O- J , v * «CT "CO* * 8 I I *o o^ ^ * A o '++ ^ r> ■ * V | ^ '"/. | %< v\ V /■ $ .V ', o ■V ■A Oo ^ < if .-* -Si-. • V o 1 ,\V tP -"■ ■^. ,0o. «^ \ / THE CITIZEN'S LIBRARY OF ECONOMICS, POLITICS, AND SOCIOLOGY EDITED BY RICHARD T. ELY, Ph.D., LL.D. PROFESSOR OF POLITICAL ECONOMY, UNIVERSITY OF WISCONSIN THE SPIRIT OF AMERICAN GOVERNMENT THE CITIZEN'S LIBRARY OF ECONOMICS, POLITICS, AND SOCIOLOGY J2mo. Half Leather $1.25 net, each MONOPOLIES AND TRUSTS. By Richard T. Ely, Ph.D., LL.D. THE ECONOMICS OF DISTRIBUTION. By John A. Hobson. WORLD POLITICS. By Paul S. Reinsch. Ph.,D.LL.B. - ECONOMIC CRISES. By Edward D. Jones, Ph.D. OUTLINES OF ECONOMICS. By Richard T. Ely. ~~ GOVERNMENT IN SWITZERLAND. By John Martin Vincent, Ph.D. ESSAYS ON THE MONETARY HISTORY OF THE UNITED STATES. By Charles J. Bullock, Ph.D. SOCIAL CONTROL. By Edward A, Ross, Ph.D. —7 HISTORY OF POLITICAL PARTIES IN THE UNITED STATES. By Jesse Macy, LL.D. MUNICIPAL ENGINEERING AND SANITATION. By M. N. Baker, Ph.B. 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Allen Smith, LL.B., Ph.D. THE MACMILLAN COMPANY 64-66 FIFTH AVENUE NEW YORK I THE CITIZEN'S LIBRARY \ ne Spirit of American Government A STUDY OF THE CONSTITUTION: ITS ORIGIN, INFLUENCE AND RELATION TO DEMOCRACY BY J. ALLEN SMITH, LL.B., Ph.D. Professor of Political Science University of Washington jl3eto gotfe THE MACMILLAN COMPANY LONDON: MACMILLAN & CO., Ltd. 1907 All rights reserved t-H,D.,LT-£ LiCHfcRV of INGRESS APR m 190/ /7yo/o ] M Copyright, igo? By THE MACMILLAN COMPANY Set up and electrotyped. Printed April. 1907 THE MASON-HENRY PRESS SYRACUSE, NEW YORK PREFACE It is the purpose of this volume to trace the influence of our constitutional system upon the political conditions which exist in this country to-day. This phase of our political problems has not received adequate recognition at the hands of writers on American politics. Very often indeed it has been entirely ignored, although in the short period which has elapsed since our Constitution was framed and adopted, the Western world has passed through a political as well as an industrial revolution. In the eighteenth century the majority was out- side of the pale of political rights. Government as a matter of course was the expression of the will of a minority. Even in the United States, where hereditary rule was overthrown by the Revolution, an effective and recognized minority control still survived through the property quali- fications for the suffrage and for office-holding, which excluded a large proportion of the people from participation in political affairs. Under such conditions there could be but little of what is now known as democracy. Moreover, slavery continued to exist upon a large scale for nearly PREFACE three-quarters of a century after the Constitution was adopted, and was finally abolished only with- in the memory of many now living. It could hardly be expected that a political system set up for a community containing a large slave population and in which the suffrage was restricted, even among the free whites, should in any large measure embody the aims and ideas of present day democracy. In fact the American Constitution did not recognize the now more or less generally accepted principle of majority rule even as applying to the qualified voters. More- over, it was not until several decades after the Constitution was adopted that the removal of property qualifications for voting allowed the people generally to have a voice in political affairs. The extension of the suffrage was a concession to the growing belief in democracy, but it failed to give the masses an effective control over the general government, owing to the checks in the Constitution on majority rule. It had one im- portant consequence, however, which should not be overlooked. Possession of the suffrage by the people generally led the undiscriminating to think that it made the opinion of the majority a con- trolling factor in national politics. Our political writers have for the most part passed lightly over the undemocratic features of the Constitution and left the uncritical reader with the impression that universal suffrage under vi PREFACE our system of government ensures the rule of the majority. It is this conservative approval of the Constitution under the guise of sympathy with majority rule, which has perhaps more than any thing else misled the people as to the real spirit and purpose of that instrument. It was by con- stantly representing it as the indispensable means of attaining the ends of democracy, that it came to be so generally regarded as the source of all that is democratic in our system of government. It is to call attention to the spirit of the Consti- tution, its inherent opposition to democracy, the obstacles which it has placed in the way of ma- jority rule, that this volume has been written. The general recognition of the true character of the Constitution is necessary before we can fully understand the nature and origin of our po- litical evils. It would also do much to strengthen and advance the cause of popular government by bringing us to a realization of the fact that the so-called evils of democracy are very largely the natural results of those constitutional checks on popular rule which we have inherited from the political system of the eighteenth century. The author acknowledges his indebtedness to his colleague, Professor William Savery, and to Professor Edward A. Ross of the University of Wisconsin, for many pertinent criticisms and suggestions which he has borne in mind while revising the manuscript of this work for publi- vii PREFACE cation. He is also under obligation to Mr. Ed- ward Mc Mahon for suggestions and for some illustrative material which he has made use of in this volume. J. Allen Smith. Seattle, Washington, January, 1907, vin CONTENTS CHAPTER I The English Government of the Eighteenth Century page Struggle between the many and the few ... 3 The Great Charter 4 Development of a bicameral parliament ... 6 Limited and irresponsible government ... 8 Class influence as seen in statute and common law . io CHAPTER II The American Government of the Revolutionary Period Conditions favoring growth of democratic ideas . 12 The Declaration of Independence .... 13 Numerical strength and character of the conservatives 14 Democracy in the early state constitutions . . 16 Supremacy of the legislature 20 The Articles of Confederation 22 CHAPTER III The Constitution a Reactionary Document Causes of political reaction 27 The Constitution a product of eighteenth-century thought 28 The framers' fear of democracy .... 29 Effort to limit the power of the majority ... 35 ix CONTENT S CHAPTER IV The Significance of the Amendment Feature of the Constitution page Amendment of democratic and undemocratic consti- tutions 40 Reasons for making amendment difficult . . 41 Patrick Henry's objection to the amendment feature of the Constitution 44 The amendments to the Constitution ... 52 Amendment of the Articles of Confederation . . 57 Amendment of the early state constitutions . . 58 Amendment in other countries , , , , 62 CHAPTER V The Federal Judiciary Relation of the judicial to the other checks . . 65 The constitutional status of judges in England . 67 The American was not a copy of the English judicial system . .68 Hamilton's defense of the Federal judiciary . . 73 His desire to limit the power of the people . . 82 Relation of the judicial to the executive veto . . 85 Revival of the judicial veto in the state governments 87 The judicial veto was not mentioned in the Consti- tution 90 The Federalist appointments to the Supreme Bench 94 Significance of the veto power of the Supreme Court 97 A monarchical survival 103 Political and judicial powers 107 Power to veto laws not judicial .... 108 Character of the laws vetoed by the Supreme Court . in Decline of the belief in judicial infallibility . .113 Government by injunction 116 The judicial veto in relation to treaties . . .119 The disadvantages of a deferred veto . . .123 x CONTENTS' CHAPTER VI The Checks and Balances of the Constitution page A cure for the evils of democracy Evolutionary classification of governments Substitutes for king and aristocracy Relation of the theory of checks and balances to hisses faire and anarchism Purpose of indirect election .... Subordination of the House of Representatives Impeachment made difficult .... Significance of the President's oath of office The House of Representatives in relation to the budget Lack of adequate provision for publicity Attitude of the framers toward criticism of public officials Federal versus national government Relation of the general to the state governments not clearly defined Effort to lay the foundation of a national government Origin and development of the doctrine of nullifica- tion Calhoun's theory of the Constitution The judiciary act of 1789 CHAPTER VII Undemocratic Development The influence of checks upon the development of our political institutions The House of Representatives an irresponsible body during the second regular session Congress has power to remedy the evil The committee system a check on the majority The speaker's power to thwart legislation The system encourages log-rolling xi CONTENTS CHAPTER VIII The Party System page Conservative opposition to party government in the** eighteenth century 203 The effort of the framers to guard against the possi- bility cf responsible party government . . 205 Difference between the English and the American party system 208 Influence of the Constitution upon the party system not generally recognized 210 The evils of our party system attributed by con- servative writers to majority rule . . . 212 Character of our party platforms .... 218 True party government impossible under our consti- tutional system . 226 CHAPTER IX Changes in the State Constitutions after 1787 Development of the judicial veto .... 230 Limitation of the power to impeach . . .231 Extension of the term of office of governor and mem- bers of the legislature 232 Amendment of the constitution made more difficult 235 Influence of democracy upon the state constitutions 239 Division of authority in the state government . 243 Lack of effective responsibility .... 245 CHAPTER X Municipal Government Municipal government at the time of the Revolution 249 Changes in municipal government after the adoption of the Constitution 250 The municipality a creature of the state legislature 252 xii 268 272 273 277 CONTENTS PAGE Hostility of the courts to municipal self-government 254 The attitude of the courts made state interference necessary 255 Abuses of legislative interference ... . . 256 Constitutional provisions limiting the power of the legislature to interfere 261 Effort to establish municipal self-government . . 265 Limitation of the power of the majority in constitu- tions granting municipal self-government . . 266 The object of home rule provisions largely defeated by judicial interpretation Limitation of the taxing and borrowing power of home rule cities Origin of the constitutional limitations of municipal indebtedness Fear of municipal democracy .... Municipal ownership as a means of taxing the prop- ertyless class 280 Why our state governments have not been favorable to municipal democracy 285 Limitation of the power of the majority the main cause of municipal corruption .... 288 CHAPTER XI Individual Liberty and the Constitution The eighteenth-century conception of liberty negative 291 Influence of the Revolution upon the conception of liberty . 293 Why present-day conservatives advocate the eight- eenth century view of liberty 265 Liberty to the framers meant the limitation of the power of the majority 297 The doctrine of vested rights 299 Survival of the old view of liberty in our legal literature 301 xiii CONTENTS' CHAPTER XII Individual Liberty and the Economic System page The economic conditions under which the old view of liberty originated . . . . • . 304 Influence of the industrial revolution upon the liberty of the worker 306 The laissez faire policy 308 Protection has been maintained as a class policy . 312 The need of protection to labor . . . .316 Limitation of governmental powers in the interest of the capitalist ....... 318 The policy of the Supreme Court a factor in corrupt- ing the state governments 325 CHAPTER XIII The Influence of Democracy Upon the Constitution Modification of the system as originally set up . 331 The extension of the suffrage .... 333 Defect in the method of electing the President . 333 Three reforms needed in the case of the Senate . 338 Possibility of controlling the Supreme Court . 341 Power of two-thirds of the states to call a consti- tutional convention 346 Effort to secure the responsibility of public officials 349 Direct versus representative democracy . . . 351 Reliance of the conservative classes on the courts . 355 Election of United States senators by the legislature incompatible with its other functions . . . 357 CHAPTER XIV Effect of the Transition from Minority to Majority Rule Upon Morality Higher standards of morality .... 361 The growth of publicity in relation to immorality . 363 xiv CONTENTS' PAGE Decline in the efficacy of old restraints . . . 364 The conflict between two opposing political systems 367 The need of more publicity 372 Corporate control of the organs of public opinion . 375 Lack of respect for law 377 CHAPTER XV Democracy of the Future The progress of democratic thought . . . 379 Influence of printing upon the growth of democracy 380 The immediate aim of democracy political . . 383 Relation of scientific and industrial progress to de- mocracy 384 Democracy would make government a science . 386 Dependence of man's industrial activities on the so- cial environment 388 Necessity for equality of opportunity ignored by con- servative writers 390 The scientific justification of democracy's hostility to privilege 394 Democracy's attitude toward the doctrine of laissez faire 397 xv THE SPIRIT OF AMERICAN GOVERNMENT CHAPTER I THE ENGLISH GOVERNMENT OF THE EIGHTEENTH CENTURY Constitutional government is not necessarily democratic. Usually it is a compromise in which monarchical and aristocratic features are retained. The proportion in which the old and the new are blended depends, of course, upon the progress the democratic movement has made. Every step to- ward democracy has been stubbornly opposed by the few, who have yielded to the popular demand, from time to time, only what necessity required. The constitution of the present day is the outcome of this long-continued and incessant struggle. It reflects in its form and character the existing dis- tribution of political power within the state. If we go back far enough we find government nearly everywhere in the hands of a King and privileged class. In its earlier stages the con- stitutional struggle was between monarchy and aristocracy, the King seeking to make his au- thority supreme and the nobility seeking to limit and circumscribe it. Accordingly, government oscillated between monarchy and aristocracy, a strong and ambitious King getting the reins of 3 SPIRIT OF AMERICAN GOVERNMENT government largely in his own hands, while the aristocracy encroached upon the power and pre- rogatives of a weak and incompetent one. Thus democracy played no part in the earlier constitu- tional struggles. The all-important question was whether the King or the nobility should control the state. Civil wars were waged to decide it, and government gravitated toward monarchy or aristocracy according as the monarchical or aris- tocratic party prevailed. Under William the Conqueror and his im- mediate successors the government of England was practically an absolute monarchy. Only the highest class was consulted in the Great Council and the advice of these the King was not obliged to follow. Later, as a result of the memorable controversy between King John and his feudal barons, the Great Council regained the power which it had lost. Against the King were ar- rayed the nobility, the church as represented by its official hierarchy, and the freemen of the realm, all together constituting but a small minority of the English people. The Great Charter extorted from the King on this occasion, though frequently referred to as the foundation of English liberty, was in reality a matter of but little immediate importance to the common people. The benefit of its provisions, while not limited to the nobility, extended, however, only to those classes without whose aid and support the tyrannical power of the 4 THE ENGLISH GOVERNMENT King could not be successfully opposed. The church, by reason of the great wealth which it controlled and the powerful influence which it exerted in a superstitious age over the minds of the people, was a factor that could not be ignored. The freemen also played an important part in the constitutional struggles, since they carried the sword and formed the rank and file of the fighting class. The important provisions of the Great Charter relate exclusively to the rights of the church, the nobility and the freemen. The serfs, while not included within the benefit of its pro- visions, were an overwhelming majority of the English people. This conclusion is irresistible in view of the fact that the Domesday Survey shows that about four-fifths of the adult male population in the year 1085 were below the rank of freemen. 1 The Great Charter was, it is true, an important step in the direction of constitutional government, but it contained no element of democracy. It merely converted the government from one in which monarchy was the predominant feature, to one in which the aristocratic element was equally important. The classes represented in the Great Council became a constitutional check on the power of the King, inasmuch as he could not levy taxes without their consent. The important con- stitutional position which this charter assigned to 1 Sebohm, English Village Community, Ch. Ill ; Traill, Social England, Vol. I, p. 240 ; Ashley, English Economic History, Vol. I, p. 17. 5 SPIRIT OF AMERICAN GOVERNMENT the nobility was not maintained, however, without repeated struggles under succeeding Kings; but it laid the foundation for the subsequent develop- ment which limited and finally abolished the power of the monarch. In the course of time the Great Council split up into two separate bodies, the House of Lords, composed of the greater nobility and the higher dignitaries of the church, and the House of Com- mons, representing all other classes who enjoyed political rights. When the House of Commons thus assumed a definite and permanent form as a separate body, a new check upon the power of the King appeared. The consent of two separate bodies was now necessary before taxes could be imposed. The development of these checks was hastened by the fact that the King found it easier and safer to get the assent of these bodies to measures which involved an exercise of the taxing power, than to attempt the collection of taxes with- out their support. In this way the right of assent- ing to all measures of taxation came in time to be recognized as belonging to the two houses of Parliament. But this was a right not easily es- tablished. It was claimed and fought for a long time before it finally became a firmly established principle of the English Constitution. Around the question of taxation centered all the earlier constitutional struggles. The power to tax was the one royal prerogative which was first limited. 6 THE ENGLISH GOVERNMENT In time Parliament extended its powers and suc- ceeded in making its assent necessary to all gov- ernmental acts which vitally affected the welfare of the nation, whether they involved an exercise of the taxing power or not. The law-making power, however, as we understand it now was seldom employed, the idea of social readjustment through general legislation being a recent growth. But as revenues were necessary, the taxing power was the one legislative function that was con- stantly exercised. It is not strange then that the earlier constitutional development should have turned mainly upon the relation of the various political classes to the exercise of this power. That English constitutional development re- sulted in a parliament composed of two houses may be regarded as accidental. Instead of this double check upon the King there might con- ceivably have been more than two, or there might, as originally was the case, have been only one. Two distinct elements, the secular nobility and the dignitaries of the church, combined to form the House of Lords. The House of Commons was also made up of two distinct constituencies, one urban and the other rural. If each of these classes had deliberated apart and acquired the right to assent to legislation as a separate body, a four-chambered parliament, such as existed in 7 SPIRIT OF AMERICAN GOVERNMENT Sweden up to 1866 and still survives in Finland, would have been the result. 1 The essential fact, everywhere to be observed in the development of constitutional government, is the rise to political power of classes which com- pete with the King and with each other for the control of the state. The monopoly of political power enjoyed by the King was broken down in England when the nobility compelled the signing of Magna Charta. This change in the English Constitution involved the placing of a check upon the King in the interest of the aristocracy. Later, with the development of the House of Commons as a separate institution, the power of the King was still further limited, this time in the interest of what we may call the commercial and indus- trial aristocracy. At this stage of its development the English government contained a system of checks and balances. The King still retained legislative power, but could not use it without the consent of both Lords and Commons. Each branch of the government possessed the means of defending itself, since it had what was in effect an absolute veto on legislation. This is a stage in political evolution through which governments naturally pass. It is a form of political organization inter- mediate between monarchy and democracy, and results from the effort to check and restrain, with- 1 Lowell, Governments and Parties in Continental Europe, Vol, I, Ch. I ; Lecky, Democracy and Liberty, Vol. I, p. 265. THE ENGLISH GOVERNMENT out destroying, the power of the King. When this system of checks was fully developed the King, Lords and Commons were three coordinate branches of the English government. As the concurrence of all three was necessary to enact laws, each of these could defeat legislation desired by the other two. The development of this system of checks limited the irresponsible power of the King only on its positive side. The negative power of abso- lute veto the King still retained. While he could not enact laws without the consent of the other two coordinate branches of the government, he still had the power to prevent legislation. The same was true of the Lords and Commons. As each branch of government had the power to block reform, the system was one which made legislation difficult. The system of checks and balances must not be confused with democracy ; it is opposed to and y can not be reconciled with the theory of popular government. While involving a denial of the right of the King or of any class to a free hand in political matters, it at the same time denies the right of the masses to direct the policy of the state. This would be the case even if one branch of the government had the broadest possible basis. If the House of Commons had been a truly popu- lar body in the eighteenth century, that fact would 9 SPIRIT OF AMERICAN GOVERNMENT not of itself have made the English government as a whole popular in form. While it would have constituted a popular check on the King and the House of Lords, it would have been powerless to express the popular will in legislation. The House of Commons was not, however, a popular body in the eighteenth century. In theory, of course, as a part of Parliament it rep- resented the whole English people. But this was a mere political fiction, since by reason of the narrowly limited suffrage, a large part of the English people had no voice in parliamentary elections. Probably not one-fifth of the adult male population was entitled to vote for members of Parliament. As the right to vote was an incident of land ownership, the House of Com- mons was largely representative of the same inter- ests that controlled the House of Lords. That the House of Commons was not demo- cratic in spirit is clearly seen in the character of parliamentary legislation. The laws enacted dur- ing this period were distinctly undemocratic. While the interests of the land-holding aristoc- racy were carefully guarded, the well-being of the laboring population received scant considera- tion. The poor laws, the enclosure acts and the corn laws, which had in view the prosperity of the landlord, and the laws against combination, which sought to advance the interests of the capitalist at the expense of the laborer, show the spirit of the 10 THE ENGLISH GOVERNMENT English government prior to the parliamentary reform of 1832. The landlord and capitalist classes controlled the government and, as Pro- fessor Rogers observes, their aim was to increase rents and profits by grinding the English work- man down to the lowest pittance. "I contend," he says, "that from 1563 to 1824, a conspiracy, concocted by the law and carried out by parties interested in its success, was entered into, to cheat the English workman of his wages, to tie him to the soil, to deprive him of hope, and to degrade him into irremediable poverty." 1 But it is not in statute law alone that this tendency is seen. English common law shows the same bias in favor of the classes which then con- trolled the state. There is no mistaking the influences which left their impress upon the de- velopment of English law at the hands of the courts. The effect of wealth and political privi- lege is seen here as well as in statutory enactment. Granting all that can justly be said in behalf of the wisdom and reasonableness of the common law, the fact nevertheless remains, that its develop- ment by the courts has been influenced by an evi- dent disposition to favor the possessing as against the non-possessing classes. Both the common and the statute law of England reflected in the eighteenth century the political supremacy of the Wgll-to-do minority 1 Work and Wages, p. 398 ( II CHAPTER II THE AMERICAN GOVERNMENT OF THE REVOLUTIONARY PERIOD The American colonists inherited the common law and the political institutions of the mother country. The British form of government, with its King, Lords and Commons and its checks upon the people, they accepted as a matter of course. In their political thinking they were not con- sciously more democratic than their kinsmen across the Atlantic. Many of ftiem, it is true, had left England to escape what they regarded as tyranny and oppression. But to the form of the English government as such they had no objec- tion. The evils which they experienced were attributed solely to the selfish spirit in which the government was administered. The conditions, however, were more favorable for the development of a democratic spirit here than in the mother country. The immigrants to America represented the more active, enterprising and dissatisfied elements of the English people. Moreover, there was no hereditary aristocratic class in the colonies and less inequality in the distribution of wealth. This approach to indus- trial and social equality prepared the mind for 12 THE REVOLUTIONARY PERIOD the ideas of political equality which needed only the stimulus of a favorable opportunity to ensure their speedy development. This opportunity came with the outbreak of the American Revolution which at the outset was merely an organized and armed protest against what the colonies regarded as an arbitrary and unconstitutional exercise of the taxing power. As there was no widespread or general dissatis- faction with the form of the English government, there is scarcely room for doubt that if England had shown a more prudent and conciliatory spirit toward the colonies, the American Revolution would have been averted. No sooner, however, had the controversy with the mother country reached the acute revolutionary stage, than the forces which had been silently and unconsciously working toward democracy, found an opportunity for political expression. The spirit of resistance to what was regarded as unconstitutional taxation rapidly assumed the form of avowed opposition to the English Constitution itself. The people were ready for a larger measure of political democracy than the English Constitution of the eighteenth century permitted. To this new and popular view of government the Declaration of Independence \/ gave expression. It contained an emphatic, formal and solemn disavowal of the political theory embodied in the English Constitution; affirmed that "all men are created equal;" that J3 SPIRIT OF AMERICAN GOVERNMENT governments derive "their just powers from the consent of the governed;" and declared the right of the people to alter or to abolish the form of the government "and to institute new government, laying its foundation on such principles and or- ganizing its powers in such form, as to them shall seem most likely to effect their safety and happi- ness." This was a complete and sweeping re- pudiation of the English political system, which recognized the right of monarchy and aristocracy to thwart the will of the people. To what extent the Declaration of Independence voiced the general sentiment of the colonies is largely a matter of conjecture. It is probable, however, that its specification of grievances and its vigorous arraignment of the colonial policy of the English government appealed to many who had little sympathy with its express and implied advocacy of democracy. It is doubtless true that many were carried along with the revolutionary movement who by temperament and education were strongly attached to English political tradi- tions. It is safe to conclude that a large pro- portion of those who desired to see American independence established did not believe in thorough-going political democracy. Besides those who desired independence with- out being in sympathy with the political views expressed in the Declaration of Independence, there were many others who were opposed to the 14 THE REVOLUTIONARY PERIOD whole Revolutionary movement. The numerical strength of the Tories can not be accurately esti- mated; but it is certain that a large proportion, probably not less than one-third of the total popu- lation of the colonies, did not approve of the war. 1 "In the first place, there was, prior to 1776, the official class ; that is, the men holding various posi- tions in the civil and military and naval services of the government, their immediate families, and their social connections. All such persons may be described as inclining to the Loyalist view in consequence of official bias. "Next were certain colonial politicians who, it may be admitted, took a rather selfish and an un- principled view of the whole dispute, and who, counting on the probable, if not inevitable, success of the British arms in such a conflict, adopted the Loyalist side, not for conscience' sake, but for profit's sake, and in the expectation of being re- warded for their fidelity by offices and titles, and especially by the confiscated estates of the rebels after the rebels themselves should have been de- feated, and their leaders hanged or sent into exile. "As composing still another class of Tories, may be mentioned probably a vast majority of those who stood for the commercial interests, for the capital and tangible property of the country, and who, with the instincts natural to persons who 1 Tyler, The Literary History of the American Revolution, Vol. I, p. 300. IS SPIRIT OF AMERICAN GOVERNMENT have something considerable to lose, disapproved of all measures for pushing the dispute to the point of disorder, riot and civil war. "Still another class of Loyalists was made up of people of professional training and occupation — clergymen, physicians, lawyers, teachers — a clear majority of whom seem to have been set against the ultimate measures of the Revolution. "Finally, and in general, it may be said that a majority of those who, of whatever occupation, of whatever grade of culture or of wealth, would now be described as conservative people, were Loyalists during the American Revolution/' 1 These classes prior to the Revolution had largely shaped and molded public opinion; but their opposition to the movement which they were powerless to prevent, destroyed their influence, for the time being, in American politics. The place which they had hitherto held in public es- teem was filled by a new class of leaders more in sympathy with the newly born spirit of liberalism. This gave to the revolutionary movement a dis- tinctly democratic character. This drift toward democracy is seen in the changes made in the state constitutions after the outbreak of the Revolution. At the close of the colonial period, nearly all the state governments were modeled after the government of Great 1 Tyler, The Literary History of the American Revolution, Vol. I, p. 301. 16 THE REVOLUTIONARY PERIOD Britain. Each colony had its legislative body elected by the qualified voters and corresponding in a general way to the House of Commons. In all the colonies except Pennsylvania and Georgia there was also an upper legislative house or coun- cil whose consent was necessary before laws could be enacted. The members composing this branch of the legislature were appointed by the governor except in Massachusetts where they were elected by the lower branch of the legislature, subject to a negative by the royal governor, and in Rhode Island and Connecticut where they were chosen by the electorate. The governor was elected by the voters only in Rhode Island and Connecticut; in all the other colonies he was appointed by the proprietaries or the Crown, and, though independent of the people, exercised many important powers. He was com- mander-in-chief of the armed forces of the colony ; appointed the judges and all other civil and mili- tary officers; appointed and could suspend the council, which was usually the upper branch of the legislature ; he could convene and dissolve the legislature and had besides an unqualified veto on all laws; he also had an unrestricted pardoning power. The possession of these far-reaching powers gave to the irresponsible executive branch of the colonial government a position of commanding importance. This was not the case, however, in 2 17 SPIRIT OF AMERICAN GOVERNMENT Connecticut and Rhode Island. Although the governor in these two colonies was responsible to the voters, inasmuch as he was elected by them, still he had no veto, and the appointing power was in the hands of the legislature. The tidal-wave of democracy, which swept over the colonies during the Revolution, largely effaced the monarchical and aristocratic features of the colonial governments. Connecticut and Rhode Island, which already had democratic constitu- tions, were the only states which did not modify their form of government during this period. All the rest adopted new constitutions which show in a marked degree the influence of the democratic movement. In these new constitutions we see a strong tendency to subordinate the executive branch of the government and confer all important powers on the legislature. In the four New Eng- land states and in New York the governor was elected by the qualified voters; in all the rest he was chosen by the legislature. In ten states dur- ing this period his term of office was one year; in South Carolina it was two and in New York and Delaware it was three years. In addition to this the six Southern states restricted his re-elec- tion. Besides, there was in every state an exec- utive or privy council which the governor was required to consult on all important matters. This was usually appointed by the legislature and constituted an important check on the governor. 18 THE REVOLUTIONARY PERIOD The power to veto legislation was abolished in all but two states. In Massachusetts the gover- nor, and in New York the Council of Revision composed of the governor and the chancellor and judges of the Supreme Court, had a qualified veto power. But a two-thirds majority in both houses of the legislature could override the veto of the governor in Massachusetts, or that of the Council of Revision in New York. The pardoning power of the governor was quite generally restricted. In five states he was allowed to exercise it only with the advice or consent of the council. 1 In three states, where the advice or consent of a council was not required, he could, subject to cer- tain restrictions, grant pardons except where "the law shall otherwise direct." 2 The constitution of Georgia in express terms deprived the governor of all right to exercise this power. The appointing power of the governor was also taken away or restricted. In four of the eleven states adopting new constitutions during this period he was allowed to exercise it jointly with the council. 3 In six states it was given to the legislature, or to the legislature and council. 4 The power of the governor to dissolve the legis- 1 Massachusetts, New Hampshire, New Jersey, Pennsyl- vania and Virginia. 2 Delaware, Maryland and North Carolina. 3 Massachusetts, New Hampshire, Pennsylvania and Mary- land. 4 Delaware, New York, New Jersey, North Carolina, South Carolina and Virginia. 19 SPIRIT OF AMERICAN GOVERNMENT lature or either branch of it was everywhere abolished. The supremacy of the legislature under these early state constitutions is seen also in the manner of appointment, the tenure and the powers of the judiciary. In nine states 1 the judges were elected by the state legislature, either with or without the consent of a council. In Maryland, Massachu- setts, New Hampshire, and Pennsylvania they were appointed by the governor with the consent of the council. But this really amounted to in- direct legislative appointment in Maryland, since both the governor and council in that state were elected annually by the legislature. The legis- lature also had a voice in the appointment of judges in Pennsylvania, New Hampshire and Massachusetts, since it elected the executive in the first and the council in the others. In nine states, then, the judges were elected directly by the legis- lature ; in one indirectly by the legislature ; in the other three the legislature participated in their election through an executive or a council of its own choosing. In every state the judges could be impeached by the lower branch of the legislature and ex- pelled from office on conviction by the senate or other tribunal, as the constitution prescribed. 1 Connecticut, Rhode Island, New Jersey, Virginia, North Carolina, South Carolina, Georgia, New York and Delaware. 20 THE REVOLUTIONARY PERIOD Moreover, in six states 1 they could be removed according to the English custom by the executive on an address from both branches of the legis- lature. The term of office of the judges in eight states 2 was during good behavior. In New Jersey and Pennsylvania they were appointed for seven years, and in Rhode Island, Connecticut, and Georgia they were chosen annually. The legislature under these early state con- stitutions was hampered neither by the executive nor by the courts. It had all law-making power in its own hands. In np^state cguldjhe courts! thwart its purpose by^declaring its acts null and) void. Unchecked by either executive or judicial veto its supremacy was undisputed. From the foregoing synopsis of the state con- stitutions of this period it is evident that their framers rejected entirely the English theory of checks and balances. The principle of separation of powers as expounded by Montesquieu and Blackstone, found little favor with those who con- trolled American politics at this time. Instead of trying to construct a state government com- posed of coordinate branches, each acting as a check upon the others, their aim was to make the legislature supreme. In this respect the early state constitutions anticipated much of the later Massachusetts, New Hampshire, Maryland, Delaware, South Carolina and Pennsylvania. 2 Massachusetts, New Hampshire, New York, Delaware, Maryland, North Carolina, South Carolina and Virginia. 