have just stated, of breaking down anything like 
 political distinctions in your appointments. Whether or not that could 
 be accomplished in the consular service, which is more a matter of dollars 
 and cents, is another question. Army appointments are not matters of 
 revenue or income. They are on a different line altogether. 
 
 Secretary ROOT. It seems to me, Senator, that there is no branch of 
 the service in which that rule ought to be applied more clearly than to 
 the consular service. Under the present system I found the clerks in the 
 State Department were keeping tab on appointments with reference to 
 percentage of Republican vote. I think it is all wrong. It is a viola- 
 tion of the theory on which the Senate is expected to act in re- 
 gard to appointments and in regard to foreign affairs generally. The 
 President comes to the Senate for its advice without distinction of party. 
 You vote on treaties, and you are not expected to vote in accordance with 
 the distinction of party. That principle is intended by the Constitution 
 to pervade the treatment of foreign affairs, because in foreign affairs 
 every man who is sent abroad is representing the country, and the good 
 name and credit of the country depend upon his being a creditable 
 representative. It seems to me if there is any place where the distinction 
 of party ought to be dropped it is when we pass beyond the confines of 
 our country. 
 
 Senator BACON. Yet that is not so in practice. 
 
 Secretary ROOT. I know it is not so in practice, and I would like to 
 see the practice changed. 
 
 Senator FRYE. Do you think you could put into a bill of this kind a 
 provision that the appointments hereafter made in the consular service 
 should be divided between the two political parties? 
 
 Secretary ROOT. I do not. I think that would be a bad provision. 
 
 Senator BACON. You say they should be designated without regard 
 to political affiliations. 
 
 Secretary ROOT. Yes; I think that is right. 
 
 Senator BACON. And while the policy might make a difference, the 
 principle is the same. 
 
 Secretary ROOT. One is excluding political considerations and the 
 other is including political considerations. One is declaring what I 
 believe to be the sound principle, that the question of party affiliations 
 should not determine in the selection of a representative who is to rep- 
 resent us abroad, and the other is compelling the President to take into 
 consideration party affiliations and compelling him to inquire whether 
 a young man is a Democrat or a Republican before he determines in 
 regard to the selection. 
 
THE AMERICAN FOREIGN SERVICE 669 
 
 Senator BACON. He will always know that. 
 
 Secretary ROOT. No. 
 
 Senator MORGAN. That is just the difference between the two situ- 
 ations. I think the Secretary is right about it. 
 
 Secretary ROOT. I give you my word that in the four years and a 
 half I was in the War Department there was never such a question 
 asked whether the young man was a Democrat or Republican. 
 
 Senator BACON. That is true in the military service. 
 
 Secretary ROOT. Well, it ought to be true of the consular service. 
 
 If you provide that the designations for examination in the consular 
 service shall be made without regard to political affiliations, you have 
 then established the same rule which is applied in the Army, and it 
 seems to me the same result will follow, that it will stop inquiry, and 
 necessarily that excludes the right of referees and chairmen of political 
 committees to propose candidates and insist that they are entitled to 
 have their recommendation taken for their section of the country. It 
 causes the method of appointment to revert to the authorized representa- 
 tives of the different States for advice, the men elected by the different 
 States to represent them, no matter whether those representatives belong 
 to one party or another party. It seems to me it is much better to put 
 it in that shape. 
 
 Senator LODGE. The other way is forcing politics into it, it seems 
 to me. 
 
 Senator McCREARY. I think when you use the words "without re- 
 gard to party affiliations," that is a long step in the way of improvement 
 over what we have had for so many years in both political parties. I 
 am very glad you put that in. I know it would be a very great change 
 to say now we should have half, and therefore I think the proposition 
 made by the Secretary is a good step. 
 
 Senator BACON. I did not propose that such definite language as 
 "one-half" should be used. The language I would suggest would be 
 simply to the effect that they should be as nearly as may be equally 
 divided; something of that sort. 
 
 Senator CLARK, of Montana. This relates to the examination, how- 
 ever, and not to the appointment. 
 
 Senator FORAKER. You could say that not more than one-half should 
 be appointed from any one party. 
 
 Senator CLARK, of Montana. That would cover it. 
 
 Senator CLARK, of Wyoming. It seems to me, Senator Foraker, that 
 would be unfortunate in view of the Secretary's statement, which I 
 think is the proper one, that it should be taken out of politics instead 
 of forced in. 
 
 Senator FRYE. I do not think anything of the kind ought to be in the 
 bill at all. 
 
 Senator MORGAN. I agree with the chairman of the committee on 
 
670 AMERICAN FEDERAL GOVERNMENT 
 
 that proposition. There never ought to be any active legislation by 
 Congress. There should never be any reference to it at all. It is a 
 matter about which the Executive has the right to determine for him- 
 self in making his selections for office, and I made the suggestion the 
 other day with the view of trying to meet the difficulty in this committee, 
 and with the hope that we would go before the Senate with a unanimous 
 agreement that we could stand by on that very unsatisfactory and un- 
 fortunate proposition. 
 
 Secretary ROOT. I marked a month ago on a list of applicants an 
 applicant from Georgia for appointment. I found that he had letters 
 from Senator Clay, among others. I made a note, to send to Senator 
 Clay when he got to Washington for further information about him. 
 I do not want to inquire whether that young man is a Democrat or a 
 Republican. I think the rule that he shall be considered without regard 
 to his political affiliations is the true rule to apply to him, and I think 
 Senator Clay, who has written a letter about him, is the proper person 
 to apply to, and a statement that the appointment shall be made without 
 regard to any political affiliations precludes any political committee or 
 referee in the State of Georgia saying anything about him. 
 
 Senator FORAKER. I think that is a very good expression to use. If 
 you were to undertake to describe the number beyond which any one 
 party should not have representation, would not that raise a constitu- 
 tional query as to whether or not we have power to restrict the President's 
 selections to any particular class. 
 
 Senator BACON. You might say the same thing as to his appointment 
 of an Interstate Commerce Commissioner. 
 
 Senator LODGE. No ; the Interstate Commerce Commissioner is not 
 provided for specifically in the Constitution. 
 
 Senator BACON. But he is a constitutional officer. 
 
 Senator LODGE. But in creating that office we can throw around it 
 any conditions we choose. 
 
 Senator BACON. No; not so as to limit the power of the President 
 where the Constitution says he shall have the power to nominate all 
 officers. 
 
 Senator LODGE. He can not have it when we create it in that way. 
 
 Senator BACON. It is not simply those named in the Constitution. 
 If you are correct, the numbers named in the Constitution are very 
 few as compared with the vast number created by Congress, and if 
 your theory is correct it would absolutely limit the power of the President 
 to the appointment of few officers. 
 
 Secretary ROOT. Let me say that since the last meeting of the com- 
 mittee I have consulted the President specially on this subject, and he 
 instructs me to say that he very heartily agrees with the idea of taking 
 these appointments out of politics, of having them made without regard to 
 political affiliations, and would be quite ready to accept such a provision. 
 
THE AMERICAN FOREIGN SERVICE . 671 
 
 There is only one further thing I want to say about this now, and that 
 is that the agitation of this subject has been going on for many years. 
 I have found ten favorable reports from committees of the Senate and 
 House of bills to reorganize the consular service, and among them I have 
 here a report made to this committee by Senator Morgan ten years ago, 
 characterized by the thoroughness which is to be found in everything 
 that Senator Morgan does, in which are laid down the main principles 
 embodied in this bill, approved by this committee. In the meantime, 
 the agitation has gone on in the country. 
 
 Now, there are many things agitated fictitiously. The mere fact that 
 somebody comes here and is anxious to have some change of the law 
 does not necessarily indicate that it ought to be made. Those agitations 
 which are without substance die away. Those which have substance 
 remain and grow. This has remained and it has grown, and we have 
 communications from over three hundred commercial and business 
 bodies scattered all over the country urging that something be done. 
 It seems to me that the process has gone so far that Congress should, 
 in due self-respect, take action, and that whatever conclusions you reach 
 upon this subject should be conclusions not to be reported and lost in 
 the shuffle, but to be put through and carried into effective legislation; 
 that the due regard which the public ought to have for the efficiency of 
 Congress as a practical legislating body calls for that attention to this 
 particular business. 
 
 REGULATIONS GOVERNING APPOINTMENTS AND PRO- 
 MOTIONS IN THE CONSULAR SERVICE OF THE 
 UNITED STATES 1 
 
 WHEREAS, The Congress, by Section 1753 of the Revised Statutes of 
 the United States has provided as follows : 
 
 "The President is authorized to prescribe such regulations for the admission 
 of persons into the civil service of the United States as may best promote the 
 efficiency thereof, and ascertain the fitness of each candidate in respect to age, 
 health, character, knowledge, and ability for the branch of service into which 
 he seeks to enter; and for this purpose he may employ suitable persons to 
 conduct such inquiries, and may prescribe their duties, and establish regula- 
 tions for the conduct of persons who may receive appointments in the civil 
 service." 
 
 And, whereas, the Congress has classified and graded the consuls- 
 general and consuls of the United States by the act entitled "An act to 
 provide for tlje reorganization of the consular service of the United 
 
 1 As amended by executive orders, etc., up to June, 1908. 
 
672 AMERICAN FEDERAL GOVERNMENT 
 
 States," approved April 5, 1906, and has thereby made it practicable 
 to extend to that branch of the civil service the aforesaid provisions of 
 the Revised Statutes and the principles embodied in the Civil Service 
 Act of January 16, 1883. 
 
 Now, therefore, in the exercise of the powers conferred upon him by 
 the Constitution and laws of the United States, the President makes 
 the following regulations to govern the selection of consuls general and 
 consuls in the civil service of the United States, subject always to the 
 advice and consent of the Senate : 
 
 1. Vacancies in the office of consul-general and in the office of consul 
 above class 8 shall be filled by promotion from the lower grades of the 
 consular service, based upon ability and efficiency as shown in the service. 
 
 2. Vacancies in the office of consul of class 8 and of consul of class 9 
 shall be filled: 
 
 (a) By promotion on the basis of ability and efficiency as shown in 
 the service, of consular assistants and of vice consuls, deputy consuls, 
 consular agents, student interpreters and interpreters in the consular 
 or diplomatic service, who shall have been appointed to such offices 
 upon examination. 
 
 (b) By new appointments of candidates who have passed a satis- 
 factory examination for appointment as consul as hereafter provided. 
 
 3. Persons in the service of the Department of State with salaries 
 of two thousand dollars or upwards shall be eligible for promotion, on 
 the basis of ability and efficiency as shown in the service, to any grade 
 of the consular service above class 8 of consuls. 
 
 4. The Secretary of State, or such officer of the Department of 
 State as the President shall designate, the Chief Clerk of the Depart- 
 ment of State, and the Chief Examiner of the Civil Service Com- 
 mission, or some person whom said Commission shall designate, 
 shall constitute a Board of Examiners for admission to the consular 
 service. 
 
 5. It shall be the duty of the Board of Examiners to formulate rules 
 for and hold examinations of applicants for admission to the consular 
 service. 
 
 6. The scope and method of the examinations shall be determined 
 by the Board of Examiners, but among the subjects shall be included 
 at least one modern language other than English ; the natural, industrial 
 and commercial resources and the commerce of the United States, 
 especially with reference to the possibilities of increasing and extending 
 the trade of the United States with foreign countries ; political economy ; 
 elements of international, commercial and maritime law. 
 
 7. Examination papers shall be rated on a scale of 100, and no person 
 rated at less than 80 shall be eligible for certification. 
 
 8. No one shall be examined who is under twenty-one or over fifty 
 years of age, or who is not a citizen of the United States, or who is not 
 
THE AMERICAN FOREIGN SERVICE 673 
 
 of good character and habits and physically and mentally qualified for 
 the proper performance of consular work, or who has not been specially 
 designated by the President for appointment to the consular service 
 subject to examination. 
 
 9. Whenever a vacancy shall occur in the eighth or ninth class of 
 consuls which the President may deem it expedient to fill, the Secretary 
 of State shall inform the Board of Examiners, who shall certify to him 
 the list of those persons eligible for appointment, accompanying the 
 certificate with a detailed report showing the qualifications, as revealed 
 by examination, of the persons so certified. If it be desired to fill a 
 vacancy in a consulate in a country in which the United States exercises 
 extraterritorial jurisdiction, the Secretary of State shall so inform the 
 Board of Examiners, who shall include in the list of names certified 
 by it only such persons as have passed the examination provided for 
 in this order, and who also have passed an examination in the fun- 
 damental principles of the common law, the rules of evidence and 
 the trial of civil and criminal cases. The list of names which the 
 Board of Examiners shall certify shall be sent to the President for his 
 information. 
 
 10. No promotion shall be made except for efficiency, as shown by 
 the work that the officer has accomplished, the ability, promptness and 
 diligence displayed by him in the performance of all his official duties, 
 his conduct and his fitness for the consular service. 
 
 11. It shall be the duty of the Board of Examiners to formulate rules 
 for and hold examinations of persons designated for appointment as 
 consular assistant or as student interpreter, and of such persons desig- 
 nated for appointment as vice consul, deputy consul, and consular agent 
 as shall desire to become eligible for promotion. The scope and method 
 of such examination shall be determined by the Board of Examiners, 
 but it shall include the same subjects hereinbefore prescribed for 
 the examination of consuls. Any vice consul, deputy consul or con- 
 sular agent now in the service, upon passing such an examination 
 shall become eligible for promotion, as if appointed upon such 
 examination. 
 
 12. In designations for appointment subject to examination and in 
 appointments after examination, due regard will be had to the rule, 
 that as between candidates of equal merit, appointments should be so 
 made as to secure proportional representation of all the States and 
 Territories in the consular service; and neither in the designation for 
 examination or certification or appointment will the political affiliations 
 of the candidate be considered. 
 
 THEODORE ROOSEVELT. 
 THE WHITE HOUSE, 
 
 June 27th, 1906. 
 
 43 
 
674 AMERICAN FEDERAL GOVERNMENT 
 
 REGULATIONS GOVERNING EXAMINATIONS 
 
 IN pursuance of the Executive order of June 27, 1906, whereby the 
 President promulgated regulations governing appointments and pro- 
 motions in the consular service, the following rules have been adopted 
 by the undersigned Board of Examiners, who, under that order, have 
 been designated to formulate rules for and hold examinations of appli- 
 cants for admission to the consular service whom the President shall 
 have designated for examination to determine their eligibility for ap- 
 pointment therein: 
 
 1. The examinations will be the same for all grades and will be to 
 determine a candidate's eligibility for appointment in the consular ser- 
 vice, irrespective of the grade for which he may have been designated 
 for examination and without regard to any particular office for which 
 he may be selected. 
 
 2. The examinations will consist of an oral and a written one, the 
 two counting equally. The object of the oral examination will be to 
 determine the candidate's business ability, alertness, general contem- 
 porary information, and natural fitness for the service, including moral, 
 mental, and physical qualifications, character, address, and general 
 education and good command of English. In this part of the examina- 
 tion the applications previously filed will be given due weight by the 
 Board of Examiners, especially as evidence of the applicant's business 
 experience and ability. The written examination will include those 
 subjects mentioned in the Executive order, to wit, French, German, or 
 Spanish, or at least one modern language other than English; the 
 natural, industrial, and commercial resources and the commerce of the 
 United States, especially with reference to possibilities of increasing and 
 extending the foreign trade of the United States; political economy, 
 and the elements of international, commercial, and maritime law. It 
 will likewise include American history, government, and institutions; 
 political and commercial geography ; arithmetic (as used in commercial 
 statistics, tariff calculations, exchange, accounts, etc.) ; the modern 
 history, since 1850, of Europe, Latin America, and the Far East, with 
 particular attention to political, commercial, and economic tendencies. 
 In the written examination, composition, grammar, punctuation, spelling, 
 and writing will be given attention. 
 
 3. To become eligible for appointment, except as student interpreter, 
 in a country where the United States exercises extraterritorial jurisdic- 
 tion, the applicant must pass the examination outlined above, but sup- 
 plemented by questions to determine his knowledge of the fundamental 
 principles of common law, the rules of evidence, and the trial of civil 
 and criminal cases. 
 
 4. The examinations to be given candidates for appointment as stu- 
 
THE AMERICAN FOREIGN SERVICE 675 
 
 dent interpreters will follow the same course as in the case of other consu- 
 lar officers, provided, however, that no one will be examined for admission 
 to the consular service as a student interpreter who is not between the 
 ages of nineteen and twenty-six, inclusive, and unmarried ; and, provided 
 further, that upon appointment each student interpreter shall sign an 
 agreement to continue in the service so long as his services may be re- 
 quired, within a period of five years. 
 
 5. Upon the conclusion of the examinations the names of the candi- 
 dates who shall have attained upon the whole examination an average 
 mark of at least eighty, as required by the Executive order, will be 
 certified by the Board to the Secretary of State as eligible for appoint- 
 ment in the consular service, and the successful candidates will be in- 
 formed that this has been done. 
 
 6. The names of candidates will remain on the eligible list for two 
 years, except in the case of such candidates as shall within that period 
 be appointed or shall withdraw their names. Names which have been 
 on the eligible list for two years will be dropped therefrom and the 
 candidates concerned will not again be eligible for appointment unless 
 upon fresh application, designation anew for examination, and the suc- 
 cessful passing of such second examination. 
 
 HUNTINGTON WlLSON, 
 
 Third Assistant Secretary of State. 
 DEPARTMENT OF STATE, 
 
 Washington, December 13, 1906. 
 
 AMERICAN DIPLOMACY 1 
 BY FRANCIS C. LOWELL 
 
 AT home and abroad there has been much criticism of American dip- 
 lomatic representatives as compared with those of European countries. 
 It is often said that our men are much inferior to their expert colleagues 
 from Europe, and we are urged to adopt a system like the European, 
 for their careful training and due promotion. That this criticism is 
 valuable can not be denied. The extreme unfitness of some American 
 envoys has discredited us, but there are advantages in our system, or 
 want of it, which we ought not to overlook. In considering them here, 
 we will pass over the consuls and limit ourselves to the regular diplo- 
 matic service. 
 
 Let us take a concrete case, and compare the American representa- 
 tives in London with the English representatives in Washington. Since 
 1850 we have sent to England Joseph R. Ingersoll, James Buchanan, 
 George M. Dallas, Charles Francis Adams, Reverdy Johnson, J. L. 
 
 1 From the Atlantic Monthly, January, 1906. Reprinted by permission. Copyright. 
 
676 AMERICAN FEDERAL GOVERNMENT 
 
 Motley, R. C. Schenck, Edwards Pierrepont, John Welsh, J. R. Lowell, 
 Edward J. Phelps, Robert T. Lincoln, Thomas F. Bayard, John Hay, 
 Joseph H. Choate, and Whitelaw Reid. The English have sent to us 
 Sir Henry Bulwer (Lord Balling), J. F. T. Crampton, Lord Napier, 
 Lord Lyons, Sir Frederick Bruce, Sir Edward Thornton, L. S. Sackville 
 West, Lord Pauncefote, Sir Michael Herbert, and Sir Mortimer Durand. 
 Without dwelling on particular names, we see plainly that the Ameri- 
 cans have been the more distinguished men. The English representatives 
 have been well educated and trained, and have tried to do their diplo- 
 matic duty, with measurable success. No one of them at any time or 
 in any place made considerable mark of any sort upon the history of 
 his country or that of the world. No one held important office outside 
 the diplomatic service. To establish an accurate standard of compari- 
 son is impossible. Distinction and importance can not be weighed. But 
 of the Englishmen we may say that hardly one was of English cabinet 
 rank, that is to say, had the importance which usually belongs in Eng- 
 land to a cabinet minister. Among the sixteen Americans there are 
 found one president, one vice-president, and an unsuccessful nominee 
 of a great party for the latter office. Five served in our small cabinet: 
 two secretaries of state, a secretary of war, and two attorneys-general; 
 two others were lawyers at the head of their profession, one was a his- 
 torian, and one a poet, both of high rank, and still we have not classified 
 Mr. Adams, who did the greatest service of them all. The difference 
 in the lists is striking. 
 
 Few of these Americans had long diplomatic experience; many of 
 them served with little or none. Hence our range of choice has been 
 much wider than that of those countries which have maintained a regular 
 diplomatic service. Cabinet ministers, historians, poets, lawyers, teach- 
 ers, are chosen to represent the United States. No country could keep 
 permanently in its diplomatic employ so large a number of its leaders. 
 There would not be enough left for other necessities. The American 
 diplomat is a man of distinction, taken from public life, literature, or 
 the bar, from a large business, or from a university, and set to a job for 
 which he has had no special training. The typical European diplomat 
 is a man of less ability and less general distinction, trained to a profes- 
 sion from his youth. What are the comparative advantages of the two 
 systems ? 
 
 The ordinary functions of a diplomat are matters of routine, the ob- 
 servation of proper formalities in public functions and in his official 
 duties. Herein experience tells. Not only has the elaborate etiquette 
 of courts and public offices become second nature to the ambassador 
 who has practiced it since he was a boy, but, apart from the diplomatic 
 career, the bringing up of a European gentleman, especially of a Euro- 
 
THE AMERICAN FOREIGN SERVICE 677 
 
 pean nobleman, gives him the start of his American colleague, though 
 the latter has grown up in the best society of New York or Washington. 
 But important negotiations are now carried on by foreign secretaries, 
 not by diplomats. The envoy who transmits messages between them 
 is left little discretion. That he should have good manners is desirable, 
 but want of ability and lack of initiative are not serious drawbacks. 
 Thus far the European diplomat has the advantage. Yet emergencies 
 may arise which call for ability in the diplomat himself as well as in his 
 superior, the foreign secretary. There the European is at a disadvan- 
 tage. His whole life has been given to the study of routine, until his 
 initiative is gone. The American's ignorance of routine may be a posi- 
 tive help. He is accustomed to emergencies where something new and 
 unexpected must be done. Business, politics, the law, literature, some- 
 times call for originality. 
 
 The success of American diplomacy in meeting these emergencies is 
 illustrated by the career of Mr. Washburne as minister to France. He 
 had been a member of the American House of Representatives and an 
 experienced politician of Illinois, with little knowledge of Europe and 
 almost none of the French language. His diplomatic rank in Paris was 
 low. Nuncio, ambassadors, some ministers plenipotentiary, outranked 
 him. The United States then had little reputation in Europe. But 
 when the political revolution which followed the battle of Sedan per- 
 plexed European diplomats, Mr. Washburne made it his business to do 
 the work which lay next his hand, and he found a good deal of it. Within 
 a few weeks the envoy who had stood near the bottom of the list was 
 become in effect the first diplomatic representative in France. How 
 much credit for the gain was due to our Secretary of State, Mr. Fish, 
 and how much to Mr. Washburne, is not known, but much was due to 
 the latter. His protection of the Germans was efficient before and dur- 
 ing the siege. When the French government moved to Versailles in 
 consequence of the outbreak of the Commune, Mr. Washburne formally 
 established his legation there, but spent most of his time in Paris. He 
 was helped by his extraordinary courage, no doubt, but courage is not 
 a rare virtue. His common sense, leading him to disregard diplomatic 
 traditions, contributed more than his courage to his success. Thus he 
 was able to save some proposed victims from the Commune, and to 
 comfort in prison the Archbishop of Paris, though he could not save 
 him. Much of his action was irregular, and his establishment in Paris 
 was criticized. Thus he wrote: " This action, it must be admitted, was 
 not entirely acceptable to the government at Versailles, and it was com- 
 municated to me, as coming unofficially from that government, that it 
 would have been better for me to have joined all my diplomatic colleagues 
 at Versailles, and not to have kept up any legation whatever in Paris. 
 My answer to all this was that, while I desired to be as agreeable as pos- 
 sible to the government at Versailles, and not to be wanting in my loyalty 
 
678 AMERICAN FEDERAL GOVERNMENT 
 
 to it, as minister of the United States, in any respect, yet that there were 
 vast interests with which I was charged at Paris, and, however disagree- 
 able it might be to remain there, I owed a greater duty to the interests 
 with which I was charged than I did to the mere etiquette which would 
 have required me to remain in Versailles." 
 
 That some disregard of diplomatic traditions on his part does not 
 always discredit a diplomatic representative is proved by Mr. Wash- 
 burne's experience. He had aided and protected the Germans. In this 
 way he had obtained the gratitude of Germany ; but the Germans were 
 unpopular in France. He had dealt with the leaders of the Commune, 
 some of them vile criminals as well as armed rebels. If his acts had 
 strained our relations with France, his successes would have been dearly 
 bought. But his tact and common sense conciliated France. Momentary 
 irritation soon disappeared. The French ministers of foreign affairs were 
 persons too considerable not to admire beneficent ability, even if its 
 methods were unusual. Mr. Washburne's habit of dealing with men of 
 all sorts as a man of business, not much troubled by the formalities of 
 diplomatic etiquette, pleased every one. He earned the gratitude of the 
 Germans, while keeping French good will. His conduct improved our 
 position in Europe. At the other side of the world, nearly thirty years 
 later, America was represented in China by Mr. Conger, an American 
 politician of secondary importance, who had little knowledge of China 
 and no diplomatic experience. An emergency arose, not provided for 
 in the rules of diplomatic etiquette. While Mr. Conger's achievements 
 in the Boxer troubles were not so great as Mr. Washburne's in France, 
 yet it is understood that he was rather more than the equal of his trained 
 brethren from England and the continent of Europe. We have just 
 achieved diplomatic success in Russia, having disregarded diplomatic 
 tradition so completely that our ignominious failure was generally pre- 
 dicted. This was the achievement of a president with neither diplomatic 
 training nor a foreign secretary, speaking through an ambassador trained 
 in business and politics. 
 
 Emergencies like these are infrequent, it is true, and the close observ- 
 ance of due formalities is called for every day. Granted that Mr. Wash- 
 burne's success was brilliant, yet such instances are necessarily rare 
 and have grown rarer. If our representatives in England, France, and 
 Germany, can to-day do not more than observe diplomatic traditions, 
 keep posted in the gossip of the capital, and avoid the little blunders 
 upon which their colleagues, their colleagues' wives, and other persons 
 of fashion like to dwell, then perhaps we may admit that emergencies 
 may be left to take care of themselves, and that a trained diplomat may 
 be most to our advantage. But some of our representatives, as it seems 
 to me, have pointed out a new function for the diplomat which is of real 
 benefit to his own country and to that which he visits. 
 
 An Englishman wrote at the time of Mr. Choate's departure: "In- 
 
THE AMERICAN FOREIGN SERVICE 679 
 
 stinctively we separate the American Ambassador from all his colleagues 
 in the Diplomatic Corps. He is the only one who really reaches the 
 masses. He is the only one in whom the people, as a whole, have any 
 interest. Of him alone it is expected that he will be less of an official 
 and more of a man. One never hears of the Russian or German Ambas- 
 sador being asked to lecture before a philosophical or historical society, 
 or invited to a literary dinner. They and their colleagues are permitted 
 to stand outside all but a fraction of the national life. They may en- 
 trench themselves behind the ramparts of society and officialdom, and 
 none will seek to drag them forth. The public at large knows nothing of 
 them, and does not care to know anything. They are what the American 
 Ambassador never is, they are foreigners, and treated as such. We 
 surrender them cheerfully to Downing-Street, the Court, and the West 
 End. . . . We never really give the poor man a moment's rest. We 
 might almost be accused of trying to kill him with kindness/ Even 
 before he lands on English soil he is pounced upon by the Mayor and 
 Corporation of Southampton, an address of welcome fired at him on 
 shipboard, and a speech extorted from him in reply. And that is but 
 a foretaste of what is to come. . . . But as it is, no sooner has he pre- 
 sented his credentials than the bombardment begins. I must admit at 
 once it is most vigorously replied to. England and the American Am- 
 bassador set to forthwith to see which can spoil the other the most. 
 Chambers of Commerce swoop down upon him and bear him off in 
 triumph as their guest of honour. The Omar Khayyam Club points 
 an invitation at this head, demanding unconditional surrender. The 
 Dante Society insists on his escorting its members through the infernal 
 regions. The Wordsworth Society, the Browning Society, the Boz Club, 
 the Sir Walter Scott Club, all press their claims. The Birmingham 
 and Midland Institute insidiously elects him as its annual president, 
 and exacts by way of tribute an address on Benjamin Franklin. The 
 Edinburgh Philosophical Institution bestows the same honor for the 
 price of a paper on Abraham .Lincoln. And so it goes on. The big 
 public schools, knowing that he is an American, and therefore wrapped 
 up in education, play upon his weakness and lure him into distributing 
 their prizes. Political leagues expect him to tell them all about the 
 United States Supreme Court. The historic City companies never once 
 let go of him. He is a standing feature on the toast-list of the Guildhall 
 banquet. Charitable and philanthropic societies pursue him relentlessly. 
 Working men's institutes, trading on his democratic sympathies, bid 
 for an evening's loan of his presence and voice. Libraries refuse to be 
 opened except by him. He is the obvious man to unveil a bust or a 
 portrait. The organizers of a dinner in honor of a famous English 
 cartoonist turn to the American Embassy for the orator of the occasion. 
 After all, I suppose it is partly America's own fault. She should not 
 send us such charming, cultivated, broad-gauged men. Adams, Lowell, 
 
680 AMERICAN FEDERAL GOVERNMENT 
 
 Phelps, Bayard, Hay, and -Choate, what other country has sent us 
 representatives to compare with them? The capacity of a long line of 
 American Ambassadors to warm both hands at the cheerful fire of 
 English existence has been so palpable, their interests have been so 
 manifestly stretched beyond the humdrum game of protocols and de- 
 spatches, they touch life at so many more points than the ordinary 
 professional diplomat, that we should hardly know what to do if the 
 United States accredited to the Court of St. James anyone short of her 
 best. A tongue-tied, unsociable, purely official American Ambassador 
 has become unthinkable to this country. We calmly take it for granted 
 that the representative of the United States, whoever he may be, will 
 be a first-class after-dinner speaker, and able and willing at any time to 
 deliver an address, preside at a meeting, or unveil a monument. And so 
 he invariably is. Why, then, should we not use him for our profit and 
 entertainment ? " 
 
 The suggestion thus conveyed is valuable, now that our ambassadors 
 are in hourly connection with Washington, and have become little more 
 than messengers and clerks in their ordinary work. May they not be 
 employed in acquainting people of one nation with the people of another ? 
 For this purpose miscellaneous ability is more effective than training. 
 After he had become famous, Thackeray sought appointment as secretary 
 of legation at Washington. The place was refused him because it had 
 been promised to some one else, and also because some budding diplo- 
 mat was deemed fairly entitled to it. We make ambassadors of men 
 like Thackeray. To compare with him J. F. T. Cramp ton, Esq., at 
 about that time British minister to Washington, seems to us absurd. 
 
 It is said that training is needed to avoid the blunders often com- 
 mitted by men who are unacquainted with the ways of courts. This 
 is obvious, but how important are these blunders, after all ? They give 
 rise to the gossip common in the diplomatic circles of Pumpernickel and 
 elsewhere, but, except in Pumpernickel, do the people of importance 
 really care? Those who govern great states, be they sovereigns or 
 ministers, are interested to find intelligence and capacity anywhere. 
 They leave questions of precedence and clothes for the most part to 
 their chamberlains and valets. 
 
 We have been successful in interesting the English people in our 
 ambassadors, and their official position has not been much damaged 
 by this interest. We have profited by the transaction, and this profit 
 would have been impossible had we sent trained diplomats to London. 
 In less degree we have profited elsewhere. We have certain advantages 
 in supplying representatives of this sort, besides natural American adapt- 
 ability. We draw from all the nations of Europe, and ought not to be 
 strangers to any of them. Some of them are ripe for an ambassador 
 who will talk to the people or to large classes of the people as our repre- 
 sentatives have talked to the people of England for a generation. That 
 
THE AMERICAN FOREIGN SERVICE 681 
 
 one of our ambassadors appeals especially to men of letters, another to 
 men of business, a third to men in public life, and still a fourth to teach- 
 ers, but adds variety to the general interest aroused by the succession. In 
 these latter days the people of one country are becoming curious about 
 the people of another. International friendship and international toler- 
 ance, both important in their place, are advanced by international knowl- 
 edge. The exchange of professors between our universities and those 
 of continental Europe illustrates this growing interest of one people in 
 another. Professor Wendell, lecturing last year in the provinces as well 
 as in Paris, owed his welcome to his nationality as well as to his learn- 
 ing and literary skill. This year in Germany Professor Peabody has 
 similar greeting from the Germans, and both will leave behind them 
 sound knowledge and good feeling which the publication of their written 
 lectures could not have effected. To expect our ambassador to open 
 museums and to lecture on politics and literature seems, at first sight, to 
 be asking him to go outside his vocation; but does not our English 
 experience prove that the service he thus renders is in itself important, 
 and that it does not interfere with duties more strictly diplomatic ? Let 
 us suppose, for example, that President Roosevelt, when he leaves his 
 office, were sent to represent us for a while in some continental country. 
 The people of that country would be immensely interested to see him 
 and hear him. Seeing and hearing him, they would be interested in us, 
 and would learn to know us better. With increased knowledge, they 
 would lose some misconceptions and prejudices, and thus we should 
 profit by our representative. That the President is not a trained diplo- 
 mat is unimportant. It may well be that we can employ him more 
 profitably than as an ambassador, but the suggestion explains my 
 meaning. 
 
 Illustration may be found also in the diplomacy of other countries. In 
 the Boxer troubles of 1900, China owed much to her envoy in this country. 
 No doubt he discharged his diplomatic duty at Washington, but he did 
 much more. In the face of the American people, he maintained the 
 Chinese cause under extraordinary difficulties. We did not altogether 
 believe what he said, but 'we were forced to hear him. He interested us, 
 and, even against our will, made us feel human kinship with his people, 
 while he showed such knowledge of ours. 
 
 A trained diplomat, indeed, can be of service to a lawyer, or poet, or 
 college president, sent to represent us at a European court. If the 
 secretary of legation will attend to the routine of the office and will 
 coach the ambassador in the details of behavior and dress, the latter 
 can attend to serious matters with more leisure and effect. But to carry 
 out this plan, the promotion of our regularly trained diplomats must 
 stop short of the highest places in our diplomatic service, and it is doubt- 
 ful if reasonably intelligent young men will be attracted to a service in 
 which they must remain subordinates. No professional training, how- 
 
682 AMERICAN FEDERAL GOVERNMENT 
 
 ever well directed, no experience, however extensive, will produce men 
 to compare in general ability and distinction with our representatives 
 in England, chosen almost at haphazard, during the last fifty years. 
 
 In the matter of payment, we touch upon one of our most serious 
 difficulties. The salaries now paid are too low, especially for married 
 men with considerable families. Private means are now needed to sup- 
 plement the official salary, and so we are coming to appoint as ambassa- 
 dors only those men whose private means are large. This may not be 
 absolutely necessary. Mr. Roosevelt or Mr. Hay might live in London 
 on $17,500 a year without loss of prestige, but it takes great distinction 
 to make so little money go so far. We can not expect to get it in every 
 case. As things go, the salary is not ordinarily large enough to enable 
 our representative to live like his diplomatic colleagues. Therefore we 
 appoint rich men ambassadors, to eke out the salary from their private 
 wealth. Not only do they do this, but they outspend their colleagues so 
 lavishly, that soon the merely rich man will be embarrassed by the ex- 
 travagance of his predecessor. To curtail expense, especially for an 
 American, is difficult. Yet the inability to live on his official salary 
 ought not to lead an ambassador to spend ten times that amount. No 
 nation can pay a salary like that. No nation ought to do so. But few 
 men have that amount of money to spend, and not all the members of 
 the small class of the very rich have the distinction which we ought to 
 find in our foreign representatives. To limit our choice to multi-million- 
 aires would be in every way unfortunate. If an ambassador's expenses 
 are very large, whether he can afford them or not, he makes it harder 
 for his successor to practice economy. To determine what an ambas- 
 sador ought to spend in one place or another may not be easy, but we 
 should make the best guess possible, fix the salary accordingly, and 
 intimate strongly and officially to our representatives that their style 
 of living should correspond. 
 
XIII 
 CIVIL SERVICE 
 
 FROM THE FIRST ANNUAL MESSAGE OF PRESIDENT 
 HARRISON, 1889 
 
 ON the 4th of March last the Civil Service Commission had but a 
 single member. The vacancies were filled on the yth day of May, and 
 since then the Commissioners have been industriously, though with an 
 inadequate force, engaged in executing the law. They were assured by 
 me that a cordial support would be given them in the faithful and im- 
 partial enforcement of the statute and of the rules and regulations adopted 
 in aid of it. 
 
 Heretofore the book of eligibles has been closed to everyone, except as 
 certifications were made upon the requisition of the appointing officers. 
 This secrecy was the source of much suspicion and of many charges 
 of favoritism in the administration of the law. What is secret is always 
 suspected ; what is open can be judged. The Commission, with the full 
 approval of all its members, has now opened the list of eligibles to the 
 public. The eligible lists for the classified post offices and custom-houses 
 are now publicly posted in the respective offices, as are also the certifica- 
 tions for appointments. The purpose of the civil-service law was 
 absolutely to exclude any other consideration in connection with appoint- 
 ments under it than that of merit as tested by the examinations. The 
 business proceeds upon the theory that both the examining boards and 
 the appointing officers are absolutely ignorant as to the political views 
 and associations of all persons on the civil-service lists. It is not too 
 much to say, however, that some recent Congressional investigations 
 have somewhat shaken public confidence in the impartiality of the selec- 
 tions for appointment. 
 
 The reform of the civil service will make no safe or satisfactory ad- 
 vance until the present law and its equal administration are well estab- 
 lished in the confidence of the people. It will be my pleasure, as it is 
 my duty, to see that the law is executed with firmness and impartiality. 
 If some of its provisions have been fraudulently evaded by appointing 
 officers, our resentment should not suggest the repeal of the law, but 
 reform in its administration. We should have one view of the matter, 
 
 683 
 
684 AMERICAN FEDERAL GOVERNMENT 
 
 and hold it with a sincerity that is not affected by the consideration that 
 the party to which we belong is for the time in power. 
 
 My predecessor, on the 4th day of January, 1889, by an Executive 
 order to take effect March 15, brought the Railway Mail Service under 
 the operation of the civil-service law. Provision was made that the 
 order should take effect sooner in any state where an eligible list was 
 sooner obtained. On the nth day of March Mr. Lyman, then the only 
 member of the Commission, reported to me in writing that it would not 
 be possible to have the list of eligibles ready before May ist, and requested 
 that the taking effect of the order be postponed until that time, which 
 was done, subject to the same provision contained in the original order 
 as to States in which an eligible list was sooner obtained. 
 
 As a result of the revision of the rules, of the new classification, and 
 of the inclusion of the Railway Mail Service, the work of the Commis- 
 sion has been greatly increased, and the present clerical force is found 
 to be inadequate. I recommend that the additional clerks asked by the 
 Commission be appropriated for. 
 
 The duty of appointment is devolved by the Constitution or by the 
 law and the appointing officers are properly held to a high responsibility 
 in its exercise. The growth of the country and the consequent increase 
 of the civil list have magnified this function of the Executive dispropor- 
 tionately. It can not be denied, however, that the labor connected with 
 this necessary work is increased, often to the point of actual distress, by 
 the sudden and excessive demands that are made upon an incoming 
 Administration for removals and appointments. But, on the other hand, 
 it is not true that incumbency is a conclusive argument for continuance 
 in office. Impartiality, moderation, fidelity to public duty, and a good 
 attainment in the discharge of it must be added before the argument is 
 complete. When those holding administrative offices so conduct them- 
 selves as to convince just political opponents that no party consideration 
 or bias affects in any way the discharge of their public duties, we can 
 more easily stay the demand for removals. 
 
 I am satisfied that both in and out of the classified service great benefit 
 would accrue from the adoption of some system by which the officer 
 would receive the distinction and benefit that in all private employments 
 comes from exceptional faithfulness and efficiency in the performance 
 of duty. 
 
 I have suggested to the heads of the Executive Departments that they 
 consider whether a record might not be kept in each bureau of all those 
 elements that are covered by the terms "faithfulness" and "efficiency," 
 and a rating made showing the relative merits of the clerks of each class, 
 this rating to be regarded as a test of merit in making promotions. 
 
 I have also suggested to the Postmaster- General that he adopt some 
 plan by which he can, upon the basis of the reports to the Department 
 and of frequent inspections, indicate the relative merits of postmasters 
 
CIVIL SERVICE 685 
 
 of each class. They will be appropriately indicated in the Official Reg- 
 ister and in the report of the Department. That a great stimulus would 
 thus be given to the whole service I do not doubt, and such a record 
 would be the best defense against inconsiderate removals from office. 
 
 FROM THE FOURTH ANNUAL MESSAGE OF PRESI- 
 DENT CLEVELAND, 1896 
 
 THE progress made in civil-service reform furnishes a cause for the 
 utmost congratulation. It has survived the doubts of its friends as well 
 as the rancour of its enemies and has gained a permanent place among 
 the agencies destined to cleanse our politics and to improve, economize, 
 and elevate the public service. 
 
 There are now in the competitive service upward of 84,000 places, 
 more than half of these having been included from time to time since 
 March 4th, 1893. A most radical and sweeping extension was made by 
 Executive order dated the 6th day of May, 1896, and if fourth-class 
 postmasterships are not included in the statement it may be said that 
 practically all positions contemplated by the civil-service law are now 
 classified. Abundant reasons exist for including these postmasterships, 
 based upon economy, improved service, and the peace and quiet of neigh- 
 borhoods. If, however, obstacles prevent such action at present, I 
 earnestly hope that Congress will, without increasing post-office appropri- 
 ations, so adjust them as to admit in proper cases a consolidation of these 
 post offices, to the end that through this process the result desired may 
 to a limited extent be accomplished. 
 
 The civil-service rules as amended during the last year provide for a 
 sensible and uniform method of promotion, basing eligibility to better 
 positions upon demonstrated efficiency and faithfulness. The absence 
 of fixed rules on this subject has been an infirmity in the system more 
 and more apparent as its other benefits have been better appreciated. 
 
 The advantages of civil-service methods in their business aspects are 
 too well understood to require argument. Their application has become 
 a necessity to the executive work of the Government. But those who 
 gain positions through the operation of these methods should be made 
 to understand that the non-partisan scheme through which they receive 
 their appointments demands from them by way of reciprocity non- 
 partisan and faithful performance of duty under every Administration 
 and cheerful fidelity to every chief. While they should be encouraged 
 to decently exercise their rights of citizenship and to support through 
 their suffrages the political beliefs they honestly profess, the noisy, pesti- 
 lent and partisan employee, who loves political turmoil and contention 
 or who renders lax and grudging service to an Administration not repre- 
 
686 AMERICAN FEDERAL GOVERNMENT 
 
 senting his political views, should be promptly and fearlessly dealt with 
 in such a way as to furnish a warning to others who may be likewise 
 disposed. 
 
 THE CIVIL SERVICE UNDER ROOSEVELT 1 
 BY WILLIAM B. SHAW 
 
 THE President of the United States, as every one knows who has read 
 the Constitution of his country, is commander-in-chief of the army and 
 navy. He is also the head of an organized body of civil servants, far 
 outnumbering our standing military and naval forces, a body un- 
 known to the Constitution, since the very possibility of its existence 
 was undreamed of by the fathers of the republic. There are about two 
 hundred and eighty thousand of these men and women who toil daily 
 in Uncle Sam's vineyard, and they are as truly the nation's servants as 
 are the soldiers and sailors who fight its battles. Among them are 
 some whose lives are by no means lacking in the heroic, some whose 
 devotion to duty is not less noble because their service has been rendered 
 without trumpet-and-drum accompaniment. 
 
 A CIVIL-SERVICE PRESIDENT 
 
 It is no disparagement of the military arm to the Government to ac- 
 knowledge that without the civil arm it would be powerless, and especially 
 in a democracy like ours it would seem to be almost an axiom of success- 
 ful administration that the executive civil service should be as thoroughly 
 organized and trained to as high a degree of efficiency as the military 
 or naval service. Yet it is only a short span of years since this truth 
 began to be recognized by our government as a principle of conduct. 
 Men who are hardly gray can recall the time when practically every 
 salaried position on the Government's roster, from the department 
 secretaryships down to the jobs of the messengers and charwomen in 
 the corridors of the big Washington office buildings, was regarded as the 
 legitimate loot of the place-hunter. In those days men were not esteemed 
 for what they knew about the Government's work. It was not deemed 
 necessary that a President should be familiar with the affairs of one or 
 more of the executive departments. How many Presidents have entered 
 office with any personal knowledge whatever of departmental business ? 
 For our Presidents we chose military heroes, Congressmen, or "favorite 
 sons " of States, never men experienced in the actual executive business 
 at Washington. The fact is, that Theodore Roosevelt is the first occu- 
 pant of the Presidential chair who has come to the office equipped with 
 intimate knowledge, based on personal experience, of the practical work- 
 1 Review of Reviews, March, 1905. Reprinted by permission. 
 
CIVIL SERVICE 687 
 
 ings of the great governmental machine. Some of the best years of his 
 life had been given to the cause of civil-service reform, not as an agi- 
 tator on the outside, but as a practical administrator on the inside, hold- 
 ing the important post of president of the Civil Service Commission, 
 facing grave problems of organization and method, of which the doctri- 
 naire reformer had little conception, and gaining through it all an 
 experience that has proved a valuable asset in the still broader respon- 
 sibilities of the Presidency. That experience, supplemented as it was by 
 his term of office as Assistant Secretary of the Navy, familiarized Mr. 
 Roosevelt with the routine of executive business, so that now, as the 
 head of the whole governmental system, his relation to the personnel 
 may be likened to that sustained by an army's commander to the sub- 
 ordinate officers in successive gradations of rank through which he has 
 himself risen. 
 
 It is only natural, then, that those who are working for the improve- 
 ment of the national civil service should count on the Roosevelt ad- 
 ministration as an active and vigilant ally. We have a President in 
 office who knows as well as a man in his position can know what the 
 system is and how it works, its merits and its defects. Its problems 
 and its difficulties he has made his own. He has had a hand in reform- 
 ing its abuses, and more than once he has come to its defense when it 
 was set upon by powerful enemies. Perhaps the inauguration of a "civil- 
 service President" marks an appropriate time for a rapid survey of the 
 conditions under which the government's work is performed by its army 
 of civil servants. Changes more far-reaching, possibly, than the American 
 public suspects, have within a few years so transformed those con- 
 ditions that government employment in Washington and elsewhere now 
 presents wholly new phases. Moreover, most of the discussion of the 
 subject heretofore has been confined to the political or theoretical aspects 
 of the situation, to the neglect of certain more concretely human aspects. 
 
 THE CHANGES OF TWENTY YEARS 
 
 When Mr. James Bryce wrote "The American Commonwealth" he 
 did not think it worth while to include a chapter on the public service, 
 as he would almost certainly have done in writing a similar treatise on 
 any of the European states ; but it is not recalled that anybody noticed 
 the omission. The truth is, that twenty years ago in this country, gov- 
 ernmental employment, with a few exceptional instances, was anything 
 but a dignified calling. It offered few attractions to the educated youth 
 of the land. Its rewards were transitory at best. Every official's for- 
 tunes, however humble, depended on the coming and going of Presidents, 
 Senators, and Representatives. To the great body of our citizenship, 
 the whole business signified nothing more than a mad scramble, every 
 four years, for place and pelt. The Government had not impressed the 
 
688 AMERICAN FEDERAL GOVERNMENT 
 
 national imagination by its undertakings. Little was known of the 
 official routine. Every job at Washington was believed to be a sinecure. 
 Every office-holder was regarded as a spoilsman, who held his place 
 only by the favor of some other spoilsman. Every office-holder was regu- 
 larly and openly assessed a considerable part of his salary for campaign 
 expenses at every election. Moreover, he was expected to neglect his 
 official duties at election time and devote all his energies to election- 
 eering for his party. What wonder that under such conditions the 
 maxim that " public office is a public trust" seemed merely an empty 
 platitude ! 
 
 This state of affairs had developed gradually during the first century 
 of the Republic's life, and it was not to be radically altered in a day. 
 Some of the attendant evils are still with us. Yet it requires but a brief 
 sojourn at the national capital to convince one that the general situation, 
 as respects office-holding and all forms of public employment, is very 
 different to-day from what it was, for example, when President Garfield 
 took office and virtually sacrificed his life to the spoils demon. One now 
 finds in the service of the Government hundreds of university-trained 
 men who have entered on avenues of advancement in the public service 
 that vie in attractiveness with academic careers. Furthermore, thou- 
 sands of the purely clerical positions in the departments are filled by men 
 and women who in training and equipment for their duties would do 
 credit to the best-managed business houses in the land. 
 
 WHAT THE LAW OF 1883 SOUGHT TO ACCOMPLISH 
 
 An inquirer seeking a reason for this transformation (and it is nothing 
 less) in the conditions affecting public employment in Washington and 
 throughout the United States, will be told that the chief cause is to be 
 found in the operation of the Civil Service Act of 1883, known for some 
 years after its passage as the Pendleton Act, in recognition of the fact 
 that it was fathered by the venerable Democratic Senator from Ohio. 
 The passage of this law was the most effective blow ever dealt at the 
 spoils system in this country. Yet its immediate results gave little prom- 
 ise of the increasing potency which has developed with each successive 
 administration since that of President Arthur, when its machinery was 
 set in motion. In brief, the law provided for the appointment of three 
 commissioners, not more than two of whom should be adherents of the 
 same political party, and made it the duty of the commission to aid the 
 President in preparing suitable rules for the government of the civil 
 service. It was required that these rules should provide, among other 
 things, for open competitive examinations for testing the fitness of appli- 
 cants for the classified service ; that appointments should be made from 
 among those passing these examinations with highest grades ; that such 
 appointments should be apportioned in the departments at Washington 
 
CIVIL SERVICE 689 
 
 among the States and Territories ; that there should be an appointment 
 on probation before absolute appointment, and that the use of official 
 authority to coerce the political action of any person or body should be 
 absolutely prohibited. Provision was also made in the act for investi- 
 gations touching the enforcement of the rules, and a penalty of fine or 
 imprisonment, or both, was imposed for the solicitation by any person 
 in the service of the United States of contributions to be used for political 
 purposes of persons in such service, or the collection of such contribu- 
 tions by any person in any government building. 
 
 THE MEN WHO ENFORCED THE LAW 
 
 Now, as we look back to-day upon the immediate effects of the early 
 enforcement of this law in the administrations of President Arthur and 
 President Cleveland, it is hard to understand why such an outcry should 
 have been made about it at the time, or why it should have been deemed 
 so revolutionary in principle. Only fourteen thousand places were at 
 first included in the classified service. This number was increased 
 gradually during the first Cleveland administration, and more extensively 
 in the Harrison administration, the second Cleveland administration, 
 and the administrations of Presidents McKinley and Roosevelt, until 
 at the present time more than one-half of the total federal civil service 
 of the country, or, to be exact, 154,093 positions, are classified subject 
 to competitive examination under the civil-service rules. In other words, 
 there are eleven times as many persons who now owe their appointments 
 in the civil service to the operation of competitive tests as were included 
 within the scope of the rules when the commission first set them in opera- 
 tion. More than 133,000 persons were examined last year, of whom 
 103,718 passed, and 50,830 received appointments. It has been found 
 necessary to divide the country into thirteen districts for the purpose of 
 conducting examinations. Such an increase as this could not have been 
 achieved had not the system itself, and its administration as well, com- 
 mended themselves to Congress and to the heads of departments at 
 Washington. An indifferent or lukewarm board of commissioners 
 might at any time during the past twenty-two years have practically 
 nullified the law and defeated its whole purpose, but the country has 
 been fortunate in the character of the men who have served as Civil 
 Service Commissioners. Beginning with George William Curtis, who 
 declined the English mission in order to take the presidency of the first 
 Civil Service Commission in Grant's administration, under an earlier 
 law, the men who have served the Government's interests in this impor- 
 tant office have set excellent examples of patriotism and devotion to public 
 duty. The Commission has had Democratic presidents under Repub- 
 lican administrations and Republican presidents under Democratic 
 administrations. Some of its members have been intense partisans, 
 
 44 
 
690 AMERICAN FEDERAL GOVERNMENT 
 
 and yet no charge of pernicious political activity has been laid at the 
 Commission's door. 
 
 During President Harrison's administration, and in the first half of 
 President Cleveland's second administration, the president of the com- 
 mission was Theodore Roosevelt. He was a Northern Republican, and 
 he had as associates on the commission two Southern Democrats, 
 ex-Gov. Hugh S. Thompson, of South Carolina, and the late John R. 
 Procter, the former State geologist of Kentucky. Mr. Roosevelt has 
 himself said of his associates, both of whom had served in the Confederate 
 army, that "it would be impossible for any one to desire as associates 
 two men with higher ideals of duty, or more resolute in their adherence 
 to those ideals." In the same connection, Mr. Roosevelt has declared 
 that "in all the dealings of the commission in those years, there was no 
 single instance wherein the politics of -any person or the political signifi- 
 cance of any action was so much as taken into account in any case that 
 arose." Other commissioners of ability and eminence who succeeded 
 Roosevelt were the Hon. William Dudley Foulke, of Indiana, and the 
 Hon. James R. Garfield, of Ohio, now Commissioner of Corporations. 
 The president of the commission at the present time is Gen. John C. 
 Black, of Illinois, a lifelong Democrat, and with him are associated the 
 Hon. Alford W. Cooley, of New York, and the Hon. Henry F. Greene, 
 of Minnesota, both Republicans. The secretary of the commission, 
 Mr. John T. Doyle, has held his present position throughout the com- 
 mission's history, from the time when the entire effects and archives of 
 the office were transported from one Washington building to another in 
 an ordinary pushcart, until to-day, when an entire five-story building 
 is inadequate for the work of the bureau. The present chief examiner 
 of the commission, Mr. Frank M. Riggings, served an apprenticeship 
 at departmental duties before his connection with the commission, 
 and is familiar with the examination problem in its most practical 
 phases. The same thing is true of other members of the examining 
 staff. 
 
 This matter of the commission's personnel is important in any con- 
 sideration of the improvement and reform of the civil service. All the 
 officials of the commission, from the beginning, seem to have been ani- 
 mated with a desire not merely to enforce the letter of the law, but to do 
 everything possible to make it effective in the broadest sense. A con- 
 tinual campaign of popular education has been necessary in order to 
 make the great outside public understand that its own interests were 
 cared for and guarded by the commission, while, at the same time, no 
 little persuasion was necessary in the early years in order to bring about 
 the hearty cooperation of the heads of departments and the bureau 
 chiefs. After more than a score of years of enforcement, it is the all but 
 unanimous conclusion that the law has vindicated itself and has amply 
 justified its enactment. No head of a government department would 
 
CIVIL SERVICE 691 
 
 to-day be willing to go back to the conditions of 1880, even if the law 
 were to be repealed to-morrow. It is quite probable that in the event 
 of such a repeal, the first action taken in most of the departments would 
 be the establishment of a system of competitive tests based on the ex- 
 aminations now conducted by the Civil Service Commission. It should 
 not, however, be inferred that the heads of all the executive departments 
 and bureaus are unanimous in approval of examinations per se. As a 
 bureau chief said to the writer a few days ago, "The examinations do 
 not in every case form the best test. All that can be said of them is that 
 for the purpose intended, applicable to the great mass of clerical posi- 
 tions in Washington, no better means has been devised for securing a 
 fair competitive test." 
 
 EXAMINATIONS MADE PRACTICAL 
 
 Still, as the system has developed with the years, the practicality of 
 the examinations has steadily gained, and the best proof of the general 
 usefulness of the system is to be found in the fact that it brings to the 
 various departments the types of candidates most desired. The heads 
 of the scientific bureaus in Washington would be the first to resent any 
 failure on the part of the commission to supply desirable material for 
 positions in their specialties. The fact is, that under the workings of 
 the examination system, specialists are continually coming to Washington 
 and receiving appointments in one part or another of the service, who 
 represent the best-trained intellects available in the country in those 
 particular lines. Perhaps it is not fully understood outside of Wash- 
 ington to how great an extent the departments themselves now have in 
 hand the framing of examination questions for these technical positions. 
 Recognizing the fact that the department itself is the best judge of the 
 qualifications required for appointees of this character, the Civil Service 
 Commission has wisely sought the active cooperation of the departments 
 in the framing of examination questions. It is decided, for example, 
 that the Secretary of Agriculture desires to call to Washington for the 
 government service a man trained in the study of noxious plant growths. 
 The department itself knows better than any outsider possibly can what 
 are the particular qualifications demanded in this position. At the same 
 time, it is for the interest of the department that the spirit of the law 
 should be fully observed, since better qualifications can in many cases 
 be secured through competition than otherwise. The Civil Service Com- 
 mission is notified by the department that it is desired to fill the vacancy 
 in question, and the commission proceeds to request the department to 
 suggest questions to be used in the competitive examination which is 
 advertised to be held. 
 