21 SPIRIT OF AMERICAN GOVERNMENT development of the English government itself. / The checks and balances, and separation of powers, which characterized the government of England and her American colonies in the eight- eenth century, resulted from the composite char- acter of the English Constitution — its mixture of monarchy, aristocracy, and democracy. It is not surprising, then, that with the temporary ascend- ency of the democratic spirit, the system of checks should have been largely discarded. This democratic tendency is seen also in our first federal constitution, the Articles of Confederation, which was framed under the impulse of the Revo- lutionary movement. This document is interest- ing as an expression of the political philosophy of the Revolution ; but like the state constitutions of that period, it has had few friendly critics among later political writers. Much emphasis has been put upon its defects, which were many, while but little attention has been given to the political theory which it imperfectly embodied. That it failed to provide a satisfactory general govern- ment may be admitted ; but this result must not be accepted as conclusive proof that the principles underlying it were altogether false. The chief feature of the Articles of Confedera- tion was the entire absence of checks and balances. All the powers conferred upon the general govern- ment were vested in a single legislative body called the Continental Congress, which was un- 22 THE REVOLUTIONARY PERIOD checked by a distinct executive or judiciary. In this respect it bore a striking resemblance to the English government of to-day with its omnipo- tent House of Commons. But, unlike the Eng- lish government of to-day, its powers were few and narrowly limited. Its failure was due, per- haps, not to the fact that the powers granted to the confederation were vested exclusively in a single legislative body, but to the fact that the powers thus granted were not sufficient for main- taining a strong and effective central government. The reason for the weakness of the general government under the Articles of Confederation is obvious to the student of American history. It was only gradually, and as necessity compelled cooperation between the colonies, that the senti- ment in favor of political union developed. And though some tendencies in this direction are seen more than a century before the American Revolu- tion, the progress toward a permanent union was slow and only the pressure of political necessity finally brought it about. As early as 1643 Massachusetts, Plymouth, Connecticut and New Haven formed a "perpetual confederation" under the name of the "United Colonies of New England." The motive for this union was mainly offence and defence against the Indian tribes and the Dutch, though provision was also made for the extradition of servants and fugitives from justice. The management of the 23 SPIRIT OF AMERICAN GOVERNMENT common interests of these colonies was vested in a board of eight commissioners — two from each colony — and, in transacting the business of the confederacy, the consent of six of the eight com- missioners was required. Any matter which could not be thus disposed of was to be referred to the four colonial legislatures. The general government thus provided for could not inter- meddle "with the government of any of the juris- dictions." No provision was made for amending the "Articles of Confederation," and only by the unanimous consent of these colonies could any other colony be admitted to the confederacy. This union lasted for over forty years. 1 Again in 1754 the pressure of impending war with the French and Indians brought together at Albany a convention of delegates from seven colonies north of the Potomac. A plan of union drafted by Benjamin Franklin was recommended by this convention, but it was not regarded with favor either by the colonies or by the English government. The former regarded it as going too far in the direction of subordinating the sep- arate colonies to a central colonial authority, while for the latter it was too democratic. 2 The union of all the colonies under the Articles of Confederation was finally brought about through the pressure of military necessity during 1 Macdonald's Select Charters, Vol. I, pp. 94-101. 2 Schouler's Constitutional Studies, pp. 70-78, Macdonald's Select Charters, Vol. I. 24 THE REVOLUTIONARY PERIOD the Revolution. Nor is it surprising, in view of the history of the American colonies, that they reluctantly yielded up any powers to a central authority. We must bear in mind that the Revo- lution was in a measure a democratic movement, and that democracy was then found only in local government. The general governments of all countries were at that time monarchical or aristo- cratic. Tyranny in the eighteenth century was associated in the minds of the people with an un- due extension or abuse of the powers exercised by the undemocratic central government. It is not surprising, then, that the Revolutionary fed- eral constitution, the Articles of Confederation, should have failed to provide a general govern- ment sufficiently strong to satisfy the needs of the country after the return of peace. It must not be inferred, however, that the political changes which immediately followed the outbreak of the Revolution were in the nature of sweeping democratic reforms. Much that was thoroughly undemocratic remained intact. The property qualifications for the suffrage were not disturbed by the Revolutionary movement and were finally abolished only after the lapse of nearly half a century. The cruel and barbarous system of imprisonment for debt which the colonies had inherited from England, and which often made the lot of the unfortunate debtor worse than that of the chattel slave, continued in several of the 25 SPIRIT OF AMERICAN GOVERNMENT states until long after the Revolution. Marked as was the democratic tendency during the first few years of our independence, it nevertheless left untouched much that the progress of democ- racy has since abolished. 26 CHAPTER III THE CONSTITUTION A REACTIONARY DOCUMENT The sweeping changes made in our form of government after the Declaration of Independence were clearly revolutionary in character. The English system of checks and balances was dis- carded for the more democratic one under which all the important powers of government were vested in the legislature. This new scheme of government was not, however, truly representa- tive of the political thought of the colonies. The conservative classes who in ordinary times are a powerful factor in the politics of every community had, by reason of their Loyalist views, no voice in this political reorganization ; and these, as we have seen, not only on account of their wealth and in- telligence, but on the basis of their numerical strength as well, were entitled to considerable influence. With the return of peace these classes which so largely represented the wealth and culture of the colonies, regained in a measure the influence which they had lost. This tended strongly to bring about a conservative reaction. There was besides 27 SPIRIT OF AMERICAN GOVERNMENT another large class which supported the Revolu- tionary movement without being in sympathy with its democratic tendencies. This also used its in- fluence to undo the work of the Revolutionary radicals. Moreover, many of those who had espoused democratic doctrines during the Revo- lution became conservatives after the war was over. 1 These classes were naturally opposed to the new political doctrines which the Revolu- tionary movement had incorporated in the Ameri- can government. The "hard times" and general discontent which followed the war also contributed to the reactionary movement ; since many were led to believe that evils which were the natural result of other causes were due to an excess of democ- racy. Consequently we find the democratic tendency which manifested itself with the out- break of the Revolution giving place a few years later to the political reaction which found ex- pression in our present Constitution. "The United States are the offspring of a long- past age. A hundred years, it is true, have scarcely passed since the eighteenth century came to its end, but no hundred years in the history of the world has ever before hurried it along so far over new paths and into unknown fields. The 1 "Who would have thought, ten years ago, that the very men who risked their lives and fortunes in support of repub- lican principles, would now treat them as the fictions of fancy?" M. Smith in the New York Convention held to ratify the Constitution, Elliot's Debates, Second Edition, Vol. II, p. 250. 28 THE CONSTITUTION REACTIONARY French Revolution and the First Empire were the bridge between two periods that nothing less than the remaking of European society, the recasting of European politics, could have brought so near. "But back to this eighteenth century must we go to learn the forces, the national ideas, the political theories, under the domination of which the Constitution of the United States was framed and adopted." 1 It is the general belief, nevertheless, that the Constitution of the United States is the very em- bodiment of democratic philosophy. The people take it for granted that the framers of that docu- ment were imbued with the spirit of political equality and sought to establish a government by the people themselves. Widely as this view is entertained, it is, however, at variance with the facts. "Scarcely any of these men [the framers of the Constitution] entertained," says Fiske, "what we should now call extreme democratic views. Scarcely any, perhaps, had that intense faith in the ultimate good sense of the people which was the most powerful characteristic of Jefferson." 2 >- Democracy — government by the people, or^ directly responsible to them — was not the object which the framers of the American Constitution had in view, but the very thing which they wished 1 Simeon E. Baldwin, Modern Political Institutions, pp. 83 and 84. 2 Critical Period of American History, p. 226. 29 SPIRIT OF AMERICAN GOVERNMENT to avoid. In the convention which drafted that instrument it was recognized that democratic ideas had made sufficient progress among the masses to put an insurmountable obstacle in the way of any plan of government which did not confer at least the form of political power upon the people. Ac- cordingly the efforts of the Constitutional Con- vention were directed to the task of devising a system of government which was just popular enough not to excite general opposition and which at the same time gave to the people as little as possible of the substance of political power. It is somewhat strange that the American peo- ple know so little of the fundamental nature of their system of government. Their acquaintance with it extends only to its outward form and rarely includes a knowledge of the political phi- losophy upon which it rests. The sources of in- formation upon which the average man relies do not furnish the data for a correct understanding of the Constitution. The ordinary text-books and popular works upon this subject leave the reader with an entirely erroneous impression. Even the writings of our constitutional lawyers deal with the outward form rather than the spirit of our government. The vital question — the extent to which, under our constitutional arrange- ments, the people were expected to, and as a mat- ter of fact do, control legislation and public policy, is either not referred to, or else discussed in a 30 THE CONSTITUTION REACTIONARY superficial and unsatisfactory manner. That this feature of our Constitution should receive more attention than it does is evident when we reflect that a government works well in practice in pro- portion as its underlying philosophy and consti- tutional forms are comprehended by those who wield. political power. "It has been common," says a late Justice of the United States Supreme Court, "to designate our form of government as a democracy, but in the true sense in which that term is properly used, as defining a government in which all its acts are performed by the people, it is about as far from it as any other of which we are aware." 1 In the United States at the present time we are trying to make an undemocratic Constitution the' vehicle of democratic rule. Our Constitution em- bodies the political philosophy of the eighteenth century, not that of to-day. It was framed for one purpose while we are trying to use it for another. Is free government, then, being tried here under the conditions most favorable to its success ? This question we can answer only when we have considered our Constitution as a means to the attainment of democratic rule. It is difficult to understand how anyone who has read the proceedings of the Federal Conven- tion can believe that it was the intention of that *S. F. Miller, Lectures on the Constitution of the United States, pp. 84-85. 31 VI SPIRIT OF AMERICAN GOVERNMENT body to establish a democratic government. The evidence is overwhelming that the men who sat in that convention had no faith in the wisdom or political capacity of the people. Their aim and purpose was not to secure a larger measure of democracy, but to eliminate as far as possible the direct influence of the people on legislation and public policy. That body, it is true, contained many illustrious men who were actuated by a desire to further what they conceived to be the welfare of the country. They represented, how- ever, the wealthy and conservative classes, and had for the most part but little sympathy with the popular theory of government. "Hardly one among them but had sat in some famous assembly, had signed some famous docu- ment, had filled some high place, or had made himself conspicuous for learning, for scholarship, or for signal services rendered in the cause of liberty. One had framed the Albany plan of union ; some had been members of the Stamp Act Congress of 1765; some had signed the Declara- tion of Rights in 1774; the names of others appear at the foot of the Declaration of Independ- ence and at the foot of the Articles of Confedera- tion ; two had been presidents of Congress ; seven had been, or were then, governors of states; twenty-eight had been members of Congress; one had commanded the armies of the United States; another had been Superintendent of Finance; a 32 THE CONSTITUTION REACTIONARY third had repeatedly been sent on important mis- sions to England, and had long been Minister to France. "Nor were the future careers of many of them to be less interesting than their past. Washing- ton and Madison became Presidents of the United States; Elbridge Gerry became Vice-President; Charles Cotesworth Pinckney and Rufus King became candidates for the Presidency, and Jared Ingersoll, Rufus King, and John Langdon candi- dates for the Vice-Presidency; Hamilton became Secretary of the Treasury ; Madison, Secretary of State ; Randolph, Attorney-General and Secretary of State, and James McHenry, a Secretary of War; Ellsworth and Rutledge became Chief- Jus- tices ; Wilson and John Blair rose to the Supreme bench; Gouverneur Morris, and Ellsworth, and Charles C. Pinckney, and Gerry, and William Davie became Ministers abroad." 1 The long list of distinguished men who took part in the deliberations of that body is note- worthy, however, for the absence of such names as Samuel Adams, Thomas Jefferson, Thomas Paine, Patrick Henry and other democratic lead- ers of that time. The Federal Convention as- sembled in Philadelphia only eleven years after the Declaration of Independence was signed, yet only six of the fifty-six men who signed that docu- ment were among its members. 2 Conservatism 1 McMaster, With the Fathers, pp. 112-113. 2 "They [the framers of the Constitution] represented the 3 33 SPIRIT OF AMERICAN GOVERNMENT and thorough distrust of popular government characterized throughout the proceedings of that convention. Democracy, Elbridge Gerry thought, was the worst of all political evils. 1 Edmund Randolph observed that in tracing the political evils of this country to their origin, "every man [in the Convention] had found it in the turbulence and follies of democracy." 2 These views appear to reflect the general opinion of that body. Still they realized that it was not the part of wisdom to give public expression to this contempt for democracy. The doors were closed to the public and the utmost secrecy maintained with regard to the proceedings. Members were not allowed to communicate with any one outside of that body concerning the matters therein discussed, nor were they permitted, except by a vote of the Con- vention, to copy anything from the journals. 3 conservative intelligence of the country very exactly ; from this class there is hardly a name, except that of Jay, which could be suggested to complete the list." Article by Alex- ander Johnston on the Convention of 1787 in Lalor's Cyclo- paedia of Pol. Science, Pol. Econ. and U. S. Hist. 1 Elliot's Debates, Vol. V, p. 557. 2 Ibid., p. 138. 3 "By another [rule] the doors were to be shut, and the whole proceedings were to be kept secret ; and so far did this rule extend, that we were thereby prevented from correspond- ing with gentlemen in the different states upon the subjects under our discussion. ... So extremely solicitous were they that their proceedings should not transpire, that the members were prohibited even from taking copies of resolutions, on which the Convention were deliberating, or extracts of any kind from the Journals without formally moving for and obtaining permission, by a vote of the Convention for that purpose." Luther Martin's Address to the Maryland House of Delegates. Ibid., Vol. I, p. 345. "The doors were locked, and an injunction of strict secrecy 34 THE CONSTITUTION REACTIONARY It must be borne in mind that the Convention was called for the purpose of proposing amend- ments to the Articles of Confederation. The delegates were not authorized to frame a new constitution. Their appointment contemplated changes which were to perfect the Articles of Confederation without destroying the general form of government which they established. The resolution of Congress of February 21, 1787, which authorized the Federal Convention, limited its business to "the sole and express purpose of revising the Articles of Confederation," and the states of New York, Massachusetts, and Con- necticut copied this in the instructions to their delegates. 1 The aim of the Convention, how- ever, from the very start was not amendment, but a complete rejection of the system itself, which was regarded as incurably defective. This view was well expressed by James Wilson in his speech made in favor of the ratification of the Constitution before the Pennsylvania con- vention. "The business, we are told, which was entrusted to the late Convention," he said, "was merely to was put upon everyone. The results of their work were known in the following September, when the draft of the Federal Constitution was published. But just what was said and done in this secret conclave was not revealed until fifty years had passed, and the aged James Madison, the last sur- vivor of those who sat there, had been gathered to his fathers." Fiske, The Critical Period of American History, p. 229. McMaster, With the Fathers, p. 112. 1 Klliot's Debates, Vol. I, pp. 119-127. 35 SPIRIT OF AMERICAN GOVERNMENT amend the present Articles of Confederation. This observation has been frequently made, and has often brought to my mind a story that is related of Mr. Pope, who, it is well known, was not a little deformed. It was customary with him to use this phrase, 'God mend me !' when any little accident happened. One evening a link-boy was lighting him along, and, coming to a gutter, the boy jumped nimbly over it. Mr Pope called to him to turn, adding, 'God mend me!' The arch rogue, turning to light him, looked at him, and repeated, 'God mend you! He would sooner make half-a-dozen new ones.' This would apply to the present Confederation; for it would be easier to make another than to amend this." 1 The popular notion that this Convention in framing the Constitution was actuated solely by a desire to impart more vigor and efficiency to the general government is but a part of the truth. The Convention desired to establish not only a strong and vigorous central government, but one which would at the same time possess great sta- bility or freedom from change. This last reason is seldom mentioned in our constitutional litera- ture, yet it had a most important bearing on the work of the Convention. This desired stability the government under the Confederation did not possess, since it was, in the opinion of the mem- bers of the Convention, dangerously responsive to 1 Elliot's Debates, Vol. II, p. 470. 36 J THE CONSTITUTION REACTIONARY public opinion; hence their desire to supplant it with an elaborate system of constitutional checks. The adoption of this system was the triumph of a skillfully directed reactionary movement. Of course the spirit and intention of the Con- vention must be gathered not from the statements and arguments addressed to the general public in favor of the ratification of the Constitution, but from what occurred in the Convention itself. The discussions which took place in that body indicate the real motives and purposes of those who framed the Constitution. These were care- fully withheld from the people and it was not until long afterward that they were accessible to students of the American Constitution. The pre- amble began with, "We, the people," but it was the almost unanimous sentiment of the Convention that the less the people had to do with the govern- ment the better. Hamilton wanted to give the rich and well born "a distinct, permanent share in the government/' 1 Madison thought the govern- ment ought "to protect the minority of the opulent against the majority." 2 The prevalence of such views in this Convention reminds one of Adam Smith's statement, made a few years before in his "Wealth of Nations," that "civil government, so far as it is instituted for the security of prop- erty, is in reality instituted for the defence of the 1 Elliot's Debates, Vol. I, p. 422. 2 Ibid., p. 450. 37 SPIRIT OF AMERICAN GOVERNMENT rich against the poor, or of those who have some property against those who have none at all." 1 The solicitude shown by the members of this con- vention for the interests of the well-to-do cer- tainly tends to justify Adam Smith's observation. The framers of the Constitution realized, how- ever, that it would not do to carry this system of checks upon the people too far. It was necessary that the government should retain something of the form of democracy, if it was to command the respect and confidence of the people. For this reason Gerry thought that "the people should ap- point one branch of the government in order to inspire them with the necessary confidence." 2 Madison also saw that the necessary sympathy between the people and their rulers and officers must be maintained and that "the policy of refining popular appointments by successive filtra- tions" might be pushed too far. 3 These discus- sions, which took place behind closed doors and under pledge of secrecy, may be taken as fairly representing what the framers of our Constitution really thought of popular government. Their public utterances, on the other hand, influenced as they necessarily were, by considerations of public policy, are of little value. From all the evidence which we have, the conclusion is irresistible that ^ook 5, Ch. I, Part II. "Elliot's Debates, Vol. V, p. 160. 2 Ibicl., p. 137. 38 THE CONSTITUTION REACTIONARY they sought to establish a form of government which would effectually curb and restrain democ- racy. They engrafted upon the Constitution just so much of the features of popular government as was, in their opinion, necessary to ensure its adoption. ystem of goyerjarrient. Let us now inquire how far the results of a ' general election can be regarded as an expression of public opinion upon the questions raised in the party platforms. Does a popular majority for a party mean that the majority approve of the policies for which that party professes to stand? It is generally assumed by the unthinking that this is the case. But such a conclusion by no means follows. If there were but one question at issue between the parties and every vote was for principle, not for particular candidates, the policy of the successful party would have the approval 222 THE PARTY SYSTEM of the majority. But when the party defines its position on a number of issues this is no longer true. Take, for instance, the Democratic and Republican platforms of 1900, the former con- taining twenty-five and the latter twenty-nine separate articles in its party creed. Does a ma- jority vote for a party indicate that the majority approve of the entire platform of that party ? No thoughtful person would maintain for a moment that all who support a party approve of its entire platform. In the case of the Republican party in 1900, one large class of its supporters who believed the money question to be paramount and who feared the consequences of free coinage of silver voted the Republican ticket, though opposed to the attitude of that party on expansion and also on protection. The ardent protectionist may have given the party his support on the strength of its tariff plank alone. He may even have been opposed to the party's position on the silver ques- tion and on expansion. Another class who may have disapproved of both gold monometallism and protection, but who regarded expansion as the all-important question, supported the Republican party because of its attitude in this matter. It is certain that some who voted the Republican ticket did not approve its expansion policy; some did not approve of its extreme protectionist policy; and some did not approve of its attitude on the money question. Every man who voted the Re- 223 SPIRIT OF AMERICAN GOVERNMENT j publican ticket is assumed to have endorsed the ( entire policy of the party, though, as a matter of fact, the party may have secured his vote by reason of its position on the one question which he deemed to be of supreme importance. It is, to say the least, extremely probable that every intel- ligent man who supported the party disapproved of its attitude on one or more questions. Each plank in the platform was put there for the pur- pose of catching votes. Some gave their vote for one reason, some for another and some for still other reasons. And when, as in our present day party platforms, many separate and distinct bids are made for votes, it is not only possible but highly probable that no single plank in that party's creed was approved by all who voted the party r>X ticket. Ifthe_ various iss ues cou ldjbe ^s egregate d and each voted up on sepa rately, it is conceivable l that not one of them would command a majority of the entire vote; and yet, by lumping them all together and skilfully pushing to the- front and emphasizing each article of its creed before the class or in the region where it would find most support, the party may secure a popular majority for its platform as a whole. Both parties in their platforms of 1900 stood for the admission as states of Arizona, New Mexico, and Oklahoma; both declared in favor of legislation against monopolies and trusts; both favored liberal pen- sions, the construction of an Isthmian canal, irri- 224 THE PARTY SYSTEM gation of arid lands, reduction of war taxes and protection of American workmen against cheap foreign labor. Yet it does not by a ny means follow that a majority of the people votjng^really endorsed ev en thesjg jjanks whic h were commo n to both platforms. Moreover the party does nof^always state its position in a clear and unequivocal manner. The Democratic platform while opposing Republican expansion did so with some important reservation. While denouncing the recent expansion policy of the Republican party it made a bid for the support of those who believed in a moderate and conserva- tive expansion policy. The same is true of its attitude on protection. It did not condemn the principle of protection, but merely the abuse of the system through which monopolies and trusts had been fostered. The vague and ambiguous manner in which the party defines its attitude, together with the highly composite character of its platform, largely defeats the end for which it should be framed. As a means of arriving at a definite and authoritative expression of public opinion concerning the political questions of the day it is far from satisfactory. It is conceivable that a party may under this system carry an elec- /tion and yet not a single principle for which it professes to stand would, if separately submitted, command the approval of a majority of the voters. The threefold purpose for which the party 15 225 SPIRIT OF AMERICAN GOVERNMENT exists — (i) popular choice of candidates, (2) a clear and definite expression of public^ opinion concerning the questions with which the govern- ment must deal, and (3) the responsibility of the government tojthe^opujaj^ajon^ are all largely \ defeated under the American sy stem. The last named end of the party is defeatecTby the ^Xon- stitution itsel f, and this, as hereinbefore shown, has operated to defeat the others as well. We thus see that true party government is im-^ possible under a con^stitotion^i^sysiem ^yhich has a s^ its chief end the limit ation oj^thejxaa^gx of the majority. Where the party which has carried the . election is powerless to enforce its policy, as is generally the case in this country, there can be no responsible party government. The only branch of our governmental system which responds readily to changes in public opinion is the House of Representatives. But this is and was designed to be a subordinate body, having a voice in shap- ing only a part of the policy of the government, and even in this limited field being unable to act except with the concurrence of the President, Senate and Supreme Court. A change in public sentiment is not likely under these circumstances to be followed by a corresponding change in the policy of the state. Even when such change in sentiment is insistent and long-continued, it may be unable to overcome the resistance of the more conservative influences in the Constitution. The 226 THE PARTY SYSTEM most superficial examination of our political his- tory is sufficient to show that the practical work- ing of our Constitution has in large measure de- feated the end of party government. Calhoun's contention that the party had succeeded in break- ing down the elaborate system of constitutional checks on the numerical majority is not borne out by the facts. Eleven general elections since the adoption of 1 the Constitution have resulted in a House of Rep- / resentatives which had no political support in any other branch of the government. During eighty- ] four years of our history under the Constitution the party in the majority in the House has not had a majority in all the other branches of the general government, and consequently has not had the power to enforce its policy. From 1874 to 1896 — a period of twenty-two years — there were but two years (the 51st Congress) during which the same party had a majority in all branches oljJie government. But even during this brief period it failed to control the treaty- making power since it lacked the two-thirds majority in the Senate which the Constitution requires. In fact, there has been no time since 1874 when any party had sufficient majority in the Senate to give it an active control over the treaty-making power. The more important and fundamental changes in public policy which involve an exercise of the 227 SPIRIT OF AMERICAN GOVERNMENT /amending power are still more securely placed I beyond the reach of party control. Not only the 1 power to ratify amendments, but even the power \ to propose them, is effectually withheld from the ] party, since it can scarcely ever command the required two-thirds majority in both houses of Congress or a majority in both branches of the \ legislature in two-thirds of the states. Under our constitutional system a political party may have a nominal majority in all branches of the government and yet lack the power to enforce its policy. That branch of the government over which the party has most control through frequent elections — viz., the House of Representatives — is the one which has least au- thority, while those which have most influence in shaping the policy of the government are less directly subje ct to_JheDenalties of__£artydis- approva] , as in the case of the Pre siden t and Senate, or entirely exempt from any effective party control as in the case of the guo remeXourt . The division of authority under our Constitution makes it possible for either house of Congress to give the^p^Qearance ofsupport to a measure which public opinion demands and at the same time really accomplish its defeat by simply not pr o- viding the me ans essential to its en forceme nt. The opportunity thus afforded for the exercise of a covert but effective veto on important legisla- tion is a fruitful source of corruption. The 228 THE PARTY SYSTEM extreme diffusion of power and responsibility is such as to make any effective party control and responsibility impossible. This would be the case even if the party were truly representative of pub- lic opinion. But when we consider that the party is organized cm a glan which in some meas- ure at least defeats both the popular choice of candidates and the expression of public opinion in party platforms, it is readily seen that the slight degr^e^f_paily_control permitted under our sys- tem is in no true sense a popular control. '// Hi! r I > / — r //<-< VCtrh-'^ 'U^CU VS.^<_ ; / 229 CHAPTER IX CHANGES IN THE STATE CONSTITUTIONS AFTER 1787 The effects of the conservative reaction were not confined to the general government. The movement to limit the power of the popular ma- jority was felt in the domain of state as well as national politics. Even before the Constitutional Convention assembled the political reaction was modifying some of the state constitutions. This is seen especially in the tendency to enlarge the powers of the judiciary which was the only branch of the state government in which life tenure sur- vived. This tendency received powerful encour- agement and support in the adoption of the Federal Constitution which secured to the judi- Jciary of the general government an absolute veto Jon both federal and state legislation. For as the state courts were not slow in following the pre- cedent set by the Federal courts, what had been before the adoption of the Constitution a mere tendency soon became the practice in all the states. This in reality accomplished a revolution in the actual working of the state governments without any corresponding change in their outward form. 230 STATE CONSTITUTIONS It effected a redistribution of political powers which greatly diminished the influence of the popularly elected and more responsible branches of the state government and gave a controlling influence to that branch over which the people had least control. Not only was the state judiciary allowed to assume the veto power, but their independence of public opinion was more effectually safeguarded' by depriving a mere majority of the legislature of the power to remove them. The provision of the Federal Constitution requiring a two-thirds ma- jority in the legislative body for removal by impeachment or otherwise was quite generally copied. Without some such safeguard the party in control of the legislature could prevent the exercise of the judicial veto by removing from office any judges who dared to oppose its policy. New York and South Carolina were the only states adopting constitutions during the Revo- lutionary period, which included provisions limit- ing the power of the majority to impeach public officials. The New York constitution of 1777 required a two-thirds majority in the lower house, and the South Carolina constitution of 1778 a two-thirds majority in both houses. Pennsyl- vania copied the impeachment provisions of the Federal Constitution in her constitution of 1790; Delaware went even farther, and in her constitu- tion of 1792, required a two-thirds majority in 231 SPIRIT OF AMERICAN GOVERNMENT both houses ; Georgia followed the example of the Federal Constitution in 1798; Virginia, in 1830: North Carolina, in 1835 ; Vermont, in 1836; New Jersey, in 1844; and Maryland, in 185 1. With the progress of this movement to restore the system of checks in the state constitutions ^the governor regained his independence of the legislature and also many of the rights and pre- rogatives of which the Revolution had deprived him. He was made coordinate with the legis- lature, set over against it and generally clothed with the qualified veto power, which made him for all practical purposes the third house of that body. Georgia increased the governor's term of office to two years and gave him the qualified veto power in 1798. Pennsylvania made his term of office three years and gave him the veto power in 1790. New Hampshire conferred the veto power on him in 1792 and New York in 1821. This tendency to make the public official less directly dependent upon the people or their im- mediate representatives is clearly seen in other j important changes made in the state constitutions during this period. Popular control over the leg- islature was diminished by lengthening the terms of the members of both houses and by providing that the upper house should be elected for a longer term than the lower. Georgia established an upper house in 1789 and made the term of office of its members three years. In 1790 Pennsyl- 232 STATE CONSTITUTIONS vania also added a senate whose members were to be elected for four years, and South Carolina in- creased the term of its senators from one to four years. Delaware extended the term from one to two years for members of the lower house and from three to four years for members of the upper house and made the legislative sessions biennial instead of annual in 1831. North Carolina in- creased the term of members of both houses from one to two years and adopted biennial sessions in 1835. Maryland in 1837 extended the term of senators from five to six years, and in 1846 es- tablished biennial sessions of the legislature. The responsibility of the legislature was still further diminished by the gradual adoption of the plan of partial renewal of the senate, which was incorporated in the Revolutionary constitutions of Delaware, New York and Virginia and later copied in the Federal Constitution. This en- sured the conservative and steadying influence exerted by a body of hold-over members in the upper house. With the exception of five states in which the members of one branch of the legislature were elected for terms varying from two to five years, the Revolutionary state constitutions provided for the annual election of the entire legislature. This plan made both houses conform to the latest ex- pression of public opinion by the majority of the qualified voters at the polls. And since neither 233 SPIRIT OF AMERICAN GOVERNMENT the executive nor the courts possessed the veto power, the system ensured prompt compliance on the part of the law-making body with the de- mands of the people as expressed in the results of the legislative election. / The influence of public opinion on the state (governments was greatly weakened by the con- Vstitutional changes above mentioned. The lower branch of the legislature, inasmuch as all its mem- bers were simultaneously elected, might be re- garded as representative of recent, if not present, public opinion, though effective popular control of that body was made more difficult by lengthen- ing the term of office, since this diminished the frequency with which the voters could express in an authoritative manner their disapproval of the official record of its members. Under the plan adopted present public opinion as formulated in the results of the last election was not recognized as entitled to control the state senate. These changes in the state constitutions by which the executive and judicial branches of the j government acquired the veto power amounted in j praj^tice^c^J±L£_a^aii^^ \ islaiure. By thus increasing the number o f bodies which--it was necessary for the peppieJ^control^ in onler_to_^ecure the^legislation^ which they desired , thfiir powerjto in fluence the_j>n] jry af foe s tate go vernment was thereby diminished. And when we reflect that not only was legislative au- 234 STATE CONSTITUTIONS thority moreL_widelx_distxibuted, but each branchy of the state government exercising it was also made less _djrectly_ ^dependent on the qualified voters, we can see that these_c^sti^i^naL2T9- visions w ere in t he nature of_ checks gn the. numerical majority. A consmeration of the changes made in the method of amending the state constitutions leads to the same conclusion. D uring the Revol ution- ary period, as we have seen, the te ndency was strongly toward making th^funda mental law_t he expression of the will of the numerical major ity. Difficulties in the way of change were reduced to a minimum. But under the influence of the political reaction which followed, and which pro- duced the Constitution of the United States, the state governmen ts werx_s^_^rj^anjzeg^^_tp_jnake it__m ore diffi cult Jb£-4he_niaJ0r4fo--ta exercise the amending power. Georgia in 1789 changed the* methocFof amending the state constitution by requiring a two-thirds majority in a constitu- tional convention, and made another change in 1798 by which a two-thirds majority in each house of the legislature and a three-fourths m a- j ority in each house of the succeeding legislature was required for the adoption of an amendment to the constitution. South Carolina in 1790 adopted a provision guarding against mere ma- jority amendment by making the approval of a two-th i rds maj ority in both branches of two suc- 235 SPIRIT OF AMERICAN GOVERNMENT cessive legislatures necessary for any changes in the constitution. Connect icut in 1818 restricted the power of amending by requiring a majority in the house of representatives, a two^thirds majority - in both houses^of -the next legislature, and final approval by a majority of the electors. New York in 182.1 adopted a plan which required that an amendment should receive ajnajoriiy in each branch of the legislature, a two-thirds ma- jorityjn ejich^brandi_cjUi^^ and be approved bv^ a-^maijority .of the voters. North Carolina in 1835 made a three-fifths ma- jority in each house of the legislature and a two- thirds majority of each house of the follow- ing legislature necessary for changes in the constitution. The judicial veto served the purpose of prevent- ing majority amendment under the guise of ordinary legislation, while a safeguard against constitutional changes favored by a mere majority was thus provided in the extraordinary majority required in both houses of the legislature to pro- pose or adopt amendments. This, as has been shown in the case of the Federal Constitution, is a formidable