692 AMERICAN FEDERAL GOVERNMENT 
 
 Six HUNDRED DISTINCT EXAMINATIONS 
 
 The commission itself conducts at the present time more than six 
 hundred different kinds of examinations, and it is not to be supposed 
 that its examiners, unaided, can cover this entire field to the satisfaction 
 of the departments. In the case which we are considering, the Agricul- 
 tural Department frames its questions and submits them to the commis- 
 sion; the examination is held by the commission, and in due time the 
 names of the successful candidates are sent to the department, which 
 then makes its own selection of one name from three. If the department 
 had the entire management of the matter in its own hands, it is difficult 
 to see how it could make the test more practical or secure better results. 
 In fact, the methods of the commission in the matter of examinations, 
 from start to finish, all tend to the most practical results attainable. In 
 the preparation of questions, the thing kept constantly in view is the 
 nature of the duties to which the candidate will be assigned on appoint- 
 ment. The whole object of the test is to ascertain the candidate's quali- 
 fications for those particular duties. In the case of the special technical 
 positions to which reference has been made, the difficulty experienced 
 by an outside examiner in comprehending the nature of these specific 
 duties is overcome by reference of the whole matter to the authorities 
 directly concerned. Thus, the whole object of the law is secured, the 
 department attains its end, the candidates are subjected to the fairest 
 possible tests, and the general good of the service is promoted. 
 
 TESTS FOR MECHANICAL AND EXPERT POSITIONS 
 
 Turning from these positions, in which the highest form of technical 
 ability is required, to the far more numerous places for which certain 
 specific, practical tests are necessary, we find that the commission has 
 steadily increased the efficiency of its examination system. The public 
 has sometimes been led to suppose that persons applying for mechanical 
 positions are subjected to purely literary tests. Nothing could be further 
 from the truth. In examinations in mechanical trades, the subjects con- 
 sidered are not educational tests at all, but simply age, physical condition, ' 
 and experience, the relative weights of which (on a scale of 100) are as 
 follows: age, 20; physical condition, 20; experience, 60. Then, too, 
 in classes of positions requiring expert knowledge of some particular 
 trade or calling, the tests applied are of the most practical character. 
 Take, for example, the examination of local and assistant inspectors of 
 hulls, under the Steamboat Inspection Service. Here the relative weights 
 of subjects, on a scale of 100, are: letter- writing, 10; arithmetic (com- 
 prising problems in common and decimal fractions, mensuration, and 
 square root), 10; hull construction (comprising questions relative to 
 
CIVIL SERVICE 693 
 
 the construction and strength of wood and iron hulls of vessels, and 
 a description of the various parts and method of joining same), 30; 
 pilot rules and inland navigation, 20; knowledge of lifeboats and life- 
 rafts, 10 ; experience, 20. The criticisms of the examinations that 
 were made in the early days of the commission have vanished before 
 every thoroughgoing investigation into the scope and character of the 
 questions themselves. 
 
 THE CASE OF THE RAILWAY MAIL SERVICE 
 
 The best answer to such criticisms, however, is to be found in the 
 actual results produced by the system. As to these results, the men 
 directly in charge of the departments and bureaus affected are, of course, 
 best qualified to speak. Going back a few years, one of the most strik- 
 ing instances of the effect of civil-service examinations on the standards 
 of government employment is the notable improvement in the efficiency 
 of the railway mail service as recorded from year to year in the official 
 reports. It will be remembered that this important branch of the Post 
 Office, after having been the football of both political parties for many 
 years, was brought under the classified civil service during President 
 Harrison's administration, in the year 1889. Prior to that time. Re- 
 publican clerks had been turned out by a Democratic administration, 
 and, in the early months of President Harrison's Republican administra- 
 tion, a large number of Democratic clerks had in turn been dismissed. 
 The whole service was utterly demoralized, and it probably reached at 
 that time the lowest state of efficiency in its history. It was some months 
 after the introduction of entrance examinations before the resulting 
 change in the character of the appointees began to make itself felt in the 
 general efficiency of the service. After a time, however, a marked im- 
 provement was noted, and, in the opinion of those best qualified to judge, 
 the advance was attributable mainly, if not wholly, to the application of 
 the civil-service tests. For the fiscal year ended June 30, 1890, the errors 
 in distribution committed by railway mail clerks amounted to the enor- 
 mous total of 2,789,245. This meant that 2,834 pieces of mail matter 
 were correctly handled to each error disclosed. Within the next twelve 
 months, the number of errors had greatly decreased, and the number 
 of pieces correctly handled to each error was found to be 4,261. There- 
 after there was a steady decrease in the number of errors until the year 
 1898, when the number of errors had fallen below a million, and the 
 number of "correct" pieces to each error was 11,960, the highest number 
 ever reached by the service. Since that time the efficiency has been 
 maintained at a relatively high level, the number of correct pieces to 
 each error never falling below 10,000, and in 1904 exceeding n,ooo. 
 The sum of the whole matter is that in 1890, when the evils of the spoils 
 system were still rife in the railway mail service, the clerks made an error 
 
694 AMERICAN FEDERAL GOVERNMENT 
 
 to every 2,800 pieces of mail that they handled; while in recent years, 
 the system, being manned by appointees chosen under the civil-service 
 rules, the ratio of errors is one to every 11,000. This is a concrete case, 
 in which every citizen is concerned, and it invites the attention of every 
 business man who is interested in securing as high a state of efficiency 
 in government work as has been attained by private enterprise. 
 
 GENERAL GAINS IN ECONOMY AND EFFICIENCY 
 
 For obvious reasons, it has not been an easy matter to apply tests of 
 this kind to the multifarious bureaus which make up the national civil 
 service. The main difficulty is that many features of the arbitrary clas- 
 sification of clerkships, which was made more than fifty years ago, still 
 survive. In most of the Government offices there is a failure to observe 
 a logical division of duties. Thus, a $1,400 clerk will be found per- 
 forming work of precisely the same character as that performed by a 
 $1,200 clerk. Frequently a clerk promoted from $1,200 to $1,400 does 
 exactly the same work after his promotion that he did before. All this 
 confusion in the system makes it difficult to apply any general test show- 
 ing how the efficiency of a bureau or department has been affected by 
 the operation of the civil-service law. The officials of the Treasury 
 Department will tell you, however, that in the customs service alone there 
 has been an actual saving, in the matter of salaries, of at least 10 per cent. 
 This would mean an annual saving to the Government of not less than 
 two million dollars. Some years ago, it was estimated that altogether 
 ten million dollars was saved to the Government in the various depart- 
 ments through the operation of the law, by the reduction in the required 
 number of clerkships and the increased efficiency of the new employees. 
 If this statement was justified when it was made, the saving to-day must 
 be far greater, since many thousand offices have been added to the clas- 
 sified service within the last few years. That public opinion in the 
 country at large has been favorably impressed by these object-lessons 
 is shown by the agitations in various States and cities for local systems 
 similar in principle and method to the federal civil-service establishment. 
 
 THE PAY FOR GOVERNMENT WORK 
 
 In regard to the compensation for government work, intelligent ob- 
 servation will probably confirm the epigrammatic statement in the 
 newspaper witticism that has lately gone the rounds, to the effect that 
 the pay is small for some public officials, but that some public officials 
 are small for the pay. As a rule, the lower positions in the government 
 service are paid more, and the higher positions less, than in private 
 business. In most of the offices advancement is slower, but this is partly 
 compensated for by the fact that the pay is higher on the whole in the 
 
CIVIL SERVICE 695 
 
 earlier years. A man who has worked ten years for Uncle Sam will 
 probably have had a gross income about equal to what a man of similar 
 abilities, working the same length of time, would have received from a 
 railroad company. At the start his salary would have been better than 
 the railroad man's, but the latter in all likelihood would have caught 
 up with him and outstripped him in the ten-year period. In the long 
 run, one evens up with the other. This statement applies to the general 
 departmental positions in Washington. 
 
 Young professional and scientific men of special qualifications are 
 started on salaries corresponding pretty closely on the average with the 
 salaries of "instructors" on college and university faculties. The gov- 
 ernment man has no long vacation in the year corresponding with that of 
 the college professor. Furthermore, he is held more closely to the obser- 
 vation of office hours. Washington, however, has many attractions for 
 this type of worker. He meets many men of his own degree of education 
 and of similar aspirations, and in not a few cases scientific men, who 
 have proved themselves capable investigators, have been put in respon- 
 sible positions, where they virtually direct the work of many subor- 
 dinates, and control the expenditure of considerable funds in the 
 interest of scientific research. A few such men in Washington have 
 undoubtedly attained such positions far more rapidly than would have 
 been possible on any university faculty. 
 
 Washington offers further advantages to young men of promise who 
 succeed in passing the examinations and obtain places in the depart- 
 ments. There are excellent law and medical schools in the city which 
 accommodate their programmes of lectures to the department hours. It 
 is quite the usual thing for young department clerks to pursue a three- 
 year course of instruction, obtain degrees in law and mec&cine, and then 
 resign their clerkships to embark upon professional careers. But this 
 is by no means the whole purpose of such institutions as the George 
 Washington University, which, under the vigorous administration of 
 President Needham and Dean Tucker, of the Schools of Law, Juris- 
 prudence, and Diplomacy, is making a serious and promising effort to 
 provide courses of instruction that will actually qualify students to fill 
 important posts, especially in the State Department, for which no other 
 university makes systematic provision. There is an increasing number 
 of positions in the departments, notably in the newly organized Depart- 
 ment of Commerce and Labor, in which a sound knowledge of the law 
 in one or more branches is a part of the qualifications required. A man 
 entering on an ordinary clerkship may, by three or four years of study 
 at the law school, qualify himself for one of these semi-technical legal 
 positions. Such a man may reasonably expect quite as good an income 
 in the form of a government salary as the average young lawyer gets in 
 the early years of a private practice. As a life career, on the other hand, 
 government work, it must be admitted, is less alluring to the young man 
 
696 AMERICAN FEDERAL GOVERNMENT 
 
 of ambition. All the higher positions in the service are notoriously 
 ill-paid. It is not at all unusual to find in Washington officials of long 
 experience and the most thorough equipment, controlling the disburse- 
 ment of many thousands of the Government's dollars, holding places 
 of actual responsibility, and receiving a yearly stipend of $2,700, or even 
 less. In some of the scientific bureaus there are compensating advantages, 
 but in the general run of departmental positions, it is hard to discern any 
 rewards at the top that are really worth striving for from the bottom. 
 Most of the plums are on the lower branches of the tree. 
 
 FACTS ABOUT THE PERSONNEL 
 
 A great mass of information about the executive civil service, much 
 of which it is impossible even to summarize in a magazine article, has 
 recently been collected and published in Census Bulletin No. 12, by the 
 Bureau of the Census. From the data thus compiled, it appears that of 
 the 271,169 officers and employees in the service on June 30, 1903, 
 25,810 were employed within the District of Columbia, of which number 
 20,813 were included in the competitive class. The total number in 
 the competitive class outside the District of Columbia at that time was 
 113,736. It also appears from these statistics that the ratio of men and 
 women employed in Washington is 2.73 to i, that outside of Washington 
 it is 18.36 to i, and that in the entire service it is 10.29 to i. From the 
 tabulation of salaries, excluding those classes of employees receiving less 
 than $720 a year, and also those receiving more than $2,500 a year 
 (most of whom are Presidential appointments), the approximate average 
 annual salary of the Washington employee is $1,212, of those employed 
 outside of Washington, $1,010, and of the entire service, $1,053. It 
 is found that the average periods of service of employees were 10.55 
 years in Washington, 6.38 elsewhere, and 7.10 years in the entire service. 
 In Washington, 5.54 per cent of the employees have served more than 
 thirty years, while in the entire service the percentage is only 1.97. A 
 comparison of the length of service of employees in the executive ser- 
 vice with that of the employees of the N^ew York Central & Hudson 
 River Railroad, and the New York, New Haven & Hartford Railroad, 
 revealed the fact that the government service contains a larger propor- 
 tion of employees who have served over ten and less than twenty years; 
 but, of those who served a longer period, the railroad companies can 
 show a larger proportion. 
 
 As to the geographical distribution of government employees, the 
 Eastern and central States of the Union are more fully represented than 
 any other sections of the country among those who take examinations 
 and receive appointments in the service. While Mr. Roosevelt was a 
 Civil Service Commissioner, he made strenuous efforts to fill the quotas 
 of the Southern States, which had long been far behind the North and 
 
CIVIL SERVICE 697 
 
 West in this regard. Much of the old prejudice against the administra- 
 tion of the law was overcome by Mr. Roosevelt's efforts, and it is believed 
 that Southern young men and women are no longer deterred from enter- 
 ing the examinations by any feeling that they will fail to receive fair 
 treatment. Nevertheless, the South is still backward in this respect, 
 and the reason assigned by those who have given the matter special 
 attention is that for the majority of Southern youth the opportunities 
 for securing the kind of training necessary for a successful candidate in 
 the examinations are relatively inferior to those possessed by young 
 people in the North and West. Stenography and typewriting are almost 
 invariably demanded at the present time as qualifications for a Wash- 
 ington clerkship. Throughout the Northern States, the facilities for 
 qualifying in these branches have greatly multiplied within a few years, 
 so that it is now possible for a young man or a young woman, even in the 
 rural districts of Eastern or middle Western States, to secure a fair train- 
 ing in stenography and typewriting. This, however, is still impossible 
 in large regions of the South. 
 
 THE MORAL CHARACTER OF APPOINTEES 
 
 A few months ago, the statement was carelessly made in an American 
 magazine, that not five hundred of the Washington office-holders looked 
 upon their offices as sacred trusts to the people. The author of the 
 statement declared that public opinion among the civil-service employees 
 regarded as clear gain anything that could be gotten out of the Govern- 
 ment, whether an hour's time or a railroad pass for betraying the Gov- 
 ernment's interest under the care of the employees. Against such cheap 
 and wholesale charges should be arrayed the undoubted consensus of 
 opinion among those who have frequent business dealings with the de- 
 partments, as well as among many disinterested observers in Washington 
 who have had opportunities to study the facts that the average govern- 
 ment employee is neither more nor less moral than the average man or 
 woman employed in private business in any of our American cities. It 
 will be recalled that in the post-office scandals of the past few years, the 
 officials indicted have in every instance been political appointees; not 
 one of the employees in the classified service has been found guilty of 
 any form of corruption. The Government requires of all applicants for 
 positions in its service just such indorsement of character as would be 
 demanded by the head of any business house. It would be as reason- 
 able to make wholesale charges of dishonesty against 98 per cent of the 
 employees of the New York Central Railroad Company, as to make such 
 charges against 98 per cent of Washington officialdom. 
 
698 AMERICAN FEDERAL GOVERNMENT 
 
 EXTENSION OF CIVIL-SERVICE RULES 1 
 
 SIGNIFICANT of the present-day attitude has been the slight attention 
 paid in any quarter to the orders amending the civil service rules, which 
 the President signed just before his departure. The public merely 
 notices that the screws have been turned a little tighter in the classified 
 service, and there its interest ceases. This steady progress of the classified 
 service is, however, having some notable results. Congressmen and 
 friends of the Administration want a certain number of places, and the 
 more fully the old ones are covered under the reform roof, the greater 
 the enthusiasm for the creation of new positions, in order to have some- 
 thing to fill. This is one of the adverse effects of civil-service reform. 
 
 Privately, many congressmen are pleased to realize that there are now 
 comparatively few spoils to be distributed. In public, especially when 
 in the presence of constituents, they rail at the President and the Civil 
 Service Commission. When Congress reconvenes, the House of Repre- 
 sentatives will renew its old play of threatening to withhold all appro- 
 priations from the Commission. The President has gradually covered 
 Government employees by the classified service until there are few places 
 left with which the members of Congress may barter. Within the last 
 three weeks, at least one hundred Republican members of the House of 
 Representatives have searched every bureau of every department for 
 some official crumbs that might be thrown to the hungry boys at home, 
 and they all tell the same story no crumbs are to be found. 
 
 In his first message to Congress President Roosevelt said that "the 
 merit system of making appointments is, in its essentials, as democratic 
 and American as the common school system itself. And wherever the 
 conditions have permitted the application of the merit system in its 
 fullest and widest sense, the gain to the Government has been immense." 
 
 A LIST OF THE EXTENSIONS 
 
 Within two months after he became President, Mr. Roosevelt turned 
 his attention to those employees of the Government who were still out- 
 side the classified service. Here is a list of the extensions he has made since : 
 
 November 18, 1901 Federal services, War Department, reincluded. 
 
 November 27, 1901 Rural free delivery service, clerks, route inspectors, 
 special agents, messengers, etc. 
 
 February i, 1902 Rural free delivery system carriers. 
 
 April 28, 1902 At the President's suggestion temporary war emergency 
 employees were transferred to the classified service by act of Congress. 
 
 July i, 1902 At the suggestion of the President Census Office employees 
 were classified by act of Congress, March 6, 1902. 
 
 July 3, 1902 Employees of the military government in Cuba appointed 
 under special civil -service rules. 
 
 1 New York Evening Post, April 7, 1905. 
 
CIVIL SERVICE 699 
 
 October 4, 1902 Persons employed on construction of Government 
 Printing Office building continued on War College and Washington Barracks 
 under special civil-service rule. 
 
 February n, 1903 Temporary employees in insular naval stations trans- 
 ferred to the classified service. 
 
 February n, 1903 Employees at Post Office given free delivery between 
 July i, 1901, and June 30, 1903, covered by the classified service. 
 
 June 30, 1904 By operation of the rules employees in sixty-six post 
 offices classified. 
 
 August 10, 1904 The position of one clerk at each pension agency to act 
 for the pension agent during his absence, transferred from the excepted to the 
 competitive class. 
 
 March 26, 1904 All positions under the War Department in the Philip- 
 pines except those filled by persons employed as skilled laborers or persons 
 appointed by the President, classified. 
 
 November 15, 1904 Positions under the Isthmian Canal Commission, 
 except those filled by persons employed as laborers, and persons whose appoint- 
 ment is confirmed by the Senate and engineers detailed from the army, classified. 
 
 November 23, 1904 Positions of deputy collector, deputy surveyor, cashier, 
 and naval officer in the customs service transferred from the excepted list to the 
 classified service. 
 
 December 19, 1904 Positions in the forestry service of the Department 
 of the Interior made competitive. 
 
 June 22, 1904 The positions of mail feeder and press feeder at the Phila- 
 delphia and New Orleans Mints included in the classified service at the request 
 of the Treasury Department. 
 
 March 28, 1905 Special agents of the Immigration Bureau on duty in 
 foreign territory brought within the classified service. 
 
 April 3, 1905 Positions of cashiers and finance clerks in post offices 
 throughout the country, taken out of the excepted class, to be filled by pro- 
 motion. Another order of the same date, relating to laborers in the depart- 
 ments at Washington, has been made familiar in recent despatches. 
 
 At the time Mr. Roosevelt became President there were, in round 
 numbers, 83,000 persons in the classified service. The number is now 
 155,000. Within the last twelve months the service has shown a growth 
 of about 14 per cent. Part of this is, of course, due to the natural growth 
 of the system. In addition to these orders it has been provided that 
 unclassified laborers at Washington and elsewhere should be selected 
 by a system of competitive registration, taking account of age, physical 
 condition, experience, and character. Thus 24,000 unclassified positions 
 were made competitive. 
 
 RURAL FREE DELIVERY CLASSIFICATION 
 
 The order of the President that stands out most conspicuously is that 
 placing the rural free delivery service in the classified list. At the time 
 it was issued only 6,500 men were employed; now more than 25,000 are 
 included. 
 
700 AMERICAN FEDERAL GOVERNMENT 
 
 One notable rule promulgated requires public officers- in the Federal 
 service to give testimony under oath before the Civil Service Commis- 
 sion when investigations are instituted. An honest effort has been made 
 to cure abuses relating to transfers and reinstatements, and auditing 
 and disbursing officers have been forbidden to pay salaries to persons 
 holding positions in violation of the civil-service rules. 
 
 It is well understood that the President has further extensions of the 
 classified service in mind. The rule that fourth-class postmasters are 
 to be removed for cause may prove to be the forerunner of an executive 
 order putting these public servants on a more secure basis. It is a reason- 
 ably safe guess that if the members of Congress do not accept without 
 murmurings the rule that such postmasters shall be retained in office 
 during good behavior and faithful service, the President will settle the 
 whole controversy by classifying the 95,000 postmasters. 
 
 BACK DOOR CLOSED 
 
 In their vain quest for places for constituents members of Congress 
 have come to believe that the President has effectually closed the "back 
 door" entrance to clerkships. From 1896 to 1901 it was an easy thing 
 for a member of Congress with influence to find some back door through 
 which he could push a constituent into a place without the trouble of 
 consulting the Civil Service Commission. One of the favorite "back 
 doors" led first to some remote country post office that was about to 
 become a free delivery office. If the congressman had the proper amount 
 of influence his constituent was put on the pay-roll of the remote post 
 office, and as soon as it came into the classified service by reason of be- 
 coming a free delivery office the constituent was transferred to the place 
 originally intended for him in one of the departments here. The post- 
 office investigation revealed this crooked business, and in some instances 
 persons who were found to be drawing salaries in post offices they had 
 never seen, were made to give up their illegal salaries. The President 
 soon put a stop to this by applying a rule that a transfer should not be 
 made unless a person had actually served six months in the office from 
 which he asked transfer, and also providing that the person in question 
 must qualify for the new place by taking an examination. 
 
 Another "back door" which members of Congress found so conven- 
 ient led to the laborers' rolls. Under the old regime, it was a common 
 thing to appoint men as unclassified laborers and then, in due time, put 
 them to work in the classified service. With the laborers covered by 
 the classified service, this abuse no longer exists. 
 
 A BETTER ATMOSPHERE 
 
 After all, it is the civil service "atmosphere" that is doing most to 
 strengthen the merit system. The average departmental official, from 
 
CIVIL SERVICE 701 
 
 the cabinet officer down, is about what the President of the United States 
 wants him to be. The knowledge that Mr. Roosevelt believes in the merit 
 system affects public sentiment mightily. A member of Congress from 
 Indiana remarked, after he had failed to find places available for con- 
 stituents, that officials said to him privately: "Of course, we might 
 edge in a man notwithstanding the executive orders and the extensions 
 of rules, but we do not dare do it." 
 
 Abuses of the system still exist. The late Senator Quay was not prose- 
 cuted for collecting campaign funds from the Federal appointees in 
 Pennsylvania, while C. O. Self, a competent clerk in the internal revenue 
 office at Terre Haute, was dismissed for the same offense. No one avers 
 that the President did wrong in dismissing young Self, as that act settled 
 the controverted question as to whether a person could be compelled to 
 testify before the Commission, but to persons who watched the courses 
 of the two cases it always seemed that the President ought to have 
 insisted on a trial in the Quay case. 
 
 Undoubtedly the system needs corrective legislation, but Congress 
 does not seem disposed to act. What to do with the men and women 
 who have reached the age that unfits them for service is the great prob- 
 lem. Year by year the departments are becoming more topheavy. Cab- 
 inet officers have it within their power to discharge the aged and the 
 infirm, but they will not do it, and perhaps they should not. Ten or 
 twelve bills, offering remedies for this one defect, were before Congress 
 last session, but none received consideration. The Civil Service Com- 
 mission looks with favor on the plan to establish by law an annuity in- 
 surance system in the departments, and, generally speaking, the clerks 
 favor this plan. Representative Gillett of Massachusetts, who was 
 chairman of the Committee on the Reform of the Civil Service in the 
 last Congress, and will probably be reassigned to that chairmanship, 
 hopes for action of some kind at the coming session. 
 
 SENATOR HOAR ON APPOINTMENTS TO OFFICE 1 
 
 [This extract deals briefly with the relations of the President to Congress in 
 the matter of appointments.] 
 
 AMONG the great satisfactions in the life of public men is that of some- 
 times being instrumental in the advancement to places of public honor 
 of worthy men, and of being able to have a great and salutary influence 
 upon their lives. I have always held to the doctrine of what is called 
 Civil Service Reform, and have maintained to the best of my ability 
 the doctrine of the absolute independence of the Executive in such 
 matters, as his right to disregard the wishes or opinions of members of 
 
 1 From Senator Hoar's Autobiography. 
 
702 AMERICAN FEDERAL GOVERNMENT 
 
 either House of Congress, and to make his appointments executive and 
 judicial, without advice, or on such advice as he shall think best. But, 
 at the same time, there can be no doubt that the Executive must depend 
 upon some advice other than his own, to learn the quality of men in 
 different parts of this vast Republic, and to learn what will be agreeable 
 to public opinion and to the party which is administering the Govern- 
 ment and is responsible for its administration. He will, ordinarily, find 
 no better source of such information than in the men whom the people 
 have shown their own confidence in by entrusting them with the important 
 function of Senator or Representative. He will soon learn to know his 
 men, and how far he can safely take such advice. He must be careful 
 to see to it that he is not induced to build up a faction in his party, or to 
 fill up the public offices with the partisans of ambitious but unscrupulous 
 politicians. When I entered the House of Representatives, before the 
 Civil Service Reform had made any progress, I addressed and had put 
 on file with the Secretary of the Treasury a letter in which I said that I 
 desired him to understand when I made a recommendation to him of 
 any person for public office, it was to be taken merely as my opinion of 
 the merit of the candidate, and not as an expression of a personal re- 
 quest ; and that if he found any other person who would in his judgment 
 be better for the public service, I hoped he would make the selection 
 without regard to my recommendation. 
 
 I have never undertaken to use public office as personal patronage, 
 or to claim the right to dictate to the President of the United States, or 
 that the Executive was not entirely free, upon such advice as he saw fit, 
 or without advice, if he thought fit, in making his selection for public 
 office. 
 
XIV 
 
 THE COURTS 
 
 FROM AN ADDRESS OF MR. JUSTICE FIELD DELIVERED 
 UPON THE OCCASION OF THE HUNDREDTH ANNI- 
 VERSARY OF THE COURT 1 
 
 AND now, with its history in the century past, what is needed, that 
 the Supreme Court of the United States should sustain its character 
 and be as useful in the century to come? I answer, as a matter of the 
 first consideration, that it should not be overborne with work, and by 
 that I mean it should have some relief from the immense burden now 
 cast upon it. This can only be done by legislative action, and in de- 
 termining what measures shall be adopted for that purpose Congress 
 will undoubtedly receive with favor suggestions from the Bar Associa- 
 tions of the country. The Justices already do all in their power, for 
 each one examines every case and passes his individual judgment upon 
 it. No case in the Supreme Court is ever referred to any one Justice, 
 or to several of the Justices, to decide and report to the others. Every 
 suitor, however humble, is entitled to and receives the judgment of every 
 Justice upon his case. 
 
 In considering this matter it must be borne in mind that, in addition 
 to the great increase in the number of admiralty and maritime cases, 
 from the enlarged commerce on the seas, and on the navigable waters 
 of the United States, and in the number of patent cases from the multi- 
 tude of inventions brought forth by the genius of our people, calling for 
 judicial determination, even to the extent of occupying a large portion 
 of the time of the court, many causes, which did not exist upon its 
 organization or during the first quarter of the century, have added 
 enormously to its business. Thus by the new agencies of steam and 
 electricity in the movement of the machinery and transmission of intel- 
 ligence, creating railways and steamboats, telegraphs and telephones, 
 and adding almost without number to establishments for the manu- 
 facture of fabrics, transactions are carried on to an infinitely greater 
 extent than before between different States, leading to innumerable 
 
 1 Reprinted in Carson, History of the Supreme Court, I, 713. 
 703 
 
704 AMERICAN FEDERAL GOVERNMENT 
 
 controversies between their citizens which have found their way to that 
 tribunal for decision. More than one-half of the business before it for 
 years has arisen from such controversies. 1 
 
 The facility with which corporations can now be formed has also 
 increased its business far beyond what it was in the early part of the cen- 
 tury. Nearly all enterprises requiring for their successful prosecution 
 large investments of capital are conducted by corporations. They, in 
 fact, embrace every branch of industry, and the wealth that they hold 
 in the United States equals in value four-fifths of the entire property 
 of the country. They carry on business with the citizens of every State 
 as well as with foreign nations, and the litigation is enormous, giving 
 rise to every possible question to which the jurisdiction of the Federal 
 courts extend. 
 
 The numerous grants of the public domain, embracing hundreds of 
 millions of acres, in aid of the construction of railways ; also for common 
 schools, for public buildings and institutions of much intricacy and 
 difficulty. The discovery of mines of the precious metals, in our new 
 possessions on the Pacific Coast, and the modes adopted for their develop- 
 ment, have added many more. The legislation required by the exigencies 
 of the civil war, and following it, and the constitutional amendments 
 which were designed to give farther security to personal rights, have 
 brought before the court questions of the greatest interest and impor- 
 tance, calling for the most earnest and laborious consideration. Indeed, 
 the cases which have come before this court, springing from causes which 
 did not exist during the first quarter of the century, exceed, in the magni- 
 tude of the property interests presented, all cases brought within the 
 same period before any court of Christendom. 
 
 Whilst the constitutional amendments have not changed the structure 
 of our dual form of government, but are additions to the previous amend- 
 ments, and are to be considered in connection with them and the original 
 Constitution as one instrument, they have removed from existence an 
 institution which was felt by wise statesmen to be inconsistent with the 
 great declarations of right upon which our government is founded ; and 
 they have vastly enlarged the subjects of Federal jurisdiction. The 
 amendment declaring that neither slavery nor involuntary servitude, 
 except as a punishment for crime, shall exist in the United States or any 
 place subject to their jurisdiction, not only has done away with slavery 
 of the black man, as it then existed, but interdicts forever the slavery 
 of any man, and not only slavery, but involuntary servitude that is, 
 serfage, vassalage, villeinage, peonage, and all other forms of compulsory 
 service for the mere benefit or pleasure of others. As has often been 
 said, it was intended to make every one born in this country a free man 
 
 1 [By the creation of Circuit Courts of Appeals in 1891, the volume of business in the 
 Supreme Court was greatly diminished. These courts are final in matters such as are 
 mentioned above, unless a question of constitutionality is involved.] 
 
THE COURTS 705 
 
 and to give him a right to pursue the ordinary vocations of life without 
 other restraint than such as effects all others, and to enjoy equally with 
 them the fruits of his labor. The right to labor as he may think proper 
 without injury to others is an element of that freedom which is his birth- 
 right. 
 
 The amendment, declaring that no State shall make or enforce any 
 law which shall abridge the privileges or immunities of citizens of the 
 United States, nor deprive any person of life, liberty, or property without 
 due process of law, nor deny to any person within its jurisdiction the 
 equal protection of the laws, has proclaimed that equality before the 
 law shall forever be the governing rule of all the States of the Union, 
 which every person however humble may invoke for his protection. In 
 enforcing these provisions, or considering the laws adopted for their 
 enforcement, or laws which are supposed to be in conflict with them, 
 difficult and far-reaching questions are presented at every term for 
 decision. 
 
 Up to the middle of the present century the calendar of the Court did 
 not average 140 cases a term, and never amounted in any one term to 
 300 cases; the calendar of the present term exceeds 1,500. In view of 
 the condition of the Court its crowded docket the multitude of 
 questions constantly brought before it of the greatest and most extended 
 influence surely it has a right to call upon the country to give it assist- 
 ance and relief. Something must be done in that direction and should 
 be done speedily to prevent the delays to suitors now existing. To delay 
 justice is as pernicious as to deny it. One of the most precious articles 
 of Magna Charta was that in which the King declared that he would 
 not deny nor delay to any man justice or right. And assuredly what 
 the barons of England wrung from their monarch, the people of the 
 United States will not refuse to any suitor for justice in their tribunals. 
 
 Furthermore, I hardly need say, that, to retain the respect and con- 
 fidence conceded in the past, the Court, whilst cautiously abstaining 
 from assuming powers granted by the Constitution to other departments 
 of the government, must unhesitatingly and to the best of its ability 
 enforce, as heretofore, not only all the limitations of the Constitution 
 upon the Federal and State governments, but also all the guarantees it 
 contains of the private rights of the citizen, both of person and of prop- 
 erty. As population and wealth increase as the inequalities in the 
 conditions of men become more and more marked and disturbing 
 as the enormous aggregation of wealth possessed by some corporations 
 excites uneasiness lest their power should become dominating in the 
 legislation of the country, and thus encroach upon the rights or crush 
 out the business of individuals of small means, as population in some 
 quarters presses upon the means of subsistence, and angry menaces 
 against order find vent in loud denunciations it becomes more and 
 more the imperative duty of the Court to enforce with a firm hand every 
 
 45 
 
706 AMERICAN FEDERAL GOVERNMENT 
 
 guarantee of the Constitution. Every decision weakening their restrain- 
 ing power is a blow to the peace of society and to its progress and improve- 
 ment. It should never be forgotten that protection to property and to 
 persons can not be separated. Where property is insecure, the rights 
 of persons are unsafe. Protection to the one goes with protection to 
 the other; and there can be neither prosperity nor progress where either 
 is uncertain. 
 
 That the Justices of the Supreme Court must possess the ability and 
 learning required by the duties of their office, and a character for purity 
 and integrity beyond reproach, need not be said. But it is not sufficient 
 for the performance of his judicial duty that a judge should act honestly 
 in all that he does. He must be ready to act in all cases presented for 
 his judicial determination with absolute fearlessness. Timidity, hesita- 
 tion, and cowardice in any public office, excite and deserve only con- 
 tempt, but infinitely more in a judge than in any other, because he is 
 appointed to discharge a public trust of the most sacred character. To 
 decide against his conviction of the law of judgment as to the evidence, 
 whether moved by prejudice or passion, or the clamor of the crowd, is 
 to assent to a robbery as infamous in morals and as deserving of punish- 
 ment as that of the highwaymen or the burglar; and to hesitate or 
 refuse or act when duty calls is hardly less the subject of just reproach. 
 If he is influenced by apprehensions that his character will be attacked, 
 or his motives inpugned, or that his judgment will be attributed to the 
 influence of particular classes, cliques, or associations, rather than to 
 his own convictions of the law, he will fail lamentably in his high office. 
 
 THE SUPREME COURT OF THE UNITED STATES 1 
 BY DAVID J. BREWER 2 
 
 IT would be an easy and a pleasant task to point out how in many 
 other ways the court has by its decisions affected the life of the republic, 
 but the limits of my paper forbid. This must do for the past. As ad- 
 mitted by all careful students of history, the Supreme Court, whose 
 organization and powers constitute the most striking and distinguishing 
 feature of the Constitution, has been a most potent factor in shaping 
 the course of national events. It stands to-day a quiet but confessedly 
 mighty power, whose action all wait for, and whose decisions all abide. 
 Turning to the future, every thoughtful man wonders what is coming 
 to the republic, and many inquire what the Supreme Court will do in 
 shaping that future, and how its decisions may affect the national life. 
 
 1 Part of an article in Scribner's Magazine, March, 1903. Reprinted by permission. 
 Copyright. 
 
 2 Associate Justice. 
 
THE COURTS 707 
 
 The questions which now seem likely to arise and to be pressed upon 
 judicial attention may be grouped in four classes : First, those growing 
 out of the controversies between labor and capital; second, those that 
 will spring from the manifest efforts to increase and concentrate the 
 power of the nation and to lessen the powers of the States ; third, those 
 arising out of our new possessions, separate from us by so long dis- 
 tances and with so large a population, not merely of foreign tongue, 
 but of a civilization essentially different from that of the Anglo-Saxon; 
 and, fourth, those which will come because our relations to all other 
 nations have grown to be so close and will surely increase in intimacy. 
 
 Of these in their order. That the present relations of employer and 
 employee differ from those which subsisted when the Constitution was 
 framed is obvious. Three facts stand out in bold relief: First, the 
 changes wrought by the countless inventions of the last half-century; 
 Second, the concentration of capital; and, third, the organization of 
 labor. When all business was upon a small scale, when there were no 
 large factories, and when the great volume , of labor was hand labor, 
 competition was regarded as a great solvent of all commercial troubles. 
 Now competition has lost much of its force and as a result of the three 
 facts that I have just noticed. I can not enlarge upon this subject, and 
 yet a few words seem necessary. The industrial field was then occupied 
 by the apprentice, the journeyman, and the employer. The apprentice 
 was taught to do every part of the general work in which he was em- 
 ployed, and when so taught was recognized as a competent workman, 
 a journeyman. The latter, master of his trade, could with a little econ- 
 omy soon establish a shop of his own, and himself become an employer. 
 Take, for illustration, the manufacture of shoes. No one was considered 
 a competent workman or anything more than an apprentice until he 
 could do all the work in the making of a shoe, from cutting out the 
 leather to polishing the uppers. The employer often worked with his 
 employee, in the same shop, doing the same work. The number of his 
 employees was few, and one by one the capable and industrious were 
 opening shops of their own and starting in independent business. If 
 the journeyman was dissatisfied with his employer or with the town in 
 which he worked, there was little difficulty in finding another shop or 
 another village. The avenues of employment were not crowded, and 
 there was no blacklisting. The employer, if he found his business un- 
 profitable, could easily move to another city and start a like business. 
 If his prices were excessive some new man would start a rival establish- 
 ment. Thus competition levelled prices and kept them reasonable. 
 Not unnaturally there w r as a community of interest and at the same 
 time an independence in both emplover and employee. But to-day, 
 through the inventive genius of the country, machines have superseded 
 hand labor. The manufactory has taken the place of the shop, and labor 
 finds its chief employment in the handling of machines, each employee 
 
yo8 AMERICAN FEDERAL GOVERNMENT 
 
 doing only a special limited work. Some of the machines are costly and 
 large amounts of capital are invested. For economy's sake the work is 
 centered in large manufacturing establishments, where are gathered mul- 
 titudes of machines and armies of laborers. The employer has become 
 separated from his employees. They stand to him as meaning little 
 more than the machines upon which they work. One significant and 
 sad feature of not a few of our manufacturing establishments is the large 
 boarding-house, where are gathered a multitude of laborers, like soldiers 
 in barracks. Nor is there simply the large and separate manufacturing 
 establishments; combinations have been formed by which all the fac- 
 tories of a single industry are brought under a single control. Difficult 
 then is the position of the employee, who, familiar with only a particular 
 and narrow work, finds, when discharged from one factory, the doors 
 of all others closed against him. He feels that he must stay and accept 
 the terms which the manufacturer has placed upon his service. SO 
 severe and stringent is the pressure upon him that not infrequently we 
 hear his condition called,, the serfdom of labor. Nor is the pressure 
 simply upon the employee. A combination of employers is often so 
 rich and so powerful that one who would like to carry on an independent 
 business is driven to the wall and has no other alternative than to go out 
 of business or surrender to the combination. This which is true of man- 
 ufacturing is also true of the mercantile business and of transportation ; 
 and combinations, some of them of immense wealth and far-reaching 
 influence, have become the order of the day. 
 
 It is not strange, indeed it was the inevitable result of this subdivision 
 of labor and such combinations of employers, that the laborers in the 
 several departments should themselves organize. Labor organizations 
 are as much the natural outgrowth of the economic conditions of the 
 day as combinations of capital. We thus have, on the one hand, a few 
 possessing or controlling immense amounts of capital and large indus- 
 tries, and, on the other hand, multitudes of laborers banded into organi- 
 zations for self-protection. Self-interest (I will not call it selfishness) 
 has operated to develop a great antagonism between these two factors 
 in industry; each in seeking a greater control, a larger share of the 
 profits resulting from the combined services of both. As organizations 
 of laborers increase the influence and significance of a strike, which is 
 one of their weapons in carrying on what is called the conflict between 
 labor and capital, become greater. The summer of last year we stood 
 face to face with one of immense magnitude, one affecting the business 
 of the nation as none other has yet done. How shall these strikes be 
 avoided? A man can scarcely count the suggestions which have been 
 and are being made with a view of averting them in the future. The 
 coal strike has precipitated more schemes of legislation, more sugges- 
 tions of the extent of legislative and executive as well as judicial power 
 than any which has preceded it. All legislative bodies, State and na- 
 
THE COURTS 709 
 
 tional, will be confronted with propositions to prevent or regulate 
 struggles between labor and capital. Is it not reasonably certain that 
 out of these conflicts and out of the legislation which may be enacted 
 by Congress or the several State legislatures there will arise a multitude 
 of questions, many of which will finally reach the Supreme Court of the 
 United States ? 
 
 Let me mention one or two which are frequently mentioned in the 
 newspapers and discussed in private. Compulsory arbitration is thought 
 by many to be necessary, and the only possible solution of these labor 
 troubles. We are referred to New Zealand as furnishing an illustration 
 of the possibility and wisdom of such an enactment. But what does 
 such a scheme imply? On the one hand possibly the compulsion of 
 the employer to pay more than he can afford or else quit business. On 
 the other hand, of the laborer to work for an employer he does not like, 
 and at less wage than he feels himself entitled to. How does such com- 
 pulsion consist with that freedom of personal action which for more than 
 a hundred years we have believed was the inalienable right of every 
 individual? It is said in support of the proposed enactment that to 
 prescribe the conditions under which an employer may carry on his 
 business, leaving him free to abandon the business and pursue some 
 other, and like compulsion of the laborer to work at a certain wage 
 and place if he continues in a certain kind of employment, does not 
 abridge any constitutional right of either when the larger interests of 
 society demand such compulsion. But if compulsion may be intro- 
 duced into one employment, why not into all ? I can not spend the time 
 to enlarge upon the arguments of either side, nor would it be proper 
 to express any opinion as to the respective merits of such arguments. 
 It is enough to say that if legislation be enacted looking toward com- 
 pulsory arbitration it is obvious that there will be much to challenge, 
 the most careful consideration of the courts. 
 
 Again, we hear it said that the Nation or State should take the coal 
 mines under condemnation proceedings and operate them for the public 
 benefit. The power to do this is denied on the ground that private 
 property can be taken only for public uses, and the furnishing of coal 
 is said to be not a public service, that coal is no more a necessity of life 
 than bread, meats, or clothing; that if the State can enter into the busi- 
 ness of supplying coal it can into all these other matters, and for that 
 purpose condemn all places in which such things are grown or manu- 
 factured. And it is contended by some that the State can under our 
 constitutional limitations take to itself the control, ownership, and oper- 
 ation of all now known as private industries. On the other hand, and 
 in reply to some of these arguments, it is said that the ordinary products 
 of the soil can be grown or manufactured in many places, but that nature 
 has created a monopoly in anthracite coal by locating it in only one or 
 two portions of the United States; that by reason of the monopoly thus 
 
yio AMERICAN FEDERAL GOVERNMENT 
 
 created by nature the power of the public to interfere and take possession 
 is established. 
 
 I do not stop to notice the suggestions of government ownership of 
 railroads, telegraph, telephones, electric lines, water and gas works, for 
 as to them, or at least most of them, they are confessedly performing a 
 public service, and the question of governmental possession and control 
 is mainly one of expediency rather than of constitutionality, and the 
 courts have nothing to do with questions of expediency. 
 
 Obviously in these and many kindred suggestions there is manifest 
 a spirit of paternalism. The individual is not to be left to make his own 
 contracts, determine his place and kind of work, or use his property in 
 the way he sees fit. The government is to exercise the functions of a 
 guardian, with the individual as its ward, to be in many respects pro- 
 tected, guided, and controlled. This is not wholly the idea that per- 
 vaded the old monarchical system, for there the king as a single ruler 
 assumed the wisdom and the right to control the actions of all his sub- 
 jects, while here the mak>rity are the ruler, yet it is equally an assump- 
 tion that the majority nave the same right to control. It is true the 
 belief is that such control is for the best interests of those controlled or 
 of the general public. Yet it is unlike the thought which possessed the 
 fathers at the foundation of the Republic. Their idea was expressed in 
 the Declaration of Independence, "all men are created equal"; "in- 
 alienable rights of life, liberty, and the pursuit of happiness," and their 
 purpose was to give the freest scope to individual action. The marvelous 
 mystery which lies folded in the doctrine of the police powers of the gov- 
 ernment was to them unknown. I am not questioning either the neces- 
 sity or the wisdom of the change. I only notice the fact that the 
 thought of to-day is different from that which then existed, and that the 
 tendency of legislation is in a different direction. Now the Constitution 
 was framed by those who had large notions of individual liberty and a 
 jealousy of governmental power, and the profound question is how far 
 the language and guarantees of the Constitution are, if unchanged, con- 
 sistent with legislation expressing these changed ideas. That it may be 
 amended so as to be adjustable to any social order is provided by the 
 Constitution itself. Without amendment how far is it adjustable ? That 
 many conditions and questions unknown to the fathers have been pre- 
 sented and found capable of solution without any change in the language 
 of the Constitution the history of the past 115 years attests. In the 
 judgment of not a few it is without amendment adjustable to any condi- 
 tions, social and political, that may arise. Indeed, as one reads some 
 of the propositions which are advanced, he is inclined to believe that 
 the instrument possesses an elasticity which would make the manu- 
 facturers of india-rubber choke with envy. Fortunately and wisely, 
 its grants, prohibitions, and guarantees were expressed tersely and yet 
 in general terms, so that it has proved to be no cast-iron instrument 
 
THE COURTS 711 
 
 applicable only to conditions then existing. But the question remains 
 how far its general and comprehensive terms may be adjusted to the 
 varying situations which the present and future days will present, and 
 this matter of adjustability will bring before the court some of the pro- 
 foundest and most important questions ever presented to any tribunal. 
 
 I pass now to notice some questions which may arise from the manifest 
 effort to concentrate power in the United States and to lessen the powers 
 of the respective States. Ever since the Civil War many have spelled 
 nation with a big N, and there have been constant efforts to enlarge the 
 activity, if not increase the powers, of Congress. The* centralizing tend- 
 ency has been marked. It is not unnatural. It harmonizes with the 
 consolidating spirit of business, the unifying movement in all the activi- 
 ties of life. In matters over which it is manifest that Congress has no 
 power under the Constitution, there is much clamor to so amend that 
 instrument as to invest it with the desired control. Polygamy must be 
 stamped out, and as only national action will reach everywhere in the 
 Republic the Constitution must be amended so as to grant full control 
 to the nation. Uniformity in the matter of marriage and divorce is 
 desirable. The States do not agree in establishing such uniformity, 
 therefore let by constitutional amendment Congress be given power to 
 compel it. Commerce between the States is now subject to Congres- 
 sional regulation, that within each State under its control, but those two 
 branches of commerce are so interwoven as to produce much confusion 
 and irritation. If all power in respect to commerce were taken away 
 from the States and the entire control both of that between the States 
 and that within the States vested in Congress, a desirable uniformity 
 could be obtained, and in this direction is a clamor for a change in the 
 organic law. The trusts are a dangerous factor in our commercial and 
 political life. The States are not adequate to suppress them, hence the 
 Constitution should be amended and full power over them vested in 
 Congress. And so I might go on enumerating others. I simply mention 
 these, not as suggesting matters for judicial decision, for under the 
 power of amendment reserved in the Constitution the people may, if 
 they see fit, engraft any of them upon the organic law and the courts 
 have nothing to say. However wise or unwise any of these changes may 
 be, if the people will it and amend the Constitution in the appointed way, 
 that is the end of the matter. 
 
 But judicial questions may arise from efforts under the Constitution 
 as it is to secure action by Congress in some one or other of these or 
 kindred directions, and action which it is contended the Constitution 
 withholds from the power of Congress and has reserved to the States or 
 the people thereof. And because of the centralizing tendency of the 
 day and the disposition to invoke the efficient action of the National 
 Government there will doubtless be many such efforts. But as Chief 
 Justice Chase said in Texas v. White, 7 Wall. 725: "The Constitution, 
 
712 AMERICAN FEDERAL GOVERNMENT 
 
 in all its provisions, looks to an indestructible union, composed of in- 
 destructible States." And the Tenth Amendment to the Constitution 
 provides that "the powers not delegated to the United States by the 
 Constitution, nor prohibited by it to the States, are reserved to the States 
 respectively, or to the people." It is the duty of the Supreme Court, as 
 of all other courts, to enforce that provision of the Constitution as fairly 
 and fully as any other. Any legislation of Congress, however desirable 
 or beneficial it may appear, must, unless it comes within the powers 
 given by the Constitution to that body, be declared invalid. Equally 
 also must any action of a State in attempting to exercise dominion over 
 matters the exclusive control of which is vested in Congress be adjudged 
 unconstitutional. No one can predict the precise legislation coming 
 either from Congress or the State legislatures which will challenge judicial 
 inquiry upon the principles just stated. Both sides have strong adher- 
 ents. The controversy between National authority and State's rights is 
 as old as the Government. Hamilton and Jefferson have each to-day 
 a large following. State's rights have always been and still are repre- 
 sented in Congress, and there have always been and still are in both 
 Houses some of the ablest lawyers of the land, who will be careful that 
 no legislation of that body trespasses on the powers of the States. Yet 
 when public feeling is deeply aroused and the efficiency of national 
 action is felt, popular pressure may be so great that Congress yields to 
 it and enacts laws beyond its powers. At any rate, it is not only possible 
 but probable that some of its legislation may be so near the boundary 
 of power as to challenge judicial inquiry. Take, for instance, the Sher- 
 man Anti-Trust Act, which was framed with the view of exercising only 
 those powers which are conferred upon Congress over interstate com- 
 merce, and yet its application was invoked in behalf of interference with 
 manufactures wholly under State control. So also a difficult problem is to 
 draw the dividing line between the exclusive control which Congress has 
 over interstate commerce and the police powers which are reserved to 
 the States. The reports of the court are full of cases on one side or the 
 other of such line. In no class of cases has the court been more closely 
 divided. Leisy v. Hardin, 135 U. S. 100, in which the power of a State 
 to forbid the sale in the original package of imported liquor was denied 
 is a well-known illustration. Two cases are now pending in which is 
 challenged the power of Congress to restrain the transportation by ex- 
 press companies of lottery tickets from State to State. The great irriga- 
 tion problem in respect to the arid lands in the West which is just now 
 attracting legislative attention will very likely produce some sharp con- 
 troversies in respect to the limits of State and National action. And so 
 I might go on in enumeration. It is safe to say that the antagonism 
 between National authority and State's rights which began with the 
 Republic and which has become intensified by the vast interests affected 
 by it, will bring into the Supreme Court an increasing number of im- 
 
THE COURTS 713 
 
 portant and difficult questions. Where millions are at stake the ingenu- 
 ity of lawyers may be depended on to find some way of entrance to the 
 court of last resort. 
 
 In the third place, questions will arise out of our insular possessions, 
 and questions different from those which have attended previous ac- 
 quisitions of territory, because unlike them these are densely populated 
 with peoples speaking another tongue, of an essentially, different civiliza- 
 tion, alien in life and thought to Anglo-Saxon institutions. To what 
 extent the provisions of the Constitution operate in those possessions 
 is yet undetermined. It was held by the court in DeLima v. Bidwell, 
 182 U. S. i, that by the treaty of peace between the United States and 
 Spain the island of Porto Rico ceased to be a foreign country, within 
 the meaning of the tariff laws. In Dowries v. Bidwell, id. 244, the court, 
 by five to four, held that Porto Rico was not a part of the United States, 
 within the provision of the Constitution requiring uniformity in duties, 
 imposts, and excises throughout the United States. From that con- 
 clusion four of the Justices dissented, and the majority did not agree 
 in the reasoning by which that conclusion was reached. Justice White, 
 one of the majority, speaking for Justices Shiras, McKenna, and himself, 
 laid down these propositions: " Every function of the government 
 being thus derived from the Constitution, it follows that that instrument 
 is everywhere and at all times potential in so far as its provisions are 
 applicable. ... As Congress in governing the territories is subject to 
 the Constitution, it results that all the limitations of the Constitution 
 which are applicable to Congress in exercising this authority necessarily 
 limit its power on this subject. It follows also that every provision of 
 the Constitution which is applicable to the territories is also controlling 
 therein. ... In the case of the territories, as in every other instance, 
 when a provision of the Constitution is invoked, the question which 
 arises is, not whether the Constitution is operative, for that is self-evident 
 but whether the provision relied on is applicable." In construing these 
 declarations of three of the majority along with the views of the four 
 dissenting Justices questions will naturally arise as to the force of the 
 word "applicable." These are several provisions in the early amend- 
 ments to the Constitution, designed to secure the liberty of the individual, 
 such as that Congress shall make no law respecting the establishment 
 of religion, or abridging the freedom of speech; forbidding that any 
 person thall be held to answer for a crime except upon indictment of a 
 grand jury ; that he be twice put in jeopardy of life or limb, or compelled 
 to be a witness against himself; granting him the right to a speedy 
 public trial by an impartial jury of the district wherein the crime was 
 committed; to be informed of the nature and cause of the accusation; 
 to be confronted with the witnesses against him; to have compulsory 
 process for obtaining witnesses and to have the assistance of counsel; 
 and the further provision securing in suits at common law the right of 
 
714 AMERICAN FEDERAL GOVERNMENT 
 
 trial by jury. Are any or all of these provisions applicable to these insular 
 possessions ? They have been applied in other territories having mainly 
 a population as foreign to our language and institutions as that of these 
 recent acquisitions. If some are and others are not, upon what principle 
 is the distinction to be made? and if none are what provisions of the 
 Constitutions are applicable ? Obviously, as citizens of American birth 
 move into these possessions, acquire property and engage in business, 
 many questions of this nature will arise, and the court will be confronted 
 with problems as difficult as any it has yet met and as important for 
 the well-being of the Republic. An application was recently made for a 
 certiorari to bring up a case involving as alleged the applicability in the 
 Philippine Islands of the prohibition against being twice put in jeopardy 
 of life or limb. 
 
 But I must not tarry. It is enough to say that the taking of these 
 insular possessions is a new venture, and no one can anticipate all the 
 novel questions which will arise therefrom and be presented to the 
 Supreme Court for its decision. Do I in virtue of these possibilities and 
 the responsibilities which will rest upon the court unduly magnify its 
 office and function in the development of the history of the Republic ? 
 
 The final class which I suggested is of cases growing out of our rela- 
 tions with other nations, which as all perceive are more intimate than 
 in days gone by, and are surely to become much more so. I do not as- 
 sume that this nation will forget Washington's farewell advice to avoid 
 entangling alliances with foreign nations. But our rapidly extending 
 commerce and our new possessions, especially those in the Orient, place 
 us in close touch with the outer world. We can not, if we would, live 
 to ourselves alone. We must sit in the council of the nations. The 
 questions which will consequently arise are not all political; many are 
 judicial. And our dealings with foreign nations must be had with a 
 recognition of the fact that here, far more than anywhere else, those 
 questions can not be finally determined for the nation save by the action 
 of the judicial department. A pertinent illustration is found in the case 
 of Tucker v. Alexandroff, recently decided and reported in 183 U. S. 
 424, 434. We had a treaty with Russia for the surrender of deserters 
 from ships of war and merchant vessels. The Russian Government 
 employed a Philadelphia firm to build a war ship, the Variag, and when 
 near completion it sent a body of men over to serve as its crew. One 
 deserted, was arrested at the instance of the Russian vice-consul at 
 Philadelphia and committed for surrender to the Russian authorities. 
 He sued out a habeas corpus for a discharge from that detention, and the 
 case in due time came to the Supreme Court. The court was divided in 
 opinion, but the majority held that the detention was justifiable and 
 that the deserter should be surrendered to the Russian authorities. 
 The interpretation of that treaty and the defining of the obligations of 
 our Government to Russia were judicial questions, and the Supreme 
 
THE COURTS 715 
 
 Court prescribed the measure of this nation's duty. The recent Spanish 
 War brought to the court many questions of prize in which the duties 
 and obligations of neutrals were denned. Not merely in the construc- 
 tion of treaties, in matters of extradition and prize will the work of the 
 court be seen, but in all the variety of questions which will grow out of 
 the facts that our people are traveling through all countries of the world, 
 our merchants trading in every city, our ships traversing every ocean 
 and visiting every port. Further, we are contemplating such works 
 outside our territorial limits as the Isthmian Canal for furthering the 
 interests of the world's commerce, our own included, and who can pre- 
 dict all the questions that such enterprises will present to the courts ? 
 
 Knowledge of international law has thus become a necessity, and the 
 Supreme Court will be called upon to settle for this country what it is 
 and what it requires. Our Federal system will also precipitate a class 
 of questions not arising elsewhere. For instance, when some citizens 
 of Italy were killed by a mob in New Orleans a demand was made by 
 Italy upon this Government for the prosecution and punishment of the 
 offenders, and the reply was in substance that the nation had no power 
 in the matter ; that prosecution for such crimes depended on the action 
 of the State of Louisiana, and all that the nation could do was to call 
 the attention of the authorities of that State to it and request action by 
 them. A suggestion was made that Congress enact a law giving Federal 
 courts jurisdiction in such cases, but the constitutionality of such an 
 enactment was seriously challenged and nothing was done. 
 
 Time forbids any further illustrations of the variety of questions which 
 are likely to come before the Supreme Court. Surely a tribunal called 
 upon to decide such cases and questions must have great weight in shap- 
 ing the destinies of the Republic. It will continue to be, as it has been, 
 a most important factor in our national life. That its influence has been 
 helpful few will doubt. That it should be shorn of none of its power is 
 generally affirmed by disinterested observers. No specious plea against 
 government by injunction should ever be permitted to take from it that 
 wholesome restraining influence which has been so powerful for good. 
 
 May I add in closing that it is of the utmost importance that such a 
 tribunal should be independent, free from partisan bias or political 
 influence. Its members should, if not by constitutional amendment at 
 least by the common action of all, be debarred from political office, so 
 that no temptation of office or popular applause shall ever swerve from 
 the simple path of justice, and the Constitution. In these days of news- 
 paper reputation and ofttimes swiftly changing popularity it is well to 
 have some tribunal of stability, one whose judgments do not vary with 
 the varying opinions of the passing hours and do not, as Mr. Dooley 
 says, simply "follow the election returns." The life tenure of its mem- 
 bers does not make it an undemocratic factor in the life of the Republic. 
 It does not govern the nation. The people are always the rulers. More 
 
716 AMERICAN FEDERAL GOVERNMENT 
 
 than once have they reversed its judgments ; but by reason of its stability 
 and independence it has ever stood a check upon all hasty action; a 
 brake on the swiftly moving wheels of popular passion, and holding ever 
 the Republic close to the ways prescribed by the fathers in the Con- 
 stitution. As it has been, so may it be. Each member of that tribunal 
 should be animated by a noble ambition to be ever loyal to justice and 
 the Constitution, no matter what may be temporary criticisms. He 
 should appropriate in his life the spirit of the memorable words of Lord 
 Mansfield, uttered in the presence of a mob demanding a particular 
 decision: "I wish popularity, but it is that popularity which follows, 
 not that which is run after. It is that popularity which sooner or later 
 never fails to do justice to the pursuit of noble ends by noble means." 
 
 REMARKS OF MR. JUSTICE HARLAN ON THE METHODS 
 OF THE SUPREME COURT 1 
 
 THERE is one subject, Mr. Chairman, to which I am asked to reply 
 and to which I deem it appropriate to refer. It is quite pertinent to the 
 toast. I allude to the mode in which the business of the Supreme Court 
 of the United States is conducted. In my intercourse with the members 
 of the bar, I have found to my great surprise that the impression pre- 
 vails with some that cases, after being submitted, are divided among 
 the judges, and that the court bases its judgment in each one wholly 
 upon the report made by some one judge to whom that case has been 
 assigned for examination and report. I have met with lawyers who 
 actually believed that the opinion was written before the case was decided 
 in conference, and that the only member of the court who fully examined 
 the record and briefs was the one who prepared the opinion. 
 
 It is my duty to say that the business in our court is not conducted 
 in any such mode. Each justice is furnished with a printed copy of the 
 record and with a copy of each brief filed, and each one examines the 
 records and briefs at his chambers before the case is taken up for con- 
 sideration. The cases are thoroughly discussed in conference the 
 discussion in some being necessarily more extended than in others. 
 The discussion being concluded and it is never concluded until each 
 member of the court has said all that he desires to say the roll is 
 called and each justice present and participating in the decision votes 
 to affirm, reverse or modify, as his examination and reflection suggests. 
 The chief justice, after the conference, and without consulting his breth- 
 ren, distributes the cases so decided for opinions. No justice knows, 
 at the time he votes in a particular case, that he will be asked to become 
 the organ of the court in that case ; nor does any member of the court 
 ask that a particular case be assigned to him. 
 
 1 American Law Review, 30: 904. 
 
THE COURTS 717 
 
 The next step is the preparation of the opinion by the justice to whom 
 it has been assigned. The opinion, when prepared, is privately printed, 
 and a copy placed in the hands of each member of the court for examina- 
 tion and criticism. It is examined by each justice, and returned to the 
 author, with such criticisms and objections as are deemed necessary. If 
 these objections are of a serious kind, affecting the general trend of the 
 opinion, the writer calls the attention of the justice to them, that they 
 may be passed upon. The author adopts such suggestions of mere form 
 as meet his views. If objections are made to which the writer does not 
 agree, they are considered in conference, and are sustained or overruled 
 as the majority may determine. The opinion is reprinted so as to express 
 the final conclusions of the court, and is then filed. 
 
 Thus, you will observe, not only is the utmost care taken to make the 
 opinion express the views of the court, but that the final judgment rests, 
 in every case decided, upon the examination by each member of the 
 court of the record and briefs. Let me say that, during my entire ser- 
 vice in the Supreme Court, I have not known a single instance in which 
 the court has determined a case merely upon the report of one or more 
 justices as to what was contained in the record and as to what questions 
 were properly presented by it. When you find an opinion of the court 
 on file and published, the profession have the right to take it as express- 
 ing the deliberate views of the court, based upon a careful examination 
 of the records and briefs by each justice participating in the judgment. 
 
 What I have said will give you some idea of the labor necessary to be 
 performed by the members of the Supreme Court. How well it has 
 been performed it is not for any member of the court to declare. Quite 
 certain it is that the country believed that more was imposed upon the 
 court than could be met with due regard to the interests of litigants, 
 and to the prompt despatch of judicial business. Hence, the establish- 
 ment of Circuit Courts of Appeals, whose decisions are final in large 
 classes of cases of which the Supreme Court heretofore had jurisdiction 
 upon appeal or writ of error. Time has vindicated, in the judgment of 
 many, the scheme of the act of 1891, creating an intermediate Appellate 
 Court in each Circuit. It is beyond question that that act will have the 
 effect in a very short time to so reduce the number of cases which may, of 
 right, be carried from the Circuit Courts directly to the Supreme Court of 
 the United States, that that court will have no more cases upon its docket, 
 at the beginning of each session, than can be disposed of during the term. 
 
 While at the beginning of the October term of 1890 the cases on the 
 docket of the Supreme Court aggregated 1,406, the number on the 
 docket at the beginning of the term to commence on the i2th day of 
 the present month will not exceed 625. And it is safe to say that the en- 
 tire number which will be on our docket at the beginning of the Octo- 
 ber term, 1898, will not exceed 350. Let this result speak for itself. 
 
yi8 AMERICAN FEDERAL GOVERNMENT 
 
 THE SUPREME COURT ON JUDICIAL POWER 
 
 [The following extract from the decision of the Supreme Court in the case 
 of Kansas v. Colorado, 206 U. S. 46 (1907), announces a most important 
 principle that the judicial power is subject only to express constitutional limi- 
 tations. Mr. Gardiner in his essay on executive powers (see p. 12) had an- 
 nounced the same principle with regard to the executive. See also Senator 
 Spooner's argument, infra.] 
 
 MR. Justice BREWER delivered the opinion of the court: 
 
 While we said in overruling the demurrer, that "this court, broadly 
 speaking, has jurisdiction," we contemplated further consideration of 
 both the fact and the extent of our jurisdiction, to be fully determined 
 after the facts were presented. We therefore commence with this inquiry. 
 And first, of our jurisdiction of the controversy between Kansas and 
 Colorado. 
 
 This suit involves no question of boundary or of the limits of terri- 
 torial jurisdiction. Other and incorporeal rights are claimed by the 
 respective litigants. Controversies between the states are becoming 
 frequent, and, in the rapidly changing conditions of life and business, 
 are likely to become still more so. Involving, as they do, the rights of 
 political communities which in many respects are sovereign and inde- 
 pendent, they present not infrequently questions of far-reaching import 
 and of exceeding difficulty. 
 
 It is well, therefore, to consider the foundations of our jurisdiction 
 over controversies between states. It is no longer open to question that 
 by the Constitution a nation was brought into being, and that that 
 instrument was not merely operative to establish a closer union or league 
 of states. Whatever powers of government were granted to the nation 
 or reserved to the states (and for the description and limitation of these 
 powers we must always accept the Constitution as alone and absolutely 
 controlling), there was created a nation, to be known as the United States 
 of America, and as such then assumed its place among the nations of 
 the world. 
 
 The first resolution passed by the convention that framed the Constitu- 
 tion, sitting as a committee of the whole, was, "Resolved, that it is the 
 opinion of this committee that a national government ought to be estab- 
 lished, consisting of a supreme legislative, judiciary, and executive." 
 i Eliot, Debates, p. 151. 
 
 In M'Cuttoch v. Maryland, 4 Wheaton, 316, 405, Chief Justice Mar- 
 shall said: 
 
 "The government of the Union, then (whatever may be the influence 
 of this fact on the case), is, emphatically and truly, a government of the 
 people. In form and in substance it emanates from them. Its powers 
 
THE COURTS 719 
 
 are granted by them, and are to be exercised directly on them, and for 
 their benefit." 
 
 See also Martin v. Hunter, i Wheat. 304, 324, opinion by Mr. Justice 
 Story. 
 
 In Scott v. Sandford, 19 How. 393, 441, Chief Justice Taney observed: 
 
 "The new government was not a mere change in a dynasty, or in a 
 form of government, leaving the nation or sovereignty the same, and 
 clothed with all the rights, and bound by all the obligations, of the pre- 
 ceding one. But, when the present United States came into existence 
 under the new government, it was a new political body, a new nation 
 then for the first time taking its place in the family of nations." 
 
 And in Miller on the Constitution of the United States, p. 83, referring 
 to the adoption of the Constitution, that learned jurist said: "It was 
 then that a nation was born." 
 
 In the Constitution are provisions in separate articles for the three 
 great departments of government, legislative, executive, and judicial. 
 But there is this significant difference in the grants of powers to these 
 departments: The first article treating of legislative powers does not 
 make a general grant of legislative power. It reads: " Article i, sec- 
 tion i. All legislative powers herein granted shall be vested in a Con- 
 gress," etc. ; and then in article 8, mentions and defines the legislative 
 powers that are granted. By reason of the fact that there is no general 
 grant of legislative power it has become an accepted constitutional rule 
 that this is a government of enumerated powers. 
 
 In M'Cuiloch v. Maryland, 4 Wheat. 405, Chief Justice Marshall 
 said: 
 
 ' * This government is acknowledged by all to be one of enumerated 
 powers. The principle that it can exercise only the powers granted to 
 it would seem too apparent to have required to be enforced by all those 
 arguments which its enlightened friends, while it was depending before 
 the people, found it necessary to urge. That principle is now universally 
 admitted." 
 
 On the other hand, in article 3, which treats of the judicial depart- 
 ment, and this is important for our present consideration, we find 
 that section i reads that "the judicial power of the United States shall 
 be vested in one Supreme Court, and in such inferior courts as Congress 
 may from time to time ordain and establish." By this is granted the 
 entire judicial power of the nation. Section 2 which provides that 
 "the judicial power shall extend to all cases, in law and equity, arising 
 under this Constitution, the laws of the United States," etc. is not a 
 limitation or an enumeration. It is a definite declaration, a pro- 
 vision that the judicial power shall extend to that is, shall include, the 
 several matters particularly mentioned, leaving unrestricted the general 
 grant of the entire judicial power. There may be, of course, limi- 
 tations on that grant of power, but, if there are any, they must be ex- 
 
720 AMERICAN FEDERAL GOVERNMENT 
 
 pressed ; for otherwise the general grant would vest in the courts all the 
 judicial power which the new nation was capable of exercising. Con- 
 struing this article in the early case of Chisolm v. Georgia, 2 Dall. 419, 
 the court held that the judicial power of the Supreme Court extended 
 to a suit brought against a state by a citizen of another state. In an- 
 nouncing his opinion in the case, Mr. Justice Wilson said (p. 453) : 
 
 "This question, important in itself, will depend on others more 
 important still; and may, perhaps, be ultimately resolved into one no 
 less radical than this, do the people of the United States form a 
 nation ? " 
 
 In reference to this question attention may, however, properly be 
 called to Hans v. Louisiana, 124 U. S. i. 
 
 The decision in Chisolm v. Georgia led to the adoption of the nth 
 Amendment to the Constitution, withdrawing from the judicial power 
 of the United States every suit in law or equity commenced or prosecuted 
 against one of the United States by citizens of another state or citizens or 
 subjects of a foreign state. This amendment refers only to suits and 
 actions by individuals, leaving undisturbed the jurisdiction over suits 
 or actions by one state against another. As said by Chief Justice Mar- 
 shall in Cohen v. Virginia, 6 Wheat. 264, 407; "The Amendment, 
 therefore, extended to suits commenced or prosecuted by individuals, 
 but not to those brought by states." See also South Dakota v. North 
 Carolina, 192 U. S. 286. 
 
 Speaking generally, it may be observed that the judicial power of a 
 nation extends to all controversies justiciable in their nature, and the 
 parties to which or the property involved in which may be reached by 
 judicial process, and, when the judicial power of the United States was 
 vested in the Supreme and other courts, all the judicial power which the 
 nation was capable of exercising was vested in those tribunals; and 
 unless there be some limitations expressed in the Constitution it must 
 be held to embrace all controversies of a justiciable nature arising within 
 the territorial limits of the nation, no matter who may be the parties 
 thereto. This general truth is not inconsistent with the decisions that 
 no suit or action can be maintained against the nation in any of its courts 
 without its consent, for they only recognize the obvious truth that a 
 nation is not, without its consent, subject to the controlling action of 
 any of its instrumentalities or agencies. The creature can not rule the 
 creator. Kawananakoa v. Polyblank, 205 U. S. 349. Nor is it incon- 
 sistent with the ruling in Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 
 that an original action can not be maintained in this court by one state to 
 enforce its penal laws against a citizen of another state. That was no 
 denial of the jurisdiction of the court, but a decision upon the merits 
 of the claim of the state. 
 
 These considerations lead to the propositions that when a legislative 
 power is claimed for the national government the question is whether 
 
THE COURTS 721 
 
 that power is one of those granted by the Constitution, either in terms 
 or by necessary implication; whereas, in respect to judicial functions, 
 the question is whether there be any limitations expressed in the Con- 
 stitution on the general grant of national power. 
 
 We may also notice a matter in respect thereto referred to at length 
 in Missouri v. Illinois, 180 U. S. 208, 220. The gth article of the Articles 
 of Confederation provided that "the United States in Congress assembled 
 shall also be the last resort on appeal in all disputes and differences now 
 subsisting or that may hereafter arise between two or more states con- 
 cerning boundary, jurisdiction, or any other cause whatever." In the 
 early drafts of the Constitution provision was made giving to the Supreme 
 Court "jurisdiction of controversies between two or more states, except 
 such as shall regard territory or jurisdiction, "and also that the Senate 
 should have exclusive power to regulate the manner of deciding the dis- 
 putes and controversies between the states respecting jurisdiction or 
 territory. As finally adopted, the Constitution omits all provision for 
 the Senate taking cognizance of disputes between the states, and leaves 
 out the exception referred to in the jurisdiction granted to the Supreme 
 Court. That carries with it a very direct recognition of the fact that to 
 the Supreme Court is granted jurisdiction of all controversies between 
 the states which are justiciable in their nature. "All the states have 
 transferred the decision of their controversies to this court ; each had a 
 right to demand of it the exercise of the power which they had made 
 judicial by the Confederation of 1781 and 1788; that we should do that 
 which neither states nor Congress could do settle the controversies 
 between them." Rhode Island v. Massachusetts, 12 Pet. 657, 743. 
 
 THE RIGHT OF THE GOVERNMENT TO APPEAL IN 
 CRIMINAL CASES INJUNCTIONS 
 
 FROM PRESIDENT ROOSEVELT'S MESSAGE OF DECEMBER, 1906 
 
 To THE SENATE AND HOUSE OF REPRESENTATIVES: 
 
 Appeal in Criminal Cases. Another bill which has just passed one 
 House of the Congress and which it is urgently necessary should be 
 enacted into law is that conferring upon the Government the right of 
 appeal in criminal cases on questions of law. This right exists in many 
 of the States ; it exists in the District of Columbia by act of the Congress. 
 It is of course not proposed that in any case a verdict for the defendant on 
 the merits should be set aside. Recently in one district where the Gov- 
 ernment had indicted certain persons for conspiracy in connection with 
 rebates, the court sustained the defendant's demurrer ; while in another 
 jurisdiction an indictment for conspiracy to obtain rebates has been 
 sustained by the court, convictions obtained under it, and two defend- 
 
 46 
 
722 AMERICAN FEDERAL GOVERNMENT 
 
 ants sentenced to imprisonment. The two cases referred to may not 
 be in real conflict with each other, but it is unfortunate that there should 
 even be an apparent conflict. At present there is no way by which the 
 Government can cause such a conflict, when it occurs, to be solved by 
 an appeal to a higher court ; and the wheels of justice are blocked with- 
 out any real decision of the question. I can not too strongly urge the 
 passage of the bill in question. A failure to pass it will result in seriously 
 hampering the Government in its effort to obtain justice, especially 
 against wealthy individuals or corporations who do wrong; and may 
 also prevent the Government from obtaining justice for wageworkers 
 who are not themselves able effectively to contest a case where the judg- 
 ment of an inferior court has been against them. I have specifically 
 in view a recent decision by a district judge leaving railway employees 
 without remedy for violation of a certain so-called labor statute. It 
 seems an absurdity to permit a single district judge, against what may 
 be the judgment of the immense majority of his colleagues on the bench, 
 to declare a law solemnly enacted by the Congress to be " unconstitu- 
 tional," and then to deny to the Government the right to have the Su- 
 preme Court definitely decide the question. 
 
 It is well to recollect that the real efficiency of the law often depends 
 not upon the passage of acts as to which there is great public excite- 
 ment, but upon the passage of acts of this nature as to which there is 
 not much public excitement, because there is little public understand- 
 ing of their importance, while the interested parties are keenly alive to 
 the desirability of defeating them. The importance of enacting into law 
 the particular bill in question is further increased by the fact that the 
 Government has now definitely begun a policy of resorting to the crim- 
 inal law in those trust and interstate commerce cases where such a course 
 offers a reasonable chance of success. At first, as was proper, every 
 effort was made to enforce these laws by civil proceedings; but it has 
 become increasingly evident that the action of the Government in finally 
 deciding, in certain cases, to undertake criminal proceedings was justifi- 
 able; and though there have been some conspicuous failures in these 
 cases, we have had many successes, which have undoubtedly had a 
 deterrent effect upon evil-doers, whether the penalty inflicted was in the 
 shape of fine or imprisonment and penalties of both kinds have already 
 been inflicted by the courts. Of course, where the judge can see his way 
 to inflict the penalty of imprisonment the deterrent effect of the punish- 
 ment on other offenders is increased; but sufficiently heavy fines ac- 
 complish much. Judge Holt, of the New York district court, in a recent 
 decision admirably stated the need for treating with just severity offend- 
 ers of this kind. His opinion runs in part as follows : 
 
 "The Government's evidence to establish the defendant's guilt was 
 clear, conclusive, and undisputed. The case was a flagrant one. The 
 transactions which took place under this illegal contract were very 
 
THE COURTS 723 
 
 large; the amount of rebates returned were considerable; and the 
 amount of the rebate itself was large, amounting to more than one-fifth 
 of the entire tariff charge for the transportation of merchandise from 
 this city to Detroit. It is not too much to say, in my opinion, that if 
 this business was carried on for a considerable time on that basis that 
 is, if this discrimination in favor of this particular shipper was made 
 with an 1 8 instead of a 23 cent rate and the tariff rate was maintained as 
 against their competitors the result might be and not improbably 
 would be that their competitors would be driven out of business. This 
 crime is one which in its nature is deliberate and premeditated. I think 
 over a fortnight elapsed between the date of Palmer's letter requesting 
 the reduced rate and the answer of the railroad company deciding to 
 grant it, and then for months afterwards this business was carried on 
 and these claims for rebates submitted month after month and checks 
 in payment of them drawn month after month. Such a violation of the 
 law, in my opinion, in its essential nature, is a very much more heinous 
 act than the ordinary common, vulgar crimes which come before criminal 
 courts constantly for punishment and which arise from sudden passion 
 or temptation. This crime in this case was committed by men of educa- 
 tion and of large business experience, whose standing in the community 
 was such that they might have been expected to set an example of obedi- 
 ence to law, upon the maintenance of which alone in this country the 
 security of their property depends. It was committed on behalf of a 
 great railroad corporation, which, like other railroad corporations, has 
 received gratuitously from the State large and valuable privileges for 
 the public's convenience and its own, which performs quasi public 
 functions and which is charged with the highest obligation in the trans- 
 action of its business to treat the citizens of this country alike, and not 
 to carry on its business with unjust discriminations between different 
 citizens or different classes of citizens. This crime in its nature is one 
 usually done with secrecy, and proof of which it is very difficult to obtain. 
 The interstate commerce act was passed in 1887, nearly twenty years ago. 
 Ever since that time complaints of the granting of rebates by railroads 
 has been common, urgent, and insistent, and although the Congress has 
 repeatedly passed legislation endeavoring to put a stop to this evil, the 
 difficulty of obtaining proof upon which to bring prosecution in these 
 cases is so great that this is the first case that has ever been brought 
 in this court, and, as I am informed, this case and one recently brought 
 in Philadelphia are the only cases that have ever been brought in the 
 eastern part of this country. In fact, but few cases of this kind have 
 ever been brought in this country, East or West. Now, under these 
 circumstances, I am forced to the conclusion, in a case in which the proof 
 is so clear and the facts are so flagrant, it is the duty of the court to fix 
 a penalty which shall in some degree be commensurate with the gravity 
 of the offense. As between the two defendants, in my opinion, the 
 
724 AMERICAN FEDERAL GOVERNMENT 
 
 principal penalty should be imposed on the corporation. The traffic 
 manager in this case, presumably, acted without any advantage to him- 
 self and without any interest in the transaction, either by the direct 
 authority or in accordance with what he understood to be the policy or 
 the wishes of his employer. 
 
 " The sentence of this court in this case is, that the defendant Pom- 
 eroy, for each of the six offenses upon which he has been convicted, be 
 fined the sum of $1,000, making six fines, amounting in all to the sum of 
 $6,000; and the defendant, The New York Central and Hudson River 
 Railroad Company, for each of the six crimes of which it has been con- 
 victed, be fined the sum of $18,000, making six fines amounting in the 
 aggregate to the sum of $108,000, and judgment to that effect will be 
 entered in this case." 
 
 Granting of New Trials. In connection with this matter, I would like 
 to call attention to the very unsatisfactory state of our criminal law, 
 resulting in large part from the habit of setting aside the judgments of 
 inferior courts on technicalities absolutely unconnected with the merits 
 of the case, and where there is no attempt to show that there has been 
 any failure of substantial justice. It would be well to enact a law pro- 
 viding something to the effect that: 
 
 No judgment shall be set aside or new trial granted in any cause, 
 civil or criminal, on the ground of misdirection of the jury or the im- 
 proper admission or rejection of evidence, or for error as to any matter 
 of pleading or procedure unless, in the opinion of the court to which the 
 application is made, after an examination of the entire cause, it shall 
 affirmatively appear that the error complained of has resulted in a mis- 
 carriage of justice. 
 
 Injunctions. In my last message I suggested the enactment of a law 
 in connection with the issuance of injunctions, attention having been 
 sharply drawn to the matter by the demand that the right of applying 
 injunctions in labor cases should be wholly abolished. It is at least 
 doubtful whether a law abolishing altogether the use of injunctions in 
 such cases would stand the test of the courts; in which case of course 
 the legislation would be ineffective. Moreover, I believe it would be 
 wrong altogether to prohibit the use of injunctions. It is criminal to 
 permit sympathy for criminals to weaken our hands in upholding the 
 law ; and if men seek to destroy life or property by mob violence there 
 should be no impairment of the power of the courts to deal with them 
 in the most summary and effective way possible. But so far as possible 
 the abuse of the power should be provided against by some such law as 
 I advocated last year. 
 
 In this matter of injunctions there is lodged in the hands of the judi- 
 ciary a necessary power which is nevertheless subject to the possibility 
 of grave abuse. It is a power that should be exercised with extreme 
 care and should be subject to the jealous scrutiny of all men, and con- 
 
THE COURTS 725 
 
 demnation should be meted out as much to the judge who fails to use 
 it boldly when necessary as to the judge who uses it wantonly or oppres- 
 sively. Of course a judge strong enough to be fit for his office will enjoin 
 any resort to violence or intimidation, especially by conspiracy, no matter 
 what his opinion may be of the rights of the original quarrel. There 
 must be no hesitation in dealing with disorder. But there must likewise 
 be no such abuse of the injunctive power as is implied in forbidding 
 laboring men to strive for their own betterment in peaceful and lawful 
 ways; nor must the injunction be used merely to aid some big corpora- 
 tion in carrying out schemes for its own aggrandizement. It must be 
 remembered that a preliminary injunction in a labor case, if granted 
 without adequate proof (even when authority can be found to support 
 the conclusions of law on which it is founded), may often settle the dis- 
 pute between the parties; and therefore if improperly granted may do 
 irreparable wrong. Yet there are many judges who assume a matter- 
 of-course granting of a preliminary injunction to be the ordinary and 
 proper judicial disposition of such cases; and there have undoubtedly 
 been flagrant wrongs committed by judges in connection with labor 
 disputes even within the last few years, although I think much less often 
 than in former years. Such judges by their unwise action immensely 
 strengthen the hands of those who are striving entirely to do away with 
 the power of injunction ; and therefore such careless use of the injunc- 
 tive process tends to threaten its very existence, for if the American 
 people ever become convinced that this process is habitually abused, 
 whether in matters affecting labor or in matters affecting corporations, 
 it will be well-nigh impossible to prevent its abolition. 
 
 It may be the highest duty of a judge at any given moment to dis- 
 regard, not merely the wishes of individuals of great political or financial 
 power, but the overwhelming tide of public sentiment; and the judge 
 who does thus disregard public sentiment when it is wrong, who brushes 
 aside the plea of any special interest when the pleading is not founded 
 on righteousness, performs the highest service to the country. Such a 
 judge is deserving of all honor; and all honor can not be paid to this 
 wise and fearless judge if we permit the growth of an absurd conven- 
 tion which would forbid any criticism of the judge of another type, who 
 shows himself timid in the presence of arrogant disorder, or who on in- 
 sufficient grounds grants an injunction that does grave injustice, or who, 
 in his capacity as a construer, and therefore in part a maker, of the 
 law, in flagrant fashion thwarts the cause of decent government. The 
 judge has a power over which no review can be exercised; he himself 
 sits in review upon the acts of both the executive and legislative 
 branches of the Government; save in the most extraordinary cases he 
 is amenable only at the bar of public opinion; and it is unwise to 
 maintain that public opinion in reference to a man with such power 
 shall neither be expressed nor led. 
 
726 AMERICAN FEDERAL GOVERNMENT 
 
 The best judges have ever been foremost to disclaim any immunity 
 from criticism. This has been true since the days of the great English 
 Lord Chancellor Parker, who said: "Let all people be at liberty to 
 know what I found my judgment upon ; that, so when I have given it 
 in any cause, others may be at liberty to judge of me." The proprieties 
 of the case were set forth with singular clearness and good temper by 
 Judge W. H. Taft, when a United States circuit judge, eleven years ago, 
 in 1895: 
 
 "The opportunity freely and publicly to criticize judicial action is of 
 vastly more importance to the body politic than the immunity of courts 
 and judges from unjust aspersions and attack. Nothing tends more to 
 render judges careful in their decisions and anxiously solicitous to do 
 exact justice than the consciousness that every act of theirs is to be sub- 
 jected to the intelligent scrutiny and candid criticism of their fellow-men. 
 Such criticism is beneficial in proportion as it is fair, dispassionate, dis- 
 criminating, and based on a knowledge of sound legal principles. The 
 comments made by learned text writers and by the acute editors of the 
 various law reviews upon judicial decisions are therefore highly useful. 
 Such critics constitute more or less impartial tribunals of professional opin- 
 ion before which each judgment is made to stand or fall on its merits, 
 and thus exert a strong influence to secure uniformity of decision. But 
 non-professional criticism also is by no means without its uses, even if 
 accompanied, as it often is, by a direct attack upon the judicial fairness 
 and motives of the occupants of the bench ; for if the law is but the es- 
 sence of common sense, the protest of many average men may evidence 
 a defect in a judicial conclusion, though based on the nicest legal reason- 
 ing and profoundest learning. The two important elements of moral 
 character in a judge are an earnest desire to reach a just conclusion and 
 courage to enforce it. In so far as fear of public comment does not 
 affect the courage of a judge, but only spurs him on to search his con- 
 science and to reach the result which approves itself to his inmost heart, 
 such comment serves a useful purpose. There are few men, whether 
 they are judges for life or for a shorter term, who do not prefer to earn 
 and hold 'the respect of all, and who can not be reached and made to 
 pause and deliberate by hostile public criticism. In the case of judges 
 having a life tenure, indeed, their very independence makes the right 
 freely to comment on their decisions of greater importance, because it 
 is the only practical and available instrument in the hands of a free 
 people to keep such judges alive to the reasonable demands of those 
 they serve. 
 
 "On the other hand, the danger of destroying the proper influence of 
 judicial decisions by creating unfounded prejudices against the courts 
 justifies and requires that unjust attacks shall be met and answered. 
 Courts must ultimately rest their defense upon the inherent strength 
 of the opinions they deliver as the ground for their conclusions and 
 
THE COURTS 727 
 
 must trust to the calm and deliberate judgment of all the people as their 
 best vindication." 
 
 There is one consideration which should be taken into account by 
 the good people who carry a sound proposition to an excess in object- 
 ing to any criticism of a judge's decision. The instinct of the American 
 people as a whole is sound in this matter. They will not subscribe to 
 the doctrine that any public servant is to be above all criticism. If the 
 best citizens, those mose competent to express their judgment in such 
 matters, and above all those belonging to the great and honorable pro- 
 fession of the bar, so profoundly influential in American life, take the 
 position that there shall be no criticism of a judge under any circum- 
 stances, their view will not be accepted by the American people as a 
 whole. In such event the people will turn to, and tend to accept as 
 justifiable, the intemperate and improper criticism uttered by unworthy 
 agitators. Surely it is a misfortune to leave to such critics a function, 
 right in itself, which they are certain to abuse. Just and temperate 
 criticism, when necessary, is a safeguard against the acceptance by the 
 people as a whole of that intemperate antagonism towards the judiciary 
 which must be combated by every right-thinking man, and which, if it 
 became widespread among the people at large, would constitute a dire 
 menace to the Republic. 
 
 Lynching. In connection with the delays of the law, I call your atten- 
 tion and the attention of the Nation to the prevalence of crime among 
 us, and above all to the epidemic of lynching and mob violence that 
 springs up, now in one part of our country, now in another. Each section, 
 North, South, East, or West, has its own faults; no section can with 
 wisdom spend its time jeering at the faults of another section ; it should 
 be busy trying to amend its own shortcomings. To deal with the crime 
 of corruption it is necessary to have an awakened public conscience, 
 and to supplement this by whatever legislation will add speed and cer- 
 tainty in the execution of the law. When we deal with lynching even 
 more is necessary. A great many white men are lynched, but the crime 
 is peculiarly frequent in respect to black men. The greatest existing 
 cause of lynching is the perpetration, especially by black men, of the 
 hideous crime of rape the most abominable in all the category of 
 crimes, even worse than murder. Mobs frequently avenge the commis- 
 sion of this crime by themselves torturing to death the man committing 
 it; thus avenging in bestial fashion a bestial deed, and reducing them- 
 selves to a level with the criminal. 
 
 Lawlessness grows by what it feeds upon; and when mobs begin to 
 lynch for rape they speedily extend the sphere of their operations and 
 lynch for many other kinds of crimes, so that two-thirds of the lynch- 
 ings are not for rape at all ; while a considerable proportion of the indi- 
 viduals lynched are innocent of all crime. Governor Candler, of Georgia, 
 stated on one occasion some years ago: "I can say of a verity that I 
 
728 AMERICAN FEDERAL GOVERNMENT 
 
 have, within the last month, saved the lives of half a dozen innocent 
 negroes who were pursued by the mob, and brought them to trial in a 
 court of a law in which they were acquitted." As Bishop Galloway, 
 of Mississippi, has finely said: "When the rule of a mob obtains, that 
 which distinguishes a high civilization is surrendered. The mob which 
 lynches a negro charged with rape will in a little while lynch a white 
 man suspected of crime. Every Christian patriot in America needs to 
 lift up his voice in loud and eternal protest against the mob spirit that 
 is threatening the integrity of this Republic." Governor Jelks, of Ala- 
 bama, has recently spoken as follows: "The lynching of any person for 
 whatever crime is inexcusable anywhere it is a defiance of orderly 
 government; but the killing of innocent people under any provocation 
 is infinitely more horrible; and yet innocent people are likely to die 
 when a mob's terrible lust is once aroused. The lesson is this: No 
 good citizen can afford to countenance a defiance of the statutes, no 
 matter what the provocation. The innocent frequently suffer, and, it 
 is my observation, more usually suffer than the guilty. The white people 
 of the South indict the whole colored race on the ground that even the 
 better elements lend no assistance whatever in ferreting out criminals 
 of their own color. The respectable colored people must learn not to 
 harbor their criminals, but to assist the officers in bringing them to jus- 
 tice. This is the larger crime, and it provokes such atrocious offenses 
 as the one at Atlanta. The two races can never get on until there is an 
 understanding on the part of both to make common cause with the law- 
 abiding against criminals of any color." 
 
 Moreover, where any crime committed by a member of one race 
 against a member of another race is avenged in such fashion that it 
 seems as if not the individual criminal, but the whole race, is attacked, 
 the result is to exasperate to the highest degree race feeling. There is 
 but one safe rule in dealing with black men as with white men; it is 
 the same rule that must be applied in dealing with rich men and poor 
 men; that is, to treat each man, whatever his color, his creed, or his 
 social position, with even-handed justice on his real worth as a man. 
 White people owe it quite as much to themselves as to the colored race 
 to treat well the colored man who shows by his life that he deserves such 
 treatment; for it is surely the highest wisdom to encourage in the colored 
 race all those individuals who are honest, industrious, law-abiding, and 
 who therefore make good and safe neighbors and citizens. Reward or 
 punish the individual on his merits as an individual. Evil will surely 
 come in the end to both races if we substitute for this just rule the habit 
 of treating all the members of the race, good and bad, alike. There is no 
 question of "social equality" or "negro domination" involved; only the 
 question of relentlessly punishing bad men, and of securing to the good 
 man the right to his life, his liberty, and the pursuit of his happiness 
 as his own qualities of heart, head, and hand enable him to achieve it. 
 
THE COURTS 729 
 
 Every colored man should realize that the worst enemy of his race is 
 the negro criminal, and above all the negro criminal who commits the 
 dreadful crime of rape; and it should be felt as in the highest degree 
 an offense against the whole country, and against the colored race in 
 particular, for a colored man to fail to help the officers of the law in 
 hunting down with all possible earnestness and zeal every such infamous 
 offender. Moreover, in my judgment, the crime of rape should always 
 be punished with death, as is the case with murder; assault with intent 
 to commit rape should be made a capital crime, at least in the discretion 
 of the court; and provision should be made by which the punishment 
 may follow immediately upon the heels of the offense; while the trial 
 should be so conducted that the victim need not be wantonly shamed 
 while giving testimony, and that the least possible publicity shall be 
 given to the details. 
 
 The members of the white race on the other hand should understand 
 that every lynching represents by just so much a loosening of the bands 
 of civilization ; that the spirit of lynching inevitably throws into promi- 
 nence in the community all the foul and evil creatures who dwell therein. 
 No man can take part in the torture of a human being without having 
 his own moral nature permanently lowered. Every lynching means just 
 so much moral deterioration in all the children who have any knowl- 
 edge of it, and therefore just so much additional trouble for the next 
 generation of Americans. 
 
 Let justice be both sure and swift ; but let it be justice under the law, 
 and not the wild and crooked savagery of a mob. 
 
 There is another matter which has a direct bearing upon this matter 
 of lynching and of the brutal crime which sometimes calls it forth and 
 at other times merely furnishes the excuse for its existence. It is out of 
 the question for our people as a whole permanently to rise by treading 
 down any of their own number. Even those who themselves for the 
 moment profit by such maltreatment of their fellows will in the long run 
 also suffer. No more shortsighted policy can be imagined than, in the 
 fancied interest of one class, to prevent the education of another class. 
 The free public school, the chance for each boy or girl to get a good 
 elementary education, lies at the foundation of our whole political situa- 
 tion. In every community the poorest citizens, those who need the 
 schools most, would be deprived of them if they only received school 
 facilities proportioned to the taxes they paid. This is as true of one 
 portion of our country as of another. It is as true for the negro as for 
 the white man. The white man, if he is wise; will decline to allow the 
 negroes in a mass to grow to manhood and womanhood without educa- 
 tion. Unquestionably education such as is obtained in our public schools 
 does not do everything towards making a man a good citizen; but it 
 does much. The lowest and most brutal criminals, those for instance 
 who commit the crime of rape, are in the great majority men who have 
 
730 AMERICAN FEDERAL GOVERNMENT 
 
 had either no education or very little ; just as they are almost invariably 
 men who own no property; for the man who puts money by out of his 
 earnings, like the man who acquires education, is usually lifted above 
 mere brutal criminality. Of course the best type of education for the 
 colored man, taken as a whole, is such education as is conferred in schools 
 like Hampton and Tuskegee ; where the boys and girls, the young men 
 and young women, are trained industrially as well as in the ordinary 
 public school branches. The graduates of these schools turn out well 
 in the great majority of cases, and hardly any of them become criminals, 
 while what little criminality there is never takes the form of that brutal 
 violence which invites lynch law. Every graduate of these schools 
 and for the matter of that every other colored man or woman who 
 leads a life so useful and honorable as to win the good will and respect 
 of those whites whose neighbor he or she is, thereby helps the whole 
 colored race as it can be helped in no other way ; for next to the negro 
 himself, the man who can do most to help the negro is his white neighbor 
 who lives near him; and our steady effort should be to better the rela- 
 tions between the two. Great though the benefit of these schools has 
 been to their colored pupils and to the colored people, it may well be ques- 
 tioned whether the benefit has not been at least as great to the white 
 people among whom these colored pupils live after they graduate. 
 
 Be it remembered, furthermore, that the individuals who, whether 
 from folly, from evil temper, from greed for office, or in a spirit of mere 
 base demagogy, indulge in the inflammatory and incendiary speeches 
 and writings which tend to arouse mobs and to bring about lynching, 
 not only thus excite the mob, but also tend by what criminologists call 
 " suggestion," greatly to increase the likelihood of a repetition of the 
 very crime against which they are inveighing. When the mob is com- 
 posed of the people of one race and the man lynched is of another race, 
 the men who in their speeches and writings either excite or justify 
 the action tend, of course, to excite a bitter race feeling and to cause the 
 people of the opposite race to lose sight of the abominable act of the 
 criminal himself; and in addition, by the prominence they give to 
 the hideous deed they undoubtedly tend to excite in other brutal and 
 depraved natures thoughts of committing it. Swift, relentless, and or- 
 derly punishment under the law is the only way by which criminality of 
 this type can permanently be suppressed. 
 
XV 
 
 CENTRALIZATION AND CHANGES IN THE 
 CONSTITUTION 
 
 [The expansion of the activities of the federal government has aroused much 
 discussion. Those who believe in a strong national authority welcome the 
 activity of the federal government as a symptom of strength in our national 
 life. They see in it only the normal adaptation of instruments of government 
 to social and economic needs of the nation. Others who believe strongly in 
 local and state autonomy express the fear that the federal government may 
 entirely supersede the states, and that there will result an over-concentration 
 of political action. This matter has already been brought out in many of the 
 extracts printed on preceding pages. The speeches of Senator Newlands and 
 of Senator Beveridge, on national resources, express a strong belief in the 
 justification of federal initiative. The same ideas are developed in the mes- 
 sages of President Roosevelt. The different points of view are very strongly 
 presented in the following debates and addresses.] 
 
 HOW TO PRESERVE THE LOCAL SELF-GOVERNMENT 
 OF THE STATES 1 
 
 BY ELIHU ROOT 
 
 THIS gathering peculiarly represents two ancient Commonwealths, 
 each looking back to a century and a half of colonial history before the 
 formation of the American Union, each possessed of strong individuality, 
 derived from the long practice of self-government, and both conspicu- 
 ous among all the States for leadership in population and wealth, for 
 commerce and manufacture, for art and science, and for the priceless 
 traditions of great citizens in former generations. It seems appropriate 
 to make here some observations upon a subject which is much in the 
 minds of thoughtful Americans in these days. 
 
 What is to be the future of the States of the Union under our dual 
 system of constitutional government? 
 
 The conditions under which the clauses of the Constitution distribut- 
 ing powers to the National and State governments are now and hence- 
 forth to be applied, are widely different from the conditions which were 
 or could have been within the contemplation of the framers of the Con- 
 stitution, and widely different from those which obtained during the 
 
 1 A speech delivered by Secretary Root at the dinner of the Pennsylvania Society in 
 New York, December 12, 1906. 
 
 731 
 
732 AMERICAN FEDERAL GOVERNMENT 
 
 early years of the Republic. When the authors of The Federalist argued 
 and expounded the reasons for union and the utility of the provisions 
 contained in the Constitution, each separate colony transformed into 
 a State was complete in itself and sufficient to itself except as to a few 
 exceedingly simple external relations of State to State and to foreign 
 nations; from the origin of production to the final consumption of the 
 product, from the birth of a citizen to his death, the business, the social, 
 and the political life of each separate community began and ended for 
 the most part within the limits of the State itself ; the long time required 
 for travel and communication between the different centers of popula- 
 tion, the difficulties and hardships of long and laborious journeys, the 
 slowness of the mails, and the enormous cost of transporting goods, kept 
 the people of each State tributary to their own separate colonial center 
 of trade and influence, and kept their activities within the ample and 
 sufficient jurisdiction of the local laws of their State. The fear of the 
 fathers of the Republic was that these separate and self-sufficient com- 
 munities would fall apart, that the Union would resolve into its constitu- 
 ent elements, or that, as it grew in population and area, it would split 
 up into a number of separate confederacies. Few of the men of 1787 
 would have deemed it possible that the Union they were forming could 
 be maintained among eighty-five millions of people, spread over the 
 vast expanse from the Atlantic to the Pacific and from the Lakes to the 
 Gulf. 
 
 Three principal causes have made this possible. 
 
 One cause has been the growth of a National sentiment, which was 
 at first almost imperceptible. The very difficulties and hardships to 
 which our Nation was subjected in its early years, the injuries to our 
 commerce, and the insults and indignities to our flag on the part of both 
 of the contestants in the great Napoleonic wars, served to keep the 
 Nation and National interests and National dignity constantly before 
 the minds and in the feelings of the people. As the tide of emigration 
 swept westward, new States were formed of citizens who looked back 
 to the older States as the homes of their childhood and their affection 
 and the origin of their laws and customs, and who never had the peculiar 
 and special separate political life of the colonies. The Civil War settled 
 the supremacy of the Nation throughout the territory of the Union, and 
 its sacrifices sanctified and made enduring that National sentiment. 
 Our country as a whole, the noble and beloved land of every citizen 
 of every State, has become the object of pride and devotion among all 
 our people, North and South, within the limits of the proud, old colonial 
 Commonwealths, throughout that vast region where Burr once dreamed 
 of a separate empire dominating the valley of the Mississippi, and upon 
 the far-distant shores of the Pacific ; and by the side of this strong and 
 glowing loyalty to the Nation, sentiment for the separate States has 
 become dim and faint in comparison. 
 
CENTRALIZATION 733 
 
 The second great influence has been the knitting together in ties of 
 common interest of the people forming the once separate communities 
 through the working of free trade among the States. Never was a con- 
 cession dictated by enlightened judgment for the common benefit more 
 richly than that by which the States surrendered in the Federal Constitu- 
 tion the right to lay imposts or duties on imports or exports without the 
 consent of Congress. To it we owe the domestic market for the prod- 
 ucts of our farms and forests and mines and factories without a parallel 
 in history, and an internal trade which already exceeds the entire foreign 
 trade of all the rest of the world ; and to it we owe in a high degree the 
 constant drawing together of all parts of our vast and diversified country 
 in the bands of common interest and in the improving good under- 
 standing and kindly feeling of frequent intercourse. 
 
 The third great cause of change is the marvelous development of 
 facilities for travel and communication produced by the inventions and 
 discoveries of the past century. The swift trains that pass over our two 
 hundred and twenty thousand miles of railroad, the seventy millions of 
 messages that flash over the more than fourteen hundred thousand miles 
 of telegraph wires, the conversations across vast spaces through our 
 more than four million four hundred thousand telephone instruments, 
 take no note of State lines ; they have broken down the barriers between 
 the separate communities and they have led to a reorganization of the 
 business and social life of the people of the United States along lines 
 which, for the most part, altogether ignore the boundaries of the States. 
 I left the borders of Virginia this afternoon and traversed Maryland, 
 Delaware, Pennsylvania, and New Jersey to the State of New York, 
 and, barring accident, shall breakfast to-morrow morning again on the 
 shore of the Potomac. The time required for this journey would hardly 
 have sufficed for an ordinary carriage drive from the adjoining county 
 of Westchester a hundred years ago. Any one of us can go now into a 
 neighboring room in this hotel and talk with a friend in Boston or 
 Chicago and recognize his voice and transact business which formerly 
 would have required months to accomplish if it could have been done 
 at all. The lines of trade, of financial operation, of social intercourse, 
 of thought and opinion that radiate from the great centers of life in our 
 country such as Boston and New York, and Philadelphia and Baltimore, 
 and Chicago and St. Louis, and New Orleans and San Francisco, and 
 many another great city, are perfectly regardless of State distinctions. 
 Our whole life has swung away from the old State centers and is crystal- 
 lizing about National centers ; the farmer harvests his grain and fattens 
 his cattle, not as formerly, with reference to the wants of his own home 
 community, but for markets thousands of miles away ; the manufacturer 
 operates his mills and his factories to meet the needs of far-distant con- 
 sumers; the merchant has his customers in many States; all the 
 farmer, the manufacturer, the merchant, the laborer look for the 
 
734 AMERICAN FEDERAL GOVERNMENT 
 
 supplies of their food and clothing, not to the resources of the home 
 farm, or village, or town, but to the resources of the whole Continent. 
 The people move in great throngs to and fro from State to State and 
 across States; the important news of each community is read at every 
 breakfast table throughout the country; the interchange of thought 
 and sentiment and information is universal; in the wide range of daily 
 life and activity and interest the old lines between the States and the old 
 barriers which kept the States as separate communities are completely 
 lost from sight. The growth of National habits in the daily life of a 
 homogeneous people keeps pace with the growth of National sentiment. 
 
 Such changes in the life of the people can not fail to produce corre- 
 sponding political changes. Some of those changes can be plainly seen 
 now in progress. It is plainly to be seen that the people of the country 
 are coming to the conclusion that in certain important respects the local 
 laws of the separate States, which were adequate for the due and just 
 regulation and control of the business which was transacted and the 
 activity which began and ended within the limits of the several States, 
 are inadequate for the due and just control of the business and activities 
 which extend throughout all the States, and that such power of regula- 
 tion and control is gradually passing into the hands of the National 
 Government. Sometimes by an assertion of the interstate commerce 
 power, sometimes by an assertion of the taxing power, the National 
 Government is taking up the performance of duties which under the 
 changed conditions the separate States are no longer capable of ade- 
 quately performing. The Federal anti-trust law, the anti-rebate law, 
 the railroad rate law, the meat-inspection law, the oleomargarine law, 
 the pure-food law, are examples of the purpose of the people of the 
 United States to do through the agency of the National Government 
 the things which the separate State governments formerly did adequately 
 but no longer do adequately. The end is not yet. The process that 
 interweaves the life and action of the people in every section of our- 
 country with the people in every other section, continues and will con- 
 tinue with increasing force and effect; we are urging forward in a de- 
 velopment of business and social life which tends more and more to the 
 obliteration of State lines and the decrease of State power as compared 
 with National power ; the relations of the business over which the Fed- 
 eral Government is assuming control, of interstate transportation with 
 State transportation, of interstate commerce with State commerce, are 
 so intimate and the separation of the two is so impracticable, that the tend- 
 ency is plainly toward the practical control of the National Government 
 over both. New projects of National control are mooted ; control of insur- 
 ance, uniform divorce laws, child-labor laws and many others affecting 
 matters formerly entirely within the cognizance of the State are proposed. 
 
 With these changes and tendencies in what way can the power of the 
 States be preserved? 
 
CENTRALIZATION 735 
 
 I submit to your judgment, and I desire to press upon you with all 
 the earnestness I possess, that there is but one way in which the States 
 of the Union can maintain their power and authority under the condi- 
 tions which are now before us, and that way is by an awakening on the 
 part of the States to a realization of their own duties to the country at 
 large. Under the conditions which now exist, no State can live unto 
 itself alone and regulate its affairs with sole reference to its own treasury, 
 its own convenience, its own special interests. Every State is bound to 
 frame its legislation and its administration with reference not only to 
 its own special affairs, but with reference to the effect upon all its sister 
 States, as every individual is bound to regulate his conduct with some 
 reference to its effect upon his neighbors. The more populous the 
 community and the closer individuals are brought together the more im- 
 perative becomes the necessity which constrains and limits individual con- 
 duct. If any State is maintaining laws which afford opportunity and 
 authority for practices condemned by the public sense of the whole 
 country, or laws which, though the operation of our modern system of 
 communications and business, are injurious to the interests of the whole 
 country, that State is violating the conditions upon which alone can its 
 power be preserved. If any State maintains laws which promote and 
 foster the enormous overcapitalization of corporations condemned by 
 the people of the country generally, if any State maintains laws designed 
 to make easy the formation of trusts and the creation of monopolies, if 
 any State maintains laws which permit conditions of child labor revolt- 
 ing to the sense of mankind, if any State maintains laws of marriage and 
 divorce so far inconsistent with the general standard of the nation as to 
 violently derange the domestic relations, which the majority of the States 
 desire to preserve, that State is promoting the tendency of the people 
 of the country to seek relief through the National Government and to 
 press forward the movement for National control and the extinction of 
 local control. The intervention of the National Government in many 
 of the matters which it has recently undertaken would have been wholly 
 unnecessary if the States themselves had been alive to their duty toward 
 the general body of the country. It is useless for the advocates of State 
 rights to inveigh against the supremacy of the constitutional laws of the 
 United States or against the extension of National authority in the fields 
 of necessary control where the States themselves fail in the performance 
 of their duty. The instinct for self-government among the people of 
 the United States is too strong to permit them long to respect any one's 
 right to exercise a power which he fails to exercise. The Governmental 
 control which they deem just and necessary they will have. It may be 
 that such control would better be exercised in particular instances by 
 the governments of the States, but the people will have the control they 
 need either from the States or from the National Government ; and if 
 the States fail to furnish it in due measure, sooner or later constructions 
 
736 AMERICAN FEDERAL GOVERNMENT 
 
 of the Constitution will be found to vest the power where it will be exer- 
 cised in the National Government. The true and only way to pre- 
 serve State authority is to be found in the awakened conscience of the 
 States, their broadened views and higher standard of responsibility to 
 the general public; in effective legislation by the States, in conformity 
 to the general moral sense of the country ; and in the vigorous exercise 
 for the general public good of that State authority which is to be preserved. 
 
 FROM PRESIDENT ROOSEVELT'S SPEECH AT 
 ST. LOUIS, OCTOBER, 1907 
 
 Now that the questions of government are becoming so largely eco- 
 nomic, the majority of our so-called constitutional cases really turn not 
 upon the interpretation of the instrument itself but upon the construc- 
 tion, the right apprehension of the living conditions to which it is to be 
 applied. The Constitution is now and must remain what it always has 
 been ; but it can only be interpreted as the interests of the whole people 
 demand, if interpreted as a living organism, designed to meet the con- 
 ditions of life and not of death ; in other words, if interpreted as Marshall 
 interpreted it, as Wilson declared it should be interpreted. 
 
 The Marshall theory, the theory of life and not of death, allows to 
 the nation, that is, to the people as a whole, when once it finds a subject 
 within the national cognizance, the widest and freest choice of methods 
 for national control, and sustains every exercise of national power which 
 has any reasonable relation to national objects. The negation of this 
 theory means, for instance, that the nation that we, the 90,000,000 
 people of this country will be left helpless to control the huge cor- 
 porations which now domineer in our industrial life, and that they will 
 have the authority of the courts to work their desires unchecked, and 
 such a decision would in the end be as disastrous for them as for us. 
 
 If the theory of the Marshall school prevails, then an immense field 
 of national power, now unused, will be developed, which will be ade- 
 quate for dealing with many, if not all, of the economic problems which 
 vex us; and we shall be saved from the ominous threat of a constant 
 oscillation between economic tyranny and economic chaos. Our in- 
 dustrial and therefore our social future as a nation depends upon settling 
 aright this urgent question. 
 
 The constitution is unchanged and unchangeable save by amendment 
 in due form. But the conditions to which it is to be applied have under- 
 gone a change which is almost a transformation, with the result that 
 many subjects formerly under the control of the states have come under 
 the control of the nation. 
 
 A hundred years ago there was, except the commerce which crawled 
 along our seacoast or up and down our interior waterways, practically 
 
CENTRALIZATION 737 
 
 no interstate commerce. Now, by the railroad, the mails, the telegraph, 
 and the telephone an immense part of our commerce is interstate. By 
 the transformation it has escaped from the power of the state and come 
 under the power of the nation. Therefore there has been a great practi- 
 cal change in the exercise of the national power, under the acts of Con- 
 gress, over interstate commerce ; while on the other hand there has been 
 no noticeable change in the exercise of the national power " to regulate 
 commerce with foreign nations and with the Indian tribes." 
 
 I believe that the nation has the whole governmental power over inter- 
 state commerce and the widest discretion in dealing with the subject; 
 of course under the express limits prescribed in the constitution for the 
 exercise of all powers, such for instance as the condition that "due pro- 
 cess of law" shall not be denied. The nation has no direct power over 
 purely intrastate commerce even where it is conducted by the same 
 agencies which conduct interstate commerce. 
 
 The courts must determine what is national and what is state com- 
 merce. The same reasoning which sustained the power of congress to 
 incorporate the United States bank tends to sustain the power to incor- 
 porate an interstate railroad or any other corporation conducting an 
 interstate business. 
 
 There are difficulties arising from our dual form of government. If 
 they prove to be insuperable, resort must be had to the power of amend- 
 ment. Let us first try to meet them by an exercise of all the powers of 
 the national government which in the Marshall spirit of broad interpre- 
 tation can be found in the constitution as it is. They are of vast extent. 
 
 The chief economic question of the day in this country is to provide 
 a sovereign for the great corporations engaged in interstate business; 
 that is, for the railroads and the interstate industrial corporations. 
 
 At the moment our prime concern is with the railroads. When rail- 
 roads were first built they were purely local in character. Their bound- 
 aries were not coextensive even with the boundaries of one state. They 
 usually covered but two or three counties. All this has now changed. 
 At present five great systems embody nearly four-fifths of the total 
 mileage of the country. All the most important railroads are no longer 
 state roads, but instruments of interstate commerce. Probably 85 per 
 cent of their business is interstate business. 
 
 It is the nation alone which can with wisdom, justice, and effective- 
 ness exercise over these interstate railroads the thorough and complete 
 supervision which should be exercised. One of the chief, and probably 
 the chief, of the domestic causes for the adoption of the constitution was 
 the need to confer upon the nation exclusive control over interstate 
 commerce. 
 
 But this grant of power is worthless unless it is held to confer thorough- 
 going and complete control over practically the sole instrumentalities 
 of interstate commerce the interstate railroads. 
 
 47 
 
738 AMERICAN FEDERAL GOVERNMENT 
 
 The railroads themselves have been exceedingly shortsighted in the 
 rancorous bitterness which they have shown against the resumption by 
 the nation of this long neglected power. Great capitalists, who pride 
 themselves upon their extreme conservatism, often believe they are act- 
 ing in the interests of property when following a course so shortsighted 
 as to be really an assault upon property. They have shown extreme 
 unwisdom in their violent opposition to the assumption of complete con- 
 trol over the railroads by the federal government. 
 
 The American people will not tolerate the happy-go-lucky system of 
 no control over the great interstate railroads, with the insolent and man- 
 ifold abuses which have so generally accompanied it. The control must 
 exist somewhere and unless it is by thoroughgoing and radical law placed 
 upon the statute books of the nation it will be exercised in ever-increasing 
 measure by the several states. The same considerations which made 
 the founders of the constitution deem it imperative that the nation should 
 have complete control of interstate commerce apply with peculiar force to 
 the control of interstate railroads at the present day, and the arguments of 
 Madison of Virginia, Pinckney of South Carolina, and Hamilton and Jay 
 of New York in their essence apply now as they applied 120 years ago. 
 
 The national convention which framed the constitution, and in which 
 almost all the most eminent of the first generation of American statesmen 
 sat, embodied the theory of the instrument in a resolution to the effect 
 that the national government should have power in cases where the sepa- 
 rate states were incompetent to act with full efficiency, and where the 
 harmony of the United States would be interrupted by the exercise of 
 such individual legislation. 
 