check on the majority. In view off this restriction upon the proposing of amend- ments the provisiorHfor ratification by a popular; majority, which owing to the progress of the; later democratic movement has now been gen-] 236 STATE CONSTITUTIONS erally adopted, is no real concession to the prin- ciple of majority rule. Assuming that a two-thirds majority in the legislature is required to propose an amendment, and that the principle of representation is so applied that each party is represented in the legislature in proportion to its popular vote, it would scarcely ever be possible for any party to propose an amendment to the state constitution, since it can not be expected under any ordinary conditions to control two-thirds of the popular vote. But inasmuch as the successful party often secures under our system much more than its proportional share of representation in the legis- lature, it is by no means unusual for a party to have a two-thirds majority in both houses of a state legislature. This would appear to give the numerical majority under such conditions the power to propose and adopt amendments. Such would be the case if the_oa£ty__yvere _really_re-^ spcm^i^_^o^ho^e^jwho sujonrte^^^t-Jjie^poll^ But this would assume the existence of a purely state party, organized with reference to state issues only, and carrying the election as the ad- vocate of a definite state policy. Moreover, it would presuppose all those means, political and constitutional, by which the majority in the legis- lature would be accountable to the popular ma- jority in the state. This is rendered impossible, 237 SPIRIT OF AMERICAN GOVERNMENT however, as has been shown, by our system of government. The above-mentioned changes in the constitu- tions of the older states may be attributed in large measure to the reaction against democracy which brought about the adoption of the Federal Con- stitution. They may be regarded as an expression of that distrust and fear of democracy which filled the minds of those who framed and set up our Federal government. It is not contended^ however, that they are now so regarded by the masses of the people. The work of deifying thel Federal Constitution was soon accomplished. And when the people had come to venerate it as the most perfect embodiment of the doctrine of popular sovereignty that the intelligence of man could devise, it was but natural that they should acquiesce in the proposal to make the state gov- ernments conform more closely to the general plan of that instrument. In view of the wide- spread sentiment which amounted to a blind and i unthinking worship of the Constitution, it is not ' surprising that the political institutions of the general government should have been largely copied by the states. The only surprising thing in this connection is the fact that they did not follow the Federal model more closely, since every feature of it was the object of the most extrava- gant eulogy. Here we see, however, an incon- sistency between profession and practice. Th 238 STATE CONSTITUTIONS people who tolerated no criticism of the Federal Constitution showed nevertheless a distrust of some of its more conservative features. Much as the indirect election of President and United States senators was favored by the framers of our Federal Constitution, there has been no tendency to apply that principle in the selection of the corresponding state officials. In all the states framing new constitutions during the Revolutionary period, except Massa- chusetts, New Hampshire, and New York, the governor was elec ted by the _jeg [islatuj ^. Penn- sylvania abandoned indirect election and adopted election by the qualified voters in 1 790 ; Delaware, in 1792; Georgia, in 1824; North Carolina, in 1835; -Maryland, in 1837; New Jersey, in 1844; Virginia, in 1850; and South Carolina, in 1865. South Carolina and Maryland are the only states which have ever had indirect election of the upper house. Both adopted it in 1776, the constitution of South Carolina providing that the members of the lower house should elect the members of the upper house, and the constitution of Maryland requiring that members of the upper house should be chosen by an electoral college. This was abandoned for direct election in South Carolina in 1778 and in Maryland in 1837. The conservative reaction was soon followed 3y a new movement toward democracy. This no doubt largely explains the failure of the people to 239 SPIRIT OF AMERICAN GOVERNMENT reproduce in their state constitutions all those features which they professed to admire in the Federal Constitution. Not only did they not copy all the new features of that document, but they even discarded some of the then existing provisions of the state constitutions which had been copied in the Federal Constitution. The principle of indirect election which was every- where recognized in the choice of the state j udiciar y during the Revolutionary period was gradually abandoned for the more democratic method of dir^cjLpopular^dw^ becomejhejujle. The life tenure of judges which formerly existed in most of the states has almost entirely disappeared. In all but four states the judges are now chosen for terms varying from two to twenty-one years — the average length of the term being eight or ten years. The combina- tion of djrecjj2Qj3ular choice with a fixed term of office has had the effect of making the state judi- ciary much more amenable to public opiniqn_than thej£rrespo1n3m^fT^ merit. By reason of the relatively long term foi which the judges of the state supreme court an elected, however, and thej)Jan_of^gradual renewal which prevei ^e^tjpubh_c^pp«iion from gaining the ascendency iiiJthat_bgdy, it is still th , least responsible and most conservative, th e stat e government. We see, then, two motives exerting an influenc* 240 STATE CONSTITUTIONS in the remolding of the state constitutions, one being the desire to copy the Federal Constitution and the other the belief that the state government should reflect the will of the people. That the attainment of one of these ends would inevitably defeat the other was not generally recognized. The conviction which had become thoroughly rooted_Jn_ the popular mind that_the syste m of checks and balances was thejiighej^ejcpression of democratic organization ensured the embodiment oTthe general features of that system in the con- stitutions of the various states. The constitu- tional changes having this end in view largely destroyed the responsibility of the state govern- ments to the people and thus prevented the very thing they were designed to accomplish. But hoyvwejMiiudiJ^ t o the p rinciple jjf djrject. .popular contro^ it was adqptecLh y the people with the ide a of making. the govern ment more_readily refle ct their will. They were not conscious of any inconsistency in holding tenaciously to the doctrine of checks and balances and at the same time seeking to give the people more control over the state governments. The latter purpose is clearly seen in the constitutional changes relating to the tenure and manner of election oft he judiciar y, and in the adoption of univers alsuffrage. Summing up the effects of these changes in the state constitutions, we may say that the suffrage was placed upon a demo- 16 241 SPIRIT OF AMERICAN GOVERNMENT cratic basis, the state judiciary was organized on a less irresponsible plan and the appearance of political responsibility secured by applying the principle of direct election to every branch of the state government. The longer term of office established for the legislative and executive branches of the state government, however, to- gether with the increase in the authority of the judiciary and the adoption of the system of checks and balances has upon the whole had the effect of making the state government less responsive to the electorate. As seen in preceding chapters, the framers of the Federal Constitution made use of the scheme of checks and balances fo/ r J^4iurpose^of. hmjiing th£_pQW£r_pi_the peqjDle. There is little evidence that they favored diffusion of authority except in so far as that authority rested upon a popular basis. Hence they carried the plan much farther in curtailing the power of the House of Repre- sentatives than a logical application of the .doctrine would have justified, while at the same time giv- ing more authority and power of independent action to the other branches of the general gov- ernment than was consistent with their avowed, if not real, purpose. They gave to the executive and judicial branches of the general government power to control the administration of Federal laws. The enforcement of all laws and regulations of the 243 STATE CONSTITUTIONS general government, in so far as the President and Senate might desire to enforce them, was guaranteed through the power to appoint and re- move those who were entrusted with their execu- tion, while the right of appeal from a state to the Federal courts precluded the possibility of en- \ forcing a state Jaw deemed to, exceed the proper J l^njtsjDf state authority.^ ' In the state governments on the other hand we find a high degree of administ rative decentraliza- tion. The governor, unlike the President, was iiot_g^n_any ade^uatejDower to_control_those entrusted with the execution of state_Jaws. A multitude of directly e jected local^ officials are the agents of the state for this purpose. And since they reflect the sentiment of the various local interests to which they owe their election, it may and often jloes happen that a law to which those interest s__are opposed 4s rendered practically in- operative through the efforts of those local officials who are sworn to enforce it. The practical work- ing of this system often gives to a local com - munity an administrative veto on such ge n era l l aws of the s tate as may be_oppo-sed 4o4ocal-*entic. merit By this means t he general executive authority of the state is weakened and it s re- sponsibility correspondingly diminished. In still another respect the policy of dividing authority and parcelling it out between separate and distinct organs of government has been 243 SPIRIT OF AMERICAN GOVERNMENT carried much farther in the state than in the Fed- eral Constitution. Unlike the Federal govern- ment in which executive power is centralized in the President, the state constitutions have created a number of separate officials, boards and commis- sions, some directly elected and some appointed, independent of each other and irresponsible except in so far as a fixed term of office implies respon- sibility. This means that instead of one executive the state has many. Only one of them — the governor — has, it is true, a veto on the enactment of laws; but this, as we have seen, is really a legislative and not an executive power. Each of these has what may be termed an_.administ rative veto ; that is, the power to negative the laws which they are expected to administer by simply not enforcing them. The impossibility of _^eciiring anjionesi and faithfu l administration of the laws where the respon sibility forjtkeir, enforcement is. d jyided between a number of ^separate and prac- tically independent officials , i s clearly shown i n t he experience of the various stat es. The evils of this system are illustrated in the state laws enacted for the purpose of controlling the rail- way business. Provision is usually made for their enforcement through a railway commission either directly elected or appointed by the gov- ernor. Tl^t_dire^_de^tion_by^ thejDeople Li°£- a fixed term, ther^by_s^unng i independence ^during that term, fails to guarantee, the enforcement of 244 STATE CONSTITUTIONS such laws is^tnkmj^ly^h^wn in. the experience^ oj_.Caliiorn.ia, whej^lhis Jiod^Jias been cgntinu- an^_undex__the__ domination of the railway in- terestsi Under a system which thus minutely subdivides and distributes the administrative function, any effective control over the execution of state laws is made impossible. The governor, who is nominally the head of the executive agencies of the state, is not in reality responsible, since he has no adequate power to compel the enforcement of laws directly entrusted to other independent state officials. Any interest or combination of inter- ests that may wish to prevent the enforcement of certain laws may be able to accomplish their end by merely controlling the one official orboard whose duty it is to enforce the law in question. Their task would be a much more difficult one, if it were necessary to control for that purpose the entire executive arm of the state. The oppor- tunity for the corrupt use of money and influence is thus vastly increased, since the people, though they might watch and judge fairly well the con- duct of one state executive, can no t exercise any effective censorship ove r a lar ge number of such SJl^ officials. This irresponsibility which arises out of a wide diffusion of power is not confined to the executive 1 See Annals of the American Academy of Political and Social Science, Vol. VI, p. 469. 24S SPIRIT OF AMERICAN GOVERNMENT branch of the state government. The legislature in the course of our political development has taken on the same elaborate commrttee^organiza- tion which characterizes, as we have seen, our Federal Congress. The same sinister influences 'working through similar agencies oppose needed legislation. But although the good bills are fre- quently killed or mutilated in the secrecy of the committee room, the skilful use of money or other corrupt influence often secures the enact- ment of laws opposed to the interests of the people. Moreover, the practice known as log- rolling by which the representatives of various local interests combine and force through meas- ures which secure to each of certain localities some advantage at the expense of the state at large are so common as to excite no surprise. The relation existing between the executive and legislative branches under our system is another source of irresponsibility, since it does not follow simply because a law has been placed upon the statute books of a state that it can be enforced. An act may be passed in response to a strong public sentiment, it may be constitutional and the executive may be willing and may even desire to enforce it, and yet be unable to do so. The legis- lature may, and frequently does, enact laws under the pressure of public opinion while at the same time quietly exercising what is, in effect, a veto on their execution. In the case of much impor- 246 STATE CONSTITUTIONS tant legislation it can accomplish this by merely not appropriating the funds which are required for their enforcement. The laws against adul- teration are a good illustration. An official known perhaps as a dairy and food commissioner may be provided for, whose duty it is to enforce these laws. The nature of the work entrusted to him requires that he should have a corps of as- sistants, inspectors who are to keep a watchful eye on the goods likely to be adulterated and collect samples of such goods from the various places in the state where they are exposed for sale, and chemists who are to analyze the samples thus pro- cured and determine whether manufacturers and dealers are complying with the law. Unless an j adequate sum is appropriated for this purpose, I and for prosecuting those who are violating t he y law, such laws can not be enforced. In our state governments the subdivision of authority has been carried so far that no effective control over the enactment or enforcement of state laws is possible. Under the influence of the doctrine of checks and balances the policy of widely distributing political authority has inured to the benefit of those private interests which are ever seeking to control the government for their own ends, since it has supplied the conditions under which the people find it difficult to fix the blame for official misconduct. Indeed it may be said that wherever power qhnnlH Hp rnn^gritp^ 247 le i] SPIRIT OF AMERICAN GOVERNMENT /to_ ensure responsibility, it has been almost jn- ( variably distributed. rr t i 24$ CHAPTER X MUNICIPAL GOVERNMENT Our municipal government, like the rest of our political system, was originally an inheritance from England. The governing power in colonial times was a single body, the common council, such as exists in England to-day, composed of mayor, recorder, aldermen, and councilmen. As a rule the councilmen were elected annually by the qualified voters, while the mayor was ap- pointed by the colonial governor. The council had authority to enact local regulations not in conflict with English or colonial legislation. The mayor had no veto and usually no appointing power. The Revolution did not modify the general scheme of municipal government in any im- portant respect. The mayor was still, as a rule, appointed by the governor, who now owed his office directly or indirectly to the qualified voters of the state. The power to grant municipal charters, which before the Revolution was exer- cised by the provincial governor, was now lodged in the state legislature. The important changes in municipal govern- 249 i SPIRIT OF AMERICAN GOVERNMENT ment were made after, and may be regarded as an effect of the adoption of the Federal Constitution. As the centralization of authority in the hands of the common council could not be reconciled with the new doctrine of checks and balances, munic- ipal government was reorganized on the plan of distributed powers. This effort to readjust the political organization of the city and make it con- form to the general scheme of the Federal gov- ernment is seen in the municipal charters. granted after the adoption of the Constitution. The tendency toward a bicameral council, the exten- sion of the term for which members of the council were elected and the veto power of the mayor may be attributed to the influence of the Constitution rather than to any intelligent and carefully planned effort to improve the machinery of munic- ipal government. As in the case of the state governments, the development of the system was influenced by the growing belief in democracy. Property qualifi- cations for the suffrage disappeared, and the mayor became a directly elected local official. The changes made in municipal government, however, as a concession to the newer democratic thought, did not ensure any very large measure of popular control. Municipal government in its practical working remained essentially un- democratic. It would be perfectly reasonable to expect that 250 MUNICIPAL GOVERNMENT popular government would reach its highest de- velopment in the cities. Here modern democracy was born; here we find the physical and social conditions which facilitate interchange of thought and concerted action on the part of the people. Moreover, the government of the city is more directly and immediately related to the citizens than is the government of state or nation. It touches them at more points, makes more de- mands upon them and is more vitally related to their everyday life and needs than either state or national government. For these reasons the most conspicuous successes of democracy should be the government of present-day cities. Under a truly democratic system this would doubtless be the case. But in this country the most glaring abuses and most conspicuous failures of govern- ment occur in the cities. The enemies of popular government have used this fact for the purpose of discrediting the theory of democracy. They would have us believe that this is the natural result of a system which places political authority in the hands of the masses — that it is the fruit of an extreme democracy. This conclusion rests upon the assumption that municipal government in this country is democratic — an assumption which will not bear investigation. American cities are far from being examples of extreme democracy. In some important respects they are less democratic than the government of either 25 n SPIRIT OF AMERICAN GOVERNMENT state or nation. A careful analysis of the situa- tion shows clearly that the municipal evils so frequently attributed to an excess of democracy are really clue to the system of checks by which all effective power to regulate municipal matters is withheld from the majority. In this country popu- lar control is reduced to a minimum in the cities, while in Great Britain and the countries of west- ern Europe we find in municipal government the nearest approach to democracy. This is the true explanation of the fact that municipal govern- ment is our greatest failure and their most con- spicuous success. Under any consistent application of the theory of democracy a city would be entitled to the fullest measure of local self-government. It ought to be given an absolutely free hand to ini- tiate and carry out any policies of purely local concern. This right, however, the American city does not possess. Local self-government is recognized neither in theory nor in practice under our political scheme. The true local unit is the city, and this, according to our legal and con- stitutional theory, is merely the creature of the state legislature. The latter called it into being, determines what powers it may exercise, and may strip it of them at pleasure. According to the prevailing practice of our state legislatures and the almost uniform decisions of our courts the exercise of local self-government by our cities is 252 MUNICIPAL GOVERNMENT to be regarded as a mere privilege and not a right. The municipal charter was originally a grant of certain privileges of local government in return for money payments or other services rendered to the king. It was a mere concession of privileges based upon expediency, and not a recognition on the part of the Crown of local self-government as an admitted right. As an express and formal statement of the measure of local government which the king would bind himself to respect, it tended to limit his power of interference in matters covered by such charter, since privileges solemnly granted could not with safety be lightly and arbitrarily disregarded. Municipal charters thus have the same origin as the constitution of the state itself, in that they are the outcome of an effort to place a check upon an irresponsible cen- tral authority. The legislature of the American common- wealth in succeeding to the power of the king over municipal charters manifested at first an inclina- tion to concede to the city the right to a measure of local self-government. Thus "the city of New York received from the English kings dur- ing the colonial period a charter which, on the Declaration of the Independence of the colony of New York, and the establishment of the new state of New York, was confirmed by the first Constitution of the state. For a considerable period after the adoption of this constitution, 253 SPIRIT OF AMERICAN GOVERNMENT changes in that charter were made upon the initiation of the people of the city, which initiation took place through the medium of charter con- ventions whose members were elected by the people of the city, and no statute which was passed by the legislature of the state relative to the affairs of the city of New York took effect within the city until it had been approved by the city." 1 But as Professor Goodnow observes, American cities "have very largely lost their original powers of local self-government." 2 The original con- ception of the city charter as a contract which established certain rights of local self-government which the legislature was bound to respect, merely recognized municipal corporations as entitled to the same exemption from unreasonable legislative interference, as the courts have since the Dart- mouth College decision enforced in favor of private corporations. If this view had prevailed cities could not have been deprived arbitrarily of rights once recognized by the legislature, but they could have enforced the recognition of no rights not thus granted. The recognition of this doctrine would have prevented many of the abuses that have characterized the relation between state and municipal government in this country, but it would have guaranteed no rights which the legis- 1 Goodnow, Municipal Home Rule, p. 20. 2 Municipal Problems, p. 9. 254 MUNICIPAL GOVERNMENT lature had not seen fit to confer. Any liberal inter- pretation of the theory of democracy must of necessity go farther than this, and make municipal self-government a fundamental right which the central authority of the state can, not only neither abridge nor destroy, but can not even withhold, since it is a right having its source not in a legisla- tive grant, but in the underlying principles of popular government. The failure to recognize the right of local self- government as fundamental in any scheme of democracy was unfortunate. Some of the worst evils of municipal government would have been avoided, however, if authority once granted to municipalities had been treated by the courts as a limitation of the power of the legislature to in- terfere in purely local matters. The refusal of the state government to recognize an appropriate sphere of municipal activity which it would have no right to invade, has been the main cause of corruption and inefficiency in municipal gov- ernment. The policy of state interference in municipal affairs was the inevitable outgrowth of the doc- trine that cities had no powers except such as had been expressly given, or were necessarily implied in their charters. This lack of the power of initiative made it necessary for cities, as they in- creased in size and complexity, to make constant appeals to the legislature for permission to supply 255 SPIRIT OF AMERICAN GOVERNMENT their wants. Every new problem which the city had to deal with, every new function which it had to perform, was a ground for state interference. This necessity of invoking the aid of the state legislature, constantly felt in every rapidly grow- ing city, tended to develop a feeling of de- pendence upon legislative intervention as an indispensable factor in the solution of local prob- lems. Thus the refusal of the state government to recognize the right of municipal initiative compelled the cities to welcome state interference as the only means of dealing with the new prob- lems with which they were being continually confronted. Another reason for the extension of state au- thority at the expense of the municipality is to be found in the twofold character of city govern- ment. Besides being a local government the city is also for certain purposes the administrative agent of the state, and as such is properly subject to state supervision. But, in the absence of any clear distinction between state and local interests, it was an easy matter for protection of the former to serve as a pretext for undue interference with the latter. The city was thus placed at the mercy of the state government, since the legislature could make the needs of the municipality or the protec- tion of the general interests of the state a pretext for any interference calculated to further the 256 MUNICIPAL GOVERNMENT private or partisan ends of those who controlled the legislative machine. As cities increased in importance it was found that this unlimited power over them could be made a valuable asset of the party machine in control of the state legislature. The city offered a rich and tempting field for exploitation. It had offices, a large revenue, spent vast sums in public improvements, let valuable contracts of various kinds and had cer- tain needs, as for water, light, rapid transit, etc., which could be made the pretext for granting franchises and other privileges on such terms as would ensure large profits to the grantees at the expense of the general public. That the political machine in control of the state government should have yielded to the temptation to make a selfish use of its powers in this direction, is only what might have been expected. "The legislature has often claimed also the right to appoint municipal officers and to fix and change the details of municipal organization, has legislated municipal officers out of office, and established new offices. In certain cases it has even provided that certain specific city streets shall be paved, has imposed burdens upon cities for the purpose of constructing sewers or bring- ing in water ; has regulated the methods of trans- portation to be adopted within the limits of cities ; in a word, has attended to a great number of matters which are purely local in character; mat- 17 257 SPIRIT OF AMERICAN GOVERNMENT ters which do not affect the people of the state as a whole, and in regard to which there is little excuse for special legislative action." 1 The extent to which state regulation of local matters has been carried in New York is indicated by the fact that in the year 1886 "280 of the 681 acts passed by the legislature . . . interfered directly with the affairs of some particular county, city, village, or town, specifically and expressly named. . . . 'The Philadelphia City Hall Building affords a good example of how far this lack of local re- sponsibility may sometimes carry the legislature in the exercise of local powers, and in the impo- sition of financial burdens on cities. 'In 1870 the legislature decided that the city should have new buildings. The act [which was passed to accom- plish this result] selected certain citizens by name, whom it appointed commissioners for the erection of the buildings. It made this body perpetual by authorizing it to fill vacancies. . . . This com- mission was imposed by the legislature upon the city, and given absolute control to create debts for the purpose named, and to require the levy of taxes for their payment. " The public buildings at Broad and Market streets were,' in the words of Judge Paxson, 'projected upon a scale of magnificence better suited for the capitol of an empire than the mu- 1 Goodnow, Municipal Home Rule, p. 23. 258 MUNICIPAL GOVERNMENT nicipal buildings of a debt-burdened city/ Yet this act was declared constitutional, the city was compelled to supply the necessary funds, and 'for nearly twenty years all the money that could be spared from immediate and pressing needs' was 'compulsorily expended upon an enormous pile which surpasses the town halls and cathedrals of the Middle Ages in extent if not in grandeur.' "* The legislature is strongly tempted to abuse its power when the party machine in control of the state does not have the political support of the local authorities. One of the most notorious examples of such interference in recent years was the so-called "ripper" legislation enacted in Penn- sylvania in 1 90 1, by which the mayors of Pitts- burg and Allegheny were removed from office and the governor given the power to appoint and remove their successors until the regular munic- ipal election in the year 1903. The motive for this legislation was the desire to crush local opposition to the state machine by putting the control of municipal offices in the hands of a governor friendly to the political boss of the state. In order to provide an opportunity for the mayor appointed by the governor to use his office in building up and perpetuating a local machine that would support the clique in control of the state government, the appointee of the governor was declared eligible for re-election, although his 1 Goodnow, Municipal Home Rule, pp. 24-26. 259 SPIRIT OF AMERICAN GOVERNMENT locally elected successors were made ineligible. A more flagrant abuse of legislative authority could hardly be imagined; yet this act was de- clared constitutional by the supreme court of the state. Many such instances of partisan interference may be found in the recent legislation of some of the larger and more populous states. The best example of the misgovernment of cities by the legislature for private or partisan ends is seen in the franchise legislation by which privileges of great value have been secured by street railway and other corporations without any compensation to the cities concerned. The power which the legislature can exercise in the interest of private corporations monopolizing for their own profit the very necessities of life in the modern city — water, light, transportation, com- munication, etc. — has been one of the most serious evils resulting from state domination of municipal affairs. It exposed the legislature to the tempta- tion which individuals and corporations seeking valuable concessions readily took advantage of for their own gain. It thus brought into active operation those forces which have been the chief factor in corrupting both state and municipal government. As soon as it came to be generally recognized that state control of local affairs not only did not prevent, but was, in fact, the chief source of the 260 MUNICIPAL GOVERNMENT misrule of American cities, an effort was made to provide a remedy by the adoption of constitu- tional provisions regulating the power of the leg- islature to interfere in municipal affairs. These limitations relate to those matters wherein the evils of state interference have been most pro- nounced. Thus in some states the legislature is not allowed to grant the use of streets to railways or other private companies without the consent of the municipal authorities; to create special com- missions and bestow upon them municipal func- tions ; or to incorporate cities or regulate them by special laws. It was not the purpose of these constitutional provisions to grant to municipalities any im- munity from state control, but merely to forbid certain modes of exercising legislative super- vision which, as experience had shown, were liable to serious abuses. The prohibition of special legislation, generally incorporated in recent state constitutions, has, however, largely failed to ac- complish its purpose, owing to the fact that the courts have permitted the legislature to establish so many classes of cities that it has been able to pass special acts under the guise of general laws. The state of Ohio furnishes a good example of the practical nullification of a constitutional provision by the legislature through the abuse of its power of classification. The constitution of 185 1 prohibited the legislature from passing any 261 SPIRIT OF AMERICAN GOVERNMENT special act conferring corporate powers and pro- vided for the organization of cities by general laws. The legislature, however, adopted a meth- od of classifying cities which defeated the object of this provision. In 1901 each of the eleven principal cities in the state was in a separate class. Consequently all laws enacted for each of these classes were in reality special acts, and as such were clearly an evasion of the constitutional prohibition of special legislation. Nevertheless, this method of classification had been repeatedly upheld by the courts. Its advantages to the party in control of the state government were obvious, since it gave the legislature a free hand in inter- fering in local affairs for partisan ends. It per- mitted, the state machine to make concessions to a city which gave it political support and at the same time extend state control over those cities in which it encountered opposition. This was the situation down to 1902, when the supreme court rendered two decisions which overthrew the sys- tem of classification in vogue and invalidated the charter of every city in the state. It is unfor- tunate that this change in the attitude of the court, though much to be desired, occurred at a time when it had the appearance of serving a partisan end. One of these suits was brought by the Re- publican attorney-general of the state to have the charter of the city of Cleveland declared invalid on the ground that it was a special act. This 262 MUNICIPAL GOVERNMENT charter had been in force for over ten years, hav- ing granted liberal corporate powers at a time when Cleveland was a Republican city. Later it passed into the Democratic column, and this suit was instituted as part of the plan of the Repub- lican machine of the state to curb the power and influence of the mayor of that city. The new municipal code which was adopted at an extra session of the legislature provided a scheme of government applicable to Cleveland under which the powers of the mayor were much curtailed. In the New York constitution of 1894 an effort was made to guard against the abuse of special legislation. The cities of the state were by the constitution itself divided into three classes ac- cording to population, and any law which did not apply to al! the cities of a class was declared to be a special act. Special legislation was not pro- hibited ; but when any act of this kind was passed by the legislature it was required to be submitted to the authorities of the city or cities in question, and if disapproved of by them after a public hear- ing, it could become law only by being passed again in the regular manner. This merely af- forded to the cities affected by the proposed special legislation an opportunity to protest against its enactment, the legislature having full power to pass it in the face of local disapproval. That this is not an adequate remedy for the evils of special legislation is shown by the fact that the 263 SPIRIT OF AMERICAN GOVERNMENT two charters of New York City enacted since this constitution went into effect, have both been framed by a state-appointed commission and passed over the veto of the mayor. The constitutional changes which have been mentioned must not be understood as implying any repudiation of the doctrine that a municipal corporation is a creature of the general govern- ment of the state. These provisions merely se- cured, or rather sought to secure, to cities some benefits of a negative character — immunity from certain recognized abuses of legislative authority. They are the expression of an effort to find a remedy for the evils of municipal government by restricting the authority of the legislature rather than by giving cities the power to act inde- pendently in local matters. They have dimin- ished somewhat the evils of state interference, but they failed to remove the cause by giving the cities the constitutional right to control their own affairs. The failure of all these measures to accomplish what was expected of them finally brought the advocates of municipal reform to a realization of the fact that the American system made no pro- vision for real local self-government, and that our refusal to recognize this principle was the chief cause of the prevalent corruption and misrule of our cities and the insuperable obstacle to all effective and thoroughgoing reform. As soon as 264 MUNICIPAL GOVERNMENT attention was directed to this feature of the protn lem it was seen that no system could be devised that would be better adapted to the purpose of defeating the end of good city government, since those who would be directly benefited by the re- forms in municipal government were powerless to bring them about except with the co-operation of the legislature. Moreover the consent of the legislature, though once given, was liable at any time to be withdrawn at the instigation of private or partisan interests, since this body was not directly interested in establishing and maintaining good municipal government nor responsible to those who were. It was finally seen that some more effective measure than the prohibition of special legislation was required. The next step was the attempt to secure to cities the needed authority in local mat- ters by means of a constitutional provision au- thorizing them to frame their own charters. In this movement the state of Missouri led the way by incorporating a home-rule provision in its con- stitution of 1875. California, Washington, Min- nesota, and Colorado have since adopted similar provisions. In each of these states the charter is framed by a commission locally elected except in Minnesota, where it is appointed by the district judge. In Missouri this privilege is accorded only to cities having more than 100,000 inhabitants. 265 SPIRIT OF AMERICAN GOVERNMENT The constitution of California adopted in 1879 also restricted the benefits of home rule to cities of more than 100,000 population, but it has since been extended to all cities having more than 3,500 inhabitants. Washington allows all cities having 20,000 or more population to frame their own charters. Minnesota extends the privilege to all cities and villages without respect to size, while Colorado restricts it to cities having more than 2,000 inhabitants. The right to serve as a member of a charter commission is limited to freeholders in all these states except Colorado, where it is restricted to taxpayers. The object of these home-rule pro- visions was to give cities some measure of ini- tiative in local affairs without at the same time permitting them to organize on the plan of simple majority rule. In the Missouri constitution of 1875 a four-sevenths vote was required to adopt a charter and a three-fifths vote to ratify an amendment, although the constitution itself was adopted and could be amended by mere majority vote. The constitution of California permits ratification by a majority of the qualified voters, but every charter thus ratified must be submitted to the legislature for its approval or rejection as a whole. No charter amendment can be adopted except by a three-fifths majority of the popular vote and subsequent legislative approval, al- though, as in the case of Missouri, a majority vote 266 MUNICIPAL GOVERNMENT is sufficient to approve an amendment to the state constitution. In Washington the constitution provides for the ratification of charters and char- ter amendments by a majority of the qualified electors. The constitutional amendment adopted in Minnesota in 1896, with its subsequent modi- fications, provides for the ratification of charters and charter amendments by a four-sevenths vote except in the case of certain cities where a three- fourths majority is required. A three-fifths vote in favor of a charter amendment is necessary for its ratification. Colorado, by a constitutional amendment adopted in 1902, permits the ratifica- tion and amendment of charters by a majority vote. A constitutional amendment adopted in Missouri in 1902 provides for the ratification of charters by majority vote. With the exception of California, where the constitutional amendment of 1902 allows 15 per cent, of the qualified voters to require the sub- mission of a charter amendment, and Colorado, where 25 per cent, of the voters have that right, the states above mentioned make no provision in their constitutions for the popular initiative. Both Washington and Minnesota, however, have permitted it by statute, the former on the applica- tion of 15 per cent., and the latter when 5 per cent, of the qualified voters demand it. The chief defect of these constitutional pro- visions relating to home rule is that they do not 267 SPIRIT OF AMERICAN GOVERNMENT really grant it. There are too many restrictions imposed upon cities availing themselves of this privilege, and in two of the states in question, notably in Missouri, they are for the benefit of the larger cities only. The restriction of the charter- framing right to freeholders, the withholding from the majority of the power to amend in Cali- fornia and Minnesota, and the failure to provide in the constitution for the popular initiative in Missouri, Washington, and Minnesota indicate a willingness to grant the right of home rule only under such conditions as are calculated to ensure adequate limitation of the power of the majority. These constitutional provisions certainly point in the direction which we must follow if we would find any satisfactory solution of our municipal problem. They would, if liberally interpreted by the courts, secure to cities immunity from in- terference in local matters. But the courts are naturally opposed to innovations in our constitu- tional system, and have consequently been dis- posed to give provisions of this character such an interpretation as will minimize their effect. The requirement that the charters framed under these provisions must be in harmony with the constitu- tion and laws of the state has been declared by the courts to mean that they must not only conform to the laws in force at the time the charters are adopted, but also that they must conform to all legislation subsequently enacted. Had the courts 268 MUNICIPAL GOVERNMENT been thoroughly imbued with the principle of local self-government, they could easily have given these constitutional provisions an interpretation which would have effectually deprived the legis- lature of the power to interfere in purely local affairs. They could have declared all acts by which the state government sought to invade the sphere of local affairs null and void, just as they have all acts of the municipal government which have encroached upon the powers reserved ex- clusively to the state. What the courts have done, however, is to hold that these constitutional provisions merely authorize cities to govern them- selves in accordance with the constitution and in harmony with such laws as the legislature has or may hereafter enact. The city may adopt a charter which is in harmony with the constitution and the laws of the state, but the charter thus adopted may be freely modified by general laws relating to cities. The unfriendly attitude of the courts has thus largely defeated the object of these home-rule provisions. The state legislature is still free to encroach upon or abridge the sphere of municipal self-government. The constitutional provisions above mentioned may be regarded as having a twofold purpose. They were designed to limit, if not destroy, the power of the legislature to invade the sphere of municipal affairs, and also to confer upon cities the general power to act for themselves, by virtue 269 SPIRIT OF AMERICAN GOVERNMENT of which they could on their own initiative, sub- ject to certain restrictions contained in the con- stitution, set up their own government, formulate and carry out a municipal policy and manage their own affairs to suit themselves. This would seem to be implied necessarily in the grant of constitu- tional power to frame a charter for their own government. A liberal interpretation of this fea- ture of the constitutions in question would have held that all cities to which it applied were thereby authorized to exercise all powers not expressly withheld by the constitution or the statutes of the state. This, however, has not been the attitude of the courts. Their reluctance to give home- rule provisions a liberal interpretation may be illustrated by a decision of the supreme court of Washington. In addition to the power granted to cities of the first class to frame their own char- ters the constitution of this state provides that "any county, city, town, or township, may make and enforce within its limits all such local, police, sanitary and other regulations as are not in con- flict with general laws." In view of the attitude that courts have generally taken in this matter it is not surprising that the supreme court of Wash- ington has intimated that the above-mentioned constitutional provisions are not self-executing. Moreover, it does not seem disposed to concede even to cities of the first class any important powers except such as have been expressly con- 270 MUNICIPAL GOVERNMENT ferred by statute. For example, the statutes of Washington authorize cities of the first class "to regulate and control the use" of gas supplied by a private corporation, and the charter of Tacoma expressly gave to the city council the power to fix the price of gas so supplied. Suit was brought to enjoin the city from exercising this power which was claimed under the constitutional and statutory authority given to cities of the first class. The supreme court held that while Tacoma had the power to regulate and control, expressly given it by statute, it did not have the power to fix the price. 1 This decision evinces a singular lack of sympathy on the part of the court with the home-rule provisions of the constitution of Washington. But although the effort to confer upon cities by constitutional enactment the power to manage their own affairs has thus far largely failed, it indicates a growing appreciation of the nature of the problem and the character of the remedy that must be applied. A more clearly defined and effective public opinion in favor of municipal self- government must in the end overcome judicial opposition. The most liberal interpretation of which these constitutional provisions are susceptible, however, would not have ensured complete municipal self- government. Unless a city is given adequate 1 Tacoma Gas and Electric Light Co. v. Tacoma, 14 Wash. 271 SPIRIT OF AMERICAN GOVERNMENT financial powers, a constitutional grant of the right of local self-government does not enable it to exercise much choice in relation to the more important matters of municipal policy. By nar- rowly limiting the powers of cities in this direc- tion, they have been largely deprived of the advantages which they would have enjoyed under a consistent application of the home-rule prin- ciple. A certain amount of freedom in the use of the taxing power would seem to be no less essen- tial to the city than to the state itself. Within reasonable limits it ought to be conceded the right to formulate its own scheme of taxation. In every important American city the taxes collected for municipal purposes greatly exceed those im- posed for the support of the county and state gov- ernment. In a matter which so vitally concerns the city it ought to have some right to pursue a policy of its own. This right has not been recognized, however, even in the constitutions which have made most concessions to the prin- ciple of municipal home rule. By this means all innovations or reforms in municipal taxation except such as may be authorized by the state itself are effectually prevented. It could not, for instance, exempt personal property from taxation, or make a tax on ground rent the main source of its revenue. The power to incur debt for municipal purposes is no less essential than the power to tax. The 272 MUNICIPAL GOVERNMENT present-day city must spend large sums in making public improvements the cost of which it is neces- sary to distribute over a period of years. To limit too narrowly the borrowing power of cities for these purposes would prevent them from realizing the full benefits of unhampered self- government. This does not imply that a city should own and operate all industries of a quasi- public character, but it does imply that it should have the unquestioned right and the power to do so. Unless this is the case it is not in a position to secure the most favorable terms from such private corporations as may be allowed to occupy this field. Unreasonable restrictions upon the borrowing power of cities by placing obstacles in the way of municipal ownership of public utilities tend to deprive the people of the most effect- ive safeguard against the extortion of private monopolies. The limitation placed upon the amount of municipal indebtedness has not had altogether the effect intended. This is mainly due to the fact that the debt limit fixed in the state constitutions was in many cases so low that it did not permit cities to make absolutely necessary public im- provements, such as the paving of streets and construction of sewers. To make these improve- ments without resorting to credit would require the owners of the property affected to advance the full amount of their cost. This would in many 18 273 SPIRIT OF AMERICAN GOVERNMENT instances be extremely inconvenient. Accord- ingly, an effort was made to find some method of evading these restrictions which would be upheld by the courts. This was accomplished by issuing bonds to be paid out of a special fund which was to be created by taxes assessed against the prop- erty of the district charged with the cost of the improvements. The courts held that this was merely a lien upon the property of the district in question, and not a municipal debt within the meaning of the above-mentioned constitutional limitations. These decisions by the courts may not appear to be in harmony with the letter of the constitutional provisions relating to municipal indebtedness, but they are hardly at variance with their spirit. The object of these restrictions was not so much to limit the rights of the property- owning classes as to protect them against the extravagance of the propertyless voters. To make an exception in favor of municipal indebt- edness incurred in this way and for these purposes was not calculated to work any hardship upon property owners, but rather to give them the power to authorize the employment of credit for their own advantage. They were protected against the abuse of this particular kind of in- debtedness inasmuch as the consent of the owners of a majority of the property affected was quite generally required. One influence which helped to mold a public 224 MUNICIPAL GOVERNMENT sentiment in favor of constitutional provisions limiting the amount of municipal indebtedness was the rapid increase in the debts of American cities during the period that immediately followed the Civil war. For this condition of affairs the state government itself was largely to blame. It had prescribed a form of municipal organization which was scarcely compatible with an efficient and responsible management of financial matters. Moreover, the state government, as we have seen, could empower its own agents to borrow money for a purpose which it had authorized and obligate the city to pay it. The effort to correct these evils, first noticeable about the year 1870, took the form of constitutional provisions limiting the amount of indebtedness which could be incurred by or on behalf of cities. The main object of these provisions was to protect municipal tax- payers against an extravagant use of the borrow- ing power for local purposes, whether exercised by state or municipal authorities. Another advantage which these provisions seemed likely to secure to the capital-owning class deserves at least a passing mention. This policy of limiting the amount of municipal indebtedness was adopted at a time when, owing to the rapid growth of urban population, the local monopolies of water, light, transportation, etc., were becom- ing an important and extremely profitable field for the investment of private capital. The restric- 275 SPIRIT OF AMERICAN GOVERNMENT tions imposed upon the power of cities to borrow money would retard, if not preclude, the adoption of a policy of municipal ownership and thus enable the private capitalist to retain exclusive possession of this important class of industries. That the constitutional restrictions upon the general indebtedness of cities have retarded the movement toward municipal ownership is beyond question. It is not likely, however, that they will much longer block the way to municipal acquisi- tion of those industries in which private manage- ment has proven unsatisfactory, since it may be possible to evade them by resorting to the device of a special fund. The same line of argument which has been accepted by the courts as support- ing the constitutionality of the special fund for local improvement purposes is no less applicable to special debts incurred for the purchase of reve- nue-producing public utilities, such as water works, lighting plants and street railways. Un- der this arrangement, however, the city must not assume any responsibility for the payment of the capital borrowed, the creditors advancing the purchase price or cost of construction, looking solely to the earnings under municipal operation for the payment of both principal and interest. It may be doubted whether the courts in permit- ting cities to employ the special fund in relation 276 MUNICIPAL GOVERNMENT to local improvements realized its possibilities in the direction of municipal ownership. 1 These restrictions upon the powers of cities indicate a fear that too much local self-govern- ment might jeopardize the interests of the proper- tied classes. This attitude on the part of those who have framed and interpreted our state con- stitutions is merely an expression of that distrust of majority rule which is, as we have seen, the distinguishing feature of the American system of government. It is in the cities that the non- possessing classes are numerically strongest and the inequality in the distribution of wealth most pronounced. This largely explains the reluc- tance of the state to allow cities a free hand in the management of local affairs. A municipal gov- ernment responsive to public opinion might be too much inclined to make the public interests a pretext for disregarding property rights. State control of cities, then, may be regarded as a means of protecting the local minority against the local majority. Every attempt to reform this system must encounter the opposition of the property-owning class, which is one of the chief reasons why all efforts to establish municipal self- government have thus far largely failed. We thus see that while property qualifications * The employment of the special fund device for municipal ownership purposes has been upheld by the Supreme Court of Washington. See Winston v. Spokane, 12 Wash. 524, and Faulkner v. Seattle, 19 Wash. 320. 277 SPIRIT OF AMERICAN GOVERNMENT for the suffrage have disappeared, the influence of property still survives. In many ways and for many purposes property is directly or indirectly recognized in the organization and administration of municipal government. The movement to- ward democracy has had less influence upon property qualifications for the suffrage and for office-holding in its relation to municipal than in its relation to state and national affairs. When the Federal Constitution was adopted the prop- erty qualifications for voting and office-holding in force in the various states were not disturbed. The Constitution did not recognize the principle of universal suffrage. It not only allowed the states to retain the power to prescribe the qualifi- cations of voters in state and municipal elections, but also limited the suffrage for Federal purposes to those who were qualified to vote at state elec- tions. 1 The removal, during the first half of the nineteenth century, of property qualifications for voting at state elections and holding state offices had the effect of placing the Federal suffrage upon a popular basis. The influence of the democratic movement was less marked, however, in the domain of municipal affairs. Here the old system under which voting and office-holding were regarded as the exclusive right of the property-owning class has not en- tirely disappeared. In this as in other respects 1 Const., Art. I, sec. 2 and Art. II, sec. 1. 278 MUNICIPAL GOVERNMENT the American state has evinced a fear of municipal democracy. It is true that in the choice of public officials the principle of manhood suffrage pre- vails. But the suffrage may be exercised either with reference to candidates or measures; and in voting upon questions of municipal policy, which is far more important than the right to select ad- ministrative officers, the suffrage is often re- stricted to taxpayers or the owners of real estate. Thus in Colorado, which has gone as far as any state in the Union in the direction of municipal democracy, no franchise can be granted to a private corporation or debt incurred by a city for the purpose of municipal ownership without the approval of the taxpaying electors. When we con- sider that 72 per cent, of the families living in Denver in the year 1900 occupied rented houses, 1 and that the household goods of a head of a family to the value of two hundred dollars are exempt from taxation,^ the effect of this restriction is obvious. In thus limiting the right to vote, the framers of the state constitution evidently pro- ceeded upon the theory that the policy of a city with reference to its public utilities should be controlled by its taxpayers. The justification for this constitutional provision is not apparent, how- ever, inasmuch as the burden of supporting the public service industries of a city is not borne by 1 Abstract of the Twelfth Census, p. 133. 8 Constitution of Colorado, Art. X, Sec. 3. 279 SPIRIT OF AMERICAN GOVERNMENT the taxpayers as such, but by the people generally. Such a system makes it possible for the taxpaying class to control public utilities in their own in- terest and to the disadvantage of the general public. The part of the community who are tax- payers, if given the exclusive right to control these industries, would be tempted to make them an important source of municipal revenue. They would be likely to favor high rather than low or reasonable charges for these necessary public services, since their taxes would be diminished by the amount thus taken from the non-taxpayers through excessive charges. Where the majority of the citizens are property owners and taxpayers there is but little danger that public ownership will be subject to this abuse. But where there is great inequality in the distribution of wealth and a large propertyless class, democracy is the only guarantee that the benefits of municipal ownership will not be monopolized by the property-owning class. An investigation of the practical working of municipal ownership in American cities will show that this danger is not purely imaginary. In the year 1899 53.73 per cent, of the waterworks in this country were owned and operated by munici- palities, public ownership being the rule in the larger cities. Taking the thirteen largest plants in the United States, all of which were munici- pally owned, the income from private users was 280 MUNICIPAL GOVERNMENT $20,545,409, while the total cost of production, including estimated depreciation, aggregated only $11,469,732. If to this amount be added the estimated taxes, interest on total investment and rental value of the municipally owned quarters occupied for this purpose, the total cost of produc- tion would be $22,827,825. Private consumers, however, used only 80.2 per cent, of the water supplied. If the 19.8 per cent, supplied free for public purposes had been paid for at the same rate charged to private users, the total income from these 13 municipally owned plants would have been $25,817,720. This would have been $2,- 989,895 in excess of a fair return upon the total investment. No one would claim that the price of water has been increased under municipal ownership. As a matter of fact, it has been sub- stantially reduced and the quality of the water at the same time improved. The reduction in price, however, has been less than it would have been, had the interests of the consumers alone been con- sidered. If the object of municipal ownership is to supply pure water at the lowest possible price to the general public, there is no good reason why the city should demand a profit on the capital it has invested in the business. This would cer- tainly be true where the earnings under municipal ownership have been sufficient to pay for the plant. In this case it would be an injustice to consumers to make them contribute, over and above the cost 281 SPIRIT OF AMERICAN GOVERNMENT of operating the plant, an additional amount sufficient to pay interest on the investment, inas- much as they have supplied the capital with which the business is carried on. Any attempt to make municipal ownership a source of revenue would mean the taxation of water consumers for the benefit of property owners. Nor is there any reason why the private consumers of water should be made to pay for the water used for public pur- poses. The water needed for public buildings, for cleaning streets and for extinguishing fires ought to be paid for by those chiefly benefited — the property-owning class. If instead of considering these thirteen water- works together, we take a single example — the third largest plant — the tendency to make public ownership a source of revenue is more clearly seen. The income from private users in the case of this plant was $4,459,404. The city used for public purposes 29.5 per cent of the total amount supplied, which if paid for at the rate charged private consumers would have made the total income from operation $6,325,395. This would have been $2,929,232 more than was required to pay all expenses, including interest on the total investment. 1 1 These figures concerning municipally owned water-works as well as those in the following paragraph relating to electric light plants, are based on the data contained in the Four- teenth Annual Report of the U. S. Commissioner of Labor on Water, Gas and Electric Light Plants. 282 MUNICIPAL GOVERNMENT In the case of electric-light plants private own- ership is the rule, only 460 of the 3,032 plants being under municipal ownership. The Report of the United States Commissioner of Labor 1 gives the data for 952 of these plants, 320 of which are municipally owned and operated. Municipal ownership, however, is mainly confined to the smaller cities and towns. This is shown by the fact that although more than one-third of the 952 plants above mentioned are under munic- ipal control, only 30 out of 277, or less than one- ninth of the largest plants, are municipally owned. This is to be accounted for by the more determined opposition to the policy of municipal ownership by the capitalist class in the larger cities, where private management is most remunerative. Mu- nicipal plants, too, are often restricted to public lighting, not being allowed to furnish light or power for commercial purposes. This restricted form of municipal ownership is merely a slight concession on the part of the private monopolist to the taxpaying class. The general public, as consumers of light and power, derive no benefit from such a policy. These and other facts which might be men- tioned illustrate the natural tendency of a system under which the power of the masses is limited in the interest of the property-owning class. The chief evils of municipal government in this coun- 1 Water, Gas and Electric Light Plants, 1899. 283 SPIRIT OF AMERICAN GOVERNMENT try have their source not in majority but in mi- nority rule. It is in the city where we find a numerically small but very wealthy class and a large class owning little or no property that the general political movement toward democracy has encountered the most obstinate resistance. Only a small part of our urban population own land or capital. The overwhelming majority of those who live in cities are employees and tenants. In the year 1900 74.3 per cent, of the families in the 160 cities of the United States having 25,000 or more population lived in rented houses and only 14.5 per cent in unmortgaged homes. 1 In the smaller towns the proportion of property owners was larger, while in the country the majority of the population belonged to the land-holding class, 64.4 per cent, of the "farm" families owning their homes, 44.4 per cent, of such families owning homes that were unencumbered. 2 "Much has been said concerning the necessity of legislative interference in some cases where bad men were coming into power through uni- versal suffrage in cities, but the recent experience of the country shows that this has oftener been said to pave the way for bad men to obtain office or grants of unusual powers from the legislature than with any purpose to effect local reforms. And the great municipal scandals and frauds that 1 Abstract of the Twelfth Census, p. 133. 3 Ibid, p. z& 284 MUNICIPAL GOVERNMENT have prevailed, like those which were so notorious in New York City, have been made possible and then nursed and fostered by illegitimate inter- ference at the seat of State government." 1 The numerical preponderance of the property- owning class in the country and of the property- less class in the cities must be taken into account in any attempt to find an explanation of the reluctance on the part of the state to recog- nize the principle of municipal self-government. When we consider that the state government, even under universal suffrage, is largely government by taxpaying property owners, we can understand why the progress toward municipal democracy has been so slow. Under universal suffrage municipal self-government would mean the as- cendency of the propertyless class, and this, from the standpoint of those who control the state gov- ernment, would jeopardize the interests of the property-holding minority. This is doubtless one of the chief reasons why the state government has not been willing to re- linquish its control over municipal affairs. This fact is not recognized, however, by present-day writers on American politics. It is generally as- sumed that the corruption in state and municipal government is largely due to the ascendency of the masses. This view of the matter may be ac- ceptable to those who from principle or interest 1 Cooky, Constitutional Limitations, 6th ed., p. 282, n. 285 SPIRIT OF AMERICAN GOVERNMENT are opposed to democracy, but it ignores the facts which a careful analysis of the system discloses. Even in our state governments the changes that have been made as a concession to the newer democratic thought are less important than is generally supposed. The removal of property qualifications for voting and office-holding was a concession in form rather than in substance. It occurred at a time when there was an apparently inexhaustible supply of free land which made it possible for every one to become a landowner. Under such circumstances universal suffrage was not a radical or dangerous innovation. In fact, property qualifications for voting and office-hold- ing were not necessary to the political ascendency of property owners in a community where the great majority of the citizens were or could be- come members of the property-owning class. It is not likely that property qualifications would have been removed for state purposes without a more serious struggle, if the wide diffusion of property in the state at large had not appeared to be an ample guarantee that the interests of prop- erty owners would not be endangered by universal suffrage. It was probably not intended that the abolition of property qualifications should over- throw the influence of property owners, or make any radical change in the policy of the state government. It is easily seen that the removal of property 286 MUNICIPAL GOVERNMENT qualifications for voting and office-holding has had the effect of retarding the movement toward municipal home rule. Before universal suffrage was established the property-owning class was in control of both state and city government. This made state interference in local affairs unneces- sary for the protection of property. But with the introduction of universal suffrage the conservative element which dominated the state government naturally favored a policy of state interference as the only means of protecting the property-owning class in the cities. In this they were actively supported by the corrupt politicians and selfish business interests that sought to exploit the cities for private ends. Our municipal conditions are thus the natural result of this alliance between conservatism and corruption. We can understand now why the state has been unwilling to permit the same measure of democ- racy in municipal affairs that it has seen fit to employ for its own purposes. This is why our limited majority rule, which may be safe enough in the state government, is often deemed inex- pedient for the city. It is also the reason for keeping the more important municipal powers under the control of the state government, as well as the ground for continuing property qualifica- tions in the city after their disappearance from the government of the state. The checks above mentioned are not the only 287 SPIRIT OF AMERICAN GOVERNMENT ones to be found, however, in our municipal gov- ernment. The city is organized, like the state government, on the plan of distributed powers and diffused responsibility. It contains, as a rule, an elaborate system of checks which affords little opportunity for the prompt and effective expres- sion of local public opinion in the administration of municipal affairs. At the same time, it gives the municipal authorities power to inaugurate and carry out policies to which local public sentiment may be strongly opposed. This is seen in the control which the mayor and council quite gen- erally exercise over the matter of municipal franchises. Probably not a city of any impor- tance could be mentioned in which the council has not granted privileges which have enriched in- dividuals and private corporations at the expense of the public. This power has been the chief source of municipal corruption, since it has made the misgovernment of cities a source of great profit to a wealthy and influential class. Those who imagine that the ignorant and vicious part of our urban population is the main obstacle to reform take but a superficial view of the matter. The real source of misgovernment — the active cause of corruption — is to be found, not in the slums, not in the population ordinarily regarded as ignorant and vicious, but in the selfishness and greed of those who are the recognized leaders in commercial and industrial affairs. It is this class 288 MUNICIPAL GOVERNMENT that, as Lincoln Steffens says, may be found "buy- ing boodlers in St. Louis, defending grafters in Minneapolis, originating corruption in Pittsburg, sharing with bosses in Philadelphia, deploring re- form in Chicago, and beating good government with corruption funds in New York." 1 This is the natural fruit of our system of municipal gov- ernment. The powerful corporate interests en- gaged in the exploitation of municipal franchises are securely entrenched behind a series of consti- tutional and legal checks on the majority which makes it extremely difficult for public opinion to exercise any effective control over them. The effort to provide a remedy for this condition of affairs took the form of a movement to limit the powers of the council. Boards and commissions have been created in whose hands have been placed much of the business formerly controlled by this body. The policy of subdividing the leg- islative authority of the city and distributing it among a number of independent boards has been carried so far, notably in New York, that, as Seth Low observes, the council has been largely de- prived of all its legislative functions with the single exception of the power to grant public franchises. 2 It must not be inferred, however, that public opinion has favored the retention of this power by the council. The attempt on the x The Shame of the Cities, p. 5. 2 Bryce, Vol. I, p. 663. 19 289 SPIRIT OF AMERICAN GOVERNMENT part of the people to control the franchise-grant- ing power has thus far largely failed, not because of any lack of popular support, but because our constitutional and political arrangements have made it almost impossible for any reasonable ma- jority to overcome the opposition of organized wealth. Our efforts to bring about reforms in municipal government have thus far largely failed to ac- complish what was expected of them because we have persistently refused to recognize the prin- ciple of majority rule. We have clung tenaciously to the system of checks and balances with all its restraints on popular control. The evils of municipal government are not the evils of democ- racy, but the evils of a system which limits the power of the majority in the interest of the minority. 290 CHAPTER XI INDIVIDUAL LIBERTY AND THE CONSTITUTION The eighteenth-century conception of liberty was the outgrowth of the political conditions of that time. Government was largely in the hands of a ruling class who were able to further their own interests at the expense of the many who were unrepresented. It was but natural under these circumstances that the people should seek to limit the exercise of political authority, since every check imposed upon the government less- ened the dangers of class rule. The problem which the advocates of political reform had to solve was how to secure the largest measure of individual liberty compatible with an irresponsible government. They were right in believing that this could be accomplished only by building up an elaborate system of constitutional restraints which would narrowly limit the exercise of irresponsible authority. Individual liberty as they understood the term was immunity from unjust interference at the hands of a minority. This was a purely negative conception. It involved nothing more than the idea of protection against the evils of irresponsible government. It 291 SPIRIT OF AMERICAN GOVERNMENT was a view of liberty adapted, however, to the needs of the time and served a useful purpose in aiding the movement to curb without destroying the power of the ruling class. Any attempt to push the doctrine of liberty farther than this and make it include more than mere immunity from governmental interference would have been revo- lutionary. The seventeenth and eighteenth cen- tury demand was not for the abolition, but for the limitation of irresponsible authority. It was not for popular government based upon universal suffrage, but for such modifications of the system as would give to the commercial and industrial classes the power to resist all encroachments upon their rights at the hands of the hereditary branches of the government. The basis and guarantee of individual liberty, as the term was then understood, was the popular veto such as was exercised through the House of Commons. This conception of liberty was realized for those represented in any coordinate branch of the gov- ernment wherever the check and balance stage of political development had been reached. The American revolution, which supplanted hereditary by popular rule, worked a fundamental change in the relation of the individual to the government. So far at least as the voters were concerned the government was no longer an alien institution — an authority imposed upon them from above, but an organization emanating from 292 LIBERTY AND THE CONSTITUTION them — one in which they had and felt a direct proprietary interest. It was no longer a govern- ment in which the active principle was irre- sponsible authority, but one which rested upon the safe and trustworthy basis of popular control. The overthrow of monarchy and aristocracy necessitated a corresponding change in the idea of liberty to make it fit the new political condi- tions which had emerged. In so far as govern- ment had now passed into the hands of the people there was no longer any reason to fear that it would encroach upon what they regarded as their rights. With the transition, then, from class to popular sovereignty there was a corresponding change in the attitude of the people toward the government. They naturally desired to limit the authority and restrict the activity of the govern- ment as long as they felt that it was irresponsible ; but as soon as they acquired an active control over it, the reason which formerly actuated them in desiring to limit its powers was no longer opera- tive. Their ends could now be accomplished and their interests best furthered by unhampered political activity. They would now desire to re- move the checks upon the government for the same reason that they formerly sought to impose them — viz., to promote their own welfare. This tendency is seen in the changes made in the state constitutions at the beginning of the American revolution. As shown in a previous 293 SPIRIT OF AMERICAN GOVERNMENT chapter, they established the supremacy of the legislative body and through this branch of the government, the supremacy of the majority of the qualified voters. We have here a new conception of liberty. We see a tendency in these constitu- tional changes to reject the old passive view of state interference as limited by the consent of the governed and take the view that real liberty im- plies much more than the mere power of constitu- tional resistance — that it is something positive, that its essence is the power to actively control and direct the policy of the state. The early state constitutions thus represent a long step in the direction of unlimited responsible government. This, as we have seen, was the chief danger which the conservative classes saw in the form of government established at the outbreak of the Revolution. They were afraid that the power of the numerical majority would be employed to further the interests of the many at the expense of the few, and to guard against such a use of the government they sought to re-establish the system of checks. The Constitution which restored the old scheme of government in a new garb also re- vived the old conception of individual liberty. There is, however, one important difference be- tween the eighteenth-century conception of liberty and that which finds expression in our constitu- tional literature. Formerly it was because of the lack of popular control that the people generally 294 LIBERTY AND THE CONSTITUTION desired to limit the authority of the government, but the framers of the Constitution wished to bring about the limitation of governmental func- tions because they feared the consequences of majority rule. Formerly the many advocated the limitation of the power of king and aris- tocracy in the interest of liberty; now the few advocate the limitation of the power of the many for their own protection. With the abolition of monarchy and aristocracy the attitude of the few and the many has been reversed. The aristo- cratic and special interests that formerly opposed the limitation of political activity when they were predominant in the government, now favor it as a protection against the growing power of the masses, while the latter, who formerly favored, now oppose it. The conservative classes now re- gard the popular majority with the same distrust which the liberals formerly felt toward the king and aristocracy. In fact, the present-day con- servative goes even farther than this and would have us believe that the popular majority is a much greater menace to liberty than king or aristocracy has ever been in the past. "There can be no tyranny of a monarch so in- tolerable," says a recent American writer, "as that of the multitude, for it has the power behind it that no king can sway." 1 This is and has all along been the attitude of the conservative classes 1 Willoughby, The Nature of the State, p. 416. 