 The interstate railroad situation is exactly a case in point. There will, 
 of course, be local matters affecting railroads which can best be dealt 
 with by local authority, but as national commercial agents the big inter- 
 state railroads ought to be completely subject to national authority. 
 Only thus can we secure their complete subjection to and control by 
 a single sovereign, representing the whole people and capable both 
 of protecting the public and of seeing that the railroads neither inflict 
 nor endure injustice. 
 
 Personally I firmly believe that there should be national legislation to 
 control all industrial corporations doing an interstate business, includ- 
 ing the control of the output of their securities, but as to these the neces- 
 sity for federal control is less urgent and immediate than is the case with 
 the railroads. Many of the abuses connected with these corporations 
 will probably tend to disappear now that the government the public 
 is gradually getting the upper hand as regards putting a stop to the 
 rebates and special privileges which some of these corporations have 
 enjoyed at the hands of the common carriers. But ultimately it will be 
 found that the complete remedy for these abuses lies in direct and affirma- 
 tive action by the national government. 
 
CENTRALIZATION 739 
 
 I am not pleading for an extension of constitutional power. I am 
 pleading that the constitutional power which already exists shall be ap- 
 plied to new conditions which did not exist when the constitution went 
 into being. I ask that the national powers already conferred upon the 
 national government by the constitution shall be so used as to bring 
 national commerce and industry effectively under the authority of the 
 federal government and thereby avert industrial chaos. 
 
 My plea is not to bring about a condition of centralization. It is that 
 the government shall recognize a condition of centralization in a field 
 where it already exists. When the national banking law was passed it 
 represented in reality not centralization, but recognition of the fact that 
 the country had so far advanced that the currency was already a matter 
 of national concern and must be dealt with by the central authority at 
 Washington. So it is with interstate industrialism, and especially with 
 the matter of interstate railroad operation to-day. 
 
 Centralization has already taken place in the world of commerce and 
 industry. All I ask is that the national government look this fact in the 
 face, accept it as a fact, and fit itself accordingly for a policy of super- 
 vision and control over this centralized commerce and industry. 
 
 THE NATION AND THE CONSTITUTION 
 
 BY JUDGE CHARLES F. AMIDON l 
 
 OF late we have heard quoted again and again, from the Bench and 
 from the platform, the language of Chief Justice Taney in the Dred 
 Scott case, that the constitution "Speaks not only in the same words, 
 but with the same meaning and intent with which it spoke when it came 
 from the hands of its framers." The only objection to that fine phrase 
 is that it is not true. The exact contrary would be nearer the truth, viz : 
 That not a single distinctive word or phrase in the constitution has the 
 same meaning to-day which it had when that instrument came from the 
 hands of its framers. Such language is as reprehensible from that side 
 of the controversy as on the other side are the words of the impassioned 
 phrase-maker referred to by Senator Knox in his very able address at 
 Yale. With a practical and rapidly progressive people like ours, the 
 Pharisaical doctrine that the nation exists for the constitution instead of 
 the constitution for the nation, can never obtain permanent acceptance. 
 The constitution performs its chief service when it holds the nation back 
 from hasty and passionate action, and compels it to investigate, consider 
 and weigh until it is made sure that the proposed action does not embody 
 the passion of the hour, but the settled purpose of the years. A change- 
 less constitution becomes the protector not only of vested rights but of 
 
 1 An address before the American Bar Association, in 1907. Reprinted in part, by 
 permission. 
 
740 AMERICAN FEDERAL GOVERNMENT 
 
 vested wrongs. As Bacon says, "He that will not apply new remedies 
 must accept new evils, for time is the greatest innovator. ... A for- 
 ward retention of custom is as turbulent a thing as any innovation." A 
 constitution which fixedly restrains a people from correcting their actual 
 evils becomes associated in the popular mind with the evils themselves. 
 When it performs that role, as ours once did, it becomes in the estima- 
 tion of reformers a "compact with hell," and enlightened statesmen 
 appeal from its provisions to a "higher law." 
 
 But it is now insisted with a zeal such as has not been heard since John 
 Taylor of Caroline, that if the constitution is to be changed it must be 
 done in the manner which the instrument itself provides for its amend- 
 ment. To say that, however, is to say that it shall not be changed at all, 
 for we are taught by a century of our history that the constitution can no 
 longer be thus amended. Since 1804 more than two thousand amend- 
 ments have been proposed. Many of them have been the subject of 
 much public discussion, have found a place in party platform; some 
 have received the requisite vote of one branch of Congress; but with 
 the exception of the war amendments, all have failed of adoption. 
 
 The first twelve amendments may be regarded as merely formal, or 
 as the result of the forces which produced the instrument itself. It 
 required the fierce passions aroused by the civil war to bring about the 
 only direct amendment of the constitution which has occurred apart 
 from the period of its adoption. Even these amendments could not 
 have secured the requisite number of states had it not been for the 
 coercion of military power and political influence such as every lover 
 of our country will hope can never be again employed for such a purpose. 
 This, however, was not the worst feature of those amendments. The 
 fierce passion necessary to secure their adoption was embodied in the 
 amendments themselves. As a result they have been nullified in some 
 of their most important provisions, and as to other features found in the 
 Fourteenth Amendment, the Supreme Court in order to prevent their 
 confounding our whole system of national and local government, was 
 compelled in the Slaughter House Cases to resort to a construction 
 which did violence to the language of the amendment, and defeated the 
 avowed purpose of the men who employed that language. The most 
 impressive lesson taught by the war amendments is that the constitu- 
 tion can not be amended in the manner which it provides except as the 
 result of passions which wholly disqualify the nation for the work of 
 constitutional amendment. 
 
 The vast enlargement of our country has made the method of amend- 
 ment provided by the fathers far more difficult than they contemplated 
 at the time. They also believed that they had forever foreclosed the pos- 
 sibility of government by party, and the inauguration of that system has 
 made the plan which they devised unworkable; for any amendment 
 which is proposed by one party encounters the opposition of the other. 
 
CENTRALIZATION 741 
 
 If objection does not exist to the subject-matter, it is called forth by 
 partisan considerations. No amendment, therefore, is possible except 
 when one party controls the legislatures of three-fourths of the states, 
 and a two-thirds majority in Congress. This condition has not existed 
 since the early part of the last century, nor is it ever likely to occur again. 
 
 But probably the greatest force opposed to constitutional amendment 
 is the fear of radicalism by the large business interests of the country. 
 The wave of socialistic tendency, which is now sweeping over all western 
 nations has greatly added to this alarm. Property knows that it is safe 
 under the constitution as it is. There is a very general understanding 
 that formal amendment is impossible. Every year that goes by without 
 such a change strengthens that understanding; but if its power were 
 once broken by an actual amendment, it is impossible to foresee the 
 forces that might be set in operation. Hence with business interests 
 it is the fact of amendment that controls, and not the subject-matter. 
 
 It is not only true that the constitution can. not be amended in the 
 method which it provides, but that such a change is neither needed nor 
 best. Formal amendment is not suitable to bring about those slight 
 but steady modifications of fundamental law which adapt it to the pro- 
 gressive life of the nation. It is far too violent a remedy for that purpose. 
 The constitution has been and ought to be accommodated to the ever- 
 changing conditions of society by a process as gradual as the changes 
 themselves. Like the Kingdom of Heaven amendments such as these 
 come not by observation. No political prophet can say of them, Lo, 
 here ! or Lo, there ! As the result of more than a hundred years of ex- 
 perience the nation has become acquainted with this process of amend- 
 ment and is satisfied with it. It must now be accepted as a part of our 
 frame of government of equal validity with the constitution itself. 
 
 But if the constitution is changed by interpretation will it not be en- 
 tirely swept away by the process? We hear much of this argument in 
 terrorem. In the minds of its advocates the constitution is a kind of St. 
 Rupert's drop, so fragile that if its elements be disturbed in the slightest 
 degree, the entire combination will explode. Experience tells us that 
 it is made of sterner stuff. After a century of such interpretation by 
 which the instrument has been so altered that Mr. Ford tells us its 
 authors would not know it, it is to-day performing its functions with 
 far greater vigor than during the period following its adoption. Being 
 a great instrument of government it can not be read in the library. As 
 the late Justice Miller stated to a company of judges and lawyers at St. 
 Paul a short time before his death: "The great questions of constitu- 
 tional law are not to be finally settled by nine men, however wise, taking 
 them off into a room and reading and studying about them. That is 
 the way we start the process. We place the decision the best we can, 
 according to that light, and then see how it works in its actual applica- 
 tion to the national life. Very frequently that illumination shows us 
 
742 AMERICAN FEDERAL GOVERNMENT 
 
 that we have gone far to one side of the true line. With this instruction 
 of experience we place the next case on the other side and observe its 
 application and so on, from time to time adding to our thought and 
 study the results of experience and observation, we finally evolve the 
 true solution by a process of exclusion and inclusion. The meaning of 
 the constitution is to be sought as much in the national life as in the 
 dictionary." 
 
 In our constitutional theory we habitually assume that the provisions 
 of the constitution have but one meaning, and that plain and precise. 
 But this is not its real character. As Marshall declares in McCulloch v. 
 Maryland, "Its nature requires that only its great outlines should be 
 marked, and its important objects designated. ... It was intended to 
 endure for ages to come, and to be adapted to the various crises in human 
 affairs." An instrument of such a character must necessarily leave a 
 wide latitude for construction. The fact that the Supreme Court in 
 constitutional cases so frequently stand five to four, each division as- 
 signing weighty reasons for diametrically opposite views, shows plainly 
 how much the constitution in actual application is a matter of interpre- 
 tation. Now that questions of government are becoming so largely 
 economic, the majority of our so-called constitutional cases turn not 
 upon the interpretation of the instrument itself, but upon the construc- 
 tion of the living conditions to which it is to be applied. Let me illustrate : 
 A statute of New York provided that women should not be employed 
 in manufacturing establishments between the hours of nine o'clock at 
 night and six o'clock in the morning. In a recent decision of the Court 
 of Appeals of that state, this law is declared unconstitutional upon the 
 ground that there is nothing in the nature and duties of woman which 
 justify the legislature in discriminating as to her employment. The 
 gist of this decision is not the meaning of the constitution, but the effect 
 of labor in a manufacturing establishment upon the health of woman 
 and her ability to perform the primary duties of home and motherhood ; 
 and while none of us would question the ability of the court to interpret 
 the constitution wisely, some at least would feel that in that case it fell 
 into grievous error in its interpretation of life. Constitutional cases are 
 in the same manner frequently decided not upon the language of the 
 constitution, but upon conflicting notions of life in which the courts 
 assert doctrines at variance with both popular and legislative judgment. 
 The danger of this practice is obvious. It gives us a government out of 
 a law library, which, as Napoleon said, is the worst of all forms of 
 government. 
 
 Courts are very fond of declaring that in the field of constitutional 
 law they never exercise political power, but simply declare the private 
 rights of parties. This is true as to the form but untrue as to the result. 
 The ultimate effect of every constitutional decision is not only to declare 
 the rights of the litigants, but to define the powers of government. If 
 
CENTRALIZATION 743 
 
 the constitution were precise, and capable of but one construction, 
 then the courts in construing it would be simply declaring the rule and 
 in no way making it. But in the case of the federal constitution in partic- 
 ular, its provisions are so general as to leave a wide latitude for judicial 
 construction ; and within the scope of that latitude the court in constru- 
 ing the constitution is exercising a political power second only to that 
 of the convention that framed the instrument. 
 
 In the attempt to catch our constitution in a statement, we have been 
 frequently told of late that "the powers of the federal government re- 
 main the same"; that the only change which has been wrought in our 
 progressive history is the change of conditions to which those powers 
 are applied. We would all agree, I think, that the powers of the federal 
 government remain the same in number; but can any candid lawyer 
 say they remain the same in extent ? It is quite true that "no independ- 
 ent and unmentioned power" can rightfully be added to the federal 
 government. But even such accurate statements can not settle constitu- 
 tional questions. When the instrument comes to be applied to a given 
 case the question will still be open, Is the power which has been attempted 
 an independent power, or is it so related to one of the great powers of 
 the constitution as to be an appropriate means for its execution ? That 
 question presents the old puzzle of the criterion of classification which 
 Austin taught us was the most difficult problem of law, and which Madi- 
 son pointed out in the Federalist to be as impossible of definite solution 
 in the case of the constitution as it has been in natural history. What 
 to Marshall was an appropriate means for collecting and disbursing the 
 public revenue, was to Jefferson and his school the exercise of an inde- 
 pendent power. It is because the constitution is thus general that it has 
 been possible to adapt it to changing conditions, and make it the benefi- 
 cent organ of a progressive nation. 
 
 What is needed to-day is not that the constitution shall be construed 
 to mean precisely what it meant to Marshall or to Miller, Field, and 
 Bradley, but that it shall be applied to present conditions by the same 
 method and in the same spirit wherewith they applied it to the condi- 
 tions of their times. In the performance of this, their highest duty, the 
 federal courts are no part of the administration. They will not answer 
 to its needs or its criticism. But they are a part of the nation, and in 
 the past have responded, and ought always to respond to the deep, 
 abiding organic changes in the national life. 
 
 There never was a time when the interpretation of the constitution 
 required a more careful consideration of living conditions than to-day. 
 Within the last fifty years economic forces have been introduced into 
 our life that are as revolutionary of preexisting conditions as the intro- 
 duction of gun-powder was of the state of feudalism. Seward's state- 
 ment in the debate of 1850 that "Commerce is the god of boundaries 
 and no man now living can tell its ultimate decree" is far more true at 
 
744 AMERICAN FEDERAL GOVERNMENT 
 
 present than when it was uttered. When the constitution was adopted 
 the unit of our social and business life was the commonwealth. With the 
 exception of the foreign and coasting trade, the commerce and industry 
 of each state was confined to its own borders. The union was political 
 instead of industrial or commercial. To-day our industry and our com- 
 merce are national. They are made aware of state lines only by conflict- 
 ing and often narrowly selfish enactments. The units of commercial 
 and industrial organization extend to many states, often to the entire 
 nation. Instead of being required to obey one master, business is com- 
 pelled to obey many. Coincident with this enlargement of business 
 enterprise to embrace different states, has occurred a revolution in state 
 activity. During the first half of the Nineteenth Century the doctrine of 
 laissez-faire was the fundamental principle of government. The state left 
 commerce and industry to private control. To-day that is all changed. 
 Government is now present in all lines of business. When the state 
 regulated but little, business was not much concerned who did the reg- 
 ulating. But now that all governments are competing in their zeal for 
 regulation, whether one government or many, the nation or the states, 
 shall do the regulating, becomes a matter of paramount importance. 
 These changed conditions in our actual life compel a reconsideration 
 of our divided governmental authority to see what now belongs to the 
 nation, and what to the states. The problem is not the same as it was; 
 it can not be answered by reading history or studying precedents. 
 
 The new condition has manifested itself most conspicuously in two 
 fields, the railroad and the interstate industrial corporation. At the 
 beginning the railroads were local. There was a time when in making 
 a shipment of freight from New York to Buffalo, at least three different 
 bills of lading were required. Now five great systems embody more 
 than three-fourths of the total mileage of the country, and the work of 
 consolidation is still in progress. There are no longer state roads, but 
 all are instruments of interstate commerce. Actual statistics are want- 
 ing, but persons in a position to know are of the opinion that the local 
 business of the railroads does not exceed fifteen per cent of their entire 
 traffic. In a case tried in one of our western states a few years ago, it 
 was judicially found that the local business there involved amounted 
 to less than three per cent. In the face of these conditions, it is impos- 
 sible to maintain over common carriers the manifold control of the dif- 
 ferent states and the federal government. 
 
 There is no way in which local business can be separated from through 
 business. The same roadbed serves both ; both are carried in the same 
 train and by the same crew. Back of every schedule of rates prescribed 
 by government is the question, Are those rates reasonably compensatory ? 
 Under our present system that question as to state rates must be decided 
 solely upon local business, and as to interstate rates solely upon inter- 
 state business. The court can not look to the entire traffic in judging 
 
CENTRALIZATION 745 
 
 of the reasonableness of either. While it is possible to ascertain what 
 revenue is derived from each class, it is absolutely impossible thus to 
 distribute the cost of operation and maintenance. The evidence upon 
 that subject is wholly speculative and conjectural, consisting entirely 
 of opinion testimony given by parties having a vital interest in the result 
 of the litigation. In actual operation the railroads do not, and can not 
 keep the two kinds of commerce separate. Why then should the law 
 attempt to divide that which in actual life is a unit and indivisible ? 
 
 Whenever a state prescribes a schedule of rates for local business, it 
 thereby directly and necessarily regulates interstate business as well. 
 There can be no sudden lifts and falls at state lines. They have no rela- 
 tion whatever to the cost of service, and can afford no justification for 
 discrimination in rates. As the result of the schedule of rates prescribed 
 by the State of Minnesota during the past winter, the rates on the west- 
 ern side of an invisible line were from twenty-five per cent higher than 
 those on the eastern side. The railroads could not maintain both these 
 rates without discriminating against North Dakota points in a manner 
 which would constitute a gross violation of that portion of the interstate 
 commerce act which forbids discrimination against any locality. The 
 necessary result of the enforcement of the local rates was to compel a 
 reduction of all through rates. This the Supreme Court has decided is 
 such a direct interference with interstate commerce as to render the action 
 of the state void. But further, if one state may prescribe a schedule of 
 rates all states may, and the inevitable result of such a practice is to 
 place the whole body of interstate commerce under the actual domination 
 of state laws. In that way the authority which extends to only fifteen 
 per cent of the business, regulates the entire business. The necessary 
 consequence is that either the nation must take control of railroad 
 transportation within the states or the states will take control of such 
 transportation among the states. We deceive ourselves by a mere form of 
 words when we speak of the separate regulation of local business by the 
 state and through business by the nation. The state can not formulate 
 and enforce any schedule of rates which will not necessarily and directly 
 regulate interstate rates; neither can the nation formulate and enforce 
 any schedule of interstate rates which will not necessarily and directly 
 change local rates. The truth is that governmental regulation of rates 
 is not a regulation of commerce, but of the railroads as an instrument 
 of commerce, and when the nation and the state both prescribe to a rail- 
 road a schedule of rates, they are both regulating the same thing. This 
 gives rise to a conflict of authority which Marshall declared in Gibbons 
 v. Ogden ought never to be permitted to occur. 
 
 The chief domestic cause for the adoption of the constitution was to 
 destroy the power of states over interstate commerce. But does not 
 their control of railroads reestablish that authority ? To say that states 
 shall not regulate commerce among the states, and at the same time 
 
746 AMERICAN FEDERAL GOVERNMENT 
 
 concede to them power to regulate the only instrumentalities by which 
 that commerce is carried on, is to establish in practice what we deny in 
 theory. Hitherto state regulation has been inefficient and for that reason 
 alone its localizing power has not become manifest. But now, through 
 the investigations of economists and commissions, the general campaign 
 of publicity, experience in rate litigation, the decreased influence of 
 railroads over legislative bodies, there has come a new era in govern- 
 mental regulation of carriers. State authority is becoming organized, 
 energetic and effective. If continued it will work its inevitable results. 
 In Commerce, as in politics, state governments will represent state 
 interests. No rivalry can surpass that of our commercial centers, and 
 the states in which they are located, let their power over carriers become 
 effective, will exercise that power in support of their own cities. This 
 is not theory. Only recently the commission of one of our most aggres- 
 sive western states warned the railroads by a written communication 
 that if they were not more considerate of the state as to interstate rates, 
 the commission would retaliate by the exercise of its powers over local 
 affairs. Other commissions, while not thus frank in their avowals, have 
 been equally local in their practices. The severest critic of railroads 
 can not deny that their policy has been splendidly national, and the most 
 potent single factor in the creation of our vast domestic commerce. In 
 thus maintaining the commercial supremacy of the nation, they have 
 been compelled to withstand the importunities and fierce wrath of local 
 interests. Now, however, the conflict is to be transferred from this field 
 of economics to the field of government. Localism is to speak not by 
 petition but by statute. Under this regime as governmental control 
 increases in efficiency, the irrepressible conflict between local and na- 
 tional interests will increase in directness as well as in the frequency of 
 its exhibition and the intensity of the passions aroused. It has already 
 brought us to the verge of civil war in North Carolina, and been the 
 occasion of the sharpest acrimony in other states. Such a conflict must 
 in the end result in the complete supremacy of one authority or the other. 
 
 It is vain to appeal to states, as did Secretary Root in his New York 
 address, to subordinate local advantage to the general welfare. Our 
 whole history is a confirmation of the statement of Mr. Pinckney in the 
 constitutional convention that "States pursue their interests with less 
 scruple than individuals." They exhibit all that lack of conscience 
 characteristic of those who exercise delegated power. As Justice Miller 
 points out in his lectures on the constitution, had it not been for the 
 dominant authority of the central government, the general welfare would 
 have been as completely sacrificed to local selfishness under the constitu- 
 tion as it was under the articles of confederation. What states require 
 is not exhortation but authority. 
 
 The situation in the field of industry presents the same general features. 
 To abolish local control over matters extending outside of the state was 
 
CENTRALIZATION 747 
 
 the origin not only of the article conferring power on the national govern- 
 ment to regulate commerce among the states, but also of those provi- 
 sions which forbid states to lay imposts or duties on exports or imports, 
 and which secure to the citizens of each state the privileges and immuni- 
 ties of citizens of the several states. These restrictions were placed in 
 the constitution not so much that men might be free, as that national 
 commerce and industry might be free. They have been largely nullified 
 in actual life by the fact that business is now carried on by corporations 
 instead of persons. When the constitution was adopted only twenty- 
 one corporations had been formed in the United States. These were 
 mainly for the construction of. canals and turnpikes. There was but one 
 bank and two trading companies. As business agencies corporations 
 had no part either in life or thought, consequently they had no place in 
 the constitution. The Supreme Court has held that they are not citizens 
 within the meaning of the Fifth Amendment, and that each state may 
 either wholly exclude them, or impose as conditions of their entering or 
 remaining in the state such terms as local policy or interest may sug- 
 gest. The result is that business which was intended to be free, has in 
 fact become subject to local authority. The abuses of corporate organi- 
 zation and management have heretofore commended this exercise of 
 local control. Ultimately, however, we shall become increasingly aware 
 of its injustice and folly. Business can not be conducted in this century 
 except through the agency of corporations; but the very enlargement 
 of that agency has caused industry, the same as commerce, to overleap 
 the bounds of states, and thus become subject to governments whose 
 only interest in them is that of the publican. "Federal," "National," 
 "Union," "United States," "International," "American," these terms 
 find a place in the names of the corporations that are carrying on our 
 large business enterprises and are not mere high-sounding titles, but are 
 truly indicative of the scope of the business conducted. They have 
 taken national titles because their business is national and international. 
 While engaged in the preparation of this paper I employed three young 
 men in different libraries to examine and summarize state laws passed 
 since 1890, directed against foreign corporations solely upon the ground 
 of their alienage. My purpose was to institute a comparison between 
 laws of that character now in force, and discriminatory statutes passed 
 by the several states under the articles of confederation. But the mass 
 of material turned in by these investigators was so great as to surpass 
 any leisure at my command for its study and classification. The reports, 
 however, leave no room for doubt that the laws now in force are both 
 more vicious in character and varied in form than were those of the 
 earlier period. At that time discrimination was confined in the main 
 to taxation by states having ports of entry against those who had them 
 not. To-day they embrace not only double, and frequently manifold 
 taxation, but the thousand forms of regulation which recent govern- 
 
748 AMERICAN FEDERAL GOVERNMENT 
 
 mental activity in the field of business has developed. A condition which 
 was then deemed sufficient to cause the framing and adoption of the 
 constitution ought now to be adequate to compel the exercise of the 
 power which the constitution vested in the federal government for 
 the very purpose of controlling such conditions. 
 
 How far may the national government go in the control of those matters 
 which have become in fact national ? The situation fits exactly the terms 
 of the resolution passed in the convention that framed the 1 constitution, 
 and which was the source of all the powers and restrictions embodied 
 in that instrument. It presents a case "to which the separate states are 
 incompetent and in which the harmony of the United States may he 
 interrupted by the exercise of individual legislation." As to railroads 
 there is no more reason why they should be subject to a divided authority 
 than there is in the case of navigation. There will, of course, be in the 
 one case as in the other, local matters that can be best dealt with by 
 local authority. But as to all that affects them as commercial agencies, 
 whether that commerce be local or interstate, the railroad is a unit; 
 its activities are national, and it ought to be subject solely to national 
 authority. Divided control is inefficient in protecting the public, and 
 grossly unjust in the burdens which it places upon the carrier. During 
 the last winter there were passed in the states west of the Mississippi 
 River one hundred and seventy-eight statutes dealing directly with 
 transportation and its instrumentalities. The number of such statutes 
 now in force throughout the entire country extends well into the thou- 
 sands. They are conflicting, oppressive, inefficient. They seldom rep- 
 resent intelligent investigation, but in the main have had their origin 
 in agitation, often in popular frenzy. State legislatures have not yet 
 learned that due process of legislation, like due process of law, proceeds 
 upon inquiry, and legislates only after hearing. Protection to the public 
 and justice to the carrier alike unite in the demand for a single govern- 
 mental control. The power under the commerce clause of the constitu- 
 tion is plain. The decisions of the Supreme Court have placed that 
 subject beyond the realm of controversy. If the railroad as an instru- 
 ment of commerce can only be dealt with justly and efficiently by a 
 single authority the federal government may assert and maintain its 
 exclusive jurisdiction. Regulation is now inefficient because divided. 
 If the federal government shall take exclusive control, it will then be 
 responsible alone for such a control as shall be both efficient and just. 
 Public opinion will have a single point for its direction, and will not be 
 dissipated among many conflicting authorities. The subject does not 
 demand separate rules for the separate states. Their action refutes such 
 a doctrine. By the legislation of the past winter Virginia and Ohio, 
 Pennsylvania and Minnesota are combined in the same passenger rate, 
 though they vary as five to one, in density of population and travel. The 
 subject is national, and the federal government with its national outlook 
 
CENTRALIZATION 749 
 
 can by organized investigation and accumulated experience best acquire 
 the skill and knowledge necessary for its just and efficient regulation. 
 
 As to interstate industrial corporations, the subject is of much more 
 recent development and the necessity for federal control is less urgent. 
 It may well happen that many of the abuses in this field will disappear 
 with the abolition of rebates and the other special privileges which such 
 corporations have enjoyed at the hands of carriers. The evil arising 
 from hostile state enactments may be remedied by a change of emphasis 
 on this subject in the decisions of the Supreme Court. Heretofore that 
 tribunal has been governed in such cases solely by a consideration of the 
 nature of the corporate being. But the present tendency in corporate 
 law is to look at rights rather than the nature of the being possessing 
 them, and if the court shall adopt that view, it may yet hold that alienage 
 alone is not a proper basis for discriminatory legislation; that legisla- 
 tion based solely upon that ground constitutes a denial of the equal 
 protection of the laws. The late case of American Smelting Co. v. 
 Colorado affords encouragement to expect such a change. 
 
 If, however, federal control shall be found necessary to correct the 
 evils and protect the rights of interstate industrial corporations, authority 
 for its exercise exists in the commerce clause of the constitution as already 
 interpreted. It has been decided by the highest court that "The power 
 to regulate commerce among the several states is vested in Congress as 
 absolutely as it would be in a single government having in its constitution 
 the same restrictions as are found in the constitution of the United States." 
 That court has also held that as a means of executing this authority Con- 
 gress may create corporations for the purpose of carrying on interstate 
 commerce. One branch of that commerce is traffic or exchange among 
 the several states, and if national corporations may be created for the 
 purpose of carrying on that branch of interstate commerce which con- 
 sists of transportation, as was done in the case of the Pacific Railroads, 
 the same method may be adopted as to the other branch of interstate 
 commerce which consists of traffic and exchange. Can a corporation 
 created for this purpose be also authorized to produce the articles in 
 which it deals? In thought, manufacture and commerce may be sepa- 
 rated, but in business the former is always combined with the latter. No 
 one ever manufactured except for the purpose of sale. Under the pres- 
 ent regime of wide markets, large sales, and small profits, commerce 
 has become the paramount feature even of manufacturing enterprises. 
 The incidental powers which Congress may confer upon a corporation 
 created for federal purposes were clearly defined in the litigation arising 
 out of the United States Banks. There the federal feature was the col- 
 lecting and disbursing of the national revenue. But to accomplish this 
 result a corporation was created, authorized to do a general banking 
 business and to establish branches for that purpose in the several states. 
 Of the actual business transacted, the federal feature, though of capital 
 
750 AMERICAN FEDERAL GOVERNMENT 
 
 importance to the nation, was a subordinate function of the corporation 
 as a business concern. The opposition of the states was largely grounded 
 upon this consideration. It was denied that they were agents. A reso- 
 lution by the legislature of Ohio put the matter plainly: "We resist the 
 shaving shops of a club of foreigners located among us without our con- 
 sent." But the power of the federal government to create the bank and 
 to exempt it from all local authority as to its entire business was vindi- 
 cated in the fullest measure. Under the national bank act this authority 
 has been carried much further. Usury and its consequences have been 
 defined and all state criminal statutes affecting the transactions of these 
 banks, or their agents or officers, have been held null and void. Now 
 apply these well-established doctrines to corporations created for the 
 purpose of carrying on that branch of interstate commerce which con- 
 sists of traffic and exchange. Would they not fully sustain the authority 
 of Congress to confer upon such corporations manufacturing as well as 
 commercial powers? Would not the commercial activities of such a 
 corporation which confessedly fall within the scope of the commerce 
 clause of the constitution greatly surpass in importance the functions of 
 the United States Bank which consisted in collecting and disbursing the 
 public revenue? And if a bank created for that subordinate federal 
 function might be given the power of carrying on a general banking 
 business, why could not a corporation created for the purpose of carry- 
 ing on interstate commerce, which would be a capital feature of its 
 business, be at the same time authorized to produce either in whole or 
 in part the articles which it applied to that commerce? It is said that 
 carrying on interstate commerce is not the exercise of a federal power, 
 as was the collection and disbursement of the public revenue, and that 
 is conceded ; but regidating interstate commerce is a federal power, and 
 a corporation created as a means of such regulation may be freed from 
 all state action that will interfere with the purpose of its creation. Surely 
 if Congress as a means of regulating interstate commerce may create 
 corporations to carry it on, it may endow them with all such powers as 
 are fairly conducive to their success as business concerns, judged by 
 the usual activities of corporations engaged in such commerce. 
 
 Our great corporations are now national in their character, and na- 
 tional and international in the scope of their operations. To regulate 
 their formation is one of the most direct and efficient means of regulat- 
 ing their activities. For forty-five states to create corporations and the 
 national government to regulate their most important business can not 
 fail to result in inefficiency and conflict. Hitherto interests to be regu- 
 lated have found advantage in the dual form of authority. It has 
 enabled them to assert whenever either authority attempted their regula- 
 tion that the power properly belonged to the other authority. We have 
 now arrived at a state of knowledge and publicity which makes this kind 
 of shuffling impossible. The nature of the subject to be regulated and 
 
CENTRALIZATION 751 
 
 not the shifting desires of the interests concerned must determine the 
 place of authority. 
 
 Our first great conflict between the states and the nation was waged 
 over the subject of banking and finance. No sooner were we started 
 under the constitution than the need of a national agency in that field 
 was discovered. But the local jealousy of the states prevented its estab- 
 lishment for more than seventy-five years. During that period we were 
 subject to all the injury and confusion of wild-cat banking under state 
 authority. Banking and finance, however, were not more national at 
 that time than commerce and industry have now become, and the same 
 conflict is again presented in this new field. We can get along with di- 
 vided authority to-day on these subjects just as we got along with state 
 bank notes. This nation can stand almost anything. But it is the duty 
 of government in the exercise of its power to create conditions which 
 are not simply tolerable, but those which are most conducive to the gen- 
 eral welfare. A uniform authority in the field of interstate commerce 
 and industry will be found as beneficent to-day as it was discovered to be 
 in the field of finance and banking as the result of our first economic 
 conflict. The problem of regulating these affairs has attained its present 
 magnitude largely because the federal government has neglected to 
 exercise its constitutional power over the subject in the course of its 
 development. Until the interstate commerce act was passed in 1887 the 
 negative power of the courts was the only federal control. Even by 
 them till 1886 the states were sustained in their authority over interstate 
 as well as domestic rates of carriers. The truth is that the national 
 government has so long neglected its powers under the commerce clause 
 of the constitution that now, when it tardily takes up its duties, it is 
 charged by the states with usurpation. 
 
 The political revolution of 1776 required the creation of a central 
 political power because it gave rise to great political concerns that could 
 not be provided for by the several states. To-day as the result of an 
 economic revolution quite as fundamental and far-reaching there are 
 certain great business interests that have become national in their char- 
 acter and extent which can not be left to conflicting state authority. It 
 is as unwise to stand timidly shrinking from the exercise of economic 
 control now as it would have been a century ago to hold back from the 
 exercise of political power through the fears of these who dreaded an 
 adequate national government. We ought to look squarely at the nature 
 and extent of our commerce and industry. Are they national ? Ought 
 they to be regulated by one or by fifty different sovereignties? If in 
 their nature and extent they are national, and in justice to the public 
 and the interests to be regulated ought to be subject to a single authority, 
 then we ought not to hold back from the exercise of the necessary power 
 simply because it would add to the activities of the federal government. 
 We can not refrain from the exercise of necessary powers upon the ground 
 
752 AMERICAN FEDERAL GOVERNMENT 
 
 that the federal government can not perform the work wisely and effi- 
 ciently without confessing that that government is inadequate to perform 
 the duties which the nature of things and the constitution alike devolve 
 upon it. If national industry and commerce ought not to be subject to 
 the jealousies and local interests of the several states, there is no alter- 
 native but to devolve their regulation upon the federal government. 
 Between these two forms of regulation we must make our choice. The 
 election is not between national regulation and some ideally perfect 
 scheme; it lies between the single authority of the nation and the an- 
 archy of the different states in combination with partial national control. 
 The way, the duty and the power are plain. Unless domestic conditions 
 such as in 1788 compelled the framing and adoption of the constitution, 
 shall be impotent to compel the exercise of those powers granted by it 
 in order that things which are national in their nature and extent may 
 be controlled by national authority, there must be such an extension, 
 not of constitutional power, but of the exercise of national powers already 
 conferred as shall bring national commerce and industry under the 
 single authority of the federal government. 
 
 One hundred years ago those who opposed the adoption of the con- 
 stitution made "Consolidation" their cry of alarm. To-day those who 
 oppose the control by the national government of the business affairs 
 that have become national raise the cry of "Centralization." The one 
 cry is as foolish as the other. On both occasions the opposition is guilty 
 of that highest political folly which consists in hanging to a theory re- 
 gardless of changed conditions in life. Centralization has already taken 
 place out there in the world of commerce and industry. The only ques- 
 tion remaining is, Shall the government take cognizance of the fact ? 
 
 OUR CHANGING CONSTITUTION 1 
 BY ALFRED PEARCE DENNIS 
 
 THE measure of the interpretation of our Constitution is found in the 
 logic of personality, rather than in the logic of legalism. The unfolding 
 of our national life according to this logic has involved three processes : 
 first, new meanings have been written into the fundamental law by 
 judicial interpretation; second, the unrebuked exercise of doubtful 
 powers by the executive and legislative branches has extra-legally en- 
 larged the sphere of governmental action ; finally, through the spontane- 
 ous out-workings of our political genius, new rules, understandings, 
 and convictions have been introduced into our constitutional system, 
 without the intervention of direct governmental agency. 
 
 1 Atlantic Monthly, 1905. Reprinted in part, by permission. Copyright. 
 
CENTRALIZATION 753 
 
 Illustrations of the expansion of the Constitution by judicial interpreta- 
 tion may be briefly offered. Let it be borne in mind that the jurisdiction 
 of federal courts is, by custom, limited to the determination of con- 
 crete cases. Federal judges do not decide abstract questions or settle 
 disputed points of constitutional law unless such points are raised in a 
 bona fide suit. It follows that judicial decision is ordinarily the second 
 term of which legislative enactment is the first in the interpretative series. 
 A decision adverse to a claim based upon the alleged unconstitutionality 
 of a state or federal statute tends, of course, to enlarge the field of legis- 
 lative competence, and to widen the scope of the written Constitution. 
 Constitutional development has not followed the direct line of strict 
 legalism, nor the haphazard line of pure circumstance, but rather the 
 resultant of these forces. The logic of legalism and the logic of facts 
 are never in exact accord. Congress, following out the logic of legalism, 
 has power to declare war, and did declare war against Spain in 1898. 
 Spain's sovereignty in Porto Rico and the Philippine Islands was ex- 
 tinguished as a result of the war. The United States succeeded to the 
 sovereignty thus relinquished, and a kind of political relationship with 
 the peoples of these islands has been imposed upon us which heretofore 
 had not been deemed compatible with our legal scheme of political ex- 
 istence. According to the logic of legalism, it would seem that the Taga- 
 logs and Moros, since they are subject to the jurisdiction of the United 
 States, are possessed of the civil and political rights of United States 
 citizens. The highest judicial authority, however, following a resultant 
 between the logic of legalism and the logic of events, decides that the 
 islands ceded to us by Spain have not been "incorporated into the United 
 States." Hence it is perfectly possible for territory to be part of the 
 United States in a geographical sense, without being an integral part of 
 the United States ; and that, in spite of the constitutional requirements 
 as to uniformity of legislation, Congress can legislate pretty much as it 
 pleases for the different territories, according to their varying require- 
 ments. As a result, then, of the decisions in the so-called " insular cases," 
 it is judicially settled that the non-contiguous territories of the United 
 States are to be governed in very much the same way as Great Britain 
 governs her vassal states, the Crown Colonies. 
 
 Again, under the commerce clause of the Constitution, federal au- 
 thority over great commercial corporations chartered by individual states 
 has been exemplified in the application of the Interstate Commerce Act. 
 The Anti-Trust (Sherman) Act of 1890 did not in the view of its framers 
 apply to railroads nor to reasonable restraints of trade, but the courts 
 held that it did apply to railroads and to all restraints of trade, whether 
 reasonable or unreasonable. -The scope of federal activity was further 
 
 48 
 
754 AMERICAN FEDERAL GOVERNMENT 
 
 widened in the " Northern Securities Decision," according to which the 
 mere ownership of stock in an interstate railroad brings the owner into 
 such direct relation to interstate commerce as to subject him to the 
 plenary powers of the federal government. This decision, coming upon 
 the heels of the Lottery case, marks an epoch in the history of federal 
 centralization of power. Two important points were decided in the 
 Lottery case : first, that the transmission of lottery tickets from one state 
 to another is commerce, and therefore subject to federal regulation; 
 second, that the power to regulate commerce includes the power to 
 destroy it. 
 
 The inclination of the Congress and the President to give the Interstate 
 Commerce Commission power to fix railway rates, subject to review by 
 the courts, or the conferring of such power upon a new court created for 
 this purpose, as under the provision of the Elkins Bill, are epoch-making 
 proposals in the exertion of federal power through the elastic commerce 
 clause. The creation of the Department of Commerce, with its Bureau 
 of Corporations, marks another stage in the progressive unfolding of 
 federal power over commerce. Mr. Garfield, Commissioner of Cor- 
 porations, in his recent report, recommends that all corporations doing 
 an interstate business shall be compelled to do so under a federal license. 
 Under the proposed licensing act the national government may impose 
 such conditions as to the organization, capitalization, and management 
 of corporations as it may deem conducive to the public welfare. A prop- 
 osition to take from the states the power to charter corporations engaged 
 in interstate commerce, and to vest that power in the federal govern- 
 ment, is already commanding a strong following. We hear little talk 
 about the constitutionality of these measures. It is assumed, and rightly, 
 that the courts would support the government in the exercise of these 
 powers, although they are far beyond anything ever contemplated by 
 the framers of the Constitution. The truth is, the courts will not, in 
 interpreting the words of men who lived in the eighteenth century, place 
 an injunction upon American progress in the twentieth century. While 
 the great land-owning, ship-owning, or slave-owning individual was the 
 most potent force in our economic life of a century ago, the great corpora- 
 tion is the most potent force in our economic life of to-day. These great 
 artificial beings, the creatures of state law, have outrun the control of 
 their creators. It is inevitable that the nation should take hold where 
 state control has broken down. A hundred years ago the only media of 
 interstate communication were coastwise sailing vessels and the occasional 
 stagecoach that lumbered across state lines. But to-day steam and elec- 
 tricity are welding the states together, commercially and industrially. 
 With the destruction of the states as industrial entities will follow, in the 
 fullness of time, their destruction as political entities. Historically, 
 federalism is like the grave : it takes, but it does not give. 
 
CENTRALIZATION 755 
 
 II 
 
 The development of the commerce clause has been cited as an illustra- 
 tion of the expansion of the Constitution by judicial interpretation. 
 Equally good illustrations may be found in the interpretation of the war 
 power grant or the grant of the power to borrow money. We may pass, 
 however, from this point to note that, while the Supreme Court is legally 
 the ultimate guardian of the Constitution, the legislative and executive 
 branches have frequently exercised wide powers of independence in 
 interpretation. Illustrations may be offered, in the first place, of the 
 expansion of the Constitution by legislative action without the actual 
 intervention of the courts. This may proceed by affirmative action, as 
 in the case of the congressional statute prescribing limited tenure of 
 office for federal judges sitting in territorial courts. Or, secondly, the 
 Congress, by refusing to act, can virtually nullify provisions of the organic 
 law. For example, the Congress has never provided adequate machinery 
 for enforcing the extradition clause of the Constitution. Governor Durbin, 
 of Indiana, has steadily refused to surrender ex-Governor Taylor, indicted 
 by a Kentucky court for complicity in the Goebel assassination. The 
 Constitution provides that the governor of the asylum state shall "deliver 
 up the fugitive on demand," but the Governor of Indiana pays no at- 
 tention to the demand of Governor Beckham of Kentucky, and the 
 Congress has provided no means for the execution of the constitutional 
 mandate. It is possible, therefore, for a state governor to set himself 
 up as a trial court, and arbitrarily refuse to surrender a fugitive from 
 justice. Again, the provisions of the fourteenth amendment, penalizing 
 by a proportional reduction in representation any state which excludes 
 from the suffrage adult male citizens, is to-day as worthless as a counter- 
 feit note drawn on a broken bank. The constitutional provision appears 
 to be automatic, but no legal provision is self-executing unless the gov- 
 ernment provides the means. Again and again the Congress has re- 
 fused to take affirmative action in support of the constitutional mandate. 
 More than this, the fifteenth amendment is cynically nullified in its 
 spirit, if not in its letter, by the constitutions of the Southern states. The 
 Supreme Court recently refused relief to an Alabama negro seeking the 
 suffrage denied to him by the constitution of that state, on the ground 
 that the court lacked jurisdiction over the case as presented. Thus it 
 happens that, when the disfranchised negro petitions the Congress for 
 relief, he is told to go to the courts, because a legal question is involved ; 
 when he invokes the aid of the courts, he is told to go to the Congress, 
 because a political question is involved. The truth is, the Congress and 
 the courts recognize that the bitter experience of an entire generation 
 stamps the fifteenth amendment as a cruel error of national judgment. 
 Next to secession, it was perhaps the greatest political mistake of our 
 
756 AMERICAN FEDERAL GOVERNMENT 
 
 history. The South has long known it; the North is fast learning it. 
 American common sense, as represented in legislative and judicial 
 councils, goes to the root of the matter, and, by acquiescence in the 
 nullification of the written word, constitutes an unwritten amendment 
 to the organic law. 
 
 Ill 
 
 In the third place, important changes have been made in our constitu- 
 tional fabric by executive interpretation. It is of interest to recall that 
 Jefferson, Jackson, Tyler, Buchanan, and Lincoln successively declared 
 that they did not regard as binding and final an interpretation of the 
 Constitution by the United States Supreme Court. Jefferson was not 
 scrupulous in performing a legal duty as defined by the Supreme Court 
 in the celebrated Marbury v. Madison decision. Jefferson was also re- 
 sponsible for the Embargo Act and for the Louisiana Purchase, 
 measures of doubtful constitutional standing. Jackson vetoed a bill for 
 rechartering the United States Bank, on the ground that it was uncon- 
 stitutional, although the Supreme Court had previously decided to the 
 contrary. President Tyler, later on, endorsed Jackson's position in his 
 veto of a new Bank Bill. Mr. Buchanan, then a member of the House, 
 voted against the Bank Bill, declaring the legislator to be as independent 
 of the court as the executive. Lincoln impugned the constitutionality 
 of the Dred Scott decision, and, had he been President in 1858, it is 
 doubtful whether he would have employed the executive arm of the 
 Government to enforce the decision of the Court. In the manumission 
 of the slaves, and the suspension of the writ of habeas corpus, he made 
 no appeal to constitutional sanction. Legal limitations were brushed 
 aside in order that the life of the nation might be preserved. 
 
 Not a few of the discretionary acts of the present chief executive have 
 fallen within the shadowy realm of extra-legal powers. The following 
 so-called executive "usurpations" may be noticed: 
 
 1. Ad interim executive appointments, the validity of which rested 
 upon a "constructive" recess of the Congress. The metaphysical subtle- 
 ties involved in an appeal to the doctrine of infinitesimals baffled the 
 simple intelligence of the plain man, and the "constructive" recess has 
 been challenged as an unwarranted exercise of executive authority. 
 
 2. Executive order number 78, constituting the age of sixty-two a 
 prima facie evidence of disability in the adjudication of pension claims. 
 This act has been widely viewed in the light of the appropriation of 
 public revenues by executive decree, rather than by act of the people's 
 representatives in the Congress. 
 
 3. Mr. Whitelaw Reid's appointment as special embassador to attend 
 the coronation of his Majesty, King Edward VII, without the advice or 
 consent of the Senate. 
 
 4. The executive order excluding a great newspaper from the news of 
 
CENTRALIZATION . 757 
 
 the departments because that paper had published a silly canard about 
 the President's children. 
 
 5. Intervention in the Panama affair, amounting, in the view of many 
 thinking men, to a usurpation of the war power vested by the Constitu- 
 tion exclusively in the legislative branch. 
 
 6. The interposition of the President in the Pennsylvania coal strike 
 through the creation of a commission to arbitrate a labor dispute. 
 
 7. The Executive " Agreement" with the Republic of San Domingo. 
 
 8. The creation by executive act of the office of Chief Engineer of the 
 Irrigation and Reclamation Service, without the authorization of the 
 Congress. 
 
 The exercise of these and other doubtful powers by President Roose- 
 velt received no rebuke from the courts. From no responsible source 
 came any suggestion of impeachment. Finally, the President received 
 overwhelming vindication by the people at the polls. Hence the so- 
 called usurpations are not to be regarded as usurpations at all. It all 
 goes to show that executive and legislative officials (though this is true 
 of the latter in less degree) are bound to the extent of their conscience 
 and their political responsibility. As Walter Bagehot remarks, in one 
 of the profoundest of political aphorisms: " Success in government is 
 due far more to the civil instincts and capacity of our race, than to any 
 theoretical harmony or perfection of the rules and formulae of govern- 
 mental conduct." 
 
 IV 
 
 Finally, radical changes, unrecognized as yet in the written law, but 
 embodied in what may be called the organic "common law," have been 
 wrought in the Constitution by custom, precedent, and the silent pressure 
 of public opinion. The unfolding political consciousness of the nation 
 reveals itself in spontaneous processes of growth, which without legal 
 recognition are gradually transforming the body of written law. Na- 
 ture's live growths rive even the rocks. Young and vigorous institutional 
 plants thrust their roots into the crevices of crumbling constitutional 
 walls, and at last overthrow them. 
 
 Our Constitution provides a theoretically perfect plan for the indirect 
 election of president and vice-president. The demand of the popular 
 consciousness for a direct choice has nullified this provision. Presidential 
 electors have become mere pawns. They register, they do not elect. 
 They must take what has been proposed at a convention and ratified by 
 the people. Furthermore, while as late as 1824 presidential electors in 
 the majority of states were chosen by the legislatures thereof, they are 
 now, in all cases, chosen on a general ticket by a direct vote of the people. 
 This practice, with rare exceptions, as, for example, Maryland's split 
 electoral vote in the last general election, throws the entire weight 
 of each state for the candidate whose list of electors happens to be carried. 
 
758 AMERICAN FEDERAL GOVERNMENT 
 
 The device of indirect election has thus gone to the constitutional scrap- 
 heap. The growth of democratic sentiment has not only reduced the 
 choice to a direct popular basis, but has hinged the decision on a vote 
 by states. 
 
 In like manner, the growth of democratic sentiment is demanding the 
 election of United States senators by direct popular vote, and we may 
 look to see a progressive nullification of the legally prescribed plan of 
 indirect election. The demand for formal amendment breaks fruitlessly 
 against the determined opposition of the Senate itself, but the desired 
 end is being sought through extra-legal channels. As, for example, in 
 South Carolina, where a senatorial nomination in a primary election is 
 considered binding upon the formal action of the state legislature. Under 
 such a condition the legislature, like the electoral college, no longer elects, 
 but merely ratifies the popular choice. In other states the legislature is 
 not infrequently called upon to ratify a selection made by a knot of party 
 bosses, in some back-parlor conference, weeks before the legislature con- 
 venes. Mr. Depew affably receives congratulations upon his return to 
 the Senate three weeks before the convening of the legislative caucus 
 nominally charged with the function of naming a junior senator for the 
 state of New York. The old Frankish Mayors of the Palace were ac- 
 customed to pay elaborate homage to the kings of the Merovingian 
 dynasty. Yet the king was a mere trapping of state, a glittering puppet, 
 and the will of the enthroned monarch actually yielded in all important 
 matters to the will of the uncrowned vassal. Thus it is that the body 
 vested with independent choice may be reduced in great states, such as 
 Pennsylvania, New York, and Indiana, to a mere ratification assem- 
 blage. Of the three branches of the government only one-sixth, in the 
 beginning, was popularly elected; to-day one-half is popularly elected, 
 and the sappers and miners of Democratic tendency are already beneath 
 the foundations of another sixth, the Senate. 
 
 Again, the great national nominating conventions are absolutely un- 
 known to the federal Constitution or statutes. The National Conven- 
 tion, made up of a thousand delegates, and as many alternates, elected 
 by all sorts of process, not knowing one another, bound by no oath of 
 office, is an absolute and final judge of its own procedure and its own 
 results. Such a body, as in the case of the last Democratic Convention, 
 passes through a four-day delirium of intrigue, oratory, and uproar, 
 proclaims its creed and its nominees, and with adjournment goes down 
 to a death that knows no resurrection. The conduct of public affairs, 
 even when not veiled from the public eye, is humdrum enough. A con- 
 vention, with its brass bands, its mad cheering, its high-keyed oratory, 
 its thousands of spectators, and its frenzied enthusiasm, furnishes the 
 most stirring, dramatic, and grandiose exemplification of public action 
 which the political processes of this country afford. Yet of the conduct, 
 function, and place of the convention in our political system the foreign 
 
CENTRALIZATION 759 
 
 student would gain not a hint nor suggestion from the entire body of 
 our written organic law with all the commentaries thereon. 
 
 Equally without recognition in the organic law is the spoils system, 
 the great foundation upon which party service rests. The practice of 
 the executive to-day in appointments and removals is, barring the limi- 
 tations of the Civil Service Law, substantially what President Jackson 
 made it seventy years ago by the removal, during the first year of his 
 administration, of two thousand placemen for political reasons. In 
 recent years there has been a practical transfer of the appointing power in 
 the case of postmasters from the president to members of the House. 
 The appointing power is, of course, legally shared by the Senate. The 
 president must take somebody's recommendation, and the custom of 
 allowing congressmen the right to name postmasters implies a dis- 
 position on the part of senators to "go halves" on the spoils of office. 
 Washington was called upon to appoint but seventy-five postmasters; 
 this number has since increased a thousandfold, and it is absurd to 
 suppose that any mortal can, on his own judgment and intuition, pick 
 out suitable men for all these places. The president, in the majority of 
 cases, can do no more than ratify an antecedent choice. In the cause 
 celebre of the recent Haverhill appointment, the President asserted a 
 dormant prerogative and rejected the candidate for postmaster named 
 by the local representative, Mr. Gardner. But even this exercise of 
 so-called independence reduces to the acceptance of another's nominee. 
 In this case Attorney- General Moody was given the right of way in nomi- 
 nating an official for his home city. The outpourings of Mr. Gardner 
 on the occasion are of interest. He felt that he had been beaten by a 
 series of moves not allowed under the rules of the game. He relied upon 
 his "rights," and speaks of the "unwritten law" which vests in congress- 
 men the right to name the postmasters in their respective districts. The 
 representative from the sixth Massachusetts district received a stinging 
 rebuke for bluntly insisting upon the observance of a custom which is 
 tacitly recognized. In this respect he reminds one of Helvetius, who 
 put into print in his book, U Esprit, theories which contemporary thinkers 
 had been content to advocate only in private. "They make so much 
 ado about Helvetius," said Madame du Deffand, "because he has 
 revealed everybody's secret." There is no reason other than the letter 
 of the Constitution why postmasters should not be named by legislatively 
 determined post-office districts, just as congressmen are chosen from 
 legislatively defined congressional districts. The appointment of a 
 postmaster who is persona non grata to the locality immediately con- 
 cerned, as in the Indianola case, is foreign to our political habit, and one 
 may assume that the attitude of the executive in this matter will tend 
 even more to become one of mere acquiescence in a predetermined 
 choice. 
 
 Again, one discovers no statutory basis for the custom which limits the 
 
760 AMERICAN FEDERAL GOVERNMENT 
 
 choice of a congressman to the district in which he resides. American 
 local pride rejects the notion that one's district can not be suitably rep- 
 resented by a local product; then, too, each district feels itself entitled 
 to special legislative favors, and bases its hopes of realization upon a 
 representative's familiarity with home needs, rather than upon the quality 
 of his influence in legislative halls. The idea that Mr. Bryce, a Londoner, 
 may acceptably represent the constituency of Aberdeen in the British 
 House of Commons, is quite foreign to the average American's notion 
 of representative government. This custom of limiting the choice of a 
 congressman to the district in which he resides has entailed a distinct 
 loss in the character of our representative body. An important state, 
 and the nation, as well, were deprived of the fine legislative capacities 
 of the late William L. Wilson, because a passing party upheaval changed 
 the political complexion of the particular district in which the distin- 
 guished member from West Virginia happened to reside. 
 
 Without any sanction of positive law is the rule which declares the 
 President ineligible for a third term, and the senatorial rule of confirm- 
 ing, without question, the President's cabinet appointments. 
 
 Again, both legislative houses are bound by a mass of rules which 
 possess no legal sanction whatever. Invoking the rule of senatorial 
 courtesy, Senator Hill was able, single-handed, and for purely personal 
 and factional reasons, to defeat President Cleveland's excellent nomi- 
 nation of William B. Hornblower to the bench of the United States 
 Supreme Court. 
 
 Unlimited debate in the Senate may now be regarded as an extra- 
 legal feature of our Constitution. This unwritten rule is defined by 
 failures repeated through a hundred years to secure the adoption of a 
 closure rule. Limitation of debate has been found necessary in the 
 parliamentary bodies of England, France, Germany, Denmark, Bel- 
 gium, Italy, Switzerland, and Canada. The United States Senate alone 
 of all the great deliberative, law-making bodies honors no demand for 
 the "previous question." The populistic outpourings of the Aliens, 
 Peffers, and Pettigrews, constitute a heavy price to pay for absolute 
 freedom of debate, but perhaps not too high a price when one reflects 
 that Senator Carter, invoking the equal protection of the unwritten law, 
 held the floor of the Senate for ten hours during the last legislative day 
 of the fifty-sixth Congress, and thus killed the River and Harbor Bill. 
 By the failure of the bill, a saving of fifty million dollars was accom- 
 plished, and, as Senator Carter phrased it, "no injury was done to any 
 living human being anywhere." In like manner, through the inflexi- 
 bility of this unwritten rule, the whole fifty-seventh Congress, in its 
 closing hours, was whiplashed by Senator Tillman over an old war 
 claim of South Carolina's for forty-seven thousand dollars, which an 
 auditor of the Treasury had appraised at thirty-four cents. Chairman 
 Cannon of the Appropriations Committee denounced this transaction 
 
CENTRALIZATION 761 
 
 on the floor of the House in memorable words: "In another body," 
 said he, "an individual member can rise in his place and talk for hours. 
 . . . Your conferees had the alternative of submitting to legislative 
 blackmail at the demand, in my opinion, of one individual, or of letting 
 these great money bills fail. ... In my opinion, another body must 
 change its methods of procedure, or our body, backed up by the people, 
 will compel the change, else this body, close to the people, shall become 
 a mere tenderer, a mere bender of the pregnant hinges of the knee, to 
 submit to what one member of another body may demand of this body, 
 as a price for legislation." 
 
 Another extra-constitutional rule, which will undoubtedly prevail in 
 future cases of ad interim gubernatorial appointments to Senate vacan- 
 cies, was recently established in the Quay case. The Senate, by majority 
 of one, decided that Mr. Quay was not entitled to his seat on a certifi- 
 cate of appointment issued by Governor Stone after the legislature of 
 Pennsylvania had adjourned without making a choice. That the gov- 
 ernor has no power to appoint in case the legislature fails to elect is a 
 rule which may now be described as a principle of Federal "Common 
 Law." 
 
 In like manner a binding customary rule provides that all appropria- 
 tion bills shall originate in the House, although the written Constitution 
 is silent upon the subject. 
 
 Equally without legal sanction is the Congressional Caucus, which 
 silences the opposition of party dissenters, and secures unity of party 
 action; or the unwritten rule of the Senate that seniority shall govern 
 in the make-up of committees. Under this latter custom the most dis- 
 tinguished lawyer in the country probably could not reach the head of 
 the Judiciary Committee until all party members who preceded him on 
 the committee had retired from the Senate. 
 
 Finally we search the Constitution and statutes in vain to discover 
 legal sanction for the tremendous legislative and political power now 
 exercised by the Speaker of the House. The precedent which had the 
 greatest influence with the men who sat with the Philadelphia Conven- 
 tion was that of the Colonial Speaker. He, like the Speaker of the 
 House of Commons, was nothing more than an impartial moderator. 
 The imperfect organization of the House, the rise of the party system, 
 the vast increase in the amount of congressional business, have united 
 to transform the speakership into a great political office. The central, 
 vital weakness in our legislative system is found in its lack of unity and 
 coherence. By processes of slow and inappreciable adaptation, our 
 political genius applies empirical remedies to our constitutional defects, 
 just as nature herself, by silent and inscrutable agency, applies to a 
 wound or sore her processes of healing. Our income is raised by one 
 set of men, our expenditures are applied by another. Government by 
 standing committees means government by fifty-five jarring, petty leg- 
 
762 AMERICAN FEDERAL GOVERNMENT 
 
 islatures. A unifying influence in legislation is demanded, and partial 
 coordination is found in the paramount political and legislative control 
 now exercised by the Speaker. One admits that his power, through 
 recognition, seems tyrannical, that his authority to appoint all com- 
 mittees seems arbitrary, and that his control over the order of business, 
 as Chairman of the Rules Committee, seems dictatorial. But what 
 . then ! The House acquiesces in "one man power," and there is a reason 
 for it. Macaulay observes that an army can not be led by a debating 
 club ; neither can the House, which, without rigid discipline, would de- 
 generate into a debating club, lead itself. Individuals, for the sake of 
 order and efficiency, must under military discipline surrender their 
 capricious, conflicting, casual wills to the will of a common superior, 
 just as, in the thought of Hobbes, the warring human atoms in "a state 
 of nature" confer, for the sake of peace and order, all their powers upon 
 a common coercive superior, called by Hobbes the great Leviathan, or 
 mortal God. The British House of Commons is able to govern because 
 obedience to leaders is of its essence. It lives in a state of perpetual po- 
 tential choice of leaders, but leaders there will always be, and these leaders 
 must be obeyed. The penalty of disobedience is legislative impotence. 
 In a sense the House of Commons does not rule; it merely elects the 
 nation's rulers. This, in larger measure than is generally suspected, is 
 true of the House of Representatives. The three hundred and eighty- 
 six members who may occupy the floor constitute the House on parade. 
 The House at work is a disintegrate body, grinding away behind the 
 closed doors of fifty or more committee rooms. The House in session 
 is no longer the real legislative power, but rather the maker of the real 
 legislative power, the Speaker and his appointees, the chairmen of the 
 great standing committees. Instead of a responsible ministry, as under 
 the British system, the House appoints a hierarchy, which in the present 
 state of evolution consists of four members, three a constant, and one a 
 variable, the constant being the Speaker and his two party associates 
 of the Rules Committee, the variable being the chairman of the com- 
 mittee having jurisdiction of the measure which has been given right of 
 way by the Rules Committee. While the House has the constitutional 
 right to determine its own rules of procedure, it can not be maintained 
 that the Fathers intended to grant a power which should deprive the 
 popular legislative branch of its deliberate functions, or impair the free 
 representative character of the body itself. The transformation of the 
 popular branch has proceeded in obedience to the laws of our political 
 evolution. This development has been largely along extra-constitutional 
 lines, and, in the opinion of the writer, changes will continue to work 
 themselves out along the line of coordinating, with the legislative power 
 of the rulers of the House, a reciprocal measure of defined political 
 responsibility. 
 
 Who, ten years ago, could have divined the mighty changes wrought 
 
CENTRALIZATION 763 
 
 in our institutional fabric within the narrow limits of a single decade? 
 To-day the thoughtful man turns to the future and wonders what is 
 coming to the Republic. One notes the drift toward strong government 
 and the growing disposition to appeal to Washington for the correction 
 of all manner of public ills. The conclusion is borne in upon us on every 
 side that out of the federal state is rising the Unitarian state, just as out 
 of the federation, a band of states, rose the Federal Republic, 
 a banded state. 
 
 The Constitution can be treated no longer as a written instrument 
 defining the measure of American destiny, but rather as the sum of the 
 political habits and convictions of the nation. This is not the place to 
 deplore nor to approve. What is written, is written. Litera scripta 
 manet. The written word does not change, but the consciousness of a 
 progressive society, like that of the human organism, is always changing. 
 Herein is a relation between a constant and a variable, fixed law and 
 changing life. Life can not be expressed in a formula or reduced to a 
 syllogism. In a tempest the sea anchor, fixed in nothing more stable 
 than the watery element, holds the ship to windward when otherwise the 
 craft might be blown helplessly from her 9ourse. Our political devel- 
 opment has followed the course laid down by the rigid, written consti- 
 tution, but the anchor of limitations is fixed in an element which is 
 itself shifting and unstable. The old conflict between the unyielding law 
 and the living organism has resulted, as it must always result in any 
 expanding life, in a victory for the organism. For the letter killeth, but 
 the spirit giveth life. 
 
 SPEECH OF REPRESENTATIVE DE ARMOND FOR A 
 CONSTITUTIONAL CONVENTION 1 
 
 MR. DE ARMOND said: 
 
 Mr. Chairman : Listening to the remarks of the gentleman from New 
 York (Mr. Perkins) upon the subject of an inheritance tax, my atten- 
 tion is directed also to the matter of an income tax, and to some things 
 that are involved in the consideration of the two questions. All know 
 that as matters now stand, unless through change in the personnel of 
 the Supreme Court, leading to a change in its views and decision upon 
 this subject, an income tax can not be imposed and sustained. There 
 are a great many people of the nation, and I am one of them, who be- 
 lieve that a graduated tax upon incomes is a most righteous and most 
 desirable tax. I quite agree with the gentleman from New York (Mr. 
 Perkins), and with those taking a similar veiw, that an inheritance tax 
 also is most desirable, and I hope the time is not far distant when we 
 may have it established in this country. 
 
 1 Congr. Record, Dec. u, 1906. 
 
764 AMERICAN FEDERAL GOVERNMENT 
 
 In view of the fact, however, that an income tax is a mere experiment 
 not as to the qualities of the tax or its beneficial features, but as to 
 the opinion of the court concerning its constitutionality and inas- 
 much also as there are a good many other things that in the estimation 
 of a good many people in this country would be wholesome as matters 
 of legislation, which perhaps are not constitutional at this time, efforts 
 are made from time to time to amend the Constitution, and such efforts 
 will be continued almost indefinitely. When we reflect that no amend- 
 ments to that great instrument have been made in more than a hundred 
 years, excepting only the three which grew out of the civil war, and that 
 excepting these civil war amendments and the one in relation to the 
 electoral college, growing out of the contest between Jefferson and Burr 
 for the Presidency more than a century ago, all the other amendments 
 may be regarded as practically part of the original Constitution, we may 
 safely conclude that the Constitution will not be amended in our day 
 through the submission of amendments by the Congress. 
 
 The Constitution itself, however, provides another way of securing 
 amendments to that instrument that is, by the action in the first 
 instance of the several States themselves (Article V). 
 
 There has been a great deal of agitation in the country from time to 
 time, and there is perhaps a good deal now, over the proposed amend- 
 ment of the Constitution in a good many important particulars. With 
 some of this agitation and some of these movements I am in sympathy; 
 with others I am not. A great many very good people, entitled to their 
 views and entitled to a hearing upon them, are of the opinion that in a 
 good many important particulars the Constitution ought to be amended. 
 For instance, there are those who believe that it ought to be amended 
 so as to provide for female suffrage. Others would have a marriage and 
 divorce amendment. Some believe it should be amended with reference 
 to the liquor traffic, or by way of prohibition of the liquor traffic. Many 
 believe there ought to be a constitutional provision for the election of 
 United States Senators by direct vote of the people. There are those 
 who are of the opinion that fhe President and Vice-President should 
 also be chosen by a direct vote. Some believe the Presidential term 
 ought to be six years instead of four years, and that the President ought 
 to be ineligible for reelection as his own successor. Some people, par- 
 ticularly in the latitude of Washington, believe it is vastly important to 
 have the Presidential term begin later in the season, so that inaugura- 
 tion day may fall at a time when the weather is more agreeable and fit 
 for a pageant than it is likely to be about the 4th day of March. A 
 great many people believe that Congress ought to be convened shortly 
 after the election, instead of thirteen months after the Members of the 
 House of Representatives are chosen. There are some who believe that 
 provision ought to be made in the Constitution whereby the Govern- 
 ment, under suitable regulations of law, might insure the lives of citizens 
 
CENTRALIZATION 765 
 
 of this great Republic. I am one of those who entertain that opinion. 
 Life insurance by the Government could be made both safe and profit- 
 able ; and what a boon to the people to get insurance at what it is worth ! 
 There are people who believe that by an amendment to the Constitution 
 greater power, better-defined power, power that may be more easily 
 exercised and more effectively employed, might be supplied for dealing 
 with great trusts and other mighty corporate agencies of the land. I 
 need not take the time of the House in enumerating the various matters 
 concerning which amendments have been and are persistently urged and 
 earnestly desired. I mention some of them merely as preliminary to the 
 consideration of whether or not it might be advisable for the people of 
 this country, by action of their various State legislatures, to call upon 
 Congress to make provision for a constitutional convention, in which all 
 the plans and schemes of amendment might be presented. Such a con- 
 vention surely would be composed, in part at least, of the ablest men 
 in the land. It would be a very great body of American statesmen and 
 citizens. I believe the very fact of the assembling of such a convention 
 I believe, indeed, the preliminary discussions leading up to it or 
 designed to bring it about would be productive of much good in 
 legislation in Congress and in the several State legislatures. The con- 
 vention, I presume, would submit some amendments for the ratification 
 of the people, and State conventions might follow, for considering and 
 determining the adoption or rejection of the amendments submitted. 
 
 Now, I am not one of those who believe that the old Constitution is 
 worn out, or that the ingenuity and statesmanship and patriotism of 
 to-day would be likely to supply something which in its fundamental 
 principles would be any improvement upon, or even as good as, that 
 old instrument ; but I am one of those who do believe that a constitution 
 made more than a hundred years ago, when conditions were vastly dif- 
 ferent, when corporations were in their infancy, when our population 
 was sparse, when wealth was not concentrated, when great agencies in 
 government were not employed as they are employed now, before the 
 day of the telegraph and telephone and the many triumphs of electricity, 
 before many of the mighty inventions of to-day and yesterday were 
 dreamed of; that a constitution made then may lack something now. 
 I believe the makers did not embody in that instrument of matchless 
 worth, our Constitution, all that might be or is now sufficient or desir- 
 able for present needs or to equip the people to meet the rapidly grow- 
 ing needs of the future of a great country. I believe a convention of 
 American citizens, assembled for the purpose of considering various 
 propositions to amend that Constitution, would be likely to submit some 
 wholesome and timely amendments, perhaps a good many, but some, 
 at least, which would meet the approval of the American people, and, 
 by their sovereign will, be made part of the Constitution. 
 
 I believe there is enough of wisdom and patriotism and justice in the 
 
766 AMERICAN FEDERAL GOVERNMENT 
 
 American people, enough pride in their past, interest in the present, and 
 hope of the future, to protect us against any possible danger that the Con- 
 stitution might be impaired by the adoption of an unwise amendment. 
 It requires three-fourths of the States, either through conventions or 
 through State legislatures, to ratify any amendment to the Constitution. 
 I can not believe that any amendment not deserving ratification, any 
 amendment which really would not be an improvement, an enlarge- 
 ment, a perfecting, of the Constitution would meet with the approval 
 of legislatures or conventions in three-fourths of the States of this Union. 
 Of course, our action here, if any action is to be taken along this line, 
 would be action only after the State legislatures, to the number of two- 
 thirds of those in the Union, shall have called upon us for action. A 
 good deal of time has been taken in committee and some in the House 
 and in the Senate on various propositions to amend the Constitution. 
 Every session these propositions are up. There are hearings before 
 committees and occasional reports, sometimes lengthy and sometimes 
 learned, upon this or that proposition, but no amendments are made, 
 and no opportunity is given the people to consider whether or not any 
 amendment should be made. 
 
 I am. one of those who believe that there ought to be recurrence as 
 frequently as possible to the judgment of the mass of American citizens. 
 I believe that under our system of government it is wise every now and 
 then, and quite frequently, to get at the sense of our people, affording 
 them full opportunity to make themselves heard. There is a growing 
 feeling, I think, and I think it is one that has foundation in real fact and 
 real need, that very often legislation is too far away from the masses of 
 the people ; that their will is expressed in legislation too slowly and too 
 imperfectly; that combined powers that can make known their wishes 
 quickly, that exert their potent influence rapidly, that can concentrate 
 at the very point where things are to be done, are more likely to prevail 
 than the profound sentiments of the scattered citizenship of the country. 
 
 There are a great many people who believe that in our Constitution 
 there ought to be provision made for what is popularly known as the 
 Initiative and Referendum, by means of which the people themselves 
 might directly suggest and initiate and directly pass upon legislation. 
 I believe our Constitution would be improved by providing in it for this 
 exercise of power by the people. 
 
 The whole problem of modern government, where the people seek to 
 govern themselves, is involved in the one proposition of enabling the 
 great masses of people, the 999, scattered and dispersed in their various 
 vocations over the country, to make their power felt, register their will, 
 and have done that which they desire to have done, in their own interest, 
 for the welfare of the whole community and for the perpetuity of the 
 Government. It is vastly important for the people that they be pro- 
 vided with the means of opposing effectively, and surely and swiftly 
 
CENTRALIZATION 767 
 
 overcoming those who have usurped authority, and those who by the 
 concentration of wealth and by the powerful modern agencies for its 
 creation and utilization in all sorts of ways, good and bad, are constantly 
 pushing on to further their own interests and are constantly growing 
 more heedless of the rights and interests of the plain American citizen. 
 Now, if the Constitution could be amended so that the people will have 
 more power, so that there may be quicker response to popular demands, 
 so that there may be a correct and more authoritative registering of the 
 popular will, very much will have been done toward insuring the per- 
 petuity of government and preserving and enforcing the rights of our 
 citizens. 
 
 An election was held last month for Members of the House of Repre- 
 sentatives of the Sixtieth Congress. Unless there should be an extraor- 
 dinary session called, the Members then elected will not assemble to 
 discharge the duties of their office until December of next year 
 1907 thirteen months after they were elected. There really ought to 
 be in the Congress of the United States, as there is in all of the State leg- 
 islatures, an assembling of the newly elected body quickly after the 
 election, while the Members are fresh from the people, whence they 
 come with the authorization of the people, the command of the people, 
 to do certain things and to refrain from the doing of certain other things ; 
 to make new laws ; to amend or repeal old laws. A great many things 
 happen in this country in the space of thirteen months, and Represen- 
 tatives who do not serve the people early, often do not actually serve 
 them at all. 
 
 It is true that a Congress could be assembled, under the Constitution 
 as it is, very much earlier than we meet. Instead of meeting on the 
 first Monday of December, we could fix our meeting day at any time 
 after the commencement of the Congressional term. Any time after the 
 4th of next March the Sixtieth Congress, by operation of law, if we saw 
 proper to change the law with reference to the time of meeting, might 
 be assembled. Somehow or other, I know not why, there seems to be 
 opposition to any change, and the result is, Congress after Congress, we 
 meet first in December, thirteen months after our election. We choose 
 Members of the House of Representatives for two years, and thirteen 
 months of that period are suffered to pass before the Representatives 
 enter upon the discharge of their duties. This would appear passing 
 strange if it were not so familiar and common, if it were not the order 
 of things. It is strange that we do not amend the law, do the best that 
 we can. But there could very easily be an amendment to the Constitu- 
 tion, if a convention were assembled to consider such things, by means 
 of which Congress would be assembled soon after the election, speedily, 
 in January or even in December following the election. 
 
 Then there is no reason why a Congress, after its successor has been 
 chosen, should sit at all, except in extraordinary session, before the 
 
768 AMERICAN FEDERAL GOVERNMENT 
 
 new Congress comes in when there is, in the judgment of the Presi- 
 dent, an emergency for Congressional action before the new Congress 
 can act. 
 
 There is no reason in the nature of things, there is no reason in the 
 essence of good government, why this Congress instead of the new Six- 
 tieth Congress should now be in session. Those who declined reelec- 
 tion or failed to secure it are supposed not to be so vigilant, so zealous, 
 in the closing months of a term as those newly elected, who have the 
 stimulus of a fresh baptism of popular favor, and something here for 
 ambition to feed upon. I speak of this in generalities, because I know 
 in many instances men whose terms are soon to expire have enough 
 vigilance and are patriotic enough to be useful up to the very last hour 
 of their service in a short session of Congress, when they know they will 
 not be Members of the next Congress. 
 
 There can be no good reason why a Congress should be elected in 
 November, for a period of two years, to assemble thirteen months later, 
 and in a few months perhaps be involved in the throes of the on-coming 
 campaign, a very large share of the membership being candidates for 
 renomination and reelection. Now, it may be supposed, and if we were 
 not acquainted with the history of things and did not know how things 
 go here, it would be supposed, that a change in the meeting time of Con- 
 gress could be easily effected; but it can not be easily effected. We 
 know that for years and generations, even, there have been efforts made 
 without effect for a change, and perhaps other years and other genera- 
 tions may pass without its being accomplished. But I think it is very 
 fair to assume that through a Constitutional convention this change at 
 least might be made ; and if the Constitution were amended in no other 
 particular, if no other change were made in it, there would be enough 
 of consideration for all the expense and all the labors of the convention 
 if provision were made for assembling Congress speedily after election. 
 To-day a constitutional amendment is necessary, because now the term 
 begins on the 4th day of March, and, by shortening or lengthening one 
 term, it should be made to begin in December or January next after 
 the election. 
 
 Now, I believe there would be wisdom in an amendment limiting the 
 incumbency of the Presidential office to a single term. In some of the 
 States the governor is ineligible to reelection as his own successor, as 
 in Missouri, where the treasurer likewise is ineligible. 
 
 When "you look to the new State constitutions, there will be found 
 many minor provisions which might, with great propriety, be incor- 
 porated in the Federal Constitution. For instance, a number of these 
 constitutions enable the governor to veto items in appropriation bills. 
 A bill may contain thousands of items, and the governor has the right 
 to veto any one or any number of them and approve the bill as to the 
 others. 
 
CENTRALIZATION 769 
 
 I believe such a provision would be immensely beneficial. There are 
 a number of abuses it would cut off, and the saving would be great. 
 Too often it is only necessary to get an item, no matter how objection- 
 able, into a great appropriation bill, and as the bill must go through and 
 does go through, that item stands with the very best and the most neces- 
 sary ones in it. The result is that combinations are invited, and some- 
 times, I fear, combinations are made, by which A assists B and B assists 
 A, and the unholy alliance extends through the alphabet, with the re- 
 sult that probably two or three or a dozen or fifty or a hundred items 
 are incorporated in the bill, not one of which, perhaps, has merit enough 
 to stand alone or to win by itself upon its own merits. Now, if the 
 President, when he comes to pass upon such a bill, could veto any item 
 or items in it, there would be cut off the tendency to the abuse of com- 
 binations for the purpose of loading up bills, and in large part the pos- 
 sibility of success, because it might be assumed that most objectionable 
 items would be vetoed. 
 
 Then I think the veto power itself ought to be limited, for I do not 
 believe that the President's power in legislation ought to be equal to 
 the voting power and the persuasive power of one-sixth of the member- 
 ship of the House and one-sixth of the membership of the Senate. It 
 is one thing for the President to veto a bill and it is another thing for 
 that veto to be effective, unless one-sixth of the membership of this 
 House and one-sixth of the membership of the Senate, added to a ma- 
 jority of each body, unite to override the veto. The real purpose of a 
 veto, it seems to me, ought to be to invite the attention of the legisla- 
 tive body to supposed objections in the matter vetoed. It ought to be 
 rather in the way of a holding up, a cautionary sort of proceeding. It 
 ought not to require so large a vote to overcome a veto. It ought to be 
 rather a check upon legislation, a challenging of the special attention of 
 the lawmakers to the matter regarded as objectionable. "I do not be- 
 lieve this matter ought to pass. Please look into it more carefully; 
 please give it reconsideration and see what your deliberate judgment 
 about it is." But of late years there has been no particular abuse of 
 the veto power, and a change in it is perhaps a matter of comparatively 
 small importance. 
 
 But, as to the main proposition. Here we have a Constitution, one 
 of the greatest and best ever brought into being by human brains; we 
 have a Constitution framed in the infancy of the Republic, framed in 
 the primitive days, before the great railroad had an existence, before 
 great electric motors and telegraph and telephone were known; before 
 the modern agencies called " trusts" had a being or were dreamed of; 
 before the appearance of the millionaire as a common, every-day citizen ; 
 before the near approach of the billionaire; before the aggregation of 
 hundreds and thousands of millions of dollars under single control; 
 and it seems to me that in our progress, in the history of our nation and 
 
 49 
 
770 AMERICAN FEDERAL GOVERNMENT 
 
 of the world, we certainly have reached a time when it might be wise 
 to assemble a convention to consider whether or not amendments could 
 with profit be proposed to the great conservator of our liberties; and 
 if they should be proposed, for the people deliberately, after their own 
 manner, in their own fashion, to consider whether or not the Constitu- 
 tion should be amended. 
 
 Now, out of the discussion that would necessarily arise in a conven- 
 tion and after a convention certainly would come an awakening that 
 could not be anything else than beneficial to the people of this country. 
 There would be attention centered upon matters that are now over- 
 looked and neglected. The people would have opportunity to assert 
 their power and resume their control over some of the things, control 
 of which has largely slipped from their hands. For instance, there is 
 going on all the time now a conflict in opinion, and sometimes a con- 
 flict beyond opinion, between capital and labor, where serious questions 
 as to the writ of injunction are involved. There has been a great deal 
 of discussion and much uncertainty in a great many minds as to how 
 the matter really stands. There is one school of thought that takes the 
 view that the courts have the inherent power to determine what writs 
 they ought to issue, and, if they decide they ought to issue particular 
 ones, to issue them ; that it is an inherent, necessary, preservative power 
 and prerogative of the courts ; that the court must say what is necessary 
 to maintain its dignity and preserve its authority and execute its man- 
 dates, and that there is no power under the Constitution, no agency in 
 the Government, to interfere with that exercise of authority. 
 
 Then there is another school of thought claiming that the courts, ex- 
 cepting alone the Supreme Court of the United States, being creatures 
 of the law-making power, are within the scope of such laws as are made 
 and such laws as may be made; that the question whether or not par- 
 ticular writs should issue, the circumstances under which they shall 
 issue, if issued at all, are legislative questions and not judicial questions ; 
 that the power to make courts is the power also to unmake courts ; that 
 the right to confer, through legislative action, power upon courts car- 
 ries with it also the constitutional right to circumscribe that power, take 
 away part of it, and direct how it shall be exercised. 
 
 Now, that is an unsettled question in this country, with a tendency 
 all the time in the courts to magnify themselves and to determine more 
 and more and more that they have this power and that power, never 
 given to them, as was foreseen by the wise men of the early day ; a tend- 
 ency ever toward magnifying the power of the courts and lessening the 
 power of the legislative and executive branches when brought into con- 
 flict with them, and what is of far more importance, lessening in a good 
 many instances the inherent and vital privileges and immunities of the 
 people. 
 
 I believe a great deal of good might be done by a constitutional con- 
 
CENTRALIZATION 771 
 
 vention considering that among other questions. Shall our courts be 
 final and supreme arbiters ? Shall the courts determine what its powers 
 are? Shall the court, independently of the Congress, determine when 
 it shall issue a particular writ, who violates an injunction or a writ of 
 prohibition or any other extraordinary writ, and what the punishment 
 shall be all determined by a single lifetime appointee or shall the 
 people, through those whom they elect to Congress from time to time 
 and who are responsible to them, determine what the power of the 
 courts shall be? Shall the Congress determine within what bounds the 
 powers given shall be exercised, what powers they will give to the courts, 
 and what powers they will withhold from them? I believe a question 
 like this is worthy of the consideration of the ablest minds of the coun- 
 try, and I believe that a great constitutional convention would give to 
 it, as to other great questions that would naturally arise and naturally 
 be suggested, the consideration which they really merit. 
 
 Now, I believe one of the troubles of this country at this time in the 
 conflict between labor and capital grows out of the assumption on the 
 part of the courts of the right to issue certain writs when they have no 
 right to issue them unless authorized by the law-making power to issue 
 them. A court created by law possesses no power except what the law 
 gives it. [Applause.] Those who can create can destroy, if they see 
 proper to destroy; those who can grant power can withhold power. 
 The question of whether or not a particular writ should issue in a par- 
 ticular instance barring only the United States Supreme Court, 
 created by the Constitution itself certainly ought to be, it seems to 
 me, a question to be determined, as all other questions of law making 
 are determined, by the law-making body of the country the Congress 
 of the United States. And there ought to be some way of getting at 
 undesirable judges, whether unfaithful or no longer efficient, and some- 
 thing more expeditious, something less cumbersome, something surer 
 than the one remedy provided by the Constitution impeachment 
 ought to be available. There ought to be something equivalent to re- 
 moval by address. There ought to be some added sense of responsi- 
 bility imposed upon every man who holds a judicial office in this country 
 by life tenure. 
 
 Mr. STANLEY. Is it not true that that was one of the first defects 
 pointed out in the Constitution within a few years after it was adopted ? 
 If my memory serves me correctly, Thomas Jefferson pointed out the 
 danger of putting that power into the hands of the court. 
 
 Mr. DE ARMOND. Well, of course, Mr. Chairman, Jefferson's writ- 
 ings I think are full of warnings and admonitions and expressions of 
 fear as to what may result from an encroaching judiciary. 
 
 Everybody in this country has respect for the courts, and in a body 
 like this, where a large majority are members of the oar and a good 
 many of them ex-judges, of course respect to the highest degree exists, 
 
772 AMERICAN FEDERAL GOVERNMENT 
 
 but there is a tendency in the human mind and in human conduct to 
 gather power, and, unconsciously perhaps sometimes unconsciously 
 and sometimes consciously to usurp authority. You appoint a man 
 judge for life, removable only by impeachment, a slow, tedious process, 
 which, as the history of the country shows, usually brings no results. 
 All he has to do is to avoid an offending on account of which he can be 
 removed by the process of impeachment. A large number of his actions 
 are not reviewable in higher courts. Either there is no provision for 
 review or those affected injuriously are too poor to go to a higher court. 
 The result is that there is a tendency all the time for the judge as- 
 suming he is trying to do what is right and proper if he thinks the 
 case is one calling for a strong remedy to bottom his decision and justify 
 his action upon the most extreme action, the most radical assertion of 
 power, of any other court or judge whose ruling falls under his notice. 
 He may go a little grain beyond any other one. Another case arises, 
 and another judge goes further still, following and enlarging upon prece- 
 dent; and so it goes, a constant, steady, gradual, and sure advance in 
 the claim of power, in the assumption of power, in the exercise of power, 
 with no unquestioned agency to check or correct. Now, take the matter 
 of injunctions, if you please. 
 
 Mr. STANLEY. Will the gentleman yield for an interruption at that 
 point ? I am very deeply interested, and I would like to ask the gentle- 
 man it he does not think it would be wise, in cases of constructive con- 
 tempts, where heavy fines and long terms of imprisonment may probably 
 be imposed, to have the punishment inflicted by the intervention of a 
 jury? 
 
 Mr. DE ARMOND. Mr. Chairman, I have heretofore expressed my- 
 self in favor of that, but I am trying to talk now about the fundamental 
 principles rather than about the details of legislation. 
 
 The writ of injunction, of course, is an old writ. The courts assume to 
 apply it to new facts, to new cases as they arise. The question comes 
 up, and a most interesting question it is it is one, in my judgment, 
 that could be dealt with by legislation, but more effectively dealt with 
 by a constitutional convention when the new facts arise, when the 
 new conditions are brought about, when there is supposed to be occasion 
 for the application of an old principle to a new case who is to say, 
 who has the right to say, whether the old principle or the old writ shall 
 be applied to the new state of facts, to the new condition of things ? The 
 judges assume that they have the right, and for a century in this country 
 and more they have been steadily moving forward on that theory. My 
 judgment is that the legislative body, and that alone, has the right to say 
 whether when a new state of things arises, when new conditions develop, 
 when new agencies are brought into play, this or that writ or this or that 
 process shall be employed. 
 
 Now, take, for instance, the great development in railroad building 
 
CENTRALIZATION 773 
 
 and railroad operation. In the olden days, when the writ of injunction 
 came into being, there were no railroads. No question arose as to whether 
 there ought to be an injunction issued in a dispute between the mighty 
 employer and the humble employee, because none could arise. There 
 were no such conditions and no such situation at that time. In the 
 process of time, by means of inventions, development of the country, 
 growth of population, multiplication of corporations, vast increase in 
 their power, functions, and ramifications, new questions arose, entirely 
 different from the issues of the dead centuries. Yet the contention is 
 that in order to determine what a court of its own power and right 
 its own inherent, necessary power, as they say, and its own constitu- 
 tional and prerogative right may do or shall do, the courts are justi- 
 fied in drifting away back to the pretended fountain of judicial power, 
 the decisions of English judges and English courts, centuries ago, in 
 cases having really no analogy, when you consider them properly, to 
 the cases in which the principles thence deduced are now applied. Now, 
 is it in the power of the courts to go on eternally in that way ? Is it the 
 right of the courts to determine when new conditions arise, when new 
 agencies come into play, what they shall do, and how they shall do it, 
 or is the determination within the power of the law-making body ? My 
 judgment is that the law-makers have the right to determine about it. 
 Some people talk as if when you interfere with the courts in any par- 
 ticular, when you raise any question as to whether a court possesses 
 power which different judges of the country assume to have and which 
 they exercise, you are seeking to undermine the foundations of our 
 Government and destroy property rights ; invading the province wherein 
 the courts stand as the guardians and protectors of everything that the 
 citizen enjoys under the law. 
 
 Who make the laws ? The representatives of the body of our citizen- 
 ship itself, men selected for the very purpose of doing that very work, 
 men responsible to their constituents for the way in which they do it or 
 for neglect to do it. What reason is there to suppose that these men will 
 not have as tender a regard for those upon whom they directly depend 
 as will these lifetime judges who are not dependent at all upon the great 
 body politic ? 
 
 I did not mean to drift off into a discussion of this matter, because it 
 is really foreign to the subject to which I wished to address myself. 
 What I wished was merely to throw out the suggestion that I think the 
 time has arrived when a constitutional convention might by action of 
 Congress, stimulated and brought about under the Constitution by the 
 State legislatures, be assembled to consider whether or not in some im- 
 portant particulars this great Constitution of ours might not be made 
 better. This little discussion with regard to injunctions, by way of 
 illustration, although it went much further than illustration, is an after- 
 thought, and just simply happened. 
 
774 AMERICAN FEDERAL GOVERNMENT 
 
 NEW FIELDS FOR FEDERAL POWER 1 
 
 "BEFORE many years," said in effect a conservative member of Con- 
 gress the other day, "there will not be left a department of human life 
 over which the national government does not somehow exercise control. 
 "Great as have been the extensions of Federal functions within a com- 
 paratively few years past, there are enough others in contemplation to 
 draw from their graves the statesmen who were arguing against internal 
 improvements three-quarters of a century ago. In the President's last 
 annual message there were no less than eight specific recommendations 
 involving the exercise of new functions, or the assumption of new tasks, 
 by the Federal Government. And if a list were compiled of the sug- 
 gestions made along the same lines by bills now before Congress, or 
 resolutions of public bodies leaving out freak bills and constitutional 
 amendments it would probably be twice as long. 
 
 Railroad rate-making happens to be the most conspicuous proposal 
 just at present. This is one of the things the National Government is 
 asked to do because, unless it undertakes the task, it will not be per- 
 formed at all. The States could not secure the same results even if 
 they all cooperated to the full. The same may be said, of course, re- 
 garding the proposed regulation of express companies and national 
 supervision of insurance. Other measures, widely differing in subject- 
 matter, fall into the same general class, because they propose that the 
 government shall do something not done by anybody at present, or at 
 least not done efficiently. Such, for instance, are the protection of 
 Niagara Falls in which the Federal power over boundaries may be 
 invoked the preservation of the Great Lake fisheries by international 
 agreement, and Commissioner Sargent's much discussed scheme for 
 deflecting the stream of immigrants to those sections of the country 
 where they are wanted. 
 
 Next may be classed the proposals which are urged on the ground 
 that the Federal Government should step in merely to give the several 
 States a chance to regulate their own affairs. These, for the most part, 
 grow out of changed conditions. Centers of production and consump- 
 tion have come to be so far apart, transportation so easy, and traveling 
 so incessant, that local regulations, once amply sufficient, have proved, 
 in many lines, to be little better than farcical. The Pure Food bill owes 
 much ,of its backing to the fact that a State with good food laws is now 
 at the mercy of one with bad laws or none, which can flood it with im- 
 pure products; the prohibition communities never cease asking for 
 Congressional action that will undo the "original package" decisions 
 and help the State authorities to stop liquor in transit the moment it 
 
 1 The Nation, 32: 131. 
 
CENTRALIZATION 775 
 
 crosses the line. Other bills favored by the same interests wish a law 
 that will make the records of the internal-revenue office more useful 
 in the prosecution of illicit liquor-sellers. The national quarantine law, 
 which, as always after the threat of an epidemic, is being strongly urged 
 this year, would similarly save the neighboring States from the conse- 
 quences of the laxity of any one. And President Roosevelt's recom- 
 mendation, that the criminal process of each State be made to run 
 throughout the entire country, bears somewhat the same relation to 
 moral health. 
 
 Finally should be mentioned those instances in which national action 
 is urged chiefly to secure uniformity of system in some department. 
 The practical restriction of naturalization to the Federal courts, as 
 recommended recently by a commission, is one example, and another 
 the partly completed extension of national trade-mark legislation; 
 while the national child-labor law, strongly pushed by a State labor 
 commissioner recently, though without citation of the constitutional 
 provision which would authorize it, is a type of many benevolent meas- 
 ures so advocated. Though some of these have been actively opposed 
 and some kept from passage for many years, the argument, on abstract 
 principles, of danger from the assumption of additional functions by 
 the Federal Government is almost never heard. In fact, it is remark- 
 able how much support such measures have in the old region of jealous 
 States-rights sentiment. The national quarantine is distinctively a 
 Southern measure, the liquor shipment bills are most strongly advo- 
 cated there, and as for pure food, two Southern States are the only ones 
 which, by a provision of their State law, have made the food standards 
 of the Secretary of Agriculture go into effect within their borders as fast 
 as promulgated. So a number of Southern as well as Northern States 
 have voluntarily turned over their quarantine stations to the Public 
 Health and Marine Hospital Service. 
 
 Efficiency has come to be the controlling argument in most of these 
 cases. Our National Government has a way of getting things done 
 not economically perhaps, but efficiently that the States simply stand 
 by and envy. The illicit liquor-seller, who defies the sheriff and the 
 chief-of-police, would not dare to run for a week without paying his 
 Federal tax. The Federal officer, in any line of work, is freer from 
 hampering local influences and is apt to be backed up more firmly in 
 doing his duty. The present advocacy of Federal control as a general 
 panacea is really not so much an indication of changing Constitutional 
 views, as a tribute to the relatively effective way in which power is ap- 
 plied from Washington. 
 
776 AMERICAN FEDERAL GOVERNMENT 
 
 FROM A MEMORIAL ADDRESS ON THE BATTLEFIELD 
 OF GETTYSBURG 
 
 BY REPRESENTATIVE JAMES A. TAWNEY * 
 
 "I DO not plead for States rights. I plead for the right and the duty 
 of the Federal Government to protect itself and its Treasury against 
 the encroachments of the States and private interests upon its powers, its 
 duties, and its revenues." 
 
 ******** 
 
 In the early part of the nineteenth century there was fear and danger 
 that the Union of the States was as a rope of sand and would fall apart. 
 To-day there is more reason to fear that the several States and the local 
 self-government which they represent will, for all practical purposes, 
 disappear from our politics as distinct entities and be swallowed up in 
 one all-embracing Federal power. The States not only seem inclined 
 to allow, but in many instances are anxious voluntarily to surrender, 
 to the Federal Government the discharge of duties and the exercise of 
 powers and privileges reserved to them by the Constitution, especially 
 when the exercise of those powers involves the expenditure of money. 
 They are also to-day either soliciting or acquiescing in a degree of 
 Federal supervision over their domestic affairs that less than half a cen- 
 tury ago would have led to revolution had the Federal Government at- 
 tempted to force such supervision upon them. 
 
 Much of the Federal legislation now being enacted, especially that 
 creating new services in respect to the local affairs of the people, would 
 not twenty-five years ago have been tolerated by the States at whose 
 instance, through their Representatives in both Houses of Congress, 
 such legislation is now demanded. Even private interests, interests 
 entirely outside of State and Federal governmental functions are, 
 through the activities of the Federal bureau chiefs, aided by the people 
 of the States, seeking Federal legislative authority and Federal appro- 
 priations with which to develop local industries for the benefit of private 
 enterprise. 
 
 The recent surrender by the Southern States of the exercise of the 
 right reserved to them by the Constitution to maintain control, and 
 regulate local quarantine, primarily because of the expense incident to 
 the maintenance of an efficient State quarantine ; the practical surrender 
 to the Federal Government recently made by the State of Maryland of 
 sovereignty over her oyster beds, that the State might be relieved of the 
 cost of an accurate and necessary survey; the Federal inspection of the 
 products of private manufacturing establishments and the sanitary in- 
 
 1 Delivered May 30, 1907. Reported in the Congr. Record, May 16, 1908. 
 
CENTRALIZATION 777 
 
 spection and control of the establishments themselves; the Federal 
 inquiry into the physical, mental, and social conditions surrounding 
 women and child labor in all local industrial occupations, with a view 
 ultimately to securing national legislation to regulate domestic occupa- 
 tion ; the inspection of cattle, of insects, and of all agricultural products ; 
 the investigation of soils, in which the Federal Government has no in- 
 terest; the care and disposition of timber on State lands set aside by 
 the States as forest reserves; the actual breeding of horses and cattle, 
 primarily for the benefit of the few fancy stock raisers of the country; 
 the making of topographic and geological surveys of States in which 
 the Government does not own a foot of unoccupied mineral or agricul- 
 tural land; the making of topographic surveys of cities and counties, 
 primarily for the benefit of municipalities, private owners of water- 
 works, and interurban and other electric railways; the free testing of 
 coal by the Federal Government for the benefit of private owners of 
 coal mines to determine its quality in heat units and the best and most 
 economical utilization of the by-products; the free testing of building 
 materials for the benefit of private individuals, contractors, and con- 
 sulting engineers; the work of gauging streams that are nonnavigable 
 in States where the Federal Government owns no land and therefore 
 has no jurisdiction or control over the streams gauged, a work which, 
 as testified to by the former Director of the Geological Survey, is per- 
 formed for the benefit of municipalities and "primarily for the benefit 
 of prospective investors in water powers." These and many other 
 undertakings which belong exclusively to the States or private interests 
 to do and to pay for, but which have been authorized by Congress and 
 must be paid for from appropriations made from the Federal Treasury, 
 exceed the legitimate functions of the Federal Government as conceived 
 by the founders of our political institutions and as declared by them in 
 the Constitution of the United States. 
 
 To illustrate the unprecedented growth of Federal supervision and 
 control over the local affairs of the people at the solicitation or with the 
 consent of the States, I will call your attention to the extent of the 
 special agent and inspection service ten years ago and at the present 
 time. It is through this service that supervision and control over the 
 domestic affairs of the people is exercised by the Federal Government. 
 In 1896 the inspectors and special agents, including those employed 
 in the Treasury, the Post-office, and the Interior Departments, where 
 that service is legitimately employed in protecting the revenue, the 
 mails, and the public domain, numbered, all told, 160, and this service 
 cost the Government in 1896, in round numbers, $1,300,000. In 1907 
 we are employing an army of three full regiments of inspectors and 
 special agents 3,000 men and this service is now costing the Ameri- 
 can people about $9,000,000, while the full quota heretofore authorized 
 has not yet been appointed or appropriated for. The number of men 
 
778 AMERICAN FEDERAL GOVERNMENT 
 
 employed in this service in 1907 is therefore more than eighteen times 
 greater than in 1896, and the cost has increased about 700 per cent in 
 ten years. 
 
 We hear it said by some that whatever enters into or concerns inter- 
 state commerce and whatever affects the welfare of the people of more 
 than one State logically falls within the provisions of the National Gov- 
 ernment, and this is made the apology for such authorizations and ex- 
 penditures as I have referred to and for many other demands upon the 
 Federal Treasury which the Congress has not yet seen fit to grant. But 
 can you name a single important matter which does not affect the people 
 of more than one State ? Is there any phase of any great industry which 
 does not come within the scope of interstate commerce? In short, is 
 there any important private undertaking these days which can not upon 
 some such pretext be brought within control of the Federal power ? And 
 yet, my friends, this is the tendency of the times, the growth of which 
 during the last decade can be comprehended only by a careful analysis 
 of national legislation and the aggregate annual expenditures of the 
 Federal Government. If this tendency is not checked and the States 
 continue to surrender the exercise of their reserved powers, or fail to 
 exercise them in harmony with the interests of their sister States, then 
 the Federal Government, as a dernier ressort, may be compelled to assume 
 practical control over the States and the affairs of their people. In that 
 case, with the vast and varied local and national interests of a hundred 
 or a hundred and fifty millions of people, how long would it be before 
 the task of government would become so complex and the financial 
 burden so stupendous that of its own weight our splendid system of 
 government would fail? 
 
 I grant you that it is more difficult now than formerly to draw a line 
 between Federal and State authority, and between Federal and State 
 expenditures; but it is not an insurmountable obstacle to the continu- 
 ance of our dual system of government, nor should this difficulty be made 
 the pretext for the Federal absorption of the functions of the States in 
 respect to local self-government. But I would call your attention to 
 the fact, and endeavor to impress upon you the direction in which all 
 this is tending. The inclination on the part of the States to let the Federal 
 Government exercise the rights reserved to them is greatly weakening 
 the powers of the States. What is infinitely worse, it is weakening the 
 respect of the people for the authority of the States. It is also causing 
 the people to ignore and forget all those wise considerations which led 
 the founders of our Government to provide for local self-government 
 by reserving to the State all governmental powers not expressly con- 
 ferred by the Constitution upon the Federal Government. 
 
 It has been suggested that the reason for this practical change in our 
 system of government is to be sought in the imperialistic aggressiveness 
 of the party now in control of the National Government. But, my 
 
CENTRALIZATION 779 
 
 friends, let us not deceive ourselves with shallow reflections. The real 
 reason lies deeper than this. The tendency on the part of the States to 
 surrender the exercise of powers belonging to them and the willingness 
 of the Federal Government to assume such exercise, together with the 
 burdens incident thereto, is not peculiar to any political party nor to any 
 particular section of our country. It exists in all parties and in every 
 section of our fair land. Let him who doubts this statement examine 
 the record of the vote of the representatives of the people in the House 
 and the record of the vote of the representatives of the States in the Senate. 
 He will find that when there is a demand, either from the people or from 
 the States, for the authorization of a new Federal service, a service which 
 belongs to the States or to private interests to do, and an appropriation 
 from the Federal Treasury to pay for the same, there will almost always 
 be found in both Houses of Congress a majority composed of men of 
 all parties and from all sections of the country who do not even pause 
 to inquire whether the proposed authorization and expenditure falls 
 within the legitimate function of the Federal Government. Their only 
 concern is whether the revenues will be equal to the consequent increased 
 appropriations; and even this consideration has but little weight, espe- 
 cially if their State or any of their people are to be the beneficiaries. 
 
 The true reason, my friends, why the people are willing to let the 
 National Government perform and pay for so many things which properly 
 fall within the obligations of the States is found in the fact that they do 
 not realize that they are themselves paying for the things which the 
 National Government pays for. The Federal revenue is secured by 
 indirect taxation, while the money in the treasuries of the several States 
 is secured by direct taxation upon the property of the people. 
 
 When any State increases its appropriations for any purpose, every 
 legislator knows that that means an increase in the direct tax upon the 
 people. Moreover, he knows that the people know this and that they 
 watch with zealous care the tax rate which they must pay in cash from 
 their own pockets. The legislator is slow to expose himself needlessly 
 to the criticism and disapprobation of his constituents. Therefore needed 
 legislation is postponed because of the expense it involves, and the 
 Federal Government is appealed to, whenever possible, through the 
 President, through the people's Representatives in Congress, and through 
 the various Departments and bureaus of the Government. From my 
 experience I can say that the Departments and bureaus of the Federal 
 Government are at all times eager to enlarge the sphere of their activities 
 and powers by taking on new services and securing increased appropria- 
 tions. When popular demands are strong enough and it has become 
 obvious that the States will not severally or jointly undertake obligations 
 belonging to them, though seriously needed, the experience of the last 
 ten years shows that the Federal Government, through its legislative 
 
780 AMERICAN FEDERAL GOVERNMENT 
 
 and executive departments, is only too willing to undertake such re- 
 sponsibilities and relieve the States of the burdens they involve. 
 
 My friends, our dual system of Government is threatened to-day by 
 the tendency of the States thus to put upon the National Government 
 the burden of administering their local affairs, and this tendency is 
 constantly increasing as the result of the failure on the part of the States 
 to perform their functions of local self-government, and in this failure 
 they are encouraged by a sentiment created by the press of the country, 
 teaching the people to believe that if the State legislatures do not act, 
 "the question as to whether such legislation belongs in the field of the 
 Federal Government will sink to a purely academic question." 
 
 I do not plead for States rights. I plead for the right and the duty 
 of the Federal Government to protect itself and its Treasury against the 
 encroachments of the States and private interests upon its powers, its 
 duties, and its revenues. Where will this tendency end? To what re- 
 sult, think you, does it naturally and inevitably lead ? Whither are we 
 going in this centralization of Federal power and mutilation of local self- 
 government ? I lay no claim to prophetic powers, but I bring to you the 
 thought of many of the ablest men in the public service to-day, when I 
 say that we are unconsciously drifting toward a highly organized, bureau- 
 cratic form of Federal Government, such as has become the bane of 
 most of the Old World governments of Europe. We are, either con- 
 sciously or unconsciously, being drawn away from the simple and sub- 
 lime ideals of local self-government, which not only gave shape to, but 
 enabled us to adopt, the Constitution and have given unique significance 
 to our political history up to the present time. 
 
 The remedy for this tendency, which we can not much longer look 
 upon with indifference, lies in the simple application of the golden rule 
 by each State to itself. 
 
 The only possible remedy lies in each State taking upon itself the 
 burden of enacting all needful legislation and administering its own 
 affairs within the rights and powers which it possesses, and in each State 
 so legislating and administering its affairs that other States may do like- 
 wise without injury to any. The individual State should not only rise 
 to the legislative needs of its own people in respect to local self-govern- 
 ment, but should also consider what is deemed needful for the people 
 of other States and act accordingly. Unless this is done, unless the States 
 can thus join hands in the wise discharge of all the obligations devolving 
 upon them under our dual form of government, it is inevitable that some 
 of the fundamental features of our present system of government must 
 sooner or later be abandoned. For it is certain that a people, believing 
 as we do in self-government, will not long tolerate a condition of affairs 
 in which the States fail either to exercise the rights reserved to them for 
 the benefit of their own people or to exercise these rights in harmorty 
 with each other and for the best interests of all. 
 
CENTRALIZATION 781 
 
 It has been said by a member of the Senate of the United States that 
 such unity and harmony between the States is not possible ; that it can 
 not be attained without the interference of the Federal Government. 
 This may be true; but, my friends, no such doubt entered the minds 
 of the makers of our Constitution, or was ever expressed by them or by 
 anyone else until within the last decade. They had supreme confidence 
 in the power of the States to legislate in harmony with and for the best 
 interests of the country as a whole. If their confidence was unfounded, if 
 we must, with the further development of our industries, our commerce, 
 and our political institutions, fall back upon the strong arm of the Federal 
 Government to support and sustain us, then must the political signifi- 
 cance and importance of our State boundaries become less with time and 
 the splendid conception of local self-government, which has guided and 
 restrained our lawmakers heretofore, be proven a failure. 
 
 The vital question, therefore, which confronts the American people 
 to-day is, whether our dual system of government, in the form conceived 
 and established by its founders, is ultimately to be wrecked upon the 
 rock of a highly centralized bureaucratic Federal authority, or whether 
 it can endure in the form originally created as the nation moves on to 
 greater heights of development in industry, in wealth, in power, and in 
 international influence. 
 
 Here, then, let us renew that high resolve, uttered upon this spot forty- 
 four years ago, by the immortal Lincoln, that this Government "of the 
 people, by the people, and for the people," in the form in which it was 
 conceived by the founders of the Republic, in the form that has made 
 us superior to all governments in the past, in the form for which brave 
 men laid down their lives upon this and many other historic battlefields, 
 shall not perish from the earth. 
 
 FROM AN ADDRESS BY REPRESENTATIVE J. S. 
 WILLIAMS, ON "FEDERAL USURPATION" 1 
 
 EVERY governmental abuse is based upon some plea or pretext and the 
 usurpation of power by government is generally based upon "necessity," 
 the tyrant's plea. This real or fancied necessity generally grows out of 
 war. This has been especially true with regard to legislative and execu- 
 tive usurpations by our Federal Government. Real or fancied war 
 necessities are and ever will remain the chief pretexts for Federal usurpa- 
 tion. Amidst the universal plaudits which he has received and deserved, 
 there are few people left ungracious enough to give sufficient emphasis 
 to the part which Abraham Lincoln and his Cabinet had in changing 
 the spirit, if not the form, of the American Government. The doctrine 
 
 1 Delivered before the American Academy of Social and Political Science. Reported 
 in the Congr. Record, June 3, 1908. 
 
782 AMERICAN FEDERAL GOVERNMENT 
 
 of "war powers " came into being, and after war had passed and peace 
 had come the usurpations following from the exercise of the so-called 
 "war powers " furnished precedence for their continuance and for other 
 usurpations like them. As has always been said inter arma leges silent; 
 there are undoubtedly certain powers which have been recognized to 
 belong to all governments with forces operating during war in the field 
 and in the enemy's country beyond those which are conceded to the same 
 governments at peace and at home. 
 
 During the war between the States the Executive first asserted and 
 Congress afterwards attempted to confer upon the Executive the right 
 to suspend habeas corpus, not only in the territory which was within the 
 boundaries of the Confederacy, but in the States which had remained 
 in the Union. Things went so far that the writ of habeas corpus was 
 suspended on the order of a lieutenant-general, acting under general 
 authority conferred by proclamation of the President. 
 
 The Secretary of War and the Secretary of State, on bare orders, based 
 upon no affidavit even, much less indictment, arrested and confined 
 citizens of the loyal States and spirited them off to prison. Federal 
 marshals and police did the same thing. All this, too, prior to the act 
 of March 3, 1863, whereby Congress attempted to confer the power and 
 the right to suspend the writ of habeas corpus, a power vested by the 
 Constitution, according to all judicial construction, in Congress alone. 
 Under a proclamation of the President, amongst the classes to be thus 
 treated were described those who "magnified the resources of the enemy" 
 and those "inflaming party spirit among ourselves." It seems almost 
 incredible now that men could have been taken out of their beds at night 
 and carried away to prison, without even affidavits, by ignorant marshals, 
 who determined for themselves the questions whether or not those seized 
 and imprisoned were guilty of disloyalty, especially when disloyalty was 
 defined in such vague terms as "magnifying the resources of the enemy," 
 "underrating our own," or "inflaming party spirit amongst ourselves." 
 
 Fortunately for the future of our republican institutions, in December, 
 1866, in the case of ex-parte Milligan (4 Wallace) the Supreme Court 
 pronounced these proclamations of the President unconstitutional and 
 the act of Congress so, except in so far as it was in its provisions "con- 
 fined to the locality of actual war " and not elsewhere, and to places 
 "where courts are not open." 
 
 There are those who believe that the branch of the Government most 
 guilty in the field of Federal usurpation is the judiciary. This is not 
 true. Upon the whole, the courts have been a bulwark of protection for 
 the natural rights of the individual and for the reserved rights of the 
 States. Judicial usurpations which have been successfully accomplished 
 have not been a tithe of those which have been unsuccessfully attempted 
 by the Federal Legislature or the Federal Executive. The Ku Klux 
 act, which would have carried the Federal authority into every man's 
 
CENTRALIZATION 783 
 
 home within the States in the enforcement of ordinary criminal law; 
 the civil rights act, which usurped to the General Government nearly 
 all of the police powers of a State and the control of the social affairs 
 of the citizen, are illustrations of attempted Federal usurpations set aside 
 by the courts. 
 
 During the period immediately after the war between the States Con- 
 gress fought most viciously against the courts, frequently attempting 
 by acts of Congress, and sometimes successfully, to prevent appeals to 
 the Supreme Court of the United States. A book might be written, and 
 a very interesting one, too, upon usurpations flowing out of the civil war 
 and out of the supposed necessities of a reconstruction of the Southern 
 States. 
 
 Some of the usurpations that owe their real existence to the civil war 
 still remain to plague us ; for example, the legal tender case. The Con- 
 stitution deprived the States of a power which was inherent in their 
 sovereignty, but which had been found to be greatly abused to emit 
 letters of credit and issue paper currency. Hamilton himself contended 
 that not only was this power not granted to the Federal Government, 
 but that in spirit it was actually prohibited to it. Nobody ever did, or 
 does now, doubt the right of the Government to issue a note as evidence 
 of indebtedness when it has not the money wherewith to pay. But 
 nobody up to the civil war had ever, for one moment, dreamed that the 
 Government had a right to levy a forced loan upon the people by making 
 its notes a legal tender for the payment of debt. This legacy, however, 
 is not justly attributable to the judiciary, but to the President and the 
 Senate. You are familiar with the manner in which this result was ar- 
 rived at. After a first decision by the court declaring the legal-tender 
 act unconstitutional, the addition of a new judge to the number on the 
 bench and the appointment of another new judge to fill a vacancy, 
 meantime caused by death on the old bench, accomplished a reversal. 
 
 It requires no imagination, but a plain survey of the field only, to 
 realize what an immense capitalistic and centralizing influence the 
 judicial construction into the Constitution of this power which was 
 never granted the power to make of Government notes a legal tender 
 to take the place of gold and silver has vested in the Federal Govern- 
 ment. 
 
 John Marshall, in the case of McCullough against Maryland, had 
 early in the history of the country upheld the power of the Federal Gov- 
 ernment to charter a national bank of issue, although a proposition in 
 the Constitutional Convention to confer such power had been expressly 
 offered and expressly voted down. The opinion in the case upheld the 
 bank as a "fiscal agency" of the Government, and as such it was declared 
 that it could not be taxed by a State, because such a power of taxation 
 would carry with it to one sovereignty the power to destroy the fiscal 
 agencies of another. And yet, long afterwards, when the law to estab- 
 
784 AMERICAN FEDERAL GOVERNMENT 
 
 lish the present national banking system, in order to strengthen the credit 
 of the Government and to increase the price of its bonds, carried a pro- 
 vision to tax State bank issues 10 per cent, it being admitted that this 
 tax was levied not for the purpose of revenue, but for the purpose of 
 stamping State bank issues out of existence, the court cavalierly flung 
 aside its former doctrine that one sovereignty could not tax out of ex- 
 istence the fiscal agencies or chartered instrumentalities of another, and 
 held, in substance, by sustaining the constitutionality of the 10 per cent 
 tax, that it could. The power to " issue 'money' directly to the people" 
 in the shape of legal-tender Treasury notes, and the power to confine 
 the function of bank-note issuance to national banks and to monopolize 
 its regulation have together given to the Federal Government that power 
 and influence over finance and business which make other usurpations, 
 whenever all three branches of the Federal Government are desirous of 
 making them, irresistible by the States or by the people thereof. 
 