295 SPIRIT OF AMERICAN GOVERNMENT who never lose an opportunity to bring the theory of democracy into disrepute. The defenders of the American Constitution clearly see that unless the fundamental principle of popular government is discredited the system of checks can not survive. There is no liberty, we are told by the present- day followers of Alexander Hamilton, where the majority is supreme. The American political system realizes this conception of liberty mainly through the Supreme Court — an organ of gov- ernment which interprets the Constitution and laws of Congress and which may forbid the carry- ing out of the expressed will of the popular ma- jority. It necessarily follows that the authority which can thus overrule the majority and enforce its own views of the system is an authority greater than the majority. All governments must belong to one or the other of two classes according as the ultimate basis of political power is the many or the few. There is, in fact, no middle ground. We must either recognize the many as supreme, with no checks upon their authority except such as are implied in their own intelligence, sense of justice and spirit of fair play, or we must accept the view that the ultimate authority is in the hands of the few. Every scheme under which the power of the majority is limited means in its practical operation the subordination of the ma- jority to the minority. This inevitable conse- quence of the limitation of popular rule is not 296 LIBERTY AND THE CONSTITUTION alluded to by the advocates of checks and balances, though it is obvious to any careful student of the system. It would, however, do injustice to the intelli- gence of those who champion the scheme of checks and balances to give them credit for any real sympathy with the aims and purposes of democ- racy. Individual liberty as guaranteed by ma- jority rule was not the end which the framers of the Constitution had in view, nor is it the reason why the present-day conservative defends their work. The Constitution as originally adopted did not contain those highly prized guarantees of personal liberty which democracy everywhere in- ■ sists upon. The failure to make any provision for freedom of the press and right of trial by jury were significant omissions. These, however, were not an essential part of the Federalists' scheme of government, which aimed rather to protect the property and privileges of the few than to guar- antee personal liberty to the masses. This omis- / sion is the more noteworthy in view of the fact that these guarantees were at that time expressly included in a majority of the state constitutions and that the temper of the people was such as to compel their speedy adoption as amendments to the Federal Constitution itself. Liberty, as the framers of the Constitution ^y understood the term, had to do primarily with property and property rights. The chief danger 297 SPIRIT OF AMERICAN GOVERNMENT which they saw in the Revolutionary state gov- ernments was the opportunity afforded to the majority to legislate upon matters which the well- to-do classes wished to place beyond the reach of popular interference. The unlimited authority which the state government had over taxation and its power to restrict or abridge property rights were viewed with alarm by the wealthy classes, who felt that any considerable measure of democ- racy would be likely to deprive them of their time-honored prerogatives. To guard against this danger the Constitution sought, in the interest of the classes which dominated the Federal Con- vention, to give the widest possible scope to private property. It prohibited private property in nothing — permitting it, as originally adopted, even in human beings. It may be said without exaggeration that the American scheme of gov- ernment was planned and set up to perpetuate the ascendency of the property-holding class in a so- ciety leavened with democratic ideas. Those who framed it were fully alive to the fact that their economic advantages could be retained only by maintaining their class ascendency in the gov- ernment. They understood the economic sig- nificance of democracy. They realized that if the supremacy of the majority were once fully estab- lished the entire policy of the government would be profoundly changed. They foresaw that it would mean the abolition of all private monopoly 298 LIBERTY AND THE CONSTITUTION and the abridgment and regulation of property rights in the interest of the general public. The Constitution was in form a political docu- ment, but its significance was mainly economic. It was the outcome of an organized movement on the part of a class to surround themselves with legal and constitutional guarantees which would check the tendency toward democratic legislation. These were made effective through the attitude of the United States courts which, as Professor Burgess says, "have never declined jurisdiction where private property was immediately affected on the ground that the question was political." 1 "There can be no question that the national government has given to the minority a greater protection than it has enjoyed anywhere else in the world, save in those countries where the mi- nority is a specially privileged aristocracy and the right of suffrage is limited. So absolute have property rights been held by the Supreme Court, that it even, by the Dred Scott decision, in effect made the whole country a land of slavery, because the slave was property, and the rights of property were sacred." 2 In carrying out the original intent of the Con- stitution with reference to property the courts "V have developed and applied the doctrine of vested rights — a doctrine which has been used with tell- 1 Pol. Sci. and Const. Law, Vol. I, p. 197. 2 Ford's ed. of The Federalist, Introduction, p. xiii. 299 SPIRIT OF AMERICAN GOVERNMENT ing effect for the purpose of defeating democratic reforms. This doctrine briefly stated is that property rights once granted are sacred and in- violable. A rigid adherence to this policy would effectually deprive the government of the power to make the laws governing private property con- form to social and economic changes. It would disregard the fact that vested rights are often vested wrongs, and that one important, if not in- deed the most important, task which a government by and for the people has to perform is to rectify past mistakes and correct the evils growing out of corruption and class rule. A government without authority to interfere with vested rights would have little power to promote the general welfare through legislation. The adoption of the Constitution brought this doctrine from the realm of political speculation into the arena of practical politics. The men who framed and set up our Federal government were shrewd enough to see that if the interests of the property-holding classes were to be given effective protection, it was necessary that political power should rest ultimately upon a class basis. This they expected to accomplish largely through the judicial veto and the power and influence of the Supreme Court. The effect of establishing the supremacy of this branch of the government was to make the legal profession virtually a ruling class. To their charge was committed under our 300 LIBERTY AND THE CONSTITUTION system of government the final authority in all matters of legislation. They largely represent by virtue of their training and by reason of the in- terests with which they are affiliated, the conserva- tive as opposed to the democratic influences. The power and influence exerted by lawyers in this country are the natural outgrowth of the consti- tutional position of our Supreme Court. Its supremacy is in the last analysis the supremacy of lawyers as a class and through them of the various interests which they represent and from which they derive their support. This explains the fact so often commented on by foreign critics, that in this country lawyers exert a predominant influence in political matters. We are still keeping alive in our legal and con- stitutional literature the eighteenth-century notion of liberty. Our future lawyers and judges are still trained in the old conception of government — that the chief purpose of a constitution is to limit the power of the majority. In the mean- time all other democratic countries have outgrown this early conception which characterized the in- fancy of democracy. They have in theory at least repudiated the eighteenth-century doctrine that the few have a right to thwart the will of the many. The majority has in such countries be- come the only recognized source of legitimate authority. "There is no fulcrum outside of the majority, and therefore there is nothing on which, 301 SPIRIT OF AMERICAN GOVERNMENT as against the majority resistance or lengthened opposition can lean." 1 This statement was made with reference to France, but it would apply as well to England, Switzerland, and all other coun- tries in which the principle of majority rule has received full recognition. On the other hand American constitutional and legal literature still inculcates and keeps alive fear and distrust of majority rule. The official and ruling class in this country has been pro- foundly influenced by political ideas which have long been discarded in the countries which have made the most rapid strides in the direction of popular government. The influence which our constitutional and legal literature, based as it is upon a profound distrust of majority rule, has had upon the lawyers, politicians, and public men of this country can hardly be overestimated. It is true that many who have been most influenced by this spirit of distrust toward popular government would be unwilling to admit that they are opposed to majority rule — in fact, they may regard them- selves as sincere believers in democracy. This is not to be wondered at when we consider that throughout our history under the Constitution the old and the new have been systematically jumbled in our political literature. In fact, the main effort of our constitutional writers would appear to be to give to the undemocratic eighteenth-cen- 1 Boutmy, Studies in Constitutional Law, p. 155. 302 LIBERTY AND THE CONSTITUTION tury political ideas a garb and setting that would in a measure reconcile them with the democratic point of view. The natural and inevitable result has followed. The students of American political literature have imbibed the fundamental idea of the old system — its distrust of majority rule — along with a certain sentimental attachment to and acceptance of the outward forms of democ- racy. This irreconcilable contradiction between the form and the substance, the body and the spirit of our political institutions is not generally recog- nized even by the American students of govern- ment. Constitutional writers have been too much preoccupied with the thought of defending and glorifying the work of the fathers and not enough interested in disclosing its true relation to present- day thought and tendencies. As a consequence of this, the political ideas of our educated classes represent a curious admixture of democratic beliefs superimposed upon a hardly conscious sub- stratum of eighteenth-century doctrines. It is this contradiction in our thinking that has been one of our chief sources of difficulty in dealing with political problems. While honestly believ- ing that we have been endeavoring to make de- mocracy a success, we have at the same time tenaciously held on to the essential features of a political system designed for the purpose of de- feating the ends of popular government. 303 CHAPTER XII INDIVIDUAL LIBERTY AND THE ECONOMIC SYSTEM The American doctrine of individual liberty had its origin in economic conditions widely dif- ferent from those which prevail to-day. The tools of production were simple and inexpensive and their ownership widely diffused. There was no capital-owning class in the modern sense. Business was carried on upon a small scale. The indi- vidual was his own employer, or, if working for another, could look forward to the time when, by the exercise of ordinary ability and thrift, he might become an independent producer. The way was open by which every intelligent and in- dustrious wage-earner could become his own master. Industrially society was democratic to a degree which it is difficult for us to realize at the present day. This economic independence which the industrial classes enjoyed ensured a large measure of individual liberty in spite of the fact that political control was in the hands of a class. The degree of individual freedom and initiative which a community may enjoy is not wholly, or even mainly, a matter of constitutional forms. 304 LIBERTY AND ECONOMIC SYSTEM The actual iiberty of the individual may vary- greatly without any change in the legal or con- stitutional organization of society. A political system essentially undemocratic would be much less destructive of individual liberty in a society where the economic life was simple and owner- ship widely diffused than in a community possess- ing a wealthy capitalist class on the one hand and an army of wage-earners on the other. The political system reacts, it is true, upon the eco- nomic organization, but the influence of the latter upon the individual is more direct and immediate than that of the former. The control exerted over the individual directly by the government may, as a matter of fact, be slight in comparison with that which is exercised through the various agencies which control the economic system. But the close interdependence between the political and the business organization of society can not be overlooked. Each is limited and conditioned by the other, though constitutional forms are al- ways largely the product and expression of eco- nomic conditions. Individual liberty in any real sense implies much more than the restriction of governmental authority. In fact, true liberty consists, as we have seen, not in divesting the government of effective power, but in making it an instrument for the unhampered expression and prompt en- forcement of public opinion. The old negative 20 305 SPIRIT OF AMERICAN GOVERNMENT conception of liberty would in practice merely result in limiting the power of the government to control social conditions. This would not neces- sarily mean, however, the immunity of the in- dividual from external control. To limit the power of the government may permit the ex- tension over the individual of some other form of .control even more irresponsible than that of the government itself — the control which inevitably results from the economic supremacy of a class who own the land and the capital. The introduction of the factory system forced the great majority of small independent producers down into the ranks of mere wage-earners, and subjected them in their daily work to a class rule under which everything was subordinated to the controlling purpose of the employers — the desire for profits. The significance of this change from the old handicraft system of industry to present-day capitalistic production is fully understood by all students of modern industry. Even Herbert Spencer, the great expounder of individualism, admitted that the so-called liberty of the laborer "amounts in practice to little more than the ability to exchange one slavery for another" and that "the coercion of circumstances often bears more hardly on him than the coercion of a master does on one in bondage." 1 This dependence of the 1 Principles of Sociology, Vol. Ill, p. 525. 306 LIBERTY AND ECONOMIC SYSTEM laborer, however, he regarded as unfortunate, and looked forward to the gradual amelioration of present conditions through the growth of co- operation in production. Individualism as an economic doctrine was ad- vocated in the eighteenth century by those who believed in a larger measure of freedom for the industrial classes. The small business which was then the rule meant the wide diffusion of economic power. A hisses faire policy would have furthered the interests of that large body of small independent producers who had but little representation in and but little influence upon the government. It would have contributed mate- rially to the progress of the democratic movement by enlarging the sphere of industrial freedom for all independent producers. It does not follow, however, that this doctrine which served a useful purpose in connection with the eighteenth-century movement to limit the power of the ruling class is sound in view of the political and economic conditions which exist to-day. The so-called in- dustrial revolution has accomplished sweeping and far-reaching changes in economic organiza- tion. It has resulted in a transfer of industrial power from the many to the few, who now exer- cise in all matters relating to production an authority as absolute and irresponsible as that which the ruling class exercised in the middle of the eighteenth century over the state itself. The 307 SPIRIT OF AMERICAN GOVERNMENT simple decentralized and more democratic system of production which formerly prevailed has thus been supplanted by a highly centralized and thoroughly oligarchic form of industrial organi- zation. At the same time political development has been tending strongly in the direction of democracy. The few have been losing their hold upon the state, which has come to rest, in theory at least, upon the will of the many. A political transformation amounting to a revolution has placed the many in the same position in relation to the government which was formerly held by the favored few. As a result of these political and economic changes the policy of government regulation of industry is likely to be regarded by the masses with increasing favor. A society organized as a political democracy can not be expected to tolerate an industrial aristocracy. As soon, then, as the masses come to feel that they really control the political machinery, the irresponsible power which the few now exercise in the management of in- dustry will be limited or destroyed as it has al- ready been largely overthrown in the state itself. In fact the doctrine of laissez faire no longer ex- presses the generally accepted view of state func- tions, but merely the selfish view of that relatively small class which, though it controls the indus- trial system, feels the reins of political control slipping out of its hands. The limitation of gov- 308 LIBERTY AND ECONOMIC SYSTEM ernmental functions which was the rallying-cry of the liberals a century ago has thus become the motto of the present-day conservative. The opponents of government regulation of in- dustry claim-that it will retard or arrest progress by restricting the right of individual initiative. They profess to believe that the best results for society as a whole are obtained when every cor- poration or industrial combination is allowed to manage its business with a free hand. It is as- sumed by those who advocate this policy that there is no real conflict of interests between the capitalists who control the present-day aggrega- tions of corporate wealth and the general public. No argument is needed, however, to convince any one familiar with the facts of recent industrial development that this assumption is not true. The change in the attitude of the people toward the let-alone theory of government is, as a matter of fact, the outcome of an intelligently directed effort to enlarge and democratize — not abridge — the right of initiative in its relation to the management of industry. The right of individual initiative in the sense of the right to exercise a real control over production was lost by the masses when the substitution of machinery for tools made them directly dependent upon a class of capital- owning employers. The subsequent growth of large scale production has centralized the actual control of industry in the hands of a small class 309 SPIRIT OF AMERICAN GOVERNMENT of large capitalists. The small capitalists as separate and independent producers are being rapidly crushed or absorbed by the great corpora- tion. They may still belong to the capitalist class in that they live upon an income derived from the ownership of stock or bonds. But they have no real control over the business in which their capital is invested. They no longer have the power to organize and direct any part of the industrial process. They enjoy the benefits which accrue from the ownership of wealth, but they can no longer take an active part in the manage- ment of industry. For them individual initia- tive in the sense of an effective control over the industrial process has disappeared almost as com- pletely as it has in the case of the mere wage- earner. Individual initiative even for the capital- owning class has thus largely disappeared. It has been superseded by corporate initiative which means the extinguishment of individual initiative except in those cases where it is secured to the large capitalist through the ownership of a con- trolling interest in the business. The abandonment of the laissez faire policy, then, in favor of the principle of government regu- lation of industry is the outgrowth, not of any hostility to individual initiative, but of the con- viction that the monopoly of industrial power by the few is a serious evil. It is manifestly impos- sible to restore to the masses the right of indi- 310 LIBERTY AND ECONOMIC SYSTEM vidual initiative. Industry is too complex and too highly organized to permit a return to the old system of decentralized control. And since the only substitute for the old system of individual control is collective control, it appears to be in- evitable that government regulation of business will become a fixed policy in all democratic states. The laisses faire policy is supposed to favor progress by allowing producers to make such changes in business methods as may be prompted by the desire for larger profits. The doctrine as ordinarily accepted contains at least two erroneous assumptions, viz., (i) that any innovation in production which makes it possible for the capi- talist to secure a larger return is necessarily an im- provement in the sense of augmenting the average efficiency of labor, and (2) that policies are to be judged solely by their economic effects. Even if non-interference resulted in industrial changes which in all cases increase the efficiency of labor, it would not follow that such changes are, broadly considered, always beneficial. Before drawing any sweeping conclusion we must consider all the consequences direct and indirect, immediate and remote, political and social as well as eco- nomic. Hence the ordinary test — the direct and immediate effect upon productive efficiency — is not a satisfactory one. Moreover, many changes in the methods or organization of business are designed primarily to alter distribution in the in- 311 SPIRIT OF AMERICAN GOVERNMENT terest of the capitalist by decreasing wages or by raising prices. In so far as a policy of non-inter- ference permits changes of this sort, it is clearly harmful to the community at large, though ad- vantageous to a small class. In all democratic countries the conservative classes are beginning to realize that their ascend- ency in production is imperiled by the ascendency of the masses in the state. It thus happens that in the hope of checking or retarding the move- ment toward regulation of business in the interest of the people generally, they have taken refuge behind that abandoned tenet of democracy, the doctrine of non-interference. At the same time they strongly favor any deviation from this policy which will benefit themselves. This is exemplified in their attitude in this country toward our protective tariff sys- tem, which, as originally adopted, was designed to encourage the development of our national re- sources by offering the prospect of larger profit to those who would invest their capital in the pro- tected industries. Under a capitalistic system development naturally follows the line of greatest profit, and for this reason any protective tariff legislation which did not augment the profits of the capitalist would fail to accomplish its pur- pose. This was recognized and frankly admitted when the policy was first adopted. Later, how- ever, when the suffrage was extended and the 312 LIBERTY AND ECONOMIC SYSTEM laboring class became an important factor in national elections the champions of protection saw that the system would have to be given a more democratic interpretation. Thus the Whig platform of 1844 favored a tariff "discriminating with special reference to the protection of the domestic labor of the country." This was, how- ever, the only political platform in which the labor argument was used until 1872, when the Republican party demanded that "duties upon im- portations . . . should be so adjusted as to aid in securing remunerative wages to labor, and pro- mote the industries, prosperity, and growth of the whole country." Protection, since that time, has been defended, not as a means of augmenting profits, but as a means of ensuring high wages to American workers. The interests of the wage- receiving class, however, were far from being the chief concern of those who were seeking to main- tain and develop the policy of protection. It was to the capitalist rather than the wage-earner that the system of protection as originally established made a direct appeal, and it was primarily in the interest of this class that it was maintained even after the labor argument came to be generally used in its defense. The capitalist naturally favored a policy that would discourage the im- portation of foreign goods and at the same time encourage the importation of foreign labor. It was to his advantage to keep the labor market 313 SPIRIT OF AMERICAN GOVERNMENT open to all who might wish to compete for em- ployment, since this would tend to force wages down and thus give him the benefit of high prices. Any system of protection established in the in- terest of labor would have excluded all immi- grants accustomed to a low standard of living. But as a matter of fact the immigration of cheap foreign labor was actively encouraged by the em- ployers in whose interest the high tariff on foreign goods was maintained. The efforts of the wage- earning class to secure for themselves some of the benefits of protection by organizing to obtain an advance or prevent a reduction in wages was largely defeated through the wholesale importa- tion of cheap foreign labor by the large manufac- turing, mining and transportation companies. The agitation against this evil carried on by the labor unions finally resulted in the enactment by Congress of legislation forbidding the importa- tion of labor under contract of employment. This, however, did not, and even if it had been efficiently enforced, would not have given the American workingman any real protection against cheap foreign labor. The incoming tide of for- eign immigration has been rising and the civic quality of the immigrant has visibly declined. The free lands which formerly attracted the best class of European immigrants are now practically a thing of the past, and with the disappearance of this opportunity for remunerative self-employ- 314 LIBERTY AND ECONOMIC SYSTEM ment the last support of high wages has been removed. With unrestricted immigration the American laboring man must soon be deprived of any economic advantage which he has hereto- fore enjoyed over the laboring classes of other countries. There has been one notable exception to this immigration policy. The invasion of cheap Asiatic labor upon the Pacific coast aroused a storm of protest from the laboring population, which compelled Congress to pass the Chinese Exclusion Act. But this legislation, while shut- ting out Chinese laborers, has not checked the immigration from other countries where a low standard of living prevails. In fact the most noticeable feature of the labor conditions in this country has been the continual displacement of the earlier and better class of immigrants and native workers by recent immigrants who have a lower standard of living and are willing to work for lower wages. This has occurred, too, in some of the industries in which the employer has been most effectually protected against the com- petition of foreign goods. 1 1 In the year 1857 over 37 per cent, of the immigrants arriving in the United States were from Germany, and over 39 per cent, were from Great Britain and Ireland. The bulk of our foreign immigration continued to come from these two countries until about 1886 or 1887. In 1890 these countries together contributed but little more than 47 per cent, of our foreign immigrants, and in 1904 but 17 per cent. Italy, in- cluding Sicily and Sardinia, supplied but 6 per cent, of the total number of immigrants in 1886 and 23 per cent, in 1904. 315 SPIRIT OF AMERICAN GOVERNMENT The time has certainly arrived when the policy of protection ought to be more broadly considered and dealt with in a public-spirited and statesman- like manner. If it is to be continued as a national policy, the interests of employees as well as em- ployers must be taken into account. The chief evils of the protective system have been due to the fact that it has been too largely a class policy, and while maintained in the interest of a class, it has been adroitly defended as a means of benefiting the classes who derived little or no benefit — who w r ere, indeed, often injured by our tariff leg- islation. The large capitalist may grow eloquent in de- fense of that broad humanitarian policy under which the weak, the oppressed, and the ignorant of all nations are invited to come among us and share in the economic and political opportunities and privileges of American citizens. Such high- sounding and professedly disinterested cosmo- politanism appeals to a certain class of sentimental believers in democracy. It does not appeal, how- ever, to any one who fully understands present- day industrial and political conditions. This capitalistic sympathy for the weak and the op- pressed of other nations may be regarded by some The Russian Empire and Finland furnished only 5 per cent, of the total number in 1886 and about 18 per cent, in 1904. In 1886 the immigration from Asiatic countries was insig- nificant, but in 1904 it had increased to 26,186. See Report of the Commissioner-General of Immigration, 1904. 3l6 LIBERTY AND ECONOMIC SYSTEM as the expression of a broader patriotism, but its tap-root is class selfishness — the desire to secure high profits through maintaining active competi- tion among laborers. As a matter of fact, all legislation does, and always must, appeal to the interest of those without whose influence and support it could not be enacted, and nothing is ever gained for true progress by making the pre- tence of disinterested love for humanity the cloak for class greed. The desire of the employing class for cheap^ labor has been responsible for the greatest dangers which menace this country to-day. It was the demand for cheap labor which led to the impor- tation of the African slave and perpetuated the institution of slavery until, with the voluntary immigration of foreign labor, it was no longer an economic necessity from the standpoint of the employing class. Indeed the very existence of slavery, by discouraging immigration, tended to limit the supply of labor, and by so doing, to cripple all enterprises in which free labor was employed. In this sense the abolition of slavery was the result of an economic movement. It was to the advantage of the employing class as a whole who found in the free labor hired under competitive conditions a more efficient and cheaper instrument of production than the slave whom they had to buy and for whose support they were responsible. 317 SPIRIT OF AMERICAN GOVERNMENT Had it not been for this eagerness on the part of the employing class to secure cheap labor at first through the importation of the African slave ancHater through the active encouragement of in- discriminate foreign immigration, we would not now have the serious political, social and economic problems which owe their existence to the presence among us of vast numbers of alien races who have little in common with the better class of American citizens. This element of our population, while benefiting the employing class by keeping wages down, has at the same time made it more difficult to bring about that intelligent political co-opera- tion so much needed to check the greed of or- ganized wealth. The limitation of governmental powers in the Constitution of the United States was not de- signed to prevent all interference in business, but only such as was conceived to be harmful to the dominant class. The nature of these limitations as well as the means of enforcing them indicate their purpose. The provision relating to direct taxes is a good example. The framers of the Constitution were desirous of preventing any use of the taxing power by the general government that would be prejudicial to the interests of the well-to-do classes. This is the significance of the provision that no direct taxes shall be laid unless in proportion to population. 1 The 1 Art. I, sec. 9. 318 LIBERTY AND ECONOMIC SYSTEM only kind of a direct tax which the framers intended that the general government should have power to levy was the poll tax which would demand as much from the poor man as from the rich. This was indeed one of the reasons for opposing the ratification of the Constitution. "Many specters," said Hamilton, "have been raised out of this power of internal taxation to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain. . . . "As little friendly as I am to the species of imposition [poll-taxes], I still feel a thorough conviction that the power of having recourse to it ought to exist in the Federal government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the pub- lic weal. And the government, from the pos- sibility of such emergencies, ought ever to have the option of making use of them." 1 It is interesting to observe that Hamilton's argument in defense of the power to levy poll- taxes would have been much more effective if it had been urged in support of the power to levy a direct tax laid in proportion to wealth. But this 1 Federalist, No. 36. 319 SPIRIT OF AMERICAN GOVERNMENT kind of a tax would, in the opinion of the framers, have placed too heavy a burden upon the well-to- do. Hence they were willing to deprive the gen- eral government of the power to levy it even at the risk of crippling it in some great emergency when there might be urgent need of a large revenue. This is not strange, however, when we re- member that it was the property-owning class that framed and secured the adoption of the Constitu- tion. That they had their own interests in view when they confined the general government prac- tically to indirect taxes levied upon articles of general consumption, and forbade direct taxes levied in proportion to wealth, seems highly probable. It appears, then, that the recent de- cision of the United States Supreme Court declar- ing the Federal Income Tax unconstitutional merely gave effect to the original spirit and pur- pose of this provision. The disposition to guard the interests of the property-holding class rather than to prevent leg- islation for their advantage is also seen in the interpretation which has been given to the pro- vision forbidding the states to pass any laws impairing the obligation of contracts. The framers of the Constitution probably did not have in mind the extended application which the courts have since made of this limitation on the power of the states. Perhaps they intended nothing 320 LIBERTY AND ECONOMIC SYSTEM more than that the states should be prevented from repudiating their just debts. But whatever may have been the intention of the framers them- selves, the reactionary movement in which they were the recognized leaders, finally brought about a much broader and, from the point of view of the capitalist class, more desirable interpretation of this provision. There is evidence of a desire to limit the power of the states in this direction even before the Constitutional Convention of 1787 assembled. The legislature of Pennsylvania in 1785 passed a bill repealing an act of 1782 which granted a charter to the Bank of North America. James Wilson, who is said to have suggested the above- mentioned clause of the Federal Constitution, made an argument against the repeal of the char- ter, in which he claimed that the power, or at least the right of the legislature, to modify or repeal did not apply to all kinds of legislation. It could safely be exercised, he thought, in the case of "a law respecting the rights and properties of all the citizens of the state." "Very different," he says, "is the case with re- gard to a law, by which the state grants privileges to a congregation or other society. . . . Still more different is the case with regard to a law by which an estate is vested or confirmed in an individual : if, in this case, the legislature may, at discretion, and without any reason assigned, 21 321 SPIRIT OF AMERICAN GOVERNMENT divest or destroy his estate, then a person seized of an estate in fee-simple, under legislative sanc- tion, is, in truth, nothing more than a solemn tenant at will. . . . "To receive the legislative stamp of stability and permanency, acts of incorporation are applied for from the legislature. If these acts may be repealed without notice, without accusation, with- out hearing, without proof, without forfeiture, where is the stamp of their stability? ... If the act for incorporating the subscribers to the Bank of North America shall be repealed in this man- ner, a precedent will be established for repealing, in the same manner, every other legislative char- ter in Pennsylvania. . . . Those acts of the state, which have hitherto been considered as the sure anchors of privilege and of property, will become the sport of every varying gust of politics, and will float wildly backwards and forwards on the irregular and impetuous tides of party and faction." 1 In 1810 the case of Fletcher v. Peck 2 was de- cided in the Supreme Court of the United States. Chief Justice Marshall, in delivering the opinion of the court, said : "The principle asserted is that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one 1 Considerations, on the Power to Incorporate the Bank of North America, Works, Vol. I. 2 6 Cranch, 87. 322 LIBERTY AND ECONOMIC SYSTEM legislature can not abridge the powers of a suc- ceeding legislature. The correctness of this principle, so far as respects general legislation, can never be controverted. But if an act be done under a law, a succeeding legislature can not undo it. . . . "When then a law is in the nature of a con- tract, when absolute rights have vested under that contract, a repeal of the law can not devest those rights; . . . "It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; . . . "It is, then, the unanimous opinion of the court, that, in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the state of Georgia was re- strained, either by general principles, which are common to our free institutions, or by the partic- ular provisions of the Constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void." It is evident from this opinion that the court would have been disposed at that time to declare state laws impairing property rights null and void, even if there had been nothing in the Constitution of the United States to justify the exercise of such 323 SPIRIT OF AMERICAN GOVERNMENT a power. Justice Johnson, in a separate opinion, said : "I do not hesitate to declare that a state does not possess the power of revoking its own grants. But I do it on a general principle, on the reason and nature of things : a principle which will im- pose laws even on the Deity. . . . "I have thrown out these ideas that I may have it distinctly understood that my opinion on this point is not founded on the provision in the Con- stitution of the United States, relative to laws impairing the obligation of contracts." It was contended in this case that the state of Georgia had the right to revoke the grant on the ground that it was secured by corrupt means. This argument evidently failed to appeal to the court. It was referred to by Justice Johnson who said "as to the idea that the grants of a legislature may be void because the legislature are corrupt, it appears to me to be subject to insuperable difficulties. . . . The acts of the supreme power of a country must be considered pure. . . ." It is interesting to observe that the Federalist judges in the early years of our history under the Constitution did not deem it necessary to find a constitutional ground for decisions of this sort. But with the overthrow of the Federalist party and the progress of belief in popular government, there is an evident disposition on the part of the court to extend the protection of the Federal Con- 324 LIBERTY AND ECONOMIC SYSTEM stitution to all the powers which it claimed the right to exercise. Thus in the Dartmouth Col- lege case, decided in 1819, the United States Su- preme Court appears to have abandoned its earlier position and to have recognized the Constitution as the source of its power to annul state laws. "It is under the protection of the decision m the Dartmouth College case," says Judge Cooley, "that the most enormous and threatening powers in our country have been created; some of the great and wealthy corporations actually having greater influence in the country at large, and upon the legislation of the country than the states to which they owe their corporate existence. Every privilege granted or right conferred — no matter by what means or on what pretence — being made inviolable by the Constitution, the government is frequently found stripped of its authority in very important particulars, by unwise, careless, or corrupt legislation ; and a clause of the Federal Constitution, whose purpose was to preclude the repudiation of debts and just contracts, protects and perpetuates the evil." 1 Any government framed and set up to guard and promote the interests of the people generally ought to have full power to modify or revoke all rights or privileges granted in disregard of the public welfare. But the Supreme Court, while permitting the creation or extension of property 1 Constitutional Limitations, 6th ed., pp. 335*336* n- 325 SPIRIT OF AMERICAN GOVERNMENT rights, has prevented the subsequent abridgment of such rights, even when the interests of the general public demanded it. The effect of this has been to make the corporations take an active part in corrupting state politics. Special legis- lation was not prohibited. In fact, it was a com- mon way of creating property rights. If a bank, an insurance company, or a railway corporation was organized, it was necessary to obtain a char- ter from the legislature which defined its powers and privileges. The corporation came into exist- ence by virtue of a special act of the legislature and could exercise only such powers and enjoy only such rights and privileges as that body saw fit to confer upon it. The legislature might re- fuse to grant a charter, but having granted it, it became a vested right which could not be revoked. The charter thus granted by the legislature was a special privilege. In many instances it was secured as a reward for political services by favorites of the party machine, or through the corrupt ex- penditure of money or the equally corrupt dis- tribution of stock in the proposed corporation among those who controlled legislation. Not only did this system invite corruption in the granting of such charters, but it also created a motive for the further use of corrupt means to keep possible competitors from securing like privileges. It was worth the while to spend money to secure a valuable privilege if when once 326 LIBERTY AND ECONOMIC SYSTEM obtained the legislature could not revoke it. And it was also worth the while to spend more money to keep dangerous competitors out of the field if by so doing it could enjoy some of the benefits of monopoly. By thus holding that a privilege granted to an individual or a private corporation by special act of the legislature was a contract which could not be revoked by that body, the courts in their effort to protect property rights opened the door which allowed corporation funds to be brought into our state legislatures early in our history for purposes of corruption. But little attention has been given as yet to this early species of corruption which in some of the states at least assumed the proportions of a serious political evil. "During the first half century banking in New York," says Horace White, "was an integral part of the spoils of politics. Federalists would grant no charters to Republicans, and Republicans none to Federalists. After a few banks had been es- tablished they united, regardless of politics, to create a monopoly by preventing other persons from getting charters. When charters were ap- plied for and refused, the applicants began busi- ness on the common-law plan. Then, at the instigation of the favored ones, the politicians passed a law to suppress all unchartered banks. The latter went to Albany and bribed the legis- lature. In short, politics, monopoly, and bribery 327 SPIRIT OF AMERICAN GOVERNMENT constitute the key to banking in the early history of the state." 