 The early assertion by Congress of the power to levy import duties 
 not simply as taxes for raising revenue, but for the admitted purpose of 
 hothousing into prosperity at the common expense such industries as, 
 in the opinion of Congress, it is for the common interest and the general 
 welfare to hothouse, has given a whip handle, if not a mastery, over the 
 manufacturing interests of the country to the Federal Government. The 
 control of finance and of manufactures thus usurped, together with the 
 immense powers actually vested by the Constitution itself in the Federal 
 Government, under the treaty-making clause and under the interstate 
 commerce clause, constitute our Government of to-day a Government 
 stronger than any that Hamilton and his compeers ever dared attempt 
 to inaugurate in the Constitutional Convention stronger than 
 Marshall even ever dreamed of construing or wanted to construe into 
 existence. 
 
 This is true even when you consider alone the real power of Congress 
 under the interstate commerce clause when exercised honestly and gen- 
 uinely for the sole constitutional purpose of the regulation of interstate 
 commerce. When you consider the cases where this power has been 
 abused as a means to accomplish ends not contemplated by it, this con- 
 clusion is stronger. 
 
 What has been actually accomplished, however, by legislation regulat- 
 ing, or pretending to regulate, interstate commerce is nothing compared 
 to what is proposed. A brilliant young Senator from Indiana proposes to 
 control child labor within the States, through the interstate commerce 
 clause, by denying to products manufactured within a State interstate 
 transportation when produced by child labor, though employed in ac- 
 cordance with the laws of the State of their manufacture. If Congress 
 have power to do this, it has also power to say that no products shall 
 be carried in interstate commerce if produced where labor is employed 
 for longer than eight hours a day. If it have the right to do either, it has 
 
CENTRALIZATION 785 
 
 an equal right to say that no man or woman shall travel upon an inter- 
 state passenger ticket who has been divorced according to State divorce 
 laws which do not meet with the approbation of Congress. 
 
 Early in the history of the country the story is told that the House 
 of Representatives sent to the Senate a bill to regulate and work certain 
 copper mines, and Mr. Jefferson, in his playful but philosophical man- 
 ner, said that their method of deriving from the Constitution their power 
 was about this : Congress has a right to provide for the common defense ; 
 ships are necessary for the common defense; copper is necessary to 
 finish ships ; mines are necessary to be worked in order to get copper, 
 and, therefore, Congress has a right to work copper mines within the 
 States; and added that anybody who had ever followed the reasoning 
 in "the house that Jack built " could readily understand and would be 
 convinced by the argument. 
 
 By parity of Indiana Senatorial reasoning Congress might enact a 
 force bill under the interstate commerce clause, basing it upon the right 
 of Congress to say what should or should not enter into interstate com- 
 merce as freight or as passengers. It might, therefore, say that any man 
 elected to Congress unless elected in accordance with a certain law 
 passed by Congress, should not be permitted to travel in interstate com- 
 merce, and therefore should not be permitted to leave his State and 
 come to Washington to take his seat as a Representative. I know, of 
 course, that the reductio ad absurdum is not the safest of arguments, but 
 it sometimes makes things ridiculously clear. 
 
 Add to all this power over finance, banking, commerce, manufactures, 
 the immense spread of the activities of the Department of Agriculture. 
 It is furnishing seed to the farmers, it has established a stock farm in 
 one of the States for the purpose of breeding "a standard national 
 horse," and the right is about being asserted of entering into a State, 
 with or without its consent, to construct roads not only between the 
 States, but within the States. With their construction will come the 
 assertion of the right to control, if not to police them. 
 
 The undoubted right of Congress to so regulate interstate commerce 
 as to stop the spread of disease by it, from State to State, amongst men, 
 animals, or plants, is as yet being driven only to its utmost, but will 
 finally be driven beyond its utmost, legitimate application. That the 
 operations of the great Department of Agriculture are beneficent there 
 can be no doubt. The few millions appropriated each year for that 
 Department accomplish more good than ten times as many millions 
 appropriated for some other purposes. 
 
 But it does not follow that, because a given work is wise and beneficent 
 the Federal Government has the right, or even by amendment to the 
 Constitution should have the right, to do it, nor does it follow that be- 
 cause the Federal Government does beneficently carry it on, that it could 
 not have been carried on quite as beneficently by the States, if the Fed- 
 
 50 
 
786 AMERICAN FEDERAL GOVERNMENT 
 
 eral Government had stayed out of the business. In connection with 
 agriculture, for example, I for one believe that if the Federal Govern- 
 ment had never undertaken to do anything at all with it the general 
 condition of. agriculture in the country would yet have been quite as 
 good as it is, perhaps better, because then the States would have estab- 
 lished magnificent agricultural departments, with experimental stations, 
 training schools, and all that ; wo'uld have vied with one another, from 
 New York to California, in doing the work, each actuated by the motive 
 of excelling others in the prosperity to be brought about by improving 
 the basic art agriculture. Those taught to lean upon others for sup- 
 port forget how to lean upon their own backbones. 
 
 The Department wants the Federal Government to go further yet 
 and to inaugurate and maintain in the States technical, agricultural, 
 and manual training schools, with what measure of Federal control it 
 has not thus far seen fit to indicate. 
 
 Take, as the next illustration, the gradual assumption of power to 
 the Federal Government in connection with works of irrigation. That 
 Congress has a right to irrigate the public lands so as to make them val- 
 uable and so that the proceeds of their sale may inure to the interest of 
 all the people there can be no doubt. Growing out of this right Congress 
 has taken hold of the work of irrigation everywhere, on private lands as 
 well as on public domain. It has added to that the kindred subject of 
 drainage, because, undoubtedly, if Congress have power to put water 
 on lands outside of the public domain, it has an equal power to take 
 water off of lands outside of the public domain. The departmental 
 work does not seem to have received even a momentary check from the 
 decision of the Supreme Court in the great case of Kansas against Colo- 
 rado, in 206 U. S., where the court says, after examining in detail all the 
 enumerated grants of power to Congress, that "no one of them, by im- 
 plication, refers to reclamation of arid lands." 
 
 In some cases where Congress has usurped power and where the 
 courts have subsequently set aside the acts of Congress as unconstitu- 
 tional the wrongs perpetrated under the acts have been perpetuated. 
 Retaining in the Federal Treasury the money received under the "cap- 
 tured and abandoned property act " is an instance in point. After the 
 general amnesty proclamation of the President, it became evident that 
 the money lying in the Treasury from the sale of "captured and aban- 
 doned property," would have to be restored to the Southern people who 
 had owned it. A rider on an appropriation bill of July 12, 1870, under- 
 took to annul, and Congress, by refusing to appropriate the money out 
 of the Treasury, practically has annulled the subsequent decision of 
 the court to this effect. Millions of dollars are now lying in the Treasury 
 accumulated there under this act of Congress, which the court subse- 
 quently held to be a special fund to be repaid to the owners of the prop- 
 erty. There is no way of getting it out, however, because, as the court 
 
CENTRALIZATION 787 
 
 properly says, it requires an act of Congress to appropriate money once 
 covered into the Treasury out of it again. Here is a case where Federal 
 legislation has been adjudged invalid and unconstitutional, and yet 
 where the people injured by the usurpation have suffered the effect of 
 it until they died and where their heirs or assignees are suffering yet. 
 The money in the Treasury derived from the cotton tax, and still kept 
 there, is another instance almost in point. 
 
 I have referred to the war between the States as a source of much 
 Federal usurpation. The Spanish-American war might be referred to in 
 the same connection. The Constitution of the United States provides 
 for the separation of the judicial, executive, and legislative func- 
 tions. In the Panama Zone the Executive alone has been and is exercis- 
 ing not only executive, but legislative functions. When a resolution was 
 introduced into Congress, and passed by it, asking "under what authority 
 of law " the President was doing this, the answer came that it was 
 under authority of certain acts of Congress, their dates being recited, 
 and under authority of a treaty with the so-called " Republic of Panama," 
 as if either an act of Congress or a treaty could confer upon the Execu- 
 tive the right to exercise judicial or legislative powers, in the teeth of 
 an express constitutional prohibition of their consolidation. 
 
 Our experiment with schemes of crown colonialism in the Philippines 
 now, and for a while in Porto Rico, was so stupendously alien to the 
 spirit of all our institutions as to be at once horrible and amusing. De- 
 partment law clerks sent out as proconsuls are learning in the Philip- 
 pines and in Cuba to-day lessons which will return to vex the Republic 
 at home. You need not expect that what is learned there will be for- 
 gotten here. In Rome the Imperator was first a field officer in Gaul or 
 Asia or in other conquered territory. Then there came the exercise of 
 powers as Imperator in Rome itself. Marius and Sulla as well as Julius 
 Caesar were virtually emperors long before Augustus Caesar had 
 founded what we now call the " Roman Empire." 
 
 Peace is important to all peoples. I sometimes think that two-thirds 
 of the energies of all the statesmanship in the world might be profitably 
 employed in the maintenance of peace throughout the world. But if 
 important to other peoples, it is doubly so to us with our peculiar dual 
 government, the balance of which is so nicely adjusted and so vital and 
 which is always shaken by the sequelae of war. We never know before- 
 hand what these sequelae are going to be. You hear much of "the 
 horrors of war." The greatest of all these horrors is the murder of 
 free institutions, and especially of local self-government, the only pos- 
 sible field for development of individual manhood. 
 
 The spirit of absolutism necessary to crown colonialism will be found 
 to be contagious. Accustomed to it in all its spirit in our daily adminis- 
 tration of colonial affairs, the public will gradually become accustomed 
 to the insidious introduction of its features at home. No free govern- 
 
788 AMERICAN FEDERAL GOVERNMENT 
 
 ment can successfully control alien and unassimilable peoples, except 
 by the violation of the fundamental principles of free government itself. 
 Our forefathers recognized this when they placed the Indian tribes on 
 the footing of foreigners, to be dealt with by treaty. 
 
 The mailed fist, well exercised to its task, is dangerous, ultimately, to 
 liberty of citizens much more than it is even to subject peoples. The 
 system will some day drag down England herself by the exhaustion of 
 her sons and her revenues in maintaining her hold upon India. The 
 inauguration by us of the system in the Philippine Islands, unless once 
 we have the good sense to put the people of the archipelago upon their 
 own feet, teach them to stand alone, and leave them standing after- 
 wards, will have the same effect for us in the long run. It is even now 
 furnishing the excuse of great armaments, naval and military, and the 
 Philippines constitute to-day the one point of unnecessary and unnat- 
 ural contact out of which great wars may, if not must, ensue. 
 
 These Federal usurpations are going on not only through the Execu- 
 tive and the legislative, but, insidiously, gradually, unmarked, by 
 bureaucratic operation, through the administrative rulings of the Gov- 
 ernment. Charles I lost his head and James II his throne because of 
 executive and administrative suspensions of acts of parliament. The 
 American people have become so accustomed to the suspension of laws 
 by mere nonenforcement by the Executive, or some obscure bureaucrat 
 under the Executive, that you perhaps could not excite real alarm in 
 the minds of five men by a full recital of them all. The Executive sits 
 in judgment every day on the wisdom of statutes. 
 
 Mr. Shaw while Secretary of the Treasury took money already covered 
 into the Treasury, and under the guise of depositing it virtually loaned 
 it to such banks as he chose without interest. This notwithstanding 
 Article I, section 9, clause 7, of the Constitution, which says: "No 
 money shall be drawn from the Treasury but in consequence of appro- 
 priations made by law." 
 
 The same Secretary of the Treasury quietly construed the disjunctive 
 "or " in a law passed by Congress to have the meaning of the conjunc- 
 tive "and," so that when Congress had by law said that those receiving 
 deposits of public money not deposits of money already covered into 
 the Treasury, remember but deposits of money collected from internal 
 revenues and not yet covered into the Treasury should deposit as 
 security United States bonds "and" other bonds, that it meant "or" 
 other bonds. Upon this he quietly issued a ukase to the effect that he 
 would receive such securities as "complied with the savings-bank laws 
 of New York and Massachusetts," and would dispense with the deposit 
 of United States bonds altogether, in his discretion. The discussions in 
 Congress at the time that the law under whose alleged authority he 
 acted was passed show the reasons for the original act. People forget 
 now that there was a time when United States bonds were not at par. 
 
CENTRALIZATION 789 
 
 It was wise, therefore, upon the part of Congress to provide originally 
 that the Secretary of the Treasury might require other security as 
 additional to that of national bonds in order that the security might 
 always be equal in par value to the money loaned. I need not dwell 
 upon the total torturing of the original meaning by the Secretary's 
 decision. Secretary Cortelyou ruled later on that, under the provisions 
 of a law permitting the issuance of Treasury certificates "when neces- 
 sary to meet public expenditures," he was enabled to issue these 
 certificates to get money in order to help the banks by free loans in 
 a panic. 
 
 An administrative board of the United States, engaged in the business 
 apparently of seeing to it that due "protection " is rendered to "Ameri- 
 can industries," and finding that there was no tariff on frog legs, which 
 were being imported into our territory to the detriment of the great 
 American industry of bullfrog raising, gravely ruled that they were tax- 
 able under the clause which put an import duty upon dressed poultry. 
 
 What has been accomplished in the way of Federal usurpation by 
 the National Legislature and Executive and either set aside by judicial 
 authority or left to stand and stay to plague us yet does not constitute 
 a tithe of what we are to expect if some recent utterances by great and 
 popular men are to be taken at their face value. 
 
 The President in his Harrisburg speech, delivered in the month of 
 October, 1906, says: "In some cases this governmental action must be 
 exercised by the States. In others it has become increasingly evident 
 that no sufficient State action is possible, and that we need through 
 Executive action, through legislation, and through judicial interpreta- 
 tion and construction, to increase the power of the Federal Government. 
 If we fail thus to increase it we show our impotency." 
 
 Mark the language. "We need that is the old familiar tyrant's 
 plea necessity." To do what? To "increase" the "power of the 
 Federal Government." The very verb "increase" is the President's 
 word and is a confession that the Federal Government does not now 
 possess the powers desired to be annexed a confession, therefore, of 
 deliberately contemplated usurpation. And to increase power how? 
 Not by amending the Constitution, even though we had to amend the 
 amendatory clause in order to make the work of amendment easier, but 
 "by Executive action," and, "by legislation," both of them necessarily, 
 if there be an "increase " of power, violative of the constitutional limi- 
 tations upon "Executive action," and upon Federal legislation. It can 
 not be too often repeated that this is true, or else the word "increase " 
 would not have needed to be used. And third, and more insidiously 
 still, by express executive injunction there should be and must be 
 "increase " by judicial interpretation and construction. By the Soul 
 of all Insidious Revolution ! Mark the quoted words well in your 
 memories ! 
 
790 AMERICAN FEDERAL GOVERNMENT 
 
 Secretary Root, in his New York speech in December, 1906, evidently 
 following up a deliberately laid scheme and purposely supplementing 
 the President's speech in Harrisburg in October of that year, uses this 
 language: "Sooner or later constructions will be found to vest power 
 where it will be exercised, in the National Government." Secretary 
 Root is a lawyer. He knows what the verb "vest " means. His lan- 
 guage is to "vest power." "Vest" means to give to deposit a new 
 power, not to apply an existing one to new conditions. His ground and 
 excuse and reason for "vesting " it is that it must be "placed " where it 
 will be "exercised." The necessary inference is that it is now vested or 
 placed in the States and that they ought to be divested of it, because they 
 do not "exercise" it. His method of "vesting" power again is, like 
 the President's method of "increasing" it, not by amendment to the 
 Constitution, whereby the people themselves can redistribute the powers, 
 which are theirs, and which they originally distributed between our dual 
 sovereignties, but by " constructions " which are to be "found! " 
 "Found " by whom? By the very men who are to exercise the powers 
 construed into being by being "found." 
 
 An American citizen does not take an oath of allegiance to any gov- 
 ernment. His oath of allegiance is to the Constitution. Every officer 
 who serves the Federal Government, from the President down, whether 
 he be Cabinet officer, judge, Senator, or Representative, takes this oath. 
 It is now proposed that the Executive officers of the Federal Govern- 
 ment shall " vest " power in themselves " by construction," to be 
 "found," and that they shall "increase " their power "through Execu- 
 tive action." Think of it ! And yet in all this broad land no hint or 
 suggestion of impeachment ! 
 
 This method of amending the Constitution does not require a 
 two-thirds majority in each House nor three-fourths of the States in 
 confirmation of it. It is easy. It requires nothing but momentary 
 forgetfulness of an oath registered in the chancel of God. It is not 
 dangerous. It may, perhaps, even be applauded, if the thing sought 
 to be done be popular with the populace. 
 
 What is more, the President proposes to "make good" a phrase 
 he is fond of. I have not time to refer to all the circumstantial evidence 
 in support of this statement, but run over in your minds recent history 
 - Root's part in it in the Philippines ; the acts of our proconsular 
 agents; the present condition of things in the Canal Zone, and the 
 frequent chidings by the President of the Federal judges where they do 
 not decide to suit him, showing a purpose of bending and warping the 
 personnel of the Supreme and other Federal courts to an incorporation 
 of his policies, where unconstitutional, by "judicial construction," as a 
 part of the authority of the Federal Government. No lawyer not enter- 
 taining an opinion favorable to these policies can go upon the bench 
 unless he succeeds in fooling the President or unless the President fools 
 
CENTRALIZATION 791 
 
 himself as to his legal opinions. Daniel Webster was right when he said 
 that " the judicial power can not stand for a long time against the Execu- 
 tive power." The present President has already during his tenure of 
 office appointed one-third of the Supreme Court and over one-half of 
 the subordinate Federal judges. 
 
 Judges on the district and circuit bench, although they hold their 
 offices " during good behavior," feel ambition like other men and would 
 like to fill vacancies upon the Supreme Bench, as they arise. They can 
 pursue no course better calculated to bring about that result than to 
 let it be known by their decisions as subordinate judges that they share 
 the President's opinions, and among others, perhaps chiefly, his opinion 
 of the rightfulness of " increasing" Federal power " by construction." 
 
 The difficulty of amending the Constitution is the excuse at heart for 
 most Federal usurpations, this with and even more than, the alleged 
 "inaction of the States." It was well that at the beginning the practice 
 of amendment should have been made extremely difficult. The thing 
 was to put the Government upon its feet and " teach it to march," as 
 the French say ; to stop experiments with the framework until the peo- 
 ple had become accustomed to it. We have reached the point now where 
 there are many amendments that ought to be made to the organic law; 
 first, because they are highly beneficent in themselves; secondly, be- 
 cause we want to do away 'with this excuse and pretext of usurping 
 power "in order to do good." It has been said that the Federal Con- 
 stitution can not be amended except as the result of some great cata- 
 clysm, or foreign or civil war. It is true that it is very difficult, indeed, 
 to amend it so difficult as to be, under ordinary circumstances, al- 
 most impossible. If you have a system which is too difficult of legiti- 
 mate change, you therefore invite illegitimate change or usurpation. 
 
 Changes by amendment. The first clause in the Constitution that 
 ought to be amended is the amendatory clause itself. Amending the 
 Constitution ought to be difficult, but not so difficult as it is now. It 
 would seem that to require a majority of 10 per cent over one-half in 
 each House, voting for two successive Congresses to submit an amend- 
 ment, would be a requirement sufficiently difficult in the initiative. 
 This would require at present 51 Senators and 215 Congressmen, and 
 as that vote would be required in two successive Congresses, the scheme 
 would give the people time to think between the two Congresses and 
 an opportunity to pass upon the proposed amendments tentatively 
 when they came to elect the Members of first Congress after the one 
 proposing the amendment. If to this were added that the proposed 
 amendment should not become a part of the fundamental law unless 
 it shall be ratified both by a majority of the people and by a majority 
 of the States, the practice of amendment would not be rendered so easy 
 as to lead to many propositions of amendment, and still would be made 
 easy enough to encourage a hope upon the part of those who wish to 
 
792 AMERICAN FEDERAL GOVERNMENT 
 
 preserve our institutions, that they need not be destroyed because of the 
 very organic difficulty of changing them. 
 
 // is not, however note ye well in this way that either President 
 or Secretary proposes to go about the introduction of reforms or a re- 
 distribution of governmental powers. It is not proposed that it shall 
 be done deliberately by amendment upon the initiative of the National 
 Legislature and by the confirmation of the people in the States, but that 
 powers are to be " vested" in the Federal Government, and the Federal 
 Government, and that Federal powers are to be " increased" by " con- 
 structions," which are "to be found;" and by "Executive action" and 
 "by legislation" and by a judicial reading into the instrument of that 
 which is confessed, by the very language used, not to have been written 
 into it. 
 
 There has been a recrudescence of federalism here lately alarming 
 in its proportions. We begin to hear a great deal once more about 
 "inherent powers," about "powers ordinarily exercised by sovereign 
 nations," and therefore, as it is claimed, to be exercised by the Federal 
 Government and about affairs of "national concernment." This latter 
 phrase would include murder, theft, divorce almost everything per- 
 taining to morals or health. The President talks about court decisions 
 which have left "vacancies," "blanks" between Federal and State 
 powers, and wants these vacancies and blanks filled, occupied "by 
 Executive action," by "legislative action," and "by judicial construc- 
 tion." How absurd ! No decision of any court could possibly have 
 ever left a blank or a vacancy between the powers to be exercised by 
 the Federal Government and the powers to be exercised by the States. 
 The moment the court decides that a given power is not one of those 
 granted to the Federal Government, either expressly or by proper and 
 honest implication, that moment the court has decided e converse that 
 it is a power reserved to the States or to the people by virtue of the tenth 
 amendment. 
 
 Much has been written about what is meant by the phrase "or to the 
 people" in this amendment. In my mind it is clear; the powers not 
 delegated are reserved either to the States or "to the people "/or redis- 
 tribution, as they may choose, by amendment of the Constitution. Both 
 State and Federal governments are their servants, not their masters. 
 The people of the United States, acting within their respective States, 
 have reserved the right of further distribution of governmental powers. 
 Again, individuals have also certain natural and inalienable rights, to 
 which reference is likewise made in the phrase. These are by nature 
 "reserved to the people," as individuals, as rights not to be touched 
 either by State or by Federal Government by any governmental or 
 political agency whatsoever. That man does not understand the nature 
 of American institutions who thinks that arbitrary and unlimited power 
 is vested anywhere under our system, even in a majority of the people 
 
CENTRALIZATION 793 
 
 themselves, acting through any government or of themselves. There 
 are things which under our system a majority can not do, whether they 
 are right in their opinion to be done or not; thus high was the sacred- 
 ness of individuality held by our forefathers ! 
 
 I was talking a moment ago about the influence of the Executive over 
 the judiciary quoted Daniel Webster to the effect that the judiciary 
 "could not long stand against the influence of the Executive" and 
 yet the spirit of the time is such that it has been gravely proposed in a 
 bill introduced in the House to make this influence still greater. That 
 bill, introduced on January 4, 1907, provides that the President may, 
 " whenever in his judgment the public welfare will be promoted by the 
 retirement of a judge," retire him and appoint somebody else, "with 
 the advice and consent of the Senate," who shall take his place in the 
 exercise of judicial functions. This would give to the President and 
 to the Senate of the United States absolute control over the judiciary. 
 
 Our executive department has carried the Root doctrine into its dealings 
 with Congress. Where Congress will not enact legislation that the 
 Executive wants and loses patience about, some administrative de- 
 partment construes it to exist. This was the case in the graded-age- 
 pension ukase, issued by the Commissioner of Pensions. A bill has 
 been pending in Congress to accomplish the precise result; Congress 
 would not pass it; the Executive, through the Commissioner of Pen- 
 sions, amid popular applause, construed it into existence. 
 
 When, later, it was proposed upon a general appropriation bill to 
 insert a clause enacting into law the graded-pension system thus pro- 
 mulgated, the point of order was raised that the motion could not under 
 the rule be entertained by the House when a "general appropriation 
 bill" was under consideration, because it was "contrary to existing 
 law." In other words, that the amendment containing the very lan- 
 guage of the ruling of the Commissioner of Pensions was confessedly 
 a change of existing law. This point of order was sustained. Sustain- 
 ing it was an admission of the fact that the Executive order had pro- 
 mulgated a new law that a branch of the executive had legislated. 
 If, on the contrary, the point of order had not been sustained, then the 
 very fact of the adoption of the amendment would have been a confes- 
 sion of the fact that Congress needed to act in order to make law/id that 
 which by Executive order had been promulgated. 
 
 Again, a treaty with Santo Domingo was pending before the Senate 
 of the United States which the Senate for a long time refused to confirm. 
 The Executive, being determined to have its own way, Senate or no 
 Senate, did, as a historical fact, for two years before the ratification of 
 the treaty by the Senate, execute the terms of the treaty. 
 
 Yet, again, the President at one time having a nomination of a cer- 
 tain South Carolina negro named Crum pending in the Senate, and the 
 session having come to an end without action on it, and thereupon an 
 
794 AMERICAN FEDERAL GOVERNMENT 
 
 extraordinary session having been called to begin at 12 o'clock on the 
 very day upon which the former session expired, Secretary Root and 
 the President between them construed into existence what they called 
 "a constructive recess" that is, that between the beginning of 12 
 o'clock and the end of the same 12 o'clock on the same day there had 
 been a " constructive recess," and that this being the case, the President 
 had a right to reappoint this proposed appointee during this so-called 
 " recess." He did reappoint him thus contrary to law, and the Senate 
 was subsequently coerced or persuaded to confirm him. 
 
 The logical inconsistency of public opinion in America was never 
 better shown than with regard to this incident. The President's con- 
 struction into existence of a " constructive recess" for the purpose of 
 saving his right of appointment aroused no indignation, although it was 
 the act of one man. He had, however, set a precedent which soon found 
 imitators. If there had been a recess, then Members of Congress were 
 entitled to mileage for the recess or, rather, the new session following 
 it. They therefore very logically, according to the precedent set by the 
 Executive (although of course very wrongfully, but no more wrongfully 
 than the President) voted themselves mileage for the "recess." 
 
 A storm 'of disapprobation from the throats of the people and the 
 columns of the newspapers swelled to heaven. The Senate voted the ex- 
 tra mileage out, and President, people, and all "congratulated the 
 country." The man who imagined the iniquitous thing and acted upon 
 it secured the result that he aimed at and was little, if at all, criticized. 
 The very Senate that voted extra mileage out of the law upon the ground 
 that there had been no constructive recess finally confirmed the ap- 
 pointee whom the President had hurled back at them upon the opposite 
 theory that there had been a constructive recess. 
 
 Franklin Pierce in a recent book, that ought to be taught in every 
 school and college where civil government is taught, a book entitled 
 "Federal Usurpations," from which I have drawn much for this speech, 
 says: "Social evolution progresses actually with the importance of the 
 citizen over the State and decreases in the proportion of the importance 
 of the State over the people." All these propositions of adding to the 
 powers of government by "Executive action" and "legislative action" 
 and "judicial construction" and "constructions to be found" leave 
 that great truth out of sight. I know of no people who have too little 
 government. We do not want an America like Sparta, where the State 
 was all and man was nothing. We want no Rome, even, where re- 
 sponsibility was so entirely devolved upon government that when gov- 
 ernment itself grew weak there was no initiative left among the people 
 even to resist invasion a herd of helpless sheep they were. 
 
 Our weight of political machinery is increasing all the time. Not 
 many years ago there were about 200 special agents in other words, 
 detectives and spies in the employ of the Government. There are 
 
CENTRALIZATION 795 
 
 over 3,000 now, taking the places of ordinary Government officials, 
 going up and down the land hunting up, by detective methods, viola- 
 tions of Federal statutes. A detective is like an expert in the medical 
 profession. He generally finds what he is seeking. God never made 
 a throat or a nose to suit a throat and nose expert; he never made a 
 pair of eyes to suit an eye specialist. The Department of Justice uses 
 a great many of these detectives. When you begin to inquire under 
 what authority of law, it is difficult to procure an answer. That Depart- 
 ment seems to borrow them from the Treasury Department. In other 
 words, they are detailed from the Treasury Department to do work 
 for the Department of Justice. The law appropriating for them in the 
 Treasury Department appropriates for them for certain express pur- 
 poses chiefly for ferreting out and procuring punishment of counter- 
 feiters and violators of the internal-revenue and customs laws. They 
 are being used for a hundred purposes peonage is the immediate fad ; 
 public-land stealing was the fad a few months back. In so far as special 
 agents are being used for the purpose of investigating trusts and bring- 
 ing them to book, there is express authority of law independently. 
 
 Judge George Gray well says in a recent speech that in Rome when 
 a Dictator was appointed, his instructions were "to take care that the 
 State receive no harm." This was a pretty broad authority. Mr. Bryce, 
 the author of "The American Commonwealth," a book which has done 
 much harm, seems to think from what he says that by a sort of construc- 
 tion or implication our Presidents, jn times of acute peril may, or must, 
 act on a like instruction. The present President does not seem to think 
 that it is necessary to wait for a time of acute peril, but that the instruc- 
 tion is good "for any old time." 
 
 When the New York constitutional convention adopted the Constitu- 
 tion of the United States, it adopted it with the proviso that there should 
 be no extension of power " by legal fiction." This was to prevent usurpa- 
 tion of Federal power by construction. How far the power of legal 
 fiction may carry a system of laws may be realized when it is remembered 
 that from the twelve tables of ancient Rome there grew up by construc- 
 tion and legal fiction the corpus juris civilis, and that from a lot of old 
 customs there grew up by court precedents the great body of our "com- 
 mon law," or lex non scripta. The only restraint that we have upon 
 Executive usurpation is judicial constraint and impeachment, and the 
 only restraint on judicial usurpation is the power of impeachment by 
 the House of Representatives before the Senate acting as a grand court 
 of impeachment. It requires two-thirds of the Senators to convict, and 
 the sole penalty is deprivation of office. 
 
 I shall not say much more, however, about judicial usurpation, be- 
 cause there has not been as much of usurpation by that branch of the 
 
796 AMERICAN FEDERAL GOVERNMENT 
 
 Government, either attempted or consummated, as by the other two. 
 Upon the whole, our judiciary has rather preserved the Constitution 
 from popular passion and impulse, from party spirit and sectional hate, 
 and in proportion as Congress and the Executive grow wilder, it sets 
 aside from year to year a larger and larger proportion of their acts. Dur- 
 ing the entire period before the civil war it had set aside only two or 
 three general acts. Just how many multiples of that number have, been 
 declared unconstitutional since I can not now say, but we have grown 
 accustomed to the Supreme Court's checking up Congress and the 
 President every now and then, and the prayer of every good American 
 is that it may do so "more and more unto the perfect day." 
 
 Yet even the judiciary has made some apparently queer decisions 
 lately. In Mankichi's case, which came up from Hawaii, there had 
 been no indictment nor any unanimous verdict of twelve men in our 
 constitutional sense a jury verdict against the prisoner, and yet the 
 Supreme Court affirmed the case upon the ground that the laws of 
 Hawaii, when annexed to the United States, had not required an in- 
 dictment and had made provision for a jury that did not find a verdict 
 by unanimity, but by majority. Upon what principle, the court arro- 
 gated to itself the right to say just which fundamental constitutional 
 principles should go with the Constitution to Hawaii simultaneously 
 with annexation, and which of those fundamental notions should remain 
 behind to go later or not at all presents a curious study. 
 
 The gradual growth of injunctions in Federal courts constitutes the 
 chief thing to complain of in connection with that branch of our Govern- 
 ment. Originally the equitable right of injunction was issued only when 
 the law remedy was inadequate because of damages immediate and 
 irreparable, and it did not apply to crimes. In Lennon's case (166 U. S.), 
 however, men were actually enjoined from refusing to haul cars of a 
 railroad and from leaving the employ of the railroad, while under the 
 charge of a receiver appointed by a Federal court, on the ground that 
 their quitting the employment " crippled the railroad's operation," and 
 I believe, if I remember correctly, also upon the ground that it interfered 
 with interstate commerce. This injunction was issued in spite of the 
 thirteenth amendment, which forbids "involuntary servitude except 
 from crime." 
 
 If everything that can be construed to be an interference with inter- 
 state commerce is to be taken as a just ground for an injunction, then a 
 man who shoots another riding on an interstate ticket from Philadelphia 
 to New Orleans would, as far as I can see, subject himself to Federal 
 judge-made penalties, instead of being simply tried by a jury for murder, 
 according to the laws of the State of the place where he committed the 
 murder. Even when United States penal statutes exist, where a man 
 can be arrested upon affidavit and rendered harmless, the Federal courts 
 still issue injunctions. 
 
CENTRALIZATION 797 
 
 The assertion of the power to inflict penalties for indirect contempts 
 constructive contempts, contempts committed out of the view of the 
 court punishments which carry deprivation of liberty and deprivation 
 of property without a jury trial is another abuse. 
 
 These things encourage a spirit of anarchy. 
 
 Every man, if possible, ought to have a trial by jury. 
 
 Injunctions are issued on ex parte hearing, on mere affidavits without 
 notice even to the defendant, and on reference of questions of fact to 
 one referee. Upon such evidence as that, and such findings of fact as 
 that, before any real trial, the enforcement of State laws, passed deliber- 
 ately by State legislatures and approved solemnly by State executives, 
 are enjoined. The plea generally is that the State law is "confiscatory." 
 Of course, when upon a hearing properly had, after due notice to both 
 sides, and a proper investigation of the facts, State legislation is found 
 to be really confiscatory, it must be set aside by permanent injunction, 
 as conflicting with the Constitution of the United States. But that is 
 not the question here ; the question is whether the temporary restraining 
 order issued ex parte upon mere affidavits and so-called ascertainment 
 of fact by a master in Chancery, very little acquainted with the subject- 
 matter and very little able to judge of it, should prevail to annul a State 
 statute. 
 
 Let us notice a tendency to usurp Federal power under the treaty clause. 
 Calhoun says that treaties are the supreme law of the land "provided 
 such regulations" (in treaties) "are not inconsistent with the Constitu- 
 tion." I quote Calhoun, because he went further than almost anybody 
 in maintaining the "plenary power of the Federal Government to regulate 
 our intercourse with foreign powers." 
 
 If the treaty attempt to treat concerning some subject-matter the regu- 
 lation of which is not delegated to any branch whatsoever of the Federal 
 Government, then that treaty is "inconsistent with the Constitution," 
 as being inconsistent with the purpose for which the Federal Govern- 
 ment was formed. If it attempt to treat of some subject-matter the regu- 
 lation of which is delegated to any branch of the Federal Government, 
 I care not which branch, I admit the "plenary power of the Federal Gov- 
 ernment" thereby exercised. That the treaty can give an alien equal 
 rights with the citizen, even within a State, concerning a subject-matter 
 that the Federal Government would otherwise not control I do not doubt, 
 but that it can give him superior privileges to a citizen I deny. If by 
 treaty with Japan, for example, California can be forced to admit Japan- 
 ese, or by treaty with China it can be forced to admit Chinese, to the same 
 schools with white children, then by treaty with Haiti or Santo Domingo 
 negroes from those islands could be admitted to the same schools with 
 white children in Mississippi, let us say, where native-born negroes, 
 citizens of the United States, can not attend white schools. 
 
 The President in a Massachusetts speech is quoted as saying: "States 
 
798 AMERICAN FEDERAL GOVERNMENT 
 
 rights ought to be preserved when they mean the people's rights, but not 
 when they mean the people's wrongs." 
 
 In God's name, who is to say what are the people's rights and what 
 are the people's wrongs ? If I undertook to answer the question, I should 
 say: " The people themselves." And then, if I were asked further how 
 they were to say it, or have said it, how they were to draw the line, or 
 have drawn it, how they were to prescribe the people's rights and pre- 
 scribe the people's wrongs, I would say in the fundamental organic law, 
 the Constitution of the United States and in the constitutions of the several 
 States, which are the prescribing voice of the people themselves, saying 
 both to the Federal Government as contra distinguished from the State 
 governments: " Within these boundaries thou must travel," and say- 
 ing to the State governments, the residua of governmental authority : 
 "Thus far and thus far only in the United States shall any governmental 
 authority over man ever go." 
 
 We are running mad. The latest proposition is to have a law for Fed- 
 eral registration of automobiles, on the ground that automobiles do 
 sometimes cross State lines. 
 
 It is proposed by the President to charter and by Mr. Bryan to license 
 corporations chartered by the States before they can enter into interstate 
 business. 
 
 The President's latest astounding proposition is to leave a branch of 
 the executive government to distinguish between "good trusts" and 
 "bad trusts," marking out one for a license to do business and another 
 for extirpation. What a campaign-contribution breeder that would be ! 
 How the combinations and trusts the present substantive law being 
 cunningly retained in the plan would run over one another in con- 
 trib.uting to the campaign funds of whichever party happened to be in 
 power, in order to bias the executive department of that party in finding 
 them "good" and not "bad!" 
 
 I have referred once before to administrative or bureaucratic usurpa- 
 tions of Federal power as being most dangerous of all, because most 
 insidious and least seen by the average citizen. I wish that some of you, 
 who have time to do it, would study the case, referred to by Franklin 
 Pierce, by Juy Toy, a Chinaman (reported in 198 U. S.), who was born 
 in the United States, went to China on a visit, and came back; was 
 sentenced to deportation as an alien by the Immigration Commission, 
 and whose sentence was affirmed by the Secretary of the Treasury. In 
 some way the poor devil managed to communicate with a lawyer and to 
 avail himself of habeas corpus proceedings. 
 
 The referee found Toy's statement that he was born in America to be 
 true. The case finally got to the Supreme Court. That court decided 
 that the question of fact as to whether he was or was not a native-born 
 citizen of the United States had been decided by an administrative tribu- 
 nal authorized to try it and that that finding was final and conclusive; 
 
CENTRALIZATION 799 
 
 in other words, that it made no difference whether, as a matter of fact, 
 Toy was a natural-born citizen or an alien, he was banished, and that 
 was all there was to it ! 
 
 It is not alone in connection with this case that the courts have held 
 that they could not take cognizance of the conclusions reached by ex- 
 ecutive and administrative tribunals and that no appeal to any court 
 would lie, but in other matters as well. 
 
 For example, the power at present reposed in the Post Office Depart- 
 ment when issuing fraud orders, although it has not as yet been as seri- 
 ously abused as it may be, is a power out of which the destruction of the 
 entire principle of the freedom of the press may flow, especially when 
 dealing through it with dangerous and unpopular classes. The Depart- 
 ment may to-morrow, if it choose, cut off the New York Times or the 
 North American Review, or Collier's Weekly from the right to be trans- 
 mitted through the mails, under a fraud order. If it chose to do so, 
 there would be no appeal to any court. It could furthermore, if it chose, 
 refuse by a fraud order to permit any mail to be delivered to either of 
 them or to me or to you. It could do this upon the report of detectives 
 in the Department, and perhaps the first we would know of it would be 
 from missing our mail. Moreover, upon complaint and inquiry as to 
 the exact point in which we had offended, the Department might further- 
 more return the answer that it was not "practicable to make reply" to 
 our inquiry. 
 
 Franklin Pierce, at any rate, quotes a case in the book to which I have 
 referred, where certain printed matter was excluded from the mail on 
 the ground of "obscenity." The Department was written to to specify 
 in what respect and how and where there was anything obscene in the 
 printed matter, and it is quoted to have replied that it was "not practi- 
 cable" to answer the inquiry. 
 
 It is not to the purpose to reply that the Department would not do 
 what I have supposed. That it might is a sufficient danger to human 
 liberty. 
 
 In the case of South Carolina against the United States (199 U. S.) 
 the Supreme Court says of our Constitution which, I repeat, is the 
 only sovereign in America except the people themselves acting in a 
 prescribed way while exercising the power to amend and change it the 
 Supreme Court says of that Constitution, that it "speaks not only in the 
 same way, but with the same meaning and intent with which it spoke, 
 when it came from the hands of its framers and was voted on and adopted 
 by the people." 
 
 That phrase ought to be memorized by every schoolboy who is study- 
 ing "civil government" in every public school. Whatever the British 
 constitution may be unwritten, not exactly definable the American 
 Constitution is an instrument of written, prescribed, fixed sentences, 
 phrases, and words, that do not dance about kaleidoscopically upon the 
 
800 AMERICAN FEDERAL GOVERNMENT 
 
 printed page, and bear different meanings to-day and to-morrow, but 
 mean just what they meant when they were uttered, although to-day, of 
 course, they may be applied to very many conditions and instrumentali- 
 ties that did not exist then. " Whenever an end aimed at is constitutional 
 then all proper means to that end are also constitutional." 
 
 The great Federalist judge himself, John Marshall, uttered those 
 words. The converse to that is not true, to wit, that whenever a certain 
 means is constitutional, therefore the legislative end aimed at is constitu- 
 tional. Congress has a right, for example, to regulate interstate com- 
 merce; but if the end aimed at be not in verity the regulation of 
 interstate commerce, but be the regulation of child labor, or manufac- 
 turing, or education, or the suppression of ordinary crimes within a State, 
 and the interstate commerce clause of the Constitution be resorted to 
 merely as a means to the accomplishment of one of these latter ends 
 which end is in itself unconstitutional then the thing sought to be 
 done is exactly the opposite of that which John Marshall said could be 
 constitutionally done. 
 
 One of the features most precious in our dual system of government 
 consists in the very fact that there are so many State governments, in 
 so many different climates, with so many different sorts of population, 
 so many different systems of agriculture, such diversities of pursuits and 
 occupation, of heredity and environment, that they enable our laws 
 through the instrumentalities of the State legislatures to be adapted to 
 the needs of the communities. Thus the States become great experi- 
 mental fields. South Carolina can experiment with a dispensary law. 
 If damage ensue, it is limited to South Carolina. 
 
 The people of the balance of the States can watch it without harm and 
 learn lessons ; find out if it is to be imitated or if it is to be avoided. If 
 Oklahoma wants to make an experiment of governmental guaranty of 
 bank deposits, the balance of the Union can watch the experiment with 
 interest and with profit; without loss no matter how it turns out. If 
 Oregon wishes to try the experiment of initiative and referendum, the 
 same observation is applicable. All of us can watch the experiment of 
 woman's suffrage in Colorado and some day imitate it or else learn to 
 avoid it. And so with infinite diversity of surroundings and influence, 
 with* emulation existing between localities, the Federal Government 
 does not need to experiment. In other lands experiments, if harmful, 
 are not national hurts. 
 
 The very maxim, U E pluribus m unum" is a Federal maxim. We must 
 preserve not only the "one," but we must preserve, with equal care and 
 jealousy, the integrity of the "many" governments which constitute our 
 system an "indissoluble union of indestructible States" a "Re- 
 public of lesser republics." 
 
 May God grant that Jefferson prove right and Macaulay prove wrong, 
 and that this constitutional, democratic, representative, Federal Republic 
 
CENTRALIZATION 801 
 
 of ours prove not a failure, as it assuredly must prove, if individual self- 
 government based on the "self-denying ordinance of a majority" the 
 Constitution denying absolutism to themselves even, and if local self- 
 government or home rule based on the reserved rights of the States be 
 lost sight of by us or by our children. 
 
 Remember these words of George Washington: 
 
 "This Government, the offspring of our own choice, uninfluenced and 
 unawed, adopted upon full investigation and mature deliberation, completely 
 free in its principles, in the distribution of its powers uniting security with 
 energy, and containing within itself a provision for its own amendment, has a 
 just claim to your confidence and your support. 
 
 "The basis of our political system is the right of the people to make and to 
 alter their constitutions of government. But the constitution which at any 
 time exists, till changed by an explicit and authentic act of the whole people, is 
 sacredly obligatory upon all." 
 
 Spell "Nation" with a capital N, and spell "State" with a capital S, 
 but, above all, spell "Individual" with a capital I, just twice as large. 
 Be jealous of all government and of all increase of the weight of govern- 
 mental machinery. 
 
 SPEECHES OF REPRESENTATIVES SHERLEY, COCKRAN, 
 AND OTHERS ON FEDERAL POWERS 1 
 
 MR. PAYNE. Mr. Speaker, I do not desire to discuss this resolution 
 at any length, as the matter was fully discussed at the last Congress, in 
 reference to the agricultural appropriation bill, which came over here 
 with a revenue amendment attached by the Senate. On that occasion 
 the precedents were stated to the House, and on a yea-and-nay vote only 
 three or four gentlemen voted against it, and that because of their doubt 
 as to whether the bill really contained a revenue clause or not. The bill 
 was sent back to the Senate, and the Senate acquiesced in the decision 
 of the House, and withdrew the amendment from the bill. Now they 
 send over here a bill which is purely a measure of taxation. They pro- 
 pose that the 2 per cent bonds to be issued for the construction of the 
 isthmian canal shall be taxed the same as other bonds for which pro- 
 vision of law is niade that they shall be used as a basis for the currency 
 of the national banks. They reduce the tax on those bonds, to be sure, 
 but the bill authorizes a tax. This is a tax bill pure and simple. The 
 Constitution has provided for the origination of these bills in the House 
 of Representatives. The framers of the Constitution thought there was 
 
 Congr. Record, Dec. 15, 1905. 
 51 
 
802 AMERICAN FEDERAL GOVERNMENT 
 
 a reason for this. The House has contended immemorially, they have 
 always contended that they have the right, and they have asserted the 
 right time and again to institute revenue measures. They have the only 
 jurisdiction in the Congress of the United States where these measures 
 may be originated. Therefore, I ask the House to adopt this resolution ; 
 and in that connection I do not care to take up the time of the House 
 by debate now. I may desire to extend my remarks citing some of the 
 precedents; but the Constitution is so familiar, and this clause of the 
 Constitution is so familiar that I do not think it is necessary for me to 
 recite them for gentlemen to vote intelligently upon this resolution. 
 [Loud applause.] 
 
 Mr. WILLIAMS. Mr. Speaker, this comes to me rather suddenly, and 
 is rather an astonishing thing. I saw in the morning papers that the 
 Senate had taken this action, but I thought they had taken it en route to 
 settlement and the passage of a bill "for the construction of an isthmian 
 canal." This matter comes back entitled "An act to provide for the 
 construction of a canal," etc., but there is nothing in it at all except a 
 provision for putting certain bonds in another class ; and in my opinion 
 it is undoubtedly a violation of the privileges of this House, as given to 
 it by the Constitution of the United States. [Loud applause.] I believe 
 that the position taken by the gentleman from New York is correct, and 
 I think we ought to pursue either the course suggested by him or some 
 other course that would indicate our opinion to the effect that it is a 
 breach of the constitutional privileges of the House. I see no objection 
 at the first blush to the resolution as read: 
 
 Resolved, That the bill S. 1475, in the opinion of the House, contravenes the 
 first clause- of the seventh section of the first article of the Constitution and is 
 an infringement of the privileges of this House, and that the said bill be taken 
 from the Speaker's table and be respectfully returned to the Senate with a 
 message communicating this resolution. 
 
 [Loud applause.] 
 
 Mr. PAYNE. If there is no debate upon this question, I shall ask for 
 a division, in order that we may have a rising vote and a count on this 
 subject. I do not care to ask for the yeas and nays, but simply call for 
 a division. 
 
 The question was taken on agreeing to the resolution; and on a 
 division there were ayes 357, noes none. 
 
 So the resolution was unanimously agreed to. 
 
 On motion of Mr. Payne, a motion to reconsider the vote by which 
 the resolution was agreed to was laid on the table. 
 
 Mr. PAYNE. I now move that the House resolve itself into Committee 
 of the Whole House on the state of the Union. 
 
 The motion was agreed to. 
 
CENTRALIZATION 803 
 
 DISTRIBUTION OF PRESIDENT'S MESSAGE 
 
 The House accordingly resolved itself into Committee of the Whole 
 House on the state of the Union, Mr. Butler of Pennsylvania in the 
 chair. 
 
 The CHAIRMAN. The House is in Committee of the Whole House on 
 the state of the Union for the further consideration of House resolution 
 42, and the gentleman from Kentucky is recognized. 
 
 Mr. SHERLEY. Mr. Chairman, it is never pleasant to find one's self 
 in the position of Mahomet's coffin, suspended between heaven and 
 earth, but I was very glad to yield the floor that this committee might 
 rise, in order that the House might maintain its constitutional rights. 
 It is so seldom that a member of this body has a chance to protest against 
 the constant disregard of the constitutional rights and dignities of the 
 House that I am always willing to yield the floor for any such purpose. 
 [Applause.] 
 
 To return to the subject of discussion, I know of no more immoral 
 practice than that which has grown up in the House of Representa- 
 tives of using the taxing power for other purposes than the raising of 
 revenue. It may be that in other countries the taxing power has been 
 necessary as the weapon of liberty, either by denying appropriations or 
 by taxing particular things, but in America the theory of our Constitu- 
 tion has been, and still is, that through other means the liberties of the 
 people are guaranteed, and the taxing power was given only for the pur- 
 pose of raising revenue. So, when you find upon this floor serious dis- 
 cussions of the reference of a bill to the Ways and Means Committee, 
 upon the implied, if not the openly expressed, opinion that the taxing 
 power shall be used not for the purpose of revenue, but for the purpose" 
 of doing something that otherwise Congress could not do, and that it 
 was not intended that Congress should do, I, for one, propose to protest. 
 Therefore, I am opposed to the reference of this matter to the Ways and 
 Means Committee. I am also opposed to the reference of it to the Inter- 
 state and Foreign Commerce Committee. It is conceded by the dis- 
 tinguished chairman of that committee that the Supreme Court will have 
 to change its mind in order for this Congress to have jurisdiction under 
 that clause of the Constitution. He enters the domain of prophecy and 
 says that they will do it. It may be that he agrees with Mr. Dooley, who, 
 in the discussion of the insular cases, said to Hennessy that he was in 
 some doubt as to whether the Constitution followed the flag, or the flag 
 the Constitution, but it was evident that the Supreme Court followed the 
 election returns. [Laughter.] 
 
 It may be that he considers the clamor now being raised throughout 
 the land for the regulation of insurance companies by the National 
 Government will have sufficient effect that, in the event of national 
 
804 AMERICAN FEDERAL GOVERNMENT 
 
 legislation, the Supreme Court will sustain it and overrule itself. About 
 that he may be a better judge than I am, but it is apparent to every 
 Member on this floor that the discussion had for the past two days shows 
 that it is the overwhelming judgment of the House that, as the Constitu- 
 tion is now interpreted, we have no such jurisdiction ; that if we are to 
 legislate on this subject, we must discover some other provision of the 
 Constitution than the commerce clause. 
 
 Now, we have a great committee in this House, a committee that not 
 only reports bills for legislation, but is also the judicial adviser of the 
 House. The Committee on the Judiciary is supposed to be made up in 
 its membership of the ablest lawyers in the House. They are there for 
 the purpose of not only originating, legislation, but they are there for the 
 purpose of instructing the House upon questions of constitutional power. 
 What more proper than to do what the Senate has done, make reference 
 of a matter of this kind to the Judiciary Committee, that they may re- 
 port back to the House whether, in their judgment, this House has 
 jurisdiction, and if it has jurisdiction, the extent of it. Shall we deter- 
 mine now that one or the other of these committees may have this matter 
 without a proper investigation ? If the House is to now determine that 
 fact, then, on the knowledge that the House has of the decisions of the 
 Supreme Court, it ought not to refer this to any committee, because this 
 House knows that it has been expressly declared that there can be no 
 interstate commerce in insurance. Of course it can be reached collater- 
 ally, but is n't it a humiliating spectacle, is n't it such a spectacle as has 
 been responsible for a whole lot of trouble in America, that men sworn 
 to support the Constitution, representatives of a great body of the Gov- 
 ernment, are willing to disregard its plain limitations, and by subterfuge, 
 under the taxing powers, do that which in their hearts they do not believe 
 they are entitled to do? The fact that the House has done it, the fact 
 that we have got precedents for it, only makes it worse. It only shows 
 how one thing leads to another. The other day a statement was made 
 in the other branch of the National Legislature that that provision in the 
 law creating the Bureau of Commerce and Labor, relating to insurance, 
 crept in there without the knowledge of that body; that h'ad they had 
 knowledge of it, there would have been a pronounced protest ; and now 
 we have a marked illustration of the danger of a precedent. 
 
 The President of the United States in his message says that because 
 Congress has given to the Bureau of Commerce and Labor the power to 
 make certain general investigations and inquiry as to insurance, there- 
 fore we have presumptively declared that it is a matter proper for national 
 governmental control, and that declaration is used as a lever to make us 
 go a step further. I understand that some member of the Judiciary 
 Committee will offer an amendment referring this matter to that com- 
 mittee, and I hope that that amendment will prevail. 
 
 Now, Mr. Chairman, I desire to turn from this discussion of a narrow 
 
CENTRALIZATION 805 
 
 proposition to the discussion of a broader one. I believe the House will 
 bear me out in the statement that I have never taken a partisan, captious 
 position on the floor. I do not propose to do it now, but if I should let 
 pass by in silence certain portions of the President's message without a 
 protest, I should consider that I had no reason to be upon this side of 
 the aisle, that I ought to go over to the other side. If I am to assume 
 the position that seems to be taken by some, of out-heroding Herod, 
 then I propose to go into Herod's camp where I can do it effectively, 
 and not remain outside of it. I want to protest against that modern 
 theory so pronouncedly and ably stated in the President's message that 
 because a thing is big therefore it must come within the national jurisdic- 
 tion. It is true that this whole country has been stirred from one end to 
 another by the disclosures in regard to life insurance. It is also true that 
 every one of those disclosures have been made known to the public by 
 State agency and not by the National Government. It is true that the 
 Supreme Court of the United States in deciding the case of Paul against 
 Virginia, in deciding the cases that followed after that, plainly indicated 
 that the States had complete not only complete, but exclusive juris- 
 diction over the subject. Yet we have sent us a message saying that the 
 time has arrived where it is evident, in the judgment of the people, that 
 the States can not manage these things and that we must come to the 
 National Government. 
 
 The President in his message says: 
 
 The fortunes amassed through corporate organization are now so large, and 
 vest such power in those that wield them, as to make it a matter of necessity to 
 give to the sovereign that is, to the Government, which represents the people 
 as a whole some effective power of supervision over their corporate use. In 
 order to insure a healthy social and industrial life, every big corporation should 
 be held responsible by, and be accountable to, some sovereign strong enough to 
 control its conduct. 
 
 ******** 
 The makers of our National Constitution provided especially that the regu- 
 lation of interstate commerce should come within the sphere of the General 
 Government. The arguments in favor of their taking this stand were even 
 then overwhelming. But they are far stronger to-day, in view of the enormous 
 development of great business agencies usually corporate in form. Experience 
 has shown conclusively that it is useless to try to get any adequate regulation 
 and supervision of these great corporations by State action. Such regulation 
 and supervision can only be effectively exercised by a sovereign whose juris- 
 diction is coextensive with the field work of the corporations that is, by the 
 National Government. I believe that this regulation and supervision can be 
 obtained by the enactment of law by the Congress. It this proves impossible, 
 it will certainly be necessary ultimately to confer in fullest form such power 
 upon the National Government by a proper amendment of the Constitution. 
 It would obviously be unwise to endeavor to secure such an amendment until 
 it is certain that the result can not be obtained under the Constitution as it now 
 
8o6 AMERICAN FEDERAL GOVERNMENT 
 
 is. The laws of the Congress and of the several States hitherto, as passed upon 
 by the courts, have resulted more often in showing that the States have no 
 power in the matter than that the National Government has power; so that 
 there at present exists a very unfortunate condition of things, under which 
 these great corporations doing an interstate business occupy the position of 
 subjects without a sovereign, neither any State government nor the National 
 Government having effective control over them. Our steady aim should be by 
 legislation, cautiously and carefully undertaken, but resolutely persevered in, 
 to assert the sovereignty of the National Government by affirmative action. 
 
 ******* * 
 
 And again: 
 
 The great insurance companies afford striking examples of corporations 
 whose business has extended so far beyond the jurisdiction of the States which 
 created them as to preclude strict enforcement of supervision and regulation 
 by the parent States. In my last annual message I recommended "that the 
 Congress carefully consider whether the power of the Bureau of Corporations 
 can not constitutionally be extended to cover interstate transactions in in- 
 surance." 
 
 ******** 
 
 That State supervision has proved inadequate is generally conceded. The 
 burden upon insurance companies, and therefore their policy holders, of 
 conflicting regulations of many States, is unquestioned, while but little effective 
 check is imposed upon any able and unscrupulous man who desires to exploit 
 the company in his own interest at the expense of the policy holders and of the 
 public. The inability of a State to regulate effectively insurance corporations 
 created under the laws of other States and transacting the larger part of their 
 business elsewhere is also clear. As a remedy for this evil of conflicting, in- 
 effective, and yet burdensome regulations there has been for many years a 
 widespread demand for Federal supervision. The Congress has already recog- 
 nized that interstate insurance may be a proper subject for Federal legislation, 
 for in creating the Bureau of Corporations it authorized it to publish and supply 
 useful information concerning interstate corporations, "including corporations 
 engaged in insurance." It is obvious that if the compilation of statistics be the 
 limit of the Federal power, it is wholly ineffective to regulate this form of com- 
 mercial intercourse between the States, and as the insurance business has out- 
 grown in magnitude the possibility of adequate State supervision, the Congress 
 should carefully consider whether further legislation can be had. 
 