1 The intervention of the courts which made the conditions above described possible, while osten- sibly limiting the power of the state legislature, in reality enlarged and extended it in the interest of the capital-owning class. It gave to the state legislature a power which up to that time it had not possessed — the power to grant rights and privileges of which the grantees could not be deprived by subsequent legislation. Before the adoption of the Federal Constitution no act of the legislature could permanently override the will of the qualified voters. It was subject to modifica- tion or repeal at the hands of any succeeding leg- islature. The voters of the state thus had what was in effect an indirect veto on all legislative acts — a power which they might exercise through a subsequent legislature or constitutional conven- tion. But with the adoption of the Constitution of the United States the Federal courts were able to deprive them of this power where it was most needed. This removed the only effective check on corruption and class legislation, thus placing the people at the mercy of their state legislatures and any private interests that might temporarily control them. The power which the legislatures thus acquired 1 Money and Banking, p. 327. See also Myers, The History of Tammany Hall, pp. 113-116. 328 LIBERTY AND ECONOMIC SYSTEM to grant charters which could not be amended or repealed made it necessary for the people to devise some new method of protecting themselves against this abuse of legislative authority. The outcome of this movement to re-establish some effective popular check on the legislature has taken the form in a majority of the states of a constitutional amendment by which the right is reserved to amend or repeal all laws conferring corporate powers. Such constitutional changes provide no remedy, however, for the evils resulting from legislative grants made previous to their adop- tion. The granting of special charters is now T also prohibited in many states, the constitution requiring that all corporations shall be formed under general laws. These constitutional changes may be regarded as in the interest of the capitalist class as a whole, whose demand was for a broader and more liberal policy — one which would extend the advantages of the corporate form of organi- zation to all capitalists in every line of business. But even our general corporation laws have been enacted too largely in the interest of those who control our business undertakings and without due regard to the rights of the general public. A study of our political history shows that the attitude of the courts has been responsible for much of our political immorality. By protecting the capitalist in the possession and enjoyment of privileges unwisely and even corruptly granted, 329 SPIRIT OF AMERICAN GOVERNMENT they have greatly strengthened the motive for employing bribery and other corrupt means in securing the grant of special privileges. 'If the courts had all along held that any proof of fraud or corruption in obtaining a franchise or other legislative grant was sufficient to justify its revo- cation, the lobbyist, the bribe-giver, and the "in- nocent purchaser" of rights and privileges stolen from the people, would have found the traffic in legislative favors a precarious and much less profitable mode of acquiring wealth. 330 CHAPTER XIII THE INFLUENCE OF DEMOCRACY UPON THE CONSTITUTION The distinguishing feature of the Constitution, as shown in the preceding chapters of this book, was the elaborate provisions which it contained for limiting the power of the majority. The direction of its development, however, has in many respects been quite different from that for which the more conservative of its framers hoped. 1 The checks upon democracy which it contained were never- theless so skilfully contrived and so effective that the progress of the popular movement has been more seriously hampered and retarded here than in any other country where the belief in majority rule has come to be widely accepted. In some important respects the system as originally set up has yielded to the pressure of present-day tend- encies in political thought; but many of its fea- tures are at variance with what has come to be regarded as essential in any well-organized democracy. 1 "Over and over again our government has been saved from complete breakdown only by an absolute disregard of the Constitution, and most of the very men who framed the compact would have refused to sign it, could they have fore- seen its eventual development," Ford's Federalist, Intro- duction, p. vii. 331 SPIRIT OF AMERICAN GOVERNMENT It is not so much in formal changes made in the Constitution as in the changes introduced through interpretation and usage that we must look for the influence of nineteenth-century de- mocracy. In fact, the formal amendment of the Constitution, as shown in Chapter IV, is practi- cally impossible. But no scheme of government set up for eighteenth-century society could have survived throughout the nineteenth and into the twentieth century without undergoing important modifications. No century of which we have any knowledge has witnessed so much progress along nearly every line of thought and activity. An industrial and social revolution has brought a new type of society into existence and changed our point of view with reference to nearly every important economic and political question. Our constitutional and legal system, however, has stubbornly resisted the influence of this newer thought, although enough has been conceded to the believers in majority rule from time to time to keep the system of checks from breaking down. Some of the checks which the founders of our government established no longer exist except in form. This is true of the electoral college through which the framers of the Constitution hoped and expected to prevent the majority of the qualified voters from choosing the President. In this case democracy has largely defeated the end of the framers, though the small states, through their 332 THE INFLUENCE OF DEMOCRACY disproportionately large representation in the electoral college, exert an influence in Presidential elections out of proportion to their population. The most important change in the practical operation of the system has been accomplished indirectly through the extension of the suffrage in the various states. Fortunately, the qualifica- tions of electors were not fixed by the Federal Constitution. If they had been, it is altogether probable that the suffrage would have been much restricted, since the right to vote was at that time limited to the minority. The state constitutions responded in time to the influence of the demo- cratic movement and manhood suffrage became general. This placed not only the various state governments but also the President and the House of Representatives upon a basis which was. popu- lar in theory if not in fact. Much remained and still remains to be done in the matter of perfecting the party system and the various organs for formulating and expressing public opinion with reference to political questions, before there will be any assurance that even these branches of the general government will always represent public sentiment. There is one serious defect in the method of choosing the President. The system makes pos- sible the election of an executive to whom a ma- jority and even a large majority of the voters might be bitterly opposed. From the point of 333 SPIRIT OF AMERICAN GOVERNMENT view of the framers of the Constitution the choice of a mere popular favorite was undesirable . and even dangerous; but according to the view now generally accepted the chief executive of the na- tion should represent those policies which have the support of a majority of the people. It is possible that the candidate receiving a majority of all the votes cast may be defeated, 1 while it often happens that the successful candi- date receives less than a majority of the popular vote. 2 When three or more tickets are placed in the field, the candidate having a majority in the electoral college may fall far short of a majority of the popular vote. This was the case when Lincoln was elected President in i860. There were four candidates for the Presidency, and while Lincoln received a larger popular vote than any other one candidate, he received less than the combined vote for either Douglas and Brecken- ridge, or Douglas and Bell. In fact, he received less than two-fifths of the total popular vote. It is easily seen that a system is fraught with grave danger, especially in times of bitter sec- tional and party strife, which makes possible the election of a minority President. At such times opposition to governmental policies is most likely to assume the form of active resistance when a minority secures control of the government. In 1 This was true of Samuel J. Tilden, the Democratic candi- date in 1876. a Supra p. 56. 334 THE INFLUENCE OF DEMOCRACY other words, a majority is more likely to resist a minority than a minority is to resist a majority. This would be true especially in a country where the people generally accept the principle of ma- jority rule. It can not be claimed that Lincoln was, or that the South regarded him as, the choice of a ma- jority of the people. A different system which would have precluded the election of a President who did not have a clear majority of the popular vote might have done much toward discouraging active resistance on the part of the Southern States. No one, in fact, has stated the case against minority rule more clearly or forcefully than Lincoln himself. In a speech made in the House of Representatives January 12, 1848, on "The War with Mexico," he said : "Any people anywhere, being inclined and hav- ing the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right — a right which, we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can may revolu- tionize, and make their own of so much of the territory as they inhabit. More than this, a ma- jority of any portion of such people may revolu- 335 SPIRIT OF AMERICAN GOVERNMENT tionize, putting down a minority, intermingled with, or near about them, who may oppose their movements. Such minority was precisely the case of the Tories of our own Revolution." 1 This was quoted in defense of the right of secession by Alexander H. Stephens in his "Con- stitutional View of the Late War between the States." 2 The chief remaining obstacles to popular legis- lation are the Senate and the Supreme Court. Some means must be found to make these two branches of the government responsible to the ma- jority before the government as a whole can be depended upon to give prompt and effective ex- pression to public opinion. The Senate presents the most difficult problem for democracy to solve. The present method of choosing senators is alto- gether unsatisfactory. It has resulted in making the upper house of our Federal legislature repre- sentative of those special interests over which there is urgent need of effective public control. It has also had the effect of subordinating the making of laws in our state legislatures to that purely extraneous function — the election of United States senators. The exercise of the latter function has done more than anything else to confuse state politics by making it necessary for those interests that would control the United 1 Appendix to the Congressional Globe, ist sess., 30th Cong., p. 94. 2 Vol. I, p. 520. 336 THE INFLUENCE OF DEMOCRACY States Senate to secure the nomination and elec- tion of such men to the state legislatures as can be relied upon to choose senators who will not be too much in sympathy with anti-corporation sentiments. The Senate has fulfilled in larger measure than any other branch of the government the expecta- tion of the founders. It was intended to be rep- resentative of conservatism and wealth and a solid and enduring bulwark against democracy. That it has accomplished this purpose of the framers can scarcely be denied. But the political beliefs of the framers are not the generally accepted political beliefs of to-day. It is immaterial to the people generally that the attitude of the Senate on public questions is in line with the purpose for which that body was originally established. The criticism of the Senate's policy expressed in the phrase "all brakes and no steam" 1 indicates not so much a change in the character and influence of that body as in the attitude of the people toward the checks which the Constitution imposed upon democracy. Conservatism has always been characteristic of the United States Senate, which, as Sir Henry Maine says, is "the one thoroughly successful institution [upper house] which has been established since the tide of modern democ- racy began to run." 2 Measuring success by the 1 Outlook, Vol. 79, p. 163. a Popular Government, p. 181. 22 337 SPIRIT OF AMERICAN GOVERNMENT degree of resistance offered to the will of the majority, as this writer does, the conclusion is correct. This is the standard of judgment which the framers of the Constitution would have ap- plied, but it is not the generally accepted standard according to which the success of that body would be judged to-day. We have now come to accept the view that every organ of government must be approved or condemned according as it furthers or thwarts the ends of democracy. Applying this test, the conclusion is inevitable that the Senate as now constituted is out of harmony with pres- ent-day political thought. What, then, can be done to make that body an organ of democracy? There are three distinct evils in the Senate as it is now organized. The first pertains to the irresponsibility of its members due to their method of election and long term of office. But inasmuch as this could be remedied only by a constitutional amendment, it is not likely that anything short of a revolutionary public sentiment in favor of such change could compel the preliminary two-thirds majority in that body which the Constitution makes necessary. A body made up of men who for the most part realize that they owe their political advancement to a minority would naturally be loth to support a change in the system which would place the elec- tion to membership in that body directly in the hands of the people. It is improbable that any 338 THE INFLUENCE OF DEMOCRACY such reform can be accomplished at present. Any such direct attack upon the system would under present conditions be almost certain to fail. Some method of accomplishing this object must be employed which does not require the co-opera- tion of the Senate, and which, without any constitutional amendment, really deprives the leg- islature of the power to select United States Senators as the electoral college has been de- prived of all power in the choice of President. The second defect in the Senate is the equal representation of the states in that body. It is not only absurd but manifestly unjust that a small state like Nevada should have as much represen- tation in the controlling branch of Congress as New York with more than one hundred and seventy-one times as much population. A more inequitable distribution of representation it would be difficult to imagine; yet this evil could not be removed even by constitutional amendment, since this matter does not come within the scope of the amending power, unless the state or states affected by such proposed change should all give their assent. The third defect in the Senate is the extraor- dinary power which the Constitution has con- ferred upon it. If it were a directly elected body whose members were apportioned among the states according to population, the overshadowing influence of the Senate would not be a serious 339 SPIRIT OF AMERICAN GOVERNMENT matter. But, as shown in Chapter VI, that body controls jointly with the President the appointing and the treaty-making power. Moreover, the latter power may be exercised with reference to many things concerning which Congress has or could legislate. The Senate and the President may thus repeal what Congress has enacted. We thus have the peculiar situation that a law enacted with the concurrence of the House may be re- pealed without its consent, while a law which takes the form of a treaty can not be repealed without the consent of the Senate. Theoretically, the Constitution could be amend- ed so as to diminish the power of the Senate, but as a matter of fact no change in the Constitution would be more difficult to bring about. Any pro- posal to reduce the power of the Senate would jeopardize the prestige and influence of the smaller states no less than the proposal to deprive them of equal representation in that body. The small states approach political equality with the large, just in proportion as the influence of the Senate is a dominating factor in the policy of the government. Any attack oh this equality of rep- resentation would ally the small states together in defense of this privilege, and make it impossible to obtain the assent of three-fourths of the states to any such change. There is still another respect in which this equality of representation in the Senate is unfor- 340 THE INFLUENCE OF DEMOCRACY tunate. It tends to make it easier for corporation influences to dominate that body. This arises out of the fact that it is more difficult and more ex- pensive to control the election of senators in a large than in a small state. This tends to make the small states a favorite field for political ac- tivity on the part of those corporations which wish to secure or prevent Federal legislation. The Supreme Court is generally regarded as the most effective of all our constitutional checks upon democracy. Still, if the Senate were once democratized, it would not be a difficult matter to bring the Federal judiciary into line with the popular movement. In fact, the means employed in England to subordinate the House of Lords to the Commons indicates the method which might be employed here to subordinate the Supreme Court to Congress. The Ministry in England, virtually appointed by and responsible to the ma- jority in the House of Commons, secured control of the prerogatives of the Crown, one of which was the right to appoint peers. No sooner did the House of Commons come into possession of this power through a responsible Ministry than it realized the possibility of making use of it to over- come opposition to their policies on the part of the Lords. If the House of Lords did not yield to the House of Commons, the latter, through its Cabinet, could create new peers in sufficient num- ber to break down all resistance in that body. 34i SPIRIT OF AMERICAN GOVERNMENT The possession of that power by the Commons and the warning that it would be used if neces- sary has been sufficient to ensure compliance on the part of the Lords. In a similar manner Con- gress and the President could control the Supreme Court. The Constitution does not fix the number of Supreme judges. This is a matter of detail which was left to Congress, which may at any time provide for the addition of as many new judges to the Supreme Court as it may see fit. Thus Congress, with the co-operation of the President, could control the policy of the Supreme Court in exactly the same way and to the same extent that the House of Commons controls the House of Lords. That the Federalists who were in possession of our general government during the early years of its history appreciated the advantage of control- ling the policy of the Supreme Court was pointed out in the chapter on the Federal judiciary. They accomplished their purpose, however, by selecting for membership in that body, men whose political record was satisfactory and whose views concern- ing judicial functions were in harmony with the general plan and purpose of the Federalist party. In fact, the scheme of government which they set up contemplated no such possibility as the democ- ratization of the Executive or the Senate. If their expectation in this regard had been fully realized, a judicious use of the appointing power 342 THE INFLUENCE OF DEMOCRACY would have been all that was necessary to ensure a conservative court. Perhaps the framers of the Constitution did not imagine that the power to increase the number of judges would ever be needed to enable the President and Senate to secure the co-operation of the Supreme Court. At any rate, the power given to Congress and the President to enlarge the membership of that body was not, in the opinion of the framers, a power that could ever be employed against the conserva- tive class, since the radical element, it was be- lieved, would never be able to control more than one branch of the government, the House of Rep- resentatives. But, although it can not be de- termined whether the Federalists had in mind the possibility of using this power to control the policy of the court, it should be noted that, according to their view of the government, it might be used by, but not against, the conservative class. Nor is it likely that they would have hesitated to use this power had it been necessary to the success of their plan. The failure of the Federalists to check the growth of democratic ideas and the success of the more liberal party in bringing about the election of Jefferson alarmed the conservative class. It was seen that if all other branches of the govern- ment should come under the influence of the liberal movement, the judicial check could be broken down. To guard against this danger, an 343 SPIRIT OF AMERICAN GOVERNMENT effort was made by the conservative interests to mold a public sentiment that would protect the Supreme Court against political interference at the hands of those who might wish to override judicial opposition to radical measures. This took the form of what might be called the doctrine of judicial infallibility. The judiciary in general and the Supreme Court in particular were held up as the guardian and protector of American liberty. The security of the people was repre- sented as bound up with the freedom of the courts from political interference. At the same time it was proclaimed that the Supreme Court exercised only judicial functions and that any attempt on the part of the President or Congress to interfere with them would make that body the organ of faction or class. But, as a matter of fact, the danger which they foresaw to the Supreme Court was not a danger growing out of its judicial, but out of its legislative functions. It was not because the Supreme Court was a purely judicial body, but because it exercised a supremely im- portant legislative function, that they were so solicitous to guard it against anything approach- ing popular control. The threefold division of governmental powers into legislative, executive, and judicial, as shown in a preceding chapter, has no logical basis. There are, as Professor Good- now has said, 1 but two functions of government, 1 Politics and Administration, p. 9. 344 THE INFLUENCE OF DEMOCRACY that of expressing and that of executing the will of the state. The Supreme Court, in so far as it is a purely judicial body — that is, a body for hear- ing and deciding cases — is simply a means of executing the will of the state. With the per- formance of this function there was little danger that any democratic movement would interfere. Nor was this the danger which the conservative classes really feared, or which they wished to guard against. What they desired above all else was to give the Supreme Court a final voice in expressing the will of the state, and by so doing to make it operate as an effective check upon democratic legislation. It is this power of ex- pressing the will of the state which our con- servative writers defend as the pre-eminently meritorious feature of our judicial system. In- deed, this is, in the opinion of the conservative class, the most important of all the checks on democracy. Any suggestion of using the power vested in Congress and the President to reor- ganize the Supreme Court is naturally enough denounced as the most dangerous and revolu- tionary of political heresies. It is not probable, however, that the Supreme Court would much longer be permitted to thwart the will of the ma- jority if the other branches of the Federal govern- ment were thoroughly imbued with the belief in democracy. As explained in Chapter V, the Constitution contains no hint of this power to 345 SPIRIT OF AMERICAN GOVERNMENT declare acts of Congress null and void. It was injected into the Constitution, as the framers intended, by judicial interpretation, and under the influence of a thoroughly democratic President, and Congress might be eliminated in the same way. The most important feature of the Constitution from the standpoint of democracy is the provision contained in article V, requiring Congress "on the application of the legislatures of two-thirds of the several states" to "call a convention for proposing amendments." The progress of de- mocracy in the various state governments is likely to compel resort to this method of changing the Federal Constitution if the Senate much longer persists in disregarding the will of the people. In fact, this is, in the opinion of the conservative class, the one fatal defect in the scheme of con- stitutional checks established by our forefathers. It in reality opens the door to the most revolu- tionary changes in our political arrangements. Congress can not refuse to call a general constitu- tional convention when two-thirds of the states demand it, and this convention might propose an entirely new constitution framed in accord with the most advanced ideas of democracy. It might also follow the precedent set by the framers of our present Constitution and prescribe an entirely new method of ratification, as our more conserva- tive forefathers did when they disregarded the 346 THE INFLUENCE OF DEMOCRACY then existing provision governing the amendment of the Articles of Confederation. It is true that they ignored the established method of amending as well as the instructions from the states by which they were appointed, in order to bring about the adoption of a political system more acceptable to the conservative classes. But what has been done in the interest of the minority may also be done in the interest of the majority. A new Federal constitution might be framed which would eliminate the whole system of checks on the people and provide for direct ratification by a majority of the voters, as has already been done in the case of most of our state constitutions. If the Constitution does not yield sufficiently to satisfy the popular demand for reform, it is possi- ble that the reactionary forces will, in their anxiety to defeat moderate democratic measures, arouse sufficient opposition on the part of the people to compel sweeping constitutional changes. The fact that two-thirds of the states can require Congress to call a convention of all the states to propose changes in the Constitution is a matter of no small importance. True, even this method of initiating changes in the system would be very difficult, since the smaller states would naturally fear an attempt to establish a more equitable plan of representation, and the special and privileged interests of all sorts which have found the present system satisfactory would use 347 SPIRIT OF AMERICAN GOVERNMENT every means at their command to prevent the states from resorting to this power. It is pos- sible, if not indeed probable, that a serious and concerted attempt by the people to force changes in the Constitution by this method would suf- ficiently alarm the opponents of democracy to convince them of the wisdom and expediency of such amendments as would appease the popular clamor for reform without going too far in the direction of majority rule. To prevent the com- plete overthrow of the system, which might be the outcome if the states were compelled to assume the initiative in amending the Constitution, the minority may accept the inevitable, and, choosing what appears to them to be the lesser of two evils, allow Congress to propose such amendments as the people are determined to bring about. It is in the state and in the municipal govern- ments, however, that the influence of democracy has been greatest. Yet even here much still re- mains to be done before the practical operation of the system will be in accord with the principle of majority rule. Direct election and universal suffrage have not under our scheme of checks and balances secured any large measure of political responsibility. The logical result of this system has been the growing distrust of public officials and especially of such representative bodies as state legislatures and city councils. This lack of confidence in the local governmental machinery, 348 THE INFLUENCE OF DEMOCRACY due to the irresponsibility of public officials, is certain to lead to the adoption of radical changes in the organization of our state and municipal governments. Either the tenure of public officials will be made to depend in some more effective way upon the will of the majority, or the power which they now have and which they often use to further private interests at the expense of the people will be taken from them and conferred directly upon the majority of the voters. The movement to give the people greater con- trol over the officials whom they have elected is really just beginning. Heretofore the effort to make the government truly representative of the people has been mainly along the line of broaden- ing the suffrage and perfecting the method of voting. This, the people are just beginning to realize, does not guarantee political responsibility. The secret ballot under present conditions is im- portant, but it is by no means adequate. The right of the majority to elect one or the other of two men, both of whom may have been nomi- nated through the machinations of a corrupt and selfish minority, does not give the people any real control over the officials whom they vote into office. What they need, to ensure responsibility, is the power to make a real, not a merely nominal choice, coupled with the power to remove in case the person selected should lose the confidence of the majority. 349 SPIRIT OF AMERICAN GOVERNMENT The plan for depriving the minority of the power to control the selection of public officials, which is now rapidly gaining adherents among the advocates of political reform, is the direct primary. That some such change^ in our method of nominating candidates is necessary to make the so-called popular election of public officials any- thing more than an empty form is apparent to any intelligent student of American politics. But any proposal to deprive the minority of this power must encounter the determined opposition of the party machine and the various private interests which now prosper at the expense of the people. These opponents of political reform are contin- ually declaiming against the corruption and in- capacity of the people and trying to make it appear that a government can be no better than its source — those who elect the public officials. That a government is not likely to be better than the people whom it represents may be admitted. But this is aside from the question. Our present system in its practical operation is not a democ- racy. It is not truly representative, but misrepre- sentative To prevent this evil — this betrayal of public trust in the interest of the minority — is the aim of the direct primary. That it will go far toward breaking the power of the machine may be safely predicted, and that it will be gen- erally adopted as soon as the people realize its significance there is scarcely room for doubt. 350 THE INFLUENCE OF DEMOCRACY But while the direct nomination of candidates would doubtless go far toward making public officials respect the wishes of the people, it would not provide adequate protection against miscon- duct in office under our plan of election for a definite term without any effective power of removal. A corrupt official may often find that by favoring private interests at the expense of the people who have elected him, he can afford to forfeit all chance of re-election. The independ- ence of public officials which our forefathers were so anxious to secure has been found to be a fruit- ful source of corruption. A realization of this fact has been responsible for the introduction of the recall system under which the people enforce official responsibility through their power to re- move by a vote of lack of confidence in the form of a petition signed by a certain percentage of the voters. Such an expression of popular disap- proval has the effect of suspending from office the offending official who can regain the office only by offering himself again as a candidate at an elec- tion called for that purpose. This is as yet merely an innovation in municipal government, but if it proves to be satisfactory, the principle will doubt- less be incorporated, not only in municipal charters generally, but in our state constitutions as well. Simultaneous with this movement to make gov- ernment really representative by enforcing official responsibility is another movement which also 35i SPIRIT OF AMERICAN GOVERNMENT aims to make the will of the majority supreme, but by a totally different method of procedure. This is the movement looking toward the estab- lishment of the initiative and the referendum. Instead of leaving power in the hands of rep- resentative bodies and seeking to make them responsible as the first plan of reform contem- plates, the second plan would guard representative bodies against temptation by divesting them of all powers which they are liable to misuse and con- ferring them directly upon the people. This is merely an attempt to get back to the basic idea of the old town meeting, where local measures were directly proposed and adopted or rejected by the people. It is, moreover, the logical outcome of the struggle which the advocates of majority rule have been and are now making to secure control of our state and municipal governments. The constitutional checks on democracy have greatly obstructed and delayed the progress of political reform. Some of them have been removed, it is true, but enough still remain to make it possible for the minority to defeat the will of the majority with reference to many questions of vital im- portance. It must be admitted, when we review the course of our political development, that much progress has been made. But the evolution has been to- ward a direct rather than toward a representative democracy. The reason for this is not far to 352 THE INFLUENCE OF DEMOCRACY seek. The system of checks which limited the power of the majority made the legislature largely an irresponsible body; and since it could not be trusted, it was necessary to take out of its hands the powers it was most likely to abuse. The legislature was first deprived of its power to enact constitutional legislation, though it was allowed to retain an effective veto on such changes through its refusal to take the initiative. With the progress of the democratic movement some of the legislative powers most frequently abused were, like the state constitution itself, made sub- ject to popular ratification. This submission of constitutional and certain kinds of statutory legis- lation to the people before it could go into effect merely gave them to this extent a veto on the recommendations of their legislatures and consti- tutional conventions. There was still no way to prevent the legislature from misrepresenting the people with respect to those measures which did not require popular ratification. The tendency was to diminish the power of the legislature by including in the constitution itself much that might have taken the form of ordinary statutory legislation, as well as by requiring that some of the more important acts passed by the legislature should receive the direct assent of the voters. This merely gave to the people a partial negative. It enabled them to reject some measures which they did not approve of, but not all, since in those 23 353 SPIRIT OF AMERICAN GOVERNMENT cases where popular ratification was not required, public sentiment could be disregarded by the law- making body. Moreover, the people did not have the right to initiate measures — a right which is indispensable if the people are to have any real power to mold the policy of the state. The logical outcome of this line of development is easily seen. As pointed out in an earlier part of this volume, constitutional development first limits and even- tually destroys irresponsible power, and in the end makes the responsible power in the state supreme. The prevalent lack of confidence in our state legislatures is no indication of hostility to the principle of representative government; for rep- resentative government in the true sense means government that is responsible to the people. The popular movement has in modifying our state and municipal governments merely taken the line of least resistance, and that has involved the transfer of legislative powers to the people themselves. Just how far this movement will go it is im- possible to foresee. A government of the repre- sentative type, if responsive to public sentiment, would answer all the requirements of a demo- cratic state. It would at the same time be merely carrying out in practice what has long been the generally accepted, if mistaken, view of our political system. The adoption of some effectiv plan of direct nomination and recall of official would accomplish much in the way of restorin 354 THE INFLUENCE OF DEMOCRACY confidence in legislative bodies. To this extent it would check the tendency to place the law-mak- ing power directly in the hands of the people. Popular ratification of all important laws would be unnecessary, if our legislative bodies were really responsible to the people. Nevertheless, the popular veto is a power which the people should have the right to use whenever occasion demands. This would prevent the possibility of legislation in the interest of the minority as now often happens. The popular veto through the referendum is not, however, of itself sufficient. The people need the power to initiate legislation as well as the power to defeat it. The initiative combined with the referendum would make the majority in fact, as it now is in name only, the final authority in all matters of legislation. It is in our state and municipal governments that democracy is likely to win its first victories. The minority, however, will make a desperate struggle to prevent the overthrow of the system which has been and still is the source of its power. The political machine supported by every privileged interest will oppose by every means in its power the efforts of the people to break down the checks upon the majority. To this end we must expect them to make large use in the near future, as they have in the past, of the extraordinary powers exercised by our courts. In fact the courts as the least responsible and most conservative of our 355 SPIRIT OF AMERICAN GOVERNMENT organs of government have been the last refuge of the minority when defeated in the other branches of the government. The disposition so generally seen among the opponents of democ- racy to regard all measures designed to break down the checks upon the majority as unconstitu- tional points to the judiciary as the chief reliance of the conservative classes. Indeed, the people are beginning to see that the courts are in pos- session of political powers of supreme importance — that they can, and often do, defeat the will of the majority after it has successfully overcome opposition in all other branches of the govern- ment. If the will of the majority is to prevail, the courts must be deprived of the power which they now have to declare laws null and void. Popular government can not really exist so long as judges who are politically irresponsible have power to override the will of the majority. The democratic movement will either deprive the ju- dicial branch of the government of its political powers or subject it to the same degree of popular control applied to other political organs. The extension of direct nomination and recall to the members of our state judiciary would deprive the special interests of the power to use the courts as the means of blocking the way to popular reforms. In any democratic community the final interpreter of the constitution must be the ma- jority. With the evolution of complete popular 356 THE INFLUENCE OF DEMOCRACY government, then, the judicial veto must disap- pear, or the court must become a democratic body. It is through our state governments that we must approach the problem of reforming the na- tional government. Complete control of the former will open the door that leads to eventual control of the latter. Democratize the state gov- ernments, and it will be possible even to change the character of the United States Senate. With a state legislature directly nominated and subject to removal through the use of the recall, it will be possible to deprive that body of any real power in the selection of United States senators. Under these conditions the legislature would merely ratify the candidate receiving a majority of the popular vote just as the electoral college has come to ratify the popular choice of the President. In this way direct nomination and direct election of United States senators could be made really effective, while at the same time preserving the form but not the substance of election by the state legislatures. 1 1 This was one of the objects of the Oregon Direct Primary Law, which was enacted by the people of that state upon initiative petition at the general election held June 6, 1904. Under this law the elector seeking nomination for the office of senator or representative in the legislative assembly is expected to sign and file, as part of his petition for nomi- nation, one of the two following statements : No. 1. "I further state to the people of Oregon as well as to the people of my legislative district, that during my term of office, I will always vote for that candidate for United States Senator in Congress who has received the highest number of the people's votes for that position at the 357 SPIRIT OF AMERICAN GOVERNMENT This would make possible that much needed separation of state and municipal from national politics. Candidates for the state legislature are now nominated and elected largely with reference to the influence of that body upon the composition of the United States Senate. This has a tend- ency to, and in fact does, make state legislation in no small degree a by-product of senatorial elections. By divesting the legislature of this function, it would cease to be, as it is now, one of the organs of the Federal government, and in as- suming its proper role of a local legislative body, it would become in fact what it has hardly been even in theory — a body mainly interested in for- mulating and carrying out purely local policies. Experience has shown beyond question that its function as an electoral college for the choice of United States senators is incompatible with the satisfactory exercise of local legislative functions. The latter will be sacrificed in the interest of the former. This of itself is no small evil. For if there is any advantage in our Federal form of government, it is in the opportunity thus pro- vided for the faithful expression of local public opinion in local legislation. But in addition to general election next preceding the election of a Senator in Congress, without regard to my individual preference." No. 2. "During my term of office I shall consider the vote of the people for United States Senator in Congress as nothing more than a recommendation, which I shall be at liberty to wholly disregard if the reason for doing so seems to me to be sufficient." 358 THE INFLUENCE OF DEMOCRACY this subordination of state to national politics, which might be justified under existing condi- tions on the ground that local measures and local interests should be sacrificed whenever by so doing it would contribute to the success of the larger and more important matters of na- tional policy, it has become a prolific source of corruption. It is not a mere accident that the United States Senate is to-day the stronghold of railway and other corporate interests. Possessing as it does more extended powers than the House of Repre- sentatives, it is for that very reason the body in which every privileged interest will make the greatest effort to obtain representation. More- over, the indirect method of election is one that readily lends itself to purposes of corruption. It is a notorious fact that it is much easier to buy the representatives of the people than to buy the people themselves. Money expended in influenc- ing elections always has in view certain benefits direct or indirect which those who contribute the funds for that purpose expect to receive. Such funds invariably come in the main from special interests which expect to get back from the people more than the amount of their political invest- ments. If they had to deal with the people di- rectly, the latter would demand an equivalent for any concession granted, since it would not be to their advantage to enrich special interests at their 359 SPIRIT OF AMERICAN GOVERNMENT own expense. But where the concession can be granted by a small body such as a state legisla- ture, the latter may find that it is to its advantage to co-operate with a selfish and unscrupulous class in furthering purely private interests at the ex- pense of the public. The opportunity for the suc- cessful employment of corrupt means is greatly augmented, too, through the confusion of state and national issues under the present system. Many measures may be sacrificed by the party in control of the state legislature under the plea that it is necessary in order to advance the general interests of the party by the election of a United States senator. This possibility of evading re- sponsibility for the nonfulfillment of its duty as a local legislative body would disappear as soon as it is deprived of the part which it now plays in the choice of United States senators. 360 CHAPTER XIV EFFECT OF THE TRANSITION FROM MINORITY TO MAJORITY RULE UPON MORALITY In tracing the influence which the growth of democracy has had upon morality, we should be careful to look below the surface of present-day affairs. The deeper and more enduring social movements and tendencies are not always obvious to the superficial observer. For this reason much that has been written in recent years concerning our alleged decline in public morality is far from convincing. Facts tending to show the prevalence of fraud and corruption in politics and business are not in themselves sufficient to warrant any sweeping conclusions as to present tendencies. Paradoxical as it may seem, an increase in crime and other surface manifestations of immorality, is no proof of a decline, but may as a matter of fact be merely a transient effect of substantial and permanent advance toward higher standards of morality. Before making any comparison between the morality of two different periods, we should first find out whether, in passing from the one period to the other, there has been any change in the 361 SPIRIT OF AMERICAN GOVERNMENT accepted ideas of right and wrong. Now, if such is the case, it is manifestly an important factor in the problem — one that should not be ignored; and yet this is just what many writers are doing who imagine that they are proving by statistics a decline in morality. Their error con- sists in overlooking the one fact of paramount importance, viz., that the accepted standard of morality has itself been raised. We are not judg- ing conduct to-day according to the ideas of civic duty in vogue a century, or even a generation ago. We are insisting upon higher standards of conduct both in politics and in business. Our ideas of right and wrong in their manifold applications to social life have been profoundly changed, and in many respects for the better. We are trying to realize a new conception of justice. Many things which a century ago were sanctioned by law, or at least not forbidden, are no longer tolerated. Moreover, enlightened public opinion now con- demns many things which have not yet been brought under the ban of the law. During any period, such as that in which we are now living, when society is rapidly assuming a higher ethical type, it is inevitable that much resistance should be made to the enforcement of the new standard of justice. Old methods of business and old political practices are not easily repressed, even when the public opinion of the community has come to regard them as socially 362 EFFECT UPON MORALITY injurious. Forms of conduct once permitted, but now regarded as anti-social, tend to persist in spite of the effort of law and public opinion to dislodge them. The more rapid the ethical progress of society, the more frequent and the more pronounced will be the failure of the morally backward individuals to meet the requirements of the new social standard. At such a time we al- ways see an increase in crimes, misdemeanors and acts which enlightened public opinion condemns. This is due, however, not to any decline in public morality, but to the fact that the ethical progress of society as a whole has been more rapid than that of the offending class. There is another source of error which we must guard against. Social immorality is not al- ways detected even when it exists. Much that is socially immoral both in politics and in business escapes observation. Nevertheless, the agencies for ferreting out and holding up to public con- demnation offences against society, are far more efficient and active to-day than they have ever been in the past. Both the corrupt public official and the unscrupulous business man dread the searchlight of public opinion, which is becoming more and more effective as a regulator of con- duct with the growth of intelligence among the masses. Nor is it surprising that when the hitherto dark recesses of politics and business are exposed to view, an alarming amount of fraud 363 SPIRIT OF AMERICAN GOVERNMENT and corruption should be revealed. We are too prone to forget, however, that publicity is some- thing new — that in our day the seen may bear a much larger proportion to the unseen than it has in the past. What appears, then, to be an in- crease in business and political immorality may, after all, be largely accounted for as the result of more publicity. Here, again, we see that the facts usually taken to indicate a decline in public morality are susceptible of a very different in- terpretation. Another feature of present-day society which deserves careful consideration by reason of its far- reaching effect upon public morality is the change now taking place in theological beliefs. Hereto- fore the church has been by far the most im- portant agency for enforcing conformity to the accepted moral standard. The hope of reward or fear of punishment in the world to come has been the chief support upon which the church has in the past rested its system of social control. But this other-world sanction is now losing its compelling force in consequence of the growing disbelief in the old doctrine of rewards and pun- ishments. The fear of the supernatural, which has its highest development in the savage, steadily declines with the progress of the race. When the general level of intelligence is low, the super- natural sanction is a far more potent means of regulating conduct than any purely temporal 364 EFFECT UPON MORALITY authority. But, just in proportion as society ad- vances, the other-world sanction loses its potency and increasing reliance must, therefore, be placed upon purely human agencies. The immediate effect of this change in our at- titude toward the hereafter and the supernatural has been to remove or at least to weaken an im- portant restraint upon anti-social tendencies. There is no reason, however, for apprehension as to the final outcome. Society always experiences some difficulty, it is true, in making the transition from the old to the new. In every period of social readjustment old institutions and beliefs lose their efficacy before the new social agencies have been perfected. But if the new is higher and better than the old, the good that will accrue to society will in the long run greatly outweigh any temporary evil. But great as has been the change in our point of view with reference to the church, our attitude toward the state has been even more profoundly changed. We do not have to go very far back into the past to find government everywhere con- trolled by a king and privileged class. The as- cendency of the few was everywhere established by the sword, but it could not be long maintained by force alone. The ignorance of the masses was in the past, as it is now, the main reliance of those who wished to perpetuate minority rule. Fraud and deception have always been an indispensable 365 SPIRIT OF AMERICAN GOVERNMENT means of maintaining class ascendency in govern- ment. The primitive politician no less than his present-day successor saw the possibility of utiliz- ing the credulity of the masses for the purpose of furthering his own selfish ends. This explains the long-continued survival of that interesting political superstition which for so many centuries protected class rule under the pretended sanction of a God-given right. The growth of intelligence among the masses by discrediting the doctrine of divine right made it necessary to abandon the old defense of class rule. From that time down to the present the disintegration of the old political order has been rapid. Every effort has been made by the de- fenders of the old system to find some means of justifying and maintaining class rule — a task which is becoming more and more difficult with the growing belief in democracy. At the present time we are in a transition stage. The divine theory of the state, which was the foundation and support of the old system of class rule, is no longer accepted by intelligent people in any civilized country. But class rule still has its ad- vocates, even in the countries that have advanced farthest in the direction of popular government. The opponents of democracy, however, comprise but a small part of the population numerically, yet, owing to their great wealth and effective organization, their influence as a class is every- 366 EFFECT UPON MORALITY where very great. Over against these is arrayed the bulk of the population, who are struggling, though not very intelligently always, to overcome the opposition of the few and make the political organization and the policy of the state a complete and faithful expression of the popular will. No modern state has yet passed entirely through this transition stage. Everywhere the movement to- ward democracy has been and is now being energetically resisted by those who fear that thoroughgoing popular government would deprive them of economic or political privileges which they now enjoy. Let us not deceive ourselves by thinking that the old system of class rule has been entirely overthrown. No fundamental change in government or any other social institution ever comes about suddenly. Time, often much time, is required for those intellectual and moral re- adjustments without which no great change in social institutions can be made. And when we remember that only a century ago every govern- ment in the Western world was avowedly or- ganized on the basis of minority rule, we can readily understand that society has not yet had sufficient time to outgrow the influence of the old political order. No one can discuss intelligently the question of political morality if he ignores the effect of this struggle between the old system of minority domination and the new system of majority rule. 367 SPIRIT OF AMERICAN GOVERNMENT And yet scarcely ever do our text-books or maga- zine articles dealing with present political evils even so much as allude to this most important fact — the one, indeed, on which hinges our whole system of business fraud and political corruption. We often hear the opinion expressed by people of more than ordinary intelligence that the public immorality so much in evidence in this country is the natural and inevitable result of popular gov- ernment. This view is industriously encouraged by the conservative and even accepted by not a few of those whose sympathies are with democ- racy. Yet no conclusion could be more erro- neous. It would be just as logical to attribute the religious persecutions of the Middle Ages to the growth of religious dissent. If there had been no dissenters, there would have been no persecu- tion ; neither would there have been any reforma- tion or any progress toward a system of religious liberty. Persecution was the means employed to repress dissent and defeat the end which the dissenters had in view. Corruption sustains exactly the same relation to the democratic move- ment of modern times. It has been employed, not to promote, but to defeat the ends of popular government. No intelligent person should any longer be in doubt as to the real source of cor- ruption. It is to be eradicated, not by placing additional restrictions on the power of the people, but by removing those political restraints upon 368 EFFECT UPON MORALITY the majority which now preclude any effective popular control of public officials. We forget that when our government was established the prin- ciple of majority rule was nowhere recognized — that until well along into the nineteenth century the majority of our forefathers did not even have the right to vote. The minority governed under the sanction of the Constitution and the law of the land. Then a great popular movement swept over the country, and in the political upheaval which followed, the masses secured the right of suffrage. But universal suffrage, though essen- tial to, does not ensure popular government. The right to vote for some, or even all, public officials, does not necessarily involve any effective control over such officials by, or any real responsibility to, the majority of the voters. Nor is any constitu- tional system set up to achieve the purpose of minority rule likely to contain those provisions which are necessary for the enforcement of public opinion in the management of political affairs. It was thought by the masses, of course, when they acquired the suffrage that they acquired the substance of political power. Their expecta- tion, however, was but partially realized. Indirect election, official independence, and the rigidity of the constitutional system as a whole, with its lack of responsiveness to popular demands, largely counteracted the results expected from universal suffrage. But the extension of the suffrage to 24 369 SPIRIT OF AMERICAN GOVERNMENT the masses, though having much less direct and immediate influence upon the policy of the state than is generally supposed, was in one respect supremely important. In popular thought it worked a transformation in the form of the gov- ernment. The old view which recognized the political supremacy of the minority was now largely superseded by the new view that the will of the majority ought to be the supreme law of the land. The minority, however, still continue to exert a controlling influence in most matters of public policy directly affecting their interests as a class, although the extension of the suffrage made the exercise of that control a much more difficult matter and left little room for doubt that actual majority rule would ultimately prevail. A large measure of protection was afforded them through the checks which the Constitution imposed upon the power of the majority. There was no cer- tainty, however, that these checks could be per- manently maintained. A political party organized in the interest of majority rule, and supported by a strong public sentiment, might find some way of breaking through or evading the constitutional provisions designed to limit its power. Certain features of the Constitution, however, afforded excellent opportunities for offering effective re- sistance to the progress of democratic legislation. Entrenched behind these constitutional bulwarks, 370 EFFECT UPON MORALITY an active, intelligent and wealthy minority might hope to defeat many measures earnestly desired by the majority and even secure the adoption of some policies that would directly benefit them- selves. Here we find the cause that has been mainly responsible for the growth of that dis- tinctively American product, the party machine, with its political bosses, its army of paid workers and its funds for promoting or opposing legisla- tion, supplied by various special interests which expect to profit thereby. With the practical operation of this system we are all familiar. We see the results of its work in every phase of our political life — in municipal, state and national affairs. We encounter its malign influence every time an effort is made to secure any adequate regulation of railways, to protect the people against the extortion of the trusts, or to make the great privileged industries of the country bear their just share of taxation. But the chief con- cern of those in whose interest the party machine is run is to defeat any popular attack on those features of the system which are the real source of the great power which the minority is able to exert. Try, for example, to secure a constitu- tional amendment providing for the direct elec- tion of United States senators, the adoption of the initiative and the referendum, a direct primary scheme, a measure depriving a city council of the power to enrich private corporations by giving 37i SPIRIT OF AMERICAN GOVERNMENT away valuable franchises, or any provision in- tended to give the people an effective control over their so-called public servants, and we find that nothing less than an overwhelming public senti- ment and sustained social effort is able to make any headway against the small but powerfully entrenched minority. Many changes will be required before efficient democratic government can exist. The greatest and most pressing need at the present time, how- ever, is for real publicity, which is the only means of making public opinion effective as an instru- ment of social control. The movement toward publicity has been in direct proportion to the growth of democracy. Formerly the masses were not regarded by the ruling class as having any capacity for political affairs, or right to criticise governmental policies and methods. With the acceptance of the idea of popular sovereignty, however, the right of the people to be kept in- formed concerning the management of govern- mental business received recognition ; but practice has lagged far behind theory. Much would be gained for good government by extending publicity to the relations existing between public officials and private business in- terests. This would discourage the corrupt al- liance which now too often exists between unscrupulous politicians and corporate wealth. The public have a right and ought to know to 372 EFFECT UPON MORALITY what extent individuals and corporations have contributed money for the purpose of carrying elections. The time has come when the political party should be generally recognized and dealt with as a public agency — as an essential part or indispensable organ of the government itself. The amount of its revenue, the sources from which it is obtained, the purposes for which it is expended, vitally concern the people and should be exposed to a publicity as thorough and searching as that which extends to the financial transactions of the government itself. The enforcement of pub- licity in this direction would not be open to the objection that the government was invading the field of legitimate private activity, though it would bring to light the relations which now exist between the party machine and private business, and in so doing would expose the true source of much political corruption. But this is not all that the people need to know concerning party management. They can not be expected to make an intelligent choice of public officials, unless they are supplied with all the facts which have a direct bearing upon the fitness of the various candidates. Popular elections will not be entirely successful until some plan is de- vised under which no man can become a candidate for office without expecting to have all the facts bearing upon his fitness, whether relating to his private life or official conduct, made public. 373 SPIRIT OF AMERICAN GOVERNMENT Publicity of this sort would do much toward se- curing a better class of public officials. Publicity concerning that which directly per- tains to the management of the government is not all that will be required. The old idea that all business is private must give way to the new and sounder view that no business is entirely private. It is true that the business world is not yet ready for the application of this doctrine, since deception is a feature of present-day business methods. It is employed with reference to business rivals on the one hand and consumers on the other. This policy of deception often degenerates into down- right fraud, as in the case of secret rebates and other forms of discrimination through which one competitor obtains an undue and perhaps crushing advantage over others; or it may take the form of adulteration or other trade frauds by which the business man may rob the general public. "Deception,''* says Lester F. Ward, "may al- most be called the foundation of business. It is true that if all business men would altogether dis- card it, matters would probably be far better even for them than they are; but, taking the human character as it is, it is frankly avowed by business men themselves that no business could succeed for a single year if it were to attempt single-handed and alone to adopt such an innovation. The particular form of deception characteristic of business is called shrewdness, and it is universally 374 EFFECT UPON MORALITY considered proper and upright. There is a sort of code that fixes the limit beyond which this form of deception must not be carried, and those who exceed that limit are looked upon somewhat as a pugilist who 'hits below the belt.' But within these limits every one expects every other to sug- gest the false and suppress the true, while caveat emptor is lord of all, and 'the devil take the hind- most.' "* Under this system the strong, the unscrupulous and the cunning may pursue business tactics which enable them to accumulate wealth at the expense of consumers or business rivals, but which, if generally known, would not be tolerated. The great profits which fraudulent manufacturers and merchants have made out of adulterated goods would have been impossible under a system which required that all goods should be properly labeled and sold for what they really were. Such abuses rs now exist in the management of railroads and other corporations could not, or at least would not long be permitted to exist, if the general public saw the true source, character, extent and full effects of these evils. The greatest obstacle to publicity at the present time is the control which corporate wealth is able to, and as a matter of fact does, exercise over those agencies upon which the people must largely depend for information and guidance regarding 1 Pure Sociology, p. 487. 375 SPIRIT OF AMERICAN GOVERNMENT contemporary movements and events. The tele- graph and the newspaper are indispensable in any present-day democratic society. The ownership and unregulated control of the former by the large corporate interests of the country, and the in- fluence which they can bring to bear upon the press by this means, as well as the direct control which they have over a large part of the daily press by actual ownership, does much to hinder the progress of the democratic movement. This hold which organized wealth has upon the agencies through which public opinion is formed, is an important check on democracy. It does much to secure a real, though not generally recognized, class ascendency under the form and appearance of government by public opinion. This great struggle now going on between the progressive and the reactionary forces, between the many and the few, has had a profound in- fluence upon public morality. We have here a. conflict between two political systems — between two sets of ethical standards. The supporters of minority rule no doubt often feel that the whole plan and purpose of the democratic movement is revolutionary — that its ultimate aim is the com- plete overthrow of all those checks designed for the protection of the minority. The only effective means which they could employ to retard the progress of the popular movement involved the use of money or its equivalent in ways that have 376 EFFECT UPON MORALITY had a corrupting influence upon our national life. Of course this need not, and as a rule does not, take the coarse, crude form of a direct purchase of public officials. The methods used may in the main conform to all our accepted criteria of busi- ness honesty, but their influence is none the less insidious and deadly. It is felt in many private institutions of learning; it is clearly seen in the attitude of a large part of our daily press, and even in the church itself. This subtle influence which a wealthy class is able to exert by owning or controlling the agencies for molding public opinion is doing far more to poison the sources of our national life than all the more direct and obvious forms of corruption combined. The gen- eral public may not see all this or understand its full significance, but the conviction is gaining ground that it is difficult to enact and still more difficult to enforce any legislation contemplating just and reasonable regulation of corporate wealth. The conservative classes themselves are not sat- isfied with the political system as it now is, be- lieving that the majority, by breaking through restraints imposed by the Constitution, have ac- quired more power than they should be permitted to exercise under any well-regulated government. It is but a step, and a short one at that, from this belief that the organization of the government is wrong and its policy unjust, to the conclusion that one is justified in using every available 377 SPIRIT OF AMERICAN GOVERNMENT means of defeating the enactment or preventing the enforcement of pernicious legislation. On the other hand, the supporters of majority rule believe that the government is too considerate of the few and not sufficiently responsive to the wishes of the many. As a result of this situation neither the advocates nor the opponents of ma- jority rule have that entire faith in the reasonable- ness and justice of present political arrangements, which is necessary to ensure real respect for, or even ready compliance with the laws. Here we find the real explanation of that wide- spread disregard of law which characterizes American society to-day. We are witnessing and taking part in the final struggle between the old and the new — a struggle which will not end until one or the other of these irreconcilable theories of government is completely overthrown, and a new and harmonious political structure evolved. Every age of epoch-making change is a time of social turmoil. To the superficial on- looker this temporary relaxation of social re- straints may seem to indicate a period of decline, but as a matter of fact the loss of faith in and respect for the old social agencies is a necessary part of that process of growth through which so- ciety reaches a higher plane of existence. 378 CHAPTER XV DEMOCRACY OF THE FUTURE The growth of the democratic spirit is one of the most important facts in the political life of the nineteenth century. All countries under the in- fluence of Western civilization show the same tendency. New political ideas irreconcilably opposed to the view of government generally accepted in the past are everywhere gaining recog- nition. Under the influence of this new concep- tion of the state the monarchies and aristocracies of the past are being transformed into the democ- racies of the future. We of the present day, however, are still largely in the trammels of the old, though our goal is the freedom of the new. We have not yet reached, but are merely traveling toward democracy. The progress which we have made is largely a progress in thought and ideals. We have imbibed more of the spirit of popular government. In our way of thinking, our point of view, our accepted political philosophy, there has been a marked change. Everywhere, too, with the progress of scientific knowledge and the spread of popular education, the masses are com- ing to a consciousness of their strength. They 379 SPIRIT OF AMERICAN GOVERNMENT are circumscribing the power of ruling classes and abolishing their exclusive privileges which control of the state has made it possible for them to defend in the past. From present indications we are at the threshold of a new social order under which the few will no longer rule the many. Democracy may be regarded, according to the standpoint from which we view it, either as an intellectual or as a moral movement. It is intel- lectual in that it presupposes a more or less gen- eral diffusion of intelligence, and moral in that its aim is justice. It could not have appeared or become a social force until man became a thinker and critic of existing social arrangements. It was first necessary that he should acquire a point of view and a habit of thought that give him a measure of intellectual independence and enable him to regard social institutions and arrange- ments as human devices more or less imperfect and unjust. This thought can not be grasped without its correlative — the possibility of im- provement. Hence democracy everywhere stands for political and social reform. Democracy is modern, since it is only within recent times that the general diffusion of knowl- edge has been possible. The invention of print- ing, by making possible a cheap popular literature, contributed more than any other one fact to the intellectual and moral awakening which marks the beginning of modern times. The introduc- 380 DEMOCRACY OF THE FUTURE tion of printing, however, did not find a demo- cratic literature ready for general distribution, or the people ready for its appearance. A long period of slow preparation followed, during which the masses were being educated. Moreover, it is only within recent times that governments would have permitted the creation and diffusion of a democratic literature. For a long time after printing was invented the ruling classes carefully guarded against any use of the newly discovered art that might be calculated to undermine their authority. Books containing new and dangerous doctrines were rigorously proscribed and the peo- ple carefully protected from the disturbing in- fluence of such views as might shake their faith in the wisdom and justice of the existing social order. 1 1 "The art of printing, in the hands of private persons, has, until within a comparatively recent period, been regarded rath- er as an instrument of mischief, which required the restraining hand of the government, than as a power for good, to be fostered and encouraged The government assumed to itself the right to determine what might or might not be published ; and censors were appointed without whose permission it was criminal to publish a book or paper upon any subject. Through all the changes of government, this censorship was continued until after the Revolution of 1688, and there are no instances in English history of more cruel and relentless persecution than for the publication of books which now would pass unnoticed by the authorities .... "So late as 1671, Governor Berkeley, of Virginia, expressed his thankfulness that neither free schools nor printing were introduced in the Colony, and his trust that these breeders of disobedience, heresy, and sects, would long be unknown. . . "For publishing the laws of one session in Virginia, in 1682, the printer was arrested and put under bonds until the King's pleasure could be known, and the King's pleasure was declared that no printing should be allowed in the Colony. 381 SPIRIT OF AMERICAN GOVERNMENT It is perhaps fortunate for the world that the political and social results of printing were not comprehended at the time of its introduction. Had the ruling classes foreseen that it would lead to the gradual shifting of political power from themselves to the masses, it is not unlikely that they would have regarded it as a pernicious innovation. But, as is the case with all great inventions, its full significance was not at first understood. Silently and almost imperceptibly it paved the way for a social and political revolution. The gradual diffusion of knowledge among the people prepared them for the contemplation of a new social order. They began to think, to question and to doubt, and thenceforth the power and prestige of the ruling classes began to decline. From that time on there has been an unceasing struggle between the privileged few and the unprivileged many. We see it in the peaceful process of legislation as well as in the more violent contest of war. After each success the masses have demanded still greater concessions, until now, with a broader outlook and a larger conception of human destiny, they demand the complete and untrammeled control of the state. There were not wanting instances of the public burning of books as offenders against good order. Such was the fate of Elliot's book in defense of unmixed principles of popular freedom, and Calef's book against Cotton Mather, which was given to the flames at Cambridge." Cooley, Constitutional Limitations, 6th ed., pp. 513-515. 382 DEMOCRACY OF THE FUTURE To the student of political science, then, the spirit and temper, the aims and ideals of the new social order now coming into existence, are a matter of supreme importance. That our indus- trial system will be profoundly modified may be conceded. Other consequences more difficult to foresee because less direct and immediate, but not necessarily less important, may be regarded as not unlikely. That our ideas of right and wrong, our conception of civic duty, and human charac- ter itself will be modified as a result of such far- reaching changes in social relations, may be expected. But while the more remote and indi- rect consequences of democracy may not be fore- seen, some of its immediate results are reasonably certain. The immediate aim of democracy is political. It seeks to overthrow every form of class rule and bring about such changes in existing govern- ments as will make the will of the people supreme. But political reform is regarded not as an end in itself. It is simply a means. Government is a complex and supremely important piece of social machinery. Through it the manifold activities of society are organized, directed and controlled. In a very real sense it is the most important of all social institutions, since from its very nature it is the embodiment of social force, asserting and maintaining a recognized supremacy over all other social institutions and agencies whatever, 383 SPIRIT OF AMERICAN GOVERNMENT modifying and adapting them to suit the purposes and achieve the ends of those who control the state. The form or type of government is all-im- portant, since it involves the question as to the proper end of government as well as the proper means of attaining it. Our notion of what con- stitutes the best political system depends on our general theory of society — our conception of jus- tice, progress and social well-being. As govern- ment by the few inevitably results in the welfare of the few being regarded as the chief concern of the state, the widest possible diffusion of political power is the only guarantee that government will seek the welfare of the many. The advocate of democracy does not think that it will be a perfect government, but he does believe that it will in the long run be the best, most equitable and most progressive which it is possible to establish. Government by the few and gov- ernment by the many stand for widely divergent and irreconcilable theories of progress and social well-being. As the methods, aims, and social // ideals of an aristocracy are not those of which a democratic society would approve, it necessarily follows that the purposes of democracy can be accomplished only through a government which the people control. Modern science has given a decided impetus to the democratic movement by making a comfort- 384 DEMOCRACY OF THE FUTURE able existence possible for the many. It has ex- plored the depths of the earth and revealed hidden treasures of which previous ages did not even dream. Inventions and discoveries far-reaching in influence and revolutionary in character have followed each other in rapid succession. With the progress of the sciences and mechanical arts, man's power to control and utilize the forces and materials which nature has so bountifully pro- vided has been enormously increased; and yet, much as has been accomplished in this field of human endeavor, there is reason to believe that the conquest of the material world has but just begun. The future may hold in store for us far greater achievements along this line than any the world has yet seen. It is not surprising, then, that the masses should feel that they have received too little benefit from this marvelous material progress. For just in proportion as the old political system has sur- vived, with its privileged classes, its checks on the people and its class ascendency in government, the benefits of material progress have been mo- nopolized by the few. Against this intrusion of the old order into modern society the spirit of democracy revolts. It demands control of the state to the end that the product of industry may be equitably distributed. As the uncompromis- ing enemy of monopoly in every form, it demands first of all equality of opportunity. 