 The President's reference to the reasons that controlled the makers 
 of the National Constitution in framing the commerce clause is, I sug- 
 gest in all humility, not historically accurate. The fact is, the convention 
 of Virginia and Maryland was called the convention that led up to 
 the subsequent convention which adopted the Constitution of the United 
 States for the purpose of trying to arrive at some method of settling 
 the conflicts that arose as to the commerce on the rivers and waters that 
 divided those two States and to arrive at some method by which States 
 would not be able to hamper and handicap the commerce of other States. 
 
CENTRALIZATION 807 
 
 As a result of that convention came the national convention that adopted 
 the Constitution. Now, the commerce clause has two provisions in it. 
 They are in the same sentence, but they are distinct in the sense that 
 they were put into the Constitution. One of them relates to the power 
 of Congress over foreign commerce; the other relates to the power of 
 Congress over interstate commerce. It was desired at that time that the 
 United States of America might have a weapon that she might use against 
 England, who was then fighting her commerce on the high seas. It was 
 expected that the United States of America should use its power through 
 that provision against other nations, but that part of it which relates to 
 the States was put into the Constitution for the purpose of preventing the 
 States from discriminating against the commerce of their sister States. 
 It was put in there for the purpose of keeping commerce free, not for 
 the purpose of shackling it. Yet to-day, and for many years past, it has 
 been made the pretext for giving power to the National Government to 
 hamper and control. Now, I trust I am not a man who looks backward. 
 I hope I am not speaking of the tender grace of a day that is dead, but 
 I do feel that half of the evils that confront the country to-day confront 
 it because we have disregarded the fundamental theory of our Govern- 
 ment. I believe the way to govern best is not only to govern least, but to 
 govern as near as possible at home. [Applause.] 
 
 That is my kind of Democracy. That is the reason I am where I am. 
 If we could make the people of the States realize that of necessity under 
 . the Constitution 95 per cent of the things that relate to life, liberty, and 
 property belong to the States, and unless we change the organic law must 
 remain with the States if we could make them realize that therefore 
 they must make their own State governments effective in order to deal 
 in nine cases out of ten with those matters that affect life, liberty, and 
 property, we might hope to solve our problems. But what has been the 
 result? Largely as a heritage of the civil war, largely as a result of the 
 acceleration that was given to the national power due to the emergency 
 that that conflict brought about, we have had the spectacle that when- 
 ever a condition requiring a remedy arose in a State, the people, instead 
 of trying to solve it there, come to the National Government and under- 
 take to have the power under the Constitution stretched so as to bring 
 the matter within the national domain. 
 
 The people, simply because the National Government seemingly acts, 
 think that it always acts better. They think it acts better because they 
 know less about its actions. They get a knowledge of what it does simply 
 from the men who do it. The newspaper accounts which go out nine 
 times out of ten necessarily go from the very source that has done the 
 act which is to be reviewed by the people. Naturally the report going 
 out is favorable, and they get the notion that if the action is by the Na- 
 tional Government it will be better action. Maybe it is better, but, 
 gentlemen, there is no reason why it should be as good. There is not a 
 
8o8 AMERICAN FEDERAL GOVERNMENT 
 
 power contained in the Constitution of the United States in regard to 
 most questions arising that is not contained in even greater measure 
 within the State. Tell me that States composed of millions of people, 
 bigger than some of the great nations of the world, are not able to have 
 proper officers, capable of proper legislation, solving these problems, 
 and what is equally important, capable of enforcing the law! I will not 
 admit it. 
 
 This tendency toward centralization has gone on until, from having 
 started out a hundred years ago in fear of the Executive, we have become 
 afraid of the legislative bodies, from a fear of the National Government, 
 to now a total disregard of State power. The people have a distinct con- 
 tempt for the State legislatures, and they have more or less contempt for 
 the National Legislature. It has become so that a member of the State 
 legislature has to almost prove aliundi that he is an honest man and a 
 man of good ability. Gentlemen, you get the service you expect. The 
 people have restricted them; they have hampered them. Recent State 
 constitutions have restricted the meetings of the legislatures to once in 
 two years. They have restricted that meeting to sixty days or some short 
 period. In a special session they are restricted to considering what the 
 governor desires shall be considered. All these are indicative of the fact 
 that the people are fearful of these bodies. The result is we have brought 
 on this floor great questions not properly here, and we have to spend nine- 
 tenths of our time in determining not what we ought to do, but how we can 
 do it. If the theory of the National Government being not only supreme, 
 but all-embracing, if the theory as voiced by the President in his message 
 is right, then I for one agree to the suggestion made in that message when 
 he said that if we can not do these things, if we can not take charge of 
 this insurance matter, we ought to amend the Constitution. I go further 
 and say that if we are going to attempt this and similar things, if we 
 must take care of them here, then I am in favor of abolishing State gov- 
 ernment. I would a great deal rather see this body dealing with what 
 it should do instead of always having to consider whether it can do it. 
 That is common sense. If this idea of concentration is right, if centrali- 
 zation of power is right, then let us go on and carry it out. It is true we 
 will be giving the lie to the theory which has prevailed in America since 
 the beginning; it is true we will be running in the face of Anglo-Saxon 
 history. 
 
 If it is true the time is coming when we are to have such power not 
 only given the National Government, but are also to have given to the 
 executive arm of the Government the right to handle everything under 
 the sun, from football up, let us abolish the State government outright 
 and make a clean job of it. Look how this idea of centralization is 
 working right here among us. Look how it is working with the two 
 bodies of Congress. One body, because it was smaller and because it 
 had in a sense executive power, in that it could pass upon Presidential 
 
CENTRALIZATION 809 
 
 appointments, has grown and grown, until to-day this body is practically 
 ignored, and we had the spectacle a few moments ago of that body, in 
 plain contravention of the Constitution, undertaking to pass a bill that 
 only could originate here. It is simply a further tendency toward central- 
 ization. You are not only concentrating the States out of their power, 
 but now you are beginning to concentrate the different bodies of the 
 National Government out of theirs. Against that, as a Democrat, as a 
 believer in the history of my nation, I protest. It is for this reason I 
 have taken advantage in this body when the President's message was 
 up for discussion to voice my protest. I had been in the hope that some 
 man abler than I, some man longer in the service of the House, might 
 have felt called upon to do it, but in the absence of that I felt I should 
 be untrue to those motives which actuate me, to the position I occupy 
 in this House, if I did not protest. 
 
 Mr. DRISCOLL. Does the gentleman yield for one question? 
 
 Mr. SHERLEY. Certainly. 
 
 Mr. DRISCOLL. I have enjoyed the address so far very much, but I 
 wish to ask the gentleman if it is not true, in his judgment, that gentle- 
 men from the Southern States Democrats from the Southern States 
 have a marked tendency to yield up their ideas of State rights in order 
 that their States or their districts may get some benefits or emoluments out 
 of the United States Government? Is not that the marked tendency 
 with Democrats in the House? 
 
 Mr. SHERLEY. The gentleman has asked me a frank question. I will 
 answer it frankly. It is true that in the past the ark of the covenant of 
 local self-government has rested among the Democrats of the South. It 
 is true to-day, unfortunately, that there are some of them, breaking the 
 traditions, as I conceive them, of the party and of the country, who have 
 wandered away after the fleshpots of Egypt. But, gentlemen, what is 
 true in one instance on this side of the House is true in nearly all instances 
 of that side of the House. [Applause on the Democratic side.] That is 
 my answer to the gentleman. 
 
 I realize that in a large measure I stand in some particulars alone on 
 the floor even as a "voice crying in the wilderness." I realize that the 
 American people, from having been a very sober people, slow to form 
 an opinion, have become a mercurial people, with opinions over night. 
 I realize that in men's memory history goes back to the last edition of 
 the paper of the day before, and their view of the future goes forward 
 to the first edition of the day after. I realize that any clamor that happens 
 to be loud enough may not only get the ear of individual Members, but 
 it may get even the ear of the Executive of the nation ; and because there 
 is now a clamor we have sent to us a message saying that we must try 
 and find a way in and out of the provisions of the Constitution to do 
 certain things, and then if we can not do them we must do away with 
 the Constitution in order to do them. 
 
8io AMERICAN FEDERAL GOVERNMENT 
 
 The message makes the surprising statement that the States are unable 
 to control insurance. On what theory is that made? Does not every 
 man know that if you had the right sort of law, and, what is better still, 
 the right sort of enforcement of the law, in the States that the power exists 
 there to control insurance and control nine-tenths of our other troubles ? 
 
 The President speaks of the fact that overcapitalization is the worst 
 evil in connection with big corporations. Does not every man who is 
 the least of a lawyer know that it is in the power of a State that creates 
 the corporation to prevent overcapitalization? It can put all of the 
 restrictions upon it that it pleases. 
 
 Now, it may be a sufficient answer to you it is not a sufficient answer 
 to me to tell me the State has not done it. I say what we must do in 
 this country is to awaken the people to a realization of that power at 
 home ; demand that a man shall exhaust the power that is given to the 
 States before he comes to the nation. Why, if the President's theory is 
 true, then there is not a city in the Union that should not be put under 
 the control of the State government, because they have all been notori- 
 ously badly managed. Now, if the fact that they are badly managed, 
 if the fact that the people of the city do not manage them right, do not 
 elect the proper sort of officials to the common councils, is sufficient 
 reason, then by a parity of argument the State should take control of the 
 cities, and you should have them managed by your legislatures and the 
 governors of your States. You only need to examine the proposition 
 to see how it strikes at the fundamentals of this Government. Take the 
 history of England and see what has been done in her city governments. 
 It is true that Parliament is all powerful, and always has been, but it 
 is also true that there is more local government there to-day than there 
 is here, despite our boast. They send men of the highest ability to the 
 common councils of their cities; put in men capable of occupying any 
 position in any legislative body, and as a rule all of these cities 
 are efficiently and capably managed, and they do not need to appeal to 
 Parliament. 
 
 If the cities and the States should send into public life the right sort 
 of men, making it worth while for a man to be independent, and keeping 
 him in his position when he does show independence if they would 
 do that, you would find nine-tenths of the questions that trouble the 
 Government would no longer be sent up here to trouble us. Every man 
 in this House knows that the size of this House, the amount of business 
 that comes here, practically prevents real judicial consideration of ques- 
 tions. [Applause.] The day has gone by when the House of Representa- 
 tives can intelligently do affirmative work. There is no man here but 
 who in his heart of hearts knows this to be true. What has been the 
 result? You send important measures to a committee; you put into 
 the hands of a few men the power to bring in bills, and then they are 
 brought in, with an ironclad rule, and rammed down the throats of Mem- 
 
CENTRALIZATION 811 
 
 bers, and then those measures are sent out as being the deliberate judg- 
 ment of the Congress of the United States ; but no deliberate judgment 
 has been expressed by any man. Now, if you are going to bring in 
 additional to that other problems that you think should receive considera- 
 tion, where are you going to end? Will it not have a tendency to end 
 altogether in a government of bureaus ? No man that will be frank in 
 the statement of his opinion but knows that that is true. We all admit 
 and we all admire the ability of the President; we realize his purpose 
 is a high and lofty one, and yet we permit ourselves to sit silent, voicing no 
 protest against a message to Congress that contains more of centraliza- 
 tion than any other message that was ever written to the American 
 people. [Applause.] 
 
 Mr. GROSVENOR. Will it disturb the gentleman if I make a suggestion 
 or two along the line of his argument? 
 
 Mr. SHERLEY. Not at all. 
 
 Mr. GROSVENOR. Has the gentleman from Kentucky considered in 
 his evident study of this question how you would establish two jurisdic- 
 tions, two supreme authorities one supreme in the State and one 
 supreme in the United States so as to administer in the form of 
 regulation or taxation or prescription the duty of a corporation, it 
 being an instrumentality of the States in some industry or in any other 
 branch or business, so as to have both jurisdictions operating upon that 
 corporation at the same time; and would it necessarily in the long run 
 oust the State jurisdiction absolutely and put the whole power in the 
 General Government? I am on the side of the gentleman; I am 
 a Democrat in the matter of the rights of the States to control their 
 own local institutions, and have always been so. [Loud applause on 
 the Democratic side.] 
 
 Mr. SHERLEY. I am glad to have such able support, and in answer 
 to the gentleman's question I will also try to be as frank as the gentleman 
 was in propounding his question. No lawyer no real lawyer who 
 has ever advanced beyond the mere citation of cases and gone into the 
 philosophy of the law but what knows that the problem offered by a dual 
 system of government is one of the most difficult problems ever offered 
 to a people. And a further difficulty in that problem has been caused 
 in large part by the extension of national control to the exclusion of State 
 control, because of the temporary inefficiency of State governments. 
 But the main idea that I wish to convey is this : Not that we do not realize 
 the great inherent difficulty, that we do not recognize that there are many 
 questions that lie on the border line of the jurisdiction of the two gov- 
 ernments, questions about which men must differ and about which the 
 courts have differed, and that when these questions come up it must 
 follow that one or the other of these governments will get the jurisdic- 
 tion to the exclusion of the other, according to the trend of the times, 
 and frequently the practicability of its dealing with the question, but 
 
812 AMERICAN FEDERAL GOVERNMENT 
 
 that as to those things that are clearly within the State's power and can 
 be controlled by the State, that when no effort is made by the State to 
 remedy the evil that that neglect should not be made an argument and 
 an excuse for this Government, the National Government, entering the 
 domain. Now, here is a practical illustration in the insurance matter. 
 Here is a matter that has come to the attention of the people this cor- 
 ruption, this wrong-doing by virtue of a State investigation. Our 
 States are just beginning to awake to a long-neglected duty, beginning to 
 investigate and to formulate laws to control the situation. I undertake 
 to say that if persevered in the States will be successful. The condition 
 arose simply because the States have been neglectful of their duties in the 
 past, and now we are told that we should, in advance of any results grow- 
 ing out of the States' activity, take the matter from them, notwithstand- 
 ing the evil that inherently follows an entrance by the National Govern- 
 ment into the State domain. It is not only true physically and mentally, 
 but true governmentally, that a power unused becomes weakened and 
 will in time be destroyed. 
 
 Let any part of the anatomy of man cease to be exercised and used 
 and that part goes into decay, until it finally disappears. Let the quality 
 of local government, let that power which rests in the States, fail to be 
 used ; let the people forget that they have in their own hands the power 
 to remedy evils ; let them forget that after all it depends upon the moral 
 atmosphere of the people themselves, their desire to enforce the laws 
 that they pass let them forget that and come constantly to the National 
 Government for aid, come up here away from the place of the evil, and 
 you will find that the ability to solve problems at home will die because 
 of disuse. [Applause on the Democratic side.] Gentlemen, we make 
 too many laws ; we enforce too few. The trouble is that out of hypocrisy, 
 out of cant, which seems to be a part and an attribute of the Anglo-Saxon, 
 we are willing to pass laws that we do not believe in. There comes a 
 clamor, and we yield to the clamor for fear of our jobs, and we put the 
 law on the statute book when we do not think it ought to be there. Even 
 although it remedies a particular evil, we know that it carries in its train 
 many other evils. Then having put it there we wink at its being ignored. 
 Why, gentlemen, we pass every year numerous temperance laws and 
 then permit them to be dead letters, because we have been cowards and 
 were afraid not to pass them, and yet do not want them enforced. If the 
 people will enforce the law, if we can have the enforcement of the law 
 against the high as well as the low, we will solve many of our problems 
 without any need for new legislation. Nothing has come out in the 
 insurance investigation that the State of New York can not handle, and 
 most of the problems can be handled on the criminal side of the law 
 docket. [Applause.] It is a question whether the people of New York 
 will have the courage, but if they do not have it that is no reason why 
 we should take up their burden. We must send back word to them, 
 
CENTRALIZATION 813 
 
 " You must solve your problems at home. If you do not do it, they will 
 not be solved." [Applause.] 
 
 Mr. Chairman, I reserve the balance of my time. 
 
 Mr. COCKRAN. This debate has taken a range far beyond a mere 
 question of procedure in the House. It has touched a most important 
 question of Federal jurisdiction. It has done more. It presents a ques- 
 tion affecting the very existence of republican government and our 
 power to take effective action for its preservation. 
 
 A most interesting contribution to the discussion has just been con- 
 cluded by the gentleman from Kentucky [Mr. Sherley]. With the ob- 
 ject which he had in view I sympathize most heartily. The method by 
 which he pursues it I think is open to question. The gentleman from 
 Kentucky [Mr. Sherley] has bemoaned the decline of State governments 
 and the decay of representative bodies, including this one two features 
 of our evolution which I believe to be ominous in the last degree. But 
 the gentleman says that he is opposed to any use of the taxing power 
 as a means of enforcing authority by this House over important ques- 
 tions affecting the public welfare. So far as I could understand his 
 argument, he stated that while this taxing power had been the effective 
 weapon by which representative bodies had established their authority 
 in the past, for some reason or other not made quite clear to me, and 
 I fear not quite clear to the House, it was not proper or judicious at this 
 day to invoke it for the preservation of the authority which had been 
 established by its exercise. I have observed through all this discussion 
 on the part of gentlemen who have opposed the reference of this ques- 
 tion to the Committee on Ways and Means a disposition to treat the 
 taxing power of this body as though it were a mere power conferred by 
 law on some city or village government to levy an assessment for the 
 support of a municipal department. It is important and, I think, es- 
 sential to remind gentlemen that this power of taxation vested in the 
 House of Representatives by the Constitution is the weapon by which 
 all the importance of legislative bodies has been established. 
 
 If the conception of the gentleman from Kentucky [Mr. Sherley] and 
 other gentlemen who have spoken on this subject be correct, then that 
 provision of the Constitution which places in our hands the exclusive 
 right to originate revenue bills is a mere idle expression superfluous, 
 meaningless, unimportant. Sir, I do not believe any line of the Con- 
 stitution is either superfluous or meaningless. There are weighty rea- 
 sons why that power has been bestowed on us. Sir, I think anybody 
 familiar with the debates in the convention where our Constitution was 
 framed will concede that through all the discussions it was assumed 
 that this body would always be the important feature of our Govern- 
 ment, and its importance in the judgment of the framers was assured 
 
814 AMERICAN FEDERAL GOVERNMENT 
 
 when the taxing power was placed in our hands. If we are but a board 
 of aldermen to decide whether the rates levied to support some city or 
 village government should be i, 2, 3, or 4 per cent on the assessed value 
 of all its property, then the power to originate revenue bills might have 
 been placed at the other end of the Capitol without in the slightest de- 
 gree affecting the importance of this body. But, sir, because all the 
 successful battles for liberty have been fought with that weapon, it 
 was intrusted to us by the wise men who established this Government, 
 in the belief that privileges which heroes had won in the field patriots 
 would conserve in the council chamber. That power of taxation we 
 have a right to exercise absolutely according to our own discretion. As 
 we use it our consequence and our dignity will stand in the structure 
 of our Government. The gentleman from Kentucky [Mr. Sherley] be- 
 moans very properly the fact that legislative bodies have sunk into con- 
 tempt while the body at the other end of this Capitol, which has some 
 share of executive power, has risen steadily in importance, and he as- 
 signs the reason for it correctly. The reason is that the Senate of the 
 United States exercises to the full every function and power the Con- 
 stitution has placed in its hands. Every day witnesses not a recession 
 or concession, but a new and further assertion of authority. Only this 
 morning we in this Chamber felt bound to rise unanimously and de- 
 clare that this last intrenchment of our power, this exclusive right to 
 originate revenue bills, should not be broken down without at least 
 a protest from ourselves. Yet the gentleman from Kentucky [Mr. 
 Sherley], while recognizing and, indeed, deploring the growth of the 
 Senate and bemoaning the decay of the House of Representatives, tells 
 us in the same breath that he disapproves any use of the one power, 
 the one weapon, by which our consequence can be established. 
 
 Mr. SHERLEY. Will the gentleman yield? 
 
 The CHAIRMAN. Does the gentleman from New York yield? 
 
 Mr. COCKRAN. Certainly. 
 
 Mr. SHERLEY. I differ simply because I do not believe that is the 
 only power by which the House can assert its dignity and do not think 
 the makers of the Constitution intended it should be the only power. 
 
 Mr. COCKRAN. Mr. Chairman, I suppose, of course, that was the 
 gentleman's view or he would not have made the speech he did upon 
 the floor, but the fact remains that he has bemoaned the waning dignity 
 of this body and he has deplored, or, I believe, criticised, the growth of 
 the other. My object now is simply to supply an explanation of what 
 he considers a calamity and to suggest a method by which it can be re- 
 paired. With singular force he declared that powers which are not 
 exercised are powers which are declining, that powers unused are perish- 
 ing powers. The power to arrest our decay and reestablish our conse- 
 quence is ours, yet that is the power which the gentleman even now 
 declares is not a proper or legitimate one to be used in maintaining our 
 
CENTRALIZATION 815 
 
 authority and our dignity. While that power is vigorously asserted 
 there is no subject within Federal control on which we may not exer- 
 cise the dominant influence, aye, sir, that we were not intended to 
 dominate by the framers of our Constitution. The mere grant of this 
 exclusive right to originate revenue bills shows that we were intended 
 to be the principal feature of this Government. If we have declined 
 and decayed, it is not for lack of power, but through failure to exercise 
 the powers which are ours. The power of the English House of Com- 
 mons theoretically is very little. Theoretically it is vastly inferior to 
 that of the Lords; practically it is paramount through its control of 
 the purse. Under the feudal system representative bodies had no power 
 except the right to levy taxes. They had no right even to consider any 
 other question unless it was expressly submitted by the sovereign through 
 officers of his own selection and household, known as " lords of the 
 articles." 
 
 The gentleman deplored a recent tendency of State constitutions to 
 limit subjects which State legislatures can consider when called in extra 
 session to those which the governor might submit to them. You see, 
 sir, there is nothing original in personal government. There is nothing 
 original in the forms by which distrust of popular government seeks 
 expression. That tendency, which the gentleman deplored, is but a 
 revival here in this land of the power exercised through lords of the 
 articles under feudal institution, when the sovereign treated the legisla- 
 ture, parliament, or council simply as a body whose advice he might 
 ask on certain matters, but whose authority, except upon taxation, he 
 did not concede. The power over the purse alone was always conceded 
 to the representatives of the people ; and yet upon this slender founda- 
 tion the stately structure of the British House of Commons has been 
 erected, which dominates the entire English system, and which fur- 
 nished the framers of this Constitution with a model for the establish- 
 ment of this body. 
 
 Mr. SHERLEY. May I interrupt the gentleman again? 
 
 Mr. COCKRAN. Certainly. 
 
 Mr. SHERLEY. Is it not true the use of the power over the purse was 
 in respect to appropriations, and not to do an arbitrary and unconsti- 
 tutional thing? 
 
 Mr. COCKRAN. No, sir; the gentleman must study history a little 
 more carefully. On the contrary, the power which was used most fre- 
 quently and most effectively was the very power of which this House 
 has deprived itself by special rule, the power to impose conditions on 
 appropriations, to impose taxes on domains, privileges, monopolies, 
 and other features of their political system which they considered dan- 
 gerous to the prosperity or the liberty of the citizen. 
 
 Mr. SHERLEY. Does not the gentleman know that the National 
 Government has no police power and it has been so declared, and does 
 
8i6 AMERICAN FEDERAL GOVERNMENT 
 
 the gentleman not believe that the use of the taxing power for police 
 purposes is unconstitutional to-day? 
 
 Mr. COCKRAN. Mr. Chairman, I am not conceding that this is a 
 police power. The gentleman undertakes to anticipate the point at 
 which* I am aiming, and being doubtless innocent of the course of rea- 
 soning which I am pursuing, is naturally ignorant of the end which I 
 seek to attain. [Laughter.] 
 
 I trust the gentleman will possess his soul in patience and at the end 
 of a very few minutes he will understand precisely the character of the 
 proposition which I am seeking to establish. I say, Mr. Chairman, 
 that this body now possesses sufficient power to establish its consequence 
 and its predominance if we choose to exercise it. There is but one 
 change, one amendment that in my judgment could possibly increase 
 its efficiency in legislation or its capacity to defend itself, and that con- 
 cerns simply the term for which its Members are elected. Where a 
 Member is chosen practically for two sessions and by the operation of 
 our constitutional system one session must be held after the election of 
 his successor, it necessarily happens that the very day on which he takes 
 his seat upon this floor and begins the discharge of his duties he is at 
 once thrust into the throes of a contest for reelection. No man can per- 
 form his duty here wholly and efficiently when every day his mail is 
 charged chiefly with information, representations, remonstrances, and 
 appeals that concern not the public business at hand, but the prospect 
 before him in his own district. [Applause.] If this democratic body 
 is ever to acquire and exercise the measure of power which the builders 
 of this Government believed it should possess in order that this constitu- 
 tional system may be safe and prosperous, there should be at least one 
 or two sessions in which Members could devote themselves to their public 
 duties free from the distraction of a campaign for reelection. Apart 
 from that there is no effective power the Constitution could bestow on 
 us that it has not already bestowed when it gave us the taxing power. 
 
 If we have no importance, it is not because we lack power, but be- 
 cause we have put away the great power which has been conferred upon 
 us. And strange as it may seem, the gentlemen who are the most solic- 
 itous about the Constitution, the gentleman who describes that instru- 
 ment as the sacred ark of the covenant I think I am using the exact 
 words of my friend from Kentucky condemns as vicious a use of its 
 most important feature, the one on which depends the importance of 
 the body of which he is already a distinguished member and certain in 
 the near future to become one of its most brilliant ornaments. [Applause.] 
 
 Now, Mr. Chairman, the suggestion which I would like to place be- 
 fore this committee is that there are various provisions of the Constitu- 
 tion which may be invoked to deal effectively with the abuses grown 
 out of the maladministration of these insurance corporations. But 
 before we consider the remedy which should be applied, let us for a 
 
CENTRALIZATION 817 
 
 moment consider the nature of the difficulty which confronts us. I be- 
 lieve that on any subject fairly within the authority of the Federal 
 Government any subject over which the Federal Government has 
 jurisdiction this House has the right to exercise the taxing power in 
 any way it pleases for the maintenance of its own authority and the 
 enforcement of its own views as well as for the general welfare of all our 
 citizens. 
 
 For no other purpose was the taxing power the right to originate 
 revenue bills confided to us. I am perfectly willing to admit that 
 we should not undertake to establish jurisdiction by extending arbi- 
 trarily the taxing power into fields not properly belonging to the dominion 
 of Federal authority. 
 
 Mr. SHERLEY. How does the gentleman explain the case of Dewitt ? 
 
 Mr. COCKRAN. I beg the gentleman will not interrupt now by asking 
 me to explain special cases. I entreat the gentleman to realize that, 
 after all, he is but one Member of this House, though probably the best 
 among us all, and I am addressing a collective body of which at least 
 250 Members are present. I can not in the course of this discussion meet 
 every possible difficulty that may arise in the gentleman's mind. If he 
 will allow me to finish, and make note in the meantime of any question 
 that he chooses to ask, at the end I will be glad to spend an hour or two 
 hours in cheerful and, I hope, improving colloquy with him. [Laughter.] 
 
 Now, a more important matter, Mr. Chairman, than satisfying the 
 scruples, or shall I say attempting to follow the interesting speculations 
 of the gentleman from Kentucky, is a definite statement of the precise 
 question presented to this House. 
 
 We have heard much about the difficulty of dealing with the matter 
 of insurance. From the beginning it seems to have been assumed that 
 the existence of large corporations, each prosecuting its business in 
 several States, and all the corruption and vice in the management which 
 have recently been laid there, are in some way or other inherent in every 
 insurance system, and that the only reform possible is to provide some 
 means of regulating them. The gentleman from Kentucky [Mr. Sherley] 
 pleads for a State regulation ; the gentleman from Illinois [Mr. Mann], 
 if I understand, pleads for a Federal regulation. Now, I think it is 
 possible to exercise the power of this General Government so as to re- 
 move completely the conditions which have produced the sinister fruits 
 of corruption which we all deplore. If that can be accomplished, then 
 it is clear no regulation of a Federal character anyway will be necessary 
 or advisable. 
 
 Mr. DRISCOLL. There is another idea, simply a suggestion, which I 
 would offer for the consideration of this committee. I quite agree with 
 the gentleman from Kentucky [Mr. Sherley] that there is a marked ten- 
 
 5 2 
 
8i8 AMERICAN FEDERAL GOVERNMENT 
 
 dency of late toward paternalism, or paternal government, and I am 
 not a strong advocate of that form of government. I agree with him 
 that the central Government is growing stronger day by day relatively 
 to the strength of the several State governments. Every dollar spent 
 for canals, every dollar spent for irrigation, every dollar spent for the 
 improvement of rivers and harbors, every rural delivery carrier started 
 on a route tends to enhance the power of the National Government 
 relatively to the power of the governments of the several Common- 
 wealths. But this argument does not apply especially to the Republican 
 party. There is a marked tendency on the part of gentlemen, Members 
 of this House, Democrats from Southern States, to surrender the doc- 
 trine which they inherited from Calhoun and to abandon their ideas 
 of States rights in order that they may get a little pork in the barrel, or 
 that they may get some benefit from the central Government for their 
 several States or districts. 
 
 The Democratic party in the State of New York only a few years ago 
 introduced a plank in its platform for ownership of the anthracite mines. 
 On the yth of last November a Member of this House on the Democratic 
 side ran for mayor of New York on a municipal-ownership plank and 
 received a very large vote, and possibly on a fair canvass and honest 
 count he was elected. I say possibly because I venture no opinion as 
 to the merits in that contest. There are in our country many advocates 
 of Government ownership of railways, telegraph and telephone lines, 
 and, in short, in favor of governmental or municipal ownership of all 
 property employed in the production and distribution of the necessa- 
 ries of life. The signs of the times all indicate that there is a marked 
 tendency toward paternal government, and I do not know of any business 
 where paternalism would be as wise or beneficial to the people as in life 
 insurance. This is offered merely as a suggestion. It may come up as 
 a matter of serious consideration by and by. With the central govern- 
 ment as the life insurance company, as the underwriter of all policies, all 
 the expenses of the vast competition which is now being waged between 
 the several companies would be saved. Those expenses are very heavy. 
 The commissions and other expenses in securing new insurance are 
 very large. As a result the cost of insurance in the great life companies 
 is nearly as much again as it ought to be. It is nearly as much again as 
 the real risk would justify. If the expenses of competition and the ex- 
 travagance and waste in those large companies were eliminated, in- 
 surance could be sold for about one-half what it costs now, because not 
 more than one-half the income is paid out as actual benefits for loss. 
 
 Mr. SHERLEY. Mr. Chairman, I do not know that I desire to add 
 much to what I said earlier in the day, but certain remarks made by 
 the distinguished gentleman from New York [Mr. Cockran] have made 
 
CENTRALIZATION 819 
 
 it seem to me proper that I should say a few words. The House always 
 listens with great delight to the gentleman, and wisely so, and yet I 
 never hear him make a speech without being reminded of a story that 
 was once told by Huxley, when he said that "Herbert Spencer's concep- 
 tion of a tragedy was the destruction of a syllogism by a fact." And 
 when the distinguished gentleman declined to yield to me on the ground 
 that he would illustrate the tendency and purpose of his speech if I 
 would only be patient, I could not help but think that he was considering 
 the possibility of a destruction of one of his syllogisms by a fact. And 
 it was just such a fact that I think necessary to bring to the attention 
 of this House. 
 
 The point that I made in my speech, and that I desire to emphasize 
 because of the very eloquent denial of it made by the gentleman from 
 New York [Mr. Cockran] is this: That there can be no more immoral 
 practice than for members of a legislative body to use the taxing power, 
 which is given them for the sole purpose of raising revenue, for some 
 other and ulterior purpose. I not only maintain that, but, despite the 
 fact that my reading may not be as extensive or along the same line as 
 that of the gentleman, I maintain that where the taxing power has been 
 used in support of the liberties of the English people it has been used 
 along the line of a denial of appropriations rather than the line of divert- 
 ing it from its real purpose into other purposes not germane to revenue 
 raising. 
 
 But if that be not historically true the gentleman overlooks the dis- 
 tinction that in England there is not the limitation of power that there 
 is in regard to our National Government. Here the taxing power is 
 expressly given for one purpose and one purpose only, and the Supreme 
 Court has had occasion repeatedly to declare that police power did not 
 exist in the National Government. 
 
 The point I wanted to make, and that I desire to emphasize, is that 
 if the States do not use their power, then by not using it they will cease 
 to have the capacity to use it, and as a result of that we will see a con- 
 centration and centralization such as the world never saw before. And 
 in that connection it is a curious fact that the loudest advocates to-day 
 for national control are the same distinguished gentlemen whom the gen- 
 tleman from New York described in such glowing and accurate terms. 
 They are the presidents of the life insurance companies themselves. 
 
 My position about that is my position about the great subject of gov- 
 ernment in general. Because I have seen the people fail, because I have 
 seen abuse prosper, because I have seen the wicked and the powerful 
 flourish as the green bay tree, it has not made me believe less in the 
 people, but only more. The day may be postponed, but the day is not 
 going to be brought nearer by saying to the people, "You must not use 
 
820 AMERICAN FEDERAL GOVERNMENT 
 
 your power." It is not going to be brought nearer by concentrating the 
 power a long way from home. It is going to be brought nearer and 
 made more certain by making the people realize that in their own 
 hands, on their own heads, the sin and the saving lies. They must go 
 to work themselves, and they must do it through their agencies at 
 home. [Applause.] 
 
 Mr. COCKRAN. I would like to ask the gentleman from Kentucky 
 [Mr. Sherley] if the power of the Federal Government is any less the 
 power of the people than the power of the town, the power of the county, 
 or the power qf the State? 
 
 Mr. SHERLEY. I shall answer the gentleman in this way, and when I 
 have answered I shall not further detain the House by this dissertation 
 between the two of us, because I remember the gentleman's suggestion 
 that I should not have the egotism to think that I constitute the House 
 or that my private views and an explanation of them was the only matter 
 of discussion. I will answer the gentleman in this way, that my con- 
 ception of government, and the Democratic conception of government, 
 has been, first, that that government which governs least governs 
 best; second, that that government which stays closest home to the 
 people is most democratic and less liable to abuse, less liable to get 
 beyond control. It is easier for the people of the State of New York to 
 know something of their State government than it is for them to know 
 something of their National Government. It is easier for the people 
 of Kentucky to know more about their State government than they do 
 about the National Government. The fact that they do not know it is 
 not a contradiction of my statement. They could know it. This I 
 know, that when this country started on its career the State legislatures 
 contained the ablest of men ; that the time was when men resigned from 
 the National Congress to take a seat in their State legislature. That 
 may have been a false position, but it is not half so false a position as 
 that which to-day makes your State legislature a disregardable body, 
 and to which are sent men who are not capable of broad statecraft. 
 And I say to you if there is any hope for the redemption of America, 
 though the picture be as black as the gentleman has painted it, the 
 hope lies in going back to the people and letting them learn the old 
 lesson that they can not shirk responsibility, can not shift it off to 
 another forum and expect relief; they must get it at home, and that 
 thought was the cause of and excuse for my speech this morning. 
 [Applause.] 
 
 Mr. WILLIAMS. Mr. Chairman, it is great good fortune to have 
 listened to two such addresses as we have heard to-day, one from the 
 gentleman from Kentucky [Mr. Sherley], containing a clear analysis 
 and sound and philosophical exposition of the status of this question 
 in its relation to the Federal and the State governments a statement 
 of a lawyer, founded upon law, cool and clear; the other, an eloquent 
 
CENTRALIZATION 821 
 
 denunciation of wrong and vice and criminality in high place and an 
 exposition of the underlying ethics, excelled by nothing that I have 
 ever heard upon this floor. The gentlemen from New York and from 
 Kentucky agree in their conclusion, to wit, that the Federal Govern- 
 ment has no jurisdiction over the subject-matter of insurance. Now, 
 Mr. Chairman, these speeches have been a public benefit, but they have 
 been to some extent a personal injury, because they have cut out from 
 under me many of the things that I desired to say, because these gentle- 
 men have said them better. I shall, however, begin by saying that I 
 agree with the gentleman from Kentucky [Mr. Sherley] that what the 
 Irish call "home rule " is, as a rule, the most honest rule. [Applause.] 
 It is honest for the reason that the men who are the " rulers," so called, 
 the men in whom power is lodged, are neighbors of the men who lodge 
 it, personal acquaintances of theirs their characters intimately known 
 
 and because they exercise the power under the eyes of their neighbors 
 and friends, who can at intervals withdraw it. I believe in it in an as- 
 cending scale, leaving power in as far as can with safety be left 
 
 first to the individual, second to the family, third to the town, fourth 
 to the county, fifth to the State, and sixth, and then only when the Con- 
 stitution expressly or by necessary or obviously proper intendment dele- 
 gates it, to the Federal Government. Now, the gentleman from New 
 York [Mr. Cockran] has correctly said that all the liberties of the English- 
 speaking people were founded upon the assertion by the legislative body 
 of the taxing power. That is true; and while he can argue by analogy 
 to some extent between the British House of Commons and the Ameri- 
 can House of Representatives, he must remember the distinction between 
 the two. While it is absolutely true that the House of Commons exer- 
 cised its taxing power for the strengthening and enforcement and execu- 
 tion of the power which it had a legislative power it is also true 
 that the British House of Commons had an unlimited and original and 
 inherent legislative power and therefore the exercise of the taxing power 
 in order to execute that legislative power was totally a different and a 
 larger thing than ought to be the exercise of the taxing power by the 
 House of Representatives, which has only a limited power, a delegated 
 power. 
 
 Mr. Chairman, it can never happen that the power to tax can give jur- 
 isdiction over a subject-matter of taxation when dealing with the subject- 
 matter is neither delegated to the General Government nor prohibited to 
 the States. You must first have the jurisdiction over the subject-matter. 
 Then there follows, as the auxiliary or enforcing clause, the power to 
 tax, not only to raise revenue, but, if actual need be, to enforce the 
 power. If you have the power over the subject-matter, you may tax, 
 not only to bring a revenue, but to execute the power, if that be an 
 obviously proper or necessary means to the end of exercising the power. 
 For example, if the Federal Government has the power to forbid cer- 
 
822 AMERICAN FEDERAL GOVERNMENT 
 
 tain things, it may forbid them by taxation, let us say. I do not think 
 the distinguished gentleman from New York [Mr. Cockran] intended to 
 leave the impression which he left upon the mind of the gentleman from 
 Kentucky [Mr. Sherley], to wit, that the Federal power had any specific, 
 substantive power of taxation independently of all other powers granted 
 or denied in the Constitution of the United States. The power to deal 
 with the subject-matter must be there first. You ought never to form 
 a nexus between a subject-matter over which you have no constitutional 
 power and the Constitution itself by the assertion of it through the tax- 
 ing power. Taxes are always means to an end, not in themselves an 
 end. The end itself must be constitutional. 
 
 Now, I am perfectly aware of the fact there is a little weight in the 
 Supreme Court decisions that would seem to squint the other way if 
 unstudied, but it amounts to nothing if studied. Here is the Supreme 
 Court of the United States stating in effect that it would not undertake 
 to investigate the motives of Congress when exercising the taxing power. 
 In other words, it is a compliment to Congress, to the legislative body 
 from a coordinate branch, stating that it would not attribute to it the 
 bad motive of obtaining jurisdiction simply .by the assertion of the 
 taxing power. It takes for granted integrity of motive, intellectual in- 
 tegrity. Now, Mr. Chairman, there are two forms of centralization by 
 the Federal Government, one of which I am afraid we can not help and 
 the other one we can help, I think. That centralization which proceeds 
 from the exercise of clearly delegated power is a form of centralization 
 which, I fear, must go on. In so far as Congress has not already exer- 
 cised to the full its clearly delegated power it will in the course of his- 
 tory exercise it. Nor is there anything undemocratic in maintaining in 
 full integrity the expressly delegated powers of the General Government. 
 Jefferson said as much. 
 
 The other form of centralization, which is always vicious and an 
 usurpation, is to assert Federal jurisdiction by a pretext, whether it be 
 by the mere pretext of interstate commerce where no interstate com- 
 merce exists or whether it be by the pretext of the taxing power asserted 
 as a connecting link with the trust that the court will not examine our 
 motive; it is all the same; it is vicious and an usurpation. Now, let us 
 come to this particular question, Mr. Chairman. The Supreme Court 
 has spoken in this case and it has declared that insurance is not com- 
 merce of any sort and especially is it not interstate commerce. That 
 disposes of the question as to whether there is any jurisdiction under 
 the rule in the Committee on Interstate Commerce. To what committee 
 it should go I myself am a little in doubt. My opinion was that it ought 
 to have gone to the Committee on the Judiciary with instructions to 
 investigate the jurisdictional power of the Federal Government and to 
 report to this House, but the Chairman of the Committee on the Judi- 
 ciary not having made a fight for the jurisdiction and the committee mak- 
 
CENTRALIZATION 823 
 
 ing none, we are faced with the alternative of sending it to the Interstate 
 and Foreign Commerce or the Committee on Ways and Means. 
 ******** 
 
 Now, Mr. Chairman, that the Members of the House may catch the 
 reason for the distinction I have made, I will say that the Committee on 
 the Judiciary has jurisdiction for the purpose of reporting to the House 
 whether or not the Federal Government has jurisdiction. But, if they 
 were to report to the House that the Federal Government did have 
 jurisdiction, then the Judiciary Committee would not be the proper 
 committee to deal with the subject-matter, because that would depend 
 upon what ground they placed the constitutional jurisdiction of the 
 Federal Government. If they placed it, for example, on the ground 
 that it was interstate commerce, then the matter would go to that com- 
 mittee; if they would place it upon the ground that the exercise of the 
 taxing power made a jurisdiction an inconceivable thing for a lawyer 
 to do then it would go to the Committee on Ways and Means ; if 
 they said the Federal Government had no jurisdiction at all, then that 
 would settle the matter. That is the reason why I would not vote for 
 a general committal to the Judiciary Committee, while I would vote 
 for a committal to the Judiciary Committee with instructions to report 
 upon our jurisdiction. Now, let me proceed. 
 
 Mr. STEENERSON. Does not the message itself submit the question 
 to the House simply? I find on page 16 the following: 
 
 I repeat my previous recommendation that the Congress should also consider 
 whether the Federal Government has any power or owes any duty with respect 
 to domestic transactions in insurance of an interstate character. 
 
 Is not the question submitted by the message, whether or not we 
 have the power, and would a simple reference be a reference of that 
 question ? 
 
 Mr. WILLIAMS. It would not. Unless it is a committal requiring 
 investigation and report on the question of jurisdiction, then it is a com- 
 mittal for legislation as well. The President is no lawyer, I will say, 
 in answer further to the gentleman. He admits that he is not. That 
 is one of the things which he is not, which is accompanied by an admis- 
 sion on his part to that effect. There are not many things of that sort. 
 [Laughter.] 
 
 Now, Mr. Chairman, to go further in connection with this taxing 
 power nexus between the subject-matter and the Constitution of the 
 United States, just suppose you could have jurisdiction over any possible 
 subject-matter simply because you had the power of taxation, where 
 would it stop? Why, it would be a blanket clause that would cover 
 everything. Congress might to-morrow pass an act ordaining a direct 
 tax upon lands and apportioning it between the States, and then, inci- 
 
824 AMERICAN FEDERAL GOVERNMENT 
 
 dental to the power of taxation (if any power is to be exercised as inci- 
 dental to taxation, when really taxation is itself only incidental to other 
 and substantive powers, or itself substantive only to raise a revenue), 
 the Congress could go on and in the same act enact the Henry George 
 system of single tax. It could do anything, I do not care what. It 
 could to-morrow tax barrels, and then it could legislate that the barrel 
 should hold only so much, or should not hold less than so much, or 
 should have so many hoops, or should contain nothing but water. The 
 minute that gentlemen, on this side of the Chamber especially, ever 
 surrender the idea that the taxing power can make a nexus between the 
 subject-matter and the Constitution where no other nexus exists, then 
 we have surrendered to federalism, and we might as well go out of 
 business, because we as a party would have no right whatsoever to 
 exist. [Applause on the Democratic side.] 
 
 Now, Mr. Chairman, I want to talk a little about the subject-matter, 
 although my friends from New York and Kentucky have left me no 
 opportunity to grow eloquent upon the crimes and abuses of the present 
 conditions, nor the advantages of preserving inviolate the reserved 
 rights of the States as the sheet anchor of individuality and local 
 self-government . 
 
 Mr. Hepburn rose. 
 
 The CHAIRMAN (Mr. COCKS in the chair). Does the gentleman from 
 Mississippi yield to the gentleman from Iowa [Mr. Hepburn]? 
 
 Mr. WILLIAMS. Certainly. 
 
 Mr. HEPBURN. Will the gentleman permit me an interruption? 
 
 Mr. WILLIAMS. Yes. 
 
 Mr. HEPBURN. The gentleman from Mississippi has already spoken 
 with relation to the taxing power and to the power that might be exer- 
 cised under the commerce clause of the Constitution. The gentleman 
 from New York [Mr. Cockran] has suggested that there is another power, 
 lodged in the fourth section of the fourth article of the Constitution, that 
 each State shall be guaranteed a republican form of government. Will 
 the gentleman, before he leaves this branch of the subject, give us his 
 views as to the power that the Government of the United States may 
 have to control an insurance company through its undoubted power to 
 secure to a State a republican form of government ? 
 
 Mr. WILLIAMS. I will reply by saying that a republican form of gov- 
 ernment does not mean an honest government or incorrupt government, 
 as all of us have ascertained in these latter days, and that the constitu- 
 tional guaranty of a republican form of government is not a guaranty of 
 honest administration of government. It is a high tribute to my friend 
 from New York, his morals and his high ideals of republican govern- 
 ment, that he should have led to an unconscious confusion of the two in 
 that matter. There are a great many sorts of republican governments. 
 Historically we find that there have been democratic republican govern- 
 
CENTRALIZATION 825 
 
 ments like that of Athens, aristocratic republican governments like that 
 of Sparta, plutocratic republican governments like that of Venice, and 
 a mixed-up republican government like that we have a republic of 
 lesser republics, with two different sets of republican governments work- 
 ing along different lines with the power of the people over both checked 
 materially blocked in the Federal Government by the Senate, and 
 checked by the absolute veto of the Executive, neither of which is con- 
 sistent with, a pure democracy, but both quite consistent with a repub- 
 lican form of government. Undoubtedly what our forefathers meant by 
 the phrase was a government of law and not a government of one-man 
 power a monarchy, or any arbitrary government a government in 
 which the people, or at least those of them competent for governing, 
 should be the source of power and law, the form of its expression. They 
 had just come out from under the Monarchy of England. 
 
 Mr. COCKRAN. If the gentleman will permit me, I did not discuss 
 the corruption of the Government in regard to that. The point I made 
 was about a trust where the parties to the trust could not scrutinize the 
 methods of administration, and a fund which must grow, without any 
 possibility of distribution, were both elements in conflict with the ju- 
 dicial system established by every State and inconsistent with the secu- 
 rity of republican government, which had nothing to do with its growth. 
 
 Mr. WILLIAMS. Let me state what I understand by corruption, 
 because your supposition involves necessarily a presumption of corrup- 
 tion controlling or annulling government of the people. It presumes 
 the case of one man, or a few men, who had immense amounts of money, 
 enough to buy everything, that the people themselves had lost their vote 
 and their voting power because that one man or that one corporation 
 controlled everything and voted everybody by influencing or buying the 
 voters, or else by influencing or buying legislators, judges, or juries. 
 That would undoubtedly be corruption, but it would be corruption under 
 spirit " a republican form of government." The republican governmental 
 might have departed, true enough. If there were any law that gave 
 that man or corporation the sole power, that would not be a republican 
 form of government ; that would simply be a corrupt monarchical form 
 of government. If you let the State of New York alone ; if you leave it 
 to itself ; if you carry the government right to the door of her people and 
 let them alone, they will root up and eradicate this evil. They won't 
 have it long. Where you carry responsibility you give experience, and 
 where experience is gained you find ability, and with both you have 
 watchfulness, and with watchfulness virtue, courage, and honesty. That 
 has always been the case. [Loud applause.] 
 
XVI 
 THE NATIONAL CONVENTION 
 
 THE REPUBLICAN CONVENTION OF 1880 ' 
 
 [The two subsequent articles are among the most interesting accounts ever 
 given of National Conventions. Senator Hoar, from whose autobiography the 
 first account is taken, was the permanent chairman of the Republican Con- 
 vention of 1880, which he describes. Mr. A. P. Dennis was a delegate to the 
 Democratic Convention of St. Louis in 1904.] 
 
 THIS convention was menaced by a very serious peril. A plan was 
 devised which, if it had been successful, would, in my judgment, have 
 caused a rupture in the convention and the defeat of the Republican 
 Party in the election. The Chairman of the Republican National Com- 
 mittee was Don Cameron of Pennsylvania, then and for some years 
 afterward a Senator of the United States from that State. He was an 
 ardent supporter of President Grant and had been Secretary of War in 
 his Cabinet, as his father had been in the Cabinet of President Lincoln. 
 Like his father before him, he had ruled the Republican Party of Penn- 
 sylvania with a strong hand. He was not given to much speaking. He 
 was an admirable executive officer, self-reliant, powerful, courageous, 
 and enterprising, with little respect for the discontent of subordinates. 
 He was supported by a majority of the delegates from Pennsylvania, 
 although Elaine, who was a native of that State, had a large following 
 there. The New York delegation was headed by Roscoe Conkling, 
 who had great influence over Grant when he was President, and ex- 
 pected to retain that influence if he became President again. The 
 Maryland delegates were headed by J. A. J. Croswell, who had been 
 Postmaster- General more than five years in Grant's two Administra- 
 tions. On the Massachusetts delegation, as I have said, was Governor 
 Boutwell, Grant's Secretary of the Treasury during nearly the whole 
 of his first term, and on that from Illinois John A. Logan. These men 
 had a large following over the whole country. There were three hun- 
 dred and eight persons in the convention who could be counted on to 
 
 1 From the Autobiography of Senator Hoar (Vol. I, 388), reproduced by permission 
 of the Publishers, Chas. Scribner's Sons, New York. Copyright. 
 
 826 
 
THE NATIONAL CONVENTION 827 
 
 support Grant from beginning to end, and about a dozen more were 
 exceedingly disposed to his candidacy. The State Conventions of the 
 three largest and most powerful States, New York, Pennsylvania, and 
 Illinois, and possibly one or two others, that I do not now remember, 
 had instructed their delegates to vote as a unit for the candidate who 
 should be agreed upon by the majority. Grant had a majority in each 
 of these States. But there was a minority of 1 8 in Illinois, 26 in Penn- 
 sylvania, and 19 in New York, who were for other candidates than Grant. 
 If their votes had been counted for him it would have given Grant on 
 the first ballots 367 votes, 13 less than the number necessary for a choice. 
 As his votes went up on'one of the ballots to 313, it is pretty certain that 
 counting these 63 votes for Grant would have insured his nomination. 
 But there were several contests involving the title of their seats of 16 
 delegates from the State of Louisiana, 18 from Illinois, and three others. 
 In regard to these cases the delegates voted in accordance with their 
 preference for candidates. This was beside several other contests where 
 the vote was not determined by that consideration. Now if the vote of 
 Illinois, Pennsylvania, and New York had each been cast as a unit, in 
 accordance with the preference of the majority of the delegation in 
 each case, these 37 votes would have been added to Grant's column and 
 subtracted from the forces of his various antagonists ; and the 63 votes 
 of the minority of the delegations in these three States would also have 
 been added to the Grant column, which would have given him a total 
 vote of more than 400, enough to secure his nomination. So the result 
 of the convention was to be determined by the adoption or rejection of 
 what was called the unit rule. 
 
 Don Cameron, the Chairman of the National Committee, left the 
 Senate for Chicago about ten days, I think, before the day fixed for the 
 meeting of the convention. It was whispered about before his departure 
 that a scheme had been resolved upon by him and the other Grant 
 leaders, which would compel the adoption of the unit rule, whatever 
 might be the desire of the convention itself. It was his duty, accord- 
 ing to established custom, to call the convention to order and to receive 
 nominations for temporary presiding officer. He was pledged, upon 
 those nominations, as it was understood, to hold that the unit rule must 
 be applied. In that way the sitting members from the disputed States 
 and districts would be permitted to vote, and the votes of the three 
 States would be cast without dissent for the Grant candidates. When the 
 temporary President took his place he would rule in the same way on 
 the question of the choice of a permanent President, and the perma- 
 nent President would rule in the same way on the conflicting votes, for 
 the appointment of committees, for determining the seats of dele- 
 gates, and finally the nomination of the candidates for President and 
 Vice-President. If the minority claimed the right to vote and took an 
 appeal from his decision, he was to hold that on the vote on that appeal 
 
828 AMERICAN FEDERAL GOVERNMENT 
 
 the same unit rule was to apply. If a second point of order were raised,- 
 he would hold, of course, that a second point of order could not be raised 
 while the first was pending. So the way seemed clear to exclude the 
 contesting delegates, to cast the votes of the three great States solid for 
 Grant, and compel his nomination. 
 
 But the majority of the National Committee, of which Cameron was 
 Chairman, was opposed to Grant. They met, I think, the day before 
 the meeting of the convention to make the preliminary arrangements. 
 Mr. Cameron, the Chairman, was asked whether it was his purpose to 
 carry out the scheme I have indicated. He refused to answer. A mo- 
 tion was then made that the Chairman, after calling the convention to 
 order, be instructed to receive the vote of the individual delegates with- 
 out regard to the instruction of the majority of their delegation. Cameron 
 refused to receive motions on that question, saying that it was a matter 
 beyond the jurisdiction of the committee. A large part of the entire 
 day was spent in various attempts to induce Cameron either to give a 
 pledge or permit a resolution to be entertained by the committee, in- 
 structing him as to his action. He was supported by Mr. Gorham, of 
 California, who I believe was not a member of the committee, but was 
 present either as Secretary or as Amicus Curae. He was an experienced 
 parliamentarian, and for a long time had been Secretary of the Senate 
 of the United States. The discussion for the majority was conducted 
 largely by Mr. Chandler, of New Hampshire, afterward Secretary of 
 the Navy, and later Senator. After spending a large part of the day in 
 that discussion, some time in the afternoon an intimation was made, 
 informally, and in a rather veiled fashion, that, unless they had more 
 satisfactory pledges from Mr. Cameron, he would be removed from 
 the office of Chairman, and a person who would carry out the wishes 
 of the committee be substituted. The committee then adjourned until 
 the next morning. Meantime the Grant managers applied to Colonel 
 Strong, of Illinois, who had been already appointed Sergeant-at-Arms 
 by the committee, and who was a supporter of Grant, to ascertain 
 whether, if the committee were to remove Cameron and appoint an- 
 other chairman, he would recognize him as a person entitled to call the 
 convention to order and preside until a temporary Chairman was chosen, 
 and would execute his lawful orders, or whether he would treat them 
 as without effect and would execute the orders of Cameron. He desired 
 time for consideration, which was conceded. He consulted Senator 
 Philetus Sawyer of Wisconsin, who was himself in favor of General 
 Grant, but who desired above all things the success of the Republican 
 Party, or was not ready for any unlawful or revolutionary action. Mr. 
 Sawyer was a business man of plain manners, and though of large ex- 
 perience in public life, was not much versed in parliamentary law. He 
 called into consultation ex-Senator Timothy O. Howe, of Wisconsin, 
 formerly Senator from that State, and afterward Postmaster- General 
 
THE NATIONAL CONVENTION 829 
 
 under Arthur. He was a very able and clearheaded lawyer, and had a 
 high reputation for integrity. He advised Mr. Strong that the com- 
 mittee might lawfully depose their Chairman and appoint another, and 
 that it would be his duty, as Sergeant-at-Arms, to recognize the new 
 Chairman and obey his lawful orders. Strong was under great obliga- 
 tions to Sawyer, who had aided him very largely in business matters, 
 and had a high respect for his judgment. He gave his response to the 
 Grant leaders in accordance with the advice of Mr. Howe, in which 
 Senator Sawyer concurred. They had intended to make General Cres- 
 well the President of the convention. But finding it impossible to carry 
 their plans into effect, in order to prevent the severe measure of depos- 
 ing the Chairman of the committee, they consented that the assurances 
 demanded should be given. There was then a negotiation between the 
 leaders on the side of Grant and Elaine for an agreement upon a pre- 
 siding officer. It was well known that I was not in favor of the nomina- 
 tion of either. Senator Hamlin, formerly Vice-President and then a 
 Senator, proposed my name to Mr. Conkling as a person likely to be 
 impartial between the two principal candidates. Mr. Conkling replied 
 that such a suggestion was an insult. Hamlin said: "I guess I can 
 stand the insult." But on consultation of the Grant men and the Blaine 
 men it was agreed that I should be selected, which was done accord- 
 ingly. I was nominated orally from the floor when Mr. Cameron called 
 the convention to order, and chosen temporary President by acclama- 
 tion and unanimously. As proceedings went on it was thought best 
 not to have any division or question as to a permanent Chairman and 
 it was at the proper time ordered, also without objection, that I should 
 act as permanent President. 
 