25 385 SPIRIT OF AMERICAN GOVERNMENT Democracy, however, is not a mere scheme for the redistribution of wealth. It is fundamentally a theory of social progress. In so far as it in- volves the distribution of wealth, it does so as a necessary condition or means of progress, and not as an end in itself. Democracy would raise government to the rank and dignity of a science by making it appeal to the reason instead of the fear and superstition of the people. The governments of the past, basing their claims upon divine right, bear about the same relation to democracy that astrology and alchemy do to the modern sciences of astronomy and chemistry. The old political order every- where represented itself as superimposed on man from above, and, thus clothed with a sort of divine sanction, it was exalted above the reach of criticism. The growth of intelligence has dis- pelled one by one the crude political superstitions upon which the old governmental arrangements rested. More and more man is coming to look upon government as a purely human agency which he may freely modify and adapt to his pur- poses. The blind unthinking reverence with which he regarded it in the past is giving way to a critical scientific spirit. Nor has this change in our point of view in any way degraded govern- ment. In stripping it of the pretence of divine authority, it has in reality been placed upon a more enduring basis. In so far as it can no longer 386 DEMOCRACY OF THE FUTURE claim respect to which it is not entitled we have a guarantee that it can not persistently disregard the welfare of the people. Democracy owes much to modern scientific re- search. With the advance of knowledge we have gained a new view of the world. Physics, astronomy, and geology have shown us that the physical universe is undergoing a process of con- tinual change. Biology, too, has revolutionized our notion of life. Nothing is fixed and im- mutable as was once supposed, but change is universal. The contraction of the earth's crust with its resultant changes in the distribution of land and water, and the continual modification of climate and physical conditions generally have throughout the past wrought changes in the form and character of all animal and vegetable life. Every individual organism and every species must change as the world around it changes, or death is the penalty. No form of life can long survive which does not possess in a considerable degree the power of adaptation. Innumerable species have disappeared because of their inability to adjust themselves to a constantly changing environment. It is from this point of view of continuous adjustment that modern science re- gards the whole problem of life individual and collective. We must not, however, assume that what is true of the lower forms of life is equally true of 387 SPIRIT OF AMERICAN GOVERNMENT the higher. In carrying the conceptions of biology over into the domain of social science we must be careful to observe that here the process of adapting life to its environment assumes a new and higher phase. In the lower animal world the life-sustaining activities are individual. Division of labor is either entirely absent or plays a part so unimportant that we may for purposes of com- parison assume its absence. The individual ani- mal has free access to surrounding nature, unrestrained by social institutions or private property in the environment. For the members of a given group there is what may be described as equality of opportunity. Hence it follows that the individuals which are best suited to the environment will thrive best and will tend to crowd out the others. But when we come to human society this is not necessarily true. Here a social environment has been created — a complex fabric of laws, usages, and institutions which envelopes com- pletely the life of the individual and intervenes everywhere between him and physical nature. To this all his industrial activities must conform. The material environment is no longer the com- mon possession of the group. It has become private property and has passed under the control of individuals in whose interests the laws and customs of every community ancient and modern have been largely molded. This is a fact which 388 DEMOCRACY OF THE FUTURE all history attests. Wherever the few acquire a monopoly of political power it always tends to develop into a monopoly of the means and agents of production. Not content with making the physical environment their own exclusive prop- erty, the few have often gone farther and by reducing the many to slavery have established and legalized property in human beings them- selves. But even when all men are nominally free and legalized coercion does not exist, the fact nevertheless remains that those who control the means of production in reality control the rest. As Mr. W. H. Mallock, the uncompromising opponent of democracy and staunch defender of aristocracy, puts it : "The larger part of the pro- gressive activities of peace, and the arts and products of civilization, result from and imply the influence of kings and leaders in essentially the same sense as do the successes of primitive war, the only difference being that the kings are here more numerous, and though they do not wear any arms or uniforms, are incomparably more autocratic than the kings and czars who do." 1 "Slavery, feudalism, and capitalism;" he tells us, "agree with one another in being systems under which the few" 2 control the actions of the many. This feature of modern capitalism — the control 1 Aristocracy and Evolution, p. 58. 2 Ibid p. 377. 389 SPIRIT OF AMERICAN GOVERNMENT of the many by the few — which constitutes its chief merit in the eyes of writers like Mr. Mallock is what all democratic thinkers consider its chief vice. Under such a system success or failure is no longer proof of natural fitness or unfitness. Where every advantage that wealth and influence afford is enjoyed by the few and denied to the many an essential condition of progress is lacking. Many of the ablest, best, and socially fittest are hopelessly handicapped by lack of opportunity, while their inferiors equipped with every artificial advantage easily defeat them in the competitive struggle. This lack of a just distribution of opportunity under existing industrial arrangements, the de- fenders of the established social order persistently ignore. Taking no account of the unequal con- ditions under which the competitive struggle is carried on in human society, they would make success proof of fitness to survive and failure evidence of unfitness. This is treating the com- plex problem of social adjustment as if it were simply a question of mere animal struggle for existence. Writers of this class naturally accept the Malthusian doctrine of population, and as- cribe misery and want to purely natural causes, viz., the pressure of population on the means of subsistence. Not only is this pressure with its attendant evils unavoidable, they tell us, but, regarded from the standpoint of the highest in- 390 DEMOCRACY OF THE FUTURE terests of the race it is desirable and beneficent in that it is the method of evolution — the means which nature makes use of to produce, through the continual elimination of the weak, a higher human type. To relieve this pressure through social arrangements would arrest by artificial con- trivances the progress which the free play of natural forces tends to bring about. If progress is made only through the selection of the fit and the rejection of the unfit, it would follow that the keener the struggle for existence and the more rapid and relentless the elimination of the weak, the greater would be the progress made. This is exactly the contention of Kidd in his Social Evo- lution. He claims that if the pressure of popula- tion on the means of subsistence were arrested, and all individuals were allowed equally to propagate their kind, the human race would not only not progress, but actually retrograde. 1 If we accept this as true, it would follow that a high birth rate and a high death rate are necessary in order that the process of selection and rejection may go on. This is indeed a pleasant prospect for all except the fortunate few. But the ques- tion, of course, is not whether this is pleasant to contemplate or unpleasant, but whether it is true. Is the evolution of a higher human type the same kind of a process as that of a higher animal or vegetable type? Is progress achieved only 1 Social Evolution, p. 39. 391 SPIRIT OF AMERICAN GOVERNMENT through the preservation of the fit and the elimination of the unfit? If it could be shown that this is the case, then certainly the conditions under which this struggle to the death is carried on would be a matter of supreme importance. Are our social adjustments such as to facilitate,, or at least not interfere with it? Do they make the question of success or failure, survival or elimination, depend upon individual fitness or unfitness ? This, as we have seen, is not the case, though the partisans of the biological theory of human progress have constantly assumed it. Mr. Mallock takes even a more extreme position than most writers of this class, and actually says "that the social conditions of a time are the same for all, but that it is only exceptional men who can make exceptional use of them." 1 The unequal distribution of wealth he seeks to justify on the ground that "the ordinary man's talents as a producer . . . have not appreciably increased in the course of two thousand years and have certainly not increased within the past three generations." 2 "In the domain of modern industrial activity the many" ... he tells us, "produce only an in- significant portion of the total, . . . and in the domain of intellectual and speculative progress the many produce or achieve nothing." 3 If we 1 Aristocracy and Evolution, p. 105. a Ibid p. 218. 3 Ibid p. 219. 392 DEMOCRACY OF THE FUTURE accept his premises, we must agree with his con- clusion that democracy's indictment of our mod- ern industrial system falls to the ground. This view of the matter is acceptable, of course, to those who are satisfied with present social ar- rangements. It furnishes a justification for the system under which they have prospered while others have failed. It relieves their conscience of any misgiving and soothes them with the as- surance that only through the poverty and misery of the unfit can a higher civilization be evolved. This largely explains the popularity among the well-to-do classes of such books as M*althus' Prin- ciple of Population and Kidd's Social Evolution. Such a treatment of the social problem, how- ever, will not bear the test of analysis, since it assumes that the present distribution of oppor- tunity is just. To ignore or treat as unimportant the influence of social arrangements upon the struggle for existence between individuals, as apologists for the existing social order are too much inclined to do, is like ignoring the modern battle-ship as a factor in the efficiency of the modern navy. But while this biological theory of evolution has been made to serve the purpose of defending existing social arrangements, it is in reality no adequate explanation of human progress. Selec- tion and rejection do not, as a matter of fact, play any important part in the progress of civilized 393 SPIRIT OF AMERICAN GOVERNMENT communities. Here the struggle for existence has assumed the form of a struggle for domina- tion. The vanquished are no longer eliminated as a result of the competitive struggle; for, as Mr. Spencer says, social institutions preserve the incapables. 1 Not only are the unsuccessful not eliminated but, as sociological students well know, they increase more rapidly than the successful few. If, then, we accept the biological theory of social evolution, we are forced to the conclusion that the human race, instead of advancing, is really retrograding. Seeing that this is not a satisfactory explanation of human progress, Mr. Mallock supplements it with a new factor which he describes as "the unintended results of the intentions of great men." 2 But, like all of these writers, he makes progress depend entirely on the biological struggle for existence or the industrial struggle for supremacy, not recognizing the all- important part which social ideals and conscious social choice play in human evolution. There is, then, as we have seen, ample justi- fication for the hostility to privilege which the democratic movement everywhere exhibits. In making equality of opportunity a feature of the new social 'order, the advocates of reform are proceeding in harmony with the teaching of modern science. Such changes must be brought 1 Principles of Biology, Vol. I, p. 469. 3 Aristocracy and Evolution, p. 105. 394 DEMOCRACY OF THE FUTURE about in the organization of industry, the laws of property, the scope and character of public and private activities, as will sweep away entirely the whole ancient system of special privileges, and by placing all individuals upon the same footing, make success the unfailing reward of merit. To accomplish this is to solve the monopoly problem. Some progress has been made in this direction, but it consists for the most part in discovering that such a problem exists. Just how posterity will deal with it, it is impossible to foresee ; but of one thing we may be sure — this new conception of justice will exert a profound influence upon the legislation of the future. The attention of the democratic movement has up to the present time been occupied almost ex- clusively with the question of a just distribution of opportunity; yet this is not the only problem which democracy will have to solve. Indeed, it is but the first step in a continuous process of con- scious social readjustment. This fact many writers on social science have not fully grasped. There is still a tendency to regard society as a sort of divinely ordered mechanism, which, if properly started, will automatically work out the process of social evolution. For an explanation of this popular misconception we must go back to the theological speculations of the past, which represented a divine intelligence as everywhere present and a divine purpose as running through 395 SPIRIT OF AMERICAN GOVERNMENT every fact and detail of nature. From this belief in direct and immediate supervision by an all-wise being it was an easy step to the conclusion that whatever is, is right. Thus the old social order was securely entrenched behind the ramparts of mediaeval theology. From this once impregnable position it has been dislodgd by modern science, which has thoroughly discredited the notion of direct supernatural intervention and given us in- stead the conception of a universe which illus- trates in its every process the working of natural law. Nevertheless, in accepting this newer view, we have not entirely discarded the old, which has more largely stamped itself upon modern thought than we are willing to allow. This ac- counts for our deification of the natural — our conception of evolution as having behind all its phases a divine purpose which is everywhere working toward the realization of a higher type. The general acceptance of this optimistic view by both liberal and conservative is striking proof that mediaeval theology has largely influenced our interpretation of modern science. In fact, optimism belongs not to the age of science, but to the age of faith. It confuses the natural with the morally right in that it would make all nature the direct expression of a divine purpose. If we ac- cept this belief in the beneficent and progressive character of all natural processes, the conclusion 396 DEMOCRACY OF THE FUTURE is irresistible that nature's methods should not be interfered with. This is largely the point of view of the earlier English political economists, and it partly ex- plains their belief in the policy of non-interference. The best and most comprehensive statement of this view of social progress is found in Adam Smith's Wealth of Nations. In this work he at- tempted to show that legislative interference with industry is unnecessary. Therefore he advo- cated the repeal of all laws which interfered with or in any way restricted the liberty of the in- dividual. He believed that the natural principle of competition would of itself effectually regulate industrial life. The desire of each individual to pursue his own interests made state interference, in his opinion, unnecessary. In the absence of legal restraints industrial matters would spon- taneously regulate themselves. The varied eco- nomic activities of individuals in society would be adequately controlled and harmonized with the general interests of society, if statute or human law did not interfere with natural or divine law. Reliance on competition would ensure order, harmony and continuous progress in society, just as in the realm of matter the influence of gravita- tion has transformed by a long-continued develop- ment the original chaos into an orderly universe. Each individual acting in obedience to this law 397 SPIRIT OF AMERICAN GOVERNMENT would be "led by an invisible hand to promote" 1 the well-being of society, even though he was conscious only of a selfish desire to further his own ends. Such was the industrial philosophy of Adam Smith. It was in harmony with and the natural outcome of the movement which had already revo- lutionized religious and philosophic thought. In every department of human activity emphasis was being put on the individual. Liberty was the watchword of society — the panacea for all social ills. The Western world was breaking through the old system of restraints under which the in- dividual had been fettered in religion, politics and business. A new conception of the state, its duties and its functions, had been evolved. Mere human law was being discredited. Philosophers, distrusting the coercive arrangements of society, were looking into the nature of man and the char- acter of the environment for the principles of social organization and order. Belief in the cura- tive power of legislation was being supplanted by a growing faith in the sufficiency of natural law. The underlying motives for advocating the laissez faire policy were, however, mainly political and economic. 2 The ready acceptance of this doctrine must be attributed largely to the fact that it offered a plausible ground for opposing the 1 Adam Smith, Wealth of Nations, Book I, Ch. 2. 2 Supra, chapters XI and XII. 398 DEMOCRACY OF THE FUTURE burdensome restraints of the old system of class rule. This is the origin of our modern doctrine of hisses faire which has so profoundly influenced our political and economic life. But as move- ments of this character are likely to do, it carried society too far in the opposite direction. This is recognized by that most eminent expounder of the let-alone theory of government, Mr. Herbert Spencer, who, in the third volume of his Prin- ciples of Sociology, admits that "there has been a change from excess of restriction to deficiency of restriction." 1 This means that in our accepted political and economic philosophy we have over- valued the organizing power of unregulated nat- ural law, and have consequently undervalued the state as an agency for controlling and organizing industrial forces. All new ideas have to be harmonized with much that is old. As at first accepted they are only partially true. A new philosophy requires time before its benefits can be fully realized. It must pass through a process of adaptation by which it is gradually modified, broadened and brought into orderly relations with life in general. The theory of industrial freedom has during the nineteenth century been passing through just such a stage of development. The contention of Adam Smith and his followers that the mere de- l P.S34- 399 SPIRIT OF AMERICAN GOVERNMENT sire for gain would of itself ensure adequate regulation of industry is certainly not true under existing conditions. Natural law is not, as he assumed, always beneficent in its operation. It is just as liable to produce harm as benefit unless it is regulated, controlled and directed by appro- priate human agencies. It needs no argument to convince one that this is true so far as the forces of the physical world are concerned. Gravita- tion, steam and electricity contributed nothing to human progress until man discovered the means whereby they could be harnessed and controlled. Material civilization means nothing else but the development of control over and the consequent utilization of the materials and forces of the physical world. The important part played by mere human agencies is the only feature that dis- tinguishes civilization from barbarism. Every- thing which in any way contributes to material progress augments the power of man to control, modify and adapt his environment. And though it may not be so obvious, this gen- eral principle is just as true in the moral and spiritual world as in the physical. All progress, material and moral, consists in the due subordina- tion of natural to human agencies. Laws, insti- tutions and systems of government are in a sense artificial creations, and must be judged in relation to the ends which they have in view. They are good or bad according as they are well or poorly 400 DEMOCRACY OF THE FUTURE adapted to social needs. Civilization in its high- est sense means much more than the mere mastery of mind over inanimate nature; it implies a more or less effective social control over individual conduct. Certain impulses, instincts and tenden- cies must be repressed; others must be encour- aged, strengthened, and developed. It is a mistake to suppose that the unrestrained play of mere natural forces ensures progress. Occasional advance is the outcome, but so also is frequent retrogression. There is no scientific basis for the belief in a natural order that every- where and always makes for progress. Compe- tition or the struggle for existence ensures at most merely the survival of the fittest; but survival of the fittest does not always mean survival of the best. Competition is nature's means of adapting life to its environment. If the environment is such as to give the more highly organized individuals the advantage, progress is the result. But if it is such as to place them at a disadvantage, retro- gression, not progress, is the outcome. The higher types of character, no less than the higher organic forms, presuppose external conditions favorable to their development. Competition is merely the means through which conformity to these external conditions is enforced. It elim- inates alike that which is better than the environment and that which is worse. It is indifferent to good or bad, to high or low. It 26 401 SPIRIT OF AMERICAN GOVERNMENT simply picks out, preserves and perpetuates those types best suited to environing conditions. Both progress and retrogression are a process of adap- tation, and their cause must be sought, not in the principle of competition itself, but in the general external conditions to which it enforces con- formity. Success, then, is a matter of adaptation to the environment, or the power to use it for individual ends — not the power to improve and enrich it. The power to take from, is nature's sole test of fitness to live ; but the power to enrich is a higher test, and one which society must enforce through appropriate legislation. Laws, institutions and methods of trade which make it possible for the individual to take from more than he adds to the general resources of society tend inevitably toward general social de- terioration. Competition is wholesome only when all our social arrangements are such as to dis- courage and repress all individual activities not in harmony with the general interests of society. This is the point of view from which all social and industrial questions must be studied. The problem which democracy has to solve is the prob- lem of so organizing the environment as to assure progress through the success and survival of the best. 402 INDEX Alien and sedition laws, 166. Amendment, Articles of Con- federation, 57; Australia, 62; England, 62; France, 62; Revo- lutionary state constitutions, 59; state constitutions after 1787, 235; Switzerland, 63; checks on undemocratic, 63. See Con- stitution of the United States. American colonies, government of, 12. American government, aristo- cratic, 79, 103, 126. See Checks and Balances, Constitu- tion of the United States, House of Representatives, President, Senate, Supreme Court: American revolution, change in the spirit of, 13; results of, 27. Anarchism. See Checks and Balances. Articles of Confederation, demo- cratic tendency of, 25, 57; weakness of, 23. Baldwin, Simeon E., on the source of the Constitution, 28. Bank of North America, repeal of the charter of, 321. Boutmy, Emile, on the powers of the Supreme Court, 98; on the relation of the House of Rep- resentatives to treaties, 138; on hasty voting in the House, 202; on the sovereignty of the ma- jority in France, 301. Bryce, James, on the opposition of the masses to the ratification of the Constitution, 49; on the 403 ratification of the last three amendments, 54; on the com- mittee system, 196. Budget. See House of Repre- sentatives. Burgess, John W., on the diffi- culty of amending the Consti- tution, 47 ; on the veto power of the Supreme Court, 90; on the desire of the framers to avoid popular choice of Presi- dential electors, 134 note; on the protection of private prop- erty by the Supreme Court, 299. Butler, C. H., on the attitude of the Supreme Court toward treaties, 119. Calhoun, John C, on popular government, 132; on state rights, 178. Channing, Edward, on removal of judges, 71. Checks and balances, American system of artificial, 130; an- archism an extreme application of, 132; belief of framers in, 125; in early state constitu- tions, 21; in English govern- ment, 8; limitation of power of the people under, 129; origin of, 126; Poland an example of, 131; practical limit to exten- sion of, 130; relation of, to laisses faire, 131; subordination of House of Representatives not in accord with, 147. See Con- stitution of the United States. Chinese exclusion act, 315. INDEX Common law, influence of the ruling class upon, n. Constitutional convention of 1787. See Constitution of the United States. Constitutional government, origin of, 3 ; relation to democracy, 3. Constitution of the United States, a product of 18th century thought, 28; change in the atti- tude of the people toward, 184; germs of national government in, 161; influence of the Fed- eralists upon the development of, 164; limitation of the taxing power in, 318; no provision for political parties in, 205; numer- ical majority not recognized in, 176; power of minority to modify, 167; protection of property in, 298; purpose of, misrepresented by the framers, 77; relation of, to individual liberty, 297; relation of, to the doctrine of nullification, 169; responsible for the state rights controversy, 163; significance of, economic, 299; states not expressly subordinated in, 161; substitutes for monarchy and aristocracy in, 132; vote in the conventions ratifying, 53 note; an insignificant minority may prevent amendment of, 46; Patrick Henry's objection to the amendment feature of, 44; number of amendments pro- posed, 47; power of two-thirds of the states to call a constitu- tional convention, 346; impor- tance of this provision, 346; difficulty of securing the co- operation of the smaller states, 347; the first ten amendments, 53; the eleventh amendment, 53; the twelfth amendment, 53; the last three amendments, 54. See House of Representatives, 404 President, Senate, Supreme Court. Contracts, laws impairing the ob- ligation of, 320-325. Cooley, T. M., on the difference between judicial and political power, 107; on the attitude of the fathers toward publicity, 156; on the evils of legislative interference in municipal af- fairs, 284; on the influence of the Dartmouth College decision upon the growth of corporate power, 325; on government cen- sorship of printing, 381 note. Coxe, Brinton, on the judicial veto in England, 85; on the judicial veto in the early state govern- ments, 88, 89. Dartmouth College case, 325. Declaration of Independence, 14, 33, 219. Democracy, immediate aim of, political, 388; influence of economic progress on, '384; in- fluence of printing on growth of, 380; reaction against, 27; relation of, to reform, 380. Direct primary, 350; adoption of, in Oregon, 357 note. Electoral college, influence of democracy on, 332. See Presi- dent. English Bill of Rights, 152; abuse of, by Parliament, 153. Federal elections, 188. Federalists, 165. Federal judiciary. See Supreme Court. Fiske, John, on the conservatism of the framers, 29; on the se- crecy of the debates on the Constitution, 34 note; on the election of Presidential electors by state legislatures, 134 note. INDEX Ford, Paul L., on the protection of the minority by the Supreme Court, 299; on the rigidity of the Constitution, 331 note. Framers of the Constitution, at- titude of, toward criticism of public officials, 152-159; char- acter of, 32; deliberations of, secret, 34. Free land, influence of, on wages, 314. Free speech, in American colonies, 155- Goodnow, F. J., on the freedom of New York City from legis- lative interference in the early years of our history, 253; on the abuses of legislative inter- ference in municipal affairs, 257. Governor, limited powers of, un- der early state constitutions, 19; small executive power of, 244; veto power of, 19, 244. See Impeachment, State constitutions after 1787. Government, but two functions of, 344; distinction between na- tional and federal, 159; in- fluence of the minority upon, 370; kinds of, 128; ultimate source of authority in, 296. Government of England, control of, by the landlord class in the 1 8th century, 204; change in the character of, 207. Government by injunction, 116- 119. Great Charter, the political sig- nificance of, 4. Great Council, 4; separation of, into lords and commons, 6. Greene, E. B., on free speech in the colonies, 155. Hamilton, Alexander, on life ten- ure of judges, 66; on the right of the courts to declare legis- 405 lative acts null and void, 73- 75 ; his effort to mislead the public, 77; his defense of poll taxes, 319; his policy as Sec- retary of the Treasury, 164; his reasons for supporting the Constitution, 82; kind of gov- ernment favored by, 79. Henry Patrick, on amending the Constitution, 44; on the right of judges to oppose acts of the legislature, 96; offer of the Chief Justiceship to, 95. Hoar, George F., on law-making in the House of Representa- tives, 197, 198, 200. House of Commons, character of, in the 18th century, 10, 153, 204. House of Representatives, an irre- sponsible body during the sec- ond regular session, 189; a sub- ordinate branch of the govern- ment, 136; influence of the committee system on, 192; rela- tion of, to taxation and ex- penditure, 148. See President, Senate, Speaker of the House. Immigration, decline in the quality of, 314- Impeachment, by a majority of the legislature, 142; changes in state constitutions relating to, 231; of judges, 20; reason for making difficult, 142; relation of, to executive and judicial veto, 143. See Judges, Presi- dent, Senate. Income Tax decision, 114, 222, 320. Industry, cpntrol of, by the few, 307. Initiative and referendum, 352. Iredell, James, judicial veto de- fended by, as a means of limit- ing the power of the majority, 89. INDEX James I, on the divine right of kings, 104. Jefferson, Thomas, on the inde- pendence of Federal judges, 68, 73 note, 100 note; on the right of a state to nullify a federal law, 173. Johnson, Alexander, on the con- servatism of the Federal Con- vention, 33 note. Judges, reason for advocating the independence of, 67; re- moval of, under the early state constitutions, 71. See Impeach- ment, Judicial Veto, Supreme Court. Judicial infallibility, 115, 344. Judicial veto, effort to revive, 87; how conferred, 92; in England, 85; relation of, to the executive veto, 85; relation of, to popular government, 99, 356; signifi- cance of, Q7. Judiciary Act of 1789, 182; why not incorporated in the Consti- tution, 183. Kentucky resolutions, 172. Kidd, Benjamin, on social prog- ress, 391. Labor, free trade in, 314. Laissez faire, opposition of the masses to, 308; relation of, to progress, 309, 311, 398. Law, lack of respect for, 376-378. Lawyers, virtually a ruling class, 300-302. Lecky, W. E. H., on the purpose of the framers, 129. Liberty, class control of industry destructive of, 306; democratic conception of, 293 ; eighteenth century economic conditions fav- orable to, 304; eighteenth cen- tury view of, negative, 291; survival of the old view in our legal literature, 301-303. 406 Lincoln, Abraham, on the right of the majority to overthrow minority government, 335; a minority president, 334. Lowell, A. Lawrence, on the im- portance of the judiciary in our scheme of government, 65. Madison, James, on the evils of American government, 42 ; on the power of a state to oppose the Federal government, 170; on the danger of government by a majority, 205. Maine, Henry S., on the success of the Senate in opposing de- mocracy, 337. Mallock, W. H., on the benefits and justice of minority control, 389, 392, 394- Marshall, John, on the judicial veto, 93, 322. Martin, Luther, on the precau- tions against publicity in the Federal Convention, 34 note. McMaster, J. B., on the character of the framers, 32; on the polit- ical immorality of the fathers, 50. Miller, S. F., on the relation of the people to the government, 31. Morality, change in the standard of, 361; effect of change in theological beliefs on, 364; in- fluence of class rule on, 366- 378. Municipal government, a creature of the legislature, 252; attitude of the courts toward, 254; evils of, attributed to the rule of the masses, 251, 284; examples of legislative interference, 258-263; extension of legislative au- thority over, 254; fear of ma- jority rule in, 277; financial powers of, limited, 271-273; franchise granting power in, INDEX 288-290; home rule movement, 265; retarded by the extension of the suffrage, 287; hostility of the courts to home rule, 268, 270; legislative control a source of corruption, 256; limitation of the power of the majority, 266-268; municipal ownership under class rule, 280; origin of municipal charters, 253; origin of restrictions on the borrowing power, 274-276; prohibition of special legislation, 261; survival of property qualifications, 279; source of corruption in, 288; twofold character of, 256. See Special Fund. Oath of office. See President. Opportunity, equality of, indis- pensable, 390; but will not en- sure progress, 395. Ostrogorski, M., on class control of the House of Commons, 204. Parliament, control of taxing power by, 6; four distinct con- stituencies represented in, 7. See English Bill of Rights, Government of England, House of Commons, Suffrage. Party government, attitude of the framers toward, 135, 205. Poland. See Checks and Bal- ances. Political parties, attitude of, on the money question, 221; mo- nopolies, 222 ; control of nomi- nations by minority, 218; erron- eous view of the Constitution promulgated by, 219-221; evils of, due to checks on the ma- jority, 214; influence of the Constitution on, 208; lack of power to control the govern- ment, 209; largely representa- tive of private interests, 216; purpose of the party platform, 218; reason for lack of inter- est in, 210. Poll tax. See Hamilton. Popular government, effort to dis- credit the theory of, 212, 251, 284. President, administrative veto of, 145; difficulty of passing meas- ures over his veto, 139; effort of the framers to preclude the election oi a popular favorite, 135; election of, by a minority, 56; growth of veto power of, 141; limited term of, 133; not obligated by his oath of office to enforce the acts of Congress, 145; minority election of, a source of danger, 334-336. See Impeachment. Press, influence of corporate wealth upon, 376. Printing, minority control of, in the past, 381. Property qualifications. See Suf- frage. Protective tariff, defended as a means of raising wages, 313; maintained in the interest of the capitalist class, 313-317; relation of, to laisses faire, 312. Publicity, lack of adequate, pro- vision for, in the Constitution, 150; relation of, to democracy, 372; should extend to political contributions and the record of candidates, 372-373; would cure many business evils, 374-375. Public opinion, control of the organs of, by corporate wealth, 375. Recall of public officials, 351. Rogers, J. E. T., on the attitude of the English government to- ward the laborer, 11. Senate, difficulty of reforming by constitutional amendment, 338- 340; Direct nomination of the members of, 357; disadvantages of equal representation of the 407 INDEX states in, 339; election of, by state legislatures an evil, 33s; long term of office of, 338; in- fluence of, on state politics, 358; its large powers, 339; members of, can not be im- peached, 144; opposition of to democratic legislation, 337. Serfs, numerical importance of, 5. Shafroth, J. F., on how to make the House of Representatives more responsive to public opin- ion, 189. Slavery, 317. Smith, Adam, on civil govern- ment as a means of protecting the rich against the poor, 37. Social progress, influence of theo- logical beliefs upon the accepted theory of, 395-398; relation of government to, 399-402. Speaker of the House, veto of, on legislation, 199. Special fund, for local improve- ments, 274; for municipal own- ership purposes, 276. Spencer, Herbert, on the wage system as a form of slavery, 306; on the need of more re- striction, 399. State constitutions after 1787, adoption of direct election and limited term for judges, 240; administrative power decentral- ized, 242; change from annual to biennial sessions, 233; de- velopment of the judicial veto, 230; direct election of the gov- ernor, 239; influence of de- mocracy on, 239-242; local ad- ministrative veto on state laws, 243; majority deprived of power to amend, 235; term of members of the legislature ex- tended, 232. State constitutions of the Revo- lutionary period, movement to- ward democracy seen in, 16-21. 408 State legislatures, administrative veto of, 246; distrust of, 352- 355 ; limitation of the power of, by the courts a cause of cor- ruption, 325-330. See Contracts. State rights. See Calhoun, Con- stitution of the United States. Steffens, Lincoln, on the wealthy business man as a corrupter of municipal politics, 289. Story, Joseph, on the independ- ence of judges in England, 67 note; on the right of courts to veto laws, 105. Suffrage, limitation of in England in the 18th century, 10; prop- erty qualifications for, 25, 43, 333; universal, does not ensure popular government, 369. Supreme Court, attitude toward, a survival of monarchy, 103- 105; cases in which it has exer- cised the veto power, 111; de- cline of faith in, 113-117; Fed- eralist appointments, 94-99, 342; freedom from criticism, no; influence of, upon legislation, 111-113; non-interference with treaties, 1 19-123; political and judicial powers, 107-110; pos- sibility of controlling, 341 ; sig- nificance of powers claimed by, 105; the controlling branch of the government, 102. See Con- tracts, Hamilton, Impeachment, Jefferson, Judges, Judicial In- fallibility, Judicial Veto. Taft, W. H., on the movement to confiscate private property under the guise of reform, 115. Taxes, limitation of the power to impose, 318. Treaty making power, importance of, 137. Tyler, M. C, on the number and character of the opponents of the Revolution, 15. INDEX Vested rights, an obstacle to re- form, 299; means of enforcing, 300. Veto power. See Judicial Veto, President. Virginia resolutions, 172. Von Hoist, H., on the origin of the doctrine of nullification, 169, 171. Ward, L. F., on deception in business, 374. Waterworks, public ownership of, 280. White, Horace, on favoritism in granting bank charters in New York, 327. Willoughby, W. W., on the tyr- anny of majority rule, 295. Wilson, James, on amending the Articles of Confederation, 35; argument* of, against the right of a legislature to revoke privi- leges granted, 321. Wilson, Woodrow, on the Con- stitution as the outcome of a ruling class movement, 51; on the deification of the Constitu- tion, 185. 409 The American Commonwealth ABRIDGED EDITION Revised throughout with the addition of new material By JAMES BRYCE Cloth, 12mo., about 600 pages. In press. $1.75 net An Introduction to the Study of the Government and Institutions of the United States "This work will be invaluable . . . to the American citizen who wishes something more than a superficial knowl- edge of the political system under which he lives and of the differences between it and those of other countries. . . . The fact is that no writer has ever attempted to present so comprehensive an account of our political system, founded upon such length of observation, enriched with so great a mass of detail, and so thoroughly practical in its character. . . . 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