 But the Grant leaders were still confident. They felt sure that none 
 of their original votes, numbering three hundred and more, would de- 
 sert them, and that it would be impossible for the rest of the convention, 
 divided among so many candidates, to agree, and that they would in 
 the end get a majority. 
 
 I was myself exceedingly anxious on this subject. I also felt that if 
 the followers of Grant could get any pretext for getting an advantage 
 by any claim, however doubtful, that they would avail themselves of it, 
 even at the risk of breaking up the convention in disorder, rather than 
 be baffled in their object. So the time to me was one of great and dis- 
 tressing responsibility. The forces of Grant were led on the floor of the 
 convention by Roscoe Conkling, who nominated him in a speech of 
 great power and eloquence. The forces of Blaine were led, as they 
 had been in 1876, very skillfully by Senators Hale and Frye. Garfield 
 was the leader of the supporters of Mr. Sherman. One of the greatest 
 oratoric triumphs I ever witnessed was obtained by Garfield. There 
 had been a storm of applause, lasting, I think, twenty-five minutes, at 
 the close of Conkling's nominating speech. It was said there were 
 
830 AMERICAN FEDERAL GOVERNMENT 
 
 fifteen thousand persons in the galleries, which came down very near 
 the level of the floor. The scene was of indescribable sublimity. The 
 fate of the country, certainly the fate of a great political party, was at 
 stake, and, more than that, the selection of the ruler of a nation of fifty 
 millions of people a question which in other countries could not 
 have been determined, under like circumstances, without bloodshed 
 or civil war. I do not think I shall be charged with exaggeration when 
 I speak of it in this way. I can only compare it in its grandeur and 
 impressiveness to the mighty torrent of Niagara. Perhaps I can not 
 give a satisfactory reason for so distinguishing it from other like as- 
 semblies that have gathered in this country. But I have since seen a 
 great number of persons from all parts of the country who were present 
 as members or inspectors, and they all speak of it in the same way. A 
 vast portion of the persons present in the hall sympathized deeply with 
 the supporters of Grant. Conkling's speech, as he stood almost in the 
 center of that great assembly on a platform just above the heads of the 
 convention, was a masterpiece of splendid oratory. He began : 
 
 And when asked what State he hails from, 
 
 Our sole reply shall be, 
 He comes from Appomattox, 
 
 And its famous apple-tree. 
 
 It was pretty 'difficult for Garfield to follow this speech in the tempest 
 of applause which came after it. There was nothing stimulant or ro- 
 mantic in the plain wisdom of John Sherman. It was like reading a 
 passage from "Poor Richard's Almanac" after one of the lofty chapters 
 of the Psalms of David. Garfield began quietly: 
 
 "I have witnessed the extraordinary scene of this convention with deep 
 solicitude. Nothing touches my heart more quietly than a tribute of honor to 
 a great and noble character. But as I sat in my seat and witnessed this dem- 
 onstration, this assemblage seemed to me a human ocean in a tempest. I have 
 seen the sea lashed into fury and tossed into spray, and its grandeur moves 
 the soul of the dullest man ; but I remember that it is not the billows, but the 
 calm level of the sea from which all heights and depths are measured. When 
 the storm has passed and the hour of calm settles on the ocean, when the sun- 
 light bathes its peaceful surface, then the astronomer and surveyor take the 
 level from which they measure all terrestrial heights and depths. 
 
 "Gentlemen of the Convention, your present temper may not mark the 
 healthful pulse of our people. When your enthusiasm has passed, when the 
 emotions of the hour have subsided, we shall find below this storm and passion 
 that calm level of public opinion from which the thoughts of a mighty people 
 are to be measured, and by which their final action will be determined. 
 
 "Not here, in this brilliant circle where fifteen thousand men and women 
 are fathered, is the destiny of the Republic to be decreed for the next four 
 years not here, where I see the enthusiastic faces of seven hundred and 
 fifty-six delegates, waiting to cast their lot into the urn and determine the 
 
THE NATIONAL CONVENTION 831 
 
 choice of the Republic; but by four millions of Republican firesides, where 
 the thoughtful voters, with wives and children about them, with the calm 
 thoughts inspired by love of home and country, with the history of the past, 
 the hopes of the future, the reverence for the great men who have adorned 
 and blessed our nation in days gone by, burning in their hearts there God 
 prepares the verdict which will determine the wisdom of our work to-night. 
 Not in Chicago, in the heat of June, but at the ballot-boxes of the Republic, in 
 the quiet of November, after the silence of deliberate judgment, will this ques- 
 tion be settled." 
 
 Conkling, while executing the admiration of all men for his dexterity 
 and ability, lost ground at every step. He made a foolish attempt to 
 compel the passage of a resolution depriving of their rights to vote dele- 
 gates who refused to pledge themselves to support the choice of the 
 convention whoever it might be. His speech nominating Grant con- 
 tained a sneer at Elaine. So, while he held his forces together to the 
 last, he made it almost impossible for any man who differed from him 
 in the beginning to come to him at the end. On the contrary every- 
 thing that Garfield said was marked by good nature and good sense. 
 I said on the first day of the convention that in my opinion if the dele- 
 gates could be shut up by themselves and not permitted to leave the 
 room until they agreed, the man on whom they would agree would be 
 General Garfield. This desire became more and more apparent as 
 the convention went on. At last, on the thirty-sixth ballot, and the sixth 
 day of the convention, the delegates who had previously voted for other 
 candidates than Grant, began to wheel into line for Garfield. Gar- 
 field had one vote from the State of Pennsylvania in previous ballots. 
 But on the thirty-fourth ballot in Wisconsin, the last State to vote in 
 alphabetical order, had given him her sixteen votes, and on the thirty- 
 sixth ballot she was joined by the delegates who had voted for other 
 candidates than Grant. Grant held together his forces till the last, 
 receiving three hundred and thirteen votes on the thirty-fifth ballot, 
 and three hundred and sixty on the thirty-sixth. It was a sublime 
 movement, which it was hoped would determine the destiny of the 
 Republic for many years, a hope which was cruelly disappointed by 
 Garfield's untimely death. It was, as might be well believed, a move- 
 ment of sublime satisfaction to me. Garfield had been my friend for 
 many years. I had sat close to him in the House of Representatives 
 for three terms of Congressional service. He had been my guest at 
 my house in Worcester; and I had been his colleague on the Electoral 
 Commission in 1876. He had been educated at a Massachusetts col- 
 lege. He was of old Middlesex County stock. We were in thorough 
 accord in our love for New England, our firm faith in her hereditary 
 principles, and our pride in her noble history. 
 
 Garfield had been charged, in accepting the nomination for the 
 Presidency, with having been untrue to the interests of John Sherman, 
 
832 AMERICAN FEDERAL GOVERNMENT 
 
 who was the candidate of Ohio, and whom Garfield had supported 
 faithfully through every ballot. The charge is absolutely unjust. Mr. 
 Sherman's nomination was seen by everybody to have been absolutely 
 impossible long before the final result. I was in constant consultation 
 with leaders of the different delegations who were trying to unite their 
 forces. There never was any considerable number of those persons 
 who thought the nomination of Mr. Sherman practicable, notwith- 
 standing the high personal respect in which they held him. At the close 
 of the thirty-fourth ballot, when Garfield received seventeen votes, and 
 the following incident took place : 
 
 Mr. GARFIELD of Ohio: "Mr. President " 
 
 The PRESIDENT: "For what purpose does the gentleman rise?" 
 
 Mr. GARFIELD: "Rise to a question of order." 
 
 Mr. GARFIELD: "I challenge the correctness of the announcement. The 
 announcement contains votes for me. No man has a right, without the consent 
 of the person voted for, to announce that person's name, and vote for him, in 
 this convention. Such consent I have not given." 
 
 The PRESIDENT: "The gentleman from Ohio is not stating a question of 
 order. He will resume his seat. No person having received a majority of the 
 votes cast, another ballot will be taken. The Clerk will call the roll." 
 
 This verbatim report is absolutely correct, except that where there is 
 a period at the end of Mr. Garfield's last sentence there should be a 
 dash, indicating that the sentence was not finished. I recollect the in- 
 cident perfectly. I interrupted him in the middle of his sentence. I 
 was terribly afraid that he would say something that would make his 
 nomination impossible, or his acceptance impossible, if it were made. 
 I do not believe it ever happened before that anybody who attempted 
 to decline the Presidency of the United States was to be prevented by a 
 point of order, or that such a thing will ever happen again. 
 
 During the thirtieth ballot a vote was cast by a delegate from the 
 Territory of Wyoming for General Philip H. Sheridan. General Sheri- 
 dan, who was upon the platform as a spectator, came forward instantly 
 and said: "I am very much obliged to the delegate from Wyoming for 
 mentioning my name in this convention, but there is no way in which I 
 could accept a nomination from this convention, if it were possible, 
 unless I should be permitted to turn it over to my best friend." The 
 President said: "The Chair presumed the unanimous consent of the 
 convention to permit the illustrious soldier who has spoken to interrupt 
 its order for that purpose. But it will be a privilege accorded to no 
 other person whatever." The General's prompt suppression of this 
 attempt to make him a candidate was done in a direct and blunt sol- 
 dierly fashion. I did not think it best to apply to him the strictness of 
 parliamentary law; and in that I was sure of the approval of the con- 
 vention. But the precedent of permitting such a body to be addressed 
 
THE NATIONAL CONVENTION 833 
 
 under any circumstances by a person not a member would be a danger- 
 ous one, if repeated. Perhaps I may with propriety add one thing of 
 personal nature. It has been sometimes charged that the delegates 
 from Massachusetts were without great influence in shaping the result 
 of this convention. They moved, and carried, against a formidable 
 opposition, the civil service plank, which embodied the doctrine of civil 
 service reform as among the doctrines of the Republican Party. Of 
 whatever value may be attributed to the humble services of the President 
 of the Convention, they are entitled to the credit. They had, I think, 
 more to do than any other delegation with effecting the union upon 
 Garfield. Of course the wish of Mr. Elaine had very great influence 
 indeed. I think he preferred Garfield to any other person except Robert 
 Lincoln, of Illinois, of whom he spoke to me as a person from whom it 
 would be impossible to keep the votes of the colored delegates from 
 the South, and who would be, by reason of the respect felt for his 
 father's memory, highly acceptable through the country. But Mr. 
 Lincoln, under the circumstances, could not have got the support of his 
 own State, and without it it seemed unwise to attempt a union upon him. 
 
 THE DEMOCRATIC CONVENTION OF 1904' 
 BY ALFRED PEARCE DENNIS 
 
 IN the last national campaign no political maxim fell with greater 
 unction and finality from the mouths of Democratic orators than the 
 apothegm: "Our government is one of laws, not men." To the mind 
 of the foreign student legalism is of the essence of American political 
 institutions. The competence of executive officials, both federal and 
 State, is not only strictly defined by the organic law but further limited 
 by the prescriptions of statutory enactment. Legislative bodies in turn 
 are strictly subordinate under the provisions of organic law; they can 
 not step outside the legal bounds defined by written constitutions. Every 
 executive official in the land, from the occupant of the White House to 
 the hog-reeve of a New England village, is strictly limited in the scope 
 of his administrative duties by laws which he is powerless to alter. 
 Every law-making body, in turn, from the national Congress to the petti- 
 est city council, is restrained in its legislative competence by the limita- 
 tions of laws which it may not change. As one notes the immense mass 
 and particularity of our statutory law and the network of minute restric- 
 tions cast about legislatures by the fundamental law, one naturally 
 concludes that American governmental doctrine is but an amplified 
 affirmation of Job's theory that " man is born unto trouble as the sparks 
 fly upward," and that, if he is to be saved, it is not to be through his 
 
 1 From the Political Science Quarterly, June, 1905. 
 53 
 
834 AMERICAN FEDERAL GOVERNMENT 
 
 own goodness of heart or personal discretion, but through the external 
 compulsion of unyielding law. 
 
 In view of the legalism that pervades our political processes, one is 
 amazed to find that the great bodies which name our presidents are 
 subjected to no external legal control. The idea of a nominating con- 
 vention is neither a political inheritance nor a conscious contrivance. 
 It is an evolutionary product; it is a development of the party system, 
 just as the party system, in turn, is the product of a decentralized ad- 
 ministrative system. A multitude of men must be selected to express 
 and also to execute the will of the State. Our theory of government 
 separates the functions of expression and execution. The harmonious 
 working of the governmental system demands the coordination of the 
 two. The means of coordination, as is clearly shown by Professor 
 Goodnow in his Politics and Administration, has been found in an 
 extra-legal institution, the political party. The national convention, 
 which represents the supreme expression of the will of the party, is, like 
 the party itself, an extra-legal institution. Great changes, unrecognized 
 by the law and unenforced by the courts, have been wrought in our 
 institutional fabric through the unfolding processes of national life. 
 The national convention, an unfathered institutional waif, may at no 
 distant day be formally adopted and placed under the control of the 
 national government. Much may be said for the formal recognition 
 and legal control of this robust extra-legal institution, if the national 
 convention is to represent the best thought and the highest motives of 
 the party which calls it into being. 
 
 The conduct of the last Democratic national convention furnishes 
 strong presumptive evidence that the evolutionary process will not stop 
 at the present point, but that changes in the direction of increased 
 dignity and deliberation will be demanded of the great bodies which 
 nominate our highest governmental magistrate. That the St. Louis 
 convention was, in any true sense, a deliberative body will be denied 
 by any close observer of its proceedings. A thousand delegates and an 
 equal number of alternates elected by various processes many of the 
 alternates actually present by no process at all met in the hottest 
 month of the year in the pit of an oven-like building in one of the hottest 
 cities of the border States. Crowded in with delegates and alternates 
 at the bottom of the pit were reporters, amateur policemen, and 
 hangers-on of every description. Ten thousand spectators filled the 
 huge galleries, and a motley throng of jostling, perspiring humanity 
 jammed the aisles and exits the whole comprising the dramatis per- 
 sona in a serio-comic four-act extravaganza, known as the St. Louis 
 convention. Strictly speaking, there were no spectators ; all were actors. 
 If not privileged to occupy the center of the stage, each person present 
 was privileged to occupy a place in that assemblage which theatrical 
 folk describe, without differentiation, as the "mob." It is all the same 
 
THE NATIONAL CONVENTION 835 
 
 whether soldiers, village clowns, or chorus girls compose this assemblage. 
 The mob is an indispensable adjunct in the representation of a great 
 spectacular piece. In the St. Louis Coliseum the mob overplayed its 
 part. It was not content to occupy the background, but again and 
 again persisted in usurping the functions of the real actors in the fore- 
 ground who had come upon the stage with speaking parts. 
 
 As a delegate to the convention, the writer ventures to record some 
 personal impressions of the conduct of that body, and briefly to add a 
 conclusion or two as to the bearing of it all upon future methods of 
 selecting presidential nominees. 
 
 The prologue of the drama was spoken by Mr. John Sharp Williams, 
 temporary chairman of the convention. Even in a real play not much 
 attention is given to the prologue. The arrival of late-comers, the ar- 
 rangement of seats, the buzz of conversation go on. Playgoers begin to 
 settle down and give attention when the curtain rises and the real action 
 begins. After a few minutes of curious interest in Mr. Williams, the 
 mob fell to discussing its own affairs. The speaker's voice, overtaxed 
 in the effort to make itself heard above the confusion, broke down 
 almost entirely, and after the first ten minutes was scarcely audible 
 even to the front-benchers. The address as printed is sensible, well- 
 phrased, and keen in argument, but as delivered the speech was a fail- 
 ure. It was trying, even for delegates, to sit for an hour and forty 
 minutes watching the moving lips and occasional gestures of a distant 
 speaker, and to fail utterly to follow the thread of his argument. The 
 mention of Mr. Cleveland's name infused a tonic property into the 
 dreary proceeding. The cheering of near-by delegates was taken up 
 by others, reached the galleries, and continued without cessation for 
 thirteen minutes. 
 
 At the conclusion of Mr. Williams's address the committee on cre- 
 dentials submitted its report. Two points of interest are to be noted 
 in this connection : first, the ruling of the chair that it is not within the 
 power of the committee on credentials to admit delegates from the Philip- 
 pines, inasmuch as these islands are declared by the Supreme Court not 
 to be a part of the United States ; and second, the adoption by the con- 
 vention of the committee's majority report seating the Hopkins delegates 
 from the State of Illinois. At this stage Colonel William J. Bryan ap- 
 peared for the Harrison contesting delegates and moved the adoption 
 of a minority report. His address aroused the galleries to a frenzy of 
 enthusiasm. Per se the appeal was a powerful one, and it is safe to assert 
 that the majority of the delegates were convinced that the cause Colonel 
 Bryan championed was relatively if not absolutely righteous. And yet, 
 on the balloting, delegation after delegation voted to validate the cre- 
 dentials of men who were obviously not entitled to them. There were 
 two reasons for this. First, the feverish dread of a "Bryan stampede," 
 and second, the desire to rebuke the obvious attempt of the mob to run 
 
836 AMERICAN FEDERAL GOVERNMENT 
 
 the convention. Ten thousand people had cheered Colonel Bryan wildly 
 and irresponsibly during the hour he held the platform, and this same 
 crowd had refused to listen three minutes without derisive shouts and 
 interruptions to the men who vainly endeavored in the hubbub to present 
 the other side of the case. It was later, in the Committee on Resolu- 
 tions, that Colonel Bryan won his most signal victory. On the conven- 
 tion floor, where he was deliriously supported by a vulgar claque that 
 refused his opponents a decent hearing, and on an issue for which he 
 was thrice-armed because of the justice of his contention, Colonel Bryan 
 was beaten by a vote of 647 to 299. 
 
 With the adoption of the report of the committee on permanent organ- 
 ization, Hon. Champ Clark, as permanent chairman, read a long and 
 rambling speech, which had a sedative effect upon his fellow Missou- 
 rians in the galleries, who could but imperfectly hear it, and a benumbing 
 effect upon those near-by delegates who had not left their seats before 
 its conclusion. This was the end of the second day's labor of the con- 
 vention. 
 
 While waiting for the report of the committee on resolutions, the 
 convention occupied the morning session of the third day in roll-calls 
 for the formal selection of the new national committee and the naming 
 of honorary vice-presidents. During a lull in this time-killing employ- 
 ment some one called for a speech from Captain Richmond Pearson 
 Hobson. Captain Hobson possesses an impressive mien and a resonant 
 bass voice. "We want no Cromwell in this land of liberty !" he loudly 
 declared. Here was relief from the tedium of business and from the 
 strain of listening to speeches which could not be heard. The crowd 
 in the galleries sank restfully back into their seats and gratefully gave 
 ear. "I can see," cried the man of arms in notes of bugle clearness, 
 
 the plains of Illinois as the infantry assembles. I can see the hill-tops of the 
 Hudson and the Mohawk, where the artillery is located. I look to the ranks of 
 Democracy when our battle-flags are unfurled. I see a Wellington take up the 
 standard of Democracy; yes, from New York to Illinois, and from Illinois to 
 California, the battle lines are extended. Here are our armies; let us make 
 the Republicans give name to the battle field let's make them call it 
 Waterloo ! 
 
 Now the cold-eyed cynic might possibly regard this performance as a 
 perfect and exact illustration of the forcible-feeble style of oratory, but 
 the piece pleased the audience mightily. With the exception of Colonel 
 Bryan no man who addressed the convention was hearkened to with 
 more deferential attention than was Captain Hobson. 
 
 The all-night session which resulted in the nomination of Judge 
 Parker opened with the reading of the platform by Senator John W. 
 Daniel. The Coliseum was thronged, but there was nothing spectacular 
 about the platform, and the mob was there for a spectacle. Every man 
 
THE NATIONAL CONVENTION 837 
 
 seemed free to wander as he willed. Informal social caucuses met here 
 and there. A hum and a buzz as of five hundred afternoon tea-parties 
 filled the great hall. On, on, read the speaker, never faltering, never 
 raising his voice, never heard. He might have been describing the mural 
 decorations of the imperial palace at Pekin or the habits of the Missis- 
 sippi river catfish, for all his auditors knew or cared. At the close no 
 one expressed approval or disapproval of the party creed thus formally 
 enunciated. Of the character of the platform the delegates and mob 
 alike could form no opinion from the evidence laid before the convention. 
 With the adoption of the platform an all-night carnival of oratory 
 began. Eight names were formally placed before the convention, with 
 a total of thirty-five nominating and seconding speeches. The majority 
 of these speeches were stupid and tiresome. The cheap grandiloquence 
 of the panegyrical orator ordinarily rose to its height with the enuncia- 
 tion of the favorite son's name at the end of the speech. There were 
 some notable deviations from the prevailing type of convention declama- 
 tion. Hon. Martin W. Littleton proved himself a master of the difficult 
 art of convention oratory. In his address naming Judge Parker, Mr. 
 Littleton's voice rose to clearness and strength; his words certainly 
 stirred the imagination if they did not convince the understanding ; and 
 his speech really infused an element of genuine enthusiasm into the 
 Parker demonstration which ensued. The ponderous oratory of Mr. 
 D. M. Delmas, who placed the name of Hon. William R. Hearst before 
 the convention, proceeded with the stately gravity and inexorable se- 
 quence of the cosmic process itself. But the piece dragged after five 
 minutes, and few gave heed except those who felt it their business to do 
 so. Of the Hearst seconding speeches, that of Mr. Clarence Darrow, 
 of Chicago, was refreshing in its obvious sincerity. With the impetuous 
 vigor of a Mirabeau he urged the convention to pause before placing 
 men in charge who, in past time, had scuttled the Democratic ship. 
 Quite out of the ordinary, too, was Hon. Champ Clark's good-natured 
 nominating speech for Senator Cockrell. "This is a great historical 
 occasion," he began, "and I am about to make a great historical speech." 
 "They say that Roosevelt is a brave man," he declared in conclusion, 
 "but old man Cockrell is as brave as he." In fine contrast to this speech 
 was the dignified and impressive speech of General Collins, presenting 
 the name of Hon. Richard Olney, of Massachusetts. In a voice ade- 
 quate to the trying occasion he appealed in a brief, sententious and 
 sincere argument to the intelligence of the convention. His words were 
 followed by the delegates with the closest attention. Two more hours 
 dragged wearily by, as orator after orator rose in the call of states. It 
 was past four o'clock in the morning when Wisconsin was reached on 
 the roll-call and Colonel Bryan strode to the platform. It was for this 
 that fifteen thousand men and women had remained steadfastly in the 
 uncomfortable seats and the vitiated atmosphere of a veritable fire-trap 
 
838 AMERICAN FEDERAL GOVERNMENT 
 
 all the long night. The most ingenious stage director could not have 
 planned a more theatrical setting. Earlier in the night Nebraska had 
 given way to Wisconsin, which presented the name of Wall. Wisconsin 
 now yielded to Nebraska, and thus gave Colonel Bryan the last word. 
 A passionate cry burst from the lips of the multitude as the great cham- 
 pion of social democracy advanced to the platform. The appearance 
 of the man heightened the dramatic effect of the scene. The marks of 
 battle and of sleeplessness were upon him. His face was ashen, the lips 
 compressed to a thin line, the eyes sunken in their sockets; the voice 
 was husky and the figure drooped with fatique. He began to speak. A 
 passion of soul seemed to communicate its fire to the spent body. The 
 dull eyes of the speaker glowed with an almost fanatical earnestness. 
 The gestures fell in quick, nervous rhythm ; the voice, gaining in strength, 
 rang out clear. The man seemed essentially a preacher, the embodiment 
 of force and earnestness, with all the fire of a Whitefield and the passion 
 of a Chrysostom. 
 
 Eight years ago [he said] a Democratic convention placed in my hands the 
 standard of the party, and gave me the commission as its candidate. Four 
 years later that commission was renewed. I come to-night to this Democratic 
 convention to return the commission, and to say that you may dispute whether 
 I fought a good fight, you may dispute whether I finished my course, but you 
 can not deny that I have kept the faith. 
 
 With tense, drawn faces and streaming eyes men hung upon the words 
 of the orator, as with studied pathos he reviewed the causes of his defeat 
 and asserted that, though men of the party had deserted him in time of 
 need, he himself would remain true to the principles of his party. As 
 he closed with a summing up of the whole case against Parker's nomina- 
 tion, the sunlight of another midsummer's day was streaming through 
 the windows of the convention hall, dimming the feeble electric lights 
 and throwing the great yellow-decked roof into shadow. An outburst 
 of frenzied cheering, elemental and uncontrollable like the roaring of 
 the sea, rose from the ranks of the mob, while from the floor of the great 
 hall, littered over with papers, the dust rose under the trampling of 
 many feet as the smoke of battle rises from a crowded, hard-fought field. 
 No stage could provide such a setting. No playgoing audience could 
 afford such psychic possibilities. Nerves, racked and worn by nine hours 
 of speechmaking, responded to a supreme stimulus, not in the conven- 
 tional language of applause but in the incoherent language of hysteria. 
 It was a study in mob psychology ; a scene which witnessed once is un- 
 forgettable. At last the tumult and the shouting dies ; the call of States 
 begins; Judge Parker is nominated on the first ballot. Colonel Bryan's 
 impassioned appeal had not changed the vote of a single delegate. 
 
 An interesting point of order was raised during the roll-call of States 
 and decided by the presiding officer. When the State of Ohio was reached 
 
THE NATIONAL CONVENTION 839 
 
 the chairman of the delegation announced a vote of 46 for Parker. A 
 demand was immediately made for a poll of the delegation. The dele- 
 gation was polled and the result announced: Parker 28, McClellan 9, 
 Hearst 6, Cockrell 2, Olney i. The point of order was now raised by a 
 member of the delegation that the Ohio state convention had no right 
 to instruct the delegates to vote as a unit, inasmuch as the district dele- 
 gates had received their credentials from conventions held prior to the 
 time of holding the state convention. The point of order was overruled 
 by the chair in these words: 
 
 By express rule of the Democratic convention, the delegates come from a 
 state and not from districts. Under the call for delegates to the convention 
 each state is allowed as many delegates as it has senators and representatives 
 multiplied by two, and these delegates are the delegates of the state and not 
 the delegates of the districts, no matter how chosen. 
 
 It was therefore ordered that the entire vote of Ohio be recorded for 
 Parker, although his actual strength was but 28 out of 46 votes. This 
 ruling illustrates anew the distinctive difference between the practice 
 of a Democratic and that of a Republican national convention. There 
 is an intimate relationship at present between this so-called unit rule and 
 the two-thirds rule of the Democratic convention, though there is no 
 connection in origin between the two rules. So long as the unit rule is 
 upheld, the two-thirds rule will also prevail. Suppose, as was suggested 
 last spring in conservative circles when the Hearst boom began to assume 
 portentous proportions, that the two-thirds rule had been abrogated by 
 the convention, on the general theory that it is an undemocratic principle 
 to give a faction of one-third the legal right to defeat the choice of the 
 majority. Such a change might actually confer upon a minority not 
 only the negative power of defeating a nomination but the positive power 
 of making a nomination. A number of large states with pretty evenly 
 divided delegations might so combine as to control, under the unit rule, 
 a majority of the votes in the convention. A candidate might thus be 
 nominated who was really the choice of only a small minority of the 
 delegates, were the two-thirds rule abrogated and the unit rule retained. 
 Again, great Republican states, such as Pennsylvania, Massachusetts, 
 Ohio, Illinois and Iowa, might successfully combine and effect a nomina- 
 tion under a bare majority rule and yet not contribute a single electoral 
 vote to the success of the candidate so nominated. Thus the perpetua- 
 tion of the two-thirds rule rests upon the continuance of the unit rule, 
 and the perpetuation of the unit rule is due in large measure to the 
 traditional attitude of the Democratic party on the question of state 
 sovereignty. In Democratic theory, each state controls its delegation. 
 The Democratic convention recognizes an authority higher than itself. 
 The Republican convention does not. The Republican convention has 
 never allowed the states to use the unit rule. A clear statement of the 
 
840 AMERICAN FEDERAL GOVERNMENT 
 
 Republican doctrine was made by a delegate from Kansas in the con- 
 vention of 1876, when the question was raised as to the acceptance of a 
 unit vote from the state of Pennsylvania. 
 
 The principle involved in this controversy is whether the state of Penn- 
 sylvania shall make laws for this convention or whether this convention is su- 
 preme and shall make its own laws. We are supreme. We are original. We 
 stand here representing the great Republican party of the United States, and 
 neither Pennsylvania nor New York nor any state can come in here and bind 
 us down by their caucus resolutions. 1 
 
 One further fact, however, is to be noted with respect to the unit rule 
 of the Democratic convention. In case no instructions are given by a 
 state to its delegation, the convention assumes authority and allows each 
 individual in the delegation to vote according to his preference. For 
 example, in the St. Louis convention, Nebraska's vote was announced 
 and recorded as follows: Hearst 4, Cockrell 4, Pattison 4, Miles i, Wall 
 i, Gray i, Olney i. The unit rule of the Democratic convention is not 
 an affirmative rule at all. It is simply an acknowledgment that the states 
 may bind their delegations if they so choose. Despite the immense 
 amount of newspaper clamor for the abrogation of the two-thirds rule, 
 and the protests and objurgations of the minority Hearst members on 
 such split but instructed delegations as those of Ohio, Indiana and 
 Massachusetts, the fight for the modification of the rules was never at 
 any time strong enough to reach the convention floor. As a corollary 
 to the unit rule, the St. Louis convention, through the ruling of its chair- 
 man, upheld the traditional Democratic doctrine that the chairman of 
 an instructed delegation is entitled to cast the entire vote of the delega- 
 tion whether the delegation is fully represented on the floor or not. 
 
 Little need be said of the proceedings of the convention subsequent 
 to Judge Parker's nomination. The text of the telegram as sent by 
 Judge Parker to Hon. Wm. F. Sheehan is as follows: 
 
 I regard the gold standard as firmly and irrevocably established and shall act 
 accordingly if the action of the convention to-day shall be ratified by the people. 
 As the platform is silent on the subject, my view should be made known to the 
 convention, and if it is proved to be unsatisfactory to the majority I request you 
 to decline the nomination for me at once, so that another may be nominated 
 before adjournment. 
 
 Great excitement prevailed when reports of the Parker telegram leaked 
 out early Saturday afternoon. Newspaper extras proclaimed that Parker 
 had declined the nomination, and garbled versions of his actual message 
 were hawked about everywhere. The air was charged with uncertainty, 
 bewilderment, and expectancy when the delegates assembled for the 
 
 1 Carl Becker, " The Unit Rule in National Nominating Conventions," American 
 Historical Review, V, no. i, p. 81. 
 
THE NATIONAL CONVENTION 841 
 
 final session. The Bryanites affected to regard the message as a cunning 
 trick of the Hill-Belmont-Sheehan combination. Senator Tillman vio- 
 lently denounced the message as an attempt to dictate and as an insult 
 to the entire convention. The majority of the New York and New Jersey 
 delegates seemed genuinely pleased with the message, but no one was 
 jubilant. The situation was a most delicate one and fraught with im- 
 mense hazard. The opinion of many thoughtful delegates at the time 
 could have been aptly expressed in a later remark of Colonel Bryan's : 
 "It is a manly thing for a man to express an opinion before the conven- 
 tion adjourns; but it would have been manlier to have expressed it 
 before the convention met." The southern delegates appeared most 
 deeply stirred by the telegram; their anxiety and doubt were strung to 
 an intensity almost savage. Southern leaders were therefore put forward 
 to pacify them. After some hours' work Tillman was quieted and in- 
 duced, in conjunction with Williams and Vardaman of Mississippi, 
 Daniel of Virginia and Carmack of Tennessee, to play the role of paci- 
 ficator. The anger of the hotspurs began to simmer down. A notable 
 speech at this critical juncture was made by a northern man, Hon. Charles 
 S. Hamlin of Massachusetts. Mr. Hamlin as a member of the platform 
 committee had labored indefatigably for a gold plank. That effort had 
 been defeated by a vote of 35 to 15. Mr. Hamlin explained why the 
 minority had not carried the fight to the convention floor, and closed 
 with an eloquent plea for despatching a message prepared by John Sharp 
 Williams to Judge Parker. The "Williams message," which virtually 
 endorsed the position taken by the nominee in his telegram to the con- 
 vention, read as follows: 
 
 The platform adopted by this convention is silent upon the question of the 
 monetary standard, because it is not regarded by us a possible issue in this 
 campaign, and only campaign issues are mentioned in the platform. There- 
 fore there is nothing in the views expressed by you in the telegram just re- 
 ceived which would preclude a man entertaining them from accepting a nomi- 
 nation on said platform. 
 
 It was at this juncture that Colonel Bryan rose from a sick-bed, entered 
 the convention, and began a tedious and futile protest against sending 
 the Williams telegram. Two rambling speeches were made, the last 
 closing with the impossible suggestion that a sort of catechismal message 
 be sent to the nominee, seeking explicit answers to several specific ques- 
 tions. The convention was not in the mood of the night before. Here 
 were a lot of earnest men striving for harmony, willing to sink individual 
 preferences, sick of factional rancor and impatient to conclude the work 
 of the convention. The speaker recognized that his appeal fell upon 
 cold if not resentful ears. He accordingly withdrew his amendment and 
 thus escaped a crushing vote of disapproval. The motion to send the 
 Williams telegram was carried by the overwhelming vote of 794 to 191. 
 
842 AMERICAN FEDERAL GOVERNMENT 
 
 At one o'clock Sunday morning Hon. Henry G. Davis was nominated 
 for vice-president. The excitement over the Parker telegram had been 
 absorbing. A benumbing fatigue dulled all further interest in the pro- 
 ceedings and imposed an effective closure rule upon discussion. "Word 
 was passed around " that Davis was the man to be voted for. The 
 writer heard little talk of superannuation, and in general little discussion 
 of availability or fitness. When the roll was called, chairmen of delega- 
 tions wearily rose and mechanically uttered the name of Henry G. Davis. 
 At no point did the convention so absolutely divest itself of the character 
 of a deliberative body as in the act of naming an octogenarian for second 
 place on the ticket. 
 
 "Freshmen " members of the national Congress are wont to lament 
 the absence of a spirit of cameraderie in the House of Representatives. 
 If this is true of the 386 members of the House elected for two years, one 
 can readily fancy how little esprit de corps is to be found in an assemblage 
 of one thousand men who exercise their group functions for less than a 
 week and then disperse forever. Rivalry between parties is never more 
 bitter than factional strife within parties. Nothing could have been 
 more bitter than Mr. Rose's castigation of the Parkerites. The New 
 York men themselves were divided. To scrutinize the faces of Murphy, 
 Sheehan and McCarren was to read in each a different story of policies 
 and aspirations. Outside of the southern belt there was scarcely a state 
 that was not represented by a divided delegation. The unit rule half 
 concealed and half revealed irreconcilable principles and preferences. 
 Even the Massachusetts delegation, pledged to support the candidacy of 
 a "favorite son," was, beneath the surface, divided; five of its members 
 were bitterly opposed to Mr. Olney. The convention was indeed a jar- 
 ring, disintegrate mass. For such an unorganized mass, competent 
 leadership was a prime necessity. The biggest and most influential per- 
 sonality in the convention was Colonel Bryan's, but the majority of the 
 delegates had come to St. Louis with the firm determination not to be 
 led by Colonel Bryan. The delegates therefore turned from a personality 
 to an abstraction in quest of leadership. They turned from Bryan to 
 "conservatism." In the name of conservatism the Hill-Sheehan-Guffey- 
 Gorman combination "passed around the word " for the nomination of 
 Henry G. Davis. The delegates heard and obeyed. 
 
 The party convention is a pure evolution, and we may look to see 
 progressive changes in the conduct of this extra-legal body. One may 
 forecast the direction although it may be impossible to fathom the extent 
 of these changes. The infinite folly of planting a political convention 
 in the midst of a howling mob of ten thousand people was convincingly 
 illustrated in the last Democratic convention. This convention could 
 not, except by courtesy, be called a deliberative body. Men such as 
 Senator Daniel or John Sharp Williams, who really had something to 
 say to the convention, were not shown decent consideration, while men 
 
THE NATIONAL CONVENTION 843 
 
 who had a buncombe message for the galleries were given a patient hear- 
 ing. It was really the galleries that demanded the circus parades of 
 state standards, lithographs and flags when a leading candidate was 
 placed in nomination. One of these bogus demonstrations continued 
 for thirty-four minutes. It was the galleries that dragged Bryan from 
 his sick-bed to prolong the agony of the last night's session. It was the 
 galleries that hurled insulting and indecent epithets at speakers in the 
 Illinois contest, because they were espousing a cause which the mob did 
 not like. With hundreds of newspaper men present and wires carrying 
 the convention proceedings to every news center in the Union, the inter- 
 ests of publicity no longer demand the presence of ten thousand irrespon- 
 sible people in the convention hall. In the last two Democratic state 
 conventions of Massachusetts all spectators other than newspaper men 
 were rigidly excluded from the hall. The step was an unpopular one, 
 but the bear-garden features which too often have disgraced other con- 
 ventions were effectively eliminated; and enlightened party opinion 
 heartily supports the innovation. 
 
 Again, the results of the St. Louis convention can not but strengthen 
 the growing conviction that the time is approaching for a change in the 
 present system of representation in the convention. The anti-Parker 
 combination had a fighting chance of success up to the moment when 
 Colonel Guffey delivered the 68 votes of Pennsylvania to the Parkerites. 
 A state which had never given a single electoral vote to a Democratic 
 nominee turned the scale decisively and clinched the nomination of a 
 man who received only 140 votes in the electoral college. It is true that 
 the solid Democratic states of tne South were behind Judge Parker's 
 candidacy. Men such as Governor Vardaman of Mississippi were in 
 line for the New York candidate in the hope that he might carry this 
 and other pivotal states and so defeat Mr. Roosevelt. But reverse the 
 situation. Suppose the Southern leaders had come into the convention 
 solidly behind the candidacy of such a man as Senator Bailey of Texas. 
 The Southern combination could easily have been beaten by a northern 
 combination of Illinois, Michigan, Minnesota, Ohio, Wisconsin, Pennsyl- 
 vania, Massachusetts and Maine. That is, eight northern states which 
 ordinarily do not cast a single Democratic electoral vote could overwhelm 
 thirteen Southern states which furnished every one of the 140 electoral 
 votes actually received by Judge Parker. In a Republican convention 
 the same inequality appears, though less glaringly: the southern tier, 
 which never furnishes a Republican electoral vote, has full voting strength 
 in determining the nominee. In the Republican convention of 1884, an 
 effort was made to enlarge the influence of the old line Republican states 
 and to diminish correspondingly the weight of states where the party was 
 in a minority. The effort failed largely through the clamor and piteous 
 appeals of the negro Republicans of the South. These men claimed, 
 with some color of equity, that they get very little chance under state 
 
844 AMERICAN FEDERAL GOVERNMENT 
 
 election laws, and that therefore the opportunity to take part in Re- 
 publican councils on a basis of their actual numerical strength comes but 
 once in four years. If they are shut out of the field when the harvest is 
 indeed golden, as in the case of Mr. Hanna's campaign for the nomina- 
 tion of Mr. McKinley in 1896, they may justly complain that they are 
 wounded in the house of their friends. This line of argument does not 
 hold in the case of the Democratic convention. Democratic voters do 
 not suffer under discriminating election laws in northern states, and the 
 results of the last national convention suggest that a change in the basis 
 of representation may be one of the possibilities of the future. 
 
 Finally, we may hazard the opinion that the time is approaching when 
 national party conventions will be subjected to some species of statutory 
 control. Parties under our governmental system are purely voluntary 
 organizations and stand theoretically outside of the control of courts 
 and law-making bodies. But the party has become a most important 
 political organ, and the trend of our development is all towards the sub- 
 jection of party to legal as well as to political responsibility. It may be 
 urged that party organization implies obedience to constituted authority, 
 and that this authority, from its very nature, must reside within and not 
 outside of the party itself. The courts have ordinarily taken this view, 
 and have not regarded the action of a party convention as a proper 
 subject for judicial review. At the same time, where party machinery 
 is used oppressively and for improper purposes, the legal organs of gov- 
 ernmental authority have again and again successfully asserted the right 
 of control. The commonwealth of Massachusetts, for instance, imposes 
 a most thoroughgoing governmental control upon party action. Each 
 party is required to elect annually a state committee, and the members 
 of this committee are required to meet and organize at a particular time 
 and in a particular manner. Minute directions are prescribed for the 
 holding of party caucuses and the choice of election officials. The laws 
 governing party machinery, as codified in 1898, fill 150 pages, contain- 
 ing an average of 300 words to a page. And this body of law has since 
 been amplified by a mass of supplementary legislation. One may reason- 
 ably assert that the American party is not legally responsible, but this no 
 longer implies that a little junta of politicians may meet at such time 
 and place as it chooses and select nominees for public office. It can not 
 be denied that the state is within its proper functions when it undertakes 
 to regulate the machinery by which its governmental officers are selected. 
 The federal government has all along conceded that the regulation of 
 the suffrage rests primarily with the states, and has therefore not sought 
 to exercise any direct control over the ballot, being content simply to 
 prescribe uniform methods for the selection of federal officers in state- 
 conducted elections. A similar species of jurisdiction might well be 
 extended to the nomination as well as to the final selection of the chief 
 of federal officers. In the interests of safety, decency, and due delibera- 
 
THE NATIONAL CONVENTION 845 
 
 tion, Congress may at some future time impose regulations as to the 
 time, place and manner of conducting national nominating conventions. 
 A national convention hall, erected by the government at Washington, 
 or perhaps in a more central locality, is one of the possibilities of the 
 future. Such a hall, properly policed and provided with protection 
 against fire and the incursion of the mob, would mark a distinct advance 
 in the conduct of conventions. So long as all arrangements are left to a 
 camarilla of politicians, who have friends to be rewarded and enemies 
 to be punished ; so long as the mob is present to demand the stimulating 
 ailment of some passion-fed illusion or illusion-fed passion so long 
 will the proceedings of a national nominating convention fail to attain 
 the dignity and deliberation implied in the very character of its high 
 functions. 
 
INDEX 
 
 Adams, Congressman, 58 
 Administration measures, 113 
 Administrative tribunals, 445 
 "Advice and consent," 103 
 Agriculture, Department of, 401, 406, 
 
 419 
 
 Aldrich, Senator, 165, 171, 268 
 Algeciras conference, 102 
 Allison, Senator, 137 
 Amidon, Charles F., 739 
 Animal Industry, Bureau of, 408 
 Appeal in criminal cases, 721 
 Appointment, of diplomats, 124, 675; 
 
 of officials, 121, 150, 701 
 Appropriations, 303, 317, 320, 342, 348, 
 
 351, 355, 479; annual statement of, 
 
 301; committee on, 301, 312, 320, 
 
 342, 348, 355, 358, 437 
 Arbitration treaties, 99 
 Army, 76, 610; appropriation bill, 202 
 Attorney-general, 377, 396 
 
 Bacon, Senator, 26, 92, 115, 160, 170, 
 
 177, 269, 664 
 Bailey, Senator, 173 
 Beveridge, Senator, 97, in, 567 
 Bowker, R. R., 381 
 Bowman, Harold M., 445 
 Brewer, Justice, 706, 718 
 Bridge bill (1908), 276 
 Brooks, Congressman, 406 
 Bryan, William J., 835 
 Burton, Congressman, 219 
 
 Calendar of House, 239, 247, 250 
 Cannon, J. G., 135, 188, 202, 234, 318, 
 
 461 
 
 Carmack, Senator, 71 
 Carter, Gen. W. H., 618 
 Carter, Senator, 72, 74, 132, 580 
 Centralization, 609, 731, 736, 739, 776, 
 
 781, 805 
 
 Chicago strike of 1894, 32 
 Choate, Ambassador, 678 
 Civil service, 437, 440, 659, 683, 686, 
 
 698 ; examinations for, 665, 672, 674, 
 
 689, 691 
 Civil Service Commission, 689 
 
 847 
 
 Clark, Congressman, 285 
 
 Cleveland, President, 32, 65, 152, 153, 
 539, 685 ; veto message, 359 
 
 Coast and Geodetic Survey, 420 
 
 Cockran, Congressman, 252, 507, 813 
 
 Commander in chief of the army, 26, 30 
 
 Commerce and Labor, Department of, 
 420, 433 
 
 Committees, 243, 257 ; in House, 205, 
 208, 290, 292; in Senate, 173; on 
 Appropriations, 301, 312, 317, 320, 
 342, 348, 355; 358, 437 ; on Interstate 
 and Foreign Commerce, 262, 276; 
 on Rules, 253, 266, 273, 286, 333, 343, 
 348 ; on Ways and Means, 260, 264, 
 342, 358, 369 
 
 Conference committees, 188, 210 
 
 Congress, 59th, 473; debating in, 288; 
 power over army, 28 ; slipshod legis- 
 lation in, 293 ; use of taxing power 
 by, 263 
 
 Congressional Record, 297 
 
 Constitution, changes in, 731, 739, 752, 
 764 ; interpretation of, 643, 753 
 
 Constitutional Convention, 763 
 
 Constitutional'lawyers, 255 
 
 Consular service, 651, 658, 671 
 
 Cooper, Congressman, 191, 198, 227 
 
 Corporations, Bureau of, 500, 529, 534; 
 federal control of, 485, 495, 507 
 
 Cortelyou, George B., 5, 373 
 
 Criminal cases, government appeal in, 
 721 
 
 Crumpacker, Congressman, 394, 455 
 
 Cuba, 469 
 
 Culberson, Senator, 159, 268 
 
 Currency Bill of 1908, 155, 188, 205, 220 
 
 Currier, A. D., 452 
 
 Cushman, Congressman, 250 
 
 Customs administration, 372, 457 
 
 Dalzell, John, 189, 232, 236, 274, 333 
 
 Daniells, Senator, 174 
 
 Dawson, Congressman, 628 
 
 De Armond, Congressman, 194, 230, 
 
 339- 763 
 
 Debating in Congress, 481 
 Delegation of legislative power, 452 
 
848 
 
 INDEX 
 
 Democratic convention of 1904, 833 
 
 Dennis, A. P., 752, 833 
 
 Departments, 362 seq. 
 
 Dilatory motions. See Obstruction 
 
 Diplomatic appointments, 124 
 
 Diplomatic service, 651, 6/5 
 
 District attorneys, 40, 380 
 
 District of Columbia, 176 
 
 Documents, public, 461 
 
 Dolliver, Senator, 50 
 
 Driscoll, Congressman, 342, 817 
 
 Elkins act, 483 
 
 Employers' Liability Bill, 527 
 
 Examinations for civil service, 665, 672, 
 
 674, 689, 691 
 Executive, and legislation, 47, 769; and 
 
 appropriations, 349, 351, 437 ; powers 
 
 of, 10, 1 6, 47, 50, 58 
 Executive agreements, 79 
 Executive departments, 362, 602 
 Executive orders, 756, 788 
 Executive rulings, 452 
 Extravagance, 355, 357 
 
 Fairlie, John A., 377 
 
 Federal services, extension of, 436, 452, 
 
 495 546, 599. 6 7> 709, 734, 73 6 > 748, 
 
 754, 774, 776, 781, 80 1 
 Federal "usurpation," 781 
 Field, Justice, 703 
 Filibuster. See Obstruction 
 Financial legislation, 64, 148, 299, 301, 
 
 317, 320, 368, 479 
 Fish Commission, 424 
 Fitzgerald, Congressman, 309, 337, 345 
 Foraker, Senator, 62, 67, 69, 162 
 Forbes-Lindsay, C. H., 439 
 Force Bill, 131 
 
 Foreign Relations Committee, 85, 87 
 Forest reserves, 546, 554, 567, 581, 586, 
 
 594 
 
 Forestry, 403 
 Free seeds, 413 
 
 Gallinger, Senator, 176 
 
 Garneld, President James A., 47, 299, 
 
 3 T 7 
 
 Garneld, James R., 529, 534 
 Geological Survey, 420 
 Gettysburg address by Mr. Tawney, 776 
 Gillett, Congressman, 355 
 Gore, Senator, 169 
 Government printing, 459, 461 
 Grant, President, 152 
 Grosvenor, Congressman, 200, 285, 346 
 
 Hale, 1 Senator, 162, 318 
 
 Hardwick, Congressman, 341 
 
 Harlan, Justice, 716 
 
 Harrison, President, on civil service, 683 
 
 Hay, Secretary, 99, 152 
 
 Hepburn, Congressman, 200, 258, 824 
 
 Heyburn, Senator, 555 
 
 Hoar, Senator, 70, 124, 173, 182, 701,826 
 
 House of Representatives, 149; ap- 
 pointment of committees in, 243, 
 290, 292 ; bill procedure, 240 ; calen- 
 dars of, 239, 259; committees, 257; 
 debating, 288; distribution of busi- 
 ness among committees, 258 ; leave 
 to print, 296; minority leadership, 
 266; organization of, 223; rules, 223, 
 236, 244, 253, 266, 326, 330; river 
 and harbor bill, 285; special rules, 
 266, 273, 333 
 
 Inauguration, i 
 
 Information, congressional requests 
 
 for, 67 
 
 Injunctions, 40, 724, 796 
 Inland waterways, 590 
 Insular Affairs, Bureau of, 469 
 Insular possessions, 713. See also the 
 
 individual possessions 
 Interdepartmental methods, 646 
 Interstate Commerce Commission, 491, 
 
 5 T 3> 5 r 7 
 Irrigation, 403, 567 
 
 Jefferson, on powers of Senate, 123 
 
 Judicial power, 718 
 
 Judiciary, 703 
 
 Justice, department of, 68, 76, 377 
 
 Keep Commission, 73, 439 
 Knox, Senator, 528 
 
 Labor and the courts, 33, 707 
 
 Lacey, Congressman, 259 
 
 La Follette, Senator, 155, 162, 167, 220 
 
 Land Office, 539 9 
 
 Langley, S. P., 419 
 
 Leave to print, 296 
 
 Legislation, slipshod, 293 
 
 Legislative, Executive, and Judicial 
 
 Appropriation Bill, 333, 351 
 Library of Congress, 427 
 Littauer, Congressman, 64, 324, 351 
 Littlefield, Congressman, 262 
 Lodge, Senator, 69, 70, 85, 150, 186, 663 
 Lowell, F. C., 675 
 Lynching, 727 
 
INDEX 
 
 849 
 
 McCall, Congressman S. W., 135, 473 
 McCreary, Senator, 666 
 McHenry, Congressman, 215 
 McKinley, President, 2, 5, 6, 124, 151, 
 
 463 
 
 McLean, S. J., 495 
 Magoon, Governor Chas. E., 469 
 Mail, fraud orders, 390, 395, 455 
 Message of president, 8, 359 
 Military power of Congress, 28 
 Minority leadership, 266 
 Monroe Doctrine, 20 
 Moody, Justice Wm. H., 155 
 Moon, Congressman, 246 
 Morgan, Senator, 88, 179 
 
 Nation and states, 731, 736, 745, 776, 
 
 785, 805 
 
 National convention, 826, 833 
 Natural resources. See Preservation 
 Navy, Department of, 419, 610, 614, 
 
 628, 634 
 
 Newell, F. H., 568 
 Newlands, Senator, 590 
 Nomination of officials, 121 
 Norris, Congressman, 190 
 
 Obstruction, in House, 265, 272, 275, 
 
 278, 303; in Senate, 132, 135, 155 
 Official papers, transmission of, 65, 66 
 Organization of the House, 223 
 
 Panama Canal, 61, 63, 602 
 
 Panama, recognition of republic, 21 
 
 Patronage, 291 
 
 Patterson, Senator, 563 
 
 Payne, Congressman, 263, 286, 298, 331 
 
 Peck, George R., 512 
 
 Philippine Commission, 463 
 
 Philippine Islands, 18, 469, 475 
 
 Plant Industry, Bureau of, 409 
 
 Porto Rico, 469 
 
 Post Office Department, 381, 390 
 
 Preservation of resources, 538, 540, 
 555 586, 594 
 
 President, and Congress, 47, 50, 58, 60 ; 
 and foreign relations, 90 ; and legis- 
 lation, 112, 769; and treaties, 80, 84, 
 87 ; appointments, 7, 701 ; message, 
 8; military powers, 16, 22; powers 
 of, 10, 16; private office, 6 
 
 Prince, Congressman, 205, 320, 338 
 
 Pujo, Congressman, 212 
 
 Pure Food Act, 454, 456, 476 
 
 Quay, Senator, 155, 171 
 
 Railway mail service, 693 
 
 Railway Rate Bill (1906), 189, 480, 512, 
 
 5 1 ? 
 
 Rayner, Senator, 10, 60, 79 
 
 Rebating, 488 
 
 Reclamation service, 592 
 
 Recognition of foreign governments, 
 21, 1 06, 1 18 
 
 Reed, Speaker, 148, 238, 474 
 
 Republican Convention of 1880, 826 
 
 Requests for information, 67 
 
 Richardson, Congressman, 203 
 
 River and Harbor Bill, 136, 285, 359 
 
 Roberts, T. G., 634 
 
 Roosevelt, President, 2, 15, 401, 499, 
 540, 686, 721, 736; message on army 
 and navy, 610; message on corpora- 
 tions, 485 
 
 Root, Secretary, 458, 658, 731 
 
 Rossiter, W. S., 459 
 
 Rule XXI, 327, 334, 342, 346 
 
 Rules, in House, 226, 236, 244, 253, 326, 
 330; in Senate, 156 
 
 Santo Domingo, 79 
 
 Scientific work of government, 413, 478, 
 
 574 
 
 Secret sessions, Senate, 81, 179 
 
 Seed distribution, 413 
 
 Senate, 127; and diplomatic positions, 
 125, 143; and House of Representa- 
 tives, 128, 204 ; and House of Repre- 
 sentatives, revenue bills, 299; and 
 treaties, 80, 81, 151 ; committees in, 
 173; extending speeches, on record, 
 185; filibuster in, 132, 135, 155; 
 maiden speeches, 183; procedure, 
 155156; requests for information, 
 67; secret sessions, 8r, 179; tariff 
 bill, 142; transmission of official 
 papers, 66; unlimited debate, 130, 760 
 
 Shaw, Secretary, 373 
 
 Shaw, W. B., 686 
 
 Sherley, Congressman, 803, 818 
 
 Sherman Anti-Trust law, 497 
 
 Smith, Congressman (of Iowa), 327 
 
 Smith, Marcus A., Congressman, 331 
 
 Smithsonian Institution, 419, 428 
 
 Speaker, election of, 224; power of, 
 248, 282 
 
 Special agents, 433 seq. 
 
 Special rules, 266, 273, 333 
 
 Spooner, Senator, 22, 67, 73, 74, 81, 87, 
 100, 109, 114, 119, 554 
 
 State, Department of, 68, 89, 153, 653 
 
 Statute drafting, 293 
 
850 
 
 INDEX 
 
 Stevens, Congressman, 260 
 Sundry Civil Appropriation Bill, 350 
 Supplies, purchase of, 442, 645 
 Supreme Court, 145, 703, 706, 716, 822 
 
 Taft, President, 463 
 
 Tariff bill, 142 
 
 Tawney, Congressman, 301, 348, 432, 
 
 776 
 
 Taxation bills in Senate, 141 
 Taxing power, use of, by Congress, 263, 
 
 819 
 
 Teller, Senator, 71, 77, 598 
 Tenure of Office Act, 65 
 Tillman, Senator, 85, 86, 122, 132 
 Towne, Congressman, 248 
 Townsend, Congressman, 276, 283 
 Treasury Department, 362, 373, 419 
 Treaty-making power, 79, 81, 94, 151, 
 
 797 
 
 Trusts, 485, 495, 507 
 
 Underwood, Congressman, 179, 326 
 Urgent deficiencies, 348 seq. 
 
 Vanderlip, Frank A., 362 
 Veto message (1896), 359 
 
 Wall Street, 369, 373 
 War, Department of, 419, 469, 612, 618 
 War power, 16, 22 
 Warren, Senator, 70, 78 
 Washburn, Minister, 677 
 Washington, 98, 115 
 West, Henry L., 127 
 Williams, John Sharp, 63, 194, 198, 207, 
 218, 226, 265, 271, 277, 296, 337, 820, 
 
 835 
 Wilson, Huntington, 651, 675 
 
J "V